Sikkim High Court
Tej Bahadur Thapa vs Union Of India And Ors on 29 May, 2023
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 10 of 2022
Shri Tej Bahadur Thapa,
S/o Late Kaiser Bahadur Thapa,
Mangarjong, Church Road,
Upper Arithang,
Gangtok - East Sikkim 737101.
..... Petitioner
Versus
1. Union of India,
Through the Secretary,
Ministry of Road Transport and Highways,
Government of India,
1, Sansad Marg,
New Delhi-110 001.
2. National Highways and Infrastructure Development
Corporation Limited PMU, Ranipool,
Through the General Manager (P),
Smile Land, Gidang Busty,
P.S. Ranipool, P.O._Ranipool,
East Sikkim-737 135.
3. District Collector cum Competent Authority, Land
Acquisition,
Office of the District Collectorate,
Pakyong District, Pakyong,
Sikkim-737 106.
4. The State of Sikkim,
Through the Secretary,
Land Revenue and Disaster Management Department,
Government of Sikkim,
Gangtok District - 737 101.
..... Respondents
Application under Article 226 of the Constitution of India.
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Appearance:
Mr. Tej Bahadur Thapa, Petitioner in person.
Ms. Sangita Pradhan, Deputy Solicitor General of India
assisted by Ms. Natasha Pradhan and Ms. Purnima
Subba, Advocates for Respondent no. 1.
Mr. Debal Kumar Banerji, Senior Advocate with Ms. Gita
Bista and Ms. Pratikcha Gurung, Advocates. Ms. Sangita
Pradhan, Deputy Solicitor General of India with Ms.
2
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Natasha Pradhan and Ms. Purnima Subba, Advocates for
Respondent no. 2.
Dr. Doma T. Bhutia, Additional Advocate General with
Mr. S.K. Chettri and Mr. Yadev Sharma, Government
Advocates and Ms. Pema Bhutia, Mr. Sujan Sunwar and
Mr. Shakil Raj Karki, Assistant Government Advocates.
Ms. Tshering Uden Sherpa, Legal Retainer for D.C.
Pakyong (Land Revenue Department) for Respondent nos.
3 & 4.
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Date of hearing : 31.03.2023, 03.04.2023 & 26.04.2023 to
28.04.2023
Date of judgment : 29.05.2023
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The petitioner seeks to invoke the extraordinary
jurisdiction of this Court. It is his grievance that the
respondents are attempting to take possession of his
24,000 square feet of land (40 feet in width and 600 feet
long) (additional land) contiguous to khasra plot nos. 68
and 69 at Chota Singtam Block, Saramsa, Pakyong
District, Sikkim, along the existing Ranipool Pakyong Block
without lawfully acquiring it, wrongfully perceived as 'road
reserve'. He seeks a direction upon the respondents not to
do so without lawful acquisition and claims that the
amount of compensation for the additional land shall not
be less than the amount due and payable prescribed in the
first schedule under section 26(2) read with section 105 of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (the
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Fair Compensation and Acquisition Act). In addition, he
seeks a direction that he be paid 100% solatium of the total
compensation calculated together with interest at 12% per-
annum on the total value of the additional land.
2. According to the petitioner, on 23.01.1968 his father
late Kaiser Bahadur Thapa purchased khasra plot no. 36
(under the survey operations of 1951) situated at Chota
Singtam Block, Saramsa, East District, East Sikkim (the
land) from late Dadhiram Sapkota Sharma by virtue of sale
deed registered in Book no.1, Volume no.2, Item no.268 for
the year 1968. On 20.08.1986, by a decree of this Court in
Civil First Appeal No.4 of 1985 ownership rights in favour
of his father was declared and decreed. On 04.06.1996, his
father was handed over possession of the land. According
to the petitioner the land was used for paddy cultivation
and has been under the petitioner's family unhindered
possession for over 50 years since 1968. The land is
completely fenced by ferroconcrete posts, angled irons with
barbed wires, RCC with stone cladding, Iron Gate and
concrete footpath. There is a road leading to the petitioner's
farm house that dominates the land. The petitioner has
developed portions of the land for tourist related purposes
and had earlier converted a portion of the land abutting the
road for opening a petrol/diesel pump. On 16.09.2017,
Notification No.2462 dated 29.08.2017 was published
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
under the provisions of sub section (1) of section 3A of the
National Highways Act, 1956 (the 1956 Act) in the Sikkim
Express. On 27.12.2017, after hearing the objection of the
petitioner, the Competent Authority vide Order dated
27.12.2017, directed joint inspection with the officials of
the Competent Authority and the Petitioner. However, on
16.03.2018 the Competent Authority vide letter bearing
memo no.1119/53/B/RO/DCE, dated 16.03.2018
forwarded copy of an order disallowing his objection. On
29.03.2018 the declaration under section 3D of the 1956
Act was published. On 01.08.2019 the petitioner was
served a notice under section 3 E of the 1956 Act. On
19.02.2020 the Competent Authority issued public notice
under section 3 G (3) of the 1956 Act inviting all land
owners and persons interested in the land being acquired
to submit their claims in respect of the lands mentioned in
the schedule given in the public notice within 15 days from
publication. On 02.03.2020 the petitioner submitted his
claim petition. The petitioner states that in his claim
petition he had stated that on studying the plan in relation
to the due process of acquisition of the petitioner's notified
lands, it came to light that not only the portions of the
petitioner's notified land in khasra plot no. 68 admeasuring
0.0020 hectare and 0.0300 hectare were being acquired
but a large portion of petitioners' unnotified land i.e. the
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
additional land along the existing Ranipool-Pakyong road
are also being taken away without the same being acquired
by the respondent no.1 by showing it as 'road reserve'. On
10.07.2020 the petitioner filed three applications inter-alia
praying for calling of documents; submitting documents
and notes and for seeking time to file additional documents
in support of his claim. On 20.08.2020 the petitioner
issued notice to the Competent Authority. On 03.09.2020
the petitioner received order dated 10.07.2020 dismissing
his claim. On 27.09.2021 the Competent Authority
electronically transferred 50% of amount calculated as
being payable to the petitioner towards the cost of the
structures on the petitioners un-acquired land. On
14.02.2022 the petitioner submitted his application stating
that he had received the amount under protest. On
04.03.2022 W.P. (C) No. 07 of 2022 was filed by the
petitioner which was withdrawn on 16.03.2022 with liberty
to file afresh. The present writ petition was filed thereafter
on 28.09.2022.
3. The respondent nos. 1 and 2 has filed a common
counter affidavit contesting the writ petition. It is submitted
that the writ petition is not maintainable as the petitioner
seeks monitory relief and further has failed to prove his
title. It is their case that they have started their
construction after the site was handed over by the State
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Government vide handing over/taking over documents
dated 05.11.2018, 14.11.2018 and 13.02.2019. It is their
case that the State authorities had informed them that as
per land record of 1979/82, the 'road reserve' is 100 feet
i.e. 50 feet by each side from the centre of the road and
that they had acquired the land beyond the 'road reserve'
falling within the right of way/alignment of the project
through the 1956 Act. They also rely upon the cadastral
map of the concerned block duly signed by the District
Collector and other officers as well as letter Memo
No.605/SDM/PKG dated 28.09.2019. It is their case that
they acted on the details provided by the State
administration and acquisition was done under the 1956
Act. It is submitted that as per Sikkim 'road reserve'
(Protection and Preservation) Act, 2009, 'road reserve'
means such portion of land lying within such distance from
the centre on either side of such roads or highways as may
be prescribed in any law but shall not include reserved
forest area on either side of the road or any other notified
area especially earmarked for its exclusive use by any other
authorities. Where the 'road reserve' has been vested in the
name of the State Government it shall be lawful for the
persons authorized by the State Government to enter and
perform such acts as may be necessary upon the land for
carrying out maintenance, repair, management of the road
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
and building/bungalow or the part thereof, or any other
work connected therewith. It is submitted that the
concerned project is an infrastructure project which
connects the capital Gangtok to the only airport in the
State of Sikkim. It is a time bound project scheduled for
completion by July, 2024 and due to the stoppage of work
by the petitioner the project is being delayed. It is their case
that the land area within the 'road reserve' does not need to
be acquired as being Government land for road purpose
and therefore, not listed in the schedules of the gazette
notification issued under section 3(A) of the 1956 Act.
4. The petitioner, in the rejoinder to the counter affidavit
of the respondent nos. 1 and 2, contests that they had
started construction work on the additional land of the
petitioner. It is stated that the actual physical possession of
the petitioner's land is still with him and therefore, the
State Government has not handed over the actual physical
possession of the additional land to the respondent nos. 1
and 2. It is submitted that 'road reserve' is not 50 feet as
claimed by the respondent nos. 1 and 2 and that the
cadastral map prepared by the revenue authorities is not a
document of title. The petitioner submitted that before
using the land for broadening of the road, the Government
of Sikkim is required to acquire the land by due process of
law. It is submitted that the Civil Court has already decided
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
the issue of ownership of petitioners land in Civil First
Appeal No.4 of 1985 which has been accepted by the
revenue authorities. The petitioner submits that he is
willing to give the additional land belonging to the
petitioner in national and larger public interest provided
acquisition is made following due process of law. It is
submitted that delay if any is caused by the respondents
and not by any act of the petitioner as alleged. It is
contested that unilateral declaration of 'road reserve'
cannot ipso facto transfer the petitioner land without
following due process of law and declaration of a particular
land as a 'road reserve' and transfer of ownership are
entirely different and distinct acts. It is stated that the
petitioner has not been paid a single naya paisa towards
acquisition of the petitioner's additional land.
5. The respondent nos. 3 and 4 has filed a common
counter affidavit objecting to the writ petition. It is
submitted that since section 3C (3) of the 1956 Act
provides that any order made by the Competent Authority
under section 3C (2) is final there is a bar in challenging it.
It is submitted that the petitioner has suppressed the
material fact that he had approached the sole arbitrator
appointed under section 3G (5) of the 1956 Act vide
Arbitration Case No. 04 of 2022 on the same facts and
issues and thus the writ petition is liable to be dismissed.
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
It is submitted that this Court lacks the jurisdiction since
under section 3-I of the 1956 Act the Competent Authority
has the powers of a civil court to try a suit under the Civil
Procedure, Code 1908 and disputes regarding the said
issue. The respondent nos. 3 also alleges that the
petitioner has encroached Government land of 'road
reserve' of khasra plot no.54. It is submitted that the
Competent Authority having passed a detailed order dated
27.12.2017 on the complaint dated 05.10.2017 filed by the
petitioner it had now attained finality. It is stated that the
petitioner was issued notice under section 3 of the 1956
Act vide Memo No. 406/53/P/DC/DCE dated 01.08.2019
for delivery of possession within sixty days of its issuance
as he had encroached Government land and as such there
was no violation of natural justice as alleged. The
respondent nos. 3 and 4 also submit that the original land
sellers with whom the petitioner had dispute have not been
made parties although they were necessary and proper
parties. The respondent nos. 3 and 4 submit that as per
Notice of proclamation dated 09.11.1898 (sic) which is
protected under Article 371F of the Constitution of India,
50 feet of ground above and the same distance below all
Sikkim roads must be respected as reserve ground. It is
submitted that the additional land fell under 'road reserve'
by the operation of the proclamation of 09.11.1898 (sic)
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
much prior to its purchase by the petitioner's father from
late Dadi Ram Sapkota. It is contested that the question of
acquisition would therefore, not arise as it had already
been acquired by the Maharaja by the said proclamation.
The respondent nos. 3 and 4 has not specifically denied the
assertion of the petitioner that he has been in possession
and has substantially developed his land.
6. In the rejoinder to the counter affidavit filed by
respondent nos. 3 and 4 besides reiterating the grounds
taken in the rejoinder to the counter affidavit of the
respondent nos. 1 and 2, the petitioner clarifies that the
arbitration proceedings relates to the petitioner's other land
which have been notified under section 3A and 3D of the
1956 Act in portions of khasra plot no.68 and not for the
additional land which is the subject matter of the present
writ petition. It is contested that since admittedly no
acquisition proceedings have been initiated with regard to
the additional land none of the provisions of the 1956 Act
would apply. It is also submitted that as per the Record
Writing or Kotha Purnu or Dru-Deb and Attestation Rules
for Sikkim State, 1951 "Road reserves and water reserves
are recorded in the name of the State, 20 feet in case of dry
fields and 10 feet in case of paddy field should be recorded
as road reserve on either sides of all State paths in Sikkim
except on steep hill sides and places liable to land slips
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
where 50 feet reserve shall be kept on either side of the
road. In case of cart roads the existing practice of retaining
50 feet on either side shall be continued where the road
borders on dry fields and 10 feet on either side of the road
bordering a paddy field....." The petitioner submits that the
records of 1978-80 prepared on the basis of the Sikkim
Agricultural Land Reforms Act, 1978 does not provide for
'road reserve'. It is submitted that the petitioner does not
question the authority of the former King or the
Government to declare a particular land including part of
the petitioner's land as 'road reserve'. It is submitted that
mere declaration of 'road reserve' cannot transfer
ownership and title which can be conferred only if the State
Government acquires the same. The petitioner submits that
the 'road reserve' in case of the petitioner's land is only 10
feet being a paddy field and not 50 feet as claimed. It is
denied that the petitioner had encroached Government
land as alleged.
7. The objection raised by respondents no.3 and 4 that
the petitioner having approached the Sole Arbitrator
appointed under Section 3G (5) of the 1956 Act vide
Arbitration Case No.04 of 2022 on the same facts is
precluded from agitating the same issue in the present Writ
Petition is taken up first. Section 3G of the 1956 Act deals
with determination of amount payable as compensation.
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Where any land is acquired under the 1956 Act, the
Competent Authority is required to determine the amount
payable as compensation. Section 3G (5) of the 1956 Act
provides that if the amount determined by the Competent
Authority under sub-section (1) or sub-section (2) is not
acceptable to either of the parties, the amount shall, on an
application by either of the parties, be determined by the
Arbitrator to be appointed by the Central Government. The
language of Section 3G (5) of the 1956 Act makes it clear
that the jurisdiction of the Arbitrator would be to re-
determine the amount of compensation determined by the
Competent Authority if it is not acceptable by either of the
parties. Therefore, the Arbitrator would not have any
jurisdiction to re-determine anything beyond what is
determined by the Competent Authority under Section 3G
of the 1956 Act. What is determinable is the amount of
compensation payable for the land which has been
acquired. Thus, even if the petitioner had sought any relief
beyond the determination of the amount of compensation
by the Competent Authority of his land which have been
acquired, and sought additional compensation of lands
which have not been acquired, the Arbitrator would have
no jurisdiction to go beyond the power granted under
Section 3G (5) of the 1956 Act and grant compensation for
land which have not been acquired. The prayers in the Writ
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Petition are all prayers relating to the additional land
claimed to be of the petitioner which have not been
acquired and not with regard to the petitioner's land
acquired by the respondents. Resultantly, the objection
that the petitioner is precluded from agitating the present
issue before this Court is overruled.
8. The second objection of the respondent nos.3 and 4 is
that since Section 3C (3) of the 1956 Act makes any order
made by the Competent Authority under sub-section (2), to
be final, the petitioner is precluded from challenging the
final order passed after hearing the objections under
Section 3C of the 1956 Act. A perusal of the prayers sought
for by the petitioner does not reflect that he was seeking to
challenge the order passed by the Competent Authority in
terms of Section 3C of the 1956 Act. This objection of
respondent nos.3 and 4 is also therefore overruled.
9. The respondent nos. 3 and 4 also submits that the
court has no jurisdiction since under section 3-I of the
1956 Act the Competent Authority has certain powers of
the Civil Court. Section 3-I merely provides the Competent
Authority with the power of a Civil Court while trying a suit
under the Code of Civil Procedure, 1908 in respect of
certain specified matters. It does not take away the power
of the Constitutional Courts under Article 226 of the
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Constitution of India. The objection is thus without any
substance and overruled.
10. The respondent nos.3 and 4 also alleges that the
petitioner has, in fact, encroached Government land for
which he was issued notice under Section 3E of the 1956
Act with Memo No.406/53/P/DC/DCE dated 01.08.2019
for delivery of possession within sixty days of its issuance.
The petitioner has denied that he has encroached upon any
Government land 'road reserve' in khasra plot no.54 in his
Rejoinder. Although the respondent nos. 3 and 4 alleges
that the Notice dated 01.08.2019 was issued under Section
3 of the 1956 Act for delivery of possession as the petitioner
had encroached Government land, the contents of the
Notice, however, does not say so. The Notice requires the
petitioner to deliver possession of the land which was
acquired. Section 3E of the 1956 Act relates to the power to
take possession of any land which has been vested in the
Central Government under sub-section (2) of section 3D of
the 1956 Act and the amount determined by the Competent
Authority under Section 3G of the 1956 Act has been
deposited under sub-section (1) of Section 3H with the
Competent Authority by the Central Government. Section
3E of the 1956 Act does not relate to any notice for
encroachment as sought to be made out by the respondent
nos. 3 and 4. The allegation that the petitioner has
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
encroached upon Government land does not seem to have
any factual basis and even if at all it was so, the authorities
would have taken recourse to the applicable law to remove
illegal encroachment, if any.
11. The respondent nos.3 and 4 also submit that the
petitioner has not made the original land seller who sold
the land to his father late Kaiser Bahadur Thapa a party in
the present Writ Petition although he was a necessary
party. Considering the nature of the Writ Petition, the
objection of the respondent nos.3 and 4 is not sustainable
as the original land seller who sold the land in the year
1968 is neither a necessary nor a proper party. The
objection therefore is also overruled.
12. The respondent nos. 3 and 4 submits that the writ
petition is not maintainable for want of necessary and
proper party i.e. the Forest Department. According to the
respondent nos. 3 and 4 as per the notification no.
47/HOME/2017 dated 11.10.2017 in exercise of the power
conferred by clause (3) of Article 168 of the Constitution of
India, Government of Sikkim (Allocation of Business Rules)
2017 has been framed in which 'road reserve' falls under
the Forest Department and therefore, the dispute with
regard to 'road reserve' cannot be adjudicated without the
Forest Department. It is also submitted that the Forest
Department being the protector of 'road reserve' under the
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
Sikkim Forest Water Course Road Reserve (Preservation
and Protection) Act, 1988 is a proper and necessary party.
The record reveals that due to the claim of the respondent
nos. 3 and 4 that the land falling on either side of the
Highway was 'road reserve' the issue has been agitated by
the parties. Various Notifications and Rules of the State
Government were placed by the parties in the pleadings as
well as during the course of hearing to explain what is 'road
reserve' and the implications thereof, if any. However, this
Court is of the view that it is not necessary to examine this
question at all in the present proceedings and leave it open
to be decided in any subsequent litigation. Thus, it would
not be necessary for this Court to examine whether the
Forest Department ought to have been impleaded in the
present writ proceedings.
13. From the records made available to this Court it is
clear that the petitioner's father-late Kaiser Bahadur Thapa
had purchased khatiyan plot no.36 with an area of 4.00
acres (out of 7.56 acres) of land from one Dadhiram
Sapkota Sharma in the year 1968 vide a registered Sale
Deed. The Sale Deed records the boundary as under:-
East : Paddy field of Champa Devi, chilauney tree
and dil across - rock.
West : Road reserve.
North : P. Fd. of Shivaji Mandir separated by
Kandla.
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
South : P. Fd. of Prithivi Raj Limboo separated by
Tharo Bato.
14. The records reveal that late Kaiser Bahadur Thapa
was also issued a Parcha Khatiyan in the year 1981 for
khatiyan plot no.36 but for an area of 3.45 acres only. The
records placed by the petitioner however, does not clearly
show how the 4 acres of land purchased by late Kaiser
Bahadur Thapa was recorded in the Parcha Khatiyan
issued to him in the year 1981 as 3.45 acres only.
15. The records also reveal that thereafter due to a
litigation, the land of late Kaiser Bahadur Thapa was
subject matter of Civil First Appeal No.4 of 1985 before this
Court between Narad Timsina and Devicharan Sapkota as
the Appellants/Defendants and late Kaiser Bahadur Thapa
as the Respondent/Plaintiff. This Court dismissed the
Appeal and on 20.08.1986 ordered:-
"The Appeal is dismissed subject to the
modification that the Plaintiff-Respondent shall be
entitled to declaration and possession in respect of 3.45
acres of plot no.36 and he shall be delivered possession
after the eviction of appellant no.1, Narad Timsina of
0.82 acres area of plot no.36 as shown in red in the
Plan Exhibit P-3 which shall form part of the decree."
16. Exhibit P-3 was a map prepared during settlement
operation in 1952 of Block Chota Singtam showing plot
no.36 having a total area of 3.45 acres and the disputed
area as 0.82 acres.
17. The record also reveals that late Kaiser Bahadur
Thapa was thereafter handed over possession of the land
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
by installing 32 dry bamboo posts along the boundaries
demarcated and pointed out by the concerned Amin.
18. According to the Petitioner, the land purchased by
late Kaiser Bahadur Thapa was inherited by him and he is
the sole and absolute owner of plot nos. 67, 68, 69, 70/753
and 72/754 (under Survey Operation of 1978-1983)
situated at Chota Singtam Block, Saramsa, Pakyong
District, Sikkim. The Petitioner also relies upon the Parcha
Khatiyan issued by the Land Revenue and Disaster
Management Department dated 28.09.2020 recording the
name of the Petitioner in their record of rights. The Parcha
Khatiyan for these plots reflects a total area of 0.1780 +
0.2700 + 0.9800 + 0.0200 + 0.0080 hectares = 1.456
hectares which amounts to roughly 3.59 acres.
19. Although the Sale Deed dated 23.01.1968 for khatiyan
plot no.36 records a total area of 4 acres it is clear that the
Decree of this Court confirmed late Kaiser Bahadur Thapa's
entitlement in respect of 3.45 acres only which is also
reflected in the Map Exhibit P-3 which was made part of
the Decree. The Parcha Khatiyan issued in favour of late
Kaiser Bahadur Thapa in the year 1981 also records an
area of 3.45 acres only and this record was not amended.
The subsequent Parcha Khatiyan in favour of the petitioner
also does not total to 4 acres as reflected in the Sale Deed.
The petitioner however, seeks to suggest that between the
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
sale deed document of the year 1968 which records a total
area of 4 acres and now the Parcha Khatiyan in his favour
of the same land which records less than 4 acres is the
additional land which is sought to be taken over by the
respondents as 'road reserve' without acquisition. As seen
above in spite of the fact that the Parcha Khatiyan issued in
favour of late Kaiser Bahadur Thapa in the year 1981 and
the decree of this Court of the year 1986 which recorded an
area of 3.45 acres only even when the petitioner obtained
Parcha Khatiyan in his favour of the same land with the
new plot numbers the total area was still less than the 4
acres which was recorded in the sale deed of the year 1968.
The Sikkim Record Writing and Attestation Rules, 1988
provides a detailed mechanism to correct the records of
rights in case of discrepancies. Writ Court is not the correct
forum to agitate this issue. To approach the Writ Court the
petitioner must state facts which are not in dispute and
show clearly the infringement of his fundamental rights or
his statutory legal rights.
20. The Petitioner, however, seeks a direction upon the
Respondents not to carry out any construction activity of
road widening on the additional land unless and until it is
lawfully acquired by the Respondent no.1 and 4 and
adequate compensation is paid to the Petitioner in terms of
the law. The Parcha Khatiyan in favour of the Petitioner
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
totals to 1.456 hectares which amounts to roughly 3.59
acres, which is little more than the extent of land owned by
Late Kaiser Bahadur Thapa as per the Decree of this Court
and the Parcha Khatiyan of the year 1981. The writ court
cannot investigate what the petitioner himself has not done
about the discrepancy pointed out by him in his land
records. As against the claim of the Petitioner, the State-
Respondent Nos.3 and 4 have filed a map showing the
extent of land in the name of the Petitioner in plot no.67,
70/753, 72/754, 68 and 69 totalling to 1.4560 hectares
which is exactly what the Petitioner himself claims in his
Writ Petition. The map also reflects plot no.54 as 'road
reserve'. Plot no.54 is the stretch of land next to the metal
road bearing plot no.53. Plot no.54 touches both plot
nos.68 and 69 which is owned by the Petitioner. The
Respondent no.2 has also placed on record the Cadastral
Survey Map of 1978-1979 which also records the above
facts, as reflected in the Sketch Map produced by the State-
Respondent nos. 3 and 4. Section 83 of the Indian Evidence
Act, 1872 provides that the court shall presume that maps
or plans purporting to be made by the authority of the
Central Government or any State Government were so
made, and are accurate; but maps or plans made for the
purposes of any cause must be proved to be accurate.
Although the Petitioner claims that he is the owner of the
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
additional land, the Petitioner has not been able to
demonstrate clearly how it is so.
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 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
W.P. (C) No. 10 of 2022
Mr. Tej Bahadur Thapa vs. Union of India & Ors.
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.
23. No orders as to costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
to/ml.
