THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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C.R.P. No. 05 of 2023
1. The Chairman,
National Highways & Infrastructure Development
Corporation Limited, Corporation Office,
3rd Floor,
PTI Building,
4 Parliament Street, New Delhi-110001.
2. Managing Director,
National Highways & Infrastructure Development
Corporation Limited, Corporation Office,
3rd Floor,
PTI Building,
4 Parliament Street, New Delhi-110001.
..... Revisionists
Versus
1. The Government of Sikkim,
Through the Chief Secretary,
Secretariat Building, Gangtok Sikkim,
Pin code 737 101.
2. Forest and Environment Department,
Through the Additional Chief Secretary-cum-PC,
Government of Sikkim,
Forest Secretariat, Deorali, Gangtok,
Sikkim Pin Code -737102.
3. Robin Kumar Subba,
S/o Late Maha Singh Limboo.
4. Birkha Bahadur Subba,
S/o Late Maha Singh Limboo.
5. Amrit Kumar Subba,
S/o Late Maha Singh Limboo.
6. Bikash Subba
S/o Robin Kumar Subba.
7. Dinesh Subba,
S/o Birkha Bahadur Subba.
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C.R.P. No. 05 of 2023
THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION
LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
8. Bishal Subba,
S/o Amrit Kumar Subba.
(All are residents of Majhitar, Opposite Old
SBI Bank, P.O. Majhitar, P.S. Rangpo, East
Sikkim, Pin No. 737 132.
9. The Secretary,
Land Revenue & Disaster Management
Department, Gangtok, Sikkim,
Pin Code 737 101.
10. The District Collector,
East District Collectorate,
Sichey, Gangtok, Sikkim Pin Code 737 101.
11. The Sub-Divisional Magistrate,
Rangpo Sub-Division,
P.O. & P.S. Rangpo, East Sikkim,
Pin Code 737 132.
12. The Chairman,
National Highway Authority of India,
G-5 & 6, Sector 10, Dwarka,
New Delhi-110075.
13. The Chief General Manager,
Tech.
(Gujarat/MP/Odhisa/Jharkhand/Chhattisgarh
/WB/NE,NH Authority of India,
G-5 & 6 Sector 10, Dwarka,
New Delhi-110075.
.....Respondents
Application under Article 227 of the Constitution of India.
Order dated 19.05.2023 passed by the learned Principal District
Judge, Gangtok Sikkim in Title Appeal No.10 of 2022.
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Appearance:
Mr. Sudipto Mazumdar, Senior Advocate with Ms.
Gita Bista and Ms. Pratikcha Gurung, Advocates for
the Revisionists.
Mr. Shakil Raj Karki and Mr. Sujan Sunwar, Assistant
Government Advocates for Respondent Nos.1, 2 & 9 to
11.
Mr. B. Sharma, Senior Advocate with Mr. M.N.
Dhungel, Mr. Sajal Sharma, Ms. Rachana Rai, Ms.
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C.R.P. No. 05 of 2023
THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION
LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
Puja Kumari Singh and Ms. Roshni Chhetri,
Advocates for Respondent Nos. 3 to 8.
Mr. Chandra Boruah, Standing Counsel and Mr. Rajiv
Boro, Assisting Counsel for Respondent nos. 12 & 13.
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Date of hearing : 20.09.2023 & 21.09.2023.
Date of judgment : 09.10.2023
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The Order under challenge is dated 19.05.2023
passed by the learned Principal District Judge, Gangtok in
Title Appeal No. 10 of 2022 disposing of two applications
i.e. one under Order 39 Rule 1 and 2 read with section 151
of the Code of Civil Procedure, 1908 (CPC) filed by the
Government of Sikkim and Forest and Environment
Department i.e. respondent nos. 1 and 2 (defendant nos. 1
and 3 in Title Suit No. 02 of 2018 {the Title Suit}) and the
other by Chairman, National Highway and Infrastructure
Development Corporation Limited (NHIDCL) and Managing
Director, NHIDCL i.e. revisionist nos. 1 and 2 (defendant
nos. 8 and 9) both for stay of execution of judgment and
decree dated 14.09.2020 passed in the Title Suit.
2. The impugned Order dated 19.05.2023 is
assailed by the revisionists invoking Article 227 of the
Constitution of India.
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C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
3. The Title Suit was filed by the respondent nos. 3
to 8 (the plaintiffs) claiming to be the owner of the suit land
acquired in the year 1934. It was the respondent nos. 3 to 8'
case that they had to shift from the suit land as the Rangpo
River rose over portions thereof. According to them the suit
land was however wrongly recorded in the name of "Sikkim
Sarkar" as they learnt about it in the year 2014. It is the
further case of the respondent nos. 3 to 8 that portions of
their land were acquired by Ministry of Road Transport and
Highways for construction of the overbridge. The respondent
nos. 3 to 8 therefore, filed the suit for various reliefs
including the relief of declaration of their right title and
interest in the suit land, confirmation of possession,
correction of record of rights and a declaration that they
were entitled to the compensation assessed for portion of the
suit land.
4. The Title Suit was decreed in favour of the
respondent nos. 3 to 8. The learned Civil Judge passed a
judgment dated 14.09.2020 in favour of the respondent
nos. 3 to 8 deciding all the issues framed. Accordingly, the
decree was drawn ordering that the respondent nos. 3 to 8
were entitled for the relief of rectifying the record of rights
in their favour as also fair compensation from District 5 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
Collector, respondent no.10 (defendant no.4) in lieu of
portion of the land which has already been acquired by
revisionist no.1. It was also ordered that the portion of
land acquired by revisionist no.1 will not be disturbed
owing to the compensation as entitled to the respondent
nos. 3 to 8.
5. The respondent nos.1 and 2 preferred Title
Appeal No. 10 of 2022 against the judgment and decree
passed by the learned Civil Judge. They filed an
application under Order 39 Rule 1 and 2 read with section
151 of the CPC praying for stay of the impugned judgment
and decree dated 14.09.2020 passed by the learned Civil
Judge. They also prayed for stay of further proceedings in
Civil Execution Case No.01 of 2022 till the final disposal of
Title Appeal No. 10 of 2022. The revisionists also filed an
application for stay of execution of the decree.
6. The applications were disposed of by the
impugned Order dated 19.05.2023. It was held that the
provision of Order 39 Rule 1 and 2 of the CPC was wrongly
invoked but the applications could be disposed under the
provisions of Order 41 Rule 5 of the CPC. The learned
Principal District Judge was of the view that if the
execution proceeding is completed, the appeal would be 6 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
rendered useless for the respondent nos. 1 and 2 who had
preferred the Title Appeal as well as the respondent nos.12
and 13 (defendant nos.6 and 7) and the revisionists. It was
also held that it would be proper to stay the execution of
the proceedings pending before the learned Civil Judge,
Rangpo in Civil Execution Case No. 01 of 2022. The learned
District Judge directed that the respondent nos. 1, 2, 12
and 13 as well as the revisionists should deposit the
amount of compensation payable to the respondent nos. 3
to 8 pending the hearing and disposal of the appeal. It was
further directed that the learned Civil Judge shall make the
assessment of the compensation within a reasonable time
and the operation of the execution case will remained
stayed thereafter, until further orders of the learned
Principal District Judge.
7. The revisionists aggrieved by the impugned
Order dated 19.05.2023 passed by the learned Principal
District Judge has filed the present petition under Article
226 of the Constitution of India.
8. Heard Mr. Sudipto Mazumdar, learned Senior
Counsel for the revisionists. It was submitted that the
respondent nos. 3 to 8 had filed a declaratory suit only and
as such there was no quantification of the amount of 7 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
compensation liable to be paid to the respondent nos. 3 to
8. The respondent nos. 3 to 8 had valued the suit at
Rs.500/- for declaration and injunction and Rs.4500/- for
the other reliefs and paid the court fees accordingly.
Therefore, there was no need for the learned Principal
District Judge to direct deposit of compensation in favour
of the respondent nos. 3 to 8 in an application filed by the
respondent nos. 1 and 2 (the appellants in Title Appeal No.
10 of 2022 before the learned Principal District Judge). It
was further argued that in the circumstances even if the
impugned judgement and decree passed by the learned
Civil Judge were to be upheld by the learned Principal
District Judge he could not have gone beyond the decree
and quantified the compensation payable as no such issue
was examined by the learned Civil Judge as the decree
passed by the learned Civil Judge was only for rectification
of the record of rights and declaration that the respondent
nos. 3 to 8 were entitled to fair compensation. It was
further submitted that the amount of compensation could
be only calculated by the authorities under the National
Highways Act, 1956 and the Executing Court could not go
beyond the decree passed by the learned Civil Judge. 8
C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
9. Mr. B. Sharma, learned Senior Counsel for the
respondent nos. 3 to 8 submitted that as the decree had
been passed in favour of the respondent nos. 3 to 8 they
were entitled to be secured and therefore, the impugned
order called for no interference by exercise of the power
revision under Article 227 of the Constitution of India.
10. Mr. Chandra Boruah, learned Standing Counsel
for respondent nos. 12 and 13 submitted that the direction
in the impugned order to the extent that it holds that even
the respondent nos. 12 and 13 shall deposit the
compensation amount is illegal as the said respondents are
not at all involved in the entire process.
11. Mr. Shakil Raj Karki, learned Assistant
Government Advocate for the respondent nos. 1, 2 and 9 to
11 also supported the arguments made by the learned
Senior Counsel for the revisionists
Considerations
12. Amongst the 13 prayers prayed for in the plaint
prayer (j) relates to compensation and it seeks "a decree
declaring the plaintiffs are entitled for compensation
assessed for the portion of the suit land." There is no
prayer for the consequential relief of the specified amount
of compensation.
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C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
13. The learned Civil Judge did not frame a specific
issue on whether the respondent nos. 3 to 8 were entitled
for compensation or how much compensation where they
entitled to. While deciding issue no.(5) as framed above the
learned Civil Judge held that the respondent nos. 3 to 8
were entitled to the relief of rectifying the records of rights
in their favour and as a consequence relief of fair
compensation from respondent no.10 in lieu of the portion
of land which has already been acquired by revisionist no.1
on the basis of record of 1950-52 and 1979-80.
14. The learned Civil Judge was also of the view that
the portion of land acquired by revisionist no.1 should not
be disturbed.
15. Evidently the respondent nos. 3 to 8 did not
pray for any further relief of specific amount of
compensation except the declaration that they were entitled
to compensation; the learned Civil Judge did not frame any
issue on compensation; the learned Civil Judge did not
grant any specific amount of compensation in favour of the
respondent nos. 3 to 8.
16. The learned Principal District Judge was of the
view that it would be proper to stay the execution of the
proceedings pending before the learned Civil Judge in Civil
Execution Case No. 01 of 2022. To protect the interest of 10 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
the respondent nos. 3 to 8, the learned Principal District
Judge directed that the revisionists and respondent nos. 12
and 13 to deposit the amount of compensation which the
respondent nos. 3 to 8 were entitled pending the hearing
and disposal of the appeal. The learned Principal District
Judge also directed that the learned Civil Judge shall make
assessment of the compensation within a reasonable time
and the operation of the execution case will remain stayed
thereafter, until further orders of the Court.
17. The question which falls for determination is
whether the learned Principal District Judge was correct in
directing the learned Civil Judge to determine the amount
of compensation payable and the revisionists to deposit the
calculated amount of compensation as security pending
consideration of the appeal preferred by the respondent
nos. 1 and 2?
18. Order 41 Rule 5 of the CPC deals with the power
of the Appellate Court to stay the execution of a decree for
sufficient cause. Order 41 Rule 5 of the CPC reads as
under:-
"5. Stay by Appellate Court.- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
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C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
[Explanation-An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the court of first instance.]
(2) Stay by Court which passed the decree.- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied-
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him."
19. It is thus clear that before the grant of stay the
Court is required to be satisfied that substantial loss may
result to the party applying for stay of the execution unless
the order is made; that there is no unreasonable delay in
preferring the application; and that security has been given
by the applicant for the due performance of such decree
pending the hearing of the application. Order 41 Rule 5 (1)
of the CPC clearly mandates that an appeal shall not 12 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
operate as a stay or proceeding under a decree or order
appeal from except so far as the Appellate Court may order,
nor shall execution of a decree be stayed by reason only of
an appeal having been preferred from the decree. Thus the
Appellate Court is bound to apply its judicial mind and
grant stay of execution, if necessary, only if it finds that
there is "sufficient cause" for ordering the stay.
20. It is thus imperative that the Court which
considers the application for stay of the execution of a
decree under the provisions of Order 41 Rule 5 of the CPC
and grants stay must give reasons for its satisfaction on all
the three counts as provided in Order 41 Rule 5 (3) of the
CPC. A composite reading of Order 41 of the CPC makes it
clear that there is a difference between the word "deposit"
and the word "security" used therein. In an appeal against
the decree for payment of money it is imperative that the
appellant "deposit" the amount disputed. This would be
clear from reading Order 41 Rule 1 (3) and Order 41 Rule 5
(5) of the CPC. In other cases also it is the discretion of the
court to grant stay of the execution or refuse to do so.
However, in case the Court decides to grant stay of the
execution, "security" to its satisfaction, which necessarily 13 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
need not be cash or bank guarantee, may be sought for.
(see Bhimasha vs. Special Land Acquisition Officer & Anr.1).
21. The decree granted in favour of the respondent
nos. 3 to 8 is for rectification of record of rights and a
declaration that they are also entitled to fair compensation.
It is quite clear that the record of rights was in the name of
"Sikkim Sarkar" for a considerable time. The respondent
nos. 3 to 8 have also sought for a declaration that they are
entitled to get back possession from the revisionists and
respondent nos. 1 and 2. Thus it is also clear that the
respondent nos. 3 to 8 were also not in possession of the
suit land. Dispossession during pendency of an appeal of a
party in possession is generally considered to be
"substantial loss" in terms of Order 41 Rule 5 (3) (c) of the
CPC as held by the Supreme Court. The condition that may
be imposed under Order 41 Rule 5 (3) (c) of the CPC is not
the only condition which the Appellate Court can impose.
The power to grant stay is discretionary and flows from the
jurisdiction conferred on an Appellate Court which is
equitable in nature. To secure an order of stay merely by
preferring an appeal is not a statutory right conferred on
the appellant. So also, an Appellate Court is not ordained
1 (2008) 10 SCC 797 14 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
to grant an order of stay merely because an appeal has
been preferred and an application for order of stay has
been made. Therefore, an applicant for order of stay must
do equity for seeking equity. Depending on the facts and
circumstances of a given case, an Appellate Court, while
passing an order of stay, may put the parties on such
terms the enforcement whereof would satisfy the demand
for justice of the party found successful at the end of the
appeal. Therefore, while passing an order of stay under
Order 41 Rule 5 of the CPC, the Appellate Court does have
jurisdiction to put the applicant on such reasonable terms
as would in its opinion reasonably compensate the decree
holder for loss occasion by delay in execution of decree by
the grant of stay order, in the event of the appeal being
dismissed and insofar as those proceedings are concerned.
Such terms needless to say, shall be reasonable. (see Atma
Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd.2).
22. In a case of this nature while the Title Appeal is
pending it would be necessary to maintain status quo by
directing stay of the execution. Insofar as rectification of
records of rights is concerned stay of the execution has
already been granted. The direction of the learned Principal
2 (2005) 1 SCC 705 15 C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
District Judge however, for "deposit" of the amount of
compensation pending disposal of the appeal appears to be
beyond the decree. This Court is also of the view that the
direction of the learned Principal District Judge directing
the learned Civil Judge to make assessment of the
compensation payable to the respondent nos. 3 to 8 also
appears beyond the powers of the Executing Court.
23. In such view of the matter, this Court is of the
considered view that during the pendency of Title Appeal
No. 10 of 2022 before the learned Principal District Judge
the Execution Case No. 01 of 2022 shall remain stayed as
ordered. The impugned order to the extent that it directs
the learned Civil Judge to compute the compensation
payable and the revisionists to deposit the amount
calculated is set aside. The learned Principal District Judge
is free to seek any other "security" to its satisfaction during
the pendency of the title appeal keeping in mind the nature
of the relief prayed for by the respondent nos. 3 to 8 and
granted by the learned Civil Judge. Needless to say the
parameters of Order 41 of the CPC is a vital consideration.
The learned Principal District Judge shall decide the Title
Appeal No. 10 of 2022 expeditiously.
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C.R.P. No. 05 of 2023 THE CHAIRMAN, NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR. vs. GOVERNMENT OF SIKKIM & ORS.
24. The impugned Order dated 19.05.2023 is
modified to the above extent and Civil Revision Petition No.
05 of 2023 is disposed of accordingly.
25. In the facts and circumstances, the costs shall
be borne by the respective parties. Pending interim
application is also disposed of accordingly.
26. The observations made by this Court on facts is
for the sole purpose of deciding the lis in the present
revision petition and the learned Principal District Judge is
not bound by any such observations while deciding the
appeal.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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