Sikkim High Court
Mrs. Srijana Gurung vs The Union Of India And Ors on 25 June, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Jurisdiction)
Dated : 25th June, 2024
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SINGLE: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Cont.Cas(C) No.01 of 2024
Petitioner : Mrs. Srijana Gurung
versus
Respondents : The Union of India and Others
Petition under the Contempt of Courts Act, 1971 and
under Article 215 of the Constitution of India
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Appearance
Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel) with Ms.
Mingma L. Sherpa, Advocate (Legal Aid Counsel) for the Petitioner.
Ms. Sangita Pradhan, Deputy Solicitor General of India for
Respondent No.1.
Mr. Zangpo Sherpa, Additional Advocate General with Mr. Sujan
Sunwar, Assistant Government Advocate for the Respondents No.2,
3, 4 and 5.
Mr. Sudipto Mazumdar, Senior Advocate with Ms. Gita Bista,
Advocate for the Respondent No.6.
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JUDGMENT (ORAL)
Meenakshi Madan Rai, J.
1. This Contempt Petition has been filed by the Petitioner
claiming that the Respondents have wilfully disobeyed the
Judgment of the Learned Single Judge of this Court, in WP(C)
No.47 of 2022, dated 29-05-2023, hence Contempt proceedings be
initiated against them.
2. In the Writ Petition (supra), the Petitioner with her
husband, claimed to be joint owners, of an RCC building, on land
bearing plot no.290/2244, measuring 0.0140 hectares (1507 sq.
ft.) at Pachey Samsing Block, Pakyong Elakha, Sikkim, vide
registered Sale Deed Document, dated 13-02-2007 and Parcha
Khatiyan no.690, dated 03-11-2009. That, the Petitioner received
a "Final Notice" dated 08-09-2022, issued by the Respondent No.5
Mrs. Srijana Gurung vs. The Union of India and Others 2
the Sub-Divisional Magistrate (in the Writ Petition supra), stating
that her property had been acquired by the Respondent No.6
[National Highways & Infrastructure Development Corporation
Limited (NHIDCL)] for construction/upgradation of the existing
lane to a two-lane road. She was directed to vacate and hand over
possession of the property described above, within ten days of
receipt of the Notice. That, there was no Notification issued by the
concerned authorities for acquisition of her property. Hence, the
Petitioner by filing the Writ Petition sought a direction upon the
Respondents to acquire her land and the RCC building at the
prevalent market rate, following the due process of law, before
taking physical possession.
3. During the course of the hearing in WP(C) No.47 of
2022, Learned Additional Advocate General for the State-
Respondents No.2 to 5 and the Learned Senior Counsel appearing
for the Respondent No.6 submitted that, they had no issue if the
Petitioner restricted her claims to her property, viz., land described
in the Parcha Khatiyan and that they were willing to ensure that
they do not carry out any of their activities in the areas specified in
the said Parcha Khatiyan. The Petitioner agreed that if the Court
would protect her ownership rights, as reflected in the Parcha
Khatiyan, she would not protest the project works undertaken by
the Respondents for expanding the National Highway. The Learned
Single Judge taking into consideration the understanding between
the parties and having concluded that the Petitioner and her
husband were the owner of land bearing plot no.290/2244 as found
recorded in Parcha Khatiyan no.690, deemed it appropriate to
dispose of the Writ Petition, without examining the merits of the
Mrs. Srijana Gurung vs. The Union of India and Others 3
issues raised by the parties, by allowing the Respondents to
continue with the infrastructural project of expansion of the
National Highway, duly ensuring that they do not infringe upon the
Petitioner's rights of ownership of the plot number, as specified
above, without following due process of law.
4. On 22-02-2024, the instant Petition for initiating Civil
Contempt proceedings as mentioned supra was filed before this
Court, submitting inter alia that the Respondent No.4 vide an Order
dated 06-02-2024, addressed to Respondent No.6 (NHIDCL) stated
that, the Petitioner had constructed the RCC building illegally by
encroaching on Government land, recorded as plot no.287 of the
Khasra records, situated at Pachey Samsing Revenue Block,
Pakyong District (adjacent to plot no.290). That, the said structure
on which the Petitioner had constructed was illegal as it was on
Government land. That, the illegal structure, viz., RCC building,
was assessed for payment of compensation to facilitate the
widening of the National Highway road by the NHIDCL under the
National Highways Act, 1956. That, the total area upon which the
building was constructed was 1787 sq. ft. That, the area of the
Government land under plot no.287 encroached by the Petitioner
was 1199 sq.ft. (cone area). That, 50% payment of compensation
for the said structure had already been released and received by
the Petitioner. That, thereafter Notices under Section 3E of the
National Highways Act, 1956, was issued to the Petitioner to vacate
the structure, but despite lapse of period for both Notices, the
Petitioner had not vacated the structure, as such, the Respondent
No.4 authorised the Respondent No.6 to demolish the structure
belonging to the Petitioner on 13-02-2024.
Mrs. Srijana Gurung vs. The Union of India and Others 4
5. It is urged by Learned Senior Counsel for the Petitioner
that there has been a non-compliance of the Judgment of this
Court by which specific directions were issued to protect the
property of the Petitioner, i.e., the RCC building constructed on plot
bearing no.290/2244. Admitting that, 50% of the compensation
has been received by the Petitioner it is submitted that the
compensation for the RCC structure was computed at
approximately ₹ 97,90,287/- (Rupees ninety seven lakhs, ninety
thousand, two hundred and eighty seven) only, that too not in
terms of the Land Acquisition Act as ordered by this Court and the
Petitioner has been short changed on that aspect as well. That, in
the arbitration proceedings preferred by the Petitioner which
ensued between the parties, in which the Arbitrator was the Law
Secretary, Government of Sikkim, the compensation awarded is ₹
2,21,10,804/- (Rupees two crores, twenty one lakhs, ten thousand,
eight hundred and four) only, for the RCC structure, which however
has been challenged by the Respondent No.6, being in excess of
their expectations. That, before the Writ Court, when the
Judgment dated 29-05-2023 was pronounced the State-
Respondents made no allegation that the property of the Petitioner
was constructed on a part of plot no.287, which the Petitioner is
alleged to have encroached, sans proof. That, this is being raised
for the first time before this Court. That, the questions put forth in
the Order of this Court dated 04-04-2024 have not been clearly
responded to by the State-Respondents, who have instead now
resorted to the 1979-80 cadastral records, for their convenience,
devoid of reasons, as the measurement of both plot nos.287 and
290 had been made by the Office of the Respondents No.4 and 5,
Mrs. Srijana Gurung vs. The Union of India and Others 5
demarcated by their officer after which the construction of the
building commenced and was completed several years ago. The
claim of encroachment and illegality have been raised rather
belatedly now. That, in view of the foregoing submissions as the
building of the Petitioner has been constructed legally on her own
plot of land, the protection granted by this Court in WP(C) No.47 of
2022 ought to be allowed to continue.
6. Learned Additional Advocate General submits that 50%
of the compensation has already been paid and the remaining 50%
is yet to be disbursed but there is no doubt that the Petitioner has
encroached on plot no.287. That, the Learned Single Judge in the
Writ Petition supra had protected the property of the Petitioner but
the Judgment does not protect any illegally constructed property
on a portion of the plot no.287. It is further submitted that in fact
the issue of plot no.287 had been raised before the Learned Single
Judge in the Writ Petition (supra), in its Counter-Affidavit. Because
of the understanding between the parties, the Judgment of the
Learned Single Judge had not discussed the merits of the matter.
7. Learned Senior Counsel for the Respondent No.6
canvassed that, 50% of the computed compensation has already
been released and they are willing to release the remaining 50%.
That, the work of expansion of the Highway should be allowed to
continue unobstructed for larger public good and convenience. The
Arbitrator, issued an award of ₹ 2,21,10,804/- (Rupees two crores,
twenty one lakhs, ten thousand, eight hundred and four) only, and
being aggrieved thus the Respondent No.6 is in fact before the
concerned Learned Court under Section 34 of the Arbitration and
Conciliation Act, 1996. That, the Respondent after depositing 50%
Mrs. Srijana Gurung vs. The Union of India and Others 6
of remaining compensation may be permitted to continue with the
construction.
8. Having heard Learned Counsel for the parties, it is
evident that the crux of the matter as can be culled out from the
averments, documents and submissions advanced are that,
according to the Petitioner, their RCC building has been constructed
legally on plot no.290/2244, measuring 0.0140 hectares (1507 sq.
ft.) at Pachey Samsing Block, Pakyong Elakha, Sikkim, which they
own, vide registered Sale Deed Document dated 13-02-2007 and
Parcha Khatiyan no.690 dated 03-11-2009. That, due process has
not been followed for acquisition of their property or for computing
compensation, to their detriment and prejudice. Contrarily, it is
the case of the State-Respondents that half the portion of the RCC
building has been illegally constructed by the Petitioner on the road
reserve land by encroaching upon it when it is Government land,
being plot no.287, which is adjacent to plot no.290. It therefore
emerges with clarity that the dispute between the parties has
taken the nature of a civil dispute, which this Court is not in a
position to adjudicate. It appears that the parties each have their
own interpretation of the Judgment in the Writ Petition (supra),
and consequently there is no wilful disobedience of the Judgment
of the Court.
9. In the facts and circumstances, the Learned Senior
Counsel for the Petitioner submits that he seeks to obtain
necessary reliefs from the Civil Court and prays for protection of
the property of the Petitioner till he approaches the appropriate
Civil Court.
Mrs. Srijana Gurung vs. The Union of India and Others 7
10. To avoid prejudice to the Petitioner, at this juncture and
in light of the Judgment of the Learned Single Judge in WP(C)
No.47 of 2022, dated 29-05-2023 and in consideration of the
foregoing discussions, the Respondents shall not take any coercive
measures with regard to the property of the Petitioner which has
been afforded protection by the Judgment supra. The said
protection shall continue for thirty days or till the Petitioner
approaches the Learned Civil Court, whichever is earlier.
11. With the above observations, the Contempt Petition
stands disposed of.
( Meenakshi Madan Rai )
Judge
25-06-2024
Approved for reporting : Yes
ds
