Sikkim High Court
Shri Hari Prasad Sharma vs Union Of India And Ors on 8 May, 2024
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
1
W.P. (C) No.07 of 2023
Hari Prasad Sharma vs. Union of India & Ors.
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extraordinary Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 07 of 2023
Shri Hari Prasad Sharma,
S/o Shri Teknath Sharma,
Aged about 59 years,
R/o Yangtam Ranipool, Sikkim.
P.O. & P.S. Ranipool,
Sikkim-737 135.
..... Petitioner
Versus
1. Union of India,
Through the Secretary,
Ministry of Road Transport and Highways,
Government of India,
1. Sansad Marg,
New Delhi-110001.
2. The National Highways and Infrastructure
Development Corporation Limited (NHIDCL), PMU,
Ranipool,
Through its General Manager (P),
Smile Land, Gidang Busty,
P.O. & P.S. Ranipool, Sikkim-737135.
3. The District Collector,
District Administrative Centre (DAC),
Pakyong, Sikkim-737106.
4. The District Collector,
District Administrative Centre (DAC),
Sichey, Gangtok, Sikkim-737101.
..... Respondents
Application under Article 226 of the Constitution of
India.
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Appearance:
Mr. Thupden G. Bhutia and Ms. Babita Kumari,
Advocates for the Petitioner.
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W.P. (C) No.07 of 2023
Hari Prasad Sharma vs. Union of India & Ors.
Ms. Sangita Pradhan, Deputy Solicitor General of
India assisted by Ms. Natasha Pradhan and Ms.
Purnima Subba, Advocates for the Respondent No.1.
Mr. Debal Kumar Banerji, Senior Advocate with Ms.
Gita Bista, Advocate. Ms. Sangita Pradhan, Deputy
Solicitor General of India assisted by Ms. Natasha
Pradhan and Ms. Purnima Subba, Advocates for the
Respondent No.2.
Mr. Zangpo Sherpa, Additional Advocate General, Mr.
Shakil Raj Karki, Government Advocate and Mr.
Mohan Sharma, Advocate for the Respondent Nos. 3 &
4.
Date of hearing : 01.05.2024
Date of Judgment : 08.05.2024
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The present writ petition has been filed by the
petitioner seeking direction upon the respondents to
acquire his landed and other immovable properties and
restrain them from taking its forceful possession to carry
out construction therein. The petitioner further seeks a
direction to the respondents to abstain from demolishing
his residential building and cottage and constructing
therein.
2. The petitioner claims that he is the owner in
possession of plot no.117 and 118 measuring an area of
0.0264 hectares bearing khatiyan no.81 in Aho Santi,
Pakyong. It is stated that he has constructed a five storied
Hari Prasad Sharma vs. Union of India & Ors.
RCC building as per approved blue print plan and a cottage
therein. It is claimed that the petitioner had purchased this
land from Mr. Raghunath Sharma his father-in-law vide
sale deed dated 14.02.1996 pursuant to which it was
registered in his name. The petitioner further states that he
had obtained a loan from State Bank of India keeping the
land as collateral for the construction of the building.
According to the petitioner he and his family do not have
any residential dwelling house besides the building and the
cottage which is on the verge of acquisition for the purpose
of construction/up gradation of existing lane to two lane
road NH 717A including geometric improvement from
Ranipool to Pakyong.
3. The obvious reason for the petitioner to approach
this Court was the issuance of notice dated 17.12.2021 and
reminder notice dated 24.10.2022. The facts leading to the
issuance of these notices as culled out from the writ
petition is that on 29.08.2017 the Ministry of Road
Transport and Highways (respondent no.1) issued a
notification under section 3A (1) of the National Highways
Act, 1956 (N.H. Act, 1956) declaring its intention to acquire
land followed by notification under section 3(D) thereof
declaring that the land specified in the schedule to be
vested absolutely in the State Government. The petitioner's
Hari Prasad Sharma vs. Union of India & Ors.
land was not notified therein. However, in February 2020
some officers of the Building and Housing Department,
Government of Sikkim along with an officer of National
Highways and Infrastructure Development Corporation
Limited (NHIDCL) (respondent no.2) carried out
measurement of his land while he was away. On his query
the officers of the Building and Housing Department
informed him that compensation amount of
Rs.1,22,56,000/- had been assessed for his property. When
the petitioner approached the District Collector (respondent
no.4) - the Competent Authority requesting him to increase
the compensation amount he was asked to approach the
arbitrator. The petitioner then hired a Chartered Engineer
empanelled with Gangtok Municipal Corporation for the
correct valuation of his five storied RCC building. The
valuation was Rs.3,10,00,000/-.
4. Thereafter On 17.12.2021 the respondent no.4
issued a notice to the petitioner stating that his land had
been acquired by respondent no.2; compensation assessed;
respondent no.2 had further released the compensation
amount to the respondent no.4 and the petitioner may
collect 50% as part payment thereof. It was also stated that
50% remaining house compensation shall be released after
receipt of clearance from respondent no.2.
Hari Prasad Sharma vs. Union of India & Ors.
5. On 24.10.2022 the respondent no.4 sent a
reminder notice to the petitioner reiterating what had been
stated in the notice dated 17.12.2021.
6. Pursuant thereto the petitioner sent a series of
communications to the respondent no.4 as well as
respondent no.2 requesting them not to release the
compensation amount without resurvey and reassessment
of his landed properties; requesting for reassessment of the
properties and revaluation of his five storied building and
the cottage; and for increasing the compensation amount.
When the authorities did not respond to any of his request
the petitioner approached this Court by filing the present
writ petition.
7. In the counter affidavit filed by the respondent nos.
1 and 2 it is claimed that they had followed due procedure
for acquisition of land stipulated in the N.H. Act, 1956. The
respondent nos. 1 and 2 states that they have no
knowledge about ownership of the land claimed by the
petitioner as his. It is also claimed that as per the record of
the State authorities portion of petitioner's building falls on
Government land bearing plot no.99 as per cadastral
survey records of 1978-79. They contest the blue print plan
as not having been approved by the concerned authority. It
is stated that the compensation amount as had been
Hari Prasad Sharma vs. Union of India & Ors.
determined by the respondent no. 4 has been deposited by
them but the petitioner had not accepted the payment. It is
submitted that since the Government land does not need to
be acquired there was no need to mention the same in the
notification issued under the N.H. Act, 1956.
8. The respondents' no. 3 and 4 have jointly filed
their counter affidavit. According to them the petitioner's
land was not notified as it was not required to be acquired.
It was further claimed that the petitioner had constructed
one RCC building and one cottage partly on Government
land. According to the respondent nos. 3 and 4 the
petitioner had encroached 387 square feet under plot
no.358 for construction of the RCC building and 86 square
feet in plot no.358 for construction of the cottage. As such
the compensation was assessed for standing structures of
the petitioner's five storied RCC building and cottage. They
admit the issuance of notice dated 17.12.2021 and
reminder notice dated 24.10.2022. The respondent nos. 3
and 4 submits that in both the notice as well as reminder
notice they have inadvertently used the word "acquired"
instead of "vacate".
9. The records filed by the petitioner which forms the
basis of his claim as the owner of the landed properties
have two substantial and glaring inconsistencies. They are :
Hari Prasad Sharma vs. Union of India & Ors.
(i) The sale deed dated 14.02.1996 records that the
property sold was khatiyan plot no. P/98 having a
total area of .0060 hectares. However, the parcha
khatiyan made thereafter on 01.02.2022 records
khasra no.118 and 117 having a total area of 0.0264
hectares. However, there is no explanation how
khatiyan plot no. P/98 having a total area of .0060
hectares purchased by him vide sale deed dated
14.02.1996 increased to 0.0264 hectares in parcha
khatiyan dated 01.02.2022.
(ii) The blue print plan dated 23.04.2011 records that the
construction was to be in plot no.98 having an area of
0.0269 hectares which is also much more than the
total area of 0.0060 hectares purchased by him vide
sale deed dated 14.02.1996. However, there is no
explanation in the writ petition about the difference.
10. Although the respondent nos. 3 and 4 seeks to
clarify the notice dated 17.12.2021 and reminder notice
dated 24.10.2022 by stating that they had inadvertently
used the word "acquired" instead of "vacate" it is obvious
that it is an afterthought. Neither the records nor their own
pleadings support this contention. The learned Additional
Advocate General fairly concedes and states that the Notice
dated 17.12.2021 and reminder Notice dated 24.10.2022
shall be withdrawn. In view of the categorical undertaking
of the learned Additional Advocate General on behalf of
respondent nos. 3 and 4 that the Notice dated 17.12.2021
and reminder Notice dated 24.10.2022 shall be withdrawn
Hari Prasad Sharma vs. Union of India & Ors.
this Court refrains from making any further comments on
them.
11. The prayer of the petitioner for a direction to the
respondents to acquire his landed properties cannot be
granted. The glaring unexplained inconsistencies in the size
of the land of the petitioner in the sale deed dated
14.02.1996, the parcha khatiyan and the blue print plan
coupled with the stand of the respondent nos. 3 and 4 that
the building and the cottage of the petitioner has been
partly built on Government land the discretionary relief
sought for by the petitioner cannot be granted. The
disputed facts and issues need to be adjudicated upon
before a proper forum in an appropriate proceeding. The
parties are free to take appropriate legal recourse as
advised. The respondent nos. 3 and 4 can, if permissible,
take appropriate legal steps in this regard but not on the
strength of the Notice dated 17.12.2021 and reminder
Notice dated 24.10.2022 which shall be withdrawn.
12. Nothing further is required to be adjudicated in the
present writ petition which is accordingly disposed of.
Hari Prasad Sharma vs. Union of India & Ors.
13. The parties shall bear their respective costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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