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THE HIGH COURT OF SIKKIM AT GANGTOK
PIUS C. KURIAKOSE, J.
Mr. Thupten Kalden Bhutia
Ms. Dikeela Kalden - Petitioners.
Versus
State of Sikkim, through the Chief Secretary, Government of Sikkim, Tashiling Secretariat, Gangtok. - Respondents.
W.P. (C) No. 7 of 2012
Decided on : 29.08.2013
The Court held that the acquisition of land for a private company is not for a public purpose and hence the acquisition is bad for non-compliance. The Court also held that the invocation of urgency clause under Section 17 was not justified and the dispensation of the enquiry under Section 5A was not properly done.
Fact of the Case:
The petitioners, Mr. Thupten Kalden Bhutia and Ms. Dikila Kalden, are father and daughter. The respondents are State of Sikkim (R-1), the Secretary, Land Revenue and Disaster Management Department (R-2), the Secretary, Power and Energy Department (R-3), the District Collector, West District (R-4), the Managing Director, Sikkim Power Development Corporation (R-5), the Union of India (R-6) and the Director, M/s Shiga Energy Pvt. Ltd. (R-7). The petitioners have filed this writ petition challenging Annexure–1 notification issued by the second respondent under Section 4 (1) of the Land Acquisition Act, 1894 (for short, “the Act”) pertaining inter alia to the proposed acquisition of a total extent of 5.5050 hectares of land in various plots standing in the name of the first petitioner. The writ petition is also for quashing Annexure–2 declaration promulgated by the second respondent under Section 6 of the Act in respect of the very same property. The writ petition also seeks a writ of certiorari quashing and cancelling the procedure initiated under Sections 8 and 9 of the Act. It seeks quashment by a writ of certiorari of the award passed under Section 11 of the Act. It also seeks orders against the respondents directing them to pay compensation for the damages caused to the property of the petitioners. It also seeks a direction to the respondents for immediate cessation of further construction work on the property of the petitioners till the pendency of the writ petition.
Finding of the Court:
The Court found that the acquisition of land for a private company is not for a public purpose and hence the acquisition is bad for non-compliance. The Court also held that the invocation of urgency clause under Section 17 was not justified and the dispensation of the enquiry under Section 5A was not properly done.
Issues: Whether the acquisition of land for a private company is for a public purpose? Whether the invocation of urgency clause under Section 17 was justified? Whether the dispensation of the enquiry under Section 5A was properly done?
Ratio Decidendi: The Court held that the acquisition of land for a private company is not for a public purpose and hence the acquisition is bad for non-compliance. The Court also held that the invocation of urgency clause under Section 17 was not justified and the dispensation of the enquiry under Section 5A was not properly done. The Court relied on the following judgments: Darshan Lal Nagpal (Dead) by Lrs. vs. Government of NCT of Delhi & ors. : (2012) 2 SCC 327, Om Prakash & anr. vs. State of U.P. & ors. : (1998) 6 SCC 1, Dev Sharan & ors. vs. State of Uttar Pradesh & ors. : (2011) 4 SCC 769, Ram Dhari Jindal Memorial Trust vs. Union of India & ors. : (2012) 11 SCC 370, Darshanlal Nagpal (supra), Laxman Lal (Dead) through Lrs. vs. State of Rajasthan & ors. : (2013) 3 SCC 764, Raghbir Singh Sehrawat vs. State of Haryana & ors. : (2012) 1 SCC 792, Radhy Shyam (Dead) through Lrs. & ors. vs. State of Uttar Pradesh & ors. : (2011) 5 SCC 553, The Land Acquisition Collector vs. Smt. Parvati Devi : AIR 1964 HP 32, Steel Authority of India Ltd. vs. Sutni Sangam & ors. : (2009) 16 SCC 1, Vyalikaval Housebuilding Coop. Society vs. V. Chandrappa & ors. : (2007) 9 SCC 304, Collector (District Magistrate) Allahabad & anr. vs. Raja Ram Jaiswal : (1985) 3 SCC 1 and Devendra Singh & ors. vs. State of Uttar Pradesh & ors. : (2011) 9 SCC 551.
Final Decision: The Court disposed of the writ petition as above. No costs. It is clarified that this judgment will act in personam only and will not be of avail to the other land owners whose property has been acquired for this project.
Pius, CJ
The petitioners Mr. Thupten Kalden Bhutia and Ms. Dikila Kalden are father and daughter. The respondents are State of Sikkim (R-1), the Secretary, Land Revenue and Disaster Management Department (R-2), the Secretary, Power and Energy Department (R-3), the District Collector, West District (R-4), the Managing Director, Sikkim Power Development Corporation (R-5), the Union of India (R-6) and the Director, M/s Shiga Energy Pvt. Ltd. (R-7).
2. The petitioners have filed this writ petition challenging Annexure–1 notification issued by the second respondent under Section 4 (1) of the Land Acquisition Act, 1894 (for short, “the Act”) pertaining inter alia to the proposed acquisition of a total extent of 5.5050 hectares of land in various plots standing in the name of the first petitioner. The writ petition is also for quashing Annexure–2 declaration promulgated by the second respondent under Section 6 of the Act in respect of the very same property. The writ petition also seeks a writ of certiorari quashing and cancelling the procedure initiated under Sections 8 and 9 of the Act. It seeks quashment by a writ of certiorari of the award passed under Section 11 of the Act. It also seeks orders against the respondents directing them to pay compensation for the damages caused to the property of the petitioners. It also seeks a direction to the respondents for immediate cessation of further construction work on the property of the petitioners till the pendency of the writ petition.
3. According to the petitioners, they are Indian citizens and permanent residents of Gyalshing, West Sikkim. The first petitioner was in Sikkim Government Service and retired as an Additional Chief Conservator of Forest in 2002 and the second petitioner is his daughter. Their grievance is that very valuable immovable property forming part of their ancestral property, hereinafter referred to for the sake of convenience as “the acquired property”, has been forcefully acquired by the State respondents for the purpose of implementing the 97 MW Tashiding Hydroelectric Project by the 7th respondent. According to them, the first petitioner and his wife have been frequently out of Sikkim and spending a considerable amount of their time with their daughters based in Dubai and the first petitioner became fully aware of the proceedings related to the acquisition of the acquired property only at the beginning of 2011, when he returned back to Gyalshing. The second petitioner, who completed her studies with the University of Delhi, has since then been residing in Delhi and till 2010 working for a Delhi based company by name Luminous Engineering & Technology. The second petitioner came to have some information regarding the acquisition proceedings in May, 2011 when she returned to Gyalshing from Delhi. According to her, ever since she came here, she has been making various unsuccessful written representations and objections and even personal appearances before the authorities for preventing the ancestral land from being forcefully acquired.
4. The petitioners point out that the fourth respondent is the District Collector and the Land Acquisition Officer for the area, who had sought for acquisition of land at Omlok Block and other areas for and on behalf of the fifth respondent, Sikkim Power Development Corporation, a Corporation owned by the Government of Sikkim and controlled by the same Government for whom only the lands were proposed to be acquired initially. The petitioners submit that the seventh respondent, is the company which will be implementing the 97 MW Tashiding Hydroelectric Project. To show that the petitioners have an interest in the property under acquisition and those properties stands recorded in the name of first petitioner, the petitioners produced Annexure–3, copy of the Parcha Khatian of the said property. Petitioners further pointed out that along with the property covered by Annexure–3, the State respondents have forcefully acquired f
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