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2014 Supreme(Sikk) 4
THE HIGH COURT OF SIKKIM AT GANGTOK
N. K. JAIN, J.
State of Sikkim - Appellants
versus
Smt. Sem Sodeun Wangdi - Respondents
S.B. C.M.A. No. 28 of 2014 in F.A.O. No. 01/2014
Decided On: 27.02.2014
For Appellants :M/s. J. B. Pradhan, Addl. Advocate General with S.K. Chettri and Pollin Rai, Asstt. Govt. Advocates, D.K. Siwakoti, Advocate, Rita Sharma, Legal Counsel (Forest Dept.), Madan Kr. Sundas and Tashi D. Bhutia, Advocates.
For Respondent No. 1:M/s. A. Moulik, Sr. Advocate with K. D. Bhutia, Advocate.
For Respondent No. 2:M/s Chenga Doma Bhutia, Pema Doma and Jigdal G. Chankapa, Advocates.
The main legal point established in the judgment is that the requirements for granting an interim injunction, including the existence of a prima facie case, balance of convenience, and irreparable injury, must be carefully considered. The court emphasized that irreparable injury does not mean that there must be no physical possibility of repairing the injury, but rather that the injury must be material and cannot be adequately compensated by way of damages.
Headnote:
Forest Conservation Act - Injunction - Section 2 of the Act of 1980 - Summary of the acts and sections referenced and discussed by the court: The court discussed the Forest Conservation Act, 1980, particularly Section 2, which required approval from the Central Government for land use in forest areas. The court considered the approval granted for the construction project and the status of the land in dispute as per the Act.
Fact of the Case:
The plaintiff filed a suit for declaration, injunction, and consequential reliefs, seeking to restrain the defendants from making further changes or constructions in the disputed property. The defendants appealed against the trial court's decision to grant an injunction in favor of the plaintiff. The defendants argued that they had obtained necessary approvals under the Forest Conservation Act, 1980, for a construction project in the disputed forest land.
Finding of the Court:
The court found that the plaintiff's claim of a prima facie case was not adequately supported by the evidence, and the balance of convenience favored the defendants. The court also noted that the plaintiff could be compensated with money and would not suffer irreparable loss if the construction continued. Therefore, the court stayed the operation of the trial court's injunction order during the appeal.
Issues: The issues included the validity of the injunction granted by the trial court, the status of the disputed land under the Forest Conservation Act, and the delay in filing the suit by the plaintiff.
Ratio Decidendi: The court considered the requirements for granting an interim injunction under Order 39 Rules 1 and 2 CPC, including the need for a prima facie case, balance of convenience, and irreparable injury. The court found that the plaintiff's case did not meet these requirements, leading to the decision to stay the injunction order.
Final Decision: The court allowed the stay application and directed that the operation of the trial court's injunction order be stayed during the appeal.
Jain, CJ (Oral).
Heard learned counsel for the parties on the stay application.
2. The defendants no. 1, 3 and 4/appellants have preferred an appeal against order dated 17.02.2014, passed by the learned District Judge, Special Division-II at Gangtok, East Sikkim, on an application under Order 39 Rule 1 and 2, read with Section 151 CPC, filed by plaintiff/respondent No. 1, whereby application for injunction filed by plaintiff has been allowed and defendants No. 1 and 2 have been restrained from making any further changes/ constructions in Schedule “B” property until further orders. The appellants have also filed the present stay application along with appeal with a prayer to stay the operation of the impugned order passed by the trial Court during the pendency of the appeal.
3. Briefly stated, the facts of the case are that the plaintiff/respondent No. 1 filed a suit for declaration, injunction and consequential reliefs in the trial Court along with an application for temporary injunction in respect of property in dispute. The plaintiff in her application prayed that an order of injunction against defendants No. 1 and 2 be passed, restraining them from proceeding with any construction activities over the Schedule “B” land, as shown in the rough sketch, annexed with the plaint, till final disposal of the suit. The defendant No. 1, 3 and 4 have filed their written reply/objection to the application separately and submitted that the injunction application be dismissed. The plaintiff, thereafter, filed rejoinder to the objection/reply filed by defendant No. 4 to the application. It is also relevant to mention that defendant No. 1 also filed its written statement to the plaint.
4. Learned trial Court, after hearing the learned counsel for the parties, allowed the application for temporary injunction filed by the plaintiff and directed that all the parties should maintain the status quo over Schedule “B” property and defendants No. 1 and 2 were restrained from making any further changes/ constructions in Schedule “B” property. Being aggrieved with the same, the defendants No. 1, 3 and 4 have preferred an appeal before this Court along with present stay petition.
5. Submission of Mr. J.B. Pradhan, learned Addl. Advocate General, appearing on behalf of appellants, is that the appellants decided to construct a “Skywalk” from Deorali Junction to Namnang for use of general public and work order of the same was placed on 09.03.2011. Some of the lands for raising the construction of the “Skywalk Project” were falling in Namnang Reserve Forest. Therefore, a proposal was moved by the appellants before the Central Government for grant of approval under Section 2 of the Forest Conservation Act, 1980 (for short, “the Act of 1980”). The approval-in-principal was granted on 23.09.2011, subject to fulfillment of certain conditions, which were fulfilled by appellants, and thereafter, a final approval was granted by Central Government under Section 2 of the Act of 1980 on 09.01.2012. Thereafter, handing and taking over of land in dispute took place on 21.01.2012. He submitted that land in dispute, as per Revenue Record was shown as “Namnang Reserve Forest” and it was no where recorded as “Private Estate” as claimed by the plaintiff. He referred the Land Record for the year 1950-52 and submitted that from the basic revenue record of the year 1950-52, the land in dispute was entered as “Namnang Reserve Forest” and not “Private Estate”. He submitted that due approval, as required under Section 2 of the Act of 1980, was required to be obtained from the Ministry of Environment and Forest, Government of India, which was obtained and, only thereafter, the Project work was started in land in dispute in January, 2012.
6. Mr. Pradhan submitted that the plaintiff is claiming her right on the basis of so called unregistered Gift Deed dated 23.07.2007, the said Gift Deed was submitted to the concerned Department for its registration, which was refused a
