WP(C)/51/2011 of Nuk Tshering Bhutia Vs State Bank Of Sikkim and Ors. on 20 April 2012

1. The petitioner has challenged the orders passed bythe Prescribed Authority under the Sikkim Public Premises(Eviction of Unauthorised Occupants and Land Recovery)Act, 1980 (in short ``the Act'? and that of the AppellateAuthority whereby the petitioner has been ordered to beevicted from the alleged public premises in occupation ofthe petitioner where he has raised a 5 1/2 storied buildingallegedly in the year 1993.

2. Briefly stating the facts leading to the filing of thepresent writ petition are that the peti'tioner claims to bethe allottee of the land measuring 14 Mtr. X 28 Mtr.Situated at Melli-Jorethang Road, South Sikkim havingbeen allotted the same vide Allotment Order dated01.10.1993 (Annexure P-3) by the Administrative Officer,Sikkim P.W.D. (R & 8), Gangtok. It is alleged that alongwith the allotment letter a site plan of the land was also I SGPG-1/Comp.4/High Court / 1000 Nos./13.08.2011

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prepared by the competent authority. A Xero`x copy of thesame is also annexed as Annexure P-4.

3. It is the case of the petitioner that he hadconstructed a 5 1/2 storied building on the allotted site inthe year 1993 itself. It seems that some complaint hasbeen made against the petitioner in regard to the aforesaidallotment and on the basis of the said complaint, theDistrict Magistrate, South Sikkim had initiated someenquiry and the petitioner was asked to produce therelevant documents in support of his allotment. `

4. An application dated 16.02.2011 came to be madeby the petitioner along with the copies of the relevantdocuments i.e. allotment order, etc.

5. The District Magistrate/ Prescribed Authority underthe Act issued a notice dated 22.02.2011 under sub-section 1 of Section 4 of the Act, whereby the petitionerwas asked to show cause why an order of eviction be notpassed against him.

6. The grounds for eviction indicated in the notice werethat the land claimed to be allotted is not leased out to thepetitioner and is still 'in the name of the Government, Thepetitioner submitted his reply to the aforesaid show cause Case No notice (Annexure P-7-A) and also claimed furtheropportunity to supplement the reply.

7. The` Prescribed Authority, however, declined theprayer for further opportunity and passed an order dated29.04.2011 with a direction to issue a notice under sub-section 1 of Section 5 of the Act.

8. Formal notice dated 16.04.2011 is said to have beenissued to the petitioner even before passing of theaforesaid order. Against the said order dated 29.04.2011,the petitioner preferred an appeal before the AppellateAuthority constituted under the Act being Appeal No. 01 of2007. One of the pleas raised before the AppellateAuthority was that the order under sub-section i ofSection 5 had been drawn on 16.04.2011 even beforepassing of the order dated 29.04.2011. Considering thisaspect of the matter, the Appellate Authority vide his orderdated 19.08.2011 remanded the case to the PrescribedAuthority with certain directions.

9. The Prescribed Authority on remand passed a freshorder dated 11.10.2011 and ordered for eviction of thepetitioner. The petitioner was constrained to file anappeal against the order before the Appellate Authority.The Appellate Authority vide the impugned judgment dated Case No

25.11.2011 dismissed the appeal with the observations tothe effect that the process of giving relief involvesexamination of multiple laws which the Appellate Authoritycannot do in view of the limitation of the statute. It hasbeen further observed that since the Appellate Authoritycannot enter into a comprehensive examination of all themultiple issues, interference with the order of the DistrictCollector will remain effected in view of this position andas such the order of the District Collector, South cannot beinterfered. The appellant was, however, granted liberty toseek remedy under the common law forum. Thisobservation was made on the basis of judginent of theApex Court reported in AIR 1968 SC 101, Sir`ce theappeal stands dismissed, the petitioner has challenged theorder passed by the Prescribed Authority and that of theAppellate Authority in this petition before this Court.

10. The petitioner has taken me to the evidencerecorded during the. course of the proceedings before thePrescribed Authority. One of the witnesses, namely, Ms.H. Basnett, the then Administrative Officer, Sikkim PWD (R& a), who is alleged to have issued the AIlotment Order infavour of the petitioner, was examined. This witnessadmitted the signature on the original document which wasproduced before the Prescribed Authority. However, she SGPG-1/Comp.4/High Court / 1000[Nos./13.08.201 1]

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Case No stated that if this order was issued, it should have beenreflected in the office record as well and in absence of theoriginal file, she is unable to say anything about thevalidity or otherwise of the allotment.

11. It seems that the Appellate Authority was alsopersuaded by this statement to make observation that thepetitioner can find remedy in common law.

12. I have heard the learned counsel for the parties.The entire case of the petitioner is based upon theallotment letter, referred to above. The auth-enticity,validity and existence of the allotment lette`r has to beestablished by the petitioner in order to claim the rightupon the land which is admittedly the Governmentproperty. The Appellate Authority has rightly observedthat due to limited scope of the appellate jurisdiction underthe provisions of the Act, the Appellate Authority isdisabled to hold an effective and factual enquiry regardingthe existence and validity of the allotment order.

13. I have no reason to disagree with these observationsof the Appellate Authority. However, it is seen that on theone hand the Appellate Authority has granted liberty to thepetitioner to approach the Civil Court and at the same timethe appeal has been rejected. The final order of dismissal i- of the appeal has deprived the petitioner of availing theopportunity before the Civil Court.

14. The.jurisdiction of the judicial review of this Court inthe matter of examination of the order of theadministrative forums is of course limited. However, it isfound that the petitioner has been deprived of his right toestablish his case due to limited jurisdiction of thePrescribed Authority and the Appellate Authority under theAct.

15. At this stage, the learned counsel for the petitionersubmits that the petitioner is ready and willing.to approachthe Civil Court. In view of the observations made by theAppellate` Authority, the Petitioner has right to seekremedy ln Civil Law. Petitioner has already raised 5 1/2storied building and is in possession thereof. It has alsocome on record that the petitioner's family is residing inthe building and it was locked while his family memberswere inside the building. It is in the fitness ofcircumstances and in the interest of justice as also toprovide a fair opportunity to the petitioner to prove hiscase in Civil Court, the petitioner's possession is protectedtill the Civil Court decides the matter.

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