THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
-------------------------------------------------------------------------------
SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
-----------------------------------------------------------------------------------------------------------------
W.P. (C) No. 22 of 2023
1. Shri Chandra Kumar Chettri,
Aged about 60 years,
S/o Lt. Shiba Kumar Chettri,
R/o Chujachen, Rongli, Pakyong District,
Sikkim-737106.
2. Smt. Phumtsung Lepcha,
Aged about 68 years,
D/o Late Dawa Namgay Lepcha,
R/o Chalisey, Rongli, Pakyong District,
Sikkim-737106.
Petitioners
…..
Versus
Smt. Kipu Lepcha,
W/o Late Chutup Bhutia,
R/o Chujachen Markang,
P.O. & P.S. Rongli,
Pakyong District,
Sikkim-737106.
…..Respondent
----------------------------------------------------------------------------------
Application under Article 227 of the Constitution of
India.
---------------------------------------------------------------------------------
Appearance:
Mr. Sajal Sharma, Ms. Shreya Sharma, Ms. Puja
Kumari Singh and Ms. Roshni Chettri Advocates for
the Petitioners.
Mr. Jorgay Namka, Senior Legal Aid Counsel with Ms.
Phu Doma Bhutia, Junior Legal Aid Counsel for the
Respondent.
-------------------------------------------------------------------------
Date of Hearing : 21.06.2024.
Date of Judgment : 21.06.2024
2
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
J U D G M E N T (O R A L)
Bhaskar Raj Pradhan, J.
1. The question raised before this Court in this
application under Article 227 of the Constitution of India
(the application) relates to a challenge to the impugned
Order dated 04.04.2023 passed by the learned Principal
District Judge in a reference under section 3H of the
National Highways Act, 1956 (the NH Act).
2. The land on which a dispute is sought to be raised by
the petitioner no.1 is a land which is recorded in the name
of the father of the respondent. It is the same land which
has been acquired after following the procedure prescribed
under the NH Act. After the proceedings under section 3A,
3B, 3C, 3D, 3E, 3F was over, the amount payable as
compensation under section 3G of the NH Act was also
determined. The amount so determined was deposited by
the Central Government with the Competent Authority as
required under section 3H(1) of the NH Act. The Competent
Authority thereafter issued a communication dated
18.08.2021 to the father of the respondent to collect the
compensation. Thereafter, the petitioner no.1 approached
the District Collector on 08.09.2021 requesting him to
release the entire compensation amount for acquisition of
3
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
land to him. Pursuant thereto, on 12.05.2022 the District
Collector referred the dispute to the Principal District
Judge under section 3H (4) of the NH Act stating that
during the disposal of the compensation to the father of the
respondent the petitioner no.1 had raised the dispute
which could not be settled.
3. While this proceeding under the NH Act was on before
the Competent Authority who was the District Collector,
Gangtok it transpires that on 09.03.2021 the petitioner
no.1 approached the Sub-Divisional Magistrate, Rongli
stating that the land was in his possession from
01.11.1995 as per mutual transaction between the
landowners and him having paid the value of the land and
entering into an agreement. Although it was stated therein
that documentary proof in support of the transaction was
enclosed, the records does not reflect any such
documentary proof. The application under Article 227 of
the Constitution of India also does not annex these
documents.
4. It also transpired that a parallel proceeding took place
before the Sub-Divisional Magistrate, Rongli after the
passing of the award dated 05.05.2021 by the Competent
Authority. However, the Sub-Divisional Magistrate, Rongli
4
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
concluded that the matter could not be settled amicably
and advised the parties to approach the competent court.
5. The questions therefore, which falls for determination
is whether the petitioners had the locus to raise the dispute
and whether the dispute could have been raised by the
petitioners after the determination of the compensation
payable to the father of the respondent.
6. The answers to both the questions above are in the
negative. The petitioner no.1 has failed to establish his
locus to raise the dispute with regard to the concerned
immovable property as he was a stranger to it. The
petitioner no.2 who seeks to claim interest in the land
through a sale deed did not make any such claim in the
proceedings before the Competent Authority under the NH
Act. The petitioners also could not have raised the dispute
after the proceedings under the NH Act for acquisition of
land was over and the Competent Authority had already
determined the amount of compensation payable to the
father of the respondent as the owner of the land.
7. The Competent Authority under the NH Act is the
jurisdiction of District Collector and not the Sub-Divisional
Magistrate.
5
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
8. Besides conflicting statements, without any
supporting documents, made by the petitioner no.1 before
the Sub-Divisional Magistrate in his communication dated
09.03.2021 and the communication dated 08.09.2021 to
the District Collector as referred to above he has produced
an unregistered General Power of Attorney dated
21.08.2021 by which the petitioner no.2 has authorised the
petitioner no.1 to collect the compensation money from the
acquisition of the schedule property by NHIDCL and for
matters connected therewith including representing the
petitioner no.2 in legal proceedings.
9. In the communication dated 09.03.2021 to the Sub-
Divisional Magistrate (which was filed by the respondent)
the petitioner no.1 stated to the Sub-Divisional Magistrate
that the property were under his possession w.e.f.
01.11.1995
“as result of mutual transaction made between
the land owners and the undersigned having paid the value
of the said land and also by way of entering into an
In contrast in
agreement between the concerned parties.”
the communication dated 08.09.2021 to the District
Collector the petitioner no.1 stated that he had been
granted rights to absolutely possess and enjoy the schedule
property by late Dawa Namgay Lepcha and subsequently
by the petitioner no.2 and that he is still in possession of
6
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
the same. Prima facie this bald assertion of the petitioner
no.1 is against Revenue Order No.1, which is an old law of
Sikkim protected under Article 371F of the Constitution of
India which does not permit the transfer of property from
the petitioner no.2, a Lepcha, to the petitioner no.1 who is
not a Bhutia or a Lepcha. Evidently and prima facie the
purported transfer is also against section 54 of the Transfer
of Property Act, 1882 which permits transfer of immoveable
property of the value of one hundred rupees and upwards
only by a registered instrument. The petitioner no.1 has
failed to produce any such registered instrument in the
present proceedings. The unregistered General Power of
Attorney dated 21.08.2021 was executed after the
completion of the entire proceeding under the NH Act for
compensation and therefore the petitioner no.1 had no
authority to represent the petitioner no.2 during the
proceedings under the NH Act before the Competent
Authority. Surprisingly the General Power of Attorney did
not state that the petitioner no.1 had purchased the
property from petitioner no.2 as stated in the letter dated
09.03.2021. Therefore, the petitioner no.1 had no locus to
take part in the proceedings under the NH Act.
10. The petitioner no.2 has been conspicuously
silent in the proceedings under the NH Act before the
7
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
Competent Authority although the pleadings in the writ
petition makes it evident that she was aware of the
proceeding and the declaration under section 3G of the NH
Act declaring the intention of acquiring the concerned land
Evidently, it was
in the name of the respondent’s father.
only after the proceedings before the Competent Authority
under the NH Act was over that the petitioner no.2
purportedly executed the General Power of Attorney in
favour of the petitioner no.1.
11. It appears that before the learned Principal
District Judge the petitioners sought to rely upon a sale
deed registered on 19.03.1983 (sale deed) between
Gyanchey Lepcha and Dawa Namgya Lepcha. A copy of the
sale deed reflects that the description of the property earlier
written in Nepali in the deed has been struck off and in
place plot no.132 and 134 in English has been scribed
without the signature of the executant as pointed out by
the learned Senior Counsel for the respondent. Although in
the writ petition it is asserted that late Dawa Namgay
Lepcha had purchased plot no. 132 and 134 measuring
0.82 acres situated at Markang Ward under Chuchachen
GPU Rongli from Shri Gyanchey Lepcha vide registered sale
deed dated 18.10.1982 it has been empathetically denied
by the respondent stating that the sale deed does not
8
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
pertain to plot no.132 and 134. There is no pleading in the
writ petition stating that this sale deed dated 18.10.1982
was placed before the Competent Authority during the
proceedings under the NH Act. There is also no pleading in
the writ petition that the petitioner no.2 had raised any
objection under the provisions of the NH Act to the
acquisition of the concerned property which was reflected
as that of the respondent in the declaration under section
3G of the NH Act.
12. The impugned order opined that on a joint
reading of sub sections (3) and (4) of section 3H of the NH
Act it was evident that reference to the Court is for the
purpose of division of the compensation amount between
those persons, who according to the Competent Authority,
are entitled to the said amount and the Court would not
have jurisdiction to go into the dispute of ownership/title of
the property and other disputes pertaining to the land so
acquired. The reference was returned with the request to
comply with section 3H (3) of the NH Act and thereafter if
there is any dispute regarding apportionment of the
amount, the matter can be again referred to the Court.
13. The learned counsel for the petitioners draws
issues with these observations of the learned Principal
District Judge. It is his contention that if there is a civil
9
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
dispute it ought to be decided by the learned District Judge
and the dispute having been raised the reference ought not
to have been declined. He relied upon the judgment of the
learned Single Bench of the High Court of Kerala at
Ernakulam in
Kaprat Family Trust, represented by its Trustee,
Vijayabhanu Kaprat & Anr. vs. Union of India represented by its
.1
Secretary, Ministry of Road Transport and Highways and Ors
and the judgment of the Division Bench of the Bombay
High Court in
Suresh Bapu Dupte & Anr. vs. State of
.2.
Maharashtra & Anr
14. The two judgments referred to by the learned
counsel for the petitioners are distinguishable. In
Kaprat
(supra) it is clear that the petitioners therein
Family Trust
had set up a claim of ownership during the proceedings
under the NH Act. The Kerala High Court therefore, held
that under the NH Act it is only when a contest is raised
“
with respect to the entitlement of the owner of a land in
being disbursed the amount of compensation under the
award relating to it, can the CALA refer the matter to the
competent District Court under the provisions of section 3H
(4) of the NH Act after being convinced that a dispute arises .
”
In (supra) the High Court of Bombay
Suresh Bapu Dupte
opined that if the dispute with regard to the ownership/title
1
2022 SCC OnLine Ker 8650
2
2022 SCC OnLine Bom 6941
10
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
exists, then under section 3H (4) of the NH Act, the
Competent Authority has to refer it to the Civil Court. On
the contrary, in the present case, as seen earlier the
petitioners had failed to raise a dispute before the
Competent Authority during the proceedings under the NH
Act.
15. In
Vinod Kumar & Ors. vs. District Magistrate Mau &
.3 the Supreme Court examined a case in which the
Ors
High Court had taken a view that the District Magistrate is
competent to look into the legality and validity of the order
passed by the Special Land Acquisition Officer under
section 3G (5) of the NH Act. The Competent Authority vide
its award passed under section 3G of the NH Act had
determined the compensation to be paid to the landowners
who were parties before the Supreme Court for the
acquired land. The dispute had been raised regarding
apportionment of the compensation between themselves
and the appellant therein. The Supreme Court opined that
in accordance with the legislative scheme i.e. section 3H (3)
of the NH Act the Competent Authority is required to
determine the shares of the landowners in the
compensation. On examination of section 3H of the NH Act
the Supreme Court held:
3
(2023) SCC OnLine SC 787
11
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
23. The scheme of the Act, 1956 and the statutory
“
provisions referred to above makes it very clear that once
any land is acquired under the Act, 1956, the competent
authority is obliged to pay an amount by way of
compensation. There is a procedure which has been
prescribed under Section 3G of the Act, 1956. Sub-clause
(5) of Section 3G makes it abundantly clear that if the
amount determined by the competent authority under sub-
section (1) or sub-section (2) of Section 3G is not acceptable
to either of the parties, the amount will have to be
determined by the arbitrator who may be appointed by the
Central Government on the strength of an application by
either of the parties. Section 3H provides that the amount
determined towards compensation under Section 3G will
have to be deposited by the Central Government in
accordance with the rules. It is only after such amount is
deposited by the competent authority that the possession
of the land can be taken. Sub-clause (4) of Section 3H
talks about apportionment of the amount. The language of
sub-clause (4) of Section 3H is plain and simple. It
provides that if any disputes arises as to the
apportionment of the amount or any part thereof, the
competent authority is obliged to refer the dispute to the
decision of the Principal Civil Court of original jurisdiction
within the limits of whose jurisdiction the land is situated.
24. In the case on hand, the High Court seems to
have completely misread the provisions of the Act, 1956. It
fell into error as it failed to apply the well settled principle
of law that for construing a legal provision, the first and
foremost rule of construction is the literal construction. All
that the Court has to see at the very outset is what does
the provision state. If the provision is unambiguous and
from the provision the legislative intent is clear, the Court
need not call into aid the other rules of construction of
statute. The other rules of construction are called into aid
only when the legislative intent is not clear.
25. It may be mentioned in the aforesaid context
that the first and foremost principle of interpretation of a
statute in every system of interpretation is the literal rule
of interpretation. The other rules of interpretation, for
example, the mischief rule/purposive construction, etc. can
only be resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read
literally would nullify the very object of the statute. Where
the words of a statute are absolutely clear and
unambiguous, recourse cannot be had to the principles of
interpretation other than the literal rule. The language
employed in a statute is the determinative factor of the
legislative intent. The legislature is presumed to have
made no mistakes. The presumption is that it intended to
say what it has said. Assuming there is a defect or an
omission in the words used by the legislature, the Court
cannot correct or make up the deficiency.
26. There is a fine distinction between determining
the amount to be paid towards compensation and the
12
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
apportionment of the amount. The legislature has thought
fit to confer powers upon the Principal Civil Court of
original jurisdiction to determine the dispute arising as to
the apportionment of the amount. There is a reason, why
the legislature has thought fit to confer such power to the
Principal Civil Court of original jurisdiction within the limits
of whose jurisdiction is land is situated. We shall try to
explain hereinafter.
27. The question of apportionment of compensation
is not free from difficulties. In apportioning the
compensation, the Court has to give to each claimant the
value of the interest which he has lost by compulsory
acquisition. So stated, the proposition may appear simple,
but in its practical application numerous complicated
problems arise in apportioning the compensation awarded.
The difficulty experienced is due to the nature of a variety
of interests, rights and claims to land which have to be
valued in terms of money. The compensation awarded for
compulsory acquisition is the value of all the interests
which are extinguished and that compensation has to be
distributed equitably amongst persons having interest
therein and the Court must proceed to apportion the
compensation so that the aggregate value of all interests is
equal to the amount of compensation awarded. But in the
valuation of competing interests, which from its very
nature is dependent upon indefinite factors and uncertain
data, considerable difficulty is encountered. Indisputably,
in apportioning compensation the Court cannot proceed
upon hypothetical considerations but must proceed as far
as possible to make an accurate determination of the
value of the respective interests which are lost. The Court
must, in each case, having regard to the circumstances
and the possibility of a precise determination of the value
having regard to the materials available, adopt that
method of valuation which equitably distributes the
compensation between the persons entitled thereto. [See
: Dossibai Nanabhoy Jeejeebhoy v. P.M. Bharucha, (1956)
60 Bom LR 1208]
28. Thus, the only general principle one could state
is that apportionment under sub-clause (4) of Section 3H of
the Act, 1956 is not a revaluation but a distribution of the
value already fixed among the several persons interested
in the land acquired in accordance with the nature and
quantum of the respective interests. In ascertainment of
those interests, the determination of their relative
importance and the manner in which they can be said to
have contributed to the total value fixed are questions to
be decided in the light of the circumstances of each case
and the relevant provisions of law governing the rights of
the parties. The actual rule for apportionment has to be
formulated in each case so as to ensure a just and
equitable distribution of the total value or compensation
among the persons interested in the land.
13
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
29. In the circumstances referred to above, the
legislature thought fit to assign such function to none other
than the Principal Civil Court of original jurisdiction.
…..”
33. We are of the view that when it comes to
“
resolving the dispute relating to apportionment of the
amount determined towards compensation, it is only the
Principal Civil Court of original jurisdiction which can do
so. Principal Civil Court means the Court of the District
Judge.
34. Our final conclusion is as under : - If any
dispute arises as to the apportionment of the amount or
any part thereof or to any person to whom the same or
any part thereof is payable, then, the competent authority
shall refer the dispute to the decision of the Principal Civil
Court of original jurisdiction within the limits of whose
jurisdiction the land is situated. The competent authority
possesses certain powers of the Civil Court, but in the
event of a dispute of the above nature, the summary
power, vesting in the competent authority of rendering an
opinion in terms of sub-section (3) of Section 3H, will not
serve the purpose. The dispute being of the nature triable
by the Civil Court that the law steps in to provide for that
to be referred to the decision of the Principal Civil Court of
original jurisdiction. The dispute regarding apportionment
of the amount or any part thereof or to any person to
whom the same or any part thereof is payable, would then
have to be decided by that Court.
”
[Emphasis supplied]
16. In the present case the following dates are
relevant. On 03.11.2020 notification under section 3A of
the NH Act was issued declaring the Central Government’s
intention to acquire various lands including the concerned
land. On 26.02.2021 the notification under section 3D of
the NH Act was issued declaring that the Central
Government would acquire the land of the respondent’s
father. On 08.03.2021 public notice as contemplated
under section 3G (4) of the NH Act was issued seeking
claims from “persons interested in the land to be acquired.”
14
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
On 05.05.2021 the award was passed determining the
amount of compensation payable to the land declared to be
acquired. On 18.08.2021 the Competent Authority issued a
notice to the father of the respondent asking him to collect
the compensation amount as determined. The petitioners
failed to approach the Competent Authority during the
entire period till the issuance of notice dated 18.08.2021 by
the Competent Authority to the father of the respondent.
More specifically the petitioners did not object to the
acquisition under section 3C of the NH Act as “person
interested in the land” or; claim as “person interested in the
ice was issued on
land to be acquired” when public not
08.03.2021.
17. On close scrutiny of the provisions of the NH Act
it seems quite clear that the NH Act has been enacted to
provide declaration of certain Highways as National
Highway and for matters connected therewith. The NH Act
provides for power to acquire land in public interest for
public purpose and therefore, evidently the NH Act must
operate as contemplated therein. Time therefore is of
essence in these proceedings. When a law requires that a
certain thing must be done in a certain way it must be
done in that way and in no other. After the determination of
the compensation amount payable and the issuance of the
15
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
notice dated 18.08.2021 to the father of the respondent to
collect the compensation the petitioners could not have
turned the clock around and raise a dispute regarding their
interest in land under the provisions of section 3H sub
“ ”
sections (3) and (4) of the NH Act which relates to claims by
“person interested in the amount deposited” and
The language of sections
“apportionment of the amount”.
3C and 3G which uses the phrase “person interested in the
land” is not the same as the language of section 3H (3)
which uses the phrase “person claims to be interested in
the amount deposited” and “apportionment of the amount”
as used in 3H (4) of the NH Act. The argument sought to
be raised by the learned Counsel for the petitioners that the
dispute regarding interest in land could be raised at the
“ ”
stage of section 3H (3) and (4) even if the petitioners had
failed to raise any objection during the proceedings under
the NH Act by reading the phrase in section 3H (3) i.e.
to
“person claims to be interested in the amount deposited”
mean the same as “person interested in the land” is clearly
against the principles of interpretation of statute. As the
Supreme Court has held in where the
Vinod Kumar (supra)
words of a statute are absolutely clear and unambiguous,
recourse cannot be had to the principles of interpretation
other than the literal rule. The language employed in a
16
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
statute is the determinative factor of the legislative intent.
The legislature is presumed to have made no mistakes. The
presumption is that it intended to say what it has said.
18. The jurisdiction of the Principal Civil Court of
original jurisdiction under section 3(H) (4) of the NH Act is
a limited jurisdiction to decide on the apportionment of the
amount or any part thereof or to any person to whom the
same or any part thereof is payable. This provision is made
for a different purpose then that of a civil court deciding a
civil dispute in a civil suit.
19. This Court is therefore, of the view that the
impugned Order to the extent that it refused to determine
the reference made by the District Collector was correct. It
is also evident that all the facts had not been placed before
the learned Principal District Judge at the time of the
reference. The second portion of the impugned Order by
which the learned Principal District Judge returned the
reference and requested the District Collector to comply
with the provisions of section 3H(3) of the NH Act and if
there be any dispute regarding apportionment of the
amount, the matter may be referred to him again may not
be correct since the Competent Authority had already
determined the amount of compensation payable to the
17
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
ther of the
“person interested in the land” i.e. the fa
respondent without any objection from the petitioners.
20. The impugned Order is therefore, modified in
exercise of the power under Article 227 of the Constitution
of India. This Court is also of the view that the reference
made by the District Collector was misconceived, wrong
and incorrect as their existed no dispute regarding
apportionment of the amount of compensation which
required to have been examined by the Civil Court in the
proceeding under section 3H (4) of the NH Act. The
reference made by the District Collector is set aside.
Resultantly, the jurisdictional District Collector is directed
to proceed as per law for release of the compensation as
determined. However, the compensation amount
determined or the concerned land shall not be released to
the respondent for a period of one and half months from
the date of this judgment. Keeping in mind the fact that the
petitioner no.2 seeks to rely upon a registered sale deed to
make a claim with regard to the concerned property, liberty
is granted to the petitioner no.2 to approach the civil court
for appropriate reliefs as per law subject to the laws of
limitation and other equities, if so advised within the said
period of one and half months. In such an event, needless
to say, the respondent shall have the right to raise all such
18
W.P. (C) No. 22 of 2023
Chandra Kumar Chettri & Anr. vs. Kipu Lepcha
objections that she can raise including contesting the
validity of purported sale deed.
21. The application under Article 227 of the
Constitution of India is dismissed.
22. A copy of this judgment shall be forwarded to the
learned Principal District Judge, East Sikkim, at Gangtok.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
to/