State of Sikkim and Another vs Smt. Shova Rai @ Wangdi

Kohli, CJ

This Regular Second Appeal is directed against the judgment and decree dated 30-06-2011 passed by the District Judge, Special Division-II, East Sikkim at Gangtok in Title Appeal Case No. 07 of 2010 whereby the judgment and decree of the trial Court dated 24-02-2005 passed in Title Suit No. 05 of 2004 titled Smt. Shova Rai @ Wangdi vs. State of Sikkim & Anr. has been reversed.

Facts relevant are for the purpose of the present appeal are being noticed hereinafter. The sole respondent Smt. Shova Rai @ Wangdi was allotted a house site at Daragaon, Jorethang, South Sikkim bearing Plot No. 35 vide allotment order No. 72(5)1917/UD&HD dated 25-09-1996 for which a valid lease deed dated 24th/25th September, 1996 was also executed. Respondents'' contention was that the allotted land was illegally encroached upon by third person and thus, she could not be put in possession. Plaintiff thereafter applied for another house site at Namchi on 01-05-1998. She also made a separate petition for transfer of the Plot No. 35 earlier allotted to her in the name of her daughter, Ms. Ranjita Rai. Her request for transfer came to be acceded to by the appellants herein and the Plot No. 35 was eventually transferred in favour of Ms. Ranjita Rai vide lease deed dated 22-06-1998.

In the meantime, application of respondent for allotment of land at Namchi was considered and another plot of land was allotted to her vide allotment order No. GOS/22(S)/UD&HD 98-99/2674 dated 19-08-1998 followed by execution of a formal lease deed in her favour duly registered on 21-08-1998. It seems that the respondent sought allotment of an additional site measuring 1408 sq. ft. which was also allotted to her vide registered lease deed dated 11-11-1998. Another additional site of land measuring 2380 sq. ft. was further allotted to her for the purpose of gardening vide allotment order No. 22(5)2038/UD&HD dated 12-07-1999 by the appellant No. 2 though, no formal lease deed could be executed.

One Taraman Chettri filed a Public Interest Litigation being Writ Petition No. 12 of 2000 before this Court somewhere in January, 2000 impleading the plaintiff, her second husband Mr. Sonam Wangdi, Ms. Ranjita Rai and other family members as respondents challenging the allotment made in favour of the respondent herein. This Writ Petition came to be disposed of vide judgment dated 27-09-2000 reported in AIR 2001 Sikkim 1 (Taraman Chettri and others vs. Union of India and others). While disposing of the writ petition, besides various other directions, the Government was asked to decide whether the lease deed dated 19-09-1998 in respect of site measuring 30'' x 35'' at Namchi Hat Bazar in favour of responder herein and the allotment made subsequently thereto measuring the total area about 4050 sq. ft. should be cancelled in view of the provisions of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 particularly Section 5 thereof after affording hearing to the concerned parties.

Pursuant to the aforesaid directions, appellant No. 2 issued a show cause notice dated 24-01-2001 for cancellation of the allotment of site at Namchi including additional sites allotted to the respondent. On consideration of the reply filed by the respondent, appellant No. 2 issued another notice dated 02-03-2001 for demolition of the structure raised by the respondent within fifteen days from the date of the receipt of this notice. This notice was followed by another order dated 07-07-2001 whereby the allotments made in favour of the respondent were cancelled and she was asked to demolish the structure within one month of the receipt of the notice failing which demolition shall be carried out by the Department at her cost. Appellant No. 2 issued final demolition notice dated 15-09-2001 followed by another notice dated 04-12-2001. On receipt of these notices, respondent approached the Hon''ble Supreme Court and the proceedings against the respondent were stayed vide order dated 25-01-2002. Thereafter respondent filed a Civil Suit in the Court of the Senior Civil Judge, South Sikkim being Civil Suit No. 06 of 2004 seeking the declaration that the orders passed by the appellant No. 2 for demolition/cancellation were illegal and unsustainable. She also prayed for permanent, mandatory and prohibitory injunctions for protection of the property. Appellants on being summoned caused their appearance and contested the suit justifying the action for cancellation of the property and demolition thereof by taking refuse under Sections 4, 5 and 6 of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 where under only one site could be allotted to a family. On the basis of the pleadings of the parties before the trial Court, the following issues were struck:

Whether Ms. Ranjita Rai was a member of family of the plaintiff as on 17-08-1998 within the meaning 5.2C of Sikkim Allotment of House Site and Construction of Building (Regulation and Control) Act, 1985?

Whether the plaintiff was an allottee of a house site at Jorethang, as on 17-08-1998 when the proposal for allotment of house site of Namchi, being the suit property was executed by her and allotment order was issued by the defendant on 19-08-1998?

Whether the plaintiff violated the provision of sub-section 4 of section 5 and section 6 of Sikkim Allotment of House Site and Construction of Building(Regulation and Control) Act, 1985?

Whether the allotment order of suit property dated 18-08-1998, 29-10-1998 and 12-07-1999 are valid?

Whether the cancellation order dated 07-07-2001, 15-09-2001 and 04-12-2001 in respect to suit property was illegal and liable to be cancelled?

Whether the plaintiff is entitled to any reliefs?

Parties led their respective evidence on the above issues. The trial Court vide its judgment dated 24-02-2005 dismissed the suit filed by the respondent. All the issues were decided against the respondent holding that she was not entitled to allotment of the plot and additional sites at Namchi, having been already allotted Plot No. 35 at Daragaon, Jorethang, South Sikkim. The trial Court further found that the respondent (Plaintiff) mis-represented before the authorities to secure the allotment of site at Namchi by concealing the factum of allotment of Plot No. 35 at Daragaon, Jorethang, South Sikkim.

Aggrieved of the aforesaid judgment of the trial Court, respondent (Plaintiff) preferred Civil 1st Appeal in the Court of the District Judge, South and West Sikkim at Namchi being Title Appeal No. 02 of 2005. This appeal came to be disposed of vide order dated 30-08-2005 by learned District Judge, South and West by setting aside the judgment and decree of the trial Court holding that the principle of natural justice have been violated inasmuch as plaintiff was not given reasonable opportunity of hearing. Judgment of the learned District Judge, South and West became subject matter of challenge before this Court in Regular Second Appeal No. 02 of 2006 and during the course of the hearing of this appeal, it was found that judgment of the Hon''ble Supreme Court and High Court of Sikkim in Public Interest Litigation were not placed as exhibits. At the request of the parties to the appeal, these documents were taken on record as additional evidence and in view of the findings of the District Judge in 1st appeal, this Court set aside the judgment of the 1st Appellate Court in Title Appeal No. 02 of 2005 and remanded the case to the District Judge, East and North at Gangtok for disposal. This case was thereafter transferred to the Court of the District Judge, Special Division-II, East Sikkim at Gangtok and has been decided vide the impugned judgment by the 1st Appellate Court.

Learned District Judge primarily examined two questions:

(i) whether the reasonable opportunity of hearing was granted to the plaintiff and other concerned parties before issuing the orders under challenge in the civil suit; and

(ii) whether the plaintiff violated the provisions of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985.

On the question No. 1, learned District Judge on examination of the record held that the plaintiff was granted opportunity of hearing and rejected her contention in this regard. On the question No. 2, learned District Judge has ruled that there has been no violation of provisions of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 nor the plaintiff secured the allotment at Namchi by fraud and mis-contention etc. To arrive at this conclusion, the First Appellate Court held that at the time of show cause dated 16-04-2001 was issued to the respondent(Plaintiff), site allotted to her at Jorethang had already been transferred to Ranjita Rai. It was also found that the transfer in favour of Ranjita Rai took place even prior to the proposal for allotment of site in Namchi in favour of the respondent had not considered. It has also been held that though, Plot No. 35 was earlier allotted to the plaintiff, however, possession of the same was never delivered to her on account of encroachment. Lower Appellate Court also found that Ms. Ranjita Rai in whose favour the plot was transferred by the appellants herein also could not secure possession and surrendered the plot in favour of the appellants. This fact has not been disputed before me during the course of the hearing. Thus, the fact that has emerged is that the respondent remained with the allotment of the only site at Namchi and she never held two separate allotments in her favour. Her action thus, does not fall within mischief of section 6 of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985. In respect to the allegation of misrepresentation and fraud, First Appellate Court further held that the plaintiff was divorced by her first husband, Dakman Rai in the year 1994 and was not a member of the family of her first husband Mr. Dakman Rai nor she was the member of the family of Mr. Sonam Wangdi with whom she was married in 1997 and thus did not constitute (a family) within the meaning of section 2(c) of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985. Her request for transfer of the Plot No. 35 to Ms. Ranjita Rai had been accepted by the authorities without any reservation and virtually the transfer was sanctioned and thereafter, allotment was made in favour of Ms. Ranjita Rai by executing a lease deed as well.

Finally, the Appellate Court allowed the appeal and set aside the judgment of the trial Court and decreed the suit.

During the hearing of this appeal, learned counsel appearing for the appellants could not point out any factual or legal infirmities in the judgment of the First Appellate Court. Surrender of Plot No. 35 by Ms. Ranjita Rai is an admitted fact. This leaves the respondent with allotment of only one housing site along with additional sites duly and validly allotted by the appellants. It is also admitted factual position that Ms. Ranjita Rai was employed as a Teacher and was living separately from the respondent. She was not a member of the respondent''s family as defined u/s 2(c) which inter alia means father, mother and their minor children and includes major children living jointly with the parents. Ms. Ranjita Rai was a major and was not living jointly with the respondent nor was dependent upon respondent. In any case she had surrendered the allotment of Plot No. 35 and never held the property with possession. Mere allotment without possession does not confer any right upon the allottee. It is settled law that the First Appellate Court is final Court of facts and its findings on facts should not be interfered with unless the same are perverse. No perversity in the findings recorded by the First Appellate Court has been pointed out or even pleaded.

There is no warrant for interference in the impugned judgment of the First Appellate Court. This Regular Second Appeal thus, fails and is hereby dismissed without any order as to costs.