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2018 DIGILAW 84 (SIK)

Hantey Gyatso Kazi v. State of Sikkim

2018-11-15

VIJAI KUMAR BIST

body2018
JUDGMENT : Vijai Kumar Bist, J. 1. The Petitioner has approached this Court seeking the following reliefs; “a. Issue a Writ of or in the nature of Mandamus/Order or direction or any other appropriate writ/order or direction to compensate the petitioner for the damage caused to the land approach road, other constructions and building of the petitioner. b. Issue a writ of or in the nature of Mandamus or order or direction or any other appropriate writ or order or direction to the respondents to acquire the land of the petitioner in the appropriate market rate. c. Issue a writ or order or direction to the respondents restraining them from carrying out any construction work of the Greenfield Airport without acquiring the land of the petitioner and/or paying the compensation of the land, approach road, other constructions and buildings of the petitioner. d. Cost of the proceedings. e. Pass such further writ or order or writs/orders/directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 2. The Petitioner is the owner of plot No. 202/1082 measuring 0.1810 hectares at Karthok Block, Pakyong, East Sikkim. In the year 2013, he started constructing his house in the said plot. The Petitioner had constructed protective wall having its length of 150 feet and 25 feet height approximately to make the base/foundation of the building strong in order to withstand the natural calamities like earthquake or landslide. When the exterior/outer portion of ground floor got completed, the Petitioner found that all the walls of the ground floor including the protective wall had developed many cracks ranging from minor to major. 3. The case of the Petitioner is that the Petitioner filed a complaint before the Respondent No.5 (District Collector, East Sikkim, Gangtok) stating the facts and the damage caused to his property and requested him to hold an inspection. On 12.02.2014, joint inspection was conducted. Thereafter, on 21.02.2015, the Junior Engineer, Buildings and Housing Department submitted the report of the joint inspection to the Respondent No.6 (the Sub- Divisional Magistrate, Pakyong). The Respondent No.6 wrote to the District Collector informing about the damage caused by the construction activities of Greenfield Airport, Pakyong and asking him to pass orders for further action. Thereafter, on 21.02.2015, the Junior Engineer, Buildings and Housing Department submitted the report of the joint inspection to the Respondent No.6 (the Sub- Divisional Magistrate, Pakyong). The Respondent No.6 wrote to the District Collector informing about the damage caused by the construction activities of Greenfield Airport, Pakyong and asking him to pass orders for further action. Thereafter, when nothing was done, the Petitioner filed a petition before the High Court Lok Adalat and as per the petitioner the parties entered into some agreement. But the authority did not honour the agreement. Thereafter, Civil Execution Case No. 07 of 2016 (Hantey Gyatso Kazi vs. State of Sikkim & Others) was filed. On 19.09.2016, the learned District Judge, East Sikkim at Gangtok, in Civil Execution Case No. 07 of 2016 passed the following order: “19.09.2016 ……....................................................... Therefore, in view of the above facts and circumstances and in view of the order of the Hon’ble High Court Lok Adalat, I am of the considered view that State Government is liable to pay the compensation to the Decree Holder as per the assessment reports submitted by the J.D No. 2. Thus, the Judgment Debtor No.1 is directed to take necessary steps to pay the compensation for damages amounting to Rs.65,41,062/- (Rupees Sixty-Five Lakh Forty-One Thousand Sixty-Two only) to the Decree Holder within 30 days from the receipt of this order. ………………………………………………………………..” 4. The execution proceedings were challenged in the High Court. The High Court decided the case by observing that the Order passed by the Executing Court is liable to be set aside. Thereafter, present petition was filed. 5. Learned Counsel for the Petitioner submitted that in fact, the damaged building of the Petitioner was assessed by the Buildings and Housing Department, Government of Sikkim, to the tune of Rs.65,41,062/- (Rupees Sixty-Five Lakhs, Forty-One Thousand & Sixty-Two) only, and the Petitioner is entitled to the said compensation from the State authority. He further submitted that the matter was heard on 15.12.2017 and the High Court directed the State Government to take necessary steps to make the payment of compensation. The Petitioner submits that the said Order was not complied with by the authorities, therefore, a Contempt Petition, being Cont. Cas (C) No. 02 of 2018, was filed by the Petitioner before this Court. 6. The Petitioner submits that the said Order was not complied with by the authorities, therefore, a Contempt Petition, being Cont. Cas (C) No. 02 of 2018, was filed by the Petitioner before this Court. 6. Petitioner further submits that in fact the Respondents have paid compensation to the other affected persons but in the matter of the Petitioner, nothing has been done. He prays that directions be issued for making compensation to the Petitioner as assessed by the Buildings & Housing Department, Government of Sikkim. 7. On the other hand, Mr. J.B. Pradhan, learned Additional Advocate General, submits that the Petition filed by the Petitioner is not maintainable in view of the alternative remedy as provided in the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018. He submits that the Petitioner is an aggrieved party and can approach the Claims Commissioner as provided in the Act and can file his claim before the Claims Commissioner. It is also submitted by learned Additional Advocate General that the authority empowered to assess the damages is Central Buildings Research Institute (CBRI). He further submits that in those cases where compensation assessment was done and compensation was awarded, in those cases assessment was done by the CBRI. He submits that the Buildings & Housing Department of the State is not competent to assess the damage. Learned Additional Advocate General submits that if the Petitioner approaches the concerned authority, his claim of compensation can be decided by that authority. 8. Mr. D.K. Siwakoti, learned Counsel for the Respondent No.4 (Airport Authority of India), referred to the Memorandum of Understanding dated 30.06.2015, entered between the State of Sikkim and the Airport Authority of India and submitted that payment, if any, to be made to the petitioner, that is to be made by the State-Government and not by the Airport Authority of India. He relied on the following Paragraph of the Memorandum of Understanding: “The State Government will ensure that after the principles of compensation have been decided by them (compensation amount for 137 houses has been indicated as Rs.44.32 crore by GoS and of which 20% amount has already been paid and disbursed, and the compensation amount for additional 10 houses has been determined on the same principles to be Rs.6.55 crore and the same shall stand frozen) and money paid by AAI, there is no further disruption of project works/activities. It will be ensured by State Govt. that houses are vacated while the compensation is released to the household simultaneously and the possession of the superstructures shall be handed over to AAI. Any further payments over and above, for this activity, shall be borne by State Government. The AAI will demolish these houses within 6 months of evacuation after retaining a few houses for two years for monitoring purposes to study if there is any further impact of the project.” 9. In reply to this submission, learned Additional Advocate General submits that this Paragraph is in respect of those claimants whose claim was considered and to whom payment was made by the State-Government at that relevant point of time and this relates to only 137 houses and an additional 10 houses to whom the compensation was paid by the Airport Authority of India. 10. Mr. D.K. Siwakoti, learned counsel for the respondent No. 4 (Airport Authority of India), also submitted that since alternative remedy is available to the petitioner, the petitioner should avail that remedy and the petition deserves to be dismissed on this ground. 11. I have considered the submissions made by learned Counsel for the parties. 12. I find that the Government of Sikkim has already enacted an Act in 2018 for settlement of claims of claimants for loss and damages. The Act is known as “The Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018” (for short “the Act”). Section 3 of the Act, provides that the State Government shall appoint a person to be a Claims Commissioner to adjudicate upon the claims. Section 7 of the Act provides that any person who has suffered any loss or damage to his property, i.e., land or building or crop, on account of the construction or any related activities of the Pakyong Airport, may file a claim before the Claims Commissioner. Section 15 of the Act, further provides that the Claims Commissioner shall decide the claim and make an award, as far as possible, within a period of 6(six) months. 13. Section 15 of the Act, further provides that the Claims Commissioner shall decide the claim and make an award, as far as possible, within a period of 6(six) months. 13. Though, after carefully considering the submissions and facts of the case, I am of the view that the Petitioner is entitled to for the compensation for the loss and damage suffered by him, but same cannot be awarded to him by issuing direction in this petition as there is an alternative remedy available to him. In my view, the petitioner should be relegated to avail the remedy, which has been provided under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018. 14. Accordingly, Writ Petition is disposed of in the following manner: 1. The Petitioner is permitted to file a claim petition as provided under Section 7 of the Act before the Claims Commissioner within a period of three weeks from today. 2. It would be open for the petitioner to file the documents regarding assessment before the Claims Commissioner, including the report submitted by the Buildings & Housing Department, Government of Sikkim. 3. It would be open for the Claims Commissioner to take into consideration the report submitted by the Buildings & Housing Department, Government of Sikkim. 4. The Claims Commissioner is directed to decide the claim of the Petitioner in accordance with law within a period of 3(three months) from the date claim petition is filed before him. 5. For other reliefs, it would be open to the petitioner to avail appropriate remedy available to him. 15. In view of the above, the Writ Petition stands disposed of.