lN THE HIGH COURT OF SIKKiM OF}DER SHEET .........v'rit"P.etition ...N8. 5 o!2.9,Q'?. .„ ..Madhusndan..a.uchal..,gh.others„ ......... Petition-er / A-bp~ellant i Versus .The..S.tat.e...Qf..S.ihkim..&..ape.thor ..... F`espondent i ; { Order with Signature Office Note ays to a'ction (if any): taken on OrdFr -t-a--=rt-=-I-----i-.i----- 1113.0 u I±esent: Mr. AK. Upadhyaya, Senior Advocate with Mr. Sudesh Joshi, Advocate for the Petitioners. Mr. J.B. Pradhan and Mr. Karma Thinlay, Government Advocates for State-Respondents. This is a ].oint wit petition made on behalf of 10 writ petitioners, who are running businesses of Pan Gumties and such like on the M.G. -.Marg in Gangtok which is the main thorouchfare in the capital. They have come against notices dated 07.03.20b8 separately issued to each of them, the purport of which is that they are to vacate their Gumties Of Pan shops by 12.03.2008 failing which the Gumties shall be demoHshed. The urgency melitioned in the notice is that the inproved M.G. Marg will be opened on 14.03.2008. EE~I[ -ial Date Order with Signature OfficeNote,A o of of action (if any) Jer Order taken on Order )I(i((IIi(i Serial ®Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order Each of the wit petitioners has a separate : III cause of action, if any, but we do not take the point that they are embarrassing us by coming before the Courtjointly. In fact, their grievances are similar and learlied senior counsel appearing for them has also submitted that their cases are sinilarly circumstanced.Leavewasobtainedtomove the writ petition without prior notice to the State and without filing it in the Department as is the usual practice of the Court. A copy of the petition was served upon the leamed Advocate for the State just a few minutes before the moving of the writ petition, but this is a well known practice in High Courts, when urgent orders are required.Onbehalfof the State Govt. it was submitted that the papers have not yet been III looked into but that they are fully aware that there is ari International Flower Show to be held between 14th and 16th March, 2008 and the opening of the M.G. Marg on the 14th of March is urgently being planned for that reason.Onethingwemakeclearinthebeginning, that beautffication of the road or the State '.'1 SerialNo.ofOrder DateofOrder Order with Signature •i-.-....-.E )' IIII`i r utfs -_ I IserialNo.of a DatboL Order with Signatlire Office Note as toaction(ifany) Order ord6'r taken on Order II IIII prestige or anything else, everything is i subservient to the rule of law; wlien the law intervenes it intervenes in supervention of all else. The first point is that these arc basically property disputes and if the Gumty owner has a right to stay on in his own piece of land, be it however small, he has recoul.se to the ordinary Courts of law for filing a civil suit and obtaining an injunction, if necessary, against the Govt. and its officers, servants and agents.However,whentheGovt. acts for summary removal, it has to comply with the usual administrative noms, failing which its action is stayed or even annulled by the wit Court. The first principle in these matters is the principle of natural justice. It is inpoltant for the Govt. to take persons in occupation of even small Pari shops into confidence before they are thrown out from their shops on the street by utihizing the Ctovt. power.-_i- It micht. not be necessary for a private landlord or land owner to do this, but a Government, State or other authority must abide by this principle. I )i I( £1 SerialNo.ofOrder DateofOrder Order with Signature .i-.-....-.-a. i(i1;I)III'II 1111Sel.ial B-Dat! Order with Signature Office Note as to flo. of oil, action (if any) Order ord6r taken on Order IIII,I .I1IIII We find in the notice dated 7-3-2008 that ; 11 there is a mention of an earlier notice dated 20-9-2007 in case of each of the \hrit petitioners. That notice of September, 2007 is not annexed to the wit petition, not even the copy of any of the ten writ petitioners. On query from Court, leaned senior Advocate sent out his juliior and obtained a copy of it from the papers. He had read it before. He read it out to the Court, as we asked him to do and in that notice there is I.eference of even earlier notices dated in June, 2007.Onqueryfrom Coult, he submitted that at least in the case of respondent No.8 there was a reply to show cause given on his behalf by a learned Advocate. We were not told that II respondent No.8 is special and thus we assume that replies were given in case of other i^rit petitioners also.Theabove amounts to suppression of material from Court. We do not blare anybody and we assume` that all this is unintentional. Even then, if an interim order were obtained on suppression of such important prelininary material showing the giving of an opportunity of , hearing already, it would be open to the other II ' ( Serial Date Order with Signature office Note Dto No. of of action (ifpany) Order Order taken on Order t i(\(i(iII( |T_r- !R::i:;Order O D.?1Ford8r Order with Signature Office Note as toaction(ifany)takenonOrder IIIlj II•'1II side to come up to Court and, on old and settled principles, ask for vacating of the interim order and the dismissal of the application, on the ground of suppression and suppression alone. The position of the wit petitioner cannot be stronger because the other side is present today.The last notice dated 7-3-2008 is not really a notice but it is a decision on a process ) I which was continuing for several months I previously. It was open to the wit petitioners to I11 obtain any order of injunction from a suit Court or elsewhere earner but they did not do so.Thewitpetitionershavebeenin long I possession and most certainly that is something )IIII in their favour but they have possessed on the basis of payment of licence fees etc. and the question of any adverse possession against the Govt. is out of the consideration.Nolicencefeesandno money were i1I accepted by the Govt._ from any of the wit - petitioners after June, 2007 when apparently the first proposal of shifting the Pan shop owners was put. 1'I, I11 SerialNo.ofOrder DateofOrder Order with Signature •i-.-....-.i. ' (ijI1(iI/) Serial eDat6 Order with Signature Office Note as to No. of ofl action (if any) order Order , taken on Order 11 III It appears that the proposal is that there : I will be a lottery system amongst the displaced shop owners and they will be re-located on the basis of the lottery results.Inthepetitionthere is no allegation of mala tides. Learned Advocate for the wit petitioners said so. It is also his submission that there have been no other Court proceedings II previously and the writ petitioners were simply continuing with their chops with the sword of possible eviction hangding on their heads all the IIIII time. They submitted that they, or at least several of them, are possessors of the small shops from the tine of the Chogyal and that they have abided by the law all tlirough. This miglit be so, but then the Govi. is not compelled to keep licensees on road sides, even if, for reasonable needs, it requires eviction of them.Weputaquestiontothevritpetitioners whether there was any allegation of discrimination. made by them in the writ petition. We were shown paragraph 15 ti) in that regard and nothing` else. It is not an allegation offact but a submission only. It is in (,i '>-I SerialNo.ofOrder DateofOrder Order with Signature -i-.-..-.-.H ii )I'I)I,iII() _ ry r I Iserial E' Data Order with Signature Office Note as to No. of of!l action (if any) Order ord5r taken on Order II1II11 (•1iI)I the grounds of the petition. It says that there are a number of wooden houses like the Pan Gumties along the MG Marg, and no order of demolition was issued in respect of those wooden structures. `Ihe said line is without any particulars, is not verified on oath and is most unsatisfactory, because wooden houses are apparently not the same Pan Gumties.Theihritpetitionerssubmittedthat if they are thrown out they will lose their livelihood and the balance of convenience requires an order of stay be passed, even it is for a short period.Itisourexperiencethatanorderofstay is never short; it has a tendency in Courts in India to spread over years and even become permanent. Either way, the Court is to take a drastic action today; either it has to stop the Goverlment from its plan on the MG Marg and compel a appreciable length of time to pass, maintaining a part of MG Marg as it is, so far as the wit petitioners' shops are concerned; or the Court has to refuse an interim order, which is almost the dismissal. of the wit petition, and aJlow the State Government to act reasonably and in accordance with law. U ''_I SerialNo.ofOrder DateofOrder Order with Signature -i-.-..-.-..-., '' Ii( II)((1I(1'iI Serial - `No.of Order Order with Signature Office Note as to action (if any) taken on Order We are of the opinion that the facts do not disclose highhanded or sudden action on the part of the State Government. The order and observations, however worded, are without prejudice, in so far as those can be without prejudice, because action very' likely will be taken before the nend date of hearing. The writ petition is not thrown out in linine, but we are keeping it on record. Parties will be at liberty to mention the same or bring it for further. hearing if it retains any Ire in it later on. Interim order is refused. After.we have passed the above order in open Court, we are constrained to modify/alter the order for the following reasons. It is tine tfiat if a Goverliment dispossesses a private citizen from Government land by using summary force, the Specific Relief Act under Section 6 does not give him a right of obtaining restoration of possession by filing a summary possessory.suit, which is given to a dispossessed person as against a private dispossessor. i SerialNo.ofOrder DateofOrder Order with Signature ::c;I::cnne5#a::r¥¥to i I) (1 Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order But the Government also cannot dispossess a person from his possessed land, without the due process of law. Such due process takes many routes and shapes. The simple classical route is the filing of a suit by the State Government and execution of the decree for possession obtained by it. There are also in the modern tines several special Legislations, like Government Pbemises Tenancy Act or Government Premises Eviction of unauthorized Occupants Act where, after giving of a notice, the competent authorities are entitled to take decisions for eviction, which have practically the same force as a decree for eviction passed by an ordinary Civil Court. In this case, however, we find that the Government is threatening to take possession by complying with all administrative requirements, but without obtaining an instrument of possession in its favour which will pemit it to use force. 'There is no Act under which the 7.3.2008 notice threatening dispossession by force is issued. It is not in execution ofa decree either. 'Thus, the notice appears to be issued after a hearing, without mala fides but without the primary and essential baching of an authority entitled to . SerialNo.ofOrder DateofOrder Order with Signature •i..-....-..i. ' iJ((I Order with Signature Office Note as to action (if any) taken on Order direct dispossession, giving that direction, and authorizing the Government to put the order into effect, if necessary, by force. Under the laws of civilized countries, the Government itself, without any enabling legislation, cannot in its administrative capacity, however high the administrative authority might be, pass administrative orders of eviction from land. Since the Goverlment is threatening to break the law and the wit petitioners have ~±f5pTi6Ta-c-1rdl ~the Court, we al`e compened to intervene. Let there be an interim order directing maintenance of its status quo until further orders of Court. 'Ihe matter is made returnable next Wednesday, i.e. 19.03.2008. Since we have dictated this radically altering order in our chamber in the absence of both the parties, liberty to mention and liberty to apply is reserved for the parties, at any time they might be so advised to do, including tomorrow morning in Court. Order and observations are without Tpr;Tru!drce. i f nf f lf* \ Jl. ' Serial Date a a:c:tf::ne:|oi:r!aEto i r No. ofOrder ofOrder Order with Signature I) I(j•--'1'I) SerialNo.of Dateof Order with Signature Office Note as toaction(ifany) Order Order taken on Order 2. 19.03.2008 Present:: Mr. A. K. Upadhyaya, Senior Advocat:e with Ms. Manita Pradhan, Advocat:e for the Petitioners. Mr. S. P. Wangdi, Advocate General wit:h Mr. J. 8. Pradhan and Mr. Mr. Karma Thinlay, Government Advocates for the State-Respondents. The writ is admitted.Interimorderto continue. Affidavit:-in-oppositionbefiledwithint:hreeweeks.Reply,ifany, be filed wit:hin t:wo weeks thereaft:er. List it on next: available working day thereafter.(A.N.Ray,C.J.)j ( A. P. Subba, J.) I SerialNo.of Dateof Order with Signature aoc%ne(T,oat:,isto 1 Order Order taken on order \ ' ]L~. `s:r-*aFNo.ofOrder DateofOrder Order with Signature Office Note as toaction(ifany).takenonOrder 0 • 29.4. 8 Present: Mr. A.K. Upadhyaya, Sr. Advocate '...),.| :`.`^....cA.-.-` i,-, I.. ..,.` -..•:l`=?-,-Z:#fC®uJiLhdl'fryobc'` with Mr. Sudesh Joshi, Advocate for th.e Petitioners.Mr.J.B.Pradhan, Government Advocate for the state-Respondents. .Byconsentofthelearnedcounsel appearing for the parties, let this matter come up on 23.06.2008 so as to enable the learned counsel to file affidavit-in-opposition.TheState-respondentsshall file the counter affidavits within five weeks, reply, if any, thereto shall be filed by the petitioners within two weeks thereafter.Theinterimorderpassed earlier shall continue. A..-,;.-..(+ tANrfeyLCJ' (A.. . ubba,J) =j SerialNo.ofOrder DateofOrder Order with Signature - )I,1,1' )Ei- -1±, , , \ I ,Seria'JNo.of),Order -Spate6fl,order Order with Signature Office Note as toaction(ifany)takenonOrder i i.21.7LOI))II)Ii.i Present: Mr. A.K. Upadhyaya, Sr. Advoca.te ii•rJIII with Ms. Manita Pradhan, Advocate for.the Petitioners.Mr.S.P.Wangdi, Advocate Generala with Mr. J.B. Pradhan, Govt. Advocate for the State-Respondents.Byconsentoftheparties,thismatter stands adjourned to 13.08.2008. `A.NfficJ) (A. . ubba,J) I •,`. SerialNo.ofOrder DateofOrder Order with Signature •i-..-..-.-..,---I i1(I1-()) \i( -i Its,,,, lseria, .. ee Ir Order with Signature Office Note as to No. of.Order oilOrd action (if any)takenonOrder ` ` _- _ -ioII)1I1I- = =_ - I.13'II t= .0 _ _ _ . _ .===.`,-==_._-==<=r---= --a-- ---i -.-=1-==-_-- I--_8Present:Mr.A.K.Upadhyaya,Sr.Advocate-__ -_L= ---_--_`--|t---1I1'IIII with Ms. Manita Pradhan, Advocate for the Petitioners.Mr.KarmaThinlay, Govt. Advocate for the State-Respondents.Byconsentoftheparties,this matter be listed on 29.08.2008. (A.N Ray, CIJ)(A.P.Stlbba,J) - I ' II(I11 - `) SerialNo.of Dateof Order with Signature •ao::i:One,Tfoat:yisE`:, Order Order I.akenon order ;.. / 1 Serial -,i)`a-t Ir • Order with signature Office Note as to hio. of of action (if any) Order , Orde _ _ __-- _-_i-i.-I:i:===.--,----`_i.-__-..-==--.-=-====-I_-=-i taken on order LJ +T-i a -tf_-. IIIIIIIIIIII(I.I)II( 1II,6IIIII)IIi I29J.I+8. 8 Present: Mr. A.K. Upadhyaya., Sr. Advocate 1,I ) with Mr. Sudesh Joshi, Advocate for iIiIIi)i the Petitioners.Mr.J.13.Pradhan and Mr. Karma Thinlay, Govt. Advocates for the State-Respondents.Astheinpugnednotification has been withdrawn, the Writ petition is disposed of i without any further orders. However, the I) interim order passed is confirmed. Parties are ))I at liberty to take future steps in accordance )Ii with`;law. II 1 i)IiIIi)Ii)IiIi)(ILi (A.N. ay, CJ)(A.P.Subba,J)I I IIIII'i!1 i11 `(I I,_) +r\1 SerialNo.ofOrder DateofOrder Order with Signature •-.. ta:c;i:ocnneo(#;#:r t° ) `)``-,+ I •- i,(IIi\\I)II(I[(I -