S ( P) LI MI TED, TADONG, P.O. & P.S. GANGTOK, SI KKI M v. THE DEPARTMENT OF COMMERCE AND I NDUSTRI ES, GOVERNMENT OF SI KKI M Re
Case Details
I N TH E H I GH COURT OF SI KKI M AT GAN GTOK ( Civil Ext ra Ordinary Jurisdict ion ) D ATED : 0 4 - 1 2 - 2 0 1 3 CORAM H ON ’BLE M R. JU STI CE S. P. W AN GD I , JUD GE W r it Pe t it ion ( C) N o. 2 3 of 2 0 1 3 M/ S SNOWLI ON AUTOMOBI LE P.LTD., FORMALLY KNOWN AS M/ S DENZONG AUTOMOBI LES ( P) LI MI TED, TADONG, P.O. & P.S. GANGTOK, SI KKI M. Pe t it ione r VERSUS THE DEPARTMENT OF COMMERCE AND I NDUSTRI ES, GOVERNMENT OF SI KKI M Re spon de n t FOR THE PETI TI ONER : MS. LAXMI CHAKRABORTY WI TH MS.ROGENA GURUNG, ADVOCATES FOR THE RESPONDENT : MR. J. B. PRADHAN, ADDI TI ONAL ADCOATE GENERAL WI TH MR. S. K. CHETTRI , ASSI STANT GOVT. ADVOCATE. MR. UGEN D. BHUTI A, LEGAL RETAI NER FOR THE COMMERCE I NDUSTRI ES DEPARTMENT, AND GOVT. OF SI KKI M. Wr it Pet it ion ( C) No. 23/ 2013 M/ S Snow lion Aut om obile P.Lt d. Vs. 2 Depar t m ent of Com m er ce & I ndust r ies, Govt . of Sikk im O R D E R ( ORAL ) W a ngdi, J.
Legal Reasoning
Heard learned Counsel for t he par t ies. 2 . Shorn of ot her fact s w hich ar e not germ ane for det erm ining t he quest ions involved in t he case, it is t he pet it ioner’s case t hat it had been allot t ed wit h a plot of land m easuring 0.56 acr es sit uat ed at Tadong, East Sikkim , by t he St at e Respondent by let t er bearing No. 730 dat ed 24.06. 1981 under t he t erm s and condit ions of a Lease Agreem ent dat ed 15.02.1989 for a period of 30 years. Aft er such allot m ent , considerable developm ent was m ade by him on t he land by erect ing st ruct ur es t o set up an aut om obile workshop. We find t he relevant averm ent s in t his regard at paragraph 6 of t he Writ Pet it ion. 3 . On t he expiry of t he period of lease, t he Respondent St at e by resort ing t o Clause 4( 2) ( xi) t hereof opt ed not t o renew t he lease and t o t ake over t he land. This decision of t he Respondent w as conv eyed by let t er bearing No.8/ SGO/ 38/ DI / 96- 97/ 105 dat ed 17.05.2011. By t he said let t er addressed t o t he Managing Direct or of t he pet it ioner Wr it Pet it ion ( C) No. 23/ 2013 M/ S Snow lion Aut om obile P.Lt d. Vs. 3 Depar t m ent of Com m er ce & I ndust r ies, Govt . of Sikk im com pany, it was conveyed t hat t he request on behalf of t he com pany for renew al of lease/ furt her ex t ent ion of lease period could not be ent er t ained and t hat t he land be handed over on or before 22.06.2011 and t o pay t he arrear lease rent for t he period 01.01. 2011 t o 22. 06.2011. I t is against t his t hat t he present Writ Pet it ion has been preferred. 4 . The Respondent has cont est ed t he Writ Pet it ion by filing a count er affidavit by which it has been st at ed t hat t heir act ion is an exercise of it s opt ion provided under t he Lease Agreem ent . That t he issues raised by t he pet it ioner in t he Writ Pet it ion is purely cont ract ual and, t her efore, t he Writ Pet it ion deserves t o be dism issed as not m aint ainable. I t is furt her averred t hat t he pet it ioner shall be ent it led t o t he rem edy as sought for by it . I t is subm it t ed t hat even relief sought for by t he pet it ioner in t he Writ Pet it ion is for reasonable com pensat ion aft er pr oper valuat ion of t he developm ent s m ade and t he const ruct ions raised on t he land as provided under Clause 4( 2) ( xi) of t he Lease Agreem ent . Wr it Pet it ion ( C) No. 23/ 2013 M/ S Snow lion Aut om obile P.Lt d. Vs. 4 Depar t m ent of Com m er ce & I ndust r ies, Govt . of Sikk im 5 . Before ent ering int o t he m erit s of t he case, it is relevant t o not e t hat on 02.08. 2013 t his Court had st ayed t he oper at ion of t he im pugned order unt il furt her orders. This w as lat er on m odified t o t he ex t ent t hat t he Respondent shall be at libert y t o proceed wit h t he v aluat ion of t he com pensat ion ent it led t o t he pet it ioner under t he t erm s and condit ions of t he Lease Deed filed as Annex ure P1 t o t he Writ Pet it ion. 6 . Upon considerat ion of t he pleadings, t he Annexures t o t he Writ Pet it ion and t he count er affidavit s and, t he or al argum ent s advanced during t he course of argum ent s, I am of t he view t hat t he Writ Pet it ion would not be m aint ainable. I n subst ance t he pet it ioner seeks for specific perform ance of t he Lease Deed par t icularly, t he t erm s and condit ions cont ained in Clause 4( 2) ( xi) . Clause 4( 2) ( xi) is reproduced below for convenience : - “ 4 ( 2 ) ( x i) The Lessee shall, on t he t erm inat ion of t his lease, peaceably yield up t he indust rial plot and t he buildings t hereon unt o t he Lesser, if not , t hat reasonable com pensat ion as m ut ually agreed upon by t he part ies is paid t o t he Lessee by t he Lessor on developm ent of land and const ruct ion of buildings.” t he Lessor, provided renewed by Wr it Pet it ion ( C) No. 23/ 2013 M/ S Snow lion Aut om obile P.Lt d. Vs. 5 Depar t m ent of Com m er ce & I ndust r ies, Govt . of Sikk im 8 . The prim ary reliefs sought for by t he pet it ioner in t he Writ Pet it ion are also reproduced below : - t he Lessor “ B ( i) A w r it of or in t he nat ur e of Mandam us to dir ect ing det er m ine r easonable com pensat ion payable t o t he Lessee ( Pet it ioner ) on developm ent of land in being and constr uct ion of buildings t her eon. ( Respondent ) B( ii) A w r it in t he nat ur e of m andam us declar ing t hat t he Lessee ( Pet it ioner ) is not bound to yield up indust r ial plot and t he buildings unt il r easonable com pensat ion is agr eed upon t he par t ies and paid t o t he Lessee by t he Lessor on developm ent of land and constr uct ion of building t her eon. at t o t he or der dat ed B ( iii) An or der r est raining t he Respondent , it s ser vant s or agent s giving effect and fur t her effect : 05.07.2013 passed by t he Dist r ict Collect or , r easonable East com pensat ion t erm s on m ut ually agr eed upon Lessor and Lessee and such paym ent is m ade t o t he Lessee by land and Lessor const r uct ion of buildings t her eon. …………………………………………………..” for developm ent of unt il calculat ed Gangtok is 9 . As would be evident from paragr aph B( i) , B( ii) and B( iii) , all t hat t he pet it ioner seeks is for reasonable com pensat ion against dev elopm ent of t he land as well as t he const ruct ions r aised. I n so far as B( iv) is concerned, I am of t he firm view t hat it cannot be grant ed in t he present proceedings as it falls wit hin t he dom ain of cont r act and, in t erm s of Clause 4( 2) ( xi) of t he lease deed, clearly a m at t er Wr it Pet it ion ( C) No. 23/ 2013 M/ S Snow lion Aut om obile P.Lt d. Vs. 6 Depar t m ent of Com m er ce & I ndust r ies, Govt . of Sikk im of discret ion falling wit hin t he j urisdict ion of t he Respondent . 1 0 . The St at e Respondent in t heir count er affidavit have not denied t hat t he pet it ioner is ent it led t o a reasonable com pensat ion and t hat in order t o assess t he com pensat ion, necessary st eps in t erm s of order dat ed 12.11. 2013 hav e already been t aken. This fact is also not denied on behalf of t he pet it ioner. 1 1 . Ms. Laxm i Chakr abort y, learned Counsel for t he pet it ioner, subm it s t hat apart from what would have been placed in t he writ pet it ion she has not hing furt her t o st at e and t hat she would abide by t he decision of t his Court . 1 2 . I n view of t he st at ed posit ion on behalf of bot h t he part ies, as hav e been alluded t o, not hing furt her rem ains t o be det erm ined in t he Writ Pet it ion except t o direct t he Respondent t hat t he com pensat ion t hat t hey would assess be m ade r easonable and t hat during process of valuat ion t he presence of eit her t he pet it ioner or his represent at ive Wr it Pet it ion ( C) No. 23/ 2013 M/ S Snow lion Aut om obile P.Lt d. Vs. 7 Depar t m ent of Com m er ce & I ndust r ies, Govt . of Sikk im be ensured by issuing necessary not ice indicat ing t he dat e and t im e t he valuat ion will be done. 1 3 . I t is furt her direct ed t hat Considering t he proviso cont ained in Clause 4( 2) ( xi) , t he pet it ioner shall not be com pelled t o hand over possession of t he land in quest ion and t he buildings unless r easonable com pensat ion as m ut ually agr eed upon is paid t o t he pet it ioner. 1 4 . The ent ire exercise of valuat ion shall be com plet ed wit hin a period of 30 days from t oday. The pet it ioner shall give all assist ance in ensuring t hat t he order is com plied wit h wit hin t he period st ipulat ed. 1 5 . Wit h t hese direct ions, t he Writ Pet it ion st ands
Decision
disposed of. 1 6 . No order as t o cost s. Sd/ - ( S. P. W a ngdi ) Judge 0 4 .1 2 .2 0 1 3 Approved for Report ing : Yes I nt ernet : Yes at