Bhaskar Raj Pradhan, J.

1. The petitioner seeks to invoke the extraordinary jurisdiction of this Court. It is his grievance that the respondents are attempting to take possession of his 24,000 square feet of land (40 feet in width and 600 feet long) (additional land) contiguous to khasra plot nos. 68 and 69 at Chota Singtam Block, Saramsa, Pakyong District, Sikkim, along the existing Ranipool Pakyong Block without lawfully acquiring it, wrongfully perceived as 'road reserve'. He seeks a direction upon the respondents not to do so without lawful acquisition and claims that the amount of compensation for the additional land shall not be less than the amount due and payable prescribed in the first schedule under section 26(2) read with section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the Fair Compensation and Acquisition Act). In addition, he seeks a direction that he be paid 100% solatium of the total compensation calculated together with interest at 12% per- annum on the total value of the additional land.

2. According to the petitioner, on 23.01.1968 his father late Kaiser Bahadur Thapa purchased khasra plot no. 36 (under the survey operations of 1951) situated at Chota Singtam Block, Saramsa, East District, East Sikkim (the land) from late Dadhiram Sapkota Sharma by virtue of sale deed registered in Book no.1, Volume no.2, Item no.268 for the year 1968. On 20.08.1986, by a decree of this Court in Civil First Appeal No.4 of 1985 ownership rights in favour of his father was declared and decreed. On 04.06.1996, his father was handed over possession of the land. According to the petitioner the land was used for paddy cultivation and has been under the petitioner's family unhindered possession for over 50 years since 1968. The land is completely fenced by ferroconcrete posts, angled irons with barbed wires, RCC with stone cladding, Iron Gate and concrete footpath. There is a road leading to the petitioner's farm house that dominates the land. The petitioner has developed portions of the land for tourist related purposes and had earlier converted a portion of the land abutting the road for opening a petrol/diesel pump. On 16.09.2017, Notification No.2462 dated 29.08.2017 was published under the provisions of sub section (1) of section 3A of the National Highways Act, 1956 (the 1956 Act) in the Sikkim Express. On 27.12.2017, after hearing the objection of the petitioner, the Competent Authority vide Order dated 27.12.2017, directed joint inspection with the officials of the Competent Authority and the Petitioner. However, on 16.03.2018 the Competent Authority vide letter bearing memo no.1119/53/B/RO/DCE, dated 16.03.2018 forwarded copy of an order disallowing his objection. On 29.03.2018 the declaration under section 3D of the 1956 Act was published. On 01.08.2019 the petitioner was served a notice under section 3E of the 1956 Act. On 19.02.2020 the Competent Authority issued public notice under section 3 G (3) of the 1956 Act inviting all land owners and persons interested in the land being acquired to submit their claims in respect of the lands mentioned in the schedule given in the public notice within 15 days from publication. On 02.03.2020 the petitioner submitted his claim petition. The petitioner states that in his claim petition he had stated that on studying the plan in relation to the due process of acquisition of the petitioner's notified lands, it came to light that not only the portions of the petitioner's notified land in khasra plot no. 68 admeasuring 0.0020 hectare and 0.0300 hectare were being acquired but a large portion of petitioners' unnotified land i.e. the additional land along the existing Ranipool-Pakyong road are also being taken away without the same being acquired by the respondent no.1 by showing it as 'road reserve'. On 10.07.2020 the petitioner filed three applications inter-alia praying for calling of documents; submitting documents and notes and for seeking time to file additional documents in support of his claim. On 20.08.2020 the petitioner issued notice to the Competent Authority. On 03.09.2020 the petitioner received order dated 10.07.2020 dismissing his claim. On 27.09.2021 the Competent Authority electronically transferred 50% of amount calculated as being payable to the petitioner towards the cost of the structures on the petitioners un-acquired land. On 14.02.2022 the petitioner submitted his application stating that he had received the amount under protest. On 04.03.2022 W.P. (C) No. 07 of 2022 was filed by the petitioner which was withdrawn on 16.03.2022 with liberty to file afresh. The present writ petition was filed thereafter on 28.09.2022.

3. The respondent nos. 1 and 2 has filed a common counter affidavit contesting the writ petition. It is submitted that the writ petition is not maintainable as the petitioner seeks monitory relief and further has failed to prove his title. It is their case that they have started their construction after the site was handed over by the State Government vide handing over/taking over documents dated 05.11.2018, 14.11.2018 and 13.02.2019. It is their case that the State authorities had informed them that as per land record of 1979/82, the 'road reserve' is 100 feet i.e. 50 feet by each side from the centre of the road and that they had acquired the land beyond the 'road reserve' falling within the right of way/alignment of the project through the 1956 Act. They also rely upon the cadastral map of the concerned block duly signed by the District Collector and other officers as well as letter Memo No.605/SDM/PKG dated 28.09.2019. It is their case that they acted on the details provided by the State administration and acquisition was done under the 1956 Act. It is submitted that as per Sikkim 'road reserve' (Protection and Preservation) Act, 2009, 'road reserve' means such portion of land lying within such distance from the centre on either side of such roads or highways as may be prescribed in any law but shall not include reserved forest area on either side of the road or any other notified area especially earmarked for its exclusive use by any other authorities. Where the 'road reserve' has been vested in the name of the State Government it shall be lawful for the persons authorized by the State Government to enter and perform such acts as may be necessary upon the land for carrying out maintenance, repair, management of the road and building/bungalow or the part thereof, or any other work connected therewith. It is submitted that the concerned project is an infrastructure project which connects the capital Gangtok to the only airport in the State of Sikkim. It is a time bound project scheduled for completion by July, 2024 and due to the stoppage of work by the petitioner the project is being delayed. It is their case that the land area within the 'road reserve' does not need to be acquired as being Government land for road purpose and therefore, not listed in the schedules of the gazette notification issued under section 3(A) of the 1956 Act.

4. The petitioner, in the rejoinder to the counter affidavit of the respondent nos. 1 and 2, contests that they had started construction work on the additional land of the petitioner. It is stated that the actual physical possession of the petitioner's land is still with him and therefore, the State Government has not handed over the actual physical possession of the additional land to the respondent nos. 1 and 2. It is submitted that 'road reserve' is not 50 feet as claimed by the respondent nos. 1 and 2 and that the cadastral map prepared by the revenue authorities is not a document of title. The petitioner submitted that before using the land for broadening of the road, the Government of Sikkim is required to acquire the land by due process of law. It is submitted that the Civil Court has already decided the issue of ownership of petitioners land in Civil First Appeal No.4 of 1985 which has been accepted by the revenue authorities. The petitioner submits that he is willing to give the additional land belonging to the petitioner in national and larger public interest provided acquisition is made following due process of law. It is submitted that delay if any is caused by the respondents and not by any act of the petitioner as alleged. It is contested that unilateral declaration of 'road reserve' cannot ipso facto transfer the petitioner land without following due process of law and declaration of a particular land as a 'road reserve' and transfer of ownership are entirely different and distinct acts. It is stated that the petitioner has not been paid a single naya paisa towards acquisition of the petitioner's additional land.

5. The respondent nos. 3 and 4 has filed a common counter affidavit objecting to the writ petition. It is submitted that since section 3C (3) of the 1956 Act provides that any order made by the Competent Authority under section 3C (2) is final there is a bar in challenging it. It is submitted that the petitioner has suppressed the material fact that he had approached the sole arbitrator appointed under section 3G (5) of the 1956 Act vide Arbitration Case No. 04 of 2022 on the same facts and issues and thus the writ petition is liable to be dismissed. It is submitted that this Court lacks the jurisdiction since under section 3-I of the 1956 Act the Competent Authority has the powers of a civil court to try a suit under the Civil Procedure, Code 1908 and disputes regarding the said issue. The respondent nos. 3 also alleges that the petitioner has encroached Government land of 'road reserve' of khasra plot no.54. It is submitted that the Competent Authority having passed a detailed order dated 27.12.2017 on the complaint dated 05.10.2017 filed by the petitioner it had now attained finality. It is stated that the petitioner was issued notice under section 3 of the 1956 Act vide Memo No. 406/53/P/DC/DCE dated 01.08.2019 for delivery of possession within sixty days of its issuance as he had encroached Government land and as such there was no violation of natural justice as alleged. The respondent nos. 3 and 4 also submit that the original land sellers with whom the petitioner had dispute have not been made parties although they were necessary and proper parties. The respondent nos. 3 and 4 submit that as per Notice of proclamation dated 09.11.1898 (sic) which is protected under Article 371F of the Constitution of India, 50 feet of ground above and the same distance below all Sikkim roads must be respected as reserve ground. It is submitted that the additional land fell under 'road reserve' by the operation of the proclamation of 09.11.1898 (sic) much prior to its purchase by the petitioner's father from late Dadi Ram Sapkota. It is contested that the question of acquisition would therefore, not arise as it had already been acquired by the Maharaja by the said proclamation. The respondent nos. 3 and 4 has not specifically denied the assertion of the petitioner that he has been in possession and has substantially developed his land.

6. In the rejoinder to the counter affidavit filed by respondent nos. 3 and 4 besides reiterating the grounds taken in the rejoinder to the counter affidavit of the respondent nos. 1 and 2, the petitioner clarifies that the arbitration proceedings relates to the petitioner's other land which have been notified under section 3A and 3D of the 1956 Act in portions of khasra plot no.68 and not for the additional land which is the subject matter of the present writ petition. It is contested that since admittedly no acquisition proceedings have been initiated with regard to the additional land none of the provisions of the 1956 Act would apply. It is also submitted that as per the Record Writing or Kotha Purnu or Dru-Deb and Attestation Rules for Sikkim State, 1951 "Road reserves and water reserves are recorded in the name of the State, 20 feet in case of dry fields and 10 feet in case of paddy field should be recorded as road reserve on either sides of all State paths in Sikkim except on steep hill sides and places liable to land slips where 50 feet reserve shall be kept on either side of the road. In case of cart roads the existing practice of retaining 50 feet on either side shall be continued where the road borders on dry fields and 10 feet on either side of the road bordering a paddy field....." The petitioner submits that the records of 1978-80 prepared on the basis of the Sikkim Agricultural Land Reforms Act, 1978 does not provide for 'road reserve'. It is submitted that the petitioner does not question the authority of the former King or the Government to declare a particular land including part of the petitioner's land as 'road reserve'. It is submitted that mere declaration of 'road reserve' cannot transfer ownership and title which can be conferred only if the State Government acquires the same. The petitioner submits that the 'road reserve' in case of the petitioner's land is only 10 feet being a paddy field and not 50 feet as claimed. It is denied that the petitioner had encroached Government land as alleged.

7. The objection raised by respondents no.3 and 4 that the petitioner having approached the Sole Arbitrator appointed under Section 3G (5) of the 1956 Act vide Arbitration Case No.04 of 2022 on the same facts is precluded from agitating the same issue in the present Writ Petition is taken up first. Section 3G of the 1956 Act deals with determination of amount payable as compensation. Where any land is acquired under the 1956 Act, the Competent Authority is required to determine the amount payable as compensation. Section 3G (5) of the 1956 Act provides that if the amount determined by the Competent Authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the Arbitrator to be appointed by the Central Government. The language of Section 3G (5) of the 1956 Act makes it clear that the jurisdiction of the Arbitrator would be to re- determine the amount of compensation determined by the Competent Authority if it is not acceptable by either of the parties. Therefore, the Arbitrator would not have any jurisdiction to re-determine anything beyond what is determined by the Competent Authority under Section 3G of the 1956 Act. What is determinable is the amount of compensation payable for the land which has been acquired. Thus, even if the petitioner had sought any relief beyond the determination of the amount of compensation by the Competent Authority of his land which have been acquired, and sought additional compensation of lands which have not been acquired, the Arbitrator would have no jurisdiction to go beyond the power granted under Section 3G (5) of the 1956 Act and grant compensation for land which have not been acquired. The prayers in the Writ Petition are all prayers relating to the additional land claimed to be of the petitioner which have not been acquired and not with regard to the petitioner's land acquired by the respondents. Resultantly, the objection that the petitioner is precluded from agitating the present issue before this Court is overruled.

8. The second objection of the respondent nos.3 and 4 is that since Section 3C (3) of the 1956 Act makes any order made by the Competent Authority under sub-section (2), to be final, the petitioner is precluded from challenging the final order passed after hearing the objections under Section 3C of the 1956 Act. A perusal of the prayers sought for by the petitioner does not reflect that he was seeking to challenge the order passed by the Competent Authority in terms of Section 3C of the 1956 Act. This objection of respondent nos.3 and 4 is also therefore overruled.

9. The respondent nos. 3 and 4 also submits that the court has no jurisdiction since under section 3-I of the 1956 Act the Competent Authority has certain powers of the Civil Court. Section 3-I merely provides the Competent Authority with the power of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of certain specified matters. It does not take away the power of the Constitutional Courts under Article 226 of the Constitution of India. The objection is thus without any substance and overruled.

10. The respondent nos.3 and 4 also alleges that the petitioner has, in fact, encroached Government land for which he was issued notice under Section 3E of the 1956 Act with Memo No.406/53/P/DC/DCE dated 01.08.2019 for delivery of possession within sixty days of its issuance. The petitioner has denied that he has encroached upon any Government land 'road reserve' in khasra plot no.54 in his Rejoinder. Although the respondent nos. 3 and 4 alleges that the Notice dated 01.08.2019 was issued under Section 3 of the 1956 Act for delivery of possession as the petitioner had encroached Government land, the contents of the Notice, however, does not say so. The Notice requires the petitioner to deliver possession of the land which was acquired. Section 3E of the 1956 Act relates to the power to take possession of any land which has been vested in the Central Government under sub-section (2) of section 3D of the 1956 Act and the amount determined by the Competent Authority under Section 3G of the 1956 Act has been deposited under sub-section (1) of Section 3H with the Competent Authority by the Central Government. Section 3E of the 1956 Act does not relate to any notice for encroachment as sought to be made out by the respondent nos. 3 and 4. The allegation that the petitioner has encroached upon Government land does not seem to have any factual basis and even if at all it was so, the authorities would have taken recourse to the applicable law to remove illegal encroachment, if any.

11. The respondent nos.3 and 4 also submit that the petitioner has not made the original land seller who sold the land to his father late Kaiser Bahadur Thapa a party in the present Writ Petition although he was a necessary party. Considering the nature of the Writ Petition, the objection of the respondent nos.3 and 4 is not sustainable as the original land seller who sold the land in the year 1968 is neither a necessary nor a proper party. The objection therefore is also overruled.

12. The respondent nos. 3 and 4 submits that the writ petition is not maintainable for want of necessary and proper party i.e. the Forest Department. According to the respondent nos. 3 and 4 as per the notification no. 47/HOME/2017 dated 11.10.2017 in exercise of the power conferred by clause (3) of Article 168 of the Constitution of India, Government of Sikkim (Allocation of Business Rules) 2017 has been framed in which 'road reserve' falls under the Forest Department and therefore, the dispute with regard to 'road reserve' cannot be adjudicated without the Forest Department. It is also submitted that the Forest Department being the protector of 'road reserve' under the Sikkim Forest Water Course Road Reserve (Preservation and Protection) Act, 1988 is a proper and necessary party. The record reveals that due to the claim of the respondent nos. 3 and 4 that the land falling on either side of the Highway was 'road reserve' the issue has been agitated by the parties. Various Notifications and Rules of the State Government were placed by the parties in the pleadings as well as during the course of hearing to explain what is 'road reserve' and the implications thereof, if any. However, this Court is of the view that it is not necessary to examine this question at all in the present proceedings and leave it open to be decided in any subsequent litigation. Thus, it would not be necessary for this Court to examine whether the Forest Department ought to have been impleaded in the present writ proceedings.

13. From the records made available to this Court it is clear that the petitioner's father-late Kaiser Bahadur Thapa had purchased khatiyan plot no.36 with an area of 4.00 acres (out of 7.56 acres) of land from one Dadhiram Sapkota Sharma in the year 1968 vide a registered Sale Deed. The Sale Deed records the boundary as under:-

East : Paddy field of Champa Devi, chilauney tree and dil across - rock.

West : Road reserve.

North : P. Fd. of Shivaji Mandir separated by Kandla.

South : P. Fd. of Prithivi Raj Limboo separated by Tharo Bato.

14. The records reveal that late Kaiser Bahadur Thapa was also issued a Parcha Khatiyan in the year 1981 for khatiyan plot no.36 but for an area of 3.45 acres only. The records placed by the petitioner however, does not clearly show how the 4 acres of land purchased by late Kaiser Bahadur Thapa was recorded in the Parcha Khatiyan issued to him in the year 1981 as 3.45 acres only.

15. The records also reveal that thereafter due to a litigation, the land of late Kaiser Bahadur Thapa was subject matter of Civil First Appeal No.4 of 1985 before this Court between Narad Timsina and Devicharan Sapkota as the Appellants/Defendants and late Kaiser Bahadur Thapa as the Respondent/Plaintiff. This Court dismissed the Appeal and on 20.08.1986 ordered:-

"The Appeal is dismissed subject to the modification that the Plaintiff-Respondent shall be entitled to declaration and possession in respect of 3.45 acres of plot no.36 and he shall be delivered possession after the eviction of appellant no.1, Narad Timsina of 0.82 acres area of plot no.36 as shown in red in the Plan Exhibit P-3 which shall form part of the decree."

16. Exhibit P-3 was a map prepared during settlement operation in 1952 of Block Chota Singtam showing plot no.36 having a total area of 3.45 acres and the disputed area as 0.82 acres.

17. The record also reveals that late Kaiser Bahadur Thapa was thereafter handed over possession of the land by installing 32 dry bamboo posts along the boundaries demarcated and pointed out by the concerned Amin.

18. According to the Petitioner, the land purchased by late Kaiser Bahadur Thapa was inherited by him and he is the sole and absolute owner of plot nos. 67, 68, 69, 70/753 and 72/754 (under Survey Operation of 1978-1983) situated at Chota Singtam Block, Saramsa, Pakyong District, Sikkim. The Petitioner also relies upon the Parcha Khatiyan issued by the Land Revenue and Disaster Management Department dated 28.09.2020 recording the name of the Petitioner in their record of rights. The Parcha Khatiyan for these plots reflects a total area of 0.1780 + 0.2700 + 0.9800 + 0.0200 + 0.0080 hectares = 1.456 hectares which amounts to roughly 3.59 acres.

19. Although the Sale Deed dated 23.01.1968 for khatiyan plot no.36 records a total area of 4 acres it is clear that the Decree of this Court confirmed late Kaiser Bahadur Thapa's entitlement in respect of 3.45 acres only which is also reflected in the Map Exhibit P-3 which was made part of the Decree. The Parcha Khatiyan issued in favour of late Kaiser Bahadur Thapa in the year 1981 also records an area of 3.45 acres only and this record was not amended. The subsequent Parcha Khatiyan in favour of the petitioner also does not total to 4 acres as reflected in the Sale Deed. The petitioner however, seeks to suggest that between the sale deed document of the year 1968 which records a total area of 4 acres and now the Parcha Khatiyan in his favour of the same land which records less than 4 acres is the additional land which is sought to be taken over by the respondents as 'road reserve' without acquisition. As seen above in spite of the fact that the Parcha Khatiyan issued in favour of late Kaiser Bahadur Thapa in the year 1981 and the decree of this Court of the year 1986 which recorded an area of 3.45 acres only even when the petitioner obtained Parcha Khatiyan in his favour of the same land with the new plot numbers the total area was still less than the 4 acres which was recorded in the sale deed of the year 1968. The Sikkim Record Writing and Attestation Rules, 1988 provides a detailed mechanism to correct the records of rights in case of discrepancies. Writ Court is not the correct forum to agitate this issue. To approach the Writ Court the petitioner must state facts which are not in dispute and show clearly the infringement of his fundamental rights or his statutory legal rights.

20. The Petitioner, however, seeks a direction upon the Respondents not to carry out any construction activity of road widening on the additional land unless and until it is lawfully acquired by the Respondent no.1 and 4 and adequate compensation is paid to the Petitioner in terms of the law. The Parcha Khatiyan in favour of the Petitioner totals to 1.456 hectares which amounts to roughly 3.59 acres, which is little more than the extent of land owned by Late Kaiser Bahadur Thapa as per the Decree of this Court and the Parcha Khatiyan of the year 1981. The writ court cannot investigate what the petitioner himself has not done about the discrepancy pointed out by him in his land records. As against the claim of the Petitioner, the State- Respondent Nos.3 and 4 have filed a map showing the extent of land in the name of the Petitioner in plot no.67, 70/753, 72/754, 68 and 69 totalling to 1.4560 hectares which is exactly what the Petitioner himself claims in his Writ Petition. The map also reflects plot no.54 as 'road reserve'. Plot no.54 is the stretch of land next to the metal road bearing plot no.53. Plot no.54 touches both plot nos.68 and 69 which is owned by the Petitioner. The Respondent no.2 has also placed on record the Cadastral Survey Map of 1978-1979 which also records the above facts, as reflected in the Sketch Map produced by the State- Respondent nos. 3 and 4. Section 83 of the Indian Evidence Act, 1872 provides that the court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate. Although the Petitioner claims that he is the owner of the additional land, the Petitioner has not been able to demonstrate clearly how it is so.

21. The Petitioner contends that although the State- Respondent nos.3 and 4 claim plot no.54 to be 'road reserve', they have not been able to demonstrate that they are the owner thereof and therefore this Court must necessarily examine whether by merely declaring a particular land to be 'road reserve', the State-Respondent could claim that it vests upon the State. This Court is afraid that although the question of whether mere declaration of a particular land to be 'road reserve' would vest the land upon the State, is an arguable question, it would not arise in the facts of the case. Disputed questions of fact cannot be examined in Writ jurisdiction. The Writ Petitioner is required to demonstrate clearly that either his fundamental right or his statutory legal right has been violated by the State which would compel this Court to interfere. The question whether plot no.54 shown as 'road reserve' is actually owned by the State-Respondent does not fall for consideration in the present Writ Petition as the Petitioner has nowhere claimed or shown that this plot no.54 is owned by him. Although the petitioner claims that the additional land contiguous to khasra plot nos.68 and 69 is his, there is no record filed by him which establishes it. During the course of the present proceedings, the Petitioner has filed various documents relating to the land originally purchased by his father late Kaiser Bahadur Thapa. None of these documents however, establishes what the Petitioner claims in the Writ Petition that he is the owner of the additional land. More importantly all these documents relate to the period prior to the decree passed by this Court in the year 1986. The expansion of the National Highway is an infrastructural project which must be given due precedence. In the circumstances, this Court is of the view that the Respondents should be allowed to go ahead with the project. While doing so, the Respondents shall ensure that the Petitioner's property rights on plot nos.67, 68, 69, 70/753 and 72/754 having a total area of 1.456 hectares is not interfered with, without following the due process of law. The petitioner, however is not entitled to the prayers as sought for, which are accordingly rejected.

22. The Writ Petition is disposed of in the above terms. Pending applications also stand disposed of accordingly.

23. No orders as to costs.