S I K·K 1M /" c)
, ]/G6VERNMENT (iAZETTE EXTRAO~DINARY, ,
PUBLISHED BY AUTHORITY
No. 153
Gangtok, Tuesday, October4.1983
GOVERNMENT OF SIKKIM
'LAW DEPARTMENT'
GANGTOK.
NOTIFICA nON No. 13jLDjI983.
Dated the 3rd October, 1983. The following Act of the Sikkim Legislative Assembly having received the assent of the Governor on 1st day of October, 1983, is hereby published for general information:- .
THE SIKKIM P.UBLIC WORKS (LIABILITY OF GOVERNMENT AND
CONTRACTOR) ACT, 1983
(ACT ~O. ~I OF 1??3)
AN
ACT
[ L10.83]
to provide for liability of the Government
Be it enacted by the Legislature of Sikkim in the Thirty-Fourth Year of the Republic of India as follows :- .
2.
This Act n)-itYbe called the Sikkim Public Works (Liability of Govemrnent Short title, extent and Contractor), Acr, 1983. and commencement •
• ' 1 • 't ,':' • . It extends to the whole of Sikkim. It shall co~!,! in~o force o~ such ~~te a~ th~ Star~ Government Play, py nqtific~ti9n,.~ appo int ,
In this Act, unless the context otherwise requires,- Definitions, I ' II .t
"~~?id~bh~ q~~\lge" m,e~~ clJtting of rr~t(~,~t~ding q"?PS, ~~ge to huts, ~alllpjng ~rdl!~pi~g materials 9.~ th~lallq ?f another per~~m 'lVith()~r the authority of the owner of the said land ~d jl1cll.lq~s,'my o~qH p~wagr which, in t~e opi~io~ of the Government, is not an unavoid~?le damage; : IChief fD:gip~~(' m,e~~ a~ ?{l}?~r~f the HRyerPmf~t~P,~i~t~H ~s ~H'~~ whether or not in the Public vv.orks Department; .
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"Collector~' means the District Collector and includes any Officer especially appointed by the Government to perform the fU:ncti~nsof the Collect:6r under this Act;
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Imposition of res- trictions.
Powers to do cer- tain preliminary acts after publi- cation oj notifi- cation under section
3.
Payment for damage.
'contractor' means a person or association of persons whether incorpora- ted or not, who is entrusted with a public work; -', G:
"Government" means the .G~vernment 0 f Sikkim ; '.. 'land' includes benefits toarise out of land, and things attached t~'\)J"!e i earth or permanently fastened anything attachedto the earth; ',:" ...\
"notification" means a. notification published in, the Official Gazette; ,
"person interested' ~ includes all persons claiming an interest in compen- sation to be made on account of the imposition of restrictions upon the use and enjoyment of land or on account of damage to any land un- der this Act; \
Explanation.-A person shall be deemed to be ;nterested in land i.f he is interested in an easement affecting the said land;
(9) "prescribed" means prescribed by rules made under this Act; (ro) "public work" means any work relating to construction of road, building, bridges or any other work entrusted by the Government to a contractor for execution;
(I r) "unavoidable damage" means,-
(a) damage caused due to rock cutting on steep slopes where it is not possible or practicable on the part of the contractor to contain debris by erecting suitable barriers;
(b) landslides not caused due to negligences on the part of the contrac- tor;
any other damage which, in the opinion of the Chief Engineer, for reasons to be recorded in writing, is not an avoidable damage. Whenever it appears to the Government that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any public work or of any site intended to be used or to be acquired for a~y such work, it may, by notification, impose such restrictions on such land as it may deem necessary, . .
A sketch plan of the land in respect of which the notification referred to in sub-section (I) is issued shall be prepared on a scale not smaller than 6 inches to the mile indicating the boundaries of such land and the Collec- tor shall cause public rio ti ce of the substance of such notification to be published at convenient places in the locality,
The notification referred to in sub-section (I) shall be conclusive proof that it is necessary to keep the land free from buildings and other obstruc- tions specified therein.
4. It shall be lawful for such officer as the Government may, by general or special or- der, autho rise in this behalf, and for his employees, servants and workmen, at any time after the publication of the notification under section 3, to enter upon and survey and take levels of any land in such locality, to dig or bore into the sub-soils, to do all other acts necessary to ascertain whether any land, if so, what restrictions should be imposed on the use and enjoyment of the lanel, to set out the boundaries of the land upon the use and enjoyment of which restrictions are to 'be imposed, or. of any part of such land, to mark such levels and boundary lines by placir'g marks snd cutting trenches, and where the survey cannot be completed or the levels' cannot be takerior the boundary lines cannot be marked, to cut down and clear away any part of aliy standing crop, fence or jungle:
(c)
Provided that no person shall enter into any building or upon ~ny enclo- sed courtyard or garden attached to a dwelling house unless with the. consent of ~he occupier thereof or without previously giving' such occupier atleast seven days' notice in writing of its intention' to do so, .,'
5. The Officer authorised under .section 4 (her~inafter referred to as the authorised officer) shall at the time of such entry pay; Or tender payment vfor allavoidable -damage done or proposed to be done arid, incase of dispute as 'to the ~uffidency'of the amount .so paid Or tendered, heshilll at once refer the dispute to the' decision ofv theCollector whose decision shall .be final,', .: , .' "; '. " '.. . . .. :. .' ,. :. , ~.. ~.
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! , Whenever it notification has becn issued under section 3, it shal] be Lw- Ful for the authoriscd officer or his employces, servants and workmen to ('11(,]' and f\(J11C lish <'11)' iJuil(1ing or other construction on the surface, to cut down or grub up all or ;ny trees, to IT1110Ve or alter all or any of the h~J'ks, fences, hcclrrcs and ditch s, to make \,ncl"rgwuncl. and other drains, to fill I1p ell CXci\l';tons, and dr-rno l ish all hUildings and other constructions hclow the sllria('c, ul,d generally to level and clear the said Iand anr] to do illl such acts for levelling and clearing the ,ame as he may deem necessary or propcr, Inn. in such manner nevertheless that evidence of t!'ie bounda- rics held by dilfen:,nt owners lll~y be preserved.
In case of t'llwrgcnc)" the Covcrnmcnt may, by notification, declare th"t ,.II 01' an)' powers conferred by suh-sccuon (I) may be exercised at ~]1y time within one month after the public.u ion of the notification under sc ction 3 and such po"vers may he exercised accordingly.
Norhin« in sub-section (I) shall preclude the authortsed d1-lCer or his ('mpl())~('s, servants ariel workmen frOTH exercising at any tirne the said. POW('I"S I'()I- till' purpose of removing, wholly or in part, any builcling or other ohstl'llCJioll, maintaine-d, created or added to, altered, planted, stacked, stored or otherwise accumulated in contravention of this Act OJ' of any rules or order made thereunder.
7, On ;Jilt! fr()],ll the: dat:<' of puhlication of the notification under section 3, such of the [0 !lowing rcst rictions, as the Government Il1<1Y, in its discretion, declare therein, sha 11 attach with ('eference 11) such land, namely :-
(I)
(a) IlO variation shall be made in the ground-level, and no building, wall, bank or other construct ion above the £,I-Olllld shall Le maintained, erected, added to or altered o t he rw isc than witl~ 1'1w previous written approval of the Go- vernment or any officer autho i-iscd by it in this behalf; no wood, earth, stone, brick, gmvel, sand 01' ot-her material shall be :;tac.Jed or stored or otherwise accumulated, and if any of such materials have been stacked or stored they shall be removed forthwith;
(c) no Jive-hedge;" rows or clumps of trees or orchards shall be maintained, planted, arlclecl to or altered otherwise than with the previous approval of the Governlllent or any officer authoriser] by it ill. this behalf.
8. lkf(-)n~ the expiry of 3 months from the date of publication of the notifica- tion under seer ion 3, the Collector shall issue a notice to all persons in- t('I'(:,;ted in such l,mcl givil~.'g the date and time on which an enqUiry for assess- ment of' dam;'gc is to be l1cld.
(2) Sl.Ic:h no tihcatinn "hall be served in accordance wit-h the provisions of the C'odc IiI' Civil Procedure, 1908'
(1) ./\ person intcrc$tcd may, if he so desires, file a written objection before the Co! lector.
(~_) On tht: d~y so fixed under this section or an)' other elate to which the enquiry is adjourncd , the Collector shall proceed, enquire into the objections (if any) filed by any person interested in the land and determine the amount of dam~ge and (he interest of the person claiming the compens,at-ion and shall make JJl award under his hand of :-
(it) the true area of the land and the nature of damage;
(h) the compensation which, in his opinion, should be allowed for any damage caused or likely to be caused due to the execution of allY public work or imposition of any restrictions;,
(c) tlw appo rt ionrncnt of the compensation alllongal! (-he pertoHs known or believed to be interested in-the land, of who m or of whose claims he h:,s inlo rrnation , whethe.1" or not thcy ,'ppcared before him. The Collector shal] rive immediate notice of the award made by him to such of the persons '~:ho areinterested ill the land hut who are not present personally or by their representatives when the award was made.
(5)
Further powers exercisable after publication of noli- cation under sec- tion 3.
Nature of res- trictions. Notice to persons interested.
5 of 1908
Adjournment of enquiry.
Power to summon and enforce attendance of witnesses, etc. 5 of 1908
Matters to be considered in deter- mining the amount of compensation. Matters not to be considered in deter- mining the amount of compensation.
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\." \ 9· The Collector may, for any cause he thinks fit, from time to time, adjourn- the ~:rl~\ q\liry to a (1.:1)' to be fixed by him. ~
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10. For tne purpose cf, J1
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12.
Compensation by whom 13. (I) payable.
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In deterrnininjj the arnounr of compensation to be awarded for damage cau-; sed, or likely to be caused, or for restrictions imposed under this Act, the Collector ,;lull t •.l«, ii.to consideration -
( 1 )
(a) the acu.J d.';crea:c in mr.rlx.t value of the land owing to the publi- cation of the notification under section 3;
(1.» the damage sustained by the person interested by reason of the r. 1"110\·;,,1ef ;.ny st;,L('.irg creps, staking or storing of sand, stones or other materials required in executing the public work;
(c) the damage, if any, sustained by the person interested by reason of ceasing to be able to use such lend conjointly with his other land j
(d) the damJge, if ,tI,y, sustained by the person interested by anythfng which injuriously affects his other property, moveable or immova- ble, in any other manner, or his caruinps ; "nd
(c) if, in comequ(,J1ce of the imposition of restrictions, the person interested is compelled to change his residence or place of business the reasonable expenses incidental to such change. In ;1clc1.it-ionto amount of award, the Collector shall in every case award a further sum equivalent to fifteen percent of such award:
In rIGtcrmininf, the rmo unt of compensation to be awarded for damage, caused or likely to be caused for restrictions imposed under this Act, the Collector d,;)ll not take into ccnsic'eration-c- .r.;';
(a) the degree or urgency which has led to the damage Or the imposi- tion of restrictions j .
(b) disinclination of the person interested to submit to damage or res- trictions;
(c) any damage sustained by him, which, if caused by a private per- son, would not render such person liable to a suit;
(d) any increase in the value of the other land of the person interested occuring or I ikely to occur from anything done under this Act; or
(e) any outlay or improvements on, or disposal of, the land commenced, made or effected without the previous approval of the Government after the date of publication of the notification under section 3. V.Jhile making the award under this Act the Collector shall indicate therein whether the damage is avoidable or unavo idable ,
Where the damage is unavoidable the compensation shall be paid by the Government or any other person or agency on whose behaif the work is being executed, to t1w persons interested in accordance with the award made by the Collector arid where the damage is avoidable it shall be payable by the contractor within such time as may be specified in the notice issued by the authorised officer.
The author iscd officer shall issue or cause to be issued a notice upon the contractor calling upon him to deposit with such officer the amount of the award within such time and in such manner as 'mav be specified in notice:
Where the contractor fails to comply with the notice issued under sub- section (2), it shall be lawful for the authorised officer to recover the amount on account of rbmRge as given in the award from the payments due to the contractor or from the earnest mOlley or security deposit of the said con- tractor lying with the Government whether or not under the said contract . (.~)
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the authorised officer may pay to the person interested the amount of com- pensation on execution of indemnity bond by the person concerned. It shall be the duty of the Government- to make available to the authorised officer the amount of compensation. payable for unavoidable damage and the authorised officer shall distribute the said amount in the manner speci- fied in sub-section (4-).
Where any amount of compensation lies undisbursed with the authorised officer, he shall keep the same in deposit in the bank as may be directed by the Government.
Where the payments due to a contractor in respect of any public work, or the earnest money or security deposits of such contractor are found by the authorised officer to be insufficient to meet the amount stated in the award, such authorised officer shall prepare a certificate of dues and send the same to the Judicial Magistrate of the first Class of the area in which the land is situated.
(2) The Judicial Magistrate of the first Class to whom such certificates is sent shall forthwith realise the amount due from the contractor as if it were a fine imposed by him and upon recovery of the amount, transmit the same to the authorised officer.
(5)
(6)
(1)
Procedure where the payments due to contractor are insufficient. Service of any notice under this Act shall be made by ddivering or tendering Ser~jces of a copy thereof signed, in the case of a notice under section 3, by the officer notices. therein mentioned and in the cases of any other notice, by an order of the Collector. '
Whenever it may be practicable, the service of the notice shall be made on the person therein named.
When such person cannot be found, the services may be made on any adult male member of his family residing with him; and, if no such adult male can be found, the notice may be served by affixing a copy on the outer door of the house in which the person therein ordinarily dwells or carries on busi- ness, or by fixing a copy thereof at some conspicious place in the Court House and also in same conspicious part of the land upon which restrictions are to be imposed ;
Provided that, if the Collector so directs, a notice may. be sent by registered post in a letter addressed to the person named therein at his last known residence, address' or place of business, and service of it may be proved by the production ~of the addressee's receipt or postal receipt.
IS. (I)
(2)
Any person aggrieved by the award made by the Collector under this Act Appeal. may, within 30 days from the date of the knowledge of award, prefer an appeal to the Government in the form of a Memorandum giving the grounds of such appeal;
Provided that the Government may admit the appeal after the expiry of period of 30 days if it is satisfied that the appellant was prevented by su- fficient cause from filing the appeal within the time prescribed.
(2) No appeal shall be disposed of unless after giving the person concerned an opportunity of being heard.
(3) The decision of the Government under this section shall be final and an appeal against such decision shall, no twi thstand.inp anything to the contrary contained in any other law, lie to the High Court only.
16. (I)
t t . No award made or appealpreferred llnde~."tllis ~}£shal1b~ ~h.il.geable with ~f;nlp' duty and no person claiming under any such award shr.ll be liable to pay fee for a copy of the said award or decision of the Government.
18. No suit, prosecution or other legal proceedings shall lie against any person for any- thing which is in good faith done or intended to be done under this Act or the rules made
Offence by com- panies.
Penalties.
Power to remove difficulties. Power to make rules.
Validation of acts done or payments realised before the commencement of this Act.
If th,e p~rson co~:!:ittiTlg ~n offe~~~ ll~d~r this ~~t, or the :;ules thereunder is ~ ~.()l11p~~y,~\(en per~qp, ~~o at th~ Fime the ()ffel1<;~ ~~s committed, was In charge ?f, and was responsible to, th~ c()mp¥1Y for ~he conrluc' ..Jf the business' of the company, as well as the company, shall be deemed to be guilty of the cortrayention and shall be liable to be proceeded against and punished accordingly:
, Provided t~at nothin~ cont~~n.edin tris sub-section ~hall re~der any such pers~n liable ~o a~y p~Tdshrnent ifh~ proves th~t t~e ?t:ence was com- mitted Without his knowledge orthat he exercised all ~1je 4pigence to pre- vent the commission of such offence.
Notwithstanding anything contained in sub-section (I) where the offence under this Act or the rules made thereunder has been committed by a com- pany and it is proved that the offence has been committed ~ith the consent or connivance of, 'or is a~tributable to any negl~ct on the Bart of any director or manager, Secretary or other officer of the company such director, mana- ger, Secret arv or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes ?f thi~ ~~ction.-
(a) "company" means any body corporate and includes a firm or other asso- ciation of indtviduals , and
(b~ "di~ector" in rela60~ to a fir~ means a parF~er in the firm.
20. Whoever contravenes the provisions of this Act or any rules, or notification made thereunder shall be liable to be punished with imprisonment for a term which may extend to six months ()r to a ~ne which fray extend to r:p.pees two thous
2 I. If any difficulty arises in giving effect to any of the provisions of this Act the Govern- ment may, by order, remove such difficulty:
(2 )
Provided rh~t no such ~rder shall be made after t~e ~xpir~tion of period of two years from t~e date of comm~ncemen~ ()f t~is Act.
22 Tpe Government may, by notification, rna~~ r~les ~?r ~he purp~s~ ()f giving effect t() the prov~?ions of t~js Act. . .
23. All things done, actions taken or payments realised from a contractor for any damage in respect of a public work ~ntr~sted tq that contractor befo:e the commencement of this Act shall be, and sh~ll 'always be deep-t~d to be leg~l and vali~ notwithstanding anytl:in~ to the co~~rary contair~d !n t~is Act, .
B. R. PRADHAN,
Secretary to the q~vern~ent of Sikkim, Law Department.
F. ~o. 16 (l85)/LD/83.
PRINTED AT HIB' ISl&lp!I,i 'OOY~RMM~ PRESS"GA~GTOK' ." ,, • " ' f ,~ ..•... " .." ~ '. ,.
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