Padam Prasad Sharma vs Union Of India & Ors.
2011 Latest Caselaw 1484 Del

 IN THE HIGH COURT OF DELHI AT NEW DELHI

               W.P. (C) 8077/2009 & CM APPL No. 4657/2009

       PADAM PRASAD SHARMA                  ..... Petitioner
                      Through: Ms. Pinky Anand, Senior
                               Advocate with Mr. Balendu
                               Shekhar, Advocate.
               versus

       UNION OF INDIA & ORS.                       ..... Respondents
                     Through:           Mr. Girish Pande, Advocate
                                        for Mr. Ravinder Agarwal,
                                        CGSC for UOI.
                                        Mr. P.R. Chopra, Advocate
                                        for R-2.
                                        Mr. A. Mariarputham, Senior
                                        Advocate with Mr. Anurag
                                        Mathur, Advocate for R-3.

       CORAM: JUSTICE S. MURALIDHAR

  1.   Whether Reporters of local papers may be
       allowed to see the order?                              Yes
  2. To be referred to the Reporter or not?                   Yes
  3. Whether the judgment should be reported in Digest? Yes

                         ORDER

15.03.2011

Introduction

1. Stating that he is a citizen of India and a resident of Nandu Gaon,

Harrboty, Poklok, Kamrang, South Sikkim and „an educated

farmer‟, the Petitioner has filed this writ petition for a direction to

the Union of Indian in the Ministry of Home Affairs („MHA‟) to

decide a complaint made by him on 9th June 2008 against

Respondent No. 3, Shri Pawan Kumar Chamling, who is at present

the Chief Minister of Sikkim.

2. Although a further prayer is for a declaration that Respondent

No. 3 "has ceased to be a citizen of India and disqualified to hold

any constitutional post", Ms. Pinky Anand, learned Senior counsel

appearing for the Petitioner, at the outset stated that the Petitioner

does not press that prayer. He confines his prayer to a direction to

the MHA to decide his complaint dated 9th June 2008.

3. Earlier the Petitioner had filed a writ petition under Article 32 of

the Constitution which was dismissed as withdrawn by the Supreme

Court on 27th March 2009 with liberty to the Petitioner to pursue

other remedies.

The Petitioner's case

4. The Petitioner states that in the first week of February 2008, the

Petitioner was informed by a Senior Advocate in Sikkim that

Respondent No. 3 held citizenship of Nepal. The said Senior

Advocate informed the Petitioner that the certificate of Nepali

citizenship and related documents were handed over to Respondent

No. 3 by the Superintendent of Nepal Police. The Petitioner states

that one Shri Fauda Singh Paudyal R/o Tashiding, West Sikkim

handed over to him a photocopy of a certificate of Nepali

citizenship acquired by Respondent No. 3 which was duly attested

by the Competent Authority of the Government of Nepal. The said

photocopy has been enclosed as Annexure P-1 to this writ petition.

The said certificate is in Nepali and an English translation thereof

has been placed on record by the Petitioner.

5. The Petitioner states that on 26th April 2008 the Petitioner visited

the address indicated in the Nepali citizenship certificate to obtain

details of Respondent No. 3 and his family members. He claims to

have met one Shri Raghunath Niraula, Secretary-cum-Office In-

charge, Village Development Committee Office, Budhabare, Jhapa,

Nepal on 27th April 2008. The Petitioner states that he was asked to

deposit Rs. 10/- Nepal Currency for House Tax in the name of Ash

Bahadur Rai Chamling, the father of Respondent No. 3. Upon

paying the said „house tax‟ the Petitioner was handed over a

population certificate showing the names of Respondent No. 3, his

wife and children. The Petitioner has enclosed as Annexure P-2 to

the writ petition a copy of the said Population Certificate dated 27 th

April 2008 and the House Tax Receipt as Annexure P-3. Translated

copies of the said documents have also been placed on record.

6. On the basis of the above two documents, i.e. certificate of

Nepali Citizenship of Respondent No. 3 and copy of the Population

Certificate, the Petitioner filed a written complaint on 9th June 2008

with the MHA. A perusal of the copy of the said complaint,

enclosed with the writ petition shows that on the basis of the above

two documents the Petitioner claimed that Respondent No. 3 has

"voluntarily and willfully acquired the citizenship of Nepal without

renouncing his Indian Citizenship and by doing so he has

committed a fraud and his Indian Citizenship stands terminated. His

Nepalese Citizenship is clearly established from a mere perusal of

several documents/certificates issued by the Nepalese Government

authorities." Quoting Section 9 of the Citizenship Act, 1955 („CA'),

the Petitioner asked that Respondent No. 3 be held disqualified

from holding the post of the Member of the Legislative Assembly

of Sikkim and Chief Minister of the State of Sikkim. The Petitioner

also sought a direction under Article 191 (1) (d) of the Constitution

of India to Respondent No. 3 to relinquish his Chief Ministership.

7. The Petitioner has with the writ petition enclosed extracts of

reports that appeared in the press on the issue and asserts that

continuation of Respondent No. 3 as the Chief Minister of Sikkim

is contrary to the established constitutional principles. It is stated

that the applications filed by the Petitioner under the Right to

Information Act, 2005 („RTI Act‟) seeking status of the Petitioner‟s

complaint were not answered by the MHA. The Petitioner states

that he also filed a petition before the Governor of Sikkim on 27 th

January 2009. With no response forthcoming the present petition

was filed.

The District Collector's factual report

8. In response to the notice issued to it, the Election Commission of

India („ECI‟), Respondent No. 2, filed an affidavit on 12th

November 2009. The ECI stated that the Petitioner made a

representation to it on 17th November 2008 praying for deletion of

names of six persons, i.e. Respondent No.3 and his family

members, from the electoral roll of 11-Namchi Singhithang

Assembly Constituency on the ground that they were citizens of

Nepal. The Chief Electoral Officer, Sikkim informed the ECI that

the said representation dated 17th November 2008 was forwarded to

the District Collector („DC‟), South Sikkim, who is also the

Electoral Registration Officer for the said constituency. The DC

submitted a factual report dated 29th January 2009. A copy of the

said factual report of the DC has been enclosed with the affidavit of

the ECI.

9. The DC on making a detailed examination concluded that the

documents produced by the Petitioner "are false, baseless and

concocted" and, therefore, there was no justification to consider

deletion of the name of Respondent No. 3 and his family members

from the electoral roll of the said constituency. The said report

noted that the name of Respondent No. 3 is recorded in the Sikkim

Subject Register („SSR‟) at Serial No. 152 Volume No. XVII at

Rangang Block of South Sikkim. The name of his wife Tika Maya

Chamling is recorded in the SSR at Serial No. 126 Volume No. XX

at Jaubari Block of South Sikkim. As per the Sikkim Citizenship

Order 1975 („SCO‟), the persons who were subjects of Sikkim

automatically became citizens of India with effect from 26th April

1975, which is the date of formal merger of the State of Sikkim

with the Union of India. The report concluded that Respondent No.

3 and his wife are bona fide citizens of India and that the rest of the

persons, i.e. the offspring of Respondent No. 3 would also therefore

be the citizens of India. It is further pointed out that the family of

Respondent No. 3 and his wife have been owning landed property

in their native villages in South Sikkim, viz., Yangyang and

Kholaghari, for many generations and were permanent citizens of

India for generations together.

10. The report of the DC further noted that Respondent No. 3 was a

member of the Yangyang Gram Panchayat in South Sikkim as its

President prior to 1983-84 and contested the elections to the

Legislative Assembly of Sikkim in 1985. He repeatedly represented

the Damthang Constituency in South Sikkim as a Member of the

Legislative Assembly for the last five continuous terms. While in

the first term he was Chairman of Sikkim Distilleries Ltd. during

the second term he was a Cabinet Minister for the Department of

Industries, Information & Public Relations and Printing. The report

dated 29th January 2009 of the DC further noted that as of that date

Respondent No. 3 had been the Chief Minister of Sikkim for a third

term. Under the Representation of People Act, 1951 only a citizen

of India could elect and be elected as a representative of the people.

It was pointed out that in all these years no objection was filed

under the Registration of Electors Rules, 1960 before the District

Electoral Registration Officer against the inclusion of the name of

Respondent No. 3 and his family members in the electoral rolls.

11. Significantly, the DC‟s factual report dated 29th January 2009

records that the Petitioner is an active and prominent member of

Bharatiya Janta Party („BJP‟) in the State of Sikkim. He contested

on the BJP ticket in the elections to the State Legislative Assembly

in 2004. Even before the ECI could reply to his representation he

got it published in a magazine. The DC‟s report states that the

citizenship certificate enclosed with the complaint did not even

mention the date of issue of the certificate which was of doubtful

authenticity. The Population Certificate enclosed by the Petitioner

mentioned that Smt. Binita Chamling was the daughter-in-law of

Respondent No. 3 whereas he did not have any daughter-in-law by

that name. This document showed Smt. Binita Chamling to be the

wife of Shri Bishal Chamling, the son of Respondent No. 3,

whereas he married Smt. Roshna Gurung on 12th December 1997.

As of the date of the Population Certificate, Respondent No. 3 was

47 years old. However, it showed the age of Respondent No. 3 as

44 years. Since there were so many discrepancies, the DC

concluded that the two documents relied upon by the Petitioner

were fictitious and could not be relied upon.

The stand of the MHA

12. In its counter affidavit, the MHA raised an objection as to the

territorial jurisdiction of this Court to entertain the present petition.

While denying that the MHA failed to take action on the

Petitioner‟s complaint, it is stated that "the genuineness of the

purported document filed along with the complaint and the issue of

citizenship card has not been established. It has also not been

established whether the citizenship card has been issued in favour

of respondent no. 3 or the same has been acquired by the petitioner.

It is submitted that to verify the authenticity of such allegations,

inputs were sought from the State Government and Security

agencies. The security agency has stated that there are no inputs to

indicate that respondent no. 3 had ever applied for or obtained any

such documents for Nepalese citizenship."

13. The MHA also refers to the fact that the name of Respondent

No. 3 was recorded in the SSR. By virtue of the SCO he

automatically became a citizen of India with effect from 26th April

1975. It is further stated that "in the alleged Nepali Citizenship

Certificate, the birth place of Shri Pawan Kumar Chamling is

shown as „Mechi Zone, Ilam District, Sanischare‟ and that he is

permanently residing at „Mechi Zone Jhapa District, Budhabare

Village Panchayat Ward No. 5‟ whereas in the Population

Certificate (Annexure P-2), the same is shown as „Setipani Tole of

Ward No. 5, Budhabare Village Development Committee‟ which

goes on to show that the documents on which the petitioner has

based his allegations are forged and fabricated and cannot be relied

upon." As regards the Population Certificate, it is stated that it

contains incorrect details and is of doubtful authenticity.

14. Respondent No. 3 has filed a counter affidavit where apart from

objecting to the maintainability of the writ petition in this Court, it

is pointed out that a dispute as to citizenship cannot be made the

subject matter of a writ petition under Article 226 of the

Constitution. In terms of Rule 30 of the Citizenship Rules, 1955, it

is only the Central Government which can undertake an inquiry

when a dispute is raised as to citizenship. It is further submitted that

the Petitioner has sought to project himself as a farmer and has

suppressed the fact that he is a Member of the BJP and a political

activist opposed to Respondent No. 3. In the year 2004, he

contested elections to the Legislative Assembly of the State of

Sikkim and lost. In the elections held in May 2009, the Petitioner

contested as a BJP candidate against Respondent No. 3 and lost. It

is accordingly submitted that the present writ petition is politically

motivated and is an abuse of the process of law. It is urged by

Respondent No. 3 that the Petitioner is fighting political battles by

creating and fabricating false documents in order to gain political

mileage.

15. It is also pointed out by Respondent No. 3 that there are

numerous discrepancies in the Population Certificate and the Nepali

Citizenship Certificate. The dates of birth of Respondent No. 3 and

the family members as mentioned in the Population Certificate

were erroneous. This has been demonstrated in a comparative chart

in para VI (b) of the preliminary submissions in the counter

affidavit. The said Population Certificate was purported to be of the

family of Smt Binita Rai, although there is no such person in the

family of Respondent No.3. Further, according to the Petitioner he

paid the house tax in the name of Ash Bahadur Rai Chamling

whereas the Population Certificate was in respect of the family of

one Binita Rai.

16. Respondent No. 3 states that he is a holder of an Indian passport

and has been the Chief Minister of Sikkim since 1994. He was born

at Yangang, South Sikim and studied there. Respondent No. 3

resided at Ghurpisey, Namchi, South Sikkim for a very long time

and the official residence of the Chief Minister is at Mintokgang,

Gangtok, East Sikkim. It is categorically stated that Respondent

No. 3 is a citizen of India and he has not applied for or obtained

citizenship of Nepal.

17. Respondent No.3 points out that at the time of scrutiny of

nomination papers for the elections to the State Legislative

Assembly in May 2009, the Petitioner as a candidate of the BJP

raised an objection to the nomination of Respondent No. 3 alleging

that he was not an Indian citizen. The Returning Officer rejected

the objection and passed a reasoned order dated 11th April 2009. A

copy of the said order was made available to the Petitioner.

However, after the election of Respondent No. 3, the Petitioner did

not challenge the order of the Returning Officer. He also did not

file any election petition.

18. Respondent No.3 states that the population of Sikkim consists

primarily of three communities - (i) Sikkimese Lepcha (ii)

Sikkimese Bhutia and (iii) Sikkimese Nepalis, of which the

Sikkimese Nepali community forms a large proportion of the

population of Sikkim. It is pointed out that this often results in

allegations being made by political rivals that a prominent person

either in politics or in government is a citizen of Nepal. It is

submitted that the present petition is an abuse of the process of law

and ought to be dismissed with exemplary costs.

Petitioner's rejoinder

19. The Petitioner‟s rejoinder to the counter affidavit filed by

Respondent No. 1 reiterates the submissions made in the writ

petition. It is alleged that the MHA is deliberately trying to

safeguard Respondent No. 3 from the rigours of the law. It is

submitted that the MHA was required to seek information from the

Government of Nepal in order to ascertain the Nepali Citizenship

status of Respondent No. 3. It is submitted that no details have been

given about the inputs from the security agencies. Significantly, the

Petitioner does not deny that the name of Respondent No. 3 is

recorded in the SSR and that he automatically became a citizen of

India in terms of the SCO with effect from 26th April 1975. As

regards the Nepali Citizenship Certificate and the Population

Certificate the Petitioner asserts that the onus is on the MHA to

ascertain the genuineness of the said documents from the

Government of Nepal.

20. In his rejoinder to the counter affidavit of Respondent No. 3, the

Petitioner does not deny that the Petitioner is a member of the BJP

but states that his affiliation with the BJP has "least concern with

the factum of the complaint dated 9th June 2008." It is reiterated

that the Petitioner‟s complaint ought to have been processed under

the CA read with Schedule III of Rule 30 of the Citizenship Rules,

1956.

Submissions of counsel

21. Ms. Pinky Anand, learned Senior Counsel appearing for the

Petitioner reiterated the averments made in the writ petition and

submitted that the genuineness of the documents enclosed with the

Petitioner‟s complaint ought to have been verified by the MHA by

making enquiries with the Government of Nepal. She referred to

Rule 2 of the Schedule III read with Rule 30 (2) of the Citizenship

Rules, 1956 and submitted that the MHA should have referred the

question to the Indian Embassy in Nepal or to the Government of

Nepal. According to her the report of the DC Sikkim was not

reliable since the DC was serving under the Government of Sikkim.

She pointed out that despite this Court‟s order dated 17 th July 2009,

the MHA failed to indicate what the present status of the

Petitioner‟s complaint was. She further submitted that onus should

not have been shifted on to the Petitioner to show that the

documents annexed to the complaint were genuine. The case of the

Petitioner was that Respondent No. 3 had voluntarily acquired the

citizenship of Nepal after becoming an Indian citizen and,

therefore, in terms of Section 9 of the CA, he ceased to be an Indian

citizen and consequently was disqualified from holding the post of

the Chief Minister of Sikkim and Member of the Legislative

Assembly of Sikkim. At this stage, the Petitioner would be satisfied

if a direction is issued to the MHA to inquire into the complaint

dated 9th June 2008 of the Petitioner in accordance with the Act and

Rules and verify the genuineness of the documents from the

Government of Nepal.

22. Appearing for the MHA, Mr. Girish Pande, learned counsel

referred to the averments in the counter affidavit and pointed out

that unless the documents enclosed with the complaint were prima

facie acceptable, there was no compulsion on the MHA to resort to

the procedure outlined in the CA for determining if Respondent No.

3 had voluntarily acquired the citizenship of another country.

23. Appearing for Respondent No. 3 Mr. A. Mariarputham, learned

Senior counsel submitted that the certificate of Nepali citizenship

has no date and that this rendered the said document inherently of

doubtful authenticity. It showed Respondent No. 3 to be 44 years

old and his being a permanent resident of a place in Nepal. Even, if

it were presumed that such a certificate has been issued in 1994,

since Respondent No. 3 was born in 1950, the certificate was

inherently fallacious since Respondent No. 3 was at all times a

resident of Sikkim. Respondent No. 3 was elected to the Sikkim

State Legislative Assembly continuously since 1985 and has been

the Chief Minister of Sikkim for three consecutive terms. He also

refers to the averments in the counter affidavit of Respondent No. 3

to show that the Population Certificate was also a forged and

fabricated document. Therefore, neither document could even be

prima facie considered to be genuine. In the circumstance, there

was no obligation on the MHA to further inquire into the complaint

made by the Petitioner. It was plain that the Petitioner was a

political rival of Respondent No. 3 and was abusing the process of

law by filing a false and motivated complaint based on fabricated

documents.

The documents forming the basis of Petitioner's complaint

24. A perusal of the complaint dated 9th June 2008 of the Petitioner

shows that it is based essentially on the two documents referred to

hereinbefore, i.e., the certificate of Nepali Citizenship allegedly

issued by an authority in Nepal, a copy of which was allegedly

given to the Petitioner by one Shri Fauda Singh Paudyal and a

Population Certificate which the Petitioner claims to have obtained

from an authority in Nepal on 27th April 2008.

25. A perusal of the citizenship certificate, a photocopy of which is

at Annexure P-1 (page 28 of the paper book) shows that it does not

bear any date at all. The translated copy of the said certificate (as

produced by the Petitioner) reads as under:

"His Majesty‟s Government Office of Chief District Officer Chandragadhi, Jhapa

Citizenship certificate No. 10371

Nepali Citizenship Certificate

The citizenship certificate has been issued to Mr. Pawan Kumar Chamling, 44 years, born at Mechi Zone, Ilam District, Sanichare and permanently residing at Mechi Zone, Jhapa District, Budhabare Village Panchyat Ward No. 5, the son of Ash Bahadur Rai, resident of Mechi Zone, Ilam District, Budhabare Village

Panchayat Ward No. 5, by descent as per the Constitution of Nepal and Clause 3 of Nepal Citizenship Act, 2020 B.S. (1963 A.D.)."

26. The Nepali Citizenship Act is of the Nepali year 2020 BS which

corresponds to 1963 AD. It appears that the Nepali calendar is

approximately 57 years ahead of the Gregorian calendar. The age of

Respondent No. 3 is indicated as 44 years. There appears to be not

much of a dispute that Respondent No. 3 was born in 1950. Going

by the counter affidavit of Respondent No. 3, his precise date of

birth is 22nd September 1950. This would place the approximate

date of the purported Citizenship Certificate as some time in 1994.

27. In the first place, it is indeed inconceivable that a document

which purports to be a Citizenship Certificate does not bear any

date. Secondly, the Petitioner admittedly belongs to the BJP and

has contested elections to the Sikkim State Legislative Assembly on

the BJP ticket in 2004 and again in 2009. He would obviously

know that Respondent No. 3 has been a Member of the Sikkim

State Legislative Assembly continuously since 1985 and has been

the Chief Minister of Sikkim for three consecutive terms since

1994. Obviously Respondent No.3 has been throughout residing in

Sikkim. Yet, the Citizenship Certificate which is sought to be relied

upon by the Petitioner shows Respondent No. 3 to be a permanent

resident of „Mechi Zone, Jhapa District, Budhabare Village

Panchyat Ward No. 5.‟ The Petitioner, more than anyone else,

would have realised that the said statement regarding the permanent

residence of Respondent No.3 was on the face of it unbelievable

and improbable. It rendered the said certificate of doubtful

authenticity. Being active in politics in Sikkim, and admittedly

being a political rival of Respondent No. 3 it was within the

knowledge of the Petitioner that Respondent No.3 was for several

years a permanent resident of Sikkim at least from 1985 when

Respondent No.3 was continuously elected to the Legislative

Assembly and since 1994 when he became the Chief Minister. It is

absurd to imagine that Respondent No.3 would in 1994 when he

became Chief Minister of Sikkim seek Nepali citizenship. When

such a document as the purported Citizenship Certificate was given

to him the Petitioner ought to have doubted its genuineness himself.

He did not bother to make any further inquiry and straightway

presumed that the document was a genuine one. This is plain from

the language used in the complaint dated 9 th June 2008 addressed to

the MHA. The document of Nepali Citizenship as produced by the

Petitioner renders it inherently improbable and unbelievable and

this was definitely to the knowledge of the Petitioner himself. This

could never have been the basis of a complaint against Respondent

No. 3 questioning his qualification to continue as the Chief Minister

of Sikkim.

28. Thirdly, the factual report dated 29th January 2009 of the DC

has found the said document to be fake and bogus. The relevant

portion of the said report reads:

"6. It is pertinent to mention here that the so-called Citizenship Certificate enclosed with the complaint does not even mention the date of issue of the certificate. It is surprising how such an important document like Citizenship Certificate would not have the date of issue mentioned in it. This casts an aspersion on the genuineness and authenticity of the Certificate and proves that the Certificate is fake and bogus."

29. As regards the Population Certificate, the dated indicated is

2065/1/15 B.S. which corresponds to 27th April 2008. It states that

it has been conferred to the "house of Binita Rai." Respondent No.

3 has categorically stated that there is no „Binita Rai‟ in his family.

The said Certificate refers to one „Binita Chamling‟ as being the

daughter-in-law of Respondent No.3 and the wife of Shri Bishal

Chamling, son of Respondent No. 3. The counter affidavit of

Respondent No. 3 categorically states that Bishal Chamling married

Roshna Gurung in 1997. Further, the Petitioner has not been able to

deny the averment of Respondent No.3 that the dates of birth of

each of the persons mentioned in the Certificate is demonstrably

erroneous.

30. Again the Population Certificate appears to be of doubtful

authenticity and riddled with errors. It can hardly constitute the

basis for a complaint against Respondent No. 3 as regards his

Indian citizenship. The report of the DC is categorical that the

Population Certificate is "fictitious and cannot be relied upon." It

holds that "it is established beyond doubt that the documents

produced by the complainant are false, baseless and concocted."

31. Although the Petitioner sought to dismiss the report of the DC

as being unreliable, the Petitioner failed to disclose in his petition,

and did not deny in his rejoinder, that the said report was on the

basis of the representation made by him to the ECI on 17 th

November 2008 seeking the deletion of names of Respondent No. 3

and his family members from the electoral rolls of 11-Namchi

Singhithang Assembly Constituency Assembly. The Petitioner

never challenged the rejection of his representation based on the

said factual report of the DC.

32. Learned Senior counsel for Respondent No. 3 is right in his

submission that it is not any and every complaint which can

become the subject matter of inquiry by the Central Government

under Rule 2 of Schedule III to the Citizenship Rules, 1956. The

complaint must have some substance and be based on documents

that are prima facie reliable. In other words, when the documents

which form the basis of the complaint are of inherently doubtful

validity the central government would not be obliged to act upon

such complaint in terms of Section 9 (2) CA read with Schedule III

to the Citizenship Rules, 1956. In any event the MHA did call for

inputs from not only the state government but security agencies as

well. The Petitioner may be justified in his grievance that the MHA

ought to have informed him of the status of his complaint.

However, the unreliability of the documents forming the basis of

the complaint does not justify the issuance of any direction to the

MHA to undertake any fresh enquiry.

Claim of the Petitioner even otherwise untenable

33. There is another factor which renders the claim of the Petitioner

untenable. The Petitioner does not deny that the name of

Respondent No. 3 figures in the SSR and that by virtue of the SCO

he automatically became a citizen of India with effect from 26th

April 1975. Given the fact that Respondent No.3 has been

repeatedly elected to the Sikkim State Legislative Assembly since

1985 and has been the Chief Minster for three consecutive terms

since 1994, it is highly unlikely that Respondent No. 3 would in

1994 voluntarily acquire Nepali citizenship stating that he was a

permanent resident of Nepal.

34. The Petitioner filed this petition describing himself as "an

educated farmer". He has failed to explain why he suppressed the

fact that he is a member of the BJP and had contested on the party

ticket the elections to the Legislative Assembly of Sikkim in 2004

and 2009. Importantly he suppressed the fact that he contested

against and lost the election to Respondent No.3 in 2009. The

Petitioner also suppressed the fact that he made a representation

dated 17th November 2008 to the ECI seeking deletion of the names

of Respondent No.3 and his family members from the electoral

rolls and that the said representation was rejected after an enquiry

by the DC. The Petitioner also suppressed the fact that in the 2009

elections to the Legislative Assembly of Sikkim the Petitioner

unsuccessfully challenged before the Returning Officer the

nomination of Respondent No.3 on the ground that he was not a

citizen of India. This objection was overruled by a detailed order of

the Returning Officer which the Petitioner did not challenge.

Conclusion

35. In the above circumstances, this Court finds substance in the

contention of Respondent No. 3 that the complaint dated 9 th June

2008 was made by the Petitioner for gaining political mileage. For

a person active in politics in Sikkim, and presumably a public

figure, the Petitioner was expected to act responsibly in activating

the legal processes. The documents forming the basis of the

Petitioner‟s complaint questioning the Indian citizenship of

Respondent No.3 were inherently unreliable. Coming as it did from

the Petitioner the complaint dated 9th June 2008 could not have

been and indeed was not ignored. However, it resulted in an

avoidable waste of precious public resources in examining its

tenability.

36. Since the writ petition is on merits found to be without

substance, it is not necessary for this Court to decide the

preliminary objections as to its maintainability. This Court holds

that no ground has been made out by the Petitioner for the grant of

the relief prayed for. The writ petition and the pending application

are dismissed.

S. MURALIDHAR, J MARCH 15, 2011 ak