THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 8th July, 2022
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SINGLE BENCH : THE HON‟BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.33 of 2020
Petitioners : Bhim Bahadur Kami and Others
versus
Respondents : State of Sikkim and Others
Application under Article 226 of the Constitution of India
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Appearance
Mr. J. B. Pradhan, Senior Advocate with Mr. D. K. Siwakoti, Ms.
Prarthana Ghataney and Mr. Bhusan Nepal, Advocates for the
Petitioners.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Thinlay
Dorjee Bhutia and Mr. Yadev Sharma, Government Advocates and
Mr. Sujan Sunwar, Assistant Government Advocate for the State-
Respondents No.1 to 4.
Mr. Jushan Lepcha and Mr. Chewang Norbu Bhutia, Advocates for
Respondent No.5.
Mr. Jorgay Namka, Legal Aid Counsel with Mr. Simeon Subba,
Advocate for Respondent No.6.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Petitioners are aggrieved by the impugned Order
dated 17-12-2019 issued by the Additional District Magistrate-cum-
Additional District Collector, Headquarters, East District, at
Gangtok (Respondent No.3), in COI Case No.27/DM/East of 2018
(Nim Pincho Bhutia vs. Bhim Bahadur Kami), whereby the
Certificate of Identification (COI) issued to each of the Petitioners
was cancelled. The Judgment/Final Order dated 13-10-2020,
issued by the Appellate Authority, Land Revenue & Disaster
Management Department (Respondent No.2), upheld the impugned WP(C) No.33 of 2020 2 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Order supra in Appeal Case No.01 of 2020. The Petitioners are
before this Court, assailing both.
2(i). A brief factual narrative is essential for a just
determination of the matter. The Petitioners claim to be
descendants of one Late Gumaney Kami and his wife Late Echu
Maya, the Petitioner No.1 being the son of the said persons, while
the Petitioners No.2 to 6 claim to be their grandsons, being the
sons of the Petitioner No.1. Gumaney Kami undisputedly was a
Sikkimese, holding a Sikkim Subject Certificate (SSC) bearing
Sikkim Subject Register Serial No.32, Volume Number II, under
Block Sajong, issued on 06-11-1967. As per the Petitioners,
around 1943-44, Gumaney married Echu Maya and from the
wedlock had four sons and two daughters. From the four sons, two
passed away while the youngest son lives in Tadong, Gangtok, the
Petitioner No.1 is the other son. That, Gumaney Kami was a
Scheduled Caste of the Sikkimese Nepali community known
variously by the surnames of „Biswakarma‟, „Lohars‟ or „Sunars‟.
That, „Kamis‟ also have several „Thars‟ (sub-castes) and Gumaney
Kami belonged to the „Rasaily‟ (sub-caste).
(ii) The Petitioner No.1 said to be an illiterate villager and
a Blacksmith by profession applied for a COI in the year 1998
which was issued to him being COI No.2147/DC/E, dated 06-10-
1998, by the Respondent Authorities on the recommendation of the
Gram Panchayat and Police verification, as mandated by the
relevant Notification. Based on the COI of the Petitioner No.1,
COIs were issued to the Petitioners No.2, 3 and 6 on 30-08-2006
and Petitioners No.4 and 5 on 31-08-2006. That, on 24-12-2007,
the Petitioner No.4 lost his official documents including the COIs of WP(C) No.33 of 2020 3 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
all the Petitioners upon which he immediately lodged an FIR in the
Sadar Police Station and the concerned Authorities reissued COIs
to the Petitioners on 27-12-2007 on their request.
(iii) That, on 29-08-2018 the Respondent No.5 and on 04-
09-2018 the Respondent No.6, filed Complaints, respectively,
against the Petitioner No.1 alleging that the Petitioner No.1
fraudulently obtained his COI. A single case based on the two
Complaints was evidently registered by Respondent No.3 against
the Petitioner No.1, being COI Case No.27/DM/East of 2018 and on
11-10-2018 the Petitioner No.1 was summoned to appear before
the Respondent No.3 on 24-10-2018. The Petitioner No.4
represented Petitioner No.1 before Respondent No.3. A copy each
of the written Complaints were allegedly not made over to him nor
was he afforded an opportunity to file his response thereof. The
Respondent No.3 after examining witnesses at a "Panchayat Ghar"
which he visited personally for the said purpose, issued the
impugned Order, dated 17-12-2019 cancelling the COIs of all the
Petitioners with the observation inter alia that the Petitioner No.1
had fraudulently acquired his COI by misleading the Office of the
Additional District Collector/District Collector, East. Aggrieved
thereof, the Petitioner No.1 was before the Appellate Authority with
an Appeal on 16-01-2020. The Appellate Authority vide its
impugned Judgment/Final Order dated 13-10-2020, upheld the
impugned Order dated 17-12-2019.
(iv) It was the further case of the Petitioners that in
WP(PIL) No.06 of 2015 (Biraj Adhikari vs. State of Sikkim and Others)
filed before this Court and registered on 28-09-2015, an allegation
of 31,188 fake cases of COI in the State was made by the WP(C) No.33 of 2020 4 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Petitioner and he sought an enquiry and cancellation of the fake
COIs. A Commission headed by Hon‟ble Mr. Justice Malay
Sengupta (Retired) was constituted by the State Government, on
the Orders of this Court inter alia to enquire into allegations of
issuance of doubtful/fake COI and submit its Report within three
months from the date of constitution of the Commission. In the
PIL, the State-Respondents filed an Affidavit specifying the manner
in which the scrutiny would be carried out. Pursuant thereto on
scrutiny by the Commission, the COI of the Petitioner No.1 Bhim
Bahadur Biswakarma Kami was "verified and found correct".
However, the Respondents No.2 and 3 while passing the impugned
Orders completely ignored the findings of the Final Report of the
Commission dated 18-08-2018 which was duly accepted by the
State Government on 27-09-2018 and submitted before this Court
on 02-11-2018 in the said PIL giving it a closure. Hence, the
prayers in the Writ Petition to issue a Rule calling upon the
Respondents to show cause as to why;
(a) A writ or order or directions or declaration in the nature of Certiorari or any other appropriate writ should not be issued declaring the impugned orders dated 17.12.2019 [Annexure P-9] passed by the Respondent No.3 and 13.10.2020 (Annexure P-10) passed by the Appellate Authority (Respondent No.2) cancelling the COIs of the petitioners to be illegal, arbitrary, erroneous, perverse, bias, in violation of the principles of natural justice, against the law and without any jurisdiction or authority of law.
(b) A writ or order or direction or declaration in the nature of Mandamus or any other appropriate writ should not be issued declaring that the COI of Petitioner No.1 having been in the list of 31,188 doubtful cases of COI of East District at serial no.5354 and having been enquired into and verified by the Commission headed by the retired Judge of this Hon‟ble Court Hon‟ble Mr. Justice Malay Sengupta (retd) vide the Final Report dated 18.08.2018 and accepted by the State Government on 27.09.2018 and filed before this Hon‟ble Court in WP(PIL) No.06 of 2015 in the matter of Biraj Adhikari versus State of WP(C) No.33 of 2020 5 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Sikkim and Others, to be legal and valid in terms of the Final Report and not to interfere with the same.
(c) Issue an appropriate Writ, Order or Direction declaring the inquiry conducted by the Respondent No.3 Additional District Magistrate, HQ to be illegal, against the rules and Government Notifications Annexure P-2, P-3, P-4, P-5 and without jurisdiction and authority of law.
(d) A writ or order or directions or declaration in the nature of Mandamus or any other appropriate writ or order or direction should not be issued declaring that the Petitioners under the law are entitled to the COIs issued to them by the Respondent No.4.
(e) A writ or order or directions or declaration in the nature of Prohibition or any other appropriate writ, order or direction should not be issued prohibiting the official Respondents No.1, 2, 3 and 4 their servants and agents from further enquiring into the COIs of the petitioners, on the basis of the said complaints of Respondent No.5 & 6, in view of the enquiry, scrutiny, verification already conducted by an independent Agency namely, the Commission headed by the retired Judge of this Hon‟ble Court which has found the COI issued to the Petitioner No.1 to be "verified and found correct" vide their „Final Report‟ dated 18.08.2018 filed before this Hon‟ble Court on 01.11.2018 by the State Government in WP(PIL) No.06 of 2015 in the matter of Biraj Adhikari versus State of Sikkim and Others.
(f) Pass an ad interim ex-parte order staying further operation of the impugned orders dated 17.12.2019 [Annexure P-9] passed by the Respondent No.3 and 13.10.2020 (Annexure P-10) passed by the Appellate Authority (Respondent No.2) cancelling the COIs of the petitioners as the said order is yet to be executed and to restrain the official respondents from giving further effect to and acting in terms of the said impugned orders.
(g) And upon cause or causes that may be shown and after hearing the parties as well as on perusal of records be pleased to make the Rule absolute and / or pass such other further order / orders as this Hon‟ble Court may deem fit and proper in the interest of justice.
3. Respondents No.1, 2, 3 and 4 contested the Petition
and in a joint return averred that Respondent No.5 in her
Complaint alleged that many fake COIs had been issued to
individuals claiming to be descendants of Gumaney Kami, while the
Respondent No.6 claimed that the Petitioner No.1 had fraudulently
acquired COI for himself and his sons claiming to be the son of WP(C) No.33 of 2020 6 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Gumaney Kami. That, copies of the Complaints were made over to
the Petitioner No.1 and in order to ensure a fair trial, on 24-09-
2019 accompanied by the Court Peshkar, Respondent No.3 visited
the "Panchayat Ghar" at Sajong, East Sikkim and examined the
local public and senior citizens of the area. That, the Petitioner
No.1 fraudulently obtained Panchayat recommendation in the year
1998 from Naitam-Nandok Gram Panchayat on a misrepresentation
of facts. The Panchayat which in the first instance lacked
jurisdiction to issue the recommendation as Gumaney Kami‟s name
was recorded under the Sajong Block and not under Naitam-
Nandok. That, the Petitioner No.1 is not the son of Gumaney Kami
as neither his nor his mother‟s name are found to be recorded in
the Register of Sikkim Subjects Certificate. That, the Writ Petition
thereby deserves a dismissal.
4. Respondent No.5, a Panchayat President in Sajong
Ward, East District, in her response averred that she came to learn
that the Petitioners had procured fake COIs, on the basis of queries
made to the previous Panchayat Members who informed her that
they had never issued any recommendation for issuance of COI in
favour of the Petitioners. It thus transpired that the Petitioners
had fraudulently procured the COIs which bore variations in the
names and titles of the Petitioners. While Petitioner No.2 and the
Petitioner No.6 have an age gap of almost 13 years between them,
but have all applied for COIs on the same day. That, there were
no independent identifiers of the Petitioners during the
preparations of the COI and the daughters of the Petitioner No.1
evidently had no COIs. The SCC records do not bear the name of
the Petitioner No.1 and only the names of two daughters of WP(C) No.33 of 2020 7 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Gumaney Kami were found recorded therein, thus the Writ Petition
being without merit deserves a dismissal.
5. The Respondent No.6 who belongs to Swayem, North
Sikkim, in his Counter-Affidavit stated that he gathered information
along with Respondent No.5 to the effect that the Petitioners had
fraudulently represented themselves as legal heirs of Late
Gumaney Kami and procured two sets of fake COIs. That, records
reveal that one Kaziman Kami resident of Sajong Block had two
sons, namely, Chabilal Kami and Gumaney Kami. Gumaney Kami
in turn had two family members, namely, Suk Maya Kamini born
on 09-03-1954 and Birda Maya Kamini born on 09-10-1960 whose
names are reflected in the SSC Register under Block Sajong.
Gumaney Kami in fact lived with a widow and her five children
from her previous marriage, thus the Petitioner No.1 not being the
son of Gumaney Kami had impersonated himself as such and
obtained a COI in 1998. Based on this fake COI, the Petitioners
No.2 to 6 illegally obtained COIs by misleading the concerned
Authorities. The grounds set out in the Writ Petition being
untenable it deserves to be dismissed.
6. Rejoinders were filed by the Petitioners to the Counter-
Affidavits of all the Respondents wherein it was inter alia averred
that the Complaint of Respondent No.5 was only to the extent that
many fake COIs had been issued to individuals claiming to be
descendants of Gumaney Kami but there was no specific or direct
allegation against the Petitioners. That, Respondent No.6 was not
a resident of the area and had no personal information about
Gumaney Kami. That both Respondent No.5 and Respondent No.6
in their Affidavits failed to disclose their source of information. WP(C) No.33 of 2020 8
Bhim Bahadur Kami and Others vs. State of Sikkim and Others
7(i) Learned Senior Counsel for the Petitioners drew the
attention of this Court to the Government Notification No.66/
Home/95, dated 22-11-1995. It was contended that the
Respondents have agitated the contention that the Petitioner No.1
had obtained his COI on the basis of the recommendation from the
Naitam-Nandok Gram Panchayat whereas the name of Gumaney
Kami, on the basis of whom the COIs were obtained, was recorded
in Sajong. It was urged that in fact the concerned Notification
does not specify that the Panchayat recommendation is to be
obtained from a particular Panchayat Block therefore the
Petitioners obtained the recommendations from the Panchayat of
the area of which they were residents. Besides both Naitam-
Nandok and Sajong fall under the East District and no error
emanates in the issuance of the COIs by the East District Authority
under whose jurisdiction both the above mentioned Gram
Panchayats fall. The COI issuing Authorities also raised no
objection in this context at the time of issuance of the COIs. That,
the Notification dated 22-11-1995 (supra) was partially amended
on 27-09-1996 vide Notification No.57/Home/96 where inter alia
the words "after proper police verification" in Paragraph 1 were
inserted after the words "with such recommendations". Thus,
pursuant to the above modification, in addition to Panchayat
recommendation, Police verification was also required for obtaining
COI. The Notification did not mention the particular branch of the
Police Department to which the task of such verification was
entrusted, all that the Notification required was verification by the
Police, irrespective of the branch. That, in the Petitioners‟ case,
the Special Branch of the Police Department had carried out the WP(C) No.33 of 2020 9 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
verification and submitted their report to the Authorities issuing the
COI, who on due consideration of the report along with the
Panchayat recommendation, issued the COI to the Petitioners No.1
to 6. That, when the Special Branch undertook the verification,
they were aware that Gumaney Kami was from Sajong and that
the Panchayat recommendation had been obtained by the
Petitioner No.1 from Naitam-Nandok Block, which the Police did not
consider irregular or erroneous. No reasons have been forwarded
by the Respondents No.5 and 6 or for that matter by the State-
Respondents as to why the verification of the Special Branch of the
Police Department, a State Agency, should be disbelieved at this
juncture when it was considered valid at the relevant time of
issuance of COI. Further, on the loss of the COIs the documents
were reissued to the Petitioners No.1 to 6 on 27-12-2007 without
any qualms or allegations of fraud. Learned Senior Counsel also
sought to clarify that the Petitioner No.1 in the year 2011 obtained
his Aadhaar Card, where his date of birth is recorded as "10-02-
1949" which is his actual date of birth, which was erroneously
shown as "39 years" in the year 1998 instead of "49 years". The
error occurred for the reason that the Petitioner is an illiterate
villager.
(ii) That, the Respondent No.5 alleged that there was
variation in the titles of the Petitioner No.1 and his alleged
progeny, as their surnames were variously recorded as „Kami‟,
„Biswakarma‟, „Rasaily‟. It was urged that „Kamis‟ are also known
as „Biswakarma‟, „Lohar‟ or „Sunar‟ and use surnames
interchangeably which has withstood the test of the Panchayat
recommendation and Police verification. The allegation of the WP(C) No.33 of 2020 10 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Respondent No.5 is thus erroneous, presumably based on lack of
knowledge. That, given that Respondent No.5 is only 42 years of
age it is unbelievable that she was aware of the facts as given in
her Counter-Affidavit. In the verification clause she has stated that
the contents of her Counter-Affidavit are true to the best of her
knowledge without disclosing the source of her information.
(iii) That, the Respondent No.6 is a resident of Swayem,
North Sikkim, but set out maliciously to gather information about
Late Gumaney Kami who hailed from Sajong Rumtek in the East
District, which indicates his mala fides. The Respondent No.6 is
aged about 32 years, but he claims to have knowledge of the
alleged fact that Gumaney Kami was born in 1925, had a younger
brother and left his native village at around 45 years of age in
search of work and stayed at Bhusuk Busty, Sikkim where he
subsequently died. He has not revealed his source of information.
That, such facts cannot be to his knowledge. It was alleged by the
Respondent No.6 that many others have obtained COI
impersonating themselves as the sons of Gumaney Kami when
such facts have no relevance to the instant Writ Petition.
(iv) It was next contended that a perusal of the impugned
Order dated 17-12-2019 nowhere divulges that Respondent No.3
had made over a copy each of the Complaints to the Petitioner
No.4 to enable him to effectively defend the Petitioner‟s case
thereby casting aside the principles of natural justice. The
Petitioner No.4 who appeared on behalf of the Petitioner No.1 was
not even represented by a Counsel which fact was ignored by
Respondent No.3 who passed the impugned Order without
considering that the documents of the Petitioner No.1 had already WP(C) No.33 of 2020 11 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
passed the dual tests of Panchayat recommendation and Police
verification and instead relied on the unsubstantiated allegations of
Respondents No.5 and 6, with no new facts brought to the fore by
them. That, the Counter-Affidavit filed by the State-Respondents
indicates that Gumaney Kami was born in the year 1925 and the
names of his daughters are also recorded in the same document
(Annexure R4/4) thereby providing proof of his marriage contrary
to the allegation of Respondent No.6 that he was unmarried. The
Respondent No.3 categorised the Petitioner‟s octogenarian witness
as unreliable on grounds that he fumbled with facts, however his
statement to Respondent No.3 regarding ownership of land by
Gumaney Kami at Sajong was substantiated by Annexure P19,
which revealed such ownership, thus proving the bias attitude of
Respondent No.3 who for his part exceeded his jurisdiction by
threatening to penalize the witness, for collusion with the
Petitioners, when such collusion was not established. That, the
Respondent No.3 also acted beyond his jurisdiction in visiting the
"Panchayat Ghar", at Sajong on 24-09-2019, to examine witnesses
when no such procedure is contemplated in the Notifications
pertaining to issuance of COI. Respondent No.3 could not act as
an Investigator, Prosecutor and the Judge in the matter while at
the same time affording no opportunity to the Petitioner to cross-
examine the witnesses thereby revealing malice in law. The
evidence of all four witnesses examined by Respondent No.3 are
unreliable as according to them Gumaney Kami had no landed
property which is belied by Annexure P19. That, the other
witnesses examined by Respondent No.3 sought to prove that
Gumaney Kami was unmarried and had no landed property all of WP(C) No.33 of 2020 12 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
which are belied by documentary evidence which establishes to the
contrary. That, these circumstances are indicative of the mala
fides of the Respondent No.3 amounting to legal malice. Reliance
on this aspect was placed on State of A. P. and Others vs. 1 Goverdhanlal Pitti .
(v) It was also contended that the impugned Order reflects
that the former Panchayat Members of Gnathang denied having
issued the recommendation but Annexures R6/20 and R6/21
wherein the Panchayat had stated that their signatures obtained on
the residential/declaration certificate was forged reveals that a
copy of the forged document was enclosed. This information in
fact pertained to one Shri Sundas but the document said to have
been enclosed was concealed by Respondent No.3, indicating mala
fides and false implication of Petitioner No.1 in the case.
(vi) In the final leg of his arguments, Learned Senior
Counsel contended that a WP(PIL) 06 of 2015 was filed by one
Biraj Adhikari for reasons already elucidated (supra). The State-
Respondents No.1 to 3 therein by filing Affidavit dated 16-04-2016
inter alia specified the manner in which they proposed to verify the
alleged COIs. A Commission headed by Hon‟ble Shri Justice Malay
Sengupta (Retired) for the above purpose was constituted by the
State Government. The Commission duly submitted its Final
Report wherein it was found that the COI of the Petitioner No.1
was also included in 31,188 fake cases of COI and found mention
at Serial No.755 , at Page 48 as established by Annexure P12. The
COI of Petitioner No.1 having thus been subjected to verification, in
the „Remarks‟ column it was recorded as "verified and found
1 (2003) 4 SCC 739 WP(C) No.33 of 2020 13 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
correct". The Additional District Collector, Respondent No.3 vide
letter dated 01-08-2018, Annexure P11, forwarded the final report
of verification conducted by the Commission, to the Secretary,
Land Revenue and Disaster Management Department, Respondent
No.2. The Report was accepted by the State Government and filed
before this Court on 02-11-2018 in the said PIL.
(vii) That, now the matter having been given a closure is
being re-agitated on Complaints against the Petitioners based on
envy, on the success of the Petitioner No.4, presently the
Panchayat President of 51 Kyongnosla Gram Panchayat Unit from
where he has been Panchayat President for two terms from the
year 2012 till date. Thus, the Petitioners‟ rights guaranteed under
Articles 14 and 21 of the Constitution of India have been violated
due to a departure from the due process of law. That, the
impugned Order dated 17-12-2019 is bad in law as the principles
of natural justice have not been complied with, the Petitioners
having been deprived of an opportunity to put forth their case or
cross-examine witnesses examined by Respondent No.3. That, the
findings in the impugned Order that the Petitioner No.1 is not the
natural or biological son of Late Gumaney Kami is devoid of any
evidence. That, the impugned Orders dated 17-12-2019 and 13-
10-2020 are manifestly erroneous passed without jurisdiction,
illegal and not in consonance with the Rules and Government
Notifications governing the same, hence, the prayers in the Writ
Petition be granted.
8. Learned Additional Advocate General repudiating the
contentions supra, reiterated the facts as narrated in the Counter-
Affidavit and urged that the Notification of the Home Department WP(C) No.33 of 2020 14 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
bearing No.119/Home/2010, dated 26-10-2010, provides that; the
Authority issuing the COI is also authorized to cancel it, if it has
been obtained by misrepresentation or suppression of material
facts. An appeal lies to the Secretary, Land Revenue and Disaster
Management Department, for redressal within one month of
cancellation or refusal to grant COI. That, Annexure P10 the
impugned Judgment/Final Order dated 13-10-2020 reveals that the
Petitioners only sought for a "stay of the operation" of the
impugned Order dated 17-12-2019 and maintenance of status quo
on the COIs of the Petitioner No.1 and his sons. No prayer was
made against the order of cancellation of the COI, hence on this
count the Petitioners are required to exhaust the remedy of the
Appellate Forum before approaching this Court. In this context,
reliance was placed on the Judgment of this Court in The Gangtok 2 Municipal Corporation vs. Union of India and Others and,
Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal3.
Learned Additional Advocate General also placed reliance on Hari
Vishnu Kamath vs. Ahmad Ishaque and Others4. That, the Petitioners
in the prayers in their Writ Petition also did not seek the setting
aside of the impugned Orders dated 17-12-2019 and 13-10-2020.
That, when such prayers have not been included in the Petition by
the party then the Court cannot grant reliefs which are not sought
for. In this context, reliance was placed on Krishna Priya Ganguly
etc. etc. vs. University of Lucknow and Others etc. 5.
9. While also reiterating the averments made in his
Counter-Affidavit Learned Legal Aid Counsel for the Respondent
2 WP(C) No.38 of 2019 decided on 22-10-2021 3 (2014) 1 SCC 603 4 AIR 1955 SC 233 5 AIR 1984 SC 186 WP(C) No.33 of 2020 15 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
No.6 contended that six families have made the COIs from
Gumaney Kami, but each family is unknown to the other. When
the COI was issued to the Petitioner No.1 the first recommendation
was obtained from the Naitam-Nandok Block Panchayat, whereas
the other Petitioners obtained the recommendations from
Gnathang Gram Panchayat which renders the act suspicious. That,
Annexure R6/19 reveals that the Petitioner No.1 had nine children
wherein some have applied for COI and others have not, this too
raises doubts about the Petitioners and their origins. That,
discrepancies found in the documentary evidence are alarming in
nature and therefore it is clear that the Petitioners have not come
with clean hands. That, the recommendation and the verification
for the purpose of granting COI to the Petitioners was erroneous.
He further submits that Annexure R6/40 which is the list of
doubtful cases of COI also bears the name of the Petitioner No.1 at
Serial No.5354 and the Petitioners No.2 to 6. That, when the list
was prepared the Petitioners No.2 to 6 had not obtained their
COIs, but it was obtained by them on 30-08-2006 and 31-08-2006.
10. Learned Counsel for the Respondent No.5 endorsed the
submissions made by Learned Additional Advocate General and
Learned Legal Aid Counsel for the Respondent No.6 and had no
submissions to further augment the above.
11. In rebuttal, Learned Senior Counsel for the Petitioners
while contesting the claim of the Learned Additional Advocate
General that Writ Petition cannot be filed without exhausting the
statutory forum placed reliance on S.J.S. Business Enterprises (P) Ltd.
vs. State of Bihar and Others6. While repudiating the submission of
6 (2004) 7 SCC 166 WP(C) No.33 of 2020 16 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Additional Advocate General that there was no prayer for setting
aside the impugned Order of Respondent No.3, strength was drawn
from the ratio in Union of India and Others vs. Tantia Construction 7 Private Limited which laid down the principles for interpretation of
a document, that the document is to be read holistically. Reliance
was also placed on B. K. Muniraju vs. State of Karnataka and Others8
on this count. It was urged that the grounds set out in the Writ
Petition all seek setting aside of the impugned Order of the
Additional District Collector. Placing reliance on Lt. Governor, Delhi
and Others vs. HC Narinder Singh9 and State of Andhra Pradesh and
Others vs. Chitra Venkata Rao10 it was argued that the Petitioners
cannot be penalized twice as the verification conducted by the
Police and by a Commission comprising of a retired High Court
Judge established the bona fides of the Petitioners and was
accepted by the Government, which Respondent No.3 ignored
while issuing the impugned Order dated 17-12-2019.
12. Having heard the Learned Counsel for the parties in
extenso, perused all averments and documents and citations made
at the Bar, the question that requires consideration by this Court
is;
(i) Whether the impugned Order dated 17-12-2019 passed by the Respondent No.3 cancelling the COIs of the Petitioners and the impugned Judgement/Final Order dated 13-10-2020 passed by the Respondent No.2 upholding the impugned Order of Respondent No.3 are illegal, arbitrary, erroneous, without jurisdiction and in violation of the principles of natural justice?
7
(2011) 5 SCC 697 8 (2008) 4 SCC 451 9 (2004) 13 SCC 342 10 (1975) 2 SCC 557 WP(C) No.33 of 2020 17 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
13. In the first instance, it is relevant to recapitulate that in
exercise of its extraordinary power of superintendence and/or
judicial review under Articles 226 and 227 of the Constitution of
India, the High Courts restrict interference to cases of patent error
of law which goes to the root of the decision; perversity or
unreasonableness; violation of the principles of natural justice, lack
of jurisdiction and usurpation of powers or if the conclusion made
by the authorities on the very face of it is wholly arbitrary or
capricious that no reasonable person could have arrived at such a
conclusion or grounds very similar to the above. In Shri Ambica
Mills Co. Ltd. vs. Shri S. B. Bhatt and Another11 it was propounded that
it is well-settled that a Writ of Certiorari can be issued not only in
cases of illegal exercise of jurisdiction but also to correct errors of
law apparent on the face of the record. It is not the function of the
High Court in a Petition for a Writ under Article 226 of the
Constitution to review, re-assess or re-analyse the evidence and to
arrive at an independent finding on the evidence. On the
parameters of the principles etched out supra, the instant matter is
being examined.
14. In order to comprehend what the much disputed
Certificate of Identification (COI) is, it is relevant to clarify here
that in the erstwhile Kingdom of Sikkim under the Sikkim Subjects
Regulation 1961 certain persons domiciled in the territory of Sikkim
at the commencement of the Regulation and some others,
contingent upon certain caveats, could be Sikkim Subjects. Post
merger of Sikkim into the Indian Union a Memorandum dated 25-
09-1976 came to be issued wherein to ascertain the residential
11 AIR 1961 SC 970 WP(C) No.33 of 2020 18 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
qualification of candidates who claimed to be „locals‟, for the
purposes of employment, it was decided that the candidates should
be able to „maintain‟ whether their parents name had been
recorded on or before 15-05-1975 in the relevant Government
Register. The Government Register is presumably the Sikkim
Subject Register. Following the Memorandum of 25-09-1976,
Notifications dated 28-01-1980, 09-04-1981 and Circular dated 17-
03-1987 were issued on the subject of identification and residential
status of persons residing in Sikkim, empowering the Authorities
who were to issue domicile/residential certificate to such residents,
subject to fulfillment of conditions laid down therein. On 22-11-
1995 the State Government in supersession of all previous
Memoranda and the Circular of 1987 authorized the officials
mentioned therein to issue COI to the following categories of
persons;
1. A person whose name is found recorded in the Old Sikkim Subject Register or
2. A person whose name is not found registered in the Old Sikkim Subject Register but he/she has established beyond doubt that the name of his/her father/husband/paternal grandfather/ brother from the same father has been recorded in the Old Sikkim Subject Register or
3. A person who has or had agricultural land in rural areas and has been ordinarily residing in the State of Sikkim or
4. A person who is holder of Indian Citizenship Certificate issued by the District Collector, Government of Sikkim under the Sikkim (Citizenship) Order, 1975 as amended vide the Sikkim (Citizenship) Amendment Order, 1989 or
5. A person whose father/husband has/had been in Sikkim Government Service on or before 31.12.1969. Certificate or Identification obtained by such persons shall be for the purpose of employment only.
WP(C) No.33 of 2020 19
Bhim Bahadur Kami and Others vs. State of Sikkim and Others
It is the COIs which were issued to the Petitioners that were
under challenge before the Respondent No.3 and Respondent No.2
on Complaints filed by Respondents No.5 and 6.
15. Indubitably, Notification No.66/Home/95, dated 22-11-
1995, of the Home Department, authorized the District Collector,
Sub-Divisional Officers and Revenue Officers within their respective
jurisdiction to issue COI to the persons falling in the different
categories as detailed in the Notification, on the recommendation
of the Gram Panchayat and on the issuing authority being satisfied
with such recommendation. By a partial modification of this
Notification, by a Notification bearing No.57/Home/96, dated 27-
09-1996, the words "Sub-Divisional Officers and Revenue Officers"
were substituted by the words "Additional District Collectors". In
other words, in place of the Sub-Divisional Officers and the
Revenue Officers who were by the Notification of 22-11-1995
authorised to grant COI along with the District Collectors were
replaced by the Additional District Collectors. The modifying
Notification also inserted the words "after proper police
verification" in Paragraph 1 after the words "with such
recommendations". Henceforth, in terms of the Notification dated
27-09-1996, the authorities authorized to grant COI would be the
District Collectors and the Additional District Collectors. They were
to issue COIs to applicants on the recommendations of the Gram
Panchayat and on being satisfied with such recommendations. The
Panchayat recommendation was to be followed by proper Police
verification. Appositely, at this juncture, as pointed out by Learned
Senior Counsel for the Petitioners, the specific branch of the Police
Department which was to carry out the proper Police verification WP(C) No.33 of 2020 20 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
has not been mentioned in the Notification. Thus, the Notification
leaves it open for any branch of the Police Department to carry out
the Police verification, though it is undisputed that presently the
Police verification for such purposes are being carried out by the
Special Branch as was done by this branch also in the case of the
Petitioners. Vide a Notification dated 25-01-2006, bearing No.04/
HOME/2006, in partial modification again to the Notification dated
22-11-1995, the District Officers were authorized to issue COI only
to direct descendants of SCC/COI holders appearing in the updated
list, while all "other requests" for issuance of COI was to be
forwarded to the Head Office for consideration after completion of
field verification as usual. A Committee consisting of the Secretary,
Home Department; Secretary, Department of Personnel,
Administrative Reforms and Training (DOPART); Secretary, Law;
Secretary, Urban Housing and Development Department (UD&HD);
Secretary, Land Revenue and Disaster Management Department
(LR&DM), was constituted, who were to consider applications and
accord approval for award of COI in "other" cases.
16(i). That the Gram Panchayats were clothed with the
powers to issue recommendations for issuance of COI is not in
dispute. In this context, it may be noted that in 1992 the
Constitution (Seventy-third Amendment) Act was introduced in
Parliament and the existing Part IX was substituted. The
background in which this amendment was introduced can be culled
out from the Statement of Objects and Reasons, Paragraphs 1 and
2 thereof which read as follows;
"1. Though the Panchayati Raj institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and WP(C) No.33 of 2020 21 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.
2. Article 40 of the Constitution which enshrines one of the directive principles of State policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj institutions to impart certainty, continuity and strength to them."
(ii) Articles 243(d) and 243G of the Constitution provides
as follows;
"243. Definitions.--In this Part, unless the context otherwise requires,--
....................................................
(d) „panchayat‟ means an institution (by whatever name called) of self-
government constituted under Article 243B, for the rural areas;
.....................................
243G. Powers, authority and responsibilities of Panchayats.--Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to─ ......................................................." [emphasis supplied]
(iii) The above exercise is being undertaken to establish
that the Panchayat is a Village Level Constitutional Body and will
expectedly function as such. In the instant matter when the
recommendation of the Panchayat is given to an applicant for COI,
it is presumed that they have carried out their functions with the
responsibilities entrusted to them, without fear or favour or for that
matter ill-will. Recommendations have been issued by the Gram WP(C) No.33 of 2020 22 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Panchayat of Naitam-Nandok in 1998 to the Petitioner No.1 when
he applied for COI as he was a resident of Bhusuk, which fell under
that Panchayat Unit and by the Gram Panchayat of Gnathang in
2006 to the Petitioners No.2 to 6 who at the relevant time were
residing there. It is assumed that the Panchayat Members of the
concerned Blocks issued the recommendations on being satisfied
with the enquiries made by them or on their own knowledge. The
State-Respondents have not enlightened this Court as to how the
enquiries are made prior to issuance of Panchayat
recommendations. Patently, the Panchayat recommendation is
followed by Police verification. The Police Department is an organ
of the State Government which is entrusted inter alia with law and
order and also with setting the criminal justice system into motion.
It is assumed that when they function they have the wherewithal
to carry out the Police verification that is required by the
Notifications supra. The verification expectedly would be incisive
and conclusive. That having been said, notwithstanding such
procedure comprising of Gram Panchayat‟s recommendation and
the Police verification and the Petitioners having been found to be
Sikkimese and thereby entitled to COIs in terms of the Notification
supra, the impugned Orders were issued by Respondent No.3 and
Respondent No.2 without discussing in their Orders as to why the
recommendations and Police verification were not worth
considering and why the authorities who issued such
recommendation and verification were not reliable.
17(i). On this count, it is relevant to notice that before this
Court a Writ Petition in the nature of Public Interest Litigation was
filed on 28-09-2015 by one Biraj Adhikari seeking an enquiry into WP(C) No.33 of 2020 23 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
and cancellation of 31,180 fake cases of COI. The Writ Petition
was registered as WP(PIL) No.06 of 2015 and considered by a
Division Bench of this Court on which Notice was issued to the
State-Respondents numbering 1 to 9 therein and the Central
Government as Respondent No.10. Admittedly, the State-
Respondents in an Affidavit filed on 16-04-2016 detailed the
specifics according to which they proposed to verify the alleged
fake COIs. In Paragraph 3 of its Affidavit therein, the State-
Respondents averred as follows;
"3. It is submitted that in order to carry out the scrutiny of 31,180 doubtful cases of Sikkim Subject Certificate/Certificate of Identification, the records maintained in the District Collectors Office shall be obtained. The details mentioned by the applicants in their applications for grant of Certificate of Identification will be verified from the original register maintained in the Respondent No.3 Department. It is further submitted that from the list of 31,180 doubtful cases, if cases are found to be doubtful in the scrutiny, the same shall be referred to the concerned District Collector for further enquiry and cancellation, if necessary, in accordance with the Notification No.119/Home/2010 dated 26/10/2010.
.........." [emphasis supplied] (ii) Pursuant thereto, the Division Bench vide its Order dated 20-06-2016 observed as follows;
"15. In the above facts and circumstances, we deem it appropriate to direct the Respondents to carry out scrutiny and enquiry in the manner contained in paragraph 3 of affidavit dated 16.04.2016 (supra). And we do it accordingly. Needless to say that the District Collectors shall make enquiry strictly in accordance with law."
(iii) On 24-08-2017, the Court again ordered as follows;
"3. We have examined all the issues at length. We grant 3 (three) weeks‟ time to the State Government to consider appointment of an independent Agency under the Chairmanship of a retired High Court Judge for the purpose of verification of fake Sikkim Subject Certificates/ Certificate of Identifications and for issuance of Certificate of Identifications (COIs) in the smart card format which would contain all necessary details for instant verification." [emphasis supplied] WP(C) No.33 of 2020 24 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
(iv) This Order of the High Court was followed by a
Notification of the State Government dated 04-09-2017, bearing
No.39/Home/2017, which constituted a Commission headed by
Hon‟ble Mr. Justice Malay Sengupta (Retd.) with the following
terms of reference;
(i) It shall inquire into allegations of issue of doubtful/fake Certificate of Identification.
(ii) To recommend issuance and digitization of Certificate of Identification in the smart card format containing relevant information.
(iii) The Commission will submit its report within three months from the date of issue of the notification constituting the Commission.
(iv) The Commission may adopt its own procedure for performance of its functions.
(v) Evidently the scrutiny was carried out by the concerned
Commission which submitted its Report, dated 18-08-2018, to the
State Government. The State Government accepted the Report on
27-09-2018. In view of the Affidavit submitted by the State-
Respondents on 16-04-2016 which is extracted hereinabove, it is
safely assumed that during the process of verification the records
of the 31,180 doubtful cases of SSCs/COIs were obtained from the
Office of the District Collectors of the various Districts. It is also
presumed that the details mentioned by the applicants in their
applications for grant of COI were verified from the original
Register maintained in the Department of the Respondent No.3. It
is further presumable that as undertaken by the State-
Respondents if cases were found to be doubtful on scrutiny, in the
list of 31,180 doubtful cases they would be referred to the
concerned District Collector for further enquiry and cancelled, if
necessary, in terms of the Notification bearing No.119/Home/2010
dated 26-10-2010. That, as the Additional District Collector was WP(C) No.33 of 2020 25 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
also authorized to issue COI along with the District Collector it is
further presumed that every Additional District Collector of every
District in Sikkim was taken into confidence when the scrutiny was
undertaken and was in the know of the said exercise. In the teeth
of such Panchayat recommendations, which is, as already pointed
out, a Constitutional Authority, the Police verification and the
Report submitted by the Commission headed by no less than a
retired High Court Judge, Respondents No.1 to 4 in their joint
Counter-Affidavit, dated 20-04-2021, affirmed by Respondent
No.3, filed before this Court in the instant matter averred as
follows;
"25. That with reference to the statements contained in para 41 of the writ petition, it is vehemently denied that this answering respondents while passing of their respective impugned orders completely ignored the findings of the Final Report dated 18.08.2018 of the Commission of Hon‟ble Mr. Justice Malay Sengupta (retd.) which had been accepted by the State Government and submitted to this Hon‟ble Court in PIL of 2015. It is further denied that the Respondent No 3 also did not rely on official records of previous police verification reports and recommendation of Garm Panchayat and instead chose to rely on oral statements of the complainants respondent no.5 and 6 without any material proof or bias.
It is humbly submitted that the impugned order dated 17th December, 2019 passed by Respondent No.3 and the Order dated 13th October, 2020 passed by the Respondent No.2 was well within the parameters as set out in the facts of the case coupled with law." [emphasis supplied]
(vi) Thus, the Respondent No.3 while denying in totality
that it had not ignored the previous Panchayat Reports, Police
verification and the Report of the Commission headed by a retired
High Court Judge nevertheless failed to detail how all of the above
had been considered by him as the impugned Order dated 17-12-
2019 bears no such details of consideration. Despite the system of WP(C) No.33 of 2020 26 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
checks and balances elucidated above, the Respondent No.3 in his
lone wisdom decided to pass the impugned Order disregarding all.
It is to be noticed that the Final Report of the verification carried
out by the Commission headed by a retired High Court Judge came
to be filed before this Court on 02-11-2018 and taken on record on
03-12-2019.
18. At this juncture, it may relevantly be pointed out that
Article 215 of the Constitution reads as follows;
"215. High Courts to be courts of record.─ Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."
Thus, it is clear that Constitutional Courts being courts of
record, have the authority under its plenary jurisdiction to peruse
the orders passed by it in a previous matter to prevent miscarriage
of justice. In Supreme Court Bar Association vs. Union of India and 12 Another it was observed that a Court of record is a Court the
records of which are admitted to be of evidentiary value and are
not to be questioned when produced before any Court. That clears
the air pertaining to references made herein to the case of Biraj
Adhikari being WP(PIL) No.06 of 2015.
19. Reverting back to the Report of the Commission, as
pointed out by Learned Senior Counsel for the Petitioners,
admittedly the name of the Petitioner No.1, Bhim Bahadur
Biswakarma Kami, finds mention at Serial No.755, Page 48 of the
Final Report, submitted by the Commission on completion of its
verification. In the „Remarks‟ column against his name,
undisputedly it has been recorded as "verified and found correct".
In other words, the details with regard to the obtainment of COI by
12 (1998) 4 SCC 409 WP(C) No.33 of 2020 27 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Petitioner No.1 was verified by the Commission and found to be
correct. The Report of the Commission at Paragraph 4.1 reads as
follows;
"4.1. Therefore, it is the finding of the Commission that of the 31188 listed persons it is found that the list includes a number of unverified cases most of which may include genuine cases but on account of lack of verification by the person(s) concerned have been categorised as „reported false cases‟. The Commission thus concludes that in view of the fact that out of 8378 cases verified by the District Collectors so far, none were reported to be „fake‟ as alleged." [emphasis supplied]
In light of this circumstance, it thus stands to reason that his
verification and scrutiny of the COI of Petitioner No.1 fell within the
number of 8,378 persons whose COIs were verified his Serial being
755 at Page No.48 and his COI found to be correct. In other
words, there was no falsity in its obtainment. This Report and the
Remarks supra lends credence to the submissions of the Learned
Senior Counsel for the Petitioners that the COI of the Petitioner
No.1 on scrutiny by the Commission constituted for the purpose
was not found to be fake.
20. Despite the facts and circumstances narrated
hereinabove, it is seen that the Respondent No.5 filed a Complaint
on 29-08-2018 and the Respondent No.6 filed a Complaint on 04-
09-2018, as already detailed in the foregoing Paragraphs, against
the Petitioners when the PIL was before the Division Bench of this
Court. The Respondents No.2 and 4 herein were in seisin of the
fact of the PIL filed before this Court and in fact assisted in the
scrutiny of the alleged fake COIs in terms of the Affidavit submitted
by the State-Respondents and Respondent No.3 vide its letter
dated 01-08-2018 and forwarded the final report to Respondent
No.2. Thus, both Respondents No.2 and 3 were seemingly aware WP(C) No.33 of 2020 28 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
of the contents of the Final Report. The filing of these Complaints
and the registration of the case by Respondent No.3 was not
brought to the notice of this High Court, a Court of competent
jurisdiction.
21. The impugned Order dated 17-12-2019 of the
Respondent No.3 reflects that during the pendency of the WP (PIL)
before this Court, parallel proceedings with regard to Complaints
filed by the Respondents No.5 and 6 were being carried out
inasmuch as Respondent No.3 embarked on an examination of
witnesses on 24-09-2019. Upon disposal of the PIL on 03-12-
2019, the impugned Order dated 17-12-2019 came to be issued
followed by the impugned Judgment/Final Order dated 13-10-
2020.
22. It is settled law that parallel remedies in respect of the
same matter cannot be pursued at the same time. In State of
Andhra Pradesh vs. Raghu Ramakrishna Raju Kanumuru (M.P.)13 the
Supreme Court considered the matter in which a Writ Petition
being WP(PIL) No.241 of 2021 had been filed on 08-12-2021
before the High Court of Andhra Pradesh at Amaravati, which on
16-12-2021 directed construction activities in the concerned
Project to be undertaken strictly in accordance with the permission
accorded by the concerned Ministry. However, the Respondent had
addressed a letter to the NGT on 31-10-2021 and the NGT taking
cognizance of the letter initiated proceedings in O.A. No.361 of
2021. The NGT appointed an Experts Committee on 17-12-2021
which submitted its report on 29-03-2022 and did not find any
violation in the construction carried out by the Appellant. The NGT
13 2022 SCC OnLine SC 728 WP(C) No.33 of 2020 29 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
vide its Order dated 06-05-2022 appointed a 2nd Experts
Committee, the report of which was awaited. However, without
waiting for the Report, vide the same Order NGT directed that no
further construction was to be undertaken. It was argued on
behalf of the Appellant that the High Court of competent
jurisdiction was already in seisin of the matter, therefore, the NGT
could not have entertained a lis with regard to the same cause of
action. The Supreme Court held that it was not appropriate on the
part of the NGT to have continued with the proceedings before it,
specifically when it was pointed out that the High Court was also in
seisin of the matter and had passed the interim order permitting
the construction. It was observed that there can be no manner of
doubt that in such a situation, it is the Orders passed by the
Constitutional Courts, which would be prevailing over the Orders
passed by the Statutory Tribunals. Thus, the proceedings pending
before the Learned NGT were quashed and set aside. In Arunima
Baruah vs. Union of India and Others14 the Supreme Court referred
to the ratio in Jai Singh vs. Union of India and Others15 where it was
specifically laid down that the Court would not ordinarily permit a
party to pursue two parallel remedies in respect of the same
subject-matter. In Jai Singh (supra) the Supreme Court also
observed that after the dismissal of the Writ Petition the Appellant
had filed a suit in which he had agitated the same question which
was the subject-matter of the Writ Petition. The Supreme Court
opined that the Appellant cannot pursue two parallel remedies in
respect of the same matter at the same time.
14
(2007) 6 SCC 120 15 (1977) 1 SCC 1 WP(C) No.33 of 2020 30 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
23. Relevant reference may also be made to J. Chitra vs.
District Collector and Chairman, State Level Vigilance Committee, Tamil
16 Nadu and Others . A Writ Petition before the Supreme Court was
filed by the Appellant challenging the Order dated 09-04-2008
passed by the Chennai District Vigilance Committee cancelling her
Community Certificate. The Writ Petition was dismissed by the
High Court of Madras by a Judgment dated 22-12-2008, aggrieved
by which the Appeal was filed. The Appellant had been issued a
Community Certificate on 28-08-1992 showing that she was from
the Valluvan Community, a Scheduled Caste. A Complaint was
preferred by Dr. Ambedkar Service Association to the Office of the
Accountant General where she was employed, raising doubts about
the Community Certificate produced by the Appellant at the time of
joining service. The Appellant was directed to attend an enquiry to
be conducted by the Collector regarding the genuineness of the
Community Certificate. A Notice was issued by the District
Collector, Chennai directing the Appellant to show cause as to why
her Community Certificate should not be cancelled. The District
Collector directed the Revenue Divisional Officer to conduct an
enquiry. An enquiry was conducted by the District Vigilance
Committee after which it expressed its view that the Appellant
belongs to the said Community which is a Scheduled Caste. The
service of the Appellant was regularized in the year 2000 and she
was promoted in 2001. In the meanwhile, the said Dr. Ambedkar
Service Association submitted another representation that suitable
action should be taken against the Appellant for securing
employment as reserved category candidate on the basis of a false
16 (2021) 9 SCC 811 WP(C) No.33 of 2020 31 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Caste Certificate. The State Level Scrutiny Committee informed
the Appellant of the Complaint received and directed her to be
present for inquiry to be conducted on 24-03-2003. In the
meanwhile, the District Vigilance Committees were reconstituted by
the Government of Tamil Nadu on 06-07-2005. The State Level
Scrutiny Committee remanded the inquiry pertaining to the
Community Certificate of the Appellant to the District Vigilance
Committee on 04-01-2006. The Appellant appeared before the
District Vigilance Committee and attended the enquiry which, on
09-04-2008 cancelled the Community Certificate of the Appellant.
Assailing the Order the Appellant was before the High Court of
Madras which was dismissed by the High Court vide its Judgment.
The Supreme Court on the Appeal filed by her held that;
"10. In the instant case, an enquiry was conducted by the District-Level Vigilance Committee which upheld the community certificate in favour of the appellant. The decision of the District-Level Vigilance Committee in the year 1999 has not been challenged in any forum. The recognition of the community certificate issued in favour of the appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District-Level Vigilance Committee. The guidelines issued by G.O. No.108 dated 12-9-2007 do not permit the State Level Scrutiny Committee to reopen cases which have become final. The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry."
[emphasis supplied]
24. Similarly, in the instant case the Report submitted by
by the Commission headed by the retired High Court Judge, after
scrutiny duly assisted by the District Collectors of the various
Districts, accepted by the Government and placed before the
Division Bench of this Court in the case of Biraj Adhikari (supra) WP(C) No.33 of 2020 32 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
also attained finality as there was no challenge either to the
findings of the Commission arrived at in its Final Report or the
acceptance of it by the State Government as already discussed in
detail hereinabove and no challenge arose also to the Police
verification carried out for issuance of COIs to the Petitioners.
Thus, the Respondent No.3 did not have any jurisdiction to reopen
the matter and conduct an enquiry by himself besides being
precluded from acting as the Investigator, Prosecutor and Judge.
25. On the bedrock of the above-mentioned ratiocinations
when the Respondents No.3 and 4 being the concerned Authorities
who were also a part of the process of scrutiny and verification of
the alleged fake COI they could not have carried out parallel
proceedings when a matter was pending in the High Court. It was
in fact their bounden duty to have brought the pending Complaints
to the notice of this Court when the PIL supra was being taken up
for consideration. It is not the case of the State-Respondents that
new facts were brought out by the Respondents No.5 and 6 or that
fresh facts emerged against the Petitioners during the pendency of
the Complaints which prompted a fresh enquiry into the matter.
Verifications and re-verifications cannot be carried out repeatedly
by the concerned authorities on the same matter, for the personal
satisfaction of every disgruntled Complainant.
26. The Complaints of Respondents No.5 and 6 pivot
around the allegation that the Petitioners obtained their COIs by
misrepresentation of facts. It is relevant to notice that as pointed
out by Learned Senior Counsel for the Petitioners the Respondent
No.5 is aged about 42 years and claims to be well-acquainted with WP(C) No.33 of 2020 33 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
the facts and circumstances of the case. In the Verification clause
of her Affidavit she states as follows;
"I the abovenamed deponent do hereby states (sic) and solemnly affirm that the contents of this counter affidavit are true to best of my knowledge and my respectful submissions before this Hon‟ble Court.
I sign this affidavit on this the 1st day of July 2021 at Gangtok, East Sikkim." [emphasis supplied]
Respondent No.6 who is aged about 32 years in the
verification clause of his Counter-Affidavit states as follows;
"I, the above named deponent verify and state that the statements made in paragraphs 1, 2, 5 to 30 are true to my knowledge and belief, the statements made in paragraphs 30 to 37 are partly matters of records and partly submission, that no part of it is false and nothing material has been concealed therefrom.
Affirmed on this the 6th day of July 2021 at Gangtok."
[emphasis supplied]
27(i). On this facet, we may usefully look to the provisions of
Order XIX Rule 3 of the Code of Civil Procedure, 1908 (hereinafter,
"CPC") which provides as follows;
"3. Matters to which affidavits shall be confined.─(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.
(2) .........................................................."
(ii) In A. K. K. Nambiar vs. Union of India and Another17 a
Constitution Bench of the Supreme Court emphasized the
importance of verification and opined that importance of
verification is to test the genuineness and authenticity of
allegations and also to make the deponent responsible for
allegations. In essence verification is required to enable the Court
to find out whether it will be safe to act on such Affidavit evidence.
In the said case, it was found that the Affidavits of all the parties
suffer from the mischief of lack of proper verification with the
17 (1969) 3 SCC 864 WP(C) No.33 of 2020 34 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
result that the Affidavits would not be admissible in evidence. In
Virendra Kumar Saklecha vs. Jagjiwan and Others18 while considering
an election petition dealt with importance of disclosure of source of
information in an Affidavit. The Supreme Court held that the
importance of disclosing such source was to give to the other side
notice of the same and also give an opportunity to the other side to
test the veracity and genuineness of the source of information. In
M/s. Sukhwinder Pal Bipan Kumar and Others vs. State of Punjab and 19 Others a three Judge Bench of the Supreme Court while dealing
with Petitions under Article 32 of the Constitution of India held that
under Order XIX Rule 3 of the Code it was incumbent upon the
deponent to disclose the nature and source of his knowledge with
sufficient particulars. In a case where allegations in the Petition
are not affirmed as aforesaid, it cannot be treated as supported by
an Affidavit as required by law. In Barium Chemicals Ltd. and
Another vs. Company Law Board and Others20 a Constitution Bench of
the Supreme Court held that while answering the question as to
what were the materials placed by the appellants in support of this
case which the Respondent had to answer inter alia observed as
follows;
"(57). .......................... It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an averment of mala fides, but then where such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. .............................." [emphasis supplied]
It was further observed that slipshod verifications of
Affidavits might lead to their rejection and they should be modelled
on the lines of Order XIX Rule 3 of the CPC and where an averment
18 (1972) 1 SCC 826 19 (1982) 1 SCC 31 20 AIR 1967 SC 295 WP(C) No.33 of 2020 35 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
is not based on personal knowledge, the source of information
should be clearly deposed.
(iii) It thus concludes that if a statement of fact is based on
information the source of information must be disclosed in the
Affidavit. The Affidavits filed by the Respondents No.5 and 6
before this Court fail to pass the test of Order XIX Rule 3 of the
CPC and the tests laid down by the Supreme Court in the
ratiocinations hereinabove. It was incumbent upon the deponents
to clearly express how much of their statement of affidavit is a
statement of their knowledge and how much is a statement on
information and belief while also stating the sources and grounds
of the information or belief with sufficient particulars. An Affidavit
lacking such details cannot be accepted and no notice can be taken
of such an Affidavit, similar is the fate of the Affidavits filed by
Respondent No.5 and Respondent No.6.
28(i). Addressing the argument of Learned Additional
Advocate General that the Petitioners ought to be directed to
exhaust their alternative forum before approaching this Court for
which he placed reliance on Chhabil Dass Agarwal (supra) where the
Petitioner who was an income tax assessee, a non-Sikkimese
residing in the State of Sikkim questioned the assessment order
issued by the Assessing Officer by filing a Writ Petition. The High
Court dealt with the matter on merits and set aside the assessment
orders. The Supreme Court held that though vested with discretion
to grant relief under Article 226 of the Constitution of India despite
existence of an alternative remedy the High Court must not
interfere if an adequate efficacious alternative remedy is available
to the Petitioner unless an exceptional case warranting interference WP(C) No.33 of 2020 36 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
is made out or sufficient grounds exist to invoke extraordinary
jurisdiction under Article 226. Thus, invocation of the provision of
Article 226 of the Constitution is to be taken up inter alia when
exceptional or sufficient grounds exist to invoke the extraordinary
jurisdiction. The order of the Hon‟ble Supreme Court is not a
blanket order prohibiting an aggrieved person to approach the High
Court under Article 226 of the Constitution when a statutory
remedy is available. In this context, in Harbanslal Sahnia and
Another vs. Indian Oil Corpn. Ltd. and Others21 the Supreme Court in
a case where the High Court had taken a view that the remedy by
the way of recourse to arbitration clause was available to the
appellants and therefore the Writ Petition filed by the appellants
was liable to be dismissed, observed that the rule of exclusion of
writ jurisdiction by availability of an alternative remedy is a rule of
discretion and not one of compulsion. In an appropriate case in
spite of availability of the alternative remedy, the High Court may
still exercise its writ jurisdiction in at least three contingencies; (i)
where the writ petition seeks enforcement of any of the
fundamental rights (ii) where there is failure of principles of natural
justice or (iii) where the orders of proceedings are wholly without
jurisdiction or the vires of an act is challenged.
(ii) In Radha Krishan Industries vs. State of Himachal Pradesh 22 and Others the Supreme Court went on to state that;
"27.3. Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice;
(c) the order or proceedings are wholly without
21 (2003) 2 SCC 107 22 (2021) 6 SCC 771 WP(C) No.33 of 2020 37 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
jurisdiction; or (d) the vires of a legislation is challenged."
(iii) In Whirlpool Corporation vs. Registrar of Trade Marks, 23 Mumbai and Others the Supreme Court observed as follows;
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
[emphasis supplied]
(iv) From the facts and circumstances of the matter at
hand, it is evident that the Respondent No.3 has exercised
authority exceeding its jurisdiction, the Petitioners have also made
out a case of violation of the principles of natural justice on
account of non-furnishing of Complaints to them, lack of an
opportunity to put forth their own case and to cross-examine the
witnesses and for enforcement of fundamental rights as envisioned
under Articles 14 and 21 of the Constitution, thereby warranting
interference of this Court under its extraordinary jurisdiction under
Article 226 of the Constitution of India. It goes without saying that
the discretion to exercise the jurisdiction or not lies with the Court
and cannot be contingent upon the diktat of any party.
29. The argument of Learned Additional Advocate General
that there was no prayer for setting aside the Order of the
23 (1998) 8 SCC 1 WP(C) No.33 of 2020 38 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
Respondent No.3 and therefore the Petitioners should be sent back
to exhaust the remedy provided in the forum cannot be
countenanced as on consideration of the pleadings it emerges with
clarity that the Petitioners are aggrieved by the cancellation of their
COIs and in the „Grounds‟ pleaded by them at Paragraph (xv) of
their averments it has been specified that the impugned Orders
dated 17-12-2019 and 13-10-2020 cancelling the COIs of the
Petitioners are patently and manifestly erroneous without
jurisdiction, illegal and not in consonance with the Rules and
Government Notifications governing the same and are liable to be
quashed and set aside. The averments indeed have to be
considered holistically and not in isolation. Presumably, it is an
error in drafting whereby such prayer for setting aside the
impugned orders was not inserted in the Prayer portion or in the
prayers before the Respondent No.2. An error in drafting cannot
translate into denial of rights. On this facet, it is worth observing
that in Dwarka Nath vs. Income-tax Officer, Special Circle, D Ward, 24 Kanpur and Another the Supreme Court held that High Courts can
issue directions, orders or writs other than the prerogative writs.
It enables the Courts to mould the reliefs to meet the peculiar and
complicated requirements of this country. In M. Sudakar vs. V. 25 Manoharan and Others the Supreme Court has also held that the
power to mould relief is always available to the Court possessed
with the power to issue high prerogative writs. In order to do
complete justice it can mould the relief depending upon the facts
and circumstances of the case. In the facts of a given case, a Writ
Petitioner may not be entitled to the specific relief claimed by him,
24 AIR 1966 SC 81 25 (2011) 1 SCC 484 WP(C) No.33 of 2020 39 Bhim Bahadur Kami and Others vs. State of Sikkim and Others
but this itself will not preclude the Writ Court to grant such other
relief which he is otherwise entitled. Hence, although there may be
no specific prayer but the Court is of the opinion that to meet the
requirements and to do complete justice in the matter, the relief
can be moulded by the Court.
30. In light of the foregoing discussions it concludes that;
(i) The COIs of all the Petitioners are found to be legal, correct and valid in terms of the Final Report of the Commission headed by Hon‟ble Shri Justice Malay Sengupta (Retd.) dated 18-08-2018, submitted to the State Government on 01-09-2018 and accepted by it on 27-09-2018 and thereafter filed by the State Government before the Division Bench of this Court on 02-11-2018 in WP(PIL) No.06 of 2015.
(ii) Consequently, the impugned Order dated 17-12-2019 of Respondent No.3 whereby the COIs issued to each of the Petitioners were cancelled and the impugned Order dated 13-10-2020 of the Respondent No.2, which upheld the impugned Order of Respondent No.3 dated 17-12-2019, are set aside and quashed, both being illegal, arbitrary in violation of the principles of natural justice and lacking jurisdiction.
(iii) No further effect shall be given to the operation of the said impugned Order of Respondent No.3 dated 17-12- 2019 and of Respondent No.2 dated 13-10-2020.
31. The Writ Petition stands disposed of accordingly.
32. No order as to costs.
( Meenakshi Madan Rai ) Judge 08-07-2022
Approved for reporting : Yes ds
