Sikkim High Court
State Of Sikkim And Ors vs Sonam Tsewang Bhutia And Ors on 23 February, 2023
Bench: Hon'Ble The Justice, Meenakshi Madan Rai
IN THE HIGH COURT OF SIKKIM
CIVIL APPELLATE JURISDICTION
W.A. No.02 OF 2023
1. State of Sikkim
through The Chief Secretary,
Government of Sikkim
Tashiling Secretariat,
Gangtok, East Sikkim,
Pin No. 737101
2. The Commissioner-cum-Secretary,
Rural Management Development Department
Government of Sikkim,
Gram Vikash Bhawan,
Gangtok, East Sikkim,
Pin No.737101
3. The Divisional Engineer,
East District Zilla Panchayat,
Rural Development Department,
DAC-Sichey, East Sikkim,
Pin No. 737101
4. Block Development Officer,
Block Administrative Center,
Nandok, East Sikkim,
Pin No. 737102.
5. Panchayat President,
15-Gnathang, Gram Panchayat Unit,
Panchayat Office Near Jubilant School,
Old SNT Complex Chandmari,
Gangtok, Pin No. 737103.
Through Mr. Lobsang Penzor Bhutia,
S/o Late Tenzing Ongda Bhutia
.......Appellants
-VERSUS-
1. Mr. Sonam Tsewang Bhutia,
S/o Mr. Lobsang Wangchuk Bhutia,
R/o Gnathang GPU,
J.N. Road, East Sikkim,
Pin No. 737101.
2. Mr. Jigmee Dorjee Bhutia,
S/o Late Tashi Bhutia,
R/o Yakla Village, Gnathang GPU,
J.N. Road, East Sikkim,
Pin No. 737101.
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
3. Mr. Tenzing P. Bhutia,
S/o Late Singhi Bhutia,
R/o Gnathang GPU,
J.N. Road, East Sikkim,
Pin No. 737101.
4. Mr. Pempa Tshering Bhutia,
S/o Mr. Tshering Sangpo Bhutia,
R/o Bhojoghari, East Sikkim,
Pin No. 737101. ..... Respondents
5. Mr. Tenzing Thinlay Bhutia,
S/o Sonam Gyatso Bhutia,
R/o Kupup, J. N. Road, Gangtok,
East Sikkim, Pin No. 737102.
6. Mrs. Yangden Bhutia,
W/o Kesang Bhutia,
R/o Chandmari Gangtok,
East Sikkim, Pin No. 737102.
7. Mr. Sherap Sangpo Bhutia,
S/o Tsultrim Bhutia,
R/o Zaluk, R.N. Road, East Sikkim,
Pin No. 737102.
.....Proforma Respondents
For Appellants : Dr. Doma T. Bhutia, Senior Advocate and
Addl. Advocate General with Mr. S.K.
Chettri and Mr. Yadev Sharma, Govt.
Advocates and Mr. Sujan Sunwar, Asst.
Govt. Advocate.
For Respondents : Mr. Karma Thinlay, Senior Advocate with
No. 1 to 4 Mr. Yashir N. Tamang, Advocate.
For Respondents : None appears.
No. 5 to 7
Date: 23/02/2023
CORAM:
HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
...
J U D G E M E N T: (per the Hon'ble, the Chief Justice)
This intra-Court Mandamus Appeal arises in respect of a judgment
and order dated 02nd December, 2022, passed by a learned Single Judge
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
in W.P. (C) No. 34 of 2022 (Mr. Sonam Tsewang Bhutia & Others vs.
State of Sikkim through the Chief Secretary & Others). By the impugned
judgment and order, the learned Single Judge while allowing the writ
petition filed by four individuals, namely, (i) Mr. Sonam Tsewang Bhutia,
(ii) Mr. Jigmee Dorjee Bhutia, (iii) Mr. Tenzing P. Bhutia and (iv) Mr.
Pempa Tshering Bhutia, issued the following directions: -
"(i) The work orders as well as the contracts entered between
the State-respondents and the respondent nos. 6, 7 and 8
are quashed.
(ii) The State-respondents shall forthwith take up the remaining
work departmentally without any further delay and for that
purpose mobilize men, machinery and materials for the
remaining work of the eight tenders.
(iii) The works shall be completed as soon as possible since the
timeline envisaged is since over and the beneficiary of these
tenders must get the fruit of the works at the earliest.
(iv) The State-Government shall forthwith constitute a
committee of senior officers and experts to oversee the
completion of the works and to ensure that the works have
been done properly.
(v) The State Government shall investigate the tender process
for the eight tenders by a high level committee consisting of
Senior Officers of the Government headed by a Vigilance
Officer at the level of Director General of Police which shall
submit a report to the Chief Secretary within a period of six
months from the date of this judgment fixing the
responsibility on persons responsible for the illegal acts.
(vi) After doing so the State-Government shall realise the
monies expended from those responsible after due process
of law.
(vii) The petitioner nos. 1, 2 and 3 shall be at liberty to seek
damages for their wrongful exclusion from the tender
process before an appropriate forum."
In addition to the above directions, the learned Single Judge also
imposed cost quantified at Rupees one lakh jointly payable by the
respondents. While disposing of the writ petition, the learned Single
Judge has also issued a direction for forwarding a copy of the judgment
to the Chief Secretary, Government of Sikkim, for compliance and
necessary remedial measures.
This appeal has been preferred by the State of Sikkim, through its
Chief Secretary, along with four others, namely, The Commissioner-cum-
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
Secretary, Rural Management Development Department, The Divisional
Engineer, East District Zilla Panchayat, Rural Development Department,
The Block Development Oficer, Block Administrative Centre, Nandok,
East Sikkim and The Panchayat President, 15-Gnathang, Gram Panchayat
Unit, Panchayat Office, Near Jubilant School, Old SNT Complex,
Chandmari, Gangtok.
The learned Additional Advocate General appears on behalf of all
the appellants, being the State and its authorities as well as the
Panchayat President, 15-Gnathang Gram Panchayat Unit, being the
appellant no.5.
While making her submissions, the learned Additional Advocate
General has drawn our attention to the directions given the learned
Single Judge and submitted that even while the impugned judgment was
being rendered, most of the civil work as per the impugned work orders
was completed other than laying of pipes. She also submitted that the
question of locus standi of the writ petitioners was not taken into
consideration by the writ Court.
Learned advocate representing the respondents/writ petitioners, on
the other hand submitted that the contractors who were awarded the
work orders impugned before the learned Single Judge were related to
the appellant no.5, namely, Panchayat President, 15-Gnathang Gram
Panchayat Unit. One of the contractors was the nephew (respondent
no.5), the other being his sister-in-law (respondent no.6) and another,
his cousin (respondent no.7).
While perusing the impugned judgment together with the previous
orders passed in connection with the matter, we notice that the
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
respondents/writ petitioners had earlier approached another Division
Bench of this Court presided over by one of us (Chief Justice) on 26th
August, 2022. The following observations/directions were passed by this
Court on that day: -
"Considering the facts of the instant case, as stated earlier,
if we restrain the concerned respondents from taking any further
steps pertaining to the tender in question at this belated stage, it
will tantamount to Court's interference in stopping a public work
without even considering the entire spectrum of the facts which
are relevant and are required to be considered by the writ Court
since the writ petition is pending before the learned Single Judge.
We are of the view that the rights of the parties and the issues
raised by the appellants/writ petitioners before the writ Court are
yet to be finally adjudicated upon and any observation from this
Court may have a binding effect before the learned Single Judge,
which we are loathed to do so at this preliminary stage. We are,
however, of the view that this Intra-Court Mandamus Appeal can
be disposed of at this stage itself with an observation that the
tendering process -- which has already commenced and is about to
be completed -- shall abide by the result of the writ petition while
keeping the point of locus standi, as sought to be raised by the
learned Additional Advocate General as also the point of
maintainability of the writ petition, open, to be decided by the
learned Single Judge.
We make it clear that any observation made by us in this
order shall not be construed by the parties as a decision on the
rights of the parties in any manner, which shall be finally
adjudicated upon by the learned Single Judge in accordance with
law.
The writ appeal stands disposed of accordingly."
We, thus, notice from a plain reading of the above that the Division
Bench of this Court kept the point of locus standi as also the point of
maintainability of the writ petition open to be decided by the learned
Single Judge. The above observations/directions of the Division Bench
dated 26th August, 2022, in Writ Appeal No.04 of 2022 was final and
binding between the parties. In such a factual background we need to
examine while dealing with this appeal, whether the directions of the
Appeal Court with regard to point of locus standi and maintainability was
actually decided by the learned Single Judge while passing the impugned
judgment and order dated 2nd December, 2022.
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
It appears that in paragraph 11 of the impugned judgment, the
learned Single Judge has recorded the submissions of the respondents
with regard to the writ petitioners having no locus standi. Paragraph 11
of the impugned judgment is quoted hereinbelow:-
"11. As the respondents have vehemently argued that the
petitioners had no locus standi and therefore, this Court
ought not to consider their case on merits, the issue is taken
up first."
In paragraph 14 of the impugned judgment, the learned Single
Judge while referring to a judgment rendered by the Hon'ble Supreme
Court in; Airport Authority of India vs. Central for Aviation Policy, Safety
& Research (CAPSR) reported in; 2022 SCC OnLine SC 1334, went on to
observe as follows:-
14. In Airport Authority of India vs. Central for Aviation
Policy, Safety & Research (CAPSR) reported in2022 SCC
OnLine SC 1334, relied upon by Mr. Zangpo Sherpa the
Supreme Court noted that none of the GHA's who
participated at the tender process and/or could have
participated in the tender process have challenged the
tender condition. In the present case the petitioner alleged
that the illegal tender process adopted by the State
respondents as well as the Panchayat Sabhapati ensured
that eligible bidders had been kept out. Therefore, it could
very well be that had the petitioners not been kept out in
the manner alleged, they could have participated in the
tender process. It is averred that the petitioner no.1 and 3
belong to the Gnathang ward and the petitioner no.2 to the
Yakla Sherathang ward and all of them were Grade-IV
contractors. According to the Petitioner No.4 he is a GradeII
contractor so he may not have been eligible. It is however,
evident that the petitioner nos. 1, 2 and 3 at least did have
the locus standi to bring the present action before this
Court.
Other than the paragraph referred above, we do not find any other
discussion by the learned Single Judge on the point of locus standi of the
writ petitioners. Even on a plain reading of paragraph 14, it becomes
clear that the writ petitioner no.4 (being the respondent no.4 herein) was
found by the learned Single Judge of not having locus standi to bring the
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
action before the writ Court. In such a factual situation how the learned
Single Judge could proceed to issue mandatory directions without even
considering the maintainability of the writ petition in a scenario when all
the writ petitioners had joined together to approach the writ Court based
on a common cause of action, even while the writ petitioner no.4 was
allowed to remain as a party to the writ proceeding, cannot be
ascertained from the impugned judgment. That apart and in any event,
how four individuals -- all of whom had separate and individual cause of
action to espouse -- could have joined together and maintained a
common writ petition seeking such reliefs, just because they claimed to
be eligible to participate in the tendering process, does not appear in any
of the discussions made by the learned Single Judge in the impugned
judgment and order.
The basic challenge before the learned Single Judge was with
regard to eight work orders, all dated 29th March, 2022, which were
awarded in favour of the private respondent no. 5, 6 and 7 before this
Court, namely, (i) Mr. Tenzing Thinlay Bhutia, (ii) Mrs. Yangden Bhutia
and (iii) Mr. Sherap Sangpo Bhutia. These work orders were issued by
the office of the Block Development Officer, Block Administrative Centre,
Nandok, after decision of the Gram Sabha, Gnathang, Gram Panchayat
Unit, headed by respondent no. 5 before the writ Court (being the
appellant no. 5 herein), namely, the Panchayat Sabhapati, in its meeting
held on 14th March, 2022, on the ground that he favoured the successful
tenderers, all of whom were his relatives. These work orders related to
Rural Water Supply Scheme (RWSS) at Changu, Yakla, Sherathang,
Kupup, Gnathang, Dzuluk, Chipsu & Gnathang.
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
A bare perusal of the papers before us reveal that the writ
petitioners no. 1, 2 and 3, were eligible Government contractors residing
under Gnathang Gram Panchayat Unit, but never participated in the
tendering process. So far as writ petitioner no. 4 is concerned, he was
not even an eligible Government contractor since he was a Grade-2
contractor and was thus not even competent to participate in the
tendering process. It also appears that the writ petitioner no. 4 was a
former Panchayat, Gnathang Gram Panchayat Unit. It was the specific
allegation of the writ petitioners that the Panchayat Sabhapati (being the
appellant no. 5), was related to the private respondent no. 6,7 and 8
before the writ Court, namely, (i) Mr. Tenzing Thinlay Bhutia, (ii) Mrs.
Yangden Bhutia and (iii) Mr. Sherap Sangpo Bhutia, who were ultimately
awarded the tender by arbitrary, illegal and mala fide process. The
question, therefore, that falls for consideration in the factual backdrop of
the case as stated above is whether the writ Court could have proceeded
to issue the seven mandatory directions as stated at the outset.
It is patently evident that none of the writ petitioners before the
learned Single Judge even participated in the tendering process which
culminated in issuance of the eight work orders favouring the private
respondents no. 6, 7 and 8 before the writ Court, namely, (i) Mr. Tenzing
Thinlay Bhutia, (ii) Mrs. Yangden Bhutia and (iii) Mr. Sherap Sangpo
Bhutia. Even assuming for a moment that there was unfair process
adopted by the concerned authority while issuing the eight work orders
favouring relations of the appellant no. 5, being the Panchayat
Sabhapati; the question is, can all the eight work orders as well as the
contracts entered by the State with the three individuals, namely, (i) Mr.
Tenzing Thinlay Bhutia, (ii) Mrs. Yangden Bhutia and (iii) Mr. Sherap
Sangpo Bhutia, be quashed at the instance of the four individual
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
contractors, none of whom having even participated in the tendering
process and out of whom one was not even an eligible contractor. The
writ petition, being WP (C) No. 34 of 2022, not being in the nature of a
Public Interest Litigation, the answer to this question, for reasons stated
above, clearly lies in the negative. As such, the directions no. 1 to 4
passed by the learned Single Judge in the impugned judgment and order
cannot be sustained and is liable to be set aside and is accordingly set
aside.
So far as the fifth direction is concerned, we notice that the same
has been passed by the learned Single Judge keeping in mind the issue
of nepotism involved in respect of eight tenders in question which
culminated in issuance of eight work orders favouring the private
respondents no. 6, 7 and 8 before the writ Court, all of whom are said to
be related to the appellant no.5. They were (i) Mr. Tenzing Thinlay
Bhutia, (ii) Mrs. Yangden Bhutia and (iii) Mr. Sherap Sangpo Bhutia, who
were the only participants in the tendering process. If indeed the eight
tenders were awarded to relatives of the appellant no.5, namely, the
Panchayat Sabhapati -- even in the absence of any specific bar either in
the notice inviting tender or in the tender conditions -- it is a matter of
some concern to this Court particularly in a scenario where only the
three relatives of the appellant no.5 were awarded all the eight work
orders and no one else even participated in the tendering process. We,
therefore, consider it necessary -- purely in public interest -- to bring
this matter to the notice of the Chief Secretary, Government of Sikkim,
so that remedial measures and course corrections can be adopted by the
State Government. While considering this issue, the Chief Secretary,
Government of Sikkim, will look into the duration of the notice inviting
tender in the public domain since it is submitted that eight tenders were
WA No.02 of 2023
State of Sikkim and Others vs. Sonam Tsewang Bhutia and Others
kept in the public domain only for two days and as such, the eligible
contractors did not even get an opportunity to participate in the
tendering process. The Chief Secretary, Government of Sikkim, should
also consider the element of propriety -- which ought to have been
adopted by the appellant no.5 -- even if there was no specific bar on his
relations participating in the tendering process. The fifth direction of the
learned Single Judge stands modified accordingly.
In view of what has been observed hereinabove, we do not find
any justifiable reason to retain the sixth and seventh directions passed
by the learned Single Judge, which are also liable to be set aside and
stand accordingly set aside The order as to cost, quantified at
Rs.1,00,000/- (Rupees one lakh only), jointly payable by the
respondents is also liable to be set aside in view of what has been
observed hereinbefore.
On a conspectus of the case before us, we are of the view that
the entire issue which was brought before the notice of the writ Court
could have been easily avoided in the event all applicable norms laid
down by the State were followed by the appellant no.5. The Chief
Secretary, Government of Sikkim, shall examine this aspect also. The
directions contained herein shall be complied with by the Chief Secretary
as expeditiously as possible, preferably within a period of six weeks but
not later than eight weeks from date.
The writ Appeal together with connected application stands
disposed of accordingly.
(Meenakshi Madan Rai) (Biswanath Somadder)
Judge Chief Justice
jk/ds/avi/ami
