Sikkim High Court

Kumar Tamang @ Hari Kumar Tamang vs State Of Sikkim And Ors on 2 April, 2024

Author: Meenakshi Madan Rai

Bench: Meenakshi Madan Rai

             THE HIGH COURT OF SIKKIM : GANGTOK
                               (Civil Extraordinary Jurisdiction)
                                    DATED : 2nd April, 2024
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   SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                                   WP(C) No.08 of 2020
                Petitioner               :       Kumar Tamang @ Hari Kumar Tamang

                                                           versus

                Respondents              :       State of Sikkim and Others

                         Application under Articles 226/227 of
                              the Constitution of India
        -----------------------------------------------------------------------------------------
          Appearance
              Mr. A. Moulik, Senior Advocate with Ms. K. D. Bhutia and Mr. Ranjit
              Prasad, Advocates for the Petitioner.
              Mr. Thinlay Dorjee Bhutia, Government Advocate for the State-
              Respondents No.1 to 4.
        -----------------------------------------------------------------------------------------
                                        JUDGMENT

Meenakshi Madan Rai, J.

1. The Petitioner is aggrieved by the cancellation of his

Certificate of Identification (COI) issued on 03-07-1992, vide Sl.

No.1253/DCE, by the District Collector (DC), East District, which

identifies him as a resident of the State of Sikkim and by extension

an indian national, without affording him allegedly, an opportunity

of being heard. The Petitioner, while thus assailing the Order

dated 12-02-2020 of the Respondent No.3, in Case No.03/DC/2019

(Pahal Man Kami, Soreng, West Sikkim vs. Kumar Tamang, s/o. lt. Dhan

Man Tamang), contended that besides his COI being cancelled by

the impugned Order, the Respondent No.3 in wrongful exercise of

the jurisdiction conferred on him directed the Sub-Divisional

Magistrates (SDM) of Gangtok, Rangpo, Rongli and Pakyong to

cancel landed properties transactions which were based on the

Petitioner's COI and further directed the Station House Officer

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 2

(SHO) of the Sadar Police Station to register a case against the

Petitioner for misrepresentation of facts.

2. Learned Senior Counsel for the Petitioner adverting to

the facts of the case contended that in the erstwhile kingdom of

Sikkim, Sikkim Subject Certificate (SSC) was issued to its citizens

in terms of the Sikkim Subject Regulation, 1961. This regulation

was repealed from the "Appointed Day" i.e., 26-04-1975, when

Sikkim became the 22nd State of India. Nevertheless, the state

adopted the practice of issuing COI whereby such certificates were

issued inter alia to persons whose father's name was included in

the register of SSC. That, the Petitioner is a permanent resident

of Kayong Busty, Pakyong Sub-Division and his parents are late

Dhan Man Tamang and late Ganga Maya Tamang, which is

recorded as such in the school admission register of the

Government School, at Dikiling, where he was educated and his

date of birth is 06-06-1966. He was known variously as Kumar

Tamang and Hari Kumar Tamang. Later he chose to be a

professional driver. The COI (supra) was issued to him on due

verification obtained from the local Panchayat, the Superintendent

of Police (SP), Special Branch, dated 17-06-1992 and from the

office of the Revenue Supervisor (East), dated 07-05-1992. Both

documents found him to be the son of late Dhan Man Tamang.

That, from 2009 to 2019 the Petitioner's wife was elected as a

Member of the Legislative Assembly (MLA), from a Constituency in

South Sikkim and was a Minister in the Government led by the

Sikkim Democratic Front party. To humiliate and defame her, one

Madan Tamang was instigated by her political rivals to file a false

case on 28-08-2018, complaining that her husband, had procured

a COI falsely claiming to be the son of late Dhan Man Tamang

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 3

when in fact he was his step grandson. COI Case No.20 of 2018

(Mr. Madan Tamang, r/o Palitam Busty, Namthang vs. Mr. Kumar

Tamang, r/o. Kayong Busty, East Pendam) was registered before the

Respondent No.3, which was subsequently withdrawn on 16-01-

2019, the Complainant having admitted that the Petitioner was the

real son of late Dhan Man Tamang. A second Complaint dated 18-

07-2019 came to be lodged by one Pahalman Kami, who too

alleged that the Petitioner's COI was obtained falsely. This

Complaint was registered as COI Case No.03/DC/2019 (Pahal Man

Kami, Soreng, West Sikkim vs. Kumar Tamang, s/o. lt. Dhan Man

Tamang) in the office of the Respondent No.3. On 20-11-2019, the

Complainant sought to withdraw his Complaint on his failure to

substantiate his case. The withdrawal application was taken up on

the same date but the Respondent No.2 instead of giving the case

a closure, mala fide issued an Order on 25-11-2019, directing

Respondent No.3 to take up the matter suo motu and enquire

immediately, sans reasons. It was further alleged that the above

situation arose as the Respondent No.2 had inimical relations with

the Minister on account of his transfer, allegedly at her behest,

from the post of District Collector to a less influential post. That, at

the instance of Respondent No.2, Respondent No.3 issued letters

to the Principal of the Petitioner's school, the Station House Officer

(SHO) Pakyong Police Station, and the SP, Special Branch and the

relevant Panchayat. The report from the school dated 21-01-2020

(Annexure - P13) and the Panchayat report dated 17-12-2019

revealed that he is the son of late Dhan Man Tamang and the latter

also certified that the COI was not obtained fraudulently. However,

the SP, Special Branch, vide enquiry report dated 11-12-2019,

reported the Petitioner to be the maternal grandson of late Dhan

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 4

Man Tamang and son of Nehma Tamang, the elder daughter of late

Dhan Man Tamang. That, the Petitioner is the son of one Madan

Chettri, who went missing five years ago and the Petitioner was

residing in his maternal grandfather's house. That, despite the

conflicting reports (supra) the Respondent No.2 and the

Respondent No.3 did not take steps to unveil the real truth by

extending an opportunity of hearing to the Petitioner but proceeded

to pass the impugned Order devoid of any hearing.

(i) The Respondent No.2 in his Order, dated 20-01-2020

without conducting necessary verification erroneously concluded

that the COI of the Petitioner was obtained fraudulently as

documents failed to establish his relationship with the SSC holder.

The Respondent No.2 further observed that only the Panchayat

report is not an adequate document for issuance of a COI, that,

moreover the COI was obtained from his mother's side as per the

IB report. The Petitioner's reply dated 10-02-2020 was not

considered before the impugned Order cancelling the Petitioner's

COI was issued on 12-02-2020. The Respondent No.2 has

therefore resorted to cherry picking documents suitable for the

purpose of cancelling the COI of the Petitioner. Pointing to the

note sheet records dated 20-01-2020, 21-01-2020, 22-01-2020

and 29-01-2020, it was urged that apart from the documents not

being made over to the Complainant, no hearing on the matter was

taken up at any time by the Respondents. On 29-01-2020 the

Petitioner was afforded time till 31-01-2020 to submit relevant

documents on which date he sought time till 03-02-2020. It is the

Petitioner's claim that Nehma Tamang who allegedly deposed

before the SHO Pakyong, was a lady of unsound mind, while the

Sub-Inspector of Police who submitted her report, dated 26-01-

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 5

2020, had pressurized the local Panchayat Members to withdraw or

change their Panchayat report dated 17-12-2019 regarding the

parentage of the Petitioner. That, the report also stated that the

Petitioner was the son of one Sikkimey Jetha Ghising of Soreng.

That, late Dhan Man Tamang was his step grandfather. A

verification report sought for by the Respondent No.3 and

submitted by Assistant Sub-Inspector of Police, Dawa Singh

Tamang of Rorathang, dated 30-12-2019, establishing that the

Petitioner was the son of late Dhan Man Tamang, to the detriment

of the Petitioner, was not considered by the Respondent No.2.

That, the impugned Order also mentions a Complaint filed by one

Durga Bahadur Chettri, resident of Bermiok Tokal, South Sikkim,

alleging fraudulent obtainment of the Petitioner's COI but a copy

thereof was never handed over to the Petitioner to enable him to

file an effective reply. Thus, the impugned Order has not only

violated the Petitioner's right to a hearing but has been issued

against the principles of fair play and natural justice infringing his

rights under Articles 14, 19, 21 and 300A of the Constitution of

India. That, there being no other alternate, efficacious and speedy

remedy in the matter and as the Petitioner's wife belongs to a rival

political party, it would be an exercise in futility to approach the

Appellate Authority against the impugned Order. Hence, the

impugned Order being erroneous, arbitrary and issued with a pre-

conceived mind on political considerations be set aside. The

prayers in the Writ Petition inter alia are as follows;

"PRAYER In the circumstances it is prayed that this Hon'ble High Court may be pleased to issue:-

(i) ......................................................................................

(ii) A writ or order or direction or declaration that the impugned order having issued illegally is set aside, quashed and cancelled.

(iii) ......................................................................................

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 6

(iv) A writ or order or direction or declaration that the respondent no.4 (the SHO Sadar PS) shall not initiate any criminal proceeding against the petitioner in pursuance to the impugned order dated 12/02/2020. In the mean time if the respondent no.4 has initiated any criminal case/proceeding against the petitioner then to stay its further proceedings;

........................................................................."

(ii) Learned Senior Counsel for the Petitioner while

buttressing his arguments garnered support from the decision in

Radha Krishan Industries vs. State of Himachal Pradesh and Others

wherein the principles of law pertaining to the exercise of Writ

jurisdiction have been delineated by the Supreme Court. That, the

ratio observes that an alternate remedy by itself does not divest

the High Court of its power under Article 226 of the Constitution of

India in an appropriate case, though, ordinarily a Writ Petition

should not be entertained when an efficacious alternate remedy is

provided by law. Strength was also drawn from the decision in

Gulzar Singh vs. Sub-Divisional Magistrate and Another where the

Scheduled Caste certificate of a person was cancelled by the

concerned Authority in violation of the principles of natural justice,

the Appeal was allowed. That, in a similar case, this Court in Bhim

Bahadur Kami and Others vs. State of Sikkim and Others was pleased

to exercise its Writ jurisdiction without directing the Petitioner to

take recourse to the alternate remedy or approach the Appellate

forum. It is urged that the circumstances in this matter being

similar the prayers herein be considered on the same lines and

reliefs be granted.

3. Vehemently contesting the claims put forth by Learned

Senior Counsel for the Petitioner, Learned Government Advocate

(2021) 6 SCC 771

(1999) 3 SCC 107

[WP(C) No. 33 of 2020 decided on 08-07-2022 : 2022 SCC OnLine Sikk 73 ]

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 7

for the State-Respondents No.1 to 4 contended that the allegation

and submissions made by the Petitioner are contrary to the

records. That, while obtaining the COI in the year 1992 the

Petitioner had misrepresented and misled the issuing authority that

he was the son of late Dhan Man Tamang and late Ganga Maya

Tamang sans documents to fortify his claims, besides there are no

records to indicate that Kumar Tamang and Hari Kumar Tamang

are one and the same person. While admitting that the Panchayat

in their verification report dated 17-12-2019 had stated that the

Petitioner is the son of late Dhan Man Tamang, it was submitted

that the Panchayat report pales in the face of the fact that no proof

exists on this count. When the COI was obtained by the Petitioner

it was only on the basis of the reports of the SP East, the Revenue

Supervisor and Panchayat Members all of which however identified

him as Kumar Tamang, son of late Dhan Man Tamang and not Hari

Kumar Tamang as well. Hence, the Petitioner's claim that Hari

Kumar Tamang and Kumar Tamang are one and the same person

has no merit. That, as the two Complainants mentioned by the

Petitioner supra, withdrew their Complaints within a few days of

registering their respective cases, it is indicative of the fact that the

Petitioner resorted to unfair means and tactics to persuade them to

withdraw their Complaints. The fact that the transfer certificate of

Hari Kumar Tamang was obtained belatedly in the year 2018 from

the school where he allegedly studied reveals that the Petitioner

had resorted to fraudulent means to prove that he is the son of

late Dhan Man Tamang. Categorically submitting that the

Petitioner's claims of violation of the fundamental rights were

baseless, it was argued that the enquiry against the Petitioner was

conducted as per the provisions of Notification bearing

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 8

No.119/Home/2010, dated 26-10-2010 and the answering

Respondents have not influenced the reports of the Special Branch

and the SHO Pakyong. That, on receipt of the Complaint from

Pahalman Kami the first hearing was held on 26-09-2019 during

which the Complainant and the Petitioner were present, belying the

Petitioner's contentions of lack of hearing. A copy of the Complaint

was made available to the Petitioner who was directed to submit

his reply before 06-11-2019 to which he requested for an

adjournment on 07-11-2019 but failed to submit his reply.

Another hearing then followed on 29-01-2020 during which the

verification reports received from the Special Branch of Police, SHO

Pakyong Police Station and concerned Gram Panchayat were given

to the Petitioner and he was directed to submit his reply if any by

31-01-2020 which he again filed belatedly on 10-02-2020. Besides

the above, he was also given an opportunity to submit any relevant

documents pertaining to his COI to counter the allegations but no

documents were submitted. The report of the Special Branch of

Police and the Pakyong Police Station dated 11-12-2019 and 26-

01-2020 respectively clearly establish that the Petitioner is not the

son of late Dhan Man Tamang. The report dated 30-12-2019 said

to be in favour of the Petitioner is not in the records maintained by

the office and was never received by the State-Respondents from

such a person. Denying the allegation of the Order being arbitrary

and in excess of jurisdiction, it was contended that the Petitioner

was dealt with judiciously and afforded sufficient opportunity to

defend his case. That, an alternate efficacious remedy of an

Appellate forum established vide Notification bearing

No.119/Home/2010, dated 26-10-2010, is available to the

Petitioner, who cannot be allowed to invoke the Writ jurisdiction of

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 9

this Court without exhausting the remedy available. Hence, the

Respondents having acted fairly and judiciously the Writ Petition

deserves a dismissal.

(i) Learned Government Advocate drew succour from the

decision of this High Court in M/S Linkwell Telesystems Pvt. Ltd. vs.

The State of Sikkim and Others . The Petitioner therein had failed to

approach the Appellate Authority, this Court had held that the

Petitioner had failed to advance an exceptional circumstance for

invoking the Writ jurisdiction of this Court under Article 226 of the

Constitution of India and dismissed the Writ Petition.

4. After having heard Learned Counsel for the parties at

length and on perusing all documents on record, it is apparent that

the parties are at loggerheads regarding the facts as detailed supra

before this Court. The Petitioner asserts that no opportunity of a

hearing was afforded to him, despite the serious allegations and

aspersions cast on him, augmented by the fact that conflicting

reports regarding his parentage and name had been alleged. On

the other hand the Respondents with equal fervour asserted that

more than adequate opportunities of hearing apart from permitting

the Petitioner to furnish all documents were granted by the

concerned Authority to enable him to fortify his claims. That, the

COI issued in 1992 to him was without adequate verification and

with documents which misled the Authorities.

(i) In the back drop of the facts narrated and in light of

the opposing contentions extracted hereinabove, the question that

first arises for consideration is whether this Court ought to interfere

under Articles 226/227 of the Constitution of India with an Order

[WP(C) No.23 of 2021 decided on 09-06-2021 : 2021 SCC OnLine Sikk 69]

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 10

passed by the Additional District Collector, despite the availability

of a statutory alternative remedy of Appeal?

(ii) Although Learned Senior Counsel for the Petitioner had

drawn the attention of this Court to the decision in Bhim Bahadur

Kami and Others (supra) and urged that it is similar to the said

matter and the Court therein had exercised it jurisdiction under

Article 226 of the Constitution of India instead of relegating the

matter to the Appellate forum, in my considered opinion, although

both matters pertain to cancellation of COI of the Petitioners, the

similarity truncates there. In the case of Bhim Bahadur Kami and

Others (supra) after the COI was alleged to be a fraudulent

document although having been issued on necessary verification

having been obtained from the appropriate Authorities, a re-

verification was conducted by a Commission of which the Chairman

was a retired High Court Judge no less. On such re-verification it

was concluded by the Commission that the COI of the Petitioners

therein were not fake or fraudulent. Consequently, when the COI

came to be cancelled for the second time despite such re-

verification, this Court was of the considered view that from the

facts and circumstances of the matter, the Respondents therein

had inter alia exercised authority exceeding their jurisdiction and

exercised the jurisdiction under Article 226 of the Constitution.

Contrary to the afore stated situation there has been no re-

verification of the COI of the Petitioner and this Court is not in a

position to consider and determine questions of fact raised in this

Petition sans evidence being led on the touchstone of the Indian

Evidence Act, 1872.

(iii) I am quite aware that the Supreme Court in a plethora

of its judgments has held that an alternate remedy by itself does

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 11

not divest the High Court of its powers under Article 226 of the

Constitution in a proper case, but it does come with a caveat that a

Writ Petition should not be entertained when an efficacious

alternate remedy is provided.

(iv) In the context of an alternate remedy, in the matter at

hand, a perusal of the Notification extracted hereinbelow would

clear the air. Notification bearing No.119/Home/2010 dated 26-

10-2010 reads as follows;

"SIKKIM GOVERNMENT GAZETTE EXTRAORDINARY 9 PUBLISHED BY AUTHORITY

GOVERNMENT OF SIKKIM HOME DEPARTMENT GANGTOK No.119/Home/2010 Date: 26/10/2010 NOTIFICATION ...............................................................................................

(1) ................................................................................................. (2) ................................................................................................ (3) ................................................................................................ (4) .................................................................................................

"The issuing authority is also authorized to cancel the Certificate of Identification of a person if it is reasonable established that the Certificate has been obtained by him/her or on his/her behalf by misrepresentation or suppression of any material fact.

Any person aggrieved by the refusal to grant or cancellation of his/her Certificate of Identification by the Issuing Authority may apply within one month of such refusal or cancellation to the Secretary, Land Revenue & Disaster Management Department for redress."

BY ORDER AND IN THE NAME OF THE GOVERNOR.

TT Dorji, IAS CHIEF SECRETARY File. No. Home/Confdl./158/1994/2/Part"

(emphasis supplied)

It is thus clear that the Secretary, Land Revenue and

Disaster Management Department, Government of Sikkim is the

Appellate Authority in matters such as the instant one.

(v) Indeed, I hasten to add that the rule of exclusion of

writ jurisdiction by availability of an alternative remedy is a rule of

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 12

discretion and not of compulsion. [See Harbanslal Sahnia and

Another vs. Indian Oil Corpn. Ltd. and Others ]

(vi) While considering the question of exercise of power

conferred by Article 226 of the Constitution of India despite

availability of a statutory alternative remedy in Embassy Property

Developments Private Limited vs. State of Karnataka and Others , the

Supreme Court observed as follows;

"24. Therefore insofar as the question of exercise of the power conferred by Article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute."

(emphasis supplied)

(vii) In Radha Krishan Industries (supra) relied on by Learned

Senior Counsel for the Petitioner, it was observed at Paragraphs

27.5 and 27.6 as follows;

"27. ................................................................................. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

...................................................................................."

(emphasis supplied)

(viii) It is settled law that, it is one thing to say that in

exercise of the power vested in it under Article 226 of the

Constitution the High Court can entertain a Writ Petition against

any Order passed by or action taken by the State, its agency, or

any public authority, quasi-judicial body and it is an altogether

(2003) 2 SCC 107

(2020) 13 SCC 308

Kumar Tamang @ Hari Kumar Tamang vs. State of Sikkim and Others 13

different thing to say that each and every Petition filed under

Article 226 of the Constitution must be entertained by the High

Court as a matter of course ignoring the fact that the aggrieved

person has an effective alternative remedy.

(ix) In Thansingh Nathmal and Others vs. The Superintendent

of Taxes, Dhubri and Others , while discussing that under Article 226

of the Constitution of India the High Court does not act as a Court

of Appeal, the Supreme Court observed as follows;

"(7) ........... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."

(x) Consequently, in light of the pronouncements supra

and bearing in mind the facts delineated hereinabove, in my

considered opinion, as a statutory forum created by law for

redressal of grievances exists, the Writ Petition cannot be

entertained by ignoring the statutory dispensation, which the

Petitioner is at liberty to approach to vent his grievances and

obtain the appropriate relief, without him being weighed down by

preconceived perceptions.

(xi) The question formulated above stands determined

accordingly.

(xii) The Writ Petition deserves to be and is dismissed and

disposed of.