Sikkim High Court
Mani Kumar Subba vs State Of Sikkim And Ors on 15 May, 2025
Author: Meenakshi Madan Rai
Bench: Chief Justice, Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
Dated : 15th May, 2025
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DIVISION BENCH : THE HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP (PIL) No.01 of 2024
Petitioner : Mani Kumar Subba
versus
Respondents : State of Sikkim and Others
Application under Article 226 of
the Constitution of India
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Appearance
Mr. Anindya Basu, Mr. Yam Kumar Subba and Mr. Mukkum Hang
Limboo, Advocates for the Petitioner.
Mr. Basava Prabhu S. Patil, Advocate General, Mr. Zangpo Sherpa,
Additional Advocate General with Mr. Thinlay Dorjee Bhutia,
Government Advocate for the Respondents No.1 to 3.
None present for the Respondent No.4.
Mr. Anubhav Sinha, Ms. Dhatri Bandaru and Mr. Rinzing Dorjee
Tamang, Advocates for the Respondents No.5 and 7.
Mr. Sujan Sunwar, Assistant Government Advocate for the
Respondent No.6.
Mr. Sudhir Prasad, Advocate for the Respondent No.8.
Ms. Sangita Pradhan, Deputy Solicitor General of India assisted by
Ms. Sittal Balmiki and Ms. Natasha Pradhan, Advocates for the
Respondents No.9 to 11.
None present for the Respondents No.12 and 13.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The petitioner by way of this Public Interest Litigation
seeks a writ of mandamus or other appropriate writs/direction for
quashing the impugned decision of the Cabinet, dated 03-02-2024,
of the respondent no.1, where it was decided to disinvest 60.08%
equity share of respondent no.6 [Sikkim Power Investment
Corporation Limited (SPICL)], in respondent no.5 [M/s Sikkim Urja
Limited (SUL)] to respondent no.8 (M/s Greenko Enterprises
Private Limited), along with disinvestment of respondent no.7
Mani Kumar Subba vs. State of Sikkim and Others 2
(Sikkim Power Valley Transmission Limited, now Power Valley
Transmission Limited). According to the petitioner, this is in
contravention of the hydro policy of the respondent no.1, State of
Sikkim, as contained in the letter of intent issued to the respondent
no.4 (M/s Athena Projects Pvt. Ltd.), by the respondent no.2
(Power Department, Government of Sikkim) and the
implementation agreement, dated 18-07-2005, between the
respondent no.1 (State of Sikkim) and respondent no.5 (SUL),
concerning the development of 1200 Megawatts (MW), Teesta --
III Hydro Electric Project, at Chungthang, Rule 27 of the Sikkim
Financial (Amendment) Rules, 2006, Office Memoranda dated 19-
04-2022 and 14-09-2022 and against prescribed procedure for
disinvestment.
2. Vide order dated 14-03-2024, this Court inter alia
ordered that; "...................... We make it clear that all points raised
by the learned Advocate General including the point of
maintainability of the writ petition as a Public Interest Litigation are
kept open to be decided at the time of final hearing of the writ
petition. .................". The point of maintainability is accordingly
taken up.
3. Learned counsel for the petitioner canvassed the
contention that the petitioner, a citizen of India and a resident of
Sikkim, is involved in public life and at the time of filing the writ
petition was holding the post of the chief spokesperson of the
longest serving party in the State, i.e., Sikkim Democratic Front
Party. The petitioner has no personal on private motive in filing the
instant petition, which is against the impugned Cabinet decision,
dated 03-02-2024, which is arbitrary, illegal, unreasonable and
against public interest. The project (supra) was generating high
Mani Kumar Subba vs. State of Sikkim and Others 3
revenue for the State till the Dam was destroyed by flash floods,
which occurred on the intervening night of 3rd and 4th October,
2023, due to the outburst of the South Lonak Lake. The State
Government bypassed the disinvestment policy, which, inter alia,
postulates selection of Advisors, advertisement in newspapers
inviting bidders, valuation of the PSU, recommendation of the
Cabinet Committee on Disinvestment, discussion with the Advisor
and ultimately reporting the matter to the Accountant General of
India. After the State Cabinet cleared the disinvestment proposal,
the selection was to have been made through competitive bidding,
which was ignored. It was further urged that, the disinvestment
was contrary to the office memorandum, dated 19-04-2022, of the
Department of Investment and Public Asset Management
Disinvestment (DIPAM), Ministry of Finance, Government of India,
on participation of Public Sector Enterprises (PSEs)
[Central/State/Joint]/State Governments/Cooperative Societies
controlled by the Governments in strategic disinvestment of other
public sector enterprises. The decision to disinvest was also
contrary to the office memorandum, dated 14-09-2022, on
―Guiding principles for strategic disinvestment/ minority stake sale
of subsidiaries/units/sale of stake/JVs by the holding/parent PSE‖.
That, the decision was de hors the points of discussion held in the
meeting between the Hon'ble Minister of Power & NRE and the
Hon'ble Chief Minister, on 06-12-2023. The hasty decision of the
State Government has enriched respondent no.8 (M/s Greenko
Enterprises Private Limited), which while being against public
interest, has infringed the rights of the Sikkimese and led to huge
financial loss to the State Exchequer. The general principles of Rule
27 of the Sikkim Financial (Amendment) Rules, 2006, were
Mani Kumar Subba vs. State of Sikkim and Others 4
overlooked which envisages that whenever practicable and
advantageous, allocation of projects should be through a tender
process. Whenever a tender other than the lowest is to be
accepted, the reasons thereof should be recorded and decisions
taken only after such reasons have been accepted by the authority
competent to approve the contract. In the circumstances, there is
every likelihood of defalcation of public money having occurred on
account of the Cabinet decision, sans compliance of the prescribed
procedure of disinvestment. The decision is being arbitrary, illegal
is liable to be quashed, hence the petition. To buttress his
submissions reliance was placed on Balco Employees' Union (Regd.)
vs. Union of India and Others , Centre for Public Interest Litigation and
Others vs. Union of India and Others , Tehseen Poonawalla vs. Union of
India and Another and Vishwanath Chaturvedi(3) vs. Union of India
and Others .
4. Learned Advocate General for the respondents no.1 to
3, resisting the stand of the petitioner, contended that, the Public
Interest Litigation is a politically motivated petition having been
filed immediately prior to the general elections of 2024 with the
oblique motive of gaining political mileage. That, the instant
petition does not fulfil the requisite criteria of a Public Interest
Litigation as set out in Rule (iv) of the High Court of Sikkim, Public
Interest Litigation Rules, 2010. On this ground alone, it is liable to
be dismissed at the threshold. The petition it was argued, lacks
bona fides as the petitioner was the chief spokesperson of a
political party, which is the main opposition to the ruling party and
is apparently Private Interest Litigation, instituted to achieve the
petitioner's own political ends. The petitioner has set out an
(2002) 2 SCC 333
(2013) 3 SCC 1
(2018) 6 SCC 72
(2007) 4 SCC 380
Mani Kumar Subba vs. State of Sikkim and Others 5
incorrect shareholding structure of the respondent no.5 (SUL) and
has suppressed the contractual obligations of the Government of
Sikkim. It was explained that, Rule 27(1) of the Sikkim Financial
(Amendment) Rules, 2006, deals with contract entered into by any
authority which has not been empowered to do by the Government
but does not deal with disinvestment. That, the Government of
Sikkim in no way acted contrary to the interest of the people and
the decision for disinvestment was taken as per procedure
prescribed with due consideration to Articles 168 and 169 of the
Articles of Association, vide which, the tender could not have been
openly invited. The challenge to the Cabinet decision by the
petitioner on grounds of non-compliance with the general principles
of disinvestment was erroneous, as the procedure specified therein
has to be followed by the Central Government and not by the State
Governments. That, the allegation of non-compliance of the Office
Memorandum dated 19-04-2022 and 14-09-2022, issued by the
Ministry of Finance, Department of Investment and Public Asset
Management (DIPAM), Government of India, is misplaced as it has
no bearing to the decision of the State Government to disinvest its
stake. Having approached the Court with unclean hands, the
conduct of the petitioner disentitles him to any relief and the
petition not being maintainable and deserves a dismissal. On this
count, reliance was placed on Dalip Singh vs. State of Uttar Pradesh
and Others .
5. Learned counsel for the respondent no.5 (SUL) put
forth the contention that the grounds of challenge are vague as the
petitioner was unable, in the course of hearing, to explain his
benevolent intentions and public purpose which he seeks to
(2010) 2 SCC 114
Mani Kumar Subba vs. State of Sikkim and Others 6
achieve from the instant petition. That, the sale of the shares by
the Government of Sikkim, cannot be viewed in isolation and is an
action purely in the public domain. The Shareholders' Agreement
had both respondent no.8 (M/s Greenko Enterprises Private
Limited) and the Government of Sikkim as shareholders, who
clearly contemplated the sale of shares between different
shareholders. That, such agreement and clauses contemplating
such sale of shares was never challenged by any person. The
Courts have been clear that petitions filed for political gains should
not be looked into, reliance on this facet was placed on a catena of
decisions of the Supreme Court. It was sought to be pointed out
that the instant petition has been filed to disrupt the disinvestment
process merely to leverage political gains with the intention of
creating a platform for one-upmanship against the incumbent
Government. The petitioner has failed to substantiate the public
interest being espoused by him. That, the Supreme Court in Balco
Employees' Union (Regd.) (supra) has propounded that the policy of
the Government regarding disinvestment in a public sector
undertaking, being an economic decision, cannot be challenged in a
Public Interest Litigation. It was observed that the decision to
disinvest is purely an administrative decision relating to the
economic policy of the State and challenge to the same at the
instance of a busy body cannot fall with the parameters of a Public
Interest Litigation. Similarly, in the instant matter the decision
being economic and administrative cannot be challenged in a Public
Interest Litigation by a politically motivated person. Hence, the
petition be dismissed.
6. Having heard the submissions advanced by Learned
Counsel for the parties at length, it is worth remarking that Public
Mani Kumar Subba vs. State of Sikkim and Others 7
Interest Litigation is that class of litigation where the public in
general are interested, perceiving that public interest has been
undermined by arbitrary or perverse executive action, which
requires vindication of some right or the enforcement of some
public duty. The Court, however, is to be prima facie satisfied that
the information laid before the Court is of such a nature that it calls
for examination. Public Interest Litigation is not a pill or a panacea
for all wrongs. It was essentially meant to protect basic human
rights of the weak and the disadvantaged and was a procedure
which was innovated where a public-spirited person files a petition,
on behalf of such persons, who on account of poverty, helplessness
or economic and social disabilities could not approach the Court for
relief [See R & M Trust vs. Koramangala Residents Vigilance Group and
Others ].
(i) In S. P. Gupta vs. Union of India and Another7, the
Supreme Court cautioned as follow;
"24. But we must be careful to see that the
member of the public, who approaches the court in
cases of this kind, is acting bona fide and not for
personal gain or private profit or political motivation
or other oblique consideration. The court must not
allow its process to be abused by politicians and
others to delay legitimate administrative action or to
gain a political objective. Andre Rabie has warned that
―political pressure groups who could not achieve their
aims through the administrative process‖ and we
might add, through the political process, ―may try to
use the courts to further their aims‖. These are some
of the dangers in public interest litigation which the
court has to be careful to avoid. It is also necessary
for the court to bear in mind that there is a vital
distinction between locus standi and justiciability and
it is not every default on the part of the State or a
public authority that is justiciable. The court must
take care to see that it does not overstep the limits of
its judicial function and trespass into areas which are
reserved to the Executive and the legislature by the
Constitution. ..................."
(ii) It is only when Courts are apprised of gross violation of
fundamental rights by a group or a class action or when basic
(2005) 3 SCC 91
(1981) Supp SCC 87
Mani Kumar Subba vs. State of Sikkim and Others 8
human rights are invaded or when there are complaints of such
acts as shock the judicial conscience that the Courts, especially this
Court, should leave aside procedural shackles and hear such
petitions and extend its jurisdiction under all available provisions
for remedying the hardships and miseries of the needy, the
underdog and the neglected [See Sachidanand Pandey and Another
vs. State of West Bengal and Other ].
(iii) While referring to the case of Balco Employees' Union
(Regd.) (supra, relied on by the petitioner), the validity of the
decision of the Union to disinvest and transfer 51% shares of M/s
Bharat Aluminium Company Limited (BALCO) was the primary
issue. The Supreme Court observed inter alia that it is neither
within the domain of the Courts nor the scope of judicial review to
embark upon an enquiry as to whether a particular public policy is
wise or better public policy can be evolved. Nor should the Courts
be inclined to strike down a policy at the behest of a petitioner,
merely because it has been urged that a different policy would
have been fairer or wiser or more scientific or more logical. It was
observed that merely because the workmen of BALCO may have
the protection of Articles 14 and 16 of the Constitution of India, by
regarding BALCO as a State, it did not mean that the erstwhile sole
shareholder viz., Government had to give the workers prior notice
of hearing before deciding to disinvest. That, there is no principle
of natural justice which requires prior notice and hearing to
persons who are generally affected as a class by an economic
policy decision of the Government. The existence of rights under
Articles 14 and 16 of the Constitution of India cannot possibly have
the effect of vetoing the Government's right to disinvest nor can
(1987) 2 SCC 295
Mani Kumar Subba vs. State of Sikkim and Others 9
the employee claim a right of continuous consultation at the
various stages of the disinvestment process, if it has been gone
through, without contravening any law. The change in economic
climate, the wisdom and manner for the Government to run
commercial ventures may require reconsideration and what may
have been in public interest at a point of time may no longer be so.
(iv) It is settled law that information given in a Public
Interest Litigation cannot be vague or indefinite and the Court is to
be circumspect in assessing that under the guise of redressing a
public grievance it does not encroach upon the field reserved by
the Constitution for the executive and the legislature. The person
who approaches the Court must be acting bona fide and not for
personal gain or private profit or political motivation or other
oblique consideration. More importantly, Courts in the exercise of
their jurisdiction will not transgress into the field of policy decision,
while at the same time exercising its duty to examine that in the
undertaking of a decision, no law is violated and people's
fundamental rights are not transgressed upon.
7. On the anvil of such pronouncements, when we
examine the records placed before us and consider the submissions
advanced by learned counsel for the parties, indubitably the
petitioner is the chief spokesperson of one of the main opposition
political parties in the State. As already pointed out by learned
Advocate General for the respondents No.1 to 3 in their averments,
the petitioner has not disclosed any credentials regarding his
involvement in furthering any public cause. The petition was also
filed just before the General Elections in the State, which were to
be held in 2024, clearly indicating an oblique motive in filing the
said petition, considering the petitioner's political inclination. It
Mani Kumar Subba vs. State of Sikkim and Others 10
needs no emphasis that a petitioner filing a Public Interest
Litigation is to specifically disclose his credentials and his direct or
indirect personal motive or interest involved in the case, if any, by
way of an affidavit. His petition must set forth what he does for a
living, what public interest he has been espousing, the work done
by him for such cause and the particulars of any matter preferred
by him as Public Interest Litigation earlier. He cannot merely file a
Public Interest Litigation by stating that he is a citizen of India and
involved in public life. His contribution must be indicated to the
Court. From the records, there is no disclosure whatsoever as to
what public interest he was espousing, the work done by him for
such cause or his contribution to society at large. This Court, being
a Court of record, has also taken into consideration that earlier WP
(PIL) No.03 of 2023 (Mani Kumar Subba vs. State of Sikkim and
Others) had been filed by the petitioner herein, concerning the
natural disaster, which occurred in Sikkim, on the intervening night
of 3rd and 4th of October, 2023, resulting in loss of lives and
properties due to massive flooding of the river Teesta, which was
probably caused by a glacial lake outburst that occurred in the
upper reaches of the Himalayas. The petitioner, while seeking a
writ of mandumas or any other appropriate writs, directions of this
Court, had contended that despite the clear classification of the
South Lonak Lake and Chungthang, as high Glacial Lake Outburst
Floods (GLOFs) hazard, failed to constitute the ―State Committee
on Dam Safety‖ under Section 11 of the Dam Safety Act, 2021,
non-compliance of which led to huge loss and damages to life and
properties, including destruction of the Teesta Stage - III Dam. It
was his case, the State Government had framed no comprehensive
policy and mechanism for management of GLOFs in accordance
Mani Kumar Subba vs. State of Sikkim and Others 11
with the National Disaster Management Plan, 2019, National
Disaster Authority Guidelines Management of GLOFs, 2020 and
Disaster Management Act, 2005. Vide the order dated 07-12-
2023, this Court was of the view inter alia that, if indeed the writ
petitioner was so concerned with public interest -- especially with
regard to the ―State Committee on Dam Safety‖ not being
constituted within 180 days from the date of commencement of the
Dam Safety Act of 2021 -- he ought to have approached this Court
immediately after expiry of the said period of 180 days (i.e., six
months), from the date of its coming into effect (i.e., 14 th
December, 2021), instead of waiting till the 5th of December, 2023,
for the purpose of filing the writ petition as a ―Public Interest
Litigation‖, once the natural disaster struck on the intervening night
of 3rd and 4th of October, 2023. The Court observed that the writ
petition filed was a Public Interest Litigation was thoroughly devoid
of any merit and was liable to be summarily dismissed and was
accordingly dismissed. The aforementioned circumstances make it
necessary for this Court to consider whether the instant petition is
above suspicion, based as it is on conjectures and surmises.
(i) In Janata Dal vs. H. S. Chowdhary and Others9, the
Supreme Court pointed out as follows;
"62. Be that as it may, it is needless to
emphasise that the requirement of locus standi of a
party to a litigation is mandatory; because the legal
capacity of the party to any litigation whether in
private or public action in relation to any specific
remedy sought for has to be primarily ascertained at
the threshold.
.......................................................................
Vexatious and frivolous litigation
98. While this Court has laid down a chain of
notable decisions with all emphasis at their command
about the importance and significance of this newly-
developed doctrine of PIL, it has also hastened to
sound a red alert and a note of severe warning that
courts should not allow its process to be abused by a
mere busybody or a meddlesome interloper or
(1992) 4 SCC 305
Mani Kumar Subba vs. State of Sikkim and Others 12
wayfarer or officious intervener without any interest
or concern except for personal gain or private profit
or other oblique consideration."
(ii) It is necessary to notice that in State of Madhya Pradesh
vs. Narmada Bachao Andolan and Another , the Supreme Court inter
alia held that the standard of expectation of civic responsibility
required of a petitioner in a Public Interest Litigation is higher than
that of an applicant who strives to realise personal ends. The
Courts expect a public interest litigant to discharge high standards
of responsibility. Negligent use or use for oblique motives is
extraneous to the Public Interest Litigation process and if that be
so, the application will be rejected at the threshold. Measuring the
gravity of the Public Interest Litigation petitioner and to examine
whether the petitioner is actually a ―champion‖ of the cause of the
individual or the group being represented, is the responsibility of
the Court. Only a person acting bona fide will alone have locus
standi and approach the Court to ensure that there is no violation
of fundamental rights.
8. We are alive to the fact that a petition should not be
shut out at the threshold merely because a person with political
differences with the ruling dispensation raises an issue.
Nonetheless, it is imperative to point out that the Court is bound to
analyse the locus of the petitioner as to whether he has come with
clean hands, is acting bona fide and not with other oblique
considerations, be it private or political. He who seeks equity must
do equity.
9. It is no more res integra that judicial interference by
way of orders in a Public Interest Litigation can be exercised only if
the Courts detect dereliction of constitutional or statutory
obligations that have injured public interest. Having considered
(2011) 7 SCC 639
Mani Kumar Subba vs. State of Sikkim and Others 13
the submissions advanced before us, we do not witness such a
circumstance in the instant matter. It needs no reiteration that
the Courts are not expected to interfere in the sphere of economic
policy or reform nor can the Courts conduct the administration for
the State, the only circumstance where the Courts can interfere is
where there is violation of constitutional or statutory provisions and
non-compliance thereof by the State.
10. In light of the foregoing detailed discussions and
having considered the grounds canvassed by the petitioner, it is
apparent that the petitioner cannot obliquely espouse his own
cause in order to satisfy his personal grudges or settle political
scores and expect this Court to intervene in respect of a valid
Cabinet decision passed by the Political Executive, which we, for
reasons stated above, are not inclined to interfere.
11. In the facts and circumstances elucidated hereinabove,
the writ petition is not maintainable and is accordingly dismissed.
( Meenakshi Madan Rai ) ( Biswanath Somadder )
Judge Chief Justice
Approved for reporting : Yes
ds/sdl
