(1.) THE petitioners seek a Writ of Certiorari to call for the records of the proceedings of the Additional District Collector,
East, Gangtok dated 30.03.2010 made in Memo No. 856/DCE,
which was made pursuant to the final order dated 03.12.2009
issued by the Assistant Collector, East District, Gangtok,
cancelling the Certificate of Identification issued to the petitioners
on 12.12.1990, 26.02.1996, 18.01.2007 and 11.12.2003
respectively and quash the same.
1.1 The impugned order dated 30.03.2010 reads as hereunder:
" GOVERNMENT OF SIKKIM
EAST DISTRICT COLLECTORATE
Memo no:856/DCE Dated: 30.3.2010.
In pursuance of the final order dated: 3rd
December, 2009 issued by the Asstt. Collector, Ms.
Aishvarya Singh, IAS, East District, Gangtok in the
Misc. Case No. 37/DM/E dated 28.8.2008, between
Smt. Harka Maya Chettri, resident of Pani House,
Deorali Vrs. Shri Janga Bahadur Chettri resident of
Pani House, Deorali, the COI no. 4593 dated
12.12.1990 issued to Mr. Janga Bahadur Chettri by the office of District Collector, East District, Gangtok
is hereby cancelled.
Further, the COI issued on the basis of the above cancelled COI as per particulars given below are hereby cancelled. Sl. Name of Person Name of COI No. Date No. Relationship 1. Khagendra Janga 4591/DCE 12/12/1990 Kumar Chettri Bahadur Chettri 2. Purna Kumar Janga 1583/DCE 26.02.1996 Chettri Bahadur Chettri 3. Boudha Chettri Janga 89/DCE 18.01.2007 Bahadur (which is Chettri a copy of COI no. 3024/DCE dated 28.05.96) 4. Narendra Chettri Janga 3691/DCE 11.12.2003 Bahadur Chettri And Certificate of Identification issued to any person (wife and any other children of Janga Bahdur Chettri) based on the above cancelled COI of Janga Bahadur Chettri is also hereby cancelled. By order. Sd/- Addl. District Collector, East Gangtok, Sikkim. "
(2.) ACCORDING to Mr. Jorgay Namkha, learned counsel for the petitioners, the impugned order suffers for want of
jurisdiction. Our attention was invited to the observation of the
Additional District Collector, East made in the impugned
proceedings dated 30.03.2010 to the effect that the impugned
order was passed in pursuance of the final order dated
2009 issued by the Assistant Collector, East District, Gangtok. It is, therefore, argued that the final decision itself was
taken by the Assistant Collector, East and not by the Additional
District Collector, East. Hence, the impugned order suffers for
want of pure jurisdiction.
2.2 Alternatively, it is also contended that the impugned proceedings suffers on the ground of 'stinted jurisdiction' as the Assistant Collector, East, while passing the final order dated 03.2009 did not give fair and reasonable opportunity to the petitioners to present their case before passing the final order. According to the learned counsel for the petitioner, the documents relied upon by the Assistant Collector, East while passing the final order dated 03.2009, though were sought for by the petitioners, the same were furnished to them only after passing of the final order dated 03.2009, which vitiated the final order passed by the Assistant Collector on 03.2009, as well as the consequential impugned order passed by the Additional District Collector, East on 30.03.2010 for want of fair and reasonable opportunity which violates the principles of natural justice.
3. The learned Additional Advocate General fairly concedes that, of course, supported with an affidavit filed by the
District Collector, East, fairly concedes that the impugned
proceedings dated 30.03.2010 suffers for want of jurisdiction.
The relevant portion of the affidavit dated 26.08.2010 filed by
the District Collector, East, reads as hereunder:
"6. That in view of the provisions of law stated herein above, it is humbly submitted that the Assistant Collector who has conducted the entire proceedings and passed the impugned order dated/12/2009 recommending the cancellation of Certificate of Identification and also deregistration of the Gift Deed dated 8/12/1995, Annexure P-3 (@ page 30 of the W.P.) is without any jurisdiction. That in view of what has been stated herein above, it is humbly submitted that the proceedings and the impugned order dated3/12/2009 (@ page 68 to 74 of the W.P.) passed by the Assistant Collector being without jurisdiction is liable to be set aside. Further the impugned order dated 30/3/2010 (@page 83 of the W.P) passed by the Additional District Collector (East) canceling Certificate of Identification of petitioners No. 1 to 5 solely on the basis of the order dated 3/12/2009 passed by the Assistant Collector is also not in accordance with law. Further, in view of the above facts and circumstances of the case the Respondent No. 2 seeks liberty of this Hon'ble Court to conduct a fresh proceeding and pass necessary orders in accordance with law."
(3.) WHAT is more important in the instant case is the submission made by Mr. T.B. Thapa, learned senior counsel
appearing for the contesting respondent No. 3, who very fairly
brought to our notice the Notification No. 04/HOME/2006 dated
25.01.2006, as per which only the Committee constituted for the purpose of issuance of Certificate of Identification (COI) alone
has the jurisdiction to pass the impugned proceedings.
4.2 The said Notification reads as hereunder: " GOVERNMENT OF SIKKIM HOME DEPARTMENT GANGTOK No. 04/HOME/2006 Dated: 25/01/2006 NOTIFICATION In continuation and in partial modification of Notification No. 66/HOME/95 dated 22nd November, 1995, the State Government is hereby pleased to notify following further procedures relating to issue of Certificate of Identification (COI). 1. The District Officers authorized to issue COI shall issue COI only to direct descendents of SSC/COI holders appearing in the present updated list. 2. All other request for issue of COI shall be forwarded to the head Office for consideration after completing field verification as usual. 3. A Committee consisting of the following shall consider such application and accord approval for award of COI or otherwise. The Member Secretary shall communicate the cases approved by the Committee to the authorized District Officers for issue of COI. (i) Secretary, Home (ii) Secretary, DOPART (iii) Secretary, Law (iv) Secretary, UD and HD (v) Secretary, LR and DM - Member Secretary 4. The District Officers shall prepare a revenue blockwise list of persons to whom the COI has been issued and submit a copy to the Head Office on quarterly basis for compilation. 5. The District Offices shall prepare blockwise list of such certificate holders annually and display in public notice boards for public viewing and also send a copy to the concerned Gram Panchayat for its placement in their respective Gram Sabha. 6. In case of death of any of the holder of COI, the concerned Gram Panchayat shall report such death within the year under review, to the District Collector with a copy of death certificate for updation of the record. 7. The District Offices shall make entry of such reports in the concerned revenue block list for annual updation and forward a copy to the Head Office for concurrent updation. 8. In order to facilitate the issue of COI to the descendents of such deceased person, during updation, the name of such deceased persons shall not be deleted in the register. However, his death shall be recorded in the remarks column so that the certificate in the name of such persons stands cancelled. BY ORDER AND IN THE NAME OF THE GOVERNOR. N.D. CHINGAPA, IAS CHIEF SECRETARY F.No.124/GOS/LR and DMD (R) 2005-2006" (emphasis supplied) 4.3 According to Mr. T.B. Thapa, learned senior counsel the Notification dated 25.01.2006 has modified the earlier Notification dated 22.11.1995. As per clause 1 of the Notification dated 25.01.2006 the District Officers authorized to issue Certificate of Identification shall issue Certificate of Identification only to direct descendents of SSC/COI holders. As per clause 2 of the Notification, all other requests, as in the instant case, for issuance of Certificate of Identification shall be forwarded to the Head Office for consideration after completing field verification as usual. As per clause 3 of the Notification for identification, a Committee consisting of (i) Secretary, Home (ii) Secretary, DOPART (iii) Secretary, Law (iv) Secretary, UD and HD, and (v) Secretary, LR and DM Member Secretary shall consider such application and accord approval for award of Certificate of Identification or otherwise. 4.4 Further, Mr. T.B. Thapa, learned senior counsel for respondent No. 3 has brought to our notice that the impugned order suffers for want of jurisdiction for not complying with clause 3 of the notification dated 25.01.2006. Of course, Mr. J.B. Pradhan, learned Additional Advocate General also agrees with the submission made by Mr. Thapa, appearing for the contesting respondent No. 3. ;