ORDER
N.S. Singh, J.
1. In this writ petition, the writ petitioner questioned the validity of the Office Order No. 54(233) Home/96/156 dated 19th June 1996 as in Annexure-P10 to the writ petition by which the State Government withdrew the no objection and the allotment letter No. 77/Bldgs dated 21st April 1992 issued by the Chief Engineer-cum-Secretary, Buildings and Housing Department pertaining to the transfer of a plot of land along with Class-I quarters at Tibet Road to the petitioner, Shri L.B. Chhetri, by contending inter alia, that the impugned order was passed mechanically without application of mind, without any material arid in complete violation of principles of natural Justice and apart from that the legitimate right of the petitioner to property had been taken away and the impugned order virtually amounts to civil consequences.
2. According to the writ petitioner, late P. B. Chhetri of Ipsing, Samdong, the father of the writ petitioner was decorated on the birthday of the Chogyal of Sikkim in the year 1969 for his meritorious and loyal services to the State and while honouring the late father of the writ petitioner for his meritorious and loyal services, the Chogyal made commitment for granting some landed property to him and, in fact, the schedule property, i.e. the land and quarters, for short property in question situated within the Palace compound of Tibet Road was given to the writ petitioner by the then Chogyal of Sikkim in fulfillment of commitment to his late father for his services to the State as seen in the documents marked as Annexures-P1 and P2 to the writ petition. It is also the case of the writ petitioner that the property in question was not the private or personal property of the then Chogyal of Sikkim, but it was a State property and the allotment made by the then Chogyal in pursuance to the commitment made in 1969 in his sovereign capacity could not be a private or personal property of the Chogyal and that commitment made in 1969 by the Ruler was fulfilled in writing on 16th September 1981. However, since the institution of Chogyal was abolished from 26th May 1975, the successor Government granted settlement of property in favour of the petitioner thereby accepting, honouring and confirming the grant made by the then Maharaja in his sovereign capacity. In other words, the allotment made by the Chogyal on 16th September 1981 had been approved and/or ratified by the State Government of Sikkim and by virtue of the allotment, the possession of the property in question was handed over to the writ petitioner on 18th April 1992 as seen in the document marked as Annexure-P4 to the writ petition and thereafter, the Chief Engineer-cum-Secretary, Buildings and Housing Department issued an office order/letter dated 21st April 1992 as in Annexure-P5 showing the factum of no objection from the end of the Buildings and Housing Department in transferring the plot of land in the name of Shri L. B. Chhetri, the writ petitioner herein. The writ petitioner also stated in his writ petition that the land in question was mutated in his name on 2nd June 1993 on the strength of allotment made by the then Chogyal of Sikkim in the name of his late father Mondal P. B. Chhetri duly obtaining Government approval as seen in the document marked as a Annexure-P6 to the writ petition vide Office Memo No. 409/ SDO/(G) dated 2nd June 1995 issued by the Sub-Divisional Officer, East, Gangtok Sub-Division and in the meantime, the Chogyal Miwang Wangchuk Namgyal, son of late Chogyal Palden Thendup Namgyal had filed a Civil Suit bearing No. 17 of 1993 against the writ petitioner as one of the defendants, inter alia, praying for a declaration that the order/grant dated 16th September 1981 was ineffectual, incomplete and void ab-initio. But by a related order dated 7th February 2000, the learned District Judge (Special Division) before whom the suit was pending had rejected the plaint and against which the plaintiff therein filed Revision Petition No. 6 of 2000, but the same was also being dismissed, the plaintiff filed a Special Leave Petition which is still pending in the Hon’ble Supreme Court of India. It is also the case of the writ petitioner that the original plaint filed on 17th August 1993 was amended wherefrom the writ petitioner came to know that vide an office order dated 19th June 1996, the Chief Secretary, Government of Sikkim withdrew the no objection and allotment letter dated 21st April 1992 issued by the Chief Engineer-cum-Secretary, Buildings and Housing Department by which the schedule land along with Class-I quarters (property in question) at Tibet Road was transferred to the writ petitioner and allegedly resumed the property immediately as the same was recorded in the name of the Government and not as a personal property of the Chogyal of Sikkim.
3. Supporting the case of the writ petitioner, Mr. A. Moulik, learned counsel, contended that the impugned order was passed without authority of law and behind the back of the writ petitioner thus causing civil consequences and depriving the legitimate right of the writ petitioner over the property in question. According to the learned counsel, once the property in question was granted mutation and the possession of it was given to the writ petitioner, the State Government had no right or authority to cancel the same without hearing the writ petitioner and such allotment cannot be cancelled or withdrawn behind the back of the writ petitioner and as such the impugned order is violative of principles of natural justice. It is also argued by the learned counsel that the au thority concerned ought to have given a prior notice to the writ petitioner for his say before the allotment was cancelled or withdrawn under the impugned order. According to Mr. Moulik, learned counsel, cancellation of such allotment order and recovery of possession of immovable property cannot be done by any executive order. While supporting the case of the writ petitioner, Mr. A. Moulik, learned counsel relied upon the related decisions of the Apex Court rendered in —
(i) S. L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136,
(ii) Olga Tellis v. Bombay Municipal Corporation reported in AIR 1986 SC 180,
(iii) Larsen & Toubro Ltd. v. State of Gujarat, reported in (1998) 4 SCC 387 : (AIR 1998SC 1608),
(iv) Gulzar Singh v. Sub-Divisional Magistrate, reported in (1999) 3 SCC 107 : (AIR 1999 SC 3801),
(v) M. C. Mehta v. Union of India, reported In (2000) 7 SCC 422 : (AIR 2000 SC 3052).
4. The case of the writ petitioner is resisted by the State-respondents by contending inter alia, that the related no objection letter as in Annexure-P5 to the writ petition was issued inadvertently due to mistake and as such, by virtue of the impugned order dated 19th June 1996 as in Annexure-P10 to the writ petition, the said no objection letter dated 21st April 1992 was withdrawn and such withdrawal was made on the ground that the no objection letter (Annexure-P5) was a wrong order as the said property in question was property of the Government of Sikkim and that being the position, the Maharaja or any authority could not have made allotment of the said property on 8th September 1981 and 16th September 1981 vide Annexures-P1 and P2 to the writ petition and apart from that, the alleged allotment order No. 68/PE dated 16th September 1981 issued by the Secretary, Private State vide, Annexure-P2 could not have been made as the then Maharaja of Sikkim has no jurisdiction and power to allot such Government property to the writ petitioner and moreover, in the so-called grant of a small plot of land and house, plot numbers were not given. It is also the case of the State-respondents that the property in question recorded as Private Estate were Government property and not private or personal property of the then Maharaja of Sikkim and the writ petitioner did not mention anything about the commitment made by the Chogyal in 1969 in his application for allotment dated 3rd July 1978 as seen in the document marked as Annexure-R1 to the counter-affidavit. According to the State-respondents, in 1981, the Ex-Chogyal was not empowered to grant/allot lands which after 1975 vested in Government of Sikkim and the Maharaja/Chogyal could not have allotted or grant the land and property in question which had already been vested in the Government of Sikkim after 1975 and as such, so-called allotment orders dated 8th September 1981 and 16th September 1981 as in Annexures-P1 and P2 are, therefore, non est, void ab-initio and not enforceable in the eye of law and apart from that the said property in question did not belong to the Ex-Chogyal and the property in question where in possession of the Government of Sikkim and was being used as Government quarters and the Government officers who occupied the said quarters from whose salary house rent was deducted and the house rent so deducted used to go to the State exchequer and the writ petitioner being a Government officer/servant had also occupied the said quarters as a Government servant. It is also the case of the State-respondents that the title in the immovable property/property in question does not pass to the writ petitioner by handing over the schedule property and there is no valid transfer of the property in question to the writ petitioner by way of executing any deed or allotment by competent authority and apart from that the Buildings and Housing Department is not the competent authority to transfer the Government land and even if the records of right are corrected as alleged by the writ petitioner, it does not pass the title unless there are valid legal documents relating to transfer of the property in question and, the said mutation order dated 2nd June 1993 was also set aside and declared to be invalid by a related order of District Collector, East Sikkim, Gangtok dated 30th January 1997.
5. So far the allegations/statements made by the writ petitioner in paragraphs 16 and 17 of the writ petition, it is the reply of the State-respondents that the suit being Civil Suit No. 18 of 1999 though it was not entertained by the learned District Judge (Special Division), Sikkim as the plaint was rejected and also by rejection of condonation application in filing related appeal by this court, on appeal by the appellant, Chogyal Miwang Wangchuk Namgyal, the Apex Court set aside the impugned judgment and order passed by this High Court thus allowing being Civil Appeal No. 458 of 2002 arising out of SLP (C) NO. 10113 of 2001 (Annexure-R11) and directing this Court to dispose of the appeal preferred by the said Chogyal Miwang Wangchuk Namgyal on merits in accordance with law vide. Order dated 14th January 2002 passed in Civil Appeal No. 458 of 2002 and in view of the appeal pending before this Court dealing with the question of ownership of the scheduled property, the present writ petition is not maintainable.
6. Mr. N. B. Khatiwada, learned Additional Advocate General for the State-respondents submitted that the competent authority had rightly withdrawn the Government approval letter dated 21st April 1992 (Annexure-P5) under the impugned order dated 19th June 1996 after considering the existing facts and circumstances of the case and as such there is no infirmity and illegality in it and that no question of violation of natural justice shall arise in the instant case inasmuch as no prior notice upon the writ petitioner is called for before passing the impugned office order dated 19th June 1996 as in Annexure P10 to the writ petition. According to Mr. Khatiwada, learned Additional Advocate General, if the impugned order is set aside or quashed on the ground of violation of principles of natural justice, it will amount to perpetuate the illegal order in other words, the said illegal order of approval, no objection etc. etc. as in Annexures-P4 and P5 will remain and it shall continue. Mr. Khatiwada, learned Additional Advocate General supports the action of the State-respondents pertaining to the withdrawal of the office order/letter dated 21st April 1992 and further contended that there is no valid allotment order of the property in question to and in favour of the writ petitioner in terms of the provisions of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985. The Chogyal of Sikkim had no authority or power or jurisdiction either to allot or grant of plot of land and/or house/ property in question under the related office orders/letters dated 8th September 1981 and 16th September 1981 and apart from that, there is no whisper in the related application dated 3rd July 1978, i.e. the allotment application (Annexure-R1) that the late father of the writ petitioner, Mondal P. B. Chhetri did loyal and meritorious services to the then Maharaja of Sikkim during his lifetime and Chogyal made commitment for grant of plot of land to him. But the writ petitioner urged and insisted upon the respondent-authority that he has not been able to acquire any assets nor even a hut for his family and children and for the future of his children he is left with no option but to approach his employer to grant a plot indicated in the enclosed sketch map appended to the allotment application. Mr. Khatiwada, learned Additional Advocate General argued. Supporting the case of the State-respondents, Mr. Khatiwada, learned Additional Advocate General relied upon the decisions of the Apex Court rendered in —
1. A. M. Mani v. Kerala State Electricity Board represented by its Secretary, Trivandrum, reported in AIR 1968 Kerala 76,
2. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in AIR 2001 SC 24,
3. Nazira Begum Lashkar v. State of Assam reported in AIR 2001 SC 102,
4. Kendriya Vidyalaya Sangathan v. Ajay Kumar Das, reported in AIR 2002 SC 2426,
5. Dr. Suresh Chandra Verma v. The Chancellor, Nagpur University, reported in (1990) 4 SCC 55 : (AIR 1990 SC 2023).
7. Now, this Court is to see and examine as to whether the writ petitioner, Shri L. B. Chhetri has enforceable legal right in the instant case or not, and whether the impugned order dated 19th June 1996 as in Annexure-PIO to the writ petition is violative of principles of natural justice or not?
8. From the available materials on record, namely, documents marked as Annexures-P1 and P2, it is revealed that the Chogyal Chenpo of Sikkim had been pleased to grant Shri L. B. Chhetri, the writ petitioner herein, a small plot of land and house situated within the Palace compound in fulfilment of commitment made to his late father Mondal P. B. Chhetri for loyal and meritorious services vide letters dated 8th September 1981 and 16th September 1981 respectively issued by the Maharaja of Sikkim and the Secretary, Private Estate of Maharaja. These documents marked as Annexures-P1 and P2 do not disclose about the specific identity and particulars of the said small plot of land and house, but according to the writ petitioner, it is the property in question, namely, 1st class quarters including compound once occupied by one Dr. M. R. Kotwal at Tibet Road. Further, perusal of the available materials on record shows that the said plot of land as claimed by the writ petitioner was initially recorded as private estate and not as a private or personal property of the then Chogyal of Sikkim and since the aforesaid plot of land under plot No. 343 has been recorded as Ghar I No, Quarters 3 Nos. latrine 1 No. as Sikkim Sarkar, it was a Government property and not a private and personal property of the then Maharaja. According to me, the Maharaja of Sikkim had no jurisdiction and power to grant or allot the property in question in the year 1981 to the writ petitioner which had already been vested in the Government of Sikkim after 1975 (i.e. after annexation) and apart from that, there is no whisper in the documents marked as Annexures-P1 and P2 about the identity and the specific boundary description of the land and house so granted by the Maharaja of Sikkim to the writ petitioner in fulfilment of commitment made to his late father for his loyal and meritorious services. On the other hand, the claim of the writ petitioner about his ownership and title over the property in question is vague and the same is not free from doubt inasmuch as the writ petitioner filed an application for allotment of a plot of land to the State-authority, on 3rd July 1978 (Annexure-R1) Indicating the identity of the land in the enclosed sketch map appended to the application for the future of his children and, to afford sympathetic consideration in recognition of his sincere and loyal services and in consideration of highest sense of duty and integrity rendered to the Government of Sikkim (emphasis given). On the other hand, the writ petitioner in his writ petition stated that while honouring his late father in the year 1969 for his meritorious and loyal services, the Chogyal made commitment for granting some landed property to him. The petitioner, however, was granted the scheduled property and this fact will be proved from the notes and the orders made by the Chogyal/Maharaja himself in his own handwriting on the file No. 4(47) B 94-95 dated 8th September 1981 (Annexure-P1). The contents of the paragraph 3 of the writ petition and the allotment application dated 3rd July 1978 of the writ petitioner are relevant and accordingly, these are quoted below :–
“3. That late P. B. Chhetri of Ipsing, Samdong, the father of the petitioner was decorated on the birthday of the Chogyal of Sikkim in the year 1969 for his meritorious and loyal services to the State. While honouring late father of the petitioner in the year 1969 for his meritorious and loyal services, the Chogyal made commitment for granting some landed property to him. In fact the schedule property situated within the palace compound at Tibet Road was given to the petitioner by the then Chogyal of Sikkim when his father was decorated for services to the State. However, in the meantime, the political situation of Sikkim became fluid and because of political disturbances the commitment could not be fulfilled in black and white. However, the fact that petitioner’s father was granted and schedule property will be proved from the notes and orders made by the Chogyal/Maharaja himself in his own handwriting on the file on the 8th September, 1981, which reads as follows :–
“We may write to Mr. L. B. Chhetri that the land and house is granted to him in fulfilment of commitment to his late father Mondal P. B. Chhetri for loyal and meritorious service.
Sd/- (P. T. Namgual)
8-9-81.”
A copy of the order dated 8-9-1981 by the Chogyal P.T. Namgyal is filed and marked as Annexure P-1.”
“To
The Hon’ble Minister for
Local Self Government,
Government of Sikkim,
Tashlling, Gangtok.
Through : The Chief Engineer,
Sikkim P.W.D.
Gangtok.
Sir,
I beg to submit that I come from a genuine farmer’s family of an
interior village of Sikkim and have been working for the Government of
Sikkim for the last several years.
While I have spent most part of my life in public service with high sense of duty and integrity I have not been able to acquire any assets, nor even a hut for my family and children.
You will kindly appreciate that these children were born in Gangtok and have Just begun their primary education, but with my retirement time coming close, the future of these children is very dark, as they will have to return to village, leaving their education halfway, just because they will not have even a hut to live in.
In view of the foregoing and for the future of my children I am left with no option but to approach my employer, the benign Government through you for consideration to grant a plot indicated in the enclosed sketch and I have high hopes that the request will be given very sympathetic consideration in recognition of my sincere and loyal service and in consideration of highest sense of duty and integrity rendered to the Government of Sikkim.
Thanking you,
I remain.
Yours faithfully,
Sd/-
Dated : Dt. 3-7-78
Gangtok, the 3rd July 78. L. B. Chhetri
Additional Chief Engineer,
Sikkim P.W.D. Gangtok."
[Enclosed Sketch Map]
The said allotment application dated 3rd July 1978 (Annexure-R1) does not speak about the commitment made by the Ex-Chogyal for grant of land to the late father of the writ petitioner in the year 1969, but the writ petitioner speaks about the commitment of the Chogyal of Sikkim for granting of some land to the late father of the writ petitioner in the writ petition, and strangely he claimed for allotment of the plot of land which is indicated in the enclosed sketch map for his livelihood by giving weightage and recognising his (writ petitioner) sincere and loyal service and in consideration of highest sense of duty and integrity rendered to the State of Sikkim and apart from that the writ petitioner made out a schedule of the land in question from his own sources which was granted in pursuance of the said office orders/letters dated 8th September 1981 and 16th September 1981 (Annexures-P1 and P2) issued by the Maharaja of Sikkim and Secretary, Private Estate of Maharaja in the following order :–
“SCHEDULE
All that a plot of land measuring about 0.51 acres situated within the Palace Compound at Tibet Road, Gangtok bearing Plot NOs. 342, 343, 344 and 346 along with a Class I Quarter on the said land butted and bounded by :
East : Road
West : Road
North : Road
South : Land of Dawa Samdup and Karma
Bhutia.”
9. By virtue of the office letter dated 20th April 1992 as in Annexure-P4 to the writ petition, the factum of handing over and taking over of the Government-land and the Government quarters in favour of the writ petitioner on 18th April 1992 has been established and thereafter, the Chief Engineer-cum-Secretary, Buildings and Housing Department issued an office letter dated 21st April 1992 as in Annexure-P5 to the writ petition informing the District Collector, East District, Government of Sikkim, Gangtok that the State Government has approved handing over of a plot of land in the Tibet Road to the writ petitioner and the authority have no objection in transferring the plot of land in the name of the writ petitioner. By virtue of this office letters/orders dated 20th April 1992 and 21st April 1992, the land measuring 0.51 acres under plot Nos. 342, 343, 344 and 346 has been mutated in the name of the writ petitioner vide, office letter/order dated 2nd June 1993 as in Annexure-P6 which speaks that on the strength of the allotment made by the then Chogyal of Sikkim in the name of the writ petitioner’s late father duly obtaining Government approval, mutation has been granted. Annexure-P4 document, i.e. office letter dated 20th April 1992 which speaks about the handing over and taking over of Class-I quarters at Tibet Road previously occupied by one Dr. M. R. Kotwal to and in favour of the writ petitioner who was Secretary, Rural Development Department, Government of Sikkim, on 18th April 1992 for his private use as desired by the Government and while handing over, the following Government furniture had also been given to the writ petitioner for his private use without value :–
“Inventory list of Furniture :
1. Wardrobe 1 No
2. Writting Table 1 No
3. Wooden Bed Single 1 No
4. Wooden Bed Double 1 No.
5. Sofa Set 1 No (3 PCS)
6. Built in Almirah 1 No
7. Kitchen Table 1 No
8. Writting Table 1 No
Furniture (bath room attached to bed room)
1. Wash basin with
2 Pillar 1 No.
2. Orissa pan with L. L. Cistern 1 No.
3. Mirror Round 1 No.
4. Towel rail 1 No.
5. Stop cock 1 No.
6. Bib cock 1 No.
7. Shower 1 No.
(bath room attached to sitting room)
1. O.C. European with L. L. Cistern 1 No.
2. Wash basin 1 No.
3. Shower 1 No.
4. Stop cock 1 No.
5. Bib cock 1 No.
6. Towel rail 1 No.
7. Mirror 1 No.
Handed Over by : Taken Over
(J. P. Kothari) (L. B. Chhetri)
18-4-92."
For better appreciation in the matter the office letter 21st April 1992 issued by the Chief Engineer-cum-Secretary, Buildings and Housing Department on the ‘Subject transfer of Government land to the writ petitioner is quoted below :–
"GOVERNMENT OF SIKKIM
BUILDINGS & HOUSING DEPARTMENT
No. 77/Bldgs Dated, Gangtok,
21-4-1992
To :
The District Collector,
East District,
Government of Sikkim,
Gangtok.
Subject: Transfer of Government land to Shri L. B. Chhetri
Madam,
This is to inform you that the State Government has been pleased to
approve handing over of a plot of land in Tibet road to Shri L. B.
Chhetri, Secretary -- Rural Development Department. Hence we have no
objection in transferring the plot of land in the name of Shri L. B.
Chhetri as shown in the enclosed plan.
Thanking you.
Yours faithfully,
Sd/-
Chief Engineer-cum-Secretary,
Building and Housing Department"
10. From the above discussions, it is crystal clear that the entire process of allotment of the property in question to and in favour of the writ petitioner is not known in the eye of law. In other words, these are all illegal processes taken up by the authority concerned. It may be mentioned that this transfer of Government land and property in question to and in favour of the writ petitioner was done by the authority without following procedural standard and without due process of law. Moreover, it is in complete violation of the mandatory provision of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act. 1985. The alleged allottee, i.e. the writ petitioner did not pay any salami or premium or revenue for the land and quarters and furniture allotted to him as claimed by him at any or all relevant times. In my considered view, the learned District Collector, East District, Government of Sikkim, Gangtok rightly set aside the order of mutation dated 2nd June 1993 vide, his order dated 13th January 1997 as highlighted by the State-respondents as in paragraph 26 of the counter-affidavit which could not be rebutted by the writ petitioner and as such, the said mutation order dated 2nd June 1993 shall be deemed to be invalid and illegal. Apart from that these office letter and orders dated 8th September 1981 and 16th . September 1981 as in Annexures-P1 and P2 to the writ petition is an order passed without jurisdiction and accordingly, the same is null and void. Similarly, the office orders/ letters dated 20th April 1992 and 21st April 1992 are also not tenable in the eye of law and the same are null and void. These office orders are orders passed without jurisdiction and the same cannot be enforceable in the eye of law. Moreover, the alleged allotment of property in question, i.e. Government land and Government Residential Quarters to and in favour of the writ petitioner under the related letters/orders mentioned above as claimed by the writ petitioner is not known under any law of this Country.
11. I am of the view that the case laws cited by Mr. A. Moulik, learned counsel for the writ petitioner do not support the case of the writ petitioner rather it supports the case of the State-respondents. In the instant case, no prior notice or reasonable opportunity of hearing of the writ petitioner is not called for before passing the impugned order dated 19th June 1996. According to me, if the impugned office order dated 19th June 1996 is quashed, an illegal order dated 21st April 1992 as in Annexure-P5 pertaining to the no objection in transferring the plot of Government land in the name of the writ petitioner will be restored in its original position. In other words, it shall result in revival of that order of 21st April 1992 (Annexure-P5) which is in itself illegal and void ab initio. Therefore, it is not necessary to quash the impugned order dated 19th June 1996 (Annexure-P10) merely because of violation of principles of natural justice, even assuming. I am also of the view that applications of the principle of natural justice depends upon the facts of the cases concerned for which the Court is to see and apply its judicial mind to the nature of a particular case(s) and to see as to whether it is necessary to quash a related order which was passed in violation of natural Justice or without prior notice or not? As the basic concept of principle of natural justice is fair play in action administrative, judicial and quash-judicial, it depends on facts and circumstance of each particular case. In the case in hand, there is no violation of principles of natural justice as claimed by the writ petitioner. At this stage, I hereby recall the decision of the Apex Court rendered in Aligarh Muslim University v. Mansoor Ali Khan reported in AIR 2000 SC 2783, wherein the Apex Court held thus (Paras 20, 22, 23 & 24) —
“As pointed recently in M.C. Mehta v. Union of India, (1999) 6 SCC 237 : AIR 1999 SC 2583 : 1999 AIR SCW 2754 there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadda Venkateswara Rao v. Government of Andhra Pradesh, (1965) 2 SCR 172 : AIR 1966 SC 828 it is not necessary to quash the order merely because of violation of principles of natural justice.
………………………………………………………………………..
Chinnappa Reddy, J. in S. I. Kapoor’s case AIR 1981 SC 136 laid two exceptions (at p. 395 of SCC) : (at pp. 147 and 148 of AIR) namely, “if upon admitted or indisputable facts only one conclusion was possible”, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, It is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
The principle that in addition to breach of natural Justice, prejudice must also be proved has been developed in several cases. In K.L.Tripathi v. State Bank of India, (1984) 1 SCC 43 ; AIR 1984 SC 273 : 1983 Lab 1C 1680 Sabyasachi Mukharji, J. (as he then was) also laid down principle that not mere violation of natural Justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed : quoting Wade Administrative Law (5th Ed. Pp. 472-475) as follows (para 31) :
“……….it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent …………. There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural Justice. The requirements of natural Justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth.”
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S. K. Sharma, (1996) 3 SCO 364 : AIR 1996 SC 1669: 1996 AIR SCW 1740. In that case, the principle of ‘prejudice’ has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M. P. (1996) 5 SCC 450 : AIR 1996 SC 2736 : 1996 AIR SCW 3424.
The ‘useless formality’ theory, it must be noted, is an exception. Apart from the class of cases of “admitted or indisputable facts leading only to one conclusion” referred to above, — there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta, AIR 1999 SC 2583 : 1999 AIR SCW 2754, referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, Megarry, J. and Straughton, L. J. etc. in various cases and also views expressed by leading writers, like Profs, Garner, Craig, De Smith, Wade, D. H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some other have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.”
12. It is not the duty and function of a High Court while exercising its power and jurisdiction under Article 226 of the Constitution of India to allow an illegal order passed without Jurisdiction to continue and remain as it is, if it is seized in a writ proceeding. According to me, these office orders/letters as in Annexures-P1, P2, P4 and P5 were/are orders passed by the authority concerned without jurisdiction and accordingly, the same are null and void and these are not enforceable in the eye of law. As discussed above, if this Court quashes the impugned office order dated 19th June 1996, it would have restored an illegal order, i.e. the order dated 21st April 1992 as in Annexure-P5. Therefore, this Court shall not interfere with the impugned office order dated 19th June 1996. At this stage, another reference can be made to a decision of the Apex Court rendered in Gadda Venkate-swara Rao v. Government of Andhra Pradesh reported In AIR 1966 SC 828.
13. It may be mentioned that even assuming but not admitting the fact that the Chogyal of Sikkim made commitment for granting some landed property to late father of the writ petitioner in the year 1969 and even if the writ petitioner’s father was granted the scheduled property in fulfilment of the said commitment to him for loyal and meritorious services, how the land in question should be given/allotted to the writ petitioner only? Why not to other legal heirs of late father-Mondal P. B. Chhetri including his (writ petitioner) two other brothers as seen from the available materials on record? It is highly astounded to see the case of the writ petitioner where procedural lapses and disorder took place as discussed above.
14. It is also noteworthy to mention that the impugned office order was issued by the authority concerned on 19th June 1996 as seen in the document marked as Annexure-P10 and the present writ petition was filed by the writ petitioner before this Court in the year 2001, i.e. on 22nd October 2001; after more than 5 (five) years from the date of the issuance of the impugned office order. The writ petitioner could not give/assign cogent reasons or sufficient grounds for such delay in filing the writ petition. According to me, the present writ petition is also defeated by delay and laches and on this ground alone, the writ petition deserves its outright dismissal. I made this observation keeping in view of this particular nature of the present case.
15. For the reasons, observations and discussions made above, I am of the view that the writ petitioner could not make out a case to justify the interference with the impugned Government Office order dated 19th June 1996 as in Annexure-P10 to the writ petition. In the result, the petition is devoid of merit and accordingly, it is dismissed with a cost of Rs. 5,000/- (Rupees five thousand) which shall be paid by the writ petitioner within a period of a month from today. It is made clear that the said sum of Rs. 5,000/- shall form part of the Sikkim State Legal Aid fund for which the Registrar General of this Court shall remit and deposit the same with the appropriate authority after the writ petitioner deposits the said cost of Rs. 5,000/- with the Registry of this Court within the stipulated time given above.