{"id":196457,"date":"2003-07-21T00:00:00","date_gmt":"2003-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-lal-bahadur-chhetri-vs-the-state-of-sikkim-on-21-july-2003"},"modified":"2017-12-06T10:41:04","modified_gmt":"2017-12-06T05:11:04","slug":"shri-lal-bahadur-chhetri-vs-the-state-of-sikkim-on-21-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-lal-bahadur-chhetri-vs-the-state-of-sikkim-on-21-july-2003","title":{"rendered":"Shri Lal Bahadur Chhetri vs The State Of Sikkim on 21 July, 2003"},"content":{"rendered":"
Sikkim High Court<\/div>\n
Shri Lal Bahadur Chhetri vs The State Of Sikkim on 21 July, 2003<\/div>\n
Equivalent citations: AIR 2004 Sik 1<\/div>\n
Author: N Singh<\/div>\n
Bench: N Singh<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
N.S. Singh, J.<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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 —\n<\/p>\n
(i) S. L. Kapoor v. Jagmohan,<\/a> reported in AIR 1981 SC  136,<\/p>\n
(ii) Olga Tellis v. Bombay Municipal Corporation<\/a> reported in AIR  1986 SC 180,<\/p>\n
(iii) Larsen & Toubro Ltd. v. State of Gujarat,<\/a> reported in (1998) 4  SCC 387 : (AIR 1998SC 1608),<\/p>\n
(iv) Gulzar Singh v. Sub-Divisional Magistrate,<\/a> reported in (1999) 3  SCC 107 : (AIR 1999 SC 3801),<\/p>\n
(v) M. C. Mehta v. Union of India,<\/a> reported In (2000) 7 SCC 422 :  (AIR 2000 SC 3052).\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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 —\n<\/p>\n
1. A. M. Mani v. Kerala State Electricity Board  represented by its Secretary, Trivandrum, reported in AIR 1968 Kerala  76,<\/p>\n
2. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant,<\/a> reported in  AIR 2001 SC 24,<\/p>\n
3. Nazira Begum Lashkar v. State of Assam<\/a> reported in AIR 2001 SC  102,<\/p>\n
4. Kendriya Vidyalaya Sangathan v. Ajay Kumar Das,<\/a> reported in AIR  2002 SC 2426,<\/p>\n
5. Dr. Suresh Chandra Verma v. The Chancellor, Nagpur University,<\/a>  reported in (1990) 4 SCC 55 : (AIR 1990 SC 2023).\n<\/p>\n
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?\n<\/p>\n
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 :–\n<\/p>\n
“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 :–\n<\/p>\n
“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.\n<\/p>\n
Sd\/- (P. T. Namgual) <\/p>\n
8-9-81.”\n<\/p>\n
A copy of the order dated 8-9-1981 by the Chogyal P.T. Namgyal is  filed and marked as Annexure P-1.”\n<\/p>\n
“To<\/p>\n
The Hon’ble Minister for <\/p>\n
        Local Self Government, <\/p>\n
        Government of Sikkim, <\/p>\n
        Tashlling, Gangtok.\n<\/p>\n
         Through  :  The Chief Engineer,
\n                 Sikkim P.W.D.\n<\/p>\n
                 Gangtok.\n<\/p>\n
Sir,<\/p>\n
I beg to submit that I come from a genuine farmer’s family of an
\ninterior village of Sikkim and have been working for the Government of
\nSikkim for the last several years.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
Thanking you,<\/p>\n
I remain.\n<\/p>\n
Yours faithfully, <\/p>\n
Sd\/-\n<\/p>\n
 Dated :                                                      \t\t   Dt. 3-7-78\nGangtok, the 3rd July 78.                                               L. B. Chhetri\n                                                           Additional Chief Engineer,\n                                                             Sikkim P.W.D. Gangtok.\"\n\n \n\n[Enclosed Sketch Map]\n\n \n\n<\/pre>\n
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 :–\n<\/p>\n
“SCHEDULE<\/p>\n
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 :\n<\/p>\n
  East  :\tRoad
\nWest  :\tRoad
\nNorth :\tRoad
\nSouth : Land of Dawa Samdup and Karma
\n        Bhutia.”\n<\/p>\n
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 :–\n<\/p>\n
  “Inventory list of Furniture :\n<\/p>\n
  1. Wardrobe\t        1 No\n  2. Writting Table\t1 No\n  3. Wooden Bed Single\t1 No\n  4. Wooden Bed Double\t1 No.\n  5. Sofa Set\t        1 No (3 PCS)\n  6. Built in Almirah\t1 No\n  7. Kitchen Table\t1 No\n  8. Writting Table\t1 No\n\nFurniture (bath room attached to bed room)\n  1. Wash basin with\n     2 Pillar\t  1 No.<\/span>\n  2. Orissa pan with L. L. Cistern 1 No.\n  3. Mirror Round 1 No.\n  4. Towel rail   1 No.\n  5. Stop cock    1 No.\n  6. Bib cock     1 No.\n  7. Shower\t  1 No.\n\n(bath room attached to sitting room)\n  1. O.C. European with L.  L. Cistern 1 No.\n  2. Wash basin   1 No.\n  3. Shower\t  1 No.\n  4. Stop cock    1 No.\n  5. Bib cock     1 No.\n  6. Towel rail   1 No.\n  7. Mirror 1 No.\n\nHanded Over by :                                                           Taken Over\n(J. P. Kothari)                                                       (L. B. Chhetri)\n                                                                           18-4-92.\"\n\n \n\n<\/pre>\n
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 :–<\/p>\n
\n\n  \n\n\"GOVERNMENT OF SIKKIM \n\nBUILDINGS & HOUSING DEPARTMENT\n\n No. 77\/Bldgs                           \t                        Dated, Gangtok,\n                                                                      21-4-1992\n \n\nTo :\n    \n\nThe District Collector,\n    \n\nEast District,\n    \n\nGovernment of Sikkim,\n    \n\nGangtok.\n \n\nSubject: Transfer of Government land to Shri  L. B. Chhetri \n \n\nMadam,\n \n\n This is to inform you that the State Government has been pleased to\napprove handing over of a plot of land in Tibet road to Shri L. B. \nChhetri, Secretary -- Rural Development Department. Hence we have no \nobjection in transferring the plot of land in the name of Shri L. B. \nChhetri as shown in the enclosed plan.\n              \n\nThanking you.\n \n\nYours faithfully,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \n\n       Sd\/-\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \n\n    Chief Engineer-cum-Secretary, \u00a0\u00a0 \n\n   Building and Housing  Department\"\u00a0\u00a0\n\n \n\n<\/pre>\n
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.\n<\/p>\n
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<\/a> reported in AIR 2000 SC  2783, wherein the Apex Court held thus (Paras 20, 22, 23 & 24) —\n<\/p>\n
“As pointed recently in M.C. Mehta v. Union of India,<\/a> (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,<\/a> (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.\n<\/p>\n
 ………………………………………………………………………..\n<\/p>\n
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.\n<\/p>\n
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,<\/a> (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) :\n<\/p>\n
 “……….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.”\n<\/p>\n
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,<\/a> (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.\n<\/p>\n
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.”\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Sikkim High Court Shri Lal Bahadur Chhetri vs The State Of Sikkim on 21 July, 2003 Equivalent citations: AIR 2004 Sik 1 Author: N Singh Bench: N Singh 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-196457","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nShri Lal Bahadur Chhetri vs The State Of Sikkim on 21 July, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-lal-bahadur-chhetri-vs-the-state-of-sikkim-on-21-july-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Lal Bahadur Chhetri vs The State Of Sikkim on 21 July, 2003 - 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