LAL BAHADUR CHHETRI Vs. STATE OF SIKKIM

JUDGEMENT

(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-P1O 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 and 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 AnnexureP4 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 that 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 Honble 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 authority 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 : (AIR1998 SC 1608), (iv) Gulzar Singh v. Sub-Divisional Magistrate, reported in (1999) 3 SCC 107 : (AIR1999 SC 3801), (v) M. C. Mehta v. Union of India, reported in (2000) 7 SCC 422 : (AIR 2000 SC 3052).