KUMAR TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Petitioner is aggrieved by the cancellation of his Certificate of Identification (COI) issued on 3/7/1992, vide Sl. No.1253/DCE, by the District Collector (DC), East District, which identifies him as a resident of the State of Sikkim and by extension an indian national, without affording him allegedly, an opportunity of being heard. The Petitioner, while thus assailing the Order dtd. 12/2/2020 of the Respondent No.3, in Case No.03/DC/2019 (Pahal Man Kami, Soreng, West Sikkim vs. Kumar Tamang, s/o. lt. Dhan Man Tamang), contended that besides his COI being cancelled by the impugned Order, the Respondent No.3 in wrongful exercise of the jurisdiction conferred on him directed the Sub-Divisional Magistrates (SDM) of Gangtok, Rangpo, Rongli and Pakyong to cancel landed properties transactions which were based on the Petitioner's COI and further directed the Station House Officer (SHO) of the Sadar Police Station to register a case against the Petitioner for misrepresentation of facts.

(2.) Learned Senior Counsel for the Petitioner adverting to the facts of the case contended that in the erstwhile kingdom of Sikkim, Sikkim Subject Certificate (SSC) was issued to its citizens in terms of the Sikkim Subject Regulation, 1961. This regulation was repealed from the 'Appointed Day' i.e., 26/4/1975, when Sikkim became the 22nd State of India. Nevertheless, the state adopted the practice of issuing COI whereby such certificates were issued inter alia to persons whose father's name was included in the register of SSC. That, the Petitioner is a permanent resident of Kayong Busty, Pakyong Sub-Division and his parents are late Dhan Man Tamang and late Ganga Maya Tamang, which is recorded as such in the school admission register of the Government School, at Dikiling, where he was educated and his date of birth is 6/6/1966. He was known variously as Kumar Tamang and Hari Kumar Tamang. Later he chose to be a professional driver. The COI (supra) was issued to him on due verification obtained from the local Panchayat, the Superintendent of Police (SP), Special Branch, dtd. 17/6/1992 and from the office of the Revenue Supervisor (East), dtd. 7/5/1992. Both documents found him to be the son of late Dhan Man Tamang. That, from 2009 to 2019 the Petitioner's wife was elected as a Member of the Legislative Assembly (MLA), from a Constituency in South Sikkim and was a Minister in the Government led by the Sikkim Democratic Front party. To humiliate and defame her, one Madan Tamang was instigated by her political rivals to file a false case on 28/8/2018, complaining that her husband, had procured a COI falsely claiming to be the son of late Dhan Man Tamang when in fact he was his step grandson. COI Case No.20 of 2018 (Mr. Madan Tamang, r/o Palitam Busty, Namthang vs. Mr. Kumar Tamang, r/o. Kayong Busty, East Pendam) was registered before the Respondent No.3, which was subsequently withdrawn on 16/1/2019, the Complainant having admitted that the Petitioner was the real son of late Dhan Man Tamang. A second Complaint dtd. 18/7/2019 came to be lodged by one Pahalman Kami, who too alleged that the Petitioner's COI was obtained falsely. This Complaint was registered as COI Case No.03/DC/2019 (Pahal Man Kami, Soreng, West Sikkim vs. Kumar Tamang, s/o. lt. Dhan Man Tamang) in the office of the Respondent No.3. On 20/11/2019, the Complainant sought to withdraw his Complaint on his failure to substantiate his case. The withdrawal application was taken up on the same date but the Respondent No.2 instead of giving the case a closure, mala fide issued an Order on 25/11/2019, directing Respondent No.3 to take up the matter suo motu and enquire immediately, sans reasons. It was further alleged that the above situation arose as the Respondent No.2 had inimical relations with the Minister on account of his transfer, allegedly at her behest, from the post of District Collector to a less influential post. That, at the instance of Respondent No.2, Respondent No.3 issued letters to the Principal of the Petitioner's school, the Station House Officer (SHO) Pakyong Police Station, and the SP, Special Branch and the relevant Panchayat. The report from the school dtd. 21/1/2020 (Annexure ' P13) and the Panchayat report dtd. 17/12/2019 revealed that he is the son of late Dhan Man Tamang and the latter also certified that the COI was not obtained fraudulently. However, the SP, Special Branch, vide enquiry report dtd. 11/12/2019, reported the Petitioner to be the maternal grandson of late Dhan Man Tamang and son of Nehma Tamang, the elder daughter of late Dhan Man Tamang. That, the Petitioner is the son of one Madan Chettri, who went missing five years ago and the Petitioner was residing in his maternal grandfather's house. That, despite the conflicting reports (supra) the Respondent No.2 and the Respondent No.3 did not take steps to unveil the real truth by extending an opportunity of hearing to the Petitioner but proceeded to pass the impugned Order devoid of any hearing.

(3.) Vehemently contesting the claims put forth by Learned Senior Counsel for the Petitioner, Learned Government Advocate for the State-Respondents No.1 to 4 contended that the allegation and submissions made by the Petitioner are contrary to the records. That, while obtaining the COI in the year 1992 the Petitioner had misrepresented and misled the issuing authority that he was the son of late Dhan Man Tamang and late Ganga Maya Tamang sans documents to fortify his claims, besides there are no records to indicate that Kumar Tamang and Hari Kumar Tamang are one and the same person. While admitting that the Panchayat in their verification report dtd. 17/12/2019 had stated that the Petitioner is the son of late Dhan Man Tamang, it was submitted that the Panchayat report pales in the face of the fact that no proof exists on this count. When the COI was obtained by the Petitioner it was only on the basis of the reports of the SP East, the Revenue Supervisor and Panchayat Members all of which however identified him as Kumar Tamang, son of late Dhan Man Tamang and not Hari Kumar Tamang as well. Hence, the Petitioner's claim that Hari Kumar Tamang and Kumar Tamang are one and the same person has no merit. That, as the two Complainants mentioned by the Petitioner supra, withdrew their Complaints within a few days of registering their respective cases, it is indicative of the fact that the Petitioner resorted to unfair means and tactics to persuade them to withdraw their Complaints. The fact that the transfer certificate of Hari Kumar Tamang was obtained belatedly in the year 2018 from the school where he allegedly studied reveals that the Petitioner had resorted to fraudulent means to prove that he is the son of late Dhan Man Tamang. Categorically submitting that the Petitioner's claims of violation of the fundamental rights were baseless, it was argued that the enquiry against the Petitioner was conducted as per the provisions of Notification bearing No.119/Home/2010, dtd. 26/10/2010 and the answering Respondents have not influenced the reports of the Special Branch and the SHO Pakyong. That, on receipt of the Complaint from Pahalman Kami the first hearing was held on 26/9/2019 during which the Complainant and the Petitioner were present, belying the Petitioner's contentions of lack of hearing. A copy of the Complaint was made available to the Petitioner who was directed to submit his reply before 6/11/2019 to which he requested for an adjournment on 7/11/2019 but failed to submit his reply. Another hearing then followed on 29/1/2020 during which the verification reports received from the Special Branch of Police, SHO Pakyong Police Station and concerned Gram Panchayat were given to the Petitioner and he was directed to submit his reply if any by 31/1/2020 which he again filed belatedly on 10/2/2020. Besides the above, he was also given an opportunity to submit any relevant documents pertaining to his COI to counter the allegations but no documents were submitted. The report of the Special Branch of Police and the Pakyong Police Station dtd. 11/12/2019 and 26/1/2020 respectively clearly establish that the Petitioner is not the son of late Dhan Man Tamang. The report dtd. 30/12/2019 said to be in favour of the Petitioner is not in the records maintained by the office and was never received by the State-Respondents from such a person. Denying the allegation of the Order being arbitrary and in excess of jurisdiction, it was contended that the Petitioner was dealt with judiciously and afforded sufficient opportunity to defend his case. That, an alternate efficacious remedy of an Appellate forum established vide Notification bearing No.119/Home/2010, dtd. 26/10/2010, is available to the Petitioner, who cannot be allowed to invoke the Writ jurisdiction of this Court without exhausting the remedy available. Hence, the Respondents having acted fairly and judiciously the Writ Petition deserves a dismissal.