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Judgment
P.D. Dinakaran, C.J.—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 Gangtok: Sikkim.
Memo No : 856/DCE Dated: 30.3.2010.
ORDER
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 v. 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.
2.1 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 03.12.2009 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 03.12.2009 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 03.12.2009, though were sought for by the petitioners, the same were furnished to them only after passing of the final order dated 03.12.2009, which vitiated the final order passed by the Assistant Collector on 03.12.2009, 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.
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:
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 dated 3/12/2009 (@ 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.
4.1 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).
The District Officers authorized to issue COI shall issue COI only to direct descendents of SSC/COI holders appearing in the present updated list.
All other request for issue of COI shall be forwarded to the head Office for consideration after completing field verification as usual.
0 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
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.
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.
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.
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.
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.
We have given our careful consideration to the submissions made by all the parties.
The words under Clause 3 of the Notification, viz. ''the Committee shall consider such applications and accord approval for award of Certificate of Identification or otherwise'', makes it clear that the Committee so constituted is also empowered not only to issue the Certificate of Identification but also to refuse the same or cancellation or withdrawal of the Certificate of Identification, already issued. Therefore, where challenges are made against the Certificate of Identification already issued, seeking cancellation or withdrawal of the COI at the instance of the issuing authority suo-moto or at the instance of third party, also falls under Clause 2 of the Notification and the same shall after the field verification by the Head Office and by the District Officers, be referred to the 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. As provided under Clause 3 of the Notification the said Committee alone can take a final decision either to approve the Certificate of Identification or otherwise. Clauses 4, 5, 6, 7 and 8 mentioned in the Notification dated 25.01.2006 prescribe the procedure to be followed by the District Officers in this regard. But since it is agreed on the main issue that the Committee constituted for the purpose of awarding Certificate of Identification or otherwise has not been furnished with the details by the District Offices for taking up appropriate decision in the matter, we are of the considered opinion neither the final order of the Assistant Collector dated 03.12.2009 nor that of the Additional District Collector, East, namely the impugned order passed on 30.03.2010 are valid in law, as both suffer for want of jurisdiction.
Unfortunately, in the instant case, the petitioner has failed to implead the Assistant Collector, East as well as the Additional District Collector, East in the writ petition and therefore, this Court suo-moto impleaded them as party being respondents Nos. 4 and 5, of course, with the concurrence of the learned Additional Advocate General, who takes notice on behalf of respondents Nos. 4 and 5. Thus impleaded by an order of this Court.
As it is clearly conceded by all the parties that the impugned proceeding of Assistant Collector, East suffers for want of jurisdiction, while quashing the impugned order dated 03.12.2009 of the Assistant Collector, East as well as the consequential impugned proceedings dated 30.03.2010 of the Additional District Collector, East and remitting the matter to the competent authority, we do not propose to go into the merits of the case as well as the rival contention of the parties, which we leave to the decision of the appropriate authorities.
Accordingly, the impugned order dated 03.12.2009 of the Assistant Collector, East as well as the consequential impugned proceedings dated 30.03.2010 of the Additional District Collector, East, both stand quashed and the matter is remitted to the competent authority for holding a fresh enquiry and to pass final orders after giving fair and reasonable opportunity to both the parties to place their respective case before the competent authority concerned, of course, without being prejudiced by any of the observations made in the present writ petition. The competent authority shall comply with the above direction of this Court within a period of 90 days from the date of receipt of this order.