Sikkim High Court
Taraman Chettri And Ors. vs Union Of India (Uoi) And Ors. on 27 September, 2000
Equivalent citations: AIR 2001 SIKKIM 1
ORDER
1. Both these writ petitions have been filed as Public Interest Litigation alleging abuse and misuse of powers by Shri Sonam Wangdi, the former Chief Secretary, Government of Sikkim and some other Government Officers. The petitioner in Writ Petition No. (C) 1 of 2000, Taraman Chettri, claims himself to be a social worker whereas United Woman Welfare Club, Gyalsing West Sikkim, petitioner No. 1 in Writ Petition (C) No. 58 of 1999, is an Association, registered with the Government of Sikkim and petitioner Nos. 2 and 3 therein the elected President and General Secretary respectively thereof. United Women Welfare Club claims itself to be a social organisation with its members as the social workers. Writ Petition (C) No. 58 of 1999 was instituted on 21st Sept. 1999 and Writ Petition (C) No. 1 of 2000 was instituted on 7th Jan. 2000. Writ Petition No. 1 of 2000 has 19 (nineteen) respondents whereas Writ Petition (C) No. 58 of 1999 has 6 (six) respondents. But these petitions are similar in nature, though Writ Petition (C) No. 1 of 2000 which was subsequently instituted is somewhat more comprehensive. It would, therefore, be sufficient to refer to the facts only Writ Petition (C) No. 1 of 2000.
2. The petitioner's case in writ petition No. 1 of 2000, in short, is that Shri Sonam Wangdi, respondent No. 5, by virtue of his different official positions during his service under the Sikkim Government and in gross misuse and abuse of his powers managed to get allotment of two house sites in the name of Mrs. Shova Rai (respondent No. 6), a school teacher, who is now his second wife, in a very tactful manner. Vide Memo No. 72(S)1917/UD and HD dated 25th Sept. 1996 issued by the Town Planner, Urban Development and housing Department, Government of Sikkim, respondent No. 3, a site in plot No. 35, at Jorethang. South Sikkim measuring about 500 sqf. was allotted to Smt. Shova Rai alias Wangdi, for construction of residential building on certain terms and conditions and vide order No. 8(1) 1224/ UD and HD dated 6th Nov., 1997 issued by the Assistant Town Planner, respondent No. 4, the approval of grant for construction of building thereon was conveyed to her. Subsequently, vide Order No. GOS/22(5)UD and HD/98-99 dated 19th August 1998 she was allotted another plot in Namchi in violation of Section 6 of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act. 1985, (in short the said Act) which provides that the Government cannot allot more than one site to one family in the State, and as such a family cannot have more than one allotted housing site. The petitioner has further alleged that according to the true object and scope of the Act, the Government is supposed to allot sites to the poor downtrodden people of the society and also to the lower earning Government employees who have to pay sky high rent for their accommodation in the absence of any accommodation of their own and though such people having applied for the sites long ago are still waiting for their turn to come, yet in the instant case, Smt. Shova Rai alias Wangdi, was allotted two housing sites. The petitioner has further alleged that in the lease deed dated 19th August, 1998, Smt. Shova Rai alias Shova Wangdi, respondent No. 6 has been intentionally described as Shova Rai wife of Shri D.M. Rai in collusion with the Secretary, Urban Development and Housing Department, Government of Sikkim, respondent No. 2, even though at that time, she was the wife of Shri Soman Wangdi, respondent No. 5. it is alleged that this has been done by Shri Sonam Wangdi, respondent No. 5 in collusion with the Secretary, Urban Development and Housing Department. Government of Sikkim, respondent No. 2 to create an impression that Shri Sonam Wangdi, respondent No, 5, had no hand in the illegal allotment of the Namchi plot. Second allegation made by the petitioner is that since no divorce was obtained by Shri Sonam Wangdi, from his former wife Smt. Chumsang Wangdi alias Bhutia, respondent No. 11, Shri Sonam Wangdi could not marry Shova Rai, respondent No. 6 without the permission of the Government, but Shri Sonam Wangdi, married Smt. Shova Rai without obtaining permission from the Government which amounts to misconduct on the part of Shri Sonam Wangdi and Smt. Shova Rai under the relevant Service Conduct Rules. Third allegation is that Shri Sonam Wangdi also managed to get the sanction of Rs. 2.50 lakh in the name of Smt. Shova Rai alias Wangdi, as special loan for the construction of her house and in the note sheet regarding of loan Smt. Shova Rai alias Shova Wangdi was described as Shova Chettri at Serial No, 12 so that nobody would raise fingers against the abuse of power by Shri Sonam Wangdi, who influenced his subordinate officers for grant of loan Rs. 2.50 lakh in favour of his second wife. Fourth allegation is that on the site allotted to Smt. Shova Rai alias Wangdi in the year 1998 at Namchi. South Sikkim, the Government has spent about Rs. 20 lakh for providing a children part, for the benefit of the children of the area, but on account of the illegal allotment of the site, the children park as going to be converted into residential building and consequently the large sum of money already spent by the Government thereon would be rendered of no use and further the environment and ecology would be seriously affected by such conversion. Fifth allegation is that Shri Sonam Wangdi constructed a hotel, namely, 'Hotel Rendezvous' by investing Rs. 70 to 80 lakh, including the value of furniture inside the hotel, either in his name or in the name of his first wife and if an enquiry is made in terms of order of the Court, it will reveal that the property of Shri Sonam Wangdi is disproportionate to the known sources of his income and those of his wife, Chumsang Wangdi, respondent No. 11 or those of his son Palden Wangdi, respondent No. 12, or those of his younger son Tendup Wangdi, respondent No. 13, Sixth allegation is that the land upon which 'Hotel Rendezvous' was constructed stood in the name of Smt. Chumsang Butia, respondent No. 11, but Shri Sonam Wangdi in collusion with the then Registrar (East) got the land transferred either in the name of Shri Pladen Wangdi, respondent No. 12 or in the name of the Shri Tendup Wangdi, respondent No. 13, but Smt. Chumsang Butia, respondent No. 11 did not execute the Gift Deed/Transfer Deed. Seventh allegation is that an approach road to 'Hotel Rendezvous' was constructed on the Government hospital land/compound at the expenses of the State Government and the road has been constructed as motorable road solely for the said 'Hotel Rendezvous' for personal gain to either respondent No. 5 or 11 or 12 or 13. The petitioner has alleged that Chief Secretary being the top ranking statutory authority is required under law to see that the statutory provisions are strictly enforced, but in the instant case, he himself is involved in corruption, nepotism and favouritism and because of the illegal allotment of site, sanction of loan, holding of disproportionate wealth, public interest has seriously suffered and the same has caused tremendous dissatisfaction amongst the people. The petitioner has further alleged in paragraph 25(1) that on 18th Nov. 1999 Shri Sonam Wangdi took leave and proceeded to Jorethang and took photographs and set up some people to show that they had trespassed over the land allotted to Smt. Shova Rai alias Shova Wangdi or her family members at Jorethang. Respondent No. 2, Secretary, Urban Development and Housing Department and other officers of the Urban Development and Housing Department accompanied Shri Sonam Wangdi so that the entire State machinery prepared the case in favour of Smt. Shova Wangdi. Some more allegations of misuse and abuse of power have been made in the writ petition. The petitioner has claimed mandamus commanding the respondents to withdraw, cancel and rescind the impugned allotment of site to respondent No. 6 vide orders 25th Sept. 1996 and 19th August, 1998, a direction to respondent No. 5 to pay the expenses incurred by the State Exchequer along with interest for the Government land and for the motorable road constructed for this personal gain and a direction to the CBI to enquire into the illegal allotment of sites in favour of respondent No. 6 and also into the disproportionate assets of respondent No. 5.
3. Except for respondent Nos. 1, 7, 8, 9, 10, 18 and 19, all the respondents have filed counter-affidavits. Shri L.B. Rani, Secretary in the Department of Urban Development and Housing, in the counter-affidavit filed on behalf of respondent Nos. 2, 3 and 4, who are the State of Sikkim, Department of Urban Development and Housing, Town Planner, Urban Development and Housing Department and Assistant Town Planner, Urban Development and Housing Department, has denied that Shri Soman Wangdi by virtue of his different official positions during his service under the Sikkim Government, had misused and abused his powers and managed to get allotment of two house sites in the name of his second wife, respondent No. 6. Though it has been admitted that Smt. Shova Rai, respondent No. 6, was allotted a site on 25th Sept. 1996 vide allotment No. 72(8) 1917/UD and HD. it has been asserted that the site was transferred in the name of Ranjita Rai, a daughter of Smt. Shova Rai. The land transferred is plot No, 35 but its possession could not be taken by Ranjita Rai as it is in the occupation of an illegal occupant and so Ranjita Rai has applied for an alternative site. The application of Ranjita Rai dated 3rd Nov. 1999 has been enclosed with the counter-affidavit. It is further alleged that Smt. Shova Rai later applied for fresh site and she was allotted on 19th August, 1998 the Namchi plot vide order No. GOS/22/5/UD&HD/98-99. Allegations of mala fides have been denied. It is also denied that Shri Sonam Wangdi managed to get sanction of specified loan of Rs. 2.50 lakh in the name of respondent No. 6 for the construction of her house and it has been asserted that the loan was sanctioned in consideration of the merits of her request made to the Finance Department. Regarding the children park, it is stated that a sum of Rs. 20 lakh was sanctioned for development of Namchi Town under the Integrated Development of Small Medium Towns Scheme. Within this amount a sum of Rs. 3 lakh was allocated for the purpose of developing the children park. Accordingly, within comprehensive scheme a small area was identified at Namchi for setting up the children park. Necessary equipment for children park , namely, swings, slides, etc. were installed but, later it appeared that the equipment had been installed on an unused water tank. It is further alleged that there were public complaints that the area had become risky for children as the manholes of the underground water tank had only stones as covers, and as the covers had been. pilfered away the children park had remained unused and most of the equipment installed had been missing and so request of Smt. Shova Rai for allotment of the site within that area was considered and allowed. In reply to the allegations of the petitioner with respect to the ownership of the site of the Hotel, respondent Nos. 2, 3 and 4 stated :
"32..... In this regard it is stated that the records reveal that the questioned land was initially purchased by Smt. Chumsang Wangdi from one Shri Phurba Wangyal vide a registered deed of sale dated 15 Sept. 1976 for a consideration value of Rs. 10,000/-. Smt. Chumsang Wangdi later gifted the said parcel of land to Shri Sonam Wangdi, the respondent No. 5 vide a registered deed of gift dated 14-9-1994. The registration of documents for as the sale and gift are concerned were done in usual course in accordance with the rules prevailing in that behalf. The allegation of collusion, is, therefore, belied in the face of the records."
In reply to the allegations made with regard to the visit of Suman Wangdi on 18th Nov. 1999 respondent Nos. 2 to 4 have alleged :--
"38..... It is stated that the purpose of the visit of the respondent No. 2 was to ascertain complaint of Smt. Ranjita Rai, daughter of Smt. Shova Rai to the effect that the house site which was allotted to her was being illegally occupied by a third person. The visit was made by the respondent No. 2 to the questioned site as he was on tour of the area on that particular day. The respondent No. 5 on coming to learn of his tour also desired to accompany the respondent No. 2 with the sole objective to be aware of the factual position on the spot. The petitioner obviously is making fishing and roving enquiry when he is seeking production of documents in the paragraphs under reply."
Respondent Nos. 2 to 4 dealt with the allegations regarding approach road to the hotel in paragraph 33 as under :
"33. With reference to the statements contained in paragraph 25(e) of the writ petition it is denied that road was constructed as an approach solely for the hotel as alleged. It is submitted that an approach road to the Directors quarters from the National Highway 31A was approved in order to relieve the congestion in the STNM Hospital compound from where the vehicles used to pass to reach the Doctors quarters.
The first phase of the road was completed some times in the year 1993-94. The second phase of the approach road was stopped by the Government in July, 1994 of orders of the Government.
The second phase of the work was sanctioned during the first quarter of the financial year 1994-95. However, the work could not be commenced due to the following reasons :--
(a) The allotment of a building site which partially affected the original alignment.
(b) Objections by private land owners.
A second alternative was also contemplated which involved additional expenditure on account of heavy civil work involved in the said proposal.
Ultimately a third proposal was made by which phase one of the completed road by providing a parking yard for the use of the public on the right bank of the Jhoora and towards the left side of the Doctors' quarters and the parking yard, and the Doctors' quarters was proposed to be connected by providing necessary foot steps. A copy of the plane table survey map of the proposed approach road to Doctors' quarters, phase II is filed herewith and marked as Annexure R-2. The above proposal for completion of the road was moved due to the constant representations from the public of the area in which the proposed road was to pass.
In May, 1995 the Government desired that a report be submitted with regard to the second phase of the approach road and constructions, if any, of the said road be stopped immediately.
In the report submitted it had been indicated that the construction of the second phase of the road was stopped by the earlier Government in July. 1994. However, the decision of the Government was reviewed when complaints and objections were received from the public of Tibet Road and Enchey compound. Gangtok and also on the basis of the technical feasibility report submitted by the Roads and Bridges Department. It was felt that the road would benefit a large number of public and would also serve its intended purpose of providing an approach road to the STNM Hospital Doctors' quarters. Accordingly phase II of the road was accorded approval. However, the second phase is yet to be taken up on account of various issues involved. The primary issue being that the realignment of the road would require to dismantle some temporary sheds of the Department of Health and Family Welfare and also pass through its land and the enhanced cost on account of the realignment. Correspondences in this behalf were being exchanged between the Department of Roads and Bridges and the Health and Family Welfare Department. The decision is yet to be arrived at as the matter is yet to be finalised."
In the counter-affidavit, these respondents also made denial of other allegations.
4. Shri Soman Wangdi, former Chief Secretary and Smt. Shova Rai alias Wangdi, respondent Nos. 5 and 6 respectively, in their joint counter-affidavit, have taken a preliminary objection that this is hardly a case in public interest, as it purports to be, but is spurred by vengeance and mala fides. It is alleged that the petition has been filed to malign respondent No. 5 and to satisfy the petitioner of his hunger for publicity. They have alleged that the petitioner is a busy body and is not a social worker. Further, it is averred that the petitioner is not well-versed with the facts and he has approached this Court without exhausting the alternative remedies available to him inasmuch as he has not disclosed his knowledge about the involvement of respondent No. 5 into the alleged corruption to the competent authorities, but has chosen to file the writ petition. Further, it is stated that the petition deserves to be dismissed on the ground of delay and laches. He has denied that the value of the Hotel would not be less than Rs. 70-80 lakhs. Paragraph 4(z) reads :
"(z) Facts stated in para 25(f) are denied and disputed. It is denied that the valuation of the hotel would not be less than Rs. 70/ 80 lakhs. It is noteworthy that the hotel was not constructed overnight and whatever money that was invested in hotel was not invested in one go. The construction of the hotel commenced somewhere in the year 1976-77 in phases. Thereafter the hotel was given on rent to a Department of Government of Sikkim. Between 1988-94 three and half storey were added and it was only during that period that the building was used for hotel purposes. Fund and resources for the construction of the said building were raised by personal loans, income from ancestral agricultural property, bank loans salary savings, agricultural income, GPF non-refundable income, rented property, self-accruals of the Hotel business etc."
Further, the counter-affidavit states that the petitioner has concealed the fact that the marriage of respondent No. 6 with Shri D.M. Rai was dissolved by the learned District Judge. South Sikkim vide order dated 24th August, 1994. Thereafter, respondent No. 5 married respondent No. 6 on 24th March, 1997, Respondent No. 5 belongs to 'Scheduled Tribe' but respondent No. 6 belongs to 'Chettri Caste" which is upper class and the petitioner also belongs to "Chettri Caste'. Respondent No. 5 had obtained permission to enter into another marriage on 16th August, 1995. It is also stated that a large amount has already been spent over construction on the plot allotted to respondent No. 6 out of the loan granted to her for the construction of building thereon and the date on which the plot at Namchi had been allotted to respondent No. 6, she did not have any other plot because the plot situated at Jorethang which had been allotted to her on 25th May, 1996 had already been transferred through registered lease deed dated 22nd June, 1998, June, 1998, in the name of Ranjita Rai, a daughter of respondent No. 6 from her previous husband and as such there has been no contravention of any statutory provision and that respondent No. 5 did not have any hand in the allotment of any of the plots in the name of respondent No. 6. Allegations about the misuse and abuse of powers have been denied. Regarding the visit of Shri Sonam Wangdi, in August, 1990, the counter-affidavit in paragraph 4 (cc) states :--
"(cc) ..... the answering respondents submit that somewhere in the month of August, 1999 it was learnt by Ranjita Rai, the elder daughter of Respondent No. 6 born to her from her earlier marriage, that the land allotted to her at Jorethang has been in illegal occupation of some other persons. Therefore, she requested for inspection of the same and confirm the actual position. It was for this reason that the respondent went there. It is wrong to suggest that the respondents had set up some people to show that they have trespassed the land. The averment made in the para under reply are misleading and mischievous as also mala fide. Ranjita Rai has already made an application for cancellation of the allotment in view of the fact that the State Government has been unable to take action against the person occupying the plot illegally. As a matter of fact, the persons occupying the said land are in possession thereof for a period of more than one decade.
It was on complaint of Ranjita Rai and in order to confirm and verify the fact of trespassing that the respondent No, 6 requested respondent No. 2 accompany him to the site in question so that proper action may be taken in that behalf The answering respondent vehemently denies that the entire State machinery was utilised to prepare the case in favour of the respondent No. 6."
Dealing with the allegations regarding loan, the counter-affidavit states that the loan was sanctioned on merits upon finding Respondent No. 6 eligible and entitled to receive the loan in accordance with her service rules and there is no basis for the allegation that the same was managed by respondent No. 5. Out of elevent persons who got the loan, "Smt. Shova Chettri at Sl. No. 12 is the senior-most having been appointed on 18-2-1976." Dealing with the allegations about children park the counter affidavit states in paragraph 4 (m) :--
"(m).... It is wrong and incorrect to suggest that the site in respect of which the allotment was made to respondent No. 6 in the year 1998 in Namchi, South Sikkim the Government reportedly had already spent about Rs. 20 lakhs for providing a Children's Park for the benefit of the Children of the people. The petitioner should submit a list of items and detailed expenditure of Rs. 20 lakhs, Suffice it to say that the petitioner has not attached any proof or has shown otherwise by submitting either the copy of notification declaring the same as Children's Park or a detailed items and lists of amenities allegedly provided thereof and/or the expenditure incurred thereon. As a matter of fact the petitioner has deliberately concealed from this Hon'ble Court that there already exists a Children's Park at Namchi, South Sikkim which was inaugurated by the Hon'ble Chief Minister in the year 1995."
Denying the allegations about abuse and misuse of powers by respondent No. 5 regarding development of motorable road the counter-affidavit states in paragraph 4(aa) :--
"(aa) ..... It is denied that the respondent No. 5 abused and misused his powers for development of the mortorable road. The respondent denies that any expenses are required to be realised from the respondent No. 5 with interest. As has been said hereinabove. the said road would have benefited the Hotel. It was as a matter of fact because of another Hotel that the construction of Road was stopped. The road was meant to provide approach to the Medical quarters and to connect the Tibet Road. The first phase of the road was to touch the land of the respondent and the second phase of the road was to connect Tibet Road. The respondent allowed the road to go through his land subject to the condition that an equivalent land would be given to him on the other side of the jhora. In consultation with the Assistant Engineer at that time, the respondent constructed the Gate to the Hotel building. However, in the meantime, the government allotted the vacant land through which the road was to pass and another Hotel came up. The road from the Gate onward was constructed by the respondent. The second phase of the road was stopped by the Government as the land through which it was to pass was allotted for construction of a Hotel. The road is also an approach to the parking area. Hotel Chumbl Residency and other buildings besides providing approach to the building of the respondent.
Counter-affidavit denies that massive construction of the Hotel has been made by influencing various authorities. It is also denied that name of respondent No. 6 was shown as Shova Rai instead of Shova Wangdi to achieve some advantage.
5. Shri Sonam Thendup Wangdi, respondent No. 13, who is the son of Shri Sonam Wangdi has filed counter-affidavit on his behalf and on behalf of his mother Smt, Chumsang Bhutia, respondent No. 11 and brother Shri Palden Wangdi. respondent No. 12 and has supported the version of Shri Soman Wangdi with respect to the investment in Hotel Rendezvous.
6. The District Magistrate, East District. Gangtok, respondent No. 15 who is also the Registrar, East District, has, in his affidavit filed on behalf of respondent Nos. 14 and 15 alleged that Smt. Chumsang Bhutia, respondent No. 11 had purchased the land of the Hotel Rendezvous vide sale deed dated 15th Sept. 1976 and the same was gifted by her to her husband Shri Sonam Wangdi on 14th Sept. 1994 vide gift deed which was registered in the office of the Sub-Registrar, Gangtok.
7. Shri D.B. Rai, Superintending Engineer in the Department of Roads and Bridges, Government of Sikkim has filed counter-affidavit on behalf of respondent No. 16. Principal Chief Engineer-cum-Secretary, Sikkim P.W.D. (Roads and Bridges) and has supported the version contained in paragraph 33 of the counter-affidavit filed by respondent Nos. 2 to 4.
8. Counter-affidavit filed on behalf of Secretary, Department of Personnel and Training Government of Sikkim, respondent No. 17 states that respondent No. 5 submitted an application on 2nd May, 1995 seeking permission to have a second spouse which was considered and allowed by the Government vide letter No. 5115/G/DOP dated 16th August. 1995.
9. The petitioner has filed rejoinder affidavit in reply to the counter-affidavit filed on behalf of respondent Nos. 2 to 4, He has denied the allegations made in the counter affidavit and has reiterated the allegations made in the petition giving more details He has denied that he is a busy body hungry for glare of publicity and has stated that he was elected as a Panchayat Member of Ramabung Ward, GPU No. 17 Turuk Ramabung for two terms and that he always used to expose injustice and corruption in public life. Dealing with the averment that alternative remedy had not been availed of, he has averred that a representation, a copy of which is Annexed G to Writ Petition No. 58 of 1999, dated 27th August, 1999. was sent by the petitioners of that petition to His Excellency the Governor of Sikkim with a copy to the Union Home Minister and also the Secretary, Department of Personnel, Pension and Public Grievances, Government of India, New Delhi, but the same remained unattended and no action was taken thereon. Further, he has alleged that the gift deed was not signed by respondent No. 11 and she has not stated in her counter-affidavit that any such gift deed was executed by her. He has also stated that the averment about collusion between respondent No. 5 and the then Registrar (East) can be dealt with and replied to only by the then Registrar (East) and not by respondent No. 2 or respondent No. 5. He has further stated that before accepting any gift, a Government Officer has to obtain permission from the Government but, in the present cases, no such permission was obtained by respondent No. 5. He has further pleaded that respondent No. 5 openly propagated his differences with respondent No. 11 from the year 1990 and circulated letters and papers from time to time against her and it cannot be imagined that she would execute a gift deed in favour of respondent No. 5 to divest herself of her property. Further, it is alleged that respondent Nos. 2 to 5 have, in their counter-affidavit, dealt with matters not concerning themselves. acting as mouth piece of respondent No. 5, under his guidance and instructions. It is also stated that there are materials available to enable the CBI or the Central Vigilance Commission to investigate into the matters and this is a fit case for such enquiry. Further, the petitioner has stated that when the approach road was constructed, respondent No. 5 was the Development Commissioner and the road was constructed for the sole purpose of the Hotel Rendezvous and after the first phase of the road was completed, objections were raised at the instance of respondent No. 5.
10. The petitioner by filing CMA No. 3 of 2000 and CMA No. 105 of 2000 prayed for production of certain files and documents and some of them have been produced by the learned Advocate General.
11. Vide Office Order No. 871/(G)/DOP dated 7th Sept. 2000 issued by Shri R.S. Basnet, Secretary, to the Government of Sikkim, Department of Personnel, Administrative Reforms and Training Gangtok, Shri Sonam Wangdi, respondent No. 5, has been appointed as Adviser to the Government of Sikkim and has ceased to be the Chief Secretary.
12. I have hard Shri Taraman Chettri, the petitioner who has appeared in person, Shri S.P. Wangdi, Advocate General on behalf of the State respondents and Shri Manu Mridul, advocate on behalf of respondent Nos. 5, 6, 11, 12 and 13.
13. It may be pointed out at the very outset that there is no merit in the submission of the respondents that the petitioners are busy bodies or they have been actuated by some extraneous consideration. As would be clear from the evidence, the allegations are of the nature in public interest and there is, prima facie, evidence available in support thereof. The petition cannot also be thrown out on the ground of laches.
14. Before adverting to the discussion on merit, it would be profitable to refer to a few authorities on the subject. In Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294 the Supreme Court observed :--
"50. There is no question in this case of giving any clean chit to the appellant in the first appeal before us. It leaves a great deal of suspicion that tampering was done to please Shri Patil or at his behest. It is true that there is no direct evidence. It is also true that there is no evidence to link him up with tampering. Tampering is established. The relationship is established. The reluctance to face a public enquiry is also apparent. Apparently Shri Patil, though holding a public office does not believe that "ceaser's wife must be above suspicion." The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry to be conducted by a body nominated by the Chief Justice of the High Court. The facts disclose a sorry state of affairs."
"51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmospher. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the Courts should not and cannot remain mute and dumb."
15. In Delhi Development Authority v. Skipper Construction, 1995 (Supp) 2 SCC 160 : (1995 AIR SCW 920), Skipper Construction (P) Ltd. was found to have indulged in abuse of process of court time and again. Calculated attempts had been made to circumvent the orders of the Supreme Court. The Court observed (paras 36 and 37 of SCW) :
"38. It caused dismay to us as to how the orders came to be passed by exercise of powers under Section 41 of the Delhi Development Authority Act. Where was the need to defer recovery of the second instalment from Skipper when it was admittedly in default? When the matter was hardly contested before the Court, the DDA adopted a passive attitude and remained a by stander or an onlooker. If only it had taken proper steps at the appropriate time, the money of the unwary purchasers would not have fallen into the trap of Skipper. Therefore, the conduct of the officials of DDA including its ex-Chairman prima facie appears to be questionable. This can be established only by a probe into the conduct of the affairs of the DDA.
39. Turning to the role played by the New Bank of India which has now merged in Punjab National Bank, prima facie it appears to us that they have been "far too so generous" with public money. The Bank has to establish that it has acted as a prudent banker. The liberality in advancement of loans and bank guarantees creates an impression that "there is something rotten." How, bank guarantee came to be furnished for the huge sum of the first instalment of Rs. 1.944 crores is enigmatic. Again, in Sept. 1989 how a fresh bank guarantee was advanced is equally enigmatic. Since, we have directed an enquiry into this, all that we are constrained to observe is that caution and care in advancement of loans/bank guarantees to Skipper Construction appear to have been thrown to winds."
16. In Delhi Development Authority v. Skipper Construction. (1996) 1 SCC 272 : (AIR 1996 SC 715), the Supreme Court emphasised the need to take stern action against the officers found to have indulged in questionable acls. The Court observed :
"6. On going through the Report of Justice Chinnappa Reddy, we find that the learned Judge has taken great pains and extreme care in coming to the conclusions which he did. The conclusions arrived at by the learned Judge are entitled to great weight and constitute, in our opinion, sufficient bais for initiating disciplinary action against the officers concerned. The Report points out how the several officers of the DDA flouted the orders of the Lt. Governor, acted against the interest of DDA and how they, by their several acts, helped Skipper in achieving its nefarious design to defraud both the DDA and the innocent members of the public. It is a different matter that ultimately Skipper's designs came to nought so far as DDA is concerned but that was only because of this Court's orders. So far as the members of the public are concerned, they lost heavily because they believed in and acted upon the several advertisements and proclamations made by Skipper. The members of the public, it appears, have lost more than Rs. 20 to 30 crores in the bargain. This could not have happened but for the active connivance and collusion of some of the officers of the DDA. The interests of justice demand that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheels of justice may appear to grind slowly but it is the duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."
17. Again, the Supreme Court observed in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. (1996) 4 SCC 622 : (AIR 1996 SC 2005) :--
"37. Before parting with this case, we feel impelled to make a few observations. What happened in this case is illustrative of what is hapening in our country on a fairly wide scale in diverse forms. Some persons in the upper strata (which means the rich and the influential class of the society) have made the "property career" the sole aim of their life. The means have become irrelevant -- in a land where its greatest son born in this century said "means are more important than the ends." A sense of bravado prevails everything can be managed, every authority and every institution can be managed. All it takes is to "tackle" or "manage" it in an appropriate manner. They have developed an utter disregard for law-- nay, a contempt for it. the feeling that law is meant for lesser mortals and not for them. The courts in the country have been trying to combat this trend, with some success as the recent events show. But how many matters can we handle. How many more of such matters are still there" The real question is how to swing the polity into action, a polity which has become indolent and soft in its vitals ? Can the courts alone do it ? Even so, to what extent, in the prevailing state of affairs ? Not that we wish to launch upon a diatribe against anyone in particular but Judges of this Court are also permitted, we presume, to ask in anguish, "what have we made of our country in less than fifty years"? Where has the respect and regard for law gone ? And who is responsible for it ?"
18. In Dr. G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762 : (1995 AIR SCW 4024), the Delhi Development Authority permitted a nursery school to be opened in a park of Sarita Vihar by respondent No. 2 in complete violation of the provisions of Delhi Development Act, 1957 and when the residents approached the High Court with their grievance, the High Court found no merit and dismissed the writ petition. The Supreme Court allowed the appeal and observed :--
"8. We, therefore, hold that the land which was allotted to respondent No. 2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of Respondent 2 was misuse of power, for reasons which need not be averted. It is therefore, a fit case, according to us, where the allotment in favour of respondent No. 2 should be cancelled and we order accordingly. The fact that respondent No. 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that disclocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent 2 or by any other body.
10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should no, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in a accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.
11. We, therefore, call upon respondent 1 to make an enquiry and inform the court within three months as to who are the officers who had made the unauthorised allotment and permitted unauthorised construction. On knowing about this, such further orders would be passed as deemed fit and proper."
Allotment of Land at Namchi in violation of statutory provision.
19. One of the allegations made by the petitioners is that respondent No. 6, Smt. Shova Rai alias Wangdi was granted lease in respect of site measuring 30' x 35' at Namchi Bazar vide lease deed dated 19th August, 1998, pursuant to site allotment Order No. GOS/22(5)/UD & HD/98-99/2674 dated 19th August, 1998, in violation of Section 6 of The Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 (hereinabove referred to as the Act), on account of the influence exercised by her husband Shri Sonam Wangdi, who was the Chief Secretary at the relevant time, since respondent No. 6 had already been granted lease in respect of plot No. 35 at Daragoan, Jorethang, vide lease deed dated 24/25th Sept. 1996, pursuant to allotment Order No. 72(5)1917 dated 25th Sept. 1996. One of the aims sought to be achieved by the Act, as its preamble states is to bring about an equitable and proper distribution of house sites. The relevant portion of the preamble states :--
"Whereas it is expedient to bring about an equitable and proper distribution of house sites and promote planned, organised and systematic growth of towns and bazars in the State of Sikkim and matters connected therewith."
Section 6 of the Act places restriction on allotment of sites by providing that the "Government shall not allot more than one site to one family in the State". 'Family' means under Section 2(e) 'father, mother and their minor children and includes major children living jointly with the parents."
Sub-section (4} of Section 5 states :
"(4) The sites allotted under this Act may be cancelled on grounds of fraud, misrepresentation of facts or bona fide mistake :
Provided that no order of cancellation shall be made unless the person concerned has been given an opportunity of making representation."
File Nos. 5(1) UD&HD/96 and GOS/US& HD/22(5)98-99 produced by the learned Advocate General contain a copy of the lease deed dated 24/25th Sept. 1996 granted lease in favour of Shova Rai, respondent No. 6, in respect of plot No. 35 at Daragoan, Jorethang measuring 500 sq. feet with effect from the date of the execution of the lease deed, specifically mentioning therein that "the possession of which plot has been delivered to the Lessee, together with all rights, easements and appurtenances whatsoever to the said plot or belonging or in anywise appurtaining, to hold the same for a term of twenty years with a right of renewal." Respondent No. 6 was married to respondent No. 5, Shri Soman Wangdi on 24th March, 1997. Shova Rai addressed a letter dated 4th Nov. 1997 requesting the Secretary. Urban Development and Housing Department, Government of Sikkim, Gangtok, to issue construction order. The letter reads as under :--
To The Secretary, Urban Development and Housing Department, Government of Sikkim, GANGTOK.
Dated 4th November, 1997.
Sir, I have been allotted a plot of land bearing No. 35 at Daragaon. Jorethang measuring 500 Sft. for the construction of a building. The blue print plan for the building has also been approved by the competent authority. I, therefore, request you kindly to issue construction order at an early date.
Yours faithfully, Sd/-
(SHOVA RAI) C/o SONAM WANGDI GANGTOK , SIKKIM Tel. No. 26095"
Construction order was issued to her on 6th Nov. 1997. On 1st May. 1998, she made an application to the Chief Minister of Sikkim for allotment of the triangular piece of land situated above Namchi Hatt Bazar, on the way to Boomtar Village, stating that she did not have any site for the construction of a dwelling house. That application is reproduced as under :-- 'To The Chief Minister of Sikkim, GANGTOAK Dated 1st May, 1998 Sir, I am a primary teacher in Namchi School. I have been in service for more than 20 (twenty) years and serving the Government and people of Sikkim loyally and faithfully. However, I do not have any site for the construction of a dwelling house where I or my dependants can spend the rest of our life. I understand that a triangular piece of land above Namchi Haat Bazar, on the way to Boomtar Village, is available. I, therefore, request you kindly to allot me the triangular piece of land for the construction of my dwelling house. Thanking you, Yours faithfully, Sd/-
(SHOVA RAI) Primary School Teacher Namchi South Sikkim"
This letter was marked by the Chief Minister on 21st May, 1998 to the Chief Secretary, respondent No. 5 with the endorsement "P1 allot site in around Namchi Bazar as a special case." Shri Sonam Wangdi. the then Chief Secretary, marked the letter on 22nd May, 1998 to Secretary. Urban Development and Housing Department. Shri L.B. Rai. Secretary, Urban Development and Housing Department, made endorsement thereon on 6th June, 1998, "May please process." On 3rd June, 1998, respondent No. 6, Mrs. Shova Rai made a request for transferring her plot at Jorethang in the name of her daughter Miss Ranjita Rai. The letter states :
"To, The Secretary, Urban Development and Housing Department, Government of Sikkim, Gangtok.
Dated 3rd June. 1998 Sir, I have been granted a site at Jorethang for the construction of my dwelling house. The plot may kindly be transferred in the name of my daughter, Ms, Ranjita Rai.
Yours faithfully, Sd/-
(SHOVA RAI) Primary Teacher Namchi South Sikkim"
Thereafter, lease deed dated 22nd June, 1998 was executed by the Urban Development and Housing Department in favour of Miss Ranjita Rai in respect of Plot No. 35 at Daragaon, Jorethang measuring 500 sq. feet with effect from the date of the execution of the lease deed, that is, 22nd June, 1998, specifically mentioning therein that "the possession of which plot has been delivered to the lessee, together with all rights, easements and appurtenances whatsoever to the said plot or belonging or in anywise appurtaining, to hold the same for a term of twenty years with a right of renewal." Vide Memo No. 5(1)UDIID/9G/1241, dated 21st July, 1998 the Assistant Town Planner UD and 1ID forwarded four copies of the lease deed executed in favour of Miss Ranjita Rai to the Registrar Namchi for registration. The memo reads as under :--
"URBAN DEVELOPMENT AND HOUSING DEPARTMENT GOVERNMENT OF SIKKIM, GANGTOK MEMO NO. 5(1)UDIID/96/ 1241/UD & IID DATED 21-7-1998 To, The Registrar, Namchi District, South Sikkim Sir, 1 am forwarding herewith four copies of lease deed agreement executed between Shri/ Smt. Miss Ranjita Rai r/o Namchi and the State Govt. through Urban Development and Housing Department. This may kindly be registered and forwarded to this Department.
Yours faithfully, Sd/-
21-7-1998 Assistant Town Planner/US & IID"
20. Regarding the application dated 1st May, 1998, there is a noting by the Secretary, Urban Development and Housing Department dated 6th June, 1998 "May please process." However, the processing was kept pending until 21st July, 1998, the date on which four copies of the lease deed agreement executed in favour of Miss Ranjita Rai in respect of site measuring 30' x 35,' i.e. 1050 sq. ft. situated in Namchi, were sent to the Registrar, Namchi District for registration. The actual processing started on 21st July, 1998 which resulted ultimately in the execution of the lease deed dated 19th August. 1998, in favour of respondent No. 6. It is intriguing that respondent No. 6, Shova Rai, has been described therein as the wife of Shri D.M. Rai, who was her previous husband from whom she had got divorce on 24th August, 1994 and not as the wife of Shri Sonam Wangdi, respondent No. 5 whom she married admittedly on 24th March, 1997. This lease deed was followed by the proposal for allotment bearing No. 22(5)2648/UD and IID, dated 17th August, 1998 containing the terms and conditions for acceptance by Shova Rai. Para 14 of this proposal reads as under:--
"14. That this proposal for allotment issued to you will be automatically cancelled without any intimation if all of the following documents are not produced by you;
1) Sikkim Subject Certificate or Certificate of Identification,
2) No Landed Property Certificate,
3) No Housing Flat Certificate,
4) Site application form with photograph.
A formal allotment order will be issued in your favour after you after conveyed, with the required documents, your acceptance of the above terms and conditions and also paid site salami (premium) within one month of issue of this order falling which this allotment will stand automatically can celled without any intimation to you."
21. On 21st July, 1998 the following noting was made :--
"May kindly be seen CP No. 1 onwards.
" Smt. Shova Rai r/o Namchi has submitted an application requesting for allotment of site at Namchi.
All the relevant documents may kindly be seen at CP No. 2 onwards.
Submitted for further Orders pl.
Sd/-
21/7"
CP 2 is not available on the file, CP 3 is the certificate of identification dated 26th May, 1992 wherein Shova Rai has been shown as the wife of Shri Dakman Rai and Shri Dakman Rai shown as the son of Shri Dilbir Rai recorded in the Sikkim Subject Register vide Serial No. 268 Volume No. XI in block Borikshop, West Sikkim. Undoubtedly, this certificate had become stale by the time it was produced for the purpose of the execution of the lease deed, since Shova Rai had ceased to be the wife of Shri Dakman Rai with effect from 24th August, 1994. CP 4 is the certificate showing that Shova Rai did not have a house in any of the bazar areas of South District as per the record. The certificate reads as follows :--
"GOVERNMENT OF SIKKIM OFFICE OF THE DISTRICT COLLECTOR SOUTH DISTRICT NAMCHI Memo No. 2026/DCS Date : 25-5-1996 TO WHOM IT MAY CONCERN This is to certify that Shri/Smt. Shova Rai son/wife/daughter of Dakman Rai resident of Namchi, South Sikkim, has no house in any of the bazar areas of South District as per the record.
Sd/-25-5-1996 Sub-Divisional Magistrate, Namchi, South District DISTRICT COLLECTOR (SOUTH)"
Legally, this certificate could not be acted upon, since under Section 6 of the Act no one in the family of the allottee should have any site in the State. Page No. 12 of the file is the proposal for allotment of a bigger site measuring 1408 sq. ft. at Namchi and the same bears No. 22(5)/3719/UD and IID, dated 15th October, 1998. At pages 16 and 17 of the note sheet, the noting dated 22nd April, 1999 is quite revealing inasmuch it further proposes to increase the area by 2642 sq. ft. raising the total area up to 4050 sq. ft. The noting reads as under :--
"Ref. above.
The site was inspected on 4th April, 1999. The matter deals with allotment of an additional site to Smt. Shova Rai of Namchi Bazar.
She was allotted a site measuring 1408 sq. ft. vide CP No. 14.
Our main site plan may be seen at cp-6. Now she has requested for allotment of the whole area i.e. 4050 sq. ft. (including 1408 sq. ft.) The area/site is not at all feasible for any fresh site allotment and hence may be granted to her, provide she maintains it as a green area and not as a concrete built up area.
In addition, we may allow the area shown in red hatching as a ramp/built up area on our site plan at cp-21.
Hence total area = 4050 sq. ft. (appx.) Allotted area = 1408 sq. ft.
Additional area to be allotted = 2642 sq. ft.
Hence 2642 sq. ft. may be allotted to her on payment of the same site salami and terms and condition pl.
Sd/-
22-4-1999"
22. The subsequent notings dated 22nd April, 1999, 23rd April, 1999 and 26th April, 1999 read as under :--
"Re. above.
Smt. Shova Rai, wife of Sri Sonam Wangdi Bhutia has been persistently asking for additional site of the area measuring 2642 sq. ft. at Namchi, this seems to be much higher area than what is already allotted to her. The space has been asked for the purpose of gardening.
As discussed, the proposal is submitted for favour of consideration, if no structure will be erected in the allotted area on usual terms and conditions pl.
Sd/-
22-4-1999 We have allowed the allottee to erect a structure of 5 storeys. The area allotted previously should have been adequate in view of the shortage of space. The request for addle. Site could be considered provided there would not be any serious public cricitism as the total area being involved would be more than 4050 sq. ft. pl.
Sd/-
CCS 23-4-1999 Submitted for favour of approval, pl. Sd/- (L.B. Rai) 23-4-1999 Commissioner-cum-Secretary Urban Dev. and Housing Deptt. Govt. of Sikkim, Gangtok Minister UP & IID Approved as proposed Sd/- 26-4-1999 T.P. Pradhan Minister Urban Development and Housing and Labour Department"
23. Thereafter, allotment Order No. 22(5)2038/UD and IID, dated 12th July, 1999, in respect of the additional area was issued. However, the lease deed which might have been executed pursuant to this order is not available on the record produced before the Court. The fact about the allotment of the land in addition to 1050 sq, ft. was concealed from the Court in the counter-affidavits filed by respondent Nos. 2 to 4 and also 5 and 6.
24. Ranjita Rai made an application to the Secretary, Urban Development and Housing Department on 3rd November, 1999 for cancellation of the lease deed executed in her favour in respect of the Jorethang plot and for allotment of another site. The same reads as under :--
'To, The Secretary, Urban Development and Housing Department, Government of Sikkim, Gangtok Dated : 3-11-1999 Sir, The Department transferred Plot No. 35, at Jorethang in my name for the construction of my dwelling house. On inspection, I found that the plot was already occupied by some person. I brought it to the notice of the Department. The plot has not been vacated and the allotment has not been handed over to me till today. The allotment has remained on paper only. I, therefore, request you kindly to cancel the existing allotment and allot me a new site. Your's faithfully, Sd/-
Ranjeeta Rai Namchi."
25. Respondents Nos. 5 and 6 stated in their counter-affidavit in paragraph B/iv:--
"B/iv. The fact that plot at Namchi was allotted to wife of this respondent who did not have any plot in her name and was so allotted on 16-8-1998. Thus, at no point of time the respondent No. 6 was allotted two plots."
Again, they have stated in sub-para (1) of paragraph 4 :--
"(f) The contents of para 9 are not denied. At the same time it is most respectfully submitted that the petitioner has concealed from this Hon'ble Court the registered lease deed executed between the respondent No. 2 and Ranjita Rai on 22-6-1998 i.e. much before the plot at Namchi had been allotted to respondent No. 6, by which the said plot at Jorethang legally stands transferred in the name of Ranjita Rai."
Again, it was stated sub-para (i) of paragraph 4 :--
"(i) ..... As has been said hereinabove as of date and as on the date the plot at Namchi was allotted to her, the respondent No. 6 did not have any plot in her name. Plot No. 35 at Jorethang. which was allotted to her on 25-9-1996 stands legally, transferred through a registered lease deed dated 22-6-1998 in the name of Ms. Ranjita Rai. The respondents further submit that there has neither been any violation of any statutory provisions nor has the plot been allotted to respondent No. 6 in contravention of any statutory provisions or at the instance of her husband, the Chief Secretary. Suffice it to say that the petitioner has not mentioned which particular statutory provision of a statute has been violated."
Again, in paragraph 4{cc) respondent Nos. 5 and 6 stated :--
"(cc) ..... the answering respondents submit that somewhere in the month of August. 1999 it was learnt by Ranjita Rai, the elder daughter of respondent No. 6 born to her from her earlier marriage, that the land allotted to her at Jorethang has been in illegal occupation of some other persons. Therefore, she requested for inspection of the same and confirm the actual position. It was for this reason that the respondent went there. It is wrong to suggest that the respondents had set up some people to show that they have trespassed the land. The averment made in the para under reply are misleading and mischievous as also mala fide. Ranjita Rai has already made an application for cancellation of the allotment in view of the fact that the State Government has been unable to take action against the person occupying the plot illegally. As a matter of fact, the persons occupying the said land are in possession thereof for a period of more than one decade. It was on complaint of Ranjita Rai and in order to confirm and verify the fact of trespassing that the respondent No. 6 requested respondent No. 2 to accompany him to the site in question so that proper action may be taken in that behalf. The answering respondent vehemently denies that the entire State machinery was utilised to prepare the case in favour of the respondent No. 6."
26. The above facts reveal the following salient features with respect to the grant of lease in respect of the site measuring 30' x 35' at Namchi Hatt Bazar vide lease deed dated 19th August, 1998 :
(i) Allotment in respect of that plot was made on the basis of an application dated 1st May, 1998 made by Mrs. Shova Rai to the Chief Minister of Sikkim. Gangtok stating therein that she "did not have any site for the construction of a dwelling house where" she or her dependants could spend the rest of their life. This statement was a factual misrepresentation inasmuch as she had already got land comprising Plot No. 35 at Daragaon, Jorethang vide lease deed dated 24/25th September, 1996, which land she continued to have until she made an application on 3rd June, 1998 to the Secretary, Urban Development and Housing Department, Government of Sikkim for transferring that plot to her daughter Miss Ranjita Rai and the lease deed in favour of Miss Ranjita Rai was executed on 22nd June, 1998, copies whereof were sent to the Registrar, Namchi District for registration vide Memo dated 21st July, 1998 of the Urban Development and Housing Department, Government of Sikkim. She was not eligible to make an application for allotment on 1st May, 1998.
(ii) Lease deed dated 19th August. 1998 executed in favour of Mrs. Shova Rai alias Wangdi, respondent No. 6 falsely described her as the wife of Shri D. M. Rai who had ceased to be her husband with effect from 24th August, 1994, and not as the wife of Shri Sonam Wangdi, respondent No. 5 whom she married on 24th March, 1997.
(iii) The sale deed dated 19th August, 1998 in favour of Mrs. Shova Rai alias Wangdi was got executed on the basis of the documents on which the lease deed could not be executed. One of the documents which was required for the purpose of the execution of the lease deed in her favour was the Sikkim Subject Certificate or Certificate of Identification. The Certificate of Identification used for the purpose was dated 26th May, 1992 which related to her previous husband Shri D. M. Rai who had since long ceased to be her husband and not to Shri Sonam Wangdi, who was then her husband. One other requirement to be fulfilled by her was the production of "No Landed Property Certificate." The certificate used was dated 25th May, 1996 certifying that she did not have a "house in any of the bazar areas of South District." That certificate had been issued before the lease deed dated 24/25th September, 1996 was granted in her favour in respect of Plot No. 35 at Daragaon Jorethang. Undoubtedly, this certificate was stale and misleading. Furthermore, the certificate showed only that she had no house in any of the Bazar areas of South Sikkim, though the requirement to be fulfilled under Section 6 of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 was that she did not have any site anywhere in the State.
(iv) Though Mrs. Shova Rai made an application for allotment of "triangular piece of land above Namchi Hatt Bazar," the Chief Minister made endorsement for allotment of site "in around Namchi Bazar as a special case." Even then the triangular piece of land measuring 1050 sq. ft. was leased to her by the sale deed dated 19th August, 1998 and subsequently, the entire area measuring of 4050 sq. ft. was allotted to her.
(v) Respondent Nos. 5 and 6 put up a false case before this Court by stating that some persons had occupied the land situated at Daragaon, Jorethang, covered by the lease deed dated 24/25th September, 1996 for a period of more than one decade. This was done to make out a false case for the allotment of the land at Namchi Hatt Bazar. The case put up by respondent Nos. 5 and 6 is prima facie false for more than one reason :--
a) The lease deed dated 24/25th September, 1996 specifically mentions that the possession in respect of the land covered therein together with all rights, easements and appurtenances had been handed over to the lessee, Mrs. Shova Rai.
b) Mrs. Shova Rai herself made an application dated 4th November, 1997 for issue of construction order on that plot and the construction order was issued on 6th November, 1997. This suggests that she was in possession of that plot.
c) Mrs. Shova Rai herself made an application on 3rd June, 1998 stating that she had been granted a site at Jorethang for the construction of her dwelling house, and requesting that the plot might be transferred in the name of her daughter Ms. Ranjita Rai. This application nowhere states that the land was in occupation of any unauthorised person. The fact that Mrs. Shova Rai made application for transferring her land to her daughter suggests that the plot was not in occupation of any unauthorised person even at that time. From the documents, it would appear that the case put up by respondent Nos. 5 and 6 that some unauthorised persons had trespassed over the land and had been in possession thereof for more than one decade is prima facie false and the petitioner has been able to prove prima facie that it were respondent Nos. 5 and 6 who had set up some people to show that they had encroached over the land.
d) Lease deed dated 2nd June, 1998 executed in favour of Ms. Ranjita Rai specifically mentions that the possession of the plot had been delivered to her together with all rights, easement and appurtenances.
e) No letter was ever sent by Mrs. Shova Rai or Ms. Ranjita Rai at any time to the authority concerned, complaining that Plot No. 35 at Daragaon. Jorethang. was in occupation of any unauthorised persons, prior to 3rd November, 1999, when Ms. Ranjita Rai for the first time stated that on inspection, she had "found that the plot was already occupied by some person." The date 3rd November, 1999 is significant, since Writ Petition No. 58 of 1999 had already been instituted on 21st September, 1999, suggesting that the false case about possession of some unauthorised persons was sought to be made out after the institution of that writ petition.
27. It is proved prima facie that grant of lease to Mrs. Shova Rai vide lease deed dated 19th August, 1998 of the triangular piece of land at Namchi Hatt Bazar and the subsequent allotments of further land raising the total area to 4050 sq. ft. were in violation of Section 6 of the Sikkim Allotment and House Sites and Construction of Building (Regulation and Control) Act, 1985 and all these acts were an exercise in extreme favouritism in violation of the spirit of that Act. The circumstances, particularly the fact that respondent No. 5, Shri Sonam Wangdi, Joined his wife, Shova Rai alias Wangdi, respondent No. 6 in putting up a false case that some unauthorised persons were in occupation of the land at Jorethang for more than one decade coupled with the fact that he himself went to the spot as stated in paragraph 4(cc) of his counter-affidavit show prima facie that he was fully involved in the matter. The question of cancellation of the lease and the allotments needs be considered by the Government by following the procedure stipulated in Section 5(4) of the ct.
28. It would appear that otherwise also scant regard was given to consideration of public interest and public money. Respondent No. 6, Shova Rai made application for allotment of the triangular piece of land falsely stating that she had no site for construction of a dwelling house. There is no dispute that children park existed on that site. it was perhaps for that reason that the Chief Minister did not make endorsement for allotment of that site but for allotment of "site in around Namchi Bazar" indicating that the site of the triangular plot where the children park existed was not to be allotted. File No. GOS/UDIID/22(5)98-99 has one of its notings as under :--
"Smt. Shova Rai of Namchi has applied for a site at Namchi Bazar to the IICM who has directed as under :
'Pl. allot site in around Namchi Bazar as a special case.' Sd/-
21-5-1998.
The Jorethang Division of this Deptt. has since submitted a site plan showing the area as vacant where a small children park had been developed but which has an unused water tank underneath in fact there was a public complaint that the area has become risky for children as the manholes of the underground tank have only stones as covers since the usual covers are taken away every now and then. The allotable size measures 30' x 35' if a gap of 10' is maintained in between the site and the wall. In view of the position of the area as explained above, it is proposed that Smt. Shova Rai may kindly be considered for allotment of this site to her subject to payment of site salami and development charge proportionate to what have been charged earlier but for slightly smaller sizes. The site plan is flagged "S." pl."
Sd/-
-8-1998"
29. Reference may also be made to paragraph 19 of the counter-affidavit of respondent Nos. 2 to 4 which reads as under:--
"19. That with reference to paragraph 16 of the writ petition, it is stated that a sum of Rs. 20.00 lakhs was sanctioned for development of Namchi Town under the integrated Development of Small Medium Towns Scheme. Within this amount a sum of Rs. 3,00 lakhs had been allocated for the purpose of developing a childrens' park. Accordingly within the comprehensive scheme a small area had been identified at Namchi for setting up a childrens' park. Necessary equipment for children park namely swings, slides, etc. had been installed. However, later it appeared that the equipments had been installed on an unused water tank. In fact, there were public complaints that the area had become risky for children as the manholes of the underground water tank had only stones as cover, as the covers had been pilfered away. Moreover, it had been learnt that the childrens' park had remained unused for the aforesaid reason and most of the equipments installed had been missing."
30. Reference may also be made to sub-para (m) of paragraph 4 of the counter-affidavit of respondent Nos. 5 and 6, which reads as under :--
"(m) The facts stated in para 16 are denied and not admitted. It is wrong and incorrect to suggest that the site in respect of which the allotment was made to respondent No. 6 in the year 1998 in Namchi, South Sikkim the Government reportedly had already spent about Rs. 20 lakhs for providing a children's park for the benefit of the children of the people. The petitioner should submit a list of items and detailed expenditure of Rs. 20 lakhs. Suffice it to say that the petitioner has not attached any proof or has shown otherwise by submitting either the copy of notification declaring the same as children park or a detailed items and list of amenities allegedly provided thereof and/or the expenditure incurred thereon. As a matter of fact the petitioner has deliberately concealed from this Hon'ble Court that there already exists a Children's Park at Namchi, South Sikkim which was inaugurated by the Hon'ble Chief Minister in the year 1995."
It would thus appear from the counter-affidavit of respondent Nos. 2 to 4 that a small area had been developed as a children park and necessary equipment namely. Swings, slides etc. had been installed there. No details of expenditure have been given and there is nothing on the record to show that the equipment which had been procured on public expense had been utilised anywhere else. The extract reproduced above shows a callous approach to public money and public property. At least, when it was discovered that the equipment was missing, serious attempt should have been made to find as to where those things had found way and to recover the same. Some or the other person must have been responsible for the upkeep and security of the equipment. That person must have been held responsible for the loss of the equipment. All these aspects require thorough investigation. It also requires investigation as to whether the equipment had been installed on the unused water tank and the place where it was installed was not appropriate. If it was inappropriate, who was responsible for the casual approach? It also requires investigation as to whether manhole covers had, in fact, been pilfered and if so who should be held respondent for the same. I see no merit in the averment in the counter-affidavit of respondent Nos. 5 and 6 that the petitioner had not attached any proof about the declaration of the site at children park or the list of the items and the amenities provided therein. The fact that the children park existed on the site in question is an admitted fact. The fact that some public money was spent on the development of the park is also an admitted fact. Once the area was earmarked for children park and the children park was developed to some extent by spending public money thereon, the existence of the children park cannot be effaced, even if, no notification was issued in this regard. If no notification was issued that is another instance of neglect in performance of duty by respondent No. 5 who was the Chief Secretary. If there were public complaints that the area had become risky for children as the manholes of the underground water tank had only stones as covers, because the covers had been pilfered away, the proper approach would have been to take steps to ensure that the grievances of the public were redressed by taking proper precautions and not to allot the area of the children park to the wife of the Chief Secretary for her residence. Similarly, that no notification was issued declaring the area as children park or the equipment purchased for the children park was missing could not provide any justification for allotment of the park as residential plot to the wife of the Chief Secretary. All these aspects need investigation.
Allegations about Shri Sonam Wangdi having assets disproportionate to the known sources of his income.
31. One of the serious allegations made by the petitioner is that Shri Sonam Wangdi, respondent No. 5 constructed Hotel Rendezvous by investing Rs. 70-80 lakh, which is disproportionate to the known sources of his income and those of his wife respondent No. 11 and his sons respondent Nos. 12 and 13. The hotel was constructed on Plot Nos. 512, 513. 526/2029 in Enchey Compound, Gangtok measuring 0.20 acre. These plots were purchased from Shri Phurba Wangyal of Gangtok by a sale deed dated 15th September, 1976 executed in favour of Smt. Chumsang Wangdi, respondent No. 11, the wife of respondent No. 5. The sale deed was registered on 2nd December, 1976. On 17th August, 1994 respondent No. 5 made an application on behalf of Smt. Chumsang Wangdi, for mutation of the land. The application is reproduced as under :--
To, District Collector Gangtok 17-8-94 Sir, Pl. find herewith photocopy of sale deed registered in 1977 in my name.
I request you kindly to mutate the land in my name.
Yours faithfully, Sd/-
(CHUMSANG WANGDI) Gangtok"
Mutation was effected on 20th August, 1994.
Thereafter, an application dated 17th November, 1994 purportedly bearing the signature of Smt. Chumsang Wangdi, respondent No. 11 was made for registration of the gift deed. The application reads :-- November, 17, 1994 To The Registrar, East District, Gangtok.
Sir, Kindly find herewith a Gift Deed in duplicate in favour of Shri Sonam Wangdi, S/o Late Sri Sarki Bhutia in respect of land at Enchey Compound covered by plot No. 512, 513, 526/2029. The Gift Deed may kindly be registered according to Law. Thanking you, Yours faithfully, Sd/-
Encl : As above (CHUMSANG WANGDI) ENCHEY COMPOUND, GANGTOK."
On the back of the gift deed there are several endorsements. Some of the endorsements are as under :--
"Stamp worth Rs. 5/-
and Registration fees Rs. 10/-
credited under B.R. No. 271377 Dated 31-1-95"
"Presented for Registration on the 16-2-95 2001 Sikkim/2(1)(8 pp.) XII G-46 In the office of the Registrar, East Gangtok by Sri .....Chumsang Wangdi"
"C. Sung "Amit Kumar Jain
Signature of Presentant" Sub-Registrar"
Gangtok-Sikkim.
"Amit Kumar Jain
Sub-Registrar
Gangtok-Sikkim"
32. Smt. Chumsang Wangdi, respondent No. 11 made an application dated 29th April, 1997 for certified copies of the documents mentioned therein. The same is reproduced as under :--
To The District Collector.
District Collectorate Office.
East Sikkim:
Dt. 29th April '97 SUBJECT : ISSUE OF CERTIFIED COPIES Sir, I, Mr. Chumsang Wangdi Bhutia, resident of Enchey Compound, Gangtok beg to state your honour that 1 may very kindly be issued with certified copies of the following documents in respect of the Plot No. 2029 area 0.20 hect.
1. Copy of Sale Deed document or Gift deed document.
2. Application for mutation.
3. Parcha copy.
4. Map.
For which act of kindness I shall ever be grateful.
Yours faithfully.
Sd/-
(Mrs. Chumsang Wangdi), Echey Compound. Gangtok."
Item No. 1 in the application indicates that she was not sure whether the document was sale deed or gift deed.
33. Vide application dated 27th March, 1995, Shri Sonam Wangdi made an application for mutation of the plot in his favour. That application reads as under :
To The District Collector, East District, Gangtok. Sikkim Dated Gangtok. the 27th March, 1995 Dear Sir, Kindly find a photo copy of Gift Deed Document relating to Plot Nos. 512/513/ 526/2029 registered in favour of Mr. Sonam Wangdi. I request you kindly to mutate the plot in favour of Mr. Sonam Wangdi and issue a Khatlan Pareha.
Yours faithfully, Sd/-
(SONAM WANGDI) GANGTOK."
Encl. As above.
Mutation was effected on 31st March, 1995 in respect of the plots of land mentioned in the gift deed said to have been executed by Mrs. Chumsang Wangdi. respondent No. 11 on 14th September, 1994 in favour of Shri Sonam Wangdi, respondent No. 5. The property referred in the gift deed is "Plot No. 512, 513, 526/2029 in Enchey Compound, Gangtok" measuring 0.20 acre. It is significant to note that no mention is made in the gift deed about any construction.
34. The petitioner in Paragraph 25 (d) of the petition denied the execution of the gift deed stating that "Smt. Chumsang Bhutla, respondent No. 11 did not execute the Gift Deed/Transfer Deed". This allegation has not been denied either by Shri Sonam Wangdi, respondent No. 5, in his counter-affidavit or by Smt. Chumsang Wangdi. respondent No. 11, in her counter-affidavit. Respondent Nos. 5 and 6 stated in their counter-affidavit in Paragraph 4 (x) :--
"(x) The contents of Para 25 (d) are matter of record. Suffice it to say that the transfer of land in the name of his relatives has been done under the rules. Neither any public interest has suffered because of such transfer nor anybody's rights have been infringed."
35. Respondent No. 11, who filed reply counter-affidavit Jointly with respondent Nos. 12 and 13 did not deal with Paragraph 25 (d) of the Writ Petition at all. In support of his allegation that the gift deed was not executed by respondent No. 11, the petitioner has stated in Paragraph 28A in his rejoinder-affidavit that the differences between Shri Sonam Wangdi and Smt. Chumsang Wangdi were so acute that it cannot be imagined that She would have executed gift deed in favour of respondent No. 5. The petitioner stated in Paragraph 28A of his rejoinder affidavit:--
"28A. It is known to public by and large that Mr. Sonam Wangdi, respondent No. 5 open propogated his difference with his wife from 1990 and he circulated letters and papers from time to time against his first wife, and it cannot be imagined that his first wife will execute a gift deed in favour of Shri Sonam Wangdi. respondent No. 5 and thereby diverting herself from the said property. If the Gift Deed was done in the name of her two sons it could have been believed. Shri Sonam Wangdi circulated to public a cyclostyled account of his life and blamed his first wife under the caption "A life of ferment" by Sonam Wangdi, I.A.S., M.A. D.P.A. M. Sc. (London) - May 1997 Gangtok. I am in possession of the said article and Shri Sonam Wangdi may kindly be directed to produce it and if he does not produce. I seek liberty of the Hon'ble Court to file it. The collusion between respondent No. 5 and the then Registrar (East) can be only dealt with and replied by the then Registrar (East) and not by the respondent No. 2 or respondent No. 5,1 repeat what I have stated in Paragraph 25 (d) of the writ petition."
36. In file No. 1 (9) 83/Est. relating to appointment and leave of Mr. Sonam Wangdi maintained by Department of Personnel. Government of Sikkim, there is an application dated 2nd May, 1995 by Shri Sonam Wangdi to the then Additional Chief Secretary, Government of Sikkim. Gangtok seeking permission to marry again making, inter alia, the following allegations therein :--
"The Ail India Service Rules referred to above also provided that the State Government may permit a member of the service to contract another marriage if it is satisfied that there are other grounds for so doing. In this connection. I am to submit that for the last twenty (20) years there has been constant quarrel between me and my "wife". She is ten (10) years junior to me in age. She did not complete even Class X. Owing to incompatibility of temperaments between her and me, we could not remain well in our matrimonial life. We are not living together for the last seven (7) years.
A brief background note is submitted herewith which indicates the miserable life that I have been living for the last several years.
I am also to submit that there was no legally valid marriage between me and my "wife". In fact, no wedding party was held, nor did any Lama or Buddhist priest solemnise the marriage. No customary law in detail relating to marriage was followed. Moreover, there is no document to show our valid marriage.
I am 51 (fifty one) years old and I am growing older everyday and I have to plan for my old age. I am convinced beyond any shadow of doubt that my remaining life with her will be extremely miserable."
The brief background mentioned in this application leaves no manner of doubt that the relations between respondent No. 5 and respondent No. 11 were extremely bitter. I do not consider it proper to reproduce the relevant extracts therefrom because of the extremely bitter language used therein.
37. Regarding the construction of the hotel and the investment made thereon, respondent Nos. 5 and 6 stated in their counter-affidavit in paragraph 4 (z) :--
"(z) Facts stated in Para 25 (f) are denied and disputed. It is denied that the valuation of the hotel would not be less than Rs. 70/80 lakhs. It is noteworthy that the hotel was not constructed overnight and whatever money that was invested in hotel was not invested in one go. The construction of the hotel commenced somewhere in the year 1976-77 in phases. Thereafter, the hotel was given on rent to a Department of Government of Sikkim. Between 1988-94 three and half storey were added and it was only during that period that the building was used for hotel purposes. Fund and resources for the construction of the said building were raised by personal loans. income from ancestral agricultural property, bank loans salary savings, agricultural income, GPF non-refundable income, rented property, self accruals of the Hotel business etc."
38. Thus, according to the counter-affidavit, construction started soon after the land of the hotel was purchased by Smt. Chumsang Wangdi, respondent No. 11 vide sale deed dated 15th September. 1976, and much of the construction had been completed before the gift deed dated 14th September, 1994 was allegedly executed by Smt. Chumsang Wangdi, in favour of Shri Sonam Wangdi. It is not at all clear as to why Smt. Chumsang Wangdi should have executed the gift deed in favour of Shri Sonam Wangdi on 14th September. 1994, bitter relations between them raising a doubt as to whether she actually appeared for registration. As stated earlier, doubt also arises from the application dated 29th April, 1997 for the issue of certified copy of certain documents which indicated that she was not sure whether one of the documents, copy whereof she wanted, was sale deed or gift deed. The file containing the statements showing the property returns of Shri Sonam Wangdi which has been produced for perusal, shows that Shri Sonam Wangdi filed only one property statement on form and that was in the year 1989. That statement gave the following particulars :
"FORM Statement of Immovable Property for year 1989.............. ...............
1. Name of the officer (In full) and service to which the officer belongs .
Mr. Sonam Wangdi I A S....... ............ , 2. Present Post held : Development Commissioner-cum-Secretary planning. .. . 3. Cadre of the State on which borne SIKKIM .................................................
4. Present pay Rs,7.810/- ............................................................................
Inapplicable clause to be struck out.
Name of District Sub-Division. Taluk and Village in which property is situated Name and details of property Present value If not in own name, state fn whose name held and his/ her relation-ship to the member of the service.
How acquired whether by purchase. mortgage, Inheritance in or otherwise. date of acquisition & name with the details of person/ persons from whom acquired Annual Income from the property Remarks Housing & other Lands 1 2 3 4 5 6 7 8 East District Gangtok 3 houses about forty acres Rs. 10.00,000/-
Land in my name, but houses in the names of my wife and sons Inherited from my late father Rs.1,00,000/-
Sd/-
Sonam Wangdl 23-5-90"
Thereafter, there is a letter bearing No. 2610/P & D dated 2nd June, 1993 by Shri Sonam Wangdi, with respect to the years 1990, 1991 and 1992, which reads as under :--
"GOVERNMENT OF SIKKIM PLANNING & DEVELOPMENT DEPARTMENT No. 2610/P & D Date 2nd June, 1993 To Under Secretary, Establishment Department, Government of Sikkim, Gangtok.
Dear Sir, With reference to your letter No. 784/ GEN/EST dated 28th May, 1993 relating to immovable property returns, I am to submit that the returns as submitted in the previous year may kindly be taken for the year 1990, 1991 and 1992.
Yours faithfully, Sd/-
(SONAM WANGDI) DEVELOPMENT COMMISSIONER, PLANNING & DEVELOPMENT DEPARTMENT."
There is another letter bearing No. 23/P & D dated 30th April. 1994, which reads as under :--
GOVERNMENT OF SIKKIM PLANNING & DEVELOPMENT DEPARTMENT No. 23 /P & D Date 30th April. 1994 To The Secretary, Department of Personnel, A.R. & Training, Government of Sikkim, GANGTOK Subject: Annual Property Returns. Dear Madam, The Annual Returns regarding my property during the year 1993-94 may be taken as during the previous year.
Yours faithfully, Sd/-
(Sonam Wangdi) Development Commissioner, Planning & Development Department Government of Sikkim."
Apart from these documents, there is no other document in the file. It would appear from the available documents that Shri Sonam Wangdi did not disclose the purchase of the land in the name of his wife, Mrs. Chumsang Wangdi vide sale deed dated 15th September, 1976 and also did not disclose any investment made by him in the hotel.
He showed the land in his name throughout, but houses in the names of his wife and sons. Instead of showing any investment, he showed the property to have been inherited from his late father. It is not clear how he could have invested in construction of the hotel, if the land did not belong to him prior to the execution of the gift deed alleged to have been executed in his favour on 14th September. 1994. The gift deed does not make mention of any construction over the land.
39. Rules 14, 15 and 16 of the All India Services (Conduct) Rules, 1968, in so far as they are relevant, read as under :--
"14. Investment, lending and borrowing.--.....
(4) (I) No member of the Service shall save in the ordinary course of business with a bank or a public limited company, himself or through any member of his family or any person acting on his behalf:--
(a) lend or borrow deposit money as a principal or agent, to, or from, or with, any person or firm or private limited company within the local limits of his authority or with whom he is likely to have official dealings or otherwise place himself under pecuniary obligation to such person or firm; or
(b) lend money to any person at interest or in manner whereby return in money or kind is charged or paid :
Provided that a member of the service may give to, accept from a relative or a personal friend a purely temporary loan of small amount free of interest or operate a credit account with a bona fide tradesman or make an advance of pay to his private employee :
Provided further that nothing in this sub-rule shall apply in respect of any transaction, entered into by a member of the Service with the previous sanction of the Government. (11) When a member of the Service is appointed or transferred, to a post of such nature as would involve him in the breach of any of the provisions of Sub-rule (2) or Sub-rule (4), he shall, forthwith report the circumstances to the Government and shall thereafter act in accordance with such order as may be made by the Government.
15. Insolvency and habitual indebtedness.-- (1) A member of the Service shall so manage his private affairs as to avoid habitual indebtedness or insolvency.
(2) A member of the Service against whom any legal proceedings is instituted for recovery of any debt due from or for adjudging him as an insolvent, shall forthwith report the full acts of such legal proceedings to the Government.
(3) The burden of proving that indebtedness or insolvency is the result of circumstances which, with the exercise of ordinary diligence, the member of the Service could not have foreseen or over which he had no control, and has not proceeded from extravagant or dissipated habits, shall be upon him.
16. Movable, immovable and valuable property.-- (1) Every person shall, where such person is a member of the Service at the commencement of these rules, before such date after such commencement as may be specified by the Government in this behalf, or, where such person becomes a member of the Service after commencement, on his first appointment to the Service submits a return of his assets and liabilities in such forms as may be prescribed by the Government giving the full particulars regarding:--
(a) the immovable property owned by him or inherited or acquired by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person;
(d) debts and other liabilities incurred by him directly or indirectly.
(2) Every member of the service shall intimate the Government in respect of each transaction, whose value exceeds rupees fifteen thousand within a month of the completion of such transaction.
(3) No member of the Service shall, except with the previous knowledge of the Government,--
(a) acquire any immovable property by lease, mortgage, purchase, gift or otherwise, either in his name or in the name of any member of his family; or
(b) dispose of by lease, mortgage, sale, gift or otherwise any immovable property owned by him or held by him either in his own name or in the name of any member of his family:
Provided that the previous sanction of the Government shall be obtained if any such transaction is with a person having official dealings with the member of the Service. (4) A member of the Service shall report to the Government within one month from the date of every transaction entered into by him either in his own name or in the name of a member of his family in respect of movable properly if the value of such property exceeds ten thousand rupees.
Provided that the previous sanction of the Government shall be obtained if any such transaction is-
(1) with a person having official dealings with the member of the service.
Explanation I.-- For the purpose of this rule, the expression movable property includes inter alia the following property, namely :--.....
(b) loans advanced by or to such member of the Service, whether secured or not;"
It would appear from the above that Shri Sonam Wangdi did not disclose at any time that the land on which the hotel was constructed, was purchased by his wife Smt. Chumsang Wangdi, vide sale deed dated 15th September, 1976. He also did not disclose that Smt. Chumsang Wangdi executed the gift deed dated 27th March, 1995 in his favour. Authenticity of the gift deed is itself doubtful. It is also doubtful whether Smt. Chumsang Wangdi appeared in person at the time of its registration. Shri Wangdi did not also disclose any investment having been made by him on the construction of the hotel. He also did not disclose at any time the value of the construction. He did not disclose that he had incurred personal loans for the purpose of the construction of the hotel. He also did not disclose that there were any accruals from the hotel. In the gift deed also, there is no mention of any construction. In his counter-affidavit also he did not give the value of the investments made in the hotel. All these facts make out a case for thorough investigation in public interest.
Construction of motorable road to the hotel of Shri Sonam Wangdi, respondent No. 5, on government expense.
40. The petitioner has alleged that respondent No. 5 abused and misused his official position by having a spacious motorable road adjacent to the S.T.N.M. hospital from the National Highway upto his hotel on government expense. Respondent Nos. 2 to 4 stated in their counter-affidavit in Paragraph 33 as under :--
"33. With reference to the statements contained in paragraph 25 (e) of the writ petition it is denied that road was constructed as an approach solely for the hotel as alleged. It is submitted that an approach road to the Doctors quarters from the National Highway 31A was approved in order to relieve the congestion in the STNM Hospital compound from where the vehicles used to pass to reach the Doctors quarters. The first phase of the road was completed some times in the year 1993-94. The second phase of the approach road was stopped by the Government in July, 1994 on orders of the Government. The second phase of the work was sanctioned during the first quarter of the financial year 1994-95. However, the work could not be commenced due to the following reasons :--
(c) The allotment of a building site which partially affected the original alignment.
(d) Objections by private land owners.
A second alternative was also contemplated which involved additional expenditure on account of heavy civil work involved in the said proposal.
Ultimately a third proposal was made by which phase one of the completed road by providing a parking yard for the use of the public on the right bank of the Jhora and towards the left side of the Doctors' quarters and the parking yard, and the Doctors' quarters was proposed to be connected by providing necessary foot-steps. A copy of the plane table survey map of the proposed approach road to Doctors quarters. phase-II is filed herewith and marked as Annexure R-2.
The above proposal for completion of the road was moved due to the constant representations from the public of the area in which the proposed road was to pass.
In May, 1995 the Government desired that a report be submitted with regard to the second phase of the approach road and constructions, if any, of the said road be stopped immediately.
In the report submitted it had been indicated that the construction of the second phase of the road was stopped by the earlier Government in July, 1994. However, the decision of the Government was reviewed when complaints and objections were received from the public of Tibet Road and Enchey compound, Gangtok and also on the basis of the technical feasibility report submitted by the Roads and Bridges Department. It was felt that the road would benefit a large number of public and would also serve its intended purpose of providing an approach road to the STNM Hospital Doctors quarters. Accordingly phase-II of the road was accorded approval. However, the second phase is yet to be taken up on account of various issues involved. The primary issue being that the realignment of the road would require to dismantle some temporary sheds of the Department of Health and Family Welfare and also pass through its land and the enhanced cost on account of the realignment. Correspondences in this behalf were being exchanged between the Department of Roads and Bridges and the Health and Family Welfare Department. The decision is yet to be arrived at as the matter is yet to be finalised."
In this respect counter-affidavit of respondent Nos. 5 and 6 states in Paragraph 4 (aa) as under :
"4(aa) Contents of Para 25 (g) are denied and not admitted being unfounded, mischievous and devoid of substance. It is denied that the respondent No. 5 abused and misused his powers for development of the mortorable road. The respondent denies that any expenses are required to be realised from the respondent No. 5 with interest. As has been said hereinabove, the said road would have benefitted the Hotel. It was as a matter of fact because of another Hotel that the construction of Road was stopped. The road was meant to provide approach to the Medical quarters and to connect the Tibet Road. The first phase of the road was to touch the land of the Respondent and the second phase of the road was to connect Tibet Road. The Respondent allowed the road to go through his land subject to the condition that an equivalent land would be given to him on the other side of the Jhora. in consultation with the Assistant Engineer at that time, the Respondent constructed the Gate to the Hotel building. However in the meantime, the government allotted the vacant land through which the road was to pass and another Hotel came up. The road from the Gate onward was constructed by the Respondent. The second phase of the road was stopped by the Government as the land through which it was to pass was allotted for construction of a Hotel. The road is also an approach to the parking area, Hotel Chumbi Residency and other buildings besides providing approach to the building of the Respondent."
Shri D.B. Rai, Superintending Engineer in the Department of Roads & Bridges, Government of Sikkim, who filed affidavit on behalf of Principal Chief Engineer-cum-Secretary, Road Bridges, Government of Sikkim. respondent No. 16, relied upon Paragraph 33 of the counter-affidavit filed by respondent Nos. 2 to 4.
From all the averments made in the various counter-affidavits, it would appear that the road was to connect the National Highway to the Tibet Road, but the construction was undertaken from the National Highway up to the hotel of respondent No. 5 only and did not extend beyond the hotel. It makes out a prima facie case for enquiry as to whether this was so due to undue favouritism at government cost on account of abuse and misuse of powers by any one in authority.
Sanction of loan of Rs. 2.50 lakh to Smt. Shova Rai, respondent No. 6.
41. The petitioner stated in Paragraph 14 of Writ Petition (C) No. 1 of 2000, that respondent No. 5, Shri Sonam Wangdi managed to get sanction of the loan of Rs. 2.50 lakh in favour of his wife Shova Rai, respondent No. 6, as a special loan. Respondent Nos. 5 and 6 have stated in their counter-affidavit that the loan was sanctioned as per the rules. This may also be investigated.
Second marriage by Shri Sonam Wangdi. respondent No. 5.
42. The petitioner has alleged in Paragraph 12 of Writ Petition (C) No. 1 of 2000 that respondent No. 5, Shri Sonam Wangdi has married respondent No. 6. Shova Rai, even when his first wife is alive without the permission of the Government. Respondent Nos. 5 and 6 have stated in their counter-affidavit that respondent No. 5 was granted permission by the State Government on 16th August, 1995. Permission granted by the State Government vide Office Order No. 5115/GDOP dated 16th August, 1995 is annexure R-2. There is no merit in the allegation of the petitioner in this respect.
43. Thus, the writ petitions, counter-affidavits and the office files referred to in the earlier part, of the judgment disclose a lamentable state of affairs showing nepotism and misuse and abuse of powers by the various authorities, besides failure on the part of the superior authorities to exercise proper check on their subordinate officers. Statutory provisions have been violated and no regard has been paid to the Implementation of the Conduct Rules. Statutory provisions of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985, have been found violated, prima facie, as stated earlier. Since, execution of the lease deed dated 19th August, 1998 in favour of Mrs. Shova Rai was, prima facie, in violation of the statutory provisions contained in Sections 5 and 6 of Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act. 1985, and was based on misrepresentation of facts, it is a fit case where the Government should consider whether lease deed dated 19th August, 1998 and the subsequent allotments of Namchi land in her favour should be cancelled by having recourse to the provisions of Section 5(4) of the Act. Final decision, at this stage, is to be left to be taken by the Government, after giving opportunity of hearing to the affected parties. The various allegations made in the writ petition except those relating to the marriage of respondent No. 5 with respondent No. 6 are of the nature involving public interest and since there is prima facie evidence available in support of those allegations, public interest considered in the light of the authorities referred earlier, demands that the matter be got investigated through the CBI. I, therefore, direct-
(i) that Government shall, after giving opportunity of hearing to the concerned parties, decide whether the lease deed dated 19th August, 1998 in respect of the site measuring 30' x 35' at Namchi Hatt Bazar in favour of Mrs. Shova Rai alias Wangdi, respondent No. 6 and the allotments made subsequent thereto rising the total area of allotment to her to about 4050 sqf. should be cancelled in view of the provisions of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985, particularly, Sections 5 and 6 thereof. There shall be no bar to restore the site for use as children park;
(ii) that the allegations in both the writ petitions, that is, Writ Petition (C) No. 1 of 2000 and Writ Petition (C) No. 58 of 1999, except the allegations relating to the marriage of respondent No. 5 with respondent No. 6, be investigated by CBI, New Delhi. Investigation be carried out by an officer not lower in rank than the Superintendent of Police;
(iii) that copies of the writ petitions, counter-affidavits and rejoinder with annexures and also copies of CMA No. 3 of 2000 and CMA No. 105 of 2000 be sent by the Registrar General to the CBI and the CBI shall complete the investigation as expeditiously as possible and, if practicable, within 6 months from the date of the receipt of the communication from the registry of this Court;
(iv) that all the departmental flies received during the course of hearing of the writ petitions be handed over to such officer of the CBI as will be deputed by the Director, CBI. respondent No. 18 and the concerned departmental representatives shall hand over the files to the officer of the CBI from the direct custody of the Registrar General. The Registrar General shall help in the matter with proper intimation to the concerned officers. All the Court files shall be kept in the safe custody of the Registrar General himself and he shall hand over such original documents of the files including the vakalatnama of Smt. Chumsang Wangdi as may be required by the CBI for comparison of doubtful signatures or for other purposes of investigation;
(v) that the Chief Secretary, Secretary, Urban Development & Housing Department, District Magistrate, East District, respondent No. 15, Registrar East District, respondent No. 14, Principal Chief Engineer-cum-Secretary, Sikkim P.W.D. (Roads & Bridges), respondent No. 16 and Secretary. Department of Personnel & Training, respondent No. 17, shall hand over the relevant files to the CBI as may be required by them from time to time for investigation and, in case of need, the Chief Secretary shall issue necessary directions in this regard to the other authorities;
(vi) that officers of the CBI shall be treated as guests of the Home Department, Government of Sikkim till such time the investigation is completed in all respect and till such time they will be required by the Court. The Home Department shall provide vehicle for the officers of the CBI during their visit to Sikkim via Siliguri and from Sikkim to Siliguri on way back, in addition to other facilities available to the guests of the Home Department.
(vii) that if the CBI makes any suggestions for departmental or disciplinary action against any officer of the Government, the Government shall initiate action accordingly. If any offence is found to have been made out against any officer, the CBI shall file chargesheet against him before the competent Court having Jurisdiction and it shall not be necessary to seek permission of the Court for that purpose;
(viii) that investigation by the CBI shall not be a bar to the State Government from taking action against any officer under the Service Rules;
(ix) that the Central Bureau of Investigation shall be free to arrive at their own conclusion and the observations made in this judgment shall not be construed as expression of opinion and the investigation shall not be prejudiced by any of the observations made therein;
(x) that if the CBI needs any further time or direction to complete the investigation, it shall be open to the CBI to make a miscellaneous application for that purpose.
44. Both the petitions thus stand disposed of.