THE HIGH COURT OF SIKKIM : GANGTOK i WRIT PETITION (C) NO.42 0F 2004 In the matter of an application under Article 226 of the Constitution of India and in the matter of 1. Kunga NimaLepcha, S/o Lt. Chungbu Lepcha, R/o Tathangchen, P.O. Raj Bhawan, P.S. Gangtok, East Sikkim. Sonam Tshering Bhutia, S/o Karma Bhutia, R/o Upper Sichey, Bye-Pass Road, P.O. & P.S. Gangtok, East Sikkim. Balchand Sarda, S/o Late Hetram Sarda, R/o M, G. Marg, P.O. & P.S. Gangtok, East Sikkim. ...... Petitioners Versus State of Sikkim represented by the Chief Secretary, Government of Sikkim, Gangtok, East Sikkim. The Secretary, Land Revenue Department, Government of Sikkim, Gangtok, East Sikkim. ...... Respondents nnEEEE T,'I Forthepetitioners : Mr. M. Z. Ahmed, Senior Advocate assisted by Ms. 8. Dutta, Advocate. Fortherespondents : Mr. S. P. Wangdi, Advocate General assisted by Mr. J. 8. Pradhan, Government Advocate and Mr. Karma Thinley, Government Advocate. @ PRESENT: TILE tlot.'BLE MFL JuSITCE N. S. SINGH, CHIEF JuSITICE (ACTING). THE I+ON'BLE MR. ]uSTTCE JL I.. SuBBh JUDGE- I.act date Of t\earing : 12P Alugust, 2005. DAITE OF ]uDGMENI = 2:rd Sk=pten.bet, 2005. I ± E2 £ H I H I A. P. Subba, I The present writ petition has been filed by three petitioners each of whom belongs to the Lepcha community, Bhutia community and the local plains community of the State respectively. By this writ petition, they challenge the validity of allotment of lands made and the agreements entered into with three non-local parties as well as others by the State-respondents in gross violation of Indo-Sikkim Treaty, 1950 and Article 371-F of the Constitution Of India. 2. The case of the petitioners is that they are citizens of India and permanent residents of Sikkim. As ppermanent residents Of the State they are extremely concerned with the allotment of land poliey being presently ~L- ® It is the case of the petitioners that the above allotments have been made by the State-respondents in clear violation of the existing laws by completely ignoring the vital interest of the local people of the State of Sikkim and without any regard to the interest of the future generation. 3. The further case of the petitioners is that under the provisions of Indo-Sikkim Treaty, 1950 entered into between the Kingdom of Sikkim and the Government of India, any Indian national has the constitutional right to carry on trade and commerce in Sikkjm, but if an Indian national wants to acquire, hold and dispose of any property, movable or immovable, for the purpose of his trade or residence in Sikkim, he must satisfy the Government before acquiring such property that he has in fact established himself in any trade in Sikkim. Such being the provision in the treaty in question, it is the constitutional and moral obligation of the Government of Sikkim to satisfy itself that such Indian national/party has actually or in fact established themselves in any trade in the State before taking a decision to grant any right to such Indian national to procure or acquire any property in Sikkim either by way of outright purchase or by way of grant of 99 years perpetual lease. Since the allotments of g @ pursued by the State-respondents in the name of development of the State. Under such policy, permission being given to the outsiders to purchase prime immovable property for setting up industries within the State of Sjkkjm is adverse to the general interest of the local people. It is the further case of the petitioners that the State-respondents in recent times have been allowing certain multi-nationals to venture into Sikkim and have gone to the extent of either allotting or acquiring the scarce prime land of the State for allotting the same to such multi-nationals on the pretext of industrially developing the State and in doing so, they have not only totally ignored and neglected the basic rights of the local people but have also violated the provisions of the existing laws in force. In the process, it is further alleged, the State-respondents have arbitrarily and illegally allotted such prime lands to one M/s. Akshay Ispat and Ferro Alloys (Pvt. Ltd.) (AIFAL) at Mamring, South District, have granted perpetual lease in respect of about 4 acres of land in the same area to one M/s. SICPA (India) Ltd. and have also allotted forest land measuring over 25 acres at Pangthang near the capital of Sikkim to a non-local private party hailing from South India for the purpose of starting a five-star hotel resort. tr` y © prime lands were made and the agreements were executed by the State-respondents in favour of the above mentioned three non-local parties without complying with the provisions of the treaty and other relevant provisions of laws the actions of the State-respondents are violative of the provisions contained in Indo-Sikkim Treaty, 1950, Article 371-F of the Constitution of India, the Pollution Laws of the country and the Forest Laws. As such, the impugned allotment orders made and agreements executed in favour of the above-mentioned three outside parties as well as others are liable to be set aside and quashed. In the counter-affidavit filed by the State- respondents, it was not denied that the State Government have granted permission to the three parties named in the writ petition to set up industries in the State of Sikkim. It was contended that Sikkim being one of the least industrially developed States in the country was heavily dependant on Central Government fund. Hence, it was necessary to identify the priorities and emphasise the desirability of achieving speedy industrial development, thereby generating adequate employment opportunities. It was in keeping with the poliey of free industrialisation in the State as adopted by the State Government that the d...-.- © } said three parties have been given permission to set up their industries after duly complying with the relevant provisions under the related laws. It was, however, contended by raising a preliminary objection, that the writ petition was not maintainable as the issues raised pertain to the Indo-Sikkim Treaty, 1950 entered into between the then Independent Kingdom of Sikkim and the Government of India, which has now ceased to have any effect on the merger of Sikkim into Indian Union by virtue of 36th Amendment of the Constitution of India. It was accordingly contended that the issues raised by the writ petitioners pertain to matters over which the jurisdiction of the Courts in India have been specifically barred. 5. It was also contended that the writ petition was fundamentally based upon allegations against Industries Department, Income and Sales Tax Department, Labour Department, Power and Energy Department, Forest Department, State Control Pollution Board, Tourism Department, M/s. Akshay Ispat and Ferro Alloys (Pvt. Ltd.) (AIFAL), M/s. SICPA (India) Ltd. and other parties. Since none of these parties have been impleaded, the writ petition was liable to be dismissed on the ground of non- joinder of necessary parties. It was also contended that the present petitioners are not involved in any social ir. ® activities with the objective of uplifting and protecting the rights and interest of the citizens of Sikkim and till date no such social activities for the upliftment of the citizens of Sikkim have been taken up by the petitioners. Hence, the petitioners without having any past record of rendering public services to their credit have filed the present writ petition with the sole purpose of achieving publicity and for gaining political ends. As such, the petitioners do not have any /ocus stand/. to file the present writ petition and the same is liable to be dismissed on the ground of lack of locus standi as well. 6. Mr. M. Z. Ahmed, learned senior counsel assisted by Ms. 8. Dutta, learned counsel for the petitioners and Mr, S. P. Wangdi, learned Advocate General assisted by Mr. J. 8. Pradhan, learned Government Advocate and Mr. Karma Thinley, learned Assistant Government Advocate for State-respondents were heard. 7. It is the submission of Mr. Ahmed, the learned senior counsel for the petitioners that Article 371-F of the Constitution of India is absolutely clear in as far as the question of maintaining the sanctity of whatever treaty or agreement that were executed between the erstwhile Sikkim Kingdom and the Government of India is L- !,.. i= concerned. The Indo-Sikkim Treaty, 1950 was neither amended nor repealed and is still an existing law. Accordingly, it was the further submission of the learned counsel that the Indo-Sikkim Treaty, 1950 falls within the ambit and the scope of the term `Iaw' and the same has been protected by Article 371-F(k) of the Constitution inserted by the 36th Amendment of the Constitution. Mr. S. P. Wangdi, the learned Advocate General, on the other hand, controverted this contention and urged that the Indo-Sikkim Treaty, 1950 referred to and relied on by the petitioners long ceased to have any effect and operation after the Kingdom of Sikkim merged with the Union of India in the year 1975. As a result, neither the treaty falls within the definition of `law' nor the same has been protected under the provisions of Article 371-F of the Constitution. It is also his submission that such matters have been specifically excluded from the jurisdiction of the Courts in India. 8. In order to appreciate the rival contentions raised by the learned counsel for respective parties, it is necessary, at the first instance, to notice the specific provision of the lndo-Sikkim Treaty relied on by the petitioners. The provision so relied on by the petitioners and contained in Article VII of the Treaty is as follows:- L- ® ``Article VII (1) Subjects of Sikkim shall have the right of entry into, and free movement within, India, and Indian nationals shall have the right of entry into, and free movement within, Sikkim. (2) Subject to such regulations as the Government of Sikkim may prescribe in consultation with the Government of India, Indian nationals shall have:- (a) the right to carry on trade and commerce in Sjkkim; and (b) when established in any trade in Sikkim, the right to acquire, hold and dispose of any property, movable or immovable, for the purposes of their trade or residence in Sikkim. (3) Subjects of Sikkim shall have the same right - (a) to carry on trade and commerce in India, and to employment therein; and (b) of acquiring, holding and disposing of property, movable and immovable, as Indian nationals." Article 371-F(k) of the Constitution which is the constitutional provision relied on by the learned counsel in the next place is as follows:- "371-F(k) all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority;" 10. NJ- A bare perusal of the above provisions highlight the following: ® 10 ® 11. try (i) That under the provisions of the Indo-Sikkim Treaty, 1950 the `Indian nationals' had been given right to carry on trade and commerce in Sikkim as also to acquire, hold and dispose of any property for the purposes of their trade or residence in Sikkim when established in any trade in Sikkim. Correspondingly, the `subjects Of Sikkim' had been given similar rights to carry on trade or commerce in India which included right to employment and to acquire, hold or dispose of any property on a par with `Indian nationals,. (ii) That "all laws in force" immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof have been protected under Aiticle 371-F of the Constitution and such laws shall continue to be in force till such time as they are amended or repealed by a competent legislature or other competent authority. The questions for consideration is whether the Indo-Sikkim Treaty of 1950 is a `law' and falls within the expression of "all laws in force" and if so whether it can be taken to have been protected under the provisions of 11 Article 371-F of the Constitution introduced by 36th Amendment to the Constitution of India. Secondly, whether such matters arising out of the treaty have been excluded from the jurisdiction of Courts in India. 12. For the sake of convenience, we may first take up the question as to whether Indo-Sikkim Treaty, 1950 falls within the ambit of the term `law' and whether the treaty has been protected. As already noted above, while the submission of Mr. Ahmed is that the term `law' includes within its ambit the Indo-Sikkim Treaty of 1950 and thus the treaty falls within the expression "laws in force", the submission of Mr. S. P. Wangdi, learned Advocate General is that the treaty does not fall within the definition of the expression `law' and, as such, the lndo- Sikkim Treaty of 1950 cannot be taken to have been protected by Article 371-F of the Constitution. 13. In order to ascertain the correct legal position in this regard, the scope and ambit of the teml `Iaw' assumes importance. The two statutes referred to by the parties for a definition of the expression `law' are the following:- 1. Adaptation ofsikkim Laws (No.1) Order,1975; 2. Sikkim Interpretation and General clauses Act, 1977. "L- ® 12 The Adaptation of Sikkim Laws (No.1) Order, 1975 was issued by the President of India in exercise of the powers conferred by clause 1 of Article 371-F of the Constitution. The term `law' as defined in the said `Order' includes any enactment, proclamation, regulation, mule, notification or other instruments having immediately before the appointed day, the force of law in the whole or any part of the territory now comprised in the State of Sikkjm. Clause 2(c) of the said Adaptation of Sikkim Laws (No.1) Order,1975 is reproduced as follows:- "2.(1)(c) "law" includes any enactment, Proclamation, Regulation, rule, notification or other instrument having, immediately before the appointed day, the force of law in the whole or any part of the territory now comprised in the State of Sikkim." 14. The term `law' as defined in the Sikkim Interpretation and General Clauses Act, 1977 (Act 6 of 1977 is as follows:- "(26) "law" means any law, Act, Ordinance, Proclamation, regulation, rule, notification, order, by-law, scheme or Q!he[ instrument havina for the time beina the force Of law;„ 15- It may be noticed from the above that the term `law' has been defined in identical terms in both the rd. .- ® 13 statutes. It is notewoithy that the term `treaty' finds no mention in both the definitions. Relying on the observation of the Apex Court in State of Sikkim vs. Surendra Prasad Sharma & Ors. Ors. reported in JT 1994 (3) SC 372 the specific contention of Mr. Ahmed is that, even though the word `treaty' does not find place in the above definitions, the expression "other instruments having the force of law" occurring in the definitions under both the statutes includes within its scope and ambit the Indo-Sikkim Treaty of 1950. In view of this, the connotation of the said expression "other instruments having the force of law" assumes significance. However, it is to be noted that the said expression has not been defined jn both the above mentioned Acts, namely, the Adaptation of Sikkim Laws (No.1) Order, 1975 and the Sikkim Interpretation and General Clauses Act, 1977. 16. Therefore, the only way to get at the correct meaning of the expression "other instruments having the force of law" is to look for the ordinary, natural and grammatical meaning of the word `instrument'. 17. It appears that `instrument' is a term of wide comprehension. In Black's Law Dictionary the word `instrument' has been defined as a written legal document that defines rights, duties, entitlements, or liabilities, such ^.L ® 14 as a contract, will, promissory note, or share certificate. In P. Ramanatha Aiyer's ``The Law Lexicon" the term `instrument' has been defined and has been assigned different meanings. Out of the several definitions given in the Law Lexicon the definition which is of general import is that the term `instrument' is that it is a term used for a deed, writ or other legal proceedings or matters reduced to writing. It may be noticed that both the above definitions being of generic significance are not helpful in determining the specific meaning of the expression `instrument' so as to enable one to find out as to whether it includes a treaty within its ambit. Therefore, in order to arrive at the correct position it would be necessary to comprehend the meaning of the word `treaty' in its ordinary sense. For this purpose reference to Black's Law Dictionary is once again called for. 18. The term `treaty' has been defined in the said dictionary as follows:- ``Formally signed and ratified agreement between two nations or sovereigns; and international agreement concluded between two or more states in writte n form a nd governed by international law. . A treaty is not only the law in each state but also a contract between the signatories." L' ® 15 19. Therefore, a `treaty' as defined in the BIack's Law Dictionary signifies a formally singed and ratified agreement between two nations or sovereigns. From this, it follows that even though the expression `instrument' covers a legal document or agreement it does not comprehend a treaty. It is thus legitimate to conclude that the expression ``other instruments" cannot include a treaty entered into between the two sovereign powers. Therefore, the lndo-Sikkim treaty of 1950 being an agreement between two different sovereign powers falls outside the ambit and scope of the definition of the term `law' and of the expression "other instruments having the force of law". Hence, the contention raised by Mr. Ahmed, learned senior counsel for the petitioners cannot be countenanced. 20. In this regard, it would be useful to glance through the definition of the expression ``all laws in force" occurring in Article 371-F of the Constitution. Although this expression has not been defined the same must, according to the observation of the Hon'ble Supreme Court in Surendra Prasad Sharma's case (supra), receive its ordinary, natural and grammatical meaning. Dealing with the implication of the expression "all laws in force" the Apex Court has observed as follows: - lyl-- ® 16 "The latter part of the clause - `until amended or repealed by a competent legislature or other competent authority' - is indicative of the fact that the said expression was not intended to be confined to only legislative enactments but also laws which could be altered or amended or repealed by `other competent authority' i.e. other than the legislature itself. This supplies a clear indication that the said exDressjon js wide enouah to include subordinate legislation, e.g. Rules, Reaulations, Orders. etc." [emphasis added] Referring to the definidon Of the expression "existing law" in Article 366(10) of the Constitution of India the Apex Court observed thus - The expression `existing law' is defined by Aiticle 366(10) to indude any rule, regulation, bye-law, etc., and !a!e thinl( the expression `all laws in force' means all existina laws, [emphasis added] 21. Article 366(10) of the Constitution referred to above by the Honble Supreme Court is in the following terms:- "366.(10) `existing law' means any law, Ordinance, order, bye-law mule or regulation passed or made before the commencement of this constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation;" 22. It is clear from the above that the expression "all laws in force" even though held to be wide enough to include subordinate legislation, a treaty does not fall within ® L-' 17 its scope. As observed by the Apex Court ``all laws in force" means all existing laws. We have already noticed above that a treaty falls outside the ambit of `Iaw' and, therefore, it follows that it also falls outside the connotation of the expression ``existing law''. 23. Therefore, what emerges from the above discussion is that, from whatever angle the treaty is looked at, the same does not fall within the definition of law and the protection extended to ``laws in force" under Article 371-F of the Constitution does not and cannot extend to the Indo-Sikkim Treaty, 1950. 24. Now coming to the question of I.urisdiction of this Court in the matter before us, we may straightway refer to Article 371-F(in) of the Constitution which reads as follows:- ``371-F(in)neither the Supreme Court nor any other court shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim which was entered into or executed before the appointed day and to which the Government of India or any of its predecessor Government was a party ,-..................-...-.. " The above provision is too clear to leave any doubt that it constitutes a bar to interference by Courts in a L 18 dispute arising out of treaties, agreements, engagement or other similar instruments relating to Sikkim. We cannot also loose sight of the well-settled position that a treaty entered into between two sovereign powers is an act of State. As held by the Apex Court law with regard to act of State is well-settled. To make the point clear, we can do no better than quote the following observation made by the Apex Court occurring in para 10 of the judgment in State of Haryana and Others vs. Amar Nath Bansal reported in AIR 1997 SC 718 - "10 ............ With regard to an act of State the law is well settled by the decision of this Court. The residents of the territories which are acquired do not carry with them the rights which they possessed as subjects of the ex- sovereign. As subjects of the new sovereign they possess only such rights as are granted or recognised by him. The process of acquisition of new territories is one continuous act of State terminating on the assumption Of sovereign powers de June over them by the new sovereign and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign. No act done or declaration made by the new sovereign prior to his assumption of sovereign powers over acquired territories can quoad the residents Of those territories be regarded as having the character of a law conferring on them the rights such as could be agitated in Courts. The clauses in a treaty entered into by the independent rulers providing for the recognition of the rights of the subjects of the ex-sovereian are incapable of @ ', >` 19 enforcement in the Court of the nevy sovereian." [emphasis added] 25. The legal position as highlighted above appears to be the precise reason as to why the Indo-Sikkim Treaty, 1950 has been excluded from the expression "all laws in force" occurring in Article 371-F of the Constitution. The reason for the exclusion of the jurisdiction of the Courts including the highest Court of the country in any matter concerning a treaty entered into between the Kingdom of Sikkim and the Government of India before the appointed day is, therefore, obvious. The rights which the petitioners have claimed under the relevant clause of the treaty cannot be agitated in Courts. Moreover, it may be noted that even if the treaty were to be relied on, the provision contained in Article XII would come in the way of the petitioners. The said Article may be extracted as follows:- "Article XII If any dispute arises in the interpretation of the provisions of the Treaty which cannot be resolved by mutual consultation, the dispute shall be referred to the Chief Justice of India whose decision thereon shall be final." Therefore, we are of the considered opinion that jurisdiction of this Court is barred in the present matter by virtue of the provisions contained in Article 371-F(in) of @ ., > 20 the Constitution as well as Article XII