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WP(C) NO. 3963/2010, WP(C) NO. 3970/2010 Page 1 of 107
WP(C) NO. 4266/2010, WP(C) NO. 4267/2010
WP(C) NO. 4268/2010
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:
TRIPURA:MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No. 3963 OF 2010
1. GREATER LEW POLO WELFARE ASSOCIATION, HAVING ITS REGISTERED HEAD OFFICE AT POLO BAZAR, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 2. SRI MORRIS MYLLIEMNGAP, SON OF LATE R. PYRTUH, PRESIDENT OF GREATER LEW POLO WELFARE ASSOCIATION, POLO HIILS, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA.
………… Petitioners
-Versus-
1. STATE OF MEGHALAYA., REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF MEGHALAYA, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 2. DEPUTY COMMISSIONER, EAST KHASI HILLS DISTRICT, SHILLONG, MEGHALAYA. 3. MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 4. SECRETARY,
MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLONG, EAST KHASI HILLS DISTRICT.
….…… Respondents 5. MS. KA ARMOUR KHARKONGOR,
ING KHADDUH, KHARKONGOR CLAN, NONGTHYMMAI, SHILLONG, EAST KHASI HILLS DISTRICT,
MEGHALAYA. ….…… Proforma Respondent
Writ Petition (C) No. 3970 OF 2010
1. SHRI FRILIOUS SYIEMIONG, SON OF LATE E. SYIEMIONG, RESIDENT OF POLO HILLS, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 2. SMTI. PRETTY PYNGROPE, D/O. LATE J. PYNGROPE, R/O. POLO HILLS, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA.
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WP(C) NO. 4268/2010
3. SHRI S. KALINDI, SON OF LATE G. KALINDI, R/O. 4TH FURLONG, Mc CABBE ROAD, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 4. SHRI K.B. CHETTRI,
SON OF LATE A.B. CHETTRI, R/O. Mc CABBE ROAD, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA.
………… Petitioners
-Versus-
1. STATE OF MEGHALAYA., REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF MEGHALAYA, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 2. DEPUTY COMMISSIONER, EAST KHASI HILLS DISTRICT, SHILLONG, MEGHALAYA. 3. MEGHALAYA URBAN DEVELOPMENT AUTHORITY,
SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 4. SECRETARY,
MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLONG, EAST KHASI HILLS DISTRICT.
….…… Respondents
5. MS. KA ARMOUR KHARKONGOR,
ING KHADDUH, KHARKONGOR CLAN, NONGTHYMMAI, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA.
….…… Proforma Respondent
Writ Petition (C) No. 4266 OF 2010
1. UMKHRAH BISHOP COTTON AND Mc. CABE ROAD AND LAND OWNERS COMMITTEE, 4TH FURLONG, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 2. SRI ARUN KUMAR BHOWAL,
S/O. (L) J.C. BHOWAL, SECRETARY, UMKHRAH, BISHOP COTTON AND Mc. CABE ROAD, LAND OWNERS COMMITTEE, 4TH FURLONG, SHGILLONG,
EAST KHASI HILLS DISTRICT, MEGHALAYA ………… Petitioners
-Versus-
WP(C) NO. 3963/2010, WP(C) NO. 3970/2010 Page 3 of 107
WP(C) NO. 4266/2010, WP(C) NO. 4267/2010
WP(C) NO. 4268/2010
1. STATE OF MEGHALAYA., REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF MEGHALAYA, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 2. DEPUTY COMMISSIONER, EAST KHASI HILLS DISTRICT, SHILLONG, MEGHALAYA. 3. MEGHALAYA URBAN DEVELOPMENT AUTHORITY,
SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA. 4. SECRETARY,
MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA
….…… Respondents
5. MS. KA ARMOUR KHARKONGOR,
ING KHADDUH, KHARKONGOR CLAN, NONGTHYMMAI, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA.
….…… Proforma Respondent
Writ Petition (C) No. 4267 OF 2010
SHRI H. NONGRUM, S/O. (L) B. NONGRUM, RESIDENT OF NEW KENCHE’S TRACE, OPPOSITE G.A.D. QUARTERS NO. 9, BISHNUPUR, SHILLONG, EAST KHASI HILLS DISTRICT,
MEGHALAYA ………… Petitioners
-Versus-
1. STATE OF MEGHALAYA., REPRESENTED BY THE COMMISSIONER & SECRETARY, DEPARTMENT OF URBAN AFFAIRS, GOVERNMENT OF MEGHALAYA, SHILLONG. 2. MEGHALAYA URBAN DEVELOPMENT AUTHORITY,
REPRESENTED BY THE SECRETARY, MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLLONG. 4. THE DEPUTY COMMISSIONER,
THE SHILLONG MUNICIPAL BOARD REPRESENTED BY THE CHIEF EXECUTIVE OFFICER, SHILLONG
….…… Respondents
Writ Petition (C) No. 4268 OF 2010
SMTI. NANI BALA DEY, W/O. LATE PRANHARI DEY, OF LAWMALI, SHILLONG – 1, MEGHALAYA.
………… Petitioner
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-Versus-
1. SECRETARY,
MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLONG. 2. DEPUTY COMMISSIONER, EAST KHASI HILLS, SHILLONG, 3. STATE OF MEGHALAYA TO BE REPRESENTED BY THE CHIEF SECRETARY.
….…… Respondents
BEFORE
THE HON’BLE MR. JUSTICE AMITAVA ROY
THE HON’BLE MR. JUSTICE C.R. SARMA
For the Petitioner : Mr. GC Bharuka, Senior Advocate.
Ms. B Goyal, Advocate.
Mr. K Paul, Advocate.
Mr. J Roy, Advocate.
Mr. AM Buzarbaruah, Advocate.
Mr. RKD Choudhury, Advocate.
For the Respondents : Mr. Ranjan Mukherjee, Senior Advocate.
Dr. BP Todi, Addl. Advocate General,
Meghalaya.
Mr. SP Mahanta, Advocate.
Mr. N Sarma, Advocate.
Mr. A Nath, Advocate.
Date of Hearing : 22.12.2010, 06.01.2011, 07.01.2011, 11.01.2011.
Date of Judgment : 10.06.2011.
Judgement And Order (CAV) Amitava Roy, J
The present round of the extra decade procrastinated
legal tussle lays a challenge to the vires of Bye Law 11 of the
Meghalaya Urban Development Authority Bye Laws, 2001,
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(hereafter for short referred to as the Bye Laws) framed under
the Meghalaya Town and Country Planning Act, 1973 (for short
hereafter referred to as the Act) as well as orders dated
05.07.2010 adjudging the constructions raised by the addressees
to be illegal and directing demolition thereof. Thereby the
addressees have been held to be encroachers on Government
land by raising constructions without any valid permission. The
final orders are in the hand of the Secretary, Meghalaya Urban
Development Authority, Shillong (for short hereinafter referred
to as the MUDA).
02. By order dated 19.07.2010, this Court directed
maintenance of status quo of the property involved. By order
dated 23.07.2010 thereafter, certain clarifications, as recorded
therein, were sought for from the parties. This is chiefly related
to the particulars of (i) the members of the petitioner Association
in WP(C) No. 3963/2010 as well as of those who claim to have
instituted writ proceedings from time to time, challenging the
initiatives taken by the State respondents to oust them from the
land in their occupation as well as (2) the location of the plots to
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ascertain as to whether those are within the Master Plan area
within the meaning of the Act and the Bye Laws. In response
thereto, the parties exchanged pleadings. The interim relief
granted as above, continues as on date.
03. We have heard Mr. GC Bharuka, Senior Advocate,
Ms. B Goyal, Mr. K Paul, Mr. J Roy, Mr. AM Buzarbaruah and
Mr. RKD Choudhury, Advocates for the petitioners. Mr. Ranjan
Mukherjee, Senior Advocate along with Dr. BP Todi, Addl.
Advocate General, Meghalaya and Mr. N Sarma, A Nath,
Advocates represented the State respondents. Also heard Mr. SP
Mahanta, Advocate appearing for MUDA.
04. The bare essentials from the otherwise profuse
pleadings of WP(C) No. 3963/2010, have to be necessarily sieved
to depict the rival portrayals. Factual projection of other
individual cases wherever warranted have also been scripted.
The petitioner Association claims to be the successor
entity of Polo Bazar Welfare Association, a registered body with
the charter of aims and objectives, amongst others, to attend to
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the general welfare of its members who are the residents of the
Greater Polo area. It has pleaded that following the issuance of
the orders dated 05.07.2010, the Association in an emergent
General Body meeting unanimously authorized its President and
Secretary to act for and on behalf of its members for instituting
legal proceedings as warranted. A list of its members has been
furnished. It has pleaded that originally in the East Khasi Hill
District of the State of Meghalaya, there existed two kinds of
lands, i.e., i) Ri–Raid land - lands owned by the community and
managed and administered by the Headman and his Durbar and
ii) Ri Kynti land – lands owned and possessed by a particular
Clan and managed and looked after by the youngest daughter of
the family (Khadduh). According to the petitioner, in the year,
1863, the then Syiem of Mylliem with the consent of his Myntries
by an agreement dated 10.12.1863 relinquished certain rights in
some lands at Shillong for establishment of Civil and Military
Sanitaria and Cantonments etc., in favour of Her Majesty, the
Queen of England. The agreement, however, stipulated inter alia
that if the proprietor of any of the lands mentioned therein was
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unwilling to sell or part therewith to the British Crown he/she
would continue fully to enjoy the same without any levy.
05. The petitioner has asserted that the occupation of its
members is of such private lands of the Kharkongor Clan which
were neither transferred nor ceded to the British Crown and
were not included in the agreement made by the then Syiem of
Mylliem and the Queen of England. The petitioner has averred
that subsequent thereto, a map was drawn for the establishment
of the Civil Station and the Cantonment in Shillong town in the
year 1864, clearly demarcating the boundaries of the land(s)
taken over by the British Government. The petitioner has
pleaded that in the map, the lands in occupation of its members,
fall in between Pillar No. 16 and Pillar No. 17 and are, thus,
totally outside the plot(s) taken over by the then British
Administration.
According to the petitioner, though certain lands were
taken on lease by the British Government from various Ri-Kynti
owners, and also on outright purchase and further some had
been acquired under the Land Acquisition Act, 1894, those in
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possession of its members had never been ceded/leased to or
purchase or encumbered by the British Government or
Governments of Assam and Meghalaya at any point of time and
that the same continue to be the absolute property of the
Kharkongor clan. The petitioner has claimed that the respondent
No.5 being the Ing Khadduh of the Kharkongor clan family, she
with the consent of the brothers and other family members sold
some plots of the said lands by registered sale deeds to the
members of the petitioner Association as well as to their
predecessors-in-interest and granted pattas therefor to them as
well. It has averred that in the year 1973, following a dispute
amongst the clan members regarding the ownership of clan
properties, the respondent No. 5 instituted Title Suit No. 40(T) of
1973 in the Court of the Assistant to Deputy Commissioner,
Shillong for declaration and permanent injunction. The suit was
decreed on compromise adjudging that the lands, in question, in
the instant proceeding along with other properties had been
allotted to her share. Reference has also been made to other suits
involving the respondent No. 5 and others ending in
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determinations in favour of the purchasers of the respective
plots of land from her. The petitioner has thus emphatically
asserted that its members are the rightful registered owners of
their lands in occupation.
06. It has been alleged that inspite of the time tested legal
status of its members, the respondents have been being making
repeated attempts to evict them therefrom by resorting to illegal
and coercive measures without following the due process of law
since 1996-1997. It has been stated that being driven by eviction
notices on earlier occasions issued against a few of its members
as well as a massive demolition drive against others without any
notice, several writ petitions were instituted by its affected
members before this Court, which granted interim protection
and also allowed some to reconstruct/re-erect their structures.
Eventually, this batch of writ petitions was disposed of by a
common judgment and order dated 10.10.2002, interfering with
the eviction process and the related impugned notices/orders,
inter alia, recording the existence of a dispute between the parties
pertaining to their right, title and interest over the land and
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leaving the State Government at liberty to establish its right, title
and interest thereon before a competent court, if so advised.
07. The petitioner has averred that the State Government,
however, abstained from adopting such a course and instead, it,
by its letter dated 16.10.2003, addressed, amongst others, to the
MUDA, observed that the ownership of the land involved was
disputed and that an appeal against the judgment and order
dated 10.10.2002 of this Court was in contemplation. Subsequent
thereto, a public notice dated 30.05.2005 was issued by the
Deputy Commissioner, East Khasi Hills District, Shillong to the
effect that the land at Mc. Cabe Road, Polo, Shillong, was a
disputed land and that anybody indulging in the sale and
purchase of plots in that area would do so at his/her own risk.
The members of the petitioner’s Association being apprehensive
of encountering a fresh bout of eviction process, approached this
Court with WP(C) No. 194 (SH)/2005. By order dated 27.06.2005,
status quo with regard to the possession of their land was
maintained.
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As the Deputy Commissioner, East Khasi Hills
District, Shillong, by notice dated 12.07.2005 issued to four of its
members sought to evict them under section 3 of the Meghalaya
Public Premises (Eviction of Unauthorized Occupants) Act, 1980,
alleging that they were illegal occupants of the Government
lands, an application was filed in WP(C) No.194(SH)/2005
incorporating the challenge to such notice. Individual notices
dated 28.07.2005 were, thereafter, issued to some of the members
of the petitioner Association requiring them to demolish their
constructions. As their representations to the effect that the
structures were not fresh, but had been rebuilt/reconstructed in
terms of the order dated 21.07.1994, passed by this Court in CR
No. 2779/1994, remained unresponded, WP(C) No. 265 (SH)/2005
was instituted by them assailing those notices. Pending disposal
of this writ petition, the notices impugned were kept in
abeyance. As the applications by some members of the petitioner
Association with MUDA for granting building permission were
turned down, representing that those were untenable in view of
the direction to that effect from the Government of Meghalaya,
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the letter of refusal dated 12.09.2005 was assailed in WP(C) No.
419 (SH)/2005.
Subsequent thereto, MUDA, vide its notice dated
16.01.2007 addressed to ‚all concerned‛ alleged that the order
dated 27.06.2005, passed in WP(C) No.194(SH)/2005, granting
status quo of the land involved had been violated. Thereby, a
direction was issued to dismantle, immediately, the
unauthorized construction within 30 days. This notice, as well
came to be challenged in this Court by the petitioner Association
in WP(C) No.18(SH)/2007.
08. It has been stated that all these writ proceedings,
being WP(C) No. 194(SH)/2005, WP(C) No.265(SH)/2005, WP(C)
No.419(SH)/2005 and WP(C) No.18(SH)/2007 were disposed of
by a Single Bench of this Court by common judgment and order
dated 13.02.2007, reiterating that the questions involved
embodied disputed questions of facts, which ought to be
adjudicated upon by a Civil Court.
Four separate writ appeals, being WA No.
12(SH)/2007, WA No. 16(SH)/2007, WA No. 17(SH)/2005 and
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WA No. 18(SH)/2007 were, thereafter, preferred against this
judgment and order, which were disposed of on 25.05.2010, in
essence, leaving the noticees to appear before MUDA and
submit their reply to the notices. While observing that the
notices ought to be construed as one for showing cause by the
addressees, it was held that if, on making an inquiry, MUDA
came to the conclusion that the constructions were illegal, then,
after recording such a finding, it (MUDA) would be entitled to
demolish the same. The noticees were granted 30 days time to
appear and file their reply, and MUDA was restrained, till the
final disposal of the dispute, from demolishing the constructions
raised by the noticees, who, however, were prevented as well
from proceeding with any further construction on the land in
dispute. Liberty was also granted to the appellants or the
noticees, if aggrieved by the final orders passed by MUDA to
challenge the same in an appropriate proceeding.
09. The petitioner has pleaded that due to the vagueness
of the notice dated 16.01.2007, it having been issued to ‚all
concerned‛, and as old records had to be consulted, it on
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24.06.2010 in writing sought for extension of time by 10 days, so
as to enable its members to submit their show cause in terms of
the judgment and order dated 25.05.2010. The petitioner has
asserted that the extension of time, as prayed for, was granted by
MUDA. Written information to this effect was also
communicated to the Government of Meghalaya in the
department of Urban Affairs, whereafter, representations/show
causes were submitted before the Secretary, MUDA on
02.07.2010. The petitioner’s Association has maintained that
while the representations of its members were thus pending
consideration of MUDA, it (MUDA) in complete disregard to the
directions contained in the judgment and order dated 25.05.2010,
issued the impugned orders dated 05.07.2010 and got the same
pasted on the walls of the houses/shops/structures of its
members and immediately resorted to a demolition drive. The
impeachment of the Bye Law 11 of the By Laws and the orders
dated 05.07.2010 has been posted in this background.
10. The petitioner through its additional pleadings has
brought on record, the documents authorizing its President and
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Secretary to initiate the instant proceeding. One survey map of
1864 prepared pursuant to the instrument dated 10.12.1863
between the then Syiem of Mylliem and Her Majesty, the Queen
of England, has also been laid before this Court thereby.
According to the petitioner Association, its members had never
been served with the notice dated 14.12.2004 referred to in the
impugned order dated 05.07.2010. It has asserted as well that all
its members, though have not been served with the impugned
order dated 05.07.2010, their shops were sought to be
demolished.
11. The names and particulars of its members who have
submitted representations before the MUDA, as required by the
judgment and order dated 25.05.2010 as well as of those, who, it
(petitioner) claims had purchased different plots of land through
registered sale deeds on several dates and had been issued patta
and holding numbers by the Shillong Municipality, were
furnished. The names of its members, who, according to it, have
not been issued any impugned notice by MUDA were also
brought on record.
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12. The respondent Nos. 1 & 2 in their affidavit have
questioned the maintainability of the writ proceedings. The
answering respondents have insisted that the members of the
petitioner Association having failed to submit their show cause
within the time granted by this Court vide its judgment and
order dated 25.05.2010, they are estopped from challenging the
orders dated 05.07.2010, which MUDA, was in the circumstances
authorized in law to pass. They have repudiated the challenge to
the vires of Bye Law 11 of the By Laws as barred by the principle
of res judicata, inasmuch, as the petitioner had failed to project
this challenge in the earlier writ petitions instituted to assail the
notices issued by MUDA in the year 2005, requiring demolition
of unauthorized constructions/structures made by the illegal
occupants of the same land. According to them, even otherwise,
no challenge to the vires of the Bye Laws having a statutory
force being framed under the Act, is maintainable.
13. The answering respondents have maintained that the
judgment and order dated 10.10.2002 having merged with the
subsequent judicial pronouncements, it is bereft of any singular
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and predominant significance. Reference to the judgment and
order dated 13.02.2007 taking note of the earlier decision dated
10.10.2002 has been specifically made in this context. The
respondents have endorsed the validity of the impugned orders
dated 05.07.2010 contending that the members of the petitioner
Association having failed to submit their representations/show
causes to MUDA within the time allowed by this Court vide its
judgment and order dated 25.05.2010, they lost their right to do
so after the lapse of the said period.
According to them, MUDA rightly did not take
cognizance of the request made on 24.06.2010 seeking extension
of the time for filing the show cause/representation, as it was
only this Court, which was competent to do so. They, therefore,
contended that as the impugned orders dated 05.07.2010 are as a
consequence of the failure of the members of the petitioner
Association to submit their show cause/representation in time,
their challenge thereto is frivolous. The respondents have also
denied the petitioner Association’s assertion that extension of
time had been granted by MUDA as requested. They reiterated
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that the land occupied by the noticees was within the Master
Plan and identified as a Green Belt area, which by no means
could be permitted to be put to any commercial use. The
answering respondents maintained that the show
causes/representations, submitted on 02.07.2010 and thereafter
being beyond the time permitted by this Court, those were
rightly not taken entertained by MUDA.
That the land in occupation of the members of the
petitioner Association is Government land as borne out by the
out by the records maintained by the Registry at Shill-Book 1
Volume 1 at pages 223 to 226 No. 37 of 1902, has been asserted as
well. The respondents have underlined absence of sufficient
materials to demonstrate that the petitioner No. 2 claiming
himself to be the President of the petitioner Association had been
authorized by it to initiate the instant proceeding. The
ownership of the land in question by the respondent No. 5, Smti.
Bril Kharkongor has been denied as well.
14. The affidavit of the respondent Nos. 3 & 4 offers an
identical narrative. Additionally, they contended that in terms of
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the determinations made by a Full Bench of this Court rendered
in NONGKHLAW CLAN & ORS. VS. UNION OF INDIA, 1997 (2) GLT 652
(FB), the entire European Ward comprising of three Wards of
Shillong Municipality and Cantonment is unassailably
Government land. As this determination has not been
overturned by any higher forum, it has thus attained finality.
While emphasizing that the land in dispute has been admitted
by the petitioner to be within the European Ward, MUDA has
asserted service of the impugned orders either personally on the
noticees or in case of refusal or absence, by pasting on the
respective building/structure with a video recording in proof
thereof. That the land is located within the limits of Shillong
Municipality of ward No. 8, which is a part of the Master Plan
Area, has also been asserted. MUDA has further averred that the
area in which the land in dispute is situated has been earmarked
as Green Belt Area for conservation of environment and
protection of River Wahumkhrah.
It reiterated that the letter dated 24.06.2010 filed by
the petitioner Association seeking extension of time for filing the
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show causes/representations was not attended to, it having been
construed to be beyond its authority to do so in the face of the
unambiguous direction contained in the judgment and order
dated 25.05.2010. Similarly, the show causes/representations
submitted after the expiry of 30 days were not taken cognizance
of being beyond the time stipulated. It categorically denied grant
of extension of time by it as claimed by the petitioner. It alleged
total non-cooperation by the members of the petitioner
Association and other occupants in the process of preparation of
inventory by it in terms of the judgment and order dated
13.02.2007 of this Court. The answering respondent also referred
to certain photographs in endorsement of their imputation of
violation of the order of status quo granted on 27.06.2005. They
adopted the pleas of the State respondents bearing on the
maintainability of the writ proceedings on the ground of
estoppel and constructive res judicata.
15. The petitioner in its rejoinder-affidavit to the counters
filed by the respondent Nos. 1, 2, 3 & 4 have in particular
emphasised that the land involved in NONGKHLAW CLAN & ORS.
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(Supra), is different from the one in the instant proceeding and
that therefore the reported decision is of no relevance. While
reiterating that the land herein is not located within the
‘European Ward’, it has been clarified that in the State of
Meghalaya there are various ‚wombs‛ of the Kharkongor Clan
enjoying ownership over different areas which are dissimilar
from each other. According to them, as in the proceedings
disposed of by the judgment and order dated 10.10.2002, MUDA
was not a party therein, it was thereby not left at liberty to take
any decision against the petitioners. Moreover, the notices of
eviction in those cases had been issued by the Deputy
Commissioner, East Khasi Hill Districts, Shillong, but those dealt
with by the judgment and order dated 13.02.2007, had been by
MUDA. The petitioners, therefore, averred that the concept of
merger of the two decisions is misconceived.
While asserting that the decision in NONGKHLAW CLAN
& ORS. (Supra) did not establish that the land involved in the
instant proceeding is Government land, it pleaded that the
judgment and order dated 25.05.2010 construing the notices
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impugned therein to be those to show cause signified
interference with the decision dated 13.02.2007, which therefore,
had been rendered non est. The petitioner questioned the
authenticity of the signatures in the Dak Book (extracts whereof
have been appended as Annexure C to the affidavit-in-
opposition of MUDA) to be those of its members. According to
it, though its members were ready and willing to appear before
the competent officer of MUDA and submit their replies in terms
of the judgment and order dated 25.05.2010, they could not do so
as, till 04.07.2010, its (MUDA) Secretary had been out on a
foreign tour. While denying the allegation that the members of
the petitioner Association and other occupants had not
cooperated in the process of drawing up of the inventory, it has
been asserted that the process undertaken in connection
therewith was a mere eye-wash as the document prepared does
not disclose the names of the land holders or the holding
numbers or dag numbers of any of the plots involved. According
to it, even assuming that the representations/show causes had
not been submitted within the stipulated time fixed by the
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judgment and order dated 25.05.2010, such an omission, per se,
did not entitle MUDA to pass demolition orders without making
an inquiry and recording a finding warranting the same. The
petitioner has categorically stated that no construction has been
made by any of its members since after the judgment and order
dated 25.05.2010 had been delivered and that they have
complied with the direction contained therein in absolute terms.
16. The respondent No. 5 in her affidavit claimed herself
to be the Ing Khadduh of the Kharkongor clan of Nongthymmai
of Shillong and insisted to have sold several plots of land to the
individual members of the petitioner Association. While
reiterating that this land was beyond the purview of the
agreement dated 10.12.1863 between the then Syiem of Mylliem
and Her Majesty, the Queen of England, she averred that her
predecessors-in-interest, who were in-charge of her land did not
agree to sell, mortgage or in any other manner transfer or cede it
to the British Crown and that the same continued to be their
absolute property. She stated that the lands belonging to the
Kharkongor Clan in the Polo/Wahumkhrah area are shown
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between Pillar No. 16 and Pillar No. 17 as referred to in the
agreement dated 10.12.1863. She stated that being the Khadduh
(youngest daughter) of the Kharkongor family, she with the
prior permission and consent of her family members sold
individual plots of the said land in Polo/Wahumkhrah to the
members of the petitioner Association and had also granted
pattas to them.
She also, amongst others, referred to T.S. No.
40(T)/1973 instituted by her in the Court of the Assistant to the
Deputy Commissioner, Shillong, following a dispute with regard
to the ownership of the Kharkongor Clan properties, which
eventually, was decreed on compromise by judgment and order
dated 18.09.1989 to the effect that the lands, including those in
dispute in the present proceeding, were her absolute property.
17. This respondent, namely, Ka Brill Kharkongor having
expired on 29.11.2010 during the pendency of the litigation, she
was, vide order dated 22.12.2010 passed in MC No. 4065/2010
substituted by her youngest daughter Ka Armour Kharkongor,
the present Ing Khadduh as per the khasi customary law.
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18. The respondent No. 2, Deputy Commissioner, East
Khasi Hill Districts, Shillong completed the pleadings by his
affidavit denying the petitioner’s claim that the land involved
was private land. Not only this answering respondent referred
to the European Ward Map at Sheets I & II, he asserted also that
as the State Government was absolutely certain about its right,
title and ownership therein, it was considered unnecessary to
have it confirmed by a Civil Court. The respondent stated that
the notice dated 30.05.2005 referring the land to be a disputed
land did not, ipso facto, convey that it did not belong to the
Government. He contended that the land is located within the
jurisdictional limits of the Shillong Municipal Board. According
to this respondent, the petitioner’s admission regarding payment
of municipal taxes for the holdings of its member clearly
demonstrates that the land is located within the urban area of
Shillong.
19. The salient features of the pleaded cases of the
petitioners in the other writ petitions also deserve to be recorded
to complete the factual spectrum.
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The petitioners in WP(C) No. 3970/2010 (WP(C)
No.209 (SH)/2010) have claimed that Late Pyngrope Jumnud,
predecessor-in-interest of respondent No.2, who had purchased
a plot of land from respondent No.5 in 1966, instituted TS
No.41(T) of 1974 against the Shillong Gymkhana Races for
declaration of his right, title and interest and that the suit was
decreed on contest by the judgment and order, dated 31.05.1985,
thereby holding that the plaintiff was the legal and rightful
owner, in possession and occupation of the suit land and that no
appeal having been filed against the said judgment and decree,
the same attained finality.
20. The WP(C) No. 4267/2010 (WP(C) No.221(SH)/2010)
has been filed by Sri H Nongrum, challenging the final order,
dated 05.07.2010, issued by Secretary, MUDA in respect of his
land situated at Unkhra Mc Cabe Road, Shillong.
The writ petitioner’s case is that the said land was
originally purchased by one Aireng Chang Ryngah and
thereafter, the same was orally gifted to Smt. B Nongrul, who
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was his mother-in-law and after the death of the Smt. B.
Nongrum, the land devolved on the petitioner, being his son.
21. Mr. Airen Chand Rynjah approached the respondent
No.4 i.e. Shillong Municipal Board seeking building permission
in 1982 and as no building permission was granted, despite
submission of reminders and representations, Mr. Airen Chand
Rynjah commenced construction of building, under the
provision of Section 174 of the Meghalaya Municipal Act
(deemed provision) and completed the construction of a godown
for storing materials etc.
22. By letter, dated 16.03.1987, the respondent No.3
directed the mother of the petitioner to vacate the land within 15
days. This compelled her to file Civil Rule No.320/1987 and this
Court, by its order, dated 30.09.1987, disposed of the Civil Rule
allowing the mother of the petitioner to approach the Meghalaya
Board of Revenue within a period of one month, with the
direction that she shall not be evicted during the said period.
Accordingly, though the petitioner’s mother submitted a
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representation before the Meghalaya Revenue Board, she failed
to receive any response. In the meantime, Smt. B. Nongrum
forwarded a copy of the order, dated 30.09.1987 aforesaid, to the
respondent No.3 and submitted a representation for considering
her prayer with regard to building permission.
23. The respondent No.3, on 25.07.1991, while issuing a
notice to the mother of the petitioner, for vacating the suit land,
occupied by her, and to dismantle the structure raised thereon,
informed that the Government had refused to settle the land
with her. The said eviction notice was challenged in Civil Rule
No.3612 of 1991 and vide order, dated 28.07.1991, this Court was
pleased to stay the order, dated 25.07.1991 aforesaid. During the
said stay period, the mother of the petitioner completed the
construction of the building and obtained electricity connection
thereto.
24. Vide order, dated 07.04.1995, the respondent No.3 i.e.
the Deputy Commissioner, East Khasi Hill District, Shillong,
requisitioned the said building from the petitioner’s mother for
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accommodating two platoons of Central Reserve Police Force.
As the compensation @ Rs.9000/- per month towards the
requisition was not paid, the mother of the petitioner
approached this Court, by filing Civil Rule No.47(SH)/1997 and
vide order dated 10.04.1997, the writ petition was closed with a
direction to dispose of the application of the petitioner,
regarding demand of the rent. However, as the rent was not
paid, the petitioner filed a contempt petition being C.O.C.
No.1(SH)/1998. In the meantime, the mother of the petitioner
expired and she was substituted by the petitioner, by order,
dated 16.03.2000.
25. As the respondent refused to pay the compensation
towards the said requisition, the petitioner filed another writ
petition, being WP(C)No.83(SH)/2001 and this Court, vide order,
dated 02.01.2003, directed the State respondents to pay
compensation of Rs.9,000/- (Rupees nine thousand only) w.e.f.
07.04.1995 to 30.09.2002. In compliance with the said judgment
and order, the State Government made payment of
compensation in respect of the land and the building towards
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the requisition and thereafter, derequisitioned a part of the
building.
26. The Secretary, MUDA i.e. respondent No.2, on
27.04.2004, issued a notice to the mother of the petitioner,
directing her to dismantle the building on the ground that the
same was unauthorised. The representation, dated 05.05.2004,
submitted by the petitioner, to re-examine and reconsider the
matter, despite receipt of the same in its office, was not attended
to by MUDA. According to the petitioner, without disposing the
representation, dated 05.05.2004, and passing any final order in
respect of the said representation, MUDA issued a final order,
dated 05.07.2010, citing the order dated 25.05.2010, passed by
this Court in W.A. No.12(SH)2007, W.A. No.169SH)2007,
W.A.No.17(SH)2007 and W.A.No.18(SH)2007, declaring that the
construction, raised by the petitioner was without any valid
permission and that he having encroached upon Government
land was required to demolish the said construction forthwith.
In response to the said order, the petitioner, submitted
representation, on 19.07.2010. According to the petitioner, as the
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building was constructed under the deeming provision of the
Meghalaya Municipal Act, the construction cannot be held to be
unauthorised and the order, dated 05.07.2010, issued without
disposing of the representation dated 05.04.2009, was grossly
illegal and in violation of the principle of Article 21 of the
Constitution of India.
27. To reiterate, the petitioner in WP(C) No.4267/2010
(221(SH)/2010), claimed that the land in his occupation was a
purchased land. The petitioner in WP(C) No. 4268/2010
(190(SH)/2010) asserted that the land in his occupation was taken
on lease from the Shillong Municipal Board.
The petitioners in WP(C) No. 3970/2010
(209(SH)/2010) and WP(C) No. 4266/2010 (1204(SH)/2010), in
categorical terms contended as well that the lands in their
occupation were purchased by them as well as their predecessor-
in-interests as the case may be from the respondent No. 5 in
WP(C) No. 3963/2010 and were duly granted pattas therefor.
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28. In the backdrop of this monolith of pleadings, Mr.
Bharuka has insistently urged that Bye Law 11 when tested in
the context of the provisions of the Act is beyond the purview of
section 74 and is thus, per se, invalid in law. As this provision of
the Act apparently does not authorize MUDA to frame a bye law
to define and penalize any offence independent of those
accounted for by the enactment, Bye Law 11 is clearly beyond
it’s (MUDA) power of making regulations and thus is liable to be
adjudged null and void. Referring to section 51, 56 and 58, in
particular, catalogued under Chapter 10 of the Act, the learned
Senior Counsel has argued that those configure a complete
scheme of penal provisions and as Bye Law 11 of the Bye Laws is
clearly extraneous thereto and further repugnant to the
legislative policy of the parent statute, it is void for all intents
and purposes. The impugned clause of the Bye Laws being in
outright breach of the permissible limits of subordinate
legislation outlined by the Act, it is ultra vires the same, he
urged.
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29. Mr. Bharuka next urged that the presupposition of
encroachment upon Government land by the noticees referred to
in the impugned order dated 05.07.2010, being in apparent
disregard to the findings recorded in the judgment and order
dated 10.10.2002, as the right, title and interest of the
Government in the land involved is not yet proved in law, such
an assumption is conjectural, rendering the impugned order a
nullity. According to him, the constructions referred to in the
impugned order having been raised before the year 1991, those
were beyond the purview of the Bye Laws and thus the
invocation of Clause-11 thereof is patently impermissible.
Highlighting the vagueness of the notices referred to in the
impugned order in all essential particulars vis-a-vis the land and
the structures, the learned Senior Counsel contended that as the
same had been served only on four occupants and not on all in
possession of the land involved, the same (final orders dated
05.07.2010) are liable to be annulled. Mr. Bharuka argued as well,
that the final orders being not inconformity with the directions
contained in the judgment and order dated 25.05.2010 in its letter
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and spirit those are non est in law. Without prejudice to the
above, the learned Senior Counsel has argued that even
assuming that Bye Law 11 was valid, the offences referred to
therein are to be investigated into and tried under the Code of
Criminal Procedure 1973 (as amended) and MUDA being not
empowered to take any action therefor, the impugned order(s)
dated 05.07.2010 are liable to be quashed on this count alone.
30. Ms. Goyal supplemented the above by contending
that the petitioner Association represents 63 persons inclusive of
10 land owners who had submitted representations before
MUDA on behalf of the occupants of the land as permitted vide
judgment and order dated 25.05.2010. She reiterated the pleaded
assertion of ownership of the land in Kharkongor Clan and sale
thereof to the individual occupants. The learned counsel
contended that the impugned final orders are, per se, invalid
having been passed without disposing of the representations
submitted by the members of the petitioner Association as well
as other occupants as allowed by the judgment and order dated
25.05.2010. Ms. Goyal questioned the tenability of the final
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orders also on the ground of absence of any imputation of
contravention of the Master Plan in the notices dated 14.12.2004,
28.07.2005 and 16.01.2007, though, averred by MUDA in its
affidavit in opposition.
31. Mr. Buzarbaruah learned counsel for the petitioners
in WP(C) No.3970/2010 argued that Bye Law 11 (ii), can by no
means be in supercession of or repugnant to section 30 A and 30
B of the Act and that any action of MUDA contrary thereto
would be palpably void. While contending that the conditions
precedent for exercise of power under Bye Law II would
logically extend to all the eventualities contemplated in Clause
(i), (ii) and (iii) thereof, the learned counsel maintained that as
the land belongs to the occupants, if the structure thereon is
adjudged to be illegal, the same at best can be demolished, but
no action for their eviction therefrom as encroachers would be
allowable. Mr. Bujarbaruah, however, assailed Bye Law 11 to be
unconstitutional, as it seeks to confer uncanalized and unbridled
power on MUDA. The learned counsel emphatically urged that
the land involved in NONGKHLAW CLAN & ORS. (Supra) is
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different from one in the present proceeding and, therefore, the
said decision is not supportive of the plea of the respondents
that the petitioners are in occupation of Government land.
32. In reply, Mr. Mukherjee appearing for the State
respondents maintained that Bye Law 11 was intra vires, the
power to frame the same being traceable to the Act. Referring
profusely to the provisions of the Act and in particular section 73
(2) (ii) and 74 (vi), the learned Senior Counsel insisted that as
MUDA is an authority established under the statute and in view
of the plenary powers conferred on it, it could provide for
demolition of illegal structures by framing Bye Laws. Mr.
Mukherjee underlined that as the Bye Laws have been framed in
exercise of the statutory power conferred on MUDA under
section 27 of the Act, it could not be equated with a delegated
legislation envisaged under section 73 of the Act. According to
the learned Senior counsel, Bye Law 11 (ii) of the Bye Laws
under which the impugned orders had been passed envisioned
civil action only and, thus, is not in conflict with the statutory
scheme adumbrated by section 51, 56 and 58. He thus dismissed
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the plea of usurpation of powers by MUDA on the hypothesis
that the impugned action was penal in nature.
Mr. Mukherjee without prejudice to this plea has
urged that even if section 51, 56 and 58 of the Act have
application to the facts of the present case, on a conjoint reading
of section 4 & 5 of the Code of Criminal Procedure, 1973, (for
short hereafter referred to as the Code), the emerging offence can
be tried by MUDA. The learned Senior Counsel referred to the
provisions under Chapter II (A), II, IV and V of the Act to
contend that a cumulative reading thereof would demonstrate
that MUDA as a creature of the statute was well within its rights
to order demolition of the illegal structures on Government land.
33. Mr. Mukherjee submitted that the judgment and
order dated 25.05.2010 clearly recognized this power of MUDA
traceable under section 8-D of the Act. According to him, the
caption ‚Offences and Penalties‛ of Clause 11 of the Bye Laws
would not, per se, evince that the actions permissible for the
MUDA to take thereunder would essentially be punitive. He
sought to plead that Clause (i), (ii) and (iii) thereof are mutually
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exclusive and the action contemplated under clause (ii) is civil in
nature. Charting a co-relation of Bye Law 11 (ii) with section 30-
B of the Act, Mr. Mukherjee urged that it would be apparent that
the power of demolition is independent of one for initiating
prosecution under Bye Law 11 (i). Referring to the litigational
background involving the land and the occupants thereof
culminating in the verdicts of this Court on 10.10.2002 and
13.02.2007, the learned Senior counsel argued in terms thereof
that MUDA was authorized to clear the encroachment and the
illegal constructions in accordance with law and that the plea to
the contrary is clearly untenable. Mr. Mukherjee urged that the
notice dated 14.12.2004, 28.07.2005 and 16.01.2007 taken
cumulatively testify grant of adequate prior opportunity to the
persons concerned. According to him, the judgment and order
dated 25.05.2010 not only is in recognition of the MUDA’s
authority in law to pursue the exercise initiated by these notices,
the scope of inquiry on the representations/show causes, if filed,
was also clearly delineated. The noticees having admittedly
failed to avail this opportunity within the time stipulated, their
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assailment of these notices on the ground of vagueness and non-
service thereof is wholly frivolous and is a afterthought, he
urged.
Drawing the attention of this Court to the judgment
and order dated 13.02.2007, the learned Senior Counsel insisted
that it having been recorded therein that the illegal constructions
on the land involved had not been denied by the occupants, on
their failure to represent against the notices referred to in the
impugned order dated 05.07.2010 within the time granted by this
Court, no remedial intervention of this Court in favour of the
petitioners is warranted. It being apparent on the fact of the
record that none of the noticees/occupants had represented or
shown cause as required of them by the judgment and order
dated 25.05.2010 within the time granted, the impugned final
order dated 05.07.2010 is unassailable, he insisted. The learned
Senior Counsel stoutly denied the petitioner’s claim that MUDA
had granted extension of time on a request being made by them
to that effect on 24.06.2010. The petitioners having failed to avail
the opportunity granted by the judgment and order dated
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25.05.2010 to represent against the notices referred to in the
order dated 05.07.2010, their plea of unfairness or of non-
observance of the due process of law is also wholly
unsustainable, he maintained.
34. He further urged by relying on Rule 31 of the
Meghalaya Town and Country Planning (Constitution and
Authority) Rules, 1973 (hereafter for short referred to as the
Constitution Rules) that the impugned final order dated
05.07.2010 is beyond reproach, as thereby, the decision of MUDA
only was only sought to be communicated, by the Secretary
thereof having been delegated the power to do so under this
provision of these Rules. In endorsement of his contention of
authorization of the Secretary of MUDA, Mr. Mukherjee laid
reliance on the minutes of the meeting held on 02.07.2010 in the
office chamber of the Minister-in-Charge, Urban Affairs
Department, Government of Meghalaya on issues relating to the
judgment and order dated 25.05.2010.
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35. While contending that the petitioners before this
Court are rank encroachers on Government land and that in the
facts and circumstances of the case, the Senior Counsel
maintained that they are not entitled to any protective insulation
from the lawful initiations taken by MUDA in public interest.
Referring profusely to the pleadings of the State respondent and
MUDA, the learned Senior Counsel has argued that the land
involved is unmistakably located within the European Ward, a
fact, otherwise, conclusively established by the rendering of this
Court in NONGKHLAW CLAN & ORS. (Supra).
Mr. Mukherjee insisted that the challenge to the vires
of Bye Law 11 is only in furtherance of the ulterior motive of the
illegal occupants of Government land to desperately hang on to
their otherwise brazenly unauthorized possession. In this view
of the matter, the plea of the omission on the part of the State
respondents to obtain a declaration to this effect from a Civil
Court is wholly vacuous, he maintained. The following decisions
were cited to fortify the arguments advanced. HC SUMAN VS.
REHABILITATION MINISTRY EMPLOYEES’ COOPERATIVE HOUSE
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BUILDING SOCIETY LTD., NEW DELHI & ORS., (1991) 4 SCC 485, M.I.
BUILDERS PVT. LTD. VS. RADHEY SHYAM SAHU & ORS., (1999) 6 SCC 464,
OM PRAKASH & ORS., VS. STATE OF UP & ORS., (2004) 3 SCC 402, INDIAN
HANDICRAFTS EMPORIUM & ORS. VS. UNION OF INDIA & ORS., (2003) 7
SCC 589, MILK PRODUCERS ASSOCIATION, ORISSA & ORS. VS. STATE OF
ORISSA AND ORS., (2006) 3 SCC 229, KUMARAN SILKS TRADE PVT. LTD.
VS. DEVENDRA & ORS., (2006) 8 SCC 555, PRIYANKA ESTAES
INTERNATIONAL PRIVATE LTD. & ORS. STATE OF ASSAM & ORS., 2006 (3)
GLT 1 and PRIYANKA ESTAES INTERNATIONAL PRIVATE LTD. & ORS.
STATE OF ASSAM & ORS., (2010) 2 SCC 27.
36. Mr. Mahanta while generally adopting the arguments
advanced on behalf of the State respondents has taken us
through the pleadings of MUDA as well as a set of photographs
produced to emphasise that the existing encroachments and the
unabated construction works are not only grossly illegal, but
also pose serious environmental hazards warranting immediate
demolition thereof. While reiterating that the land involved is
located within the European Ward and thus is indubitably a
Government land, the learned counsel with reference to the
documents appended to the pleadings of MUDA has insistently
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submitted that the notices referred to in the impugned final
order dated 05.07.2010 had been either personally served or in
cases of refusal to accept or absence of the notices, pasted on the
respective constructions.
37. Mr. K Paul, learned counsel for the petitioners in
WP(C) No. 3970/2010 and WP(C) No. 4266/2010 has adopted the
arguments advanced by the learned Senior Counsel for the
petitioners in WP(C) No. 3963/2010.
38. Mr. Bhattacharjee appearing for the respondent No. 5
in WP(C) No. 3963/2010, has argued with reference to her
pleadings that the land involved, which belong to her, as the Ing
Khadduh of Kharkongor Clan had not ceded to the British
Crown any point of time. While, underlining that the land
involved in NONGKHLAW CLAN & ORS. (Supra), is distinctly
different from the one in the present proceedings, the learned
Senior Counsel argued that as the issues therein were
conspicuously different, the reliance of the respondents thereon
is wholly misconceived. Mr. Bhattacharjee to buttress his plea
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also produced and referred to the plaint in TS No. 18(SH) of
1985. The learned Senior Counsel also profusely relied upon the
additional pleadings of the writ petitioners in WP(C) No.
3963/2010, the sale deeds produced as well as the map appended
to the affidavit-in-opposition of respondent No. 5 to contend that
it would appear therefrom that the land was situated within
Pillar Nos. 16 and 17 thereof (map) and thus was apparently not
vested in the Government.
39. Mr. Bharuka, in reply, has insisted that as the action
under Bye Law 11 (ii) as represented by the impugned final
order dated 05.07.2010 had to be essentially preceded by any of
the violations enumerated therein tantamounting to an offence,
the endeavour on the part of the respondents to pass it of as a
civil action is wholly misconceived. As any offence is triable in
terms of the law of criminal procedure as engrafted in Entry
No.2 of the Concurrent List in Schedule VII to the Constitution
of India, a legislation thereon, though permissible by a State
legislature subject to the stipulations as contained in Article
254(2), such an exercise by no means is either contemplated or
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sanctionable for a delegated authority. Referring to section 73 (2)
of the Act, the learned Senior Counsel has urged that
particularity of the topics enumerated therein notwithstanding,
provisions by way of Rules beyond the contours specified may
be valid, if, however, not in conflict with the general powers
conferred for carrying out the purposes of the Act. According to
the learned Senior Counsel, Section 74 (1) (VI) does not, in any
view of the matter, empower MUDA to frame Bye Law II.
40. While maintaining that the impugned action is
beyond the purview of the Act and the Bye Laws, MUDA
admittedly not being the owner of the land, the learned Senior
Counsel has submitted that in absence of any statutory provision
delegating its (MUDA) role and function to anybody, the order
of Secretary is ab initio void and on that count alone the final
order dated 05.07.2010 ought to be interfered with. Mr. Bharuka
dismissed the plea of delegation of power of MUDA in favour of
its Secretary under Rule 3 of the Constitution Rules contending
that a bare perusal of the said provision belies the same. The
learned Senior counsel urged that even assuming that the
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petitioners are trespassers on Government land, the proposed
demolition of their structures and their eviction cannot be on a
executive fiat, but has to be essentially in accordance with the
procedure prescribed by law. Referring to the minutes of the
meeting dated 02.07.2010, Mr. Bharuka has emphasised that it
would be apparent therefrom that the impugned action is a
predetermined one vitiated by mala fide.
41. To reinforce his arguments, Mr. Bharucha placed
reliance on the decisions of the Apex Court in BHARAT BARREL
AND DRUM MFG. CO. LTD. & ANR. VS. EMPLOYEES STATE INSURANCE
CORPORATION, AIR 1972 SC 1935, NASIR AHMED VS. ASSISTANT
CUSTODIAN GENERAL ENACUSE PROPERTY, UP, LUCKNOW & ANR., AIR
1980 SC 1157, ISHWAR SINGH BAGGA & ORS. VS. STATE OF RAJASTHAN,
AIR 1987 SC 628, INDIAN COUNCIL OF LEGAL AID & ADVICE & ORS. VS.
BAR COUNCIL OF INDIA AND ANR., AIR 1995 SC 691, AGRICULTURAL
MARKET COMMITTEE VS. SHALIMAR CHEMICAL WORKS LTD., (1997) 5
SCC 516 and FOOD CORPORATION OF INDIA VS. STATE OF PUNJAB &
ORS., AIR 2001 SC 250.
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42. Mr. Mukherjee rounded up his arguments by
reiterating that the Act does not encroach upon Entry No. 2 of
the Concurrent List and that no repugnancy with the Criminal
Procedure Code is discernible. While highlighting that the
impugned final order is that of MUDA and that its Secretary had
only signed it, having been delegated the power to that effect,
the learned Senior Counsel urged that the minutes of the
meeting dated 02.07.2010 read as a whole sharply testify to this
effect.
According to Mr. Mukherjee, MUDA being a body
corporate created under the Act, it has to essentially function
through an agency and its Secretary being amongst its staff as
enumerated in Rule 14 of the Constitution Rules, he had every
right under the Act and the Rules framed thereunder to
communicate its (MUDA) decision as conveyed by the final
order dated 05.07.2010. The learned Senior counsel has also
referred to Rule 16, 18 and 20 of the Meghalaya Town an
Country Planning (Management of Authority) Rules, 1973, (for
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short hereafter referred to as the Management Rules) also in this
regard.
He contended further that not only the petitioner has
failed to produce any proof of title of the occupants in the land,
their admission that it is located within the boundary Pillars No.
16 & 17 substantiates that it is Government land as such pillars
exists only in respect of revenue land. According to Mr.
Mukherjee, having regard to the lay out of the reliefs sought for,
the issue of ownership ought not to be examined in the instant
proceeding and as the impugned action has been taken in
committed compliance of the directions contained in the
judgment and order dated 25.05.2010, no interference therewith
is called for.
43. The highly contentious pleadings and the weighty
arguments based thereon have received the anxious
consideration of this Court. Before dealing with the formidable
issues raised in succession, it would be expedient to reminisce
the course of the adjudication briefly till the stage of the final
hearing.
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44. On the date of the initiation of the proceedings in
WP(C) No. 3963/2010, a Division Bench of this Court on
19.07.2010, directed maintenance of status quo of the property
involved by the parties till 23.07.2010. On that date, this Court,
having noticed from the pleadings then available, amongst
others, that the facts and particulars pertaining to the members
of the petitioner Association, who claimed to have purchased
lands from the Kharkongor family by registered sale deeds and
of those who have filed writ petition earlier, were unavailable on
record, required the petitioner Association to furnish the same.
The finding recorded in the judgment and order dated
10.10.2002 referred to hereinabove that the petitioners therein
had, prima facie, title over the lands involved was noted. This
Court, however, expressed its inability to ascertain the
particulars of the lands involved in those proceedings as well as
whether the members of the petitioners Association and to
whom the order dated 05.07.2010 (impugned herein) had been
issued, were parties thereto or not. The letter dated 16.10.2003 of
the Deputy Secretary, Government of Meghalaya, Urban Affairs,
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Department and the Secretary, MUDA to the effect that the
ownership of the land concerned was disputed as well as the
public notice dated 30.05.2005 of the Deputy Commissioner, East
Khasi Hills District, Shillong intimating the general public as
well to the said effect were referred to. The petitioner
Association, by this order dated 23.07.2010 was, therefore,
directed to submit better particulars of its members, who had
instituted WP(C) No. 194(SH)/2005, as well as of those who had
been the appellants in the appeals preferred against the
judgment and order dated 13.02.2007, rendered in the
aforementioned batch of writ petitions including WP(C)
No.194(SH)/2005. This Court also desired to be apprised in the
face of the challenge to the vires of Bye Law 11 (ii) as to whether
the land involved was located within the Master Plan/ Scheme
Area. To this effect, in particular, the Court required the
respondents to furnish necessary clarifications.
45. In response to the above order, a series of pleadings
followed, analysis whereof, in bare essentials, at the cost of some
repetition though, is unavoidable.
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46. In the additional affidavit dated 23.07.2010, the
deponent therein in the capacity of the President of the
petitioner Association asserted that he had been authorized to
represent it by the Secretary as well as the members thereof. The
authority letters were also appended to the additional affidavit.
Reiterating the averment made by it in the writ petition that the
lands of its members and other occupants in the fray were not
included in the instrument/agreement dated 10.12.1863 between
the then Syiem of Mylliem and Her Majesty, the Queen of
England, the petitioner Association also appended to its
additional affidavit a copy of the survey map of 1864 in
buttressal of this plea.
47. In its further additional pleadings filed on 30.07.2010,
the petitioner Association clarified that it was a registered body
detailing its aims and objectives. Apart from annexing a copy of
its constitution, it asserted that all persons in the Greater Polo
area were its members and it, as a composite unit, had been
taking care of all the residents of inhabitant area since its
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inception. A list of its members was also furnished. A reference
was made of an emergent General Body meeting of its members
on 15.07.2010, where it was unanimously decided to authorize
the President and Secretary thereof to act for and on behalf of its
members. It was resolved further that the individual land
owners including the members who have received any notice
identical to the one impugned herein would also issue
individual authorization letters to them for the same purpose.
The names and particulars of the members of the petitioner
Association who have purchased lands from their respective
vendors were stated as well and copies of the sale deeds were
also furnished. Averments disclosing the holding and the ward
numbers corresponding to the properties involved and the
factum of payment of tax to the Shillong Municipality were also
made.
48. The State respondents and MUDA in their affidavits
in response to the direction contained in the order dated
23.07.2010, however, laid greater emphasis on the fact that the
land in question was located within the Master Plan as well as
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Green Belt Area for consideration of environment and protection
of River Wahimkhrah and that the petitioners had encroached
thereupon. Reference was made of records maintained by the
Registry at Shill-Book 1 Volume 1 at pages 223 to 226 No. 37 of
1902. The claim of the respondent No.5, Smti. Bril Kharkongor to
be the owner thereof was stoutly refuted. MUDA additionally
asserted that the same land being involved in NONGKHLAW CLAN
& ORS. (Supra), the decision rendered therein was of binding
effect testifying irrefutably that the same was within the
European Ward and thus a Government land. According to
MUDA, the land documents furnished by the petitioners
indicated the northern boundary to be Wahumkhrah River
(European Ward) and that such a disclosure clinched this issue
in favour of the respondents. MUDA further asserted that all the
occupants of the land involved, whether or not they were the
members of the petitioner Association, were served with the
impugned order dated 05.07.2010 as well as notices mentioned
therein personally or in case of their refusal or absence pasted in
the respective buildings and that a video recording of the
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process was also undertaken. That the land was located within
Ward No. 8 of Shillong Municipality and thus within Shillong
Master Plan as well as Green Belt Area for conservation of
environment and protection of river Wahumkhrah was
reiterated.
49. In the context of the pleadings of the parties and the
overall homogeneity of interest of the occupants of the land
involved, we are inclined to assay the challenge made to the
impugned action construing it to be of a representative character
on their behalf as a whole. This course, we prefer to adopt in
order to obviate the possibility of multiplicity of proceedings
relatable to the already protracted controversy ensuing in
continual confrontative orientations. Noticeably, there is no
dispute with regard to the general identity of the land involved,
in the series of proceedings herein before referred to. As alluded
hereinabove, MUDA claims to have served the impugned order
as well as the notices mentioned therein on all the occupants
irrespective of whether they are or not the members of the
petitioner Association and the other petitioners. On a cumulative
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consideration of all above, it is thus considered appropriate to
deal with the issues raised on a representative basis with an
endeavour to provide a quietus to the lingering stand off.
50. The respondents at an earlier stage of the adjudication
had raised preliminary objections bearing on the maintainability
of the petitions urging the bar of constructive res judicata to the
impeachment of the vires of Bye Law 11 as well as estoppel
against the assailment of the legality and/or validity of the
impugned order dated 05.07.2010. By order dated 10.08.2010
following a detailed discussion, the objections were negated. The
following observations made therein have a bearing on the
present pursuit, the above order having remained unassailed by
the parties. These were, not re-agitated at the final hearing -
1) A Single Bench of this Court vide its judgment and
order dated 10.10.2002 passed in a series of writ
petitions registered as CR No. 111(SH)/1997, et al, on
a consideration of the pleaded facts and other
materials on record had held that the petitioners
therein could make out a prima facie case that they
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have been rightly occupying their respective lands by
way of purchase from the original owner, Ka Bril
Kharkongor and in view of the nature of the dispute
raised, the State Government/respondents were left at
liberty to establish their right/title in the land in
question before a competent Court, if so advised.
2) The eviction process undertaken was held to be not
in compliance of the procedural safeguards
prescribed by law.
3) A public notice dated 30.05.2005 thereafter was
issued by the Deputy Commissioner, East Khasi Hills
District, Shillong, notifying that the ongoing sale and
the purchase of land in Mc. Cabe Road, Polo, Shillong
was illegal and that anybody indulging in such
transaction would be doing so at his/her own risk.
The notice conveyed that the land was a disputed
land. This notice was challenged in WP(C)
No.194(SH/2005
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4) Individual notices under section 3 of the Meghalaya
Public Premises (Eviction of Unauthorized
Occupants) Act, 1980, having been issued thereafter
on 12.07.2005 and 28.07.2005, the pleadings of WP(C)
No. 194 (SH)/2005 were amended and separate writ
petitions were also instituted impugning the validity
thereof.
5) All these writ petitions were disposed of by a
learned Single Judge of this Court by his judgment
and order dated 13.02.2007 observing that as the
materials on record gave rise to disputed questions of
facts, the same ought to be adjudicated upon by a
Civil Court.
6) Being aggrieved, some of the members of the
petitioner Association preferred appeals being WA
No.12(SH)/2007, WA No.16(SH)/2007, WA
No.17(SH)/2007 and WA No. 18(SH)/2007.
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7) All these appeals were disposed of by a common
judgment and order dated 25.05.2010 with the
observations that: -
i) the notices involved ought to be considered as
those for showing cause against the action
proposed thereby and that any person aggrieved
would be entitled to appear before the
competent officer of MUDA and submit his/her
reply within a period of thirty days.
ii) The MUDA would make an enquiry and if on
the conclusion thereof it holds that the
constructions in dispute have valid sanction
would pass appropriate orders. If it is found
otherwise, it would be entitled to demolish the
same.
iii) The appellants/noticees were restrained from
making further constructions.
51. In rejecting the preliminary objections, this Court not
only took note of the observations made in the judgment and
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order dated 10.10.2002, but also of the public notice dated
30.05.2005 issued almost three years thereafter treating the land
to be disputed. It was observed as well, in the order dated
10.08.2010 that though another Single Bench of this Court had, in
its judgment and order dated 13.02.2007 while disposing of
WP(C) No.194(SH)/2005 and other connected proceedings,
noticed the decision dated 10.10.2002, no interference therewith
or finding in effacement thereof was recorded. The fact that
though, in the said judgment and order it was observed that no
specific denial had been made by the members of the petitioner
Association to the imputation of illegal constructions on the
land, the learned Single Judge noticing their claim as rightful
owners of the land, had concluded that the prayers made in the
writ petitions were such that those were ‚to be only undergone
and to be adjudicated upon‛ by the Civil Court was also
considered.
52. In the judgment and order dated 13.02.2007 as
well, the dispute with regard to the title/ownership of the land
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therefore, was acknowledged and the same was left to be
adjudicated upon by a competent Civil Court being
uninfluenced by any observation made therein.
53. The Division Bench of this Court in its judgment and
order dated 25.05.2010, granted an opportunity to the members
of the petitioner Association as well as the other noticees to
submit a reply to the impugned notice before MUDA
substantiating their claim that the construction raised by them
were on their own land. The final decision of MUDA was made
contingent on an inquiry to be made by it preceding the same. In
reiteration of the observation to this effect made in the order
dated 10.08.2010, according to us, the representations/show
causes permitted to be submitted by the noticees were not
construed by the Division Bench of this Court to be a mere ritual
so as to authorize or permit MUDA on the failure of the
submission thereof within the time granted, to order their
eviction and demolition of their structures thereon without
offering to them any opportunity whatsoever or undertaking
any semblance of scrutiny or inquiry prior thereto.
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54. The text of the judgment and order dated 25.05.2010,
in our discernment, kept open, as well the issue of the status of
the land involved to be ascertained in the inquiry required to be
conducted by MUDA. The respondents’ plea of merger of the
judgment and order dated 10.10.2002 in the determinations
made on 13.02.2007 and 25.05.2010 as above, suggesting
acknowledgement of the land to be a Government land, thus,
absolving the respondents in law to prove it to be so, is
untenable. Noticeably, MUDA has not claimed ownership of the
land. Admittedly, the respondents, more particularly, the State
of Meghalaya has not yet instituted any suit or proceeding either
in the civil court or any other appropriate forum for a
declaration of their/its right, title and interest therein. In our
view, therefore, the judgment and orders dated 13.02.2007 and
25.05.2010, per se, do not dissolve the dispute bearing on the
status of the land involved.
55. The impact of the decision rendered in NONGKHLAW
CLAN & ORS. (Supra), by a Full Bench of this Court now needs to
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be deciphered. The determination by the Full Bench was in
answer to a reference made to this Court by the jurisdictional
District Judge involving interpretation of the deeds executed in
favour of Her Majesty, the Queen of England, whereby, the
lands involved therein had been given on lease to Her Majesty
for a period of 99 years on and from 10.12.1863. The issue apart
therefrom pertained to the status of the successor Government in
relation to the said lands after the lapse of the British
Paramountcy and also default, if any of the Union and the State
Government in payment of yearly rent rendering themselves
liable to be evicted therefrom with the consequence of reversion
thereof to the original owners.
56. The contextual facts demonstrate that three suits,
namely, TS Nos. 17(SH), 18(SH) and 19(SH) of 1985, were
instituted respectively by three Clans, i.e. Nangkhlaw,
Kharlongor and Kurkalang in court of the Munsiff at Shillong,
praying for declaration of their right, title and interest over the
suit lands described in the schedule to the plaints with the
consequential relief for recovery of actual physical possession
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thereof by evicting the defendants. The lands involved in the
aforementioned suit were as hereinbelow:-
i) TS No.17(H)/1985 – 300 acres,
ii)TS No.18(H)/1985 – 60 acres and
iii) TS No.19(H)/1985 – 60 acres.
The lands covered the whole limits of the 3 Wards of
the Shillong Municipality and Cantonment land (erstwhile
British portion of Shillong or normal area). It was the pleaded
case of the plaintiffs that the suit lands belonging to the three
respective clans had been leased out to the Queen of England
and that the British Paramountcy having lapsed with the Indian
Independent Act, 1947 and the creation of Dominion of India,
those reverted to the Syiem of Mylliem (a native state) and its
owners i.e. the three Clans. The plaintiffs had also pleaded that
the erstwhile sovereign authority had taken the lands on lease
for a period of 99 years in the year 1863 with the concurrence of
Syiem of Mylliem and that with the expiry of the said period, the
lease stood determined and consequently the lands had reverted
to them. On an exhaustive analysis of the facts and the law
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involved in the background of the historical perspective, the
plaintiffs’ plea of reversion of lands to them on the expiry of the
lease period was rejected and it was conclusively recorded that
the same had merged with the State of Meghalaya. The reference
was thus rejected and the suits were dismissed.
57. To start with, the petitioners have consistently
averred that the land involved in the instant proceeding had not
been leased out by the relevant instrument/agreement in favour
of Her Majesty, the Queen of England and that therefore, the
decision in NONGKHLAW CLAN & ORS. (Supra) is of no relevance
whatsoever. This pleaded orientation is thus in sharp contrast to
the one admittedly taken by the members of the Kharkongor
Clan in the plaint of the TS No. 18(H)/1985, produced for the
perusal of the Court in course of the arguments. The letter dated
16.10.2003 of the Deputy Secretary to the Government of
Meghalaya, Revenue Department (Annexure VII to the writ
petition in WP(C) No. 3963/2010) also discloses the stand of the
Government that the ownership of the land is disputed and that
in terms of the judgment and order dated 10.10.2002, an
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appropriate forum ought to be approached to settle the question
of title and ownership.
58. By way of recapitulation, the petitioners in WP(C)
No.3963/2010 have in categorical terms stated that the lands in
the occupation of the noticees are private lands of the
Kharkongor Clan family which had never been sold, agreed to
be sold, mortgaged or ceded to the British Crown and further
were not included in the agreement made by the then Syiem of
Mylliem with Her Majesty, the Queen of England. According to
them, in the map drawn for the establishment of the Civil Station
and Cantonment in the Shillong town in the year 1864
delineating the boundaries of the land so taken over by the
British Government, the land herein was not included and in
fact, was located between Pillar No. 16 and 17. They traced the
ownership of the present land to the respondent No. 5, the Ing
Khadduh (youngest daughter) of the Kharkongor family, who,
with the consent of her family members, sold plots therefrom by
registered sale deeds to the members of the petitioner
Association and their predecessors-in-interest and also granted
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pattas to them. They also referred to a number of proceedings in
which disputes surfaced between the Clan members and others
relating to the Clan properties including such conveyed plots,
which, however, ended in favour of the respondent No. 5 and
her purchasers.
59. In contradistinction, apart from the pleaded refutation
of the respondent Nos. 1, 2, 3 and 4 that the land is located
within the Shillong Master Plan and Green Belt Area for
conservation of environment and protection of River
Wahumkhrah, the respondent No. 2 in addition has, by his
affidavit dated 10.01.2011, sought to demonstrate on the basis of
the map sheets annexed thereto that the same is indubitably a
Government land. The said respondent while pointing out that
the petitioners’ admission of payment of tax for their holdings
axiomatically evinces the location of the land within the Urban
Area of Shillong under the jurisdiction of Shillong Municipality
Board, has sought to clarify as well that the indication of a
dispute vis-a-vis the same as made in the letter dated 16.10.2003
and the public notice dated 30.05.2005 did by no means denote
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an admission of the respondents that the same was not
Government land.
60. The respondent No. 5 in her affidavit endorsed the
stand of the writ petitioners in full. The writ petitioners in WP(C)
No.3963/2010 in their rejoinder-affidavit further elaborated that
the lands involved in NONGKHLAW CLAN & ORS. (Supra) belong to
different ‚wombs‛ of Kharkongor Clan and were different from
the one in hand. They asserted that the land in occupation of the
noticees belonged to the respondent No. 5 (since deceased) i.e.
the wombs of Late Luh Kharkongor Dkhar, the Great Great
Grandmother of the respondent No. 5, as would be evident from
the left margin of the sale deeds annexed to the additional
pleadings filed by them. While stating that in the State of
Meghalaya there are various ‚wombs‛ of the Kharkongor Clan
enjoying ownership of various areas, distinct from each other,
they clarified that the lands covered by NONGKHLAW CLAN & ORS.
(Supra), had not been claimed by respondent No. 5 and thus the
decision of the Full Bench was not applicable to the facts of the
present case.
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61. In the teeth of such wholly irreconcilable factual
claims, we are constrained to conclude that it is neither possible
nor expedient to register a finding on the right, title and interest
in and the ownership of the land involved in the dispute in the
instant proceeding with its inherent limitation. Though, a host of
sale deeds with accompanying documents, maps/plans, official
publications of the Master Plans and notifications demarcating
the wards of the Shillong Municipality/Board have been placed
on record along with the respective pleadings, having regard to
the enormity of the exercise to be undertaken into the minutest
factual details demanding a studied scrutiny, as a Writ Court,
we feel wholly ill-equipped to undertake such a fact finding
process. Not only the nature of the issue with the consequence of
a summary determination thereof on the basis of the pleadings
and the documents appended thereto alone proclaim against the
desirability of this endeavour, in the face of the consistent views
expressed in the earlier rounds of litigation, we are of the firm
comprehension that in order to maintain an uniformity in
approach, the adjudication vis-a-vis the status of the land and
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the right, title, interest and ownership thereof ought to be left to
a forum be it Civil Court or any other judicial institution
competent/authorized in law therefor on a scrutiny of the
pleadings as well as evidence oral and documentary. The
learned counsel for the parties though, have, before us,
endeavoured to a certain extent to locate the land to substantiate
their rival propositions, no consensus with regard to the
situation thereof in the Master Plan/Scheme Area was
discernible. Having regard to the nature of the protracted
dispute and the ensuing consequences of any finding in this
regard, we are of the unhesitant opinion that no conclusion
ought to be recorded in a proceeding of the kind in hand only
based on the materials presently available. A determination with
regard to the status of the land and the right, title, interest and
ownership thereof ought to be on the basis of evidence in a
proceeding involving the parties staking their claims and
supplemented by on spot survey of the sites/locations/plots as
deemed essential with due reference to the relevant official
records so as to ascribe a finality to and binding effect of such
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adjudication. The decision of the Full Bench of this Court in
NONGKHLAW CLAN & ORS. (Supra) therefore, per se, does not
clinch this issue in favour of the respondents.
62. The challenge to the vires of Bye law II (ii) of the Bye
Laws at this juncture needs to be attended. The Bye Laws as the
notification No.UAM.64/93/535 dated 13th December, 2001
proclaims have been framed by MUDA in exercise of its powers
conferred by Section 74 of the Act. The scope, ambit and the
purport thereof for appropriate analysis would necessarily
warrant a brief survey of the provisions of the parent enactment,
it being claimed to be the source of its formulation.
63. The Act is an enactment of the State legislature to
provide for the development of the towns and the country side
of the State of Meghalaya and the preamble thereof propounds it
to be a step to provide such development on sound planning
principles with the object of securing proper sanitary conditions
to conserve and promote public health, safety and general
welfare of the people living therein. The legislation extends to
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the whole of Meghalaya including Autonomous Districts leaving
it open, however to the District Council to apply all or any of the
provisions thereof to such districts, however, by a notification to
that effect.
64. The expressions ‚Authority‛, ‛Building‛ and
‚Development‛ which are of considerable significance and
defined in Sections 2(1), 2(4) and 2(7) are extracted hereinbelow-
2(1) “Authority” shall mean the Local or
Regional Authority appointed by the State
Government for the purposes of administering the
Act. Unless otherwise appointed by the State
Government the Authority in the case of Municipal
Areas shall be taken to mean the Municipal Board
for the area constituted under the Assam Municipal
Act,1956( as adopted by Meghalaya).
2(4).”Building” means any construction for
whatsoever purpose and of whatsoever materials
constructed and every part thereof whether used as
human habitation or not and include plinth walls,
chimney, drainage works, fixed platforms, verandah
balcony, cornice or projection, or part of a building
on anything affixed thereto or any walls, earth
bank, fence or other construction enclosing or
delimiting or intended to enclose or delimit any land
or space.
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2(7).”Development” means the carrying out of
building, Engineering, Mining or other operations
inn , on, or over the land, or material change in the
use of any buildings or of land :
Provided that the following operations or use of
land shall not be deemed for the purposes of this Act
to mean Development of the land, that is to say-
(a) the carrying out of works for the
maintenance, improvement or other
alteration of any building being works
which effect only the interior of the
building o which do not materially affect
the use and the external appearance of
the building ;
(b) the carrying out by a local authority of
any works required for the maintenance
or improvement of road, being works
carried out on land within the boundaries
of the land ;
(c) the carrying out by any local authority
any works for the purpose of inspecting,
repairing or renewing and sewers, main
pipes, cables or other apparatus,
including the breaking open on any street
or other land for that purpose;
(d) the use of any building or other land
within the cartilage of a dwelling house
for any purpose incidental to the
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enjoinment of the dwelling house as
such.
Under Section 8-A, the State Government may by
notification in the official Gazette constitute for the purposes of
the Act, an authority to be called ‚The Development Authority‛
with jurisdiction over such areas as may be specified therein.
Sub-section (2) prescribes that the Authority would be
a body corporate having perpetual succession and a common
seal with the power to acquire, hold and dispose of properties
both movable and immovable and to enter into any agreement,
and would in the same name sue and be sued. The
composition of the Authority is provided in Section 8-B and the
terms and conditions of the service of the Chairman and the
members thereof testify the deep rooted State control on these
counts.
Section 8-D which outlines the functions and powers
of the Authority also deserves to be quoted –
‛8-D. Functions and powers of the Authority-
Subject to the provisions of this Act, rules and
directions of the State Government the functions of
the Authority shall be to promote and secure the
development of the area according to the Master
Plan and for that purpose it may carry out or cause to
be carried out surveys of the area and to prepare
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report or reports of such surveys and to perform any
other function which is supplemental incidental or
consequential to any of the functions aforesaid or
which may be prescribed.
It would appear from hereinabove that this provision
enjoins and comprehends all encompassing functions of the
Authority supplementary, incidental or consequential to those
specifically mentioned therein, the evident objective thereof
being to equip it with the corresponding power to act for
effective furtherance of the purposes of the enactment.
65. Section 8-EE authorizes the Chairman to exercise
powers vested by the Act in the Authority to facilitate the
transactions of business connected with the Act with the only
rider that he would not act in opposition to or in contravention
of any order of the Authority or usurp, the power reserved for it
(Authority) at a meeting.
Section 8-G empowers the Authority to appoint such
number of officers and employees as may be necessary for the
efficient performance of its functions, to determine their
designations and grades. Their terms and conditions of service
are to be determined by rules and regulations to be made in
that regard.
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Chapter III of the Act is devoted to ‚Master Plan‛ &
‚Zoning Regulation‛. Thereunder a Master Plan & Zoning
Regulation for the development of any area within the State is to
be drawn up by the Director of Town and Country Planning in
consultation with the local authorities concerned to be submitted
with the State Government for examination and approval. After
the Master Plan and the Zoning Regulation are finally prepared
on a consideration of the objections, suggestions and
representations that would have to be elicited by publishing the
draft thereof for public responses, the same would be finally
published.
66. Section 12 provides that after the Master Plan and
Zoning Regulation are adopted, those would be sent for
implementation to the Authority, whereafter as mandated by
Section 13, no person would use any land, sub-divide any land
or set up any new structure on any land covered by the Plan or
change the existing structure of any building or use of any
building or land within the area except with the permission of
the Authority on a written application submitted for the
purpose.
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67. Chapter IV deals with ‚Development Scheme‛. The
Authority under Section 15 may by notification in the official
Gazette declare any area to be a scheme area and thereafter
prepare a scheme. Such exercise can also be entrusted by the
State Government to any local Authority. In the process of
preparation of such scheme, the Authority, the Director of Town
and Country Planning or the local Authority as the case may be
would issue a notice inviting names of all the claimants or any
person interested in the land or building within the area under
the scheme. The Director of Town and Country Planning or the
local Authority however, is prohibited from undertaking or
carrying out any development of land in any area which is
beyond the scheme area. Here as well, after the publication of
the development scheme on being approved and sanctioned by
the Government following a scrutiny of the objections
submitted by the interested persons and after affording them
sufficient opportunities of hearing, no person within any area
where scheme comes into force would be allowed to erect or
proceed with any building or work or remove or alter or make
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additions or make any substantial repair to a building or a part
of it etc. except on the permission of the Authority, application
being submitted to that effect.
68. The provisions contained in Chapters II to IV
therefrom attest that the Authority has the power and
jurisdiction to administer the Act for achieving the purposes
thereof within the areas included in the Master Plan and Zoning
Regulations as well as the Development Scheme. This is of
considerable relevance vis-a-vis the ongoing process of
demolition and ouster undertaken by the Authority. The
applicability of the Act and the Bye Laws also presupposes such
a condition precedent.
69. In Chapter V, the Authority, if it determines that the
lay out or a construction as contemplated therein is not in
conformity with the sanctioned plan or is in violation of any
provision of the Act it shall serve a notice on the person
concerned requiring him to stay further execution until
correction has been effected in accordance with such plan. Vide
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Meghalaya Town and Country Planning(Amendment) Act, 2004,
Sections 30A and 30B were inserted. Whereas, under Section 30A
the power was conferred on the Authority to direct
discontinuance of any development in any area in contravention
of the Master Plan or Development Scheme or without the
permission , approval or sanction referred to in Section 13 and/or
Section 29 or in contravention of any conditions subject to which
such permission, approval or sanction had been granted and
also to cause removal of the person by whom such development
had been commenced in case of non compliance of any direction
to discontinue such development, the power of demolition of
such development has been conferred on the Authority by
Section 30B. These two provisions having regard to their
significant bearing are also extracted hereinbelow-
“30-A. Power to stop development (i) Where
any development in any area has been
commenced in contravention of the Master
Plan or Development Scheme or without
the permission, approval or sanction
referred to in Section 13 and/or Section 29
or in contravention of any conditions
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subject to which such permissions,
approval or sanction has been granted the
Authority may, make an order requiring
the development to be discontinued on and
from the date of the service of the order
and the order and such order shall be
complied with accordingly.”
“30-B. Power of demolition of building.(1)
where any development has been
commenced or is being carried on or has
been completed in contravention of the
Master Plan or Development Scheme or
without permission, approval or sanction
referred to is Section 13 and Section 29 of
this Act or in the contravention of any of
condition subject to which such
permission, approval or sanction has been
granted, the Authority may in addition to
any prosecution that may be instituted
under this Act make an order directing that
such development shall be removed by
demolition , filling or otherwise by the
owner, occupier, manager or by any person
at whose instance the development has
been commenced or is being carried out or
has been completed within a period not
exceeding thirty days from the date on
which a copy of the order of removal with
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brief statement of the reasons thereof has
been delivered.
(1) On his/her failure to comply with the
order, the Authority may remove or cause
to be removed the development and the
expenses of such removal shall be removed
from the owner, occupier, manager or any
person at whose instance the development
was commenced etc.as arrears of land
revenue.
Provided that no such order shall be
made unless the owner, occupier, manager
or the person concerned has been given a
reasonable opportunity to show cause why
the order shall not be made.”
70. A plain reading of Section 30A indicates the power of
the Authority to direct discontinuance of the erring
development, removal of persons responsible therefor as well as
seizure of construction materials etc. in connection therewith.
The power of demolition contained in Section 30B is invocable
when a development has been commenced or being carried on
or has been completed in contravention of the Master Plan or
Development Scheme or without permission, approval or
sanction referred to in Sections 13 and 29 of the Act or in
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contravention of any condition subject to which such permission,
approval or sanction had been granted. In such a situation, the
Authority has been left with the discretion to direct removal of
such development by demolition , filling or otherwise by the
owner, occupier , manager or any person at whose instance , the
same had been commenced or is being carried out or has been
completed. Such an action as is evident from this provision is
permissible and would be in addition to any prosecution that
may be instituted under the Act. If the owner, occupier, or
manager or the person at whose instance the development had
been commenced or carried out or completed fails to act in terms
of the directions issued within the time prescribed, the Authority
is empowered to remove or cause to be removed the same and
realize the expenses for such removal from the owner, occupier,
manager and/or any such person as arrears of land revenue.
71. The proviso to section 30B however, enjoins that no
order of removal by demolition etc. as contemplated and
permissible thereunder can be made unless the owner, occupier
or manager or the person concerned has been given a reasonable
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opportunity to show cause as to why the same would not be
made.
This legislative inhibition is of decisive significance in
the context of the final order dated 05.07.2010 issued by the
Authority. As determined hereinbefore, the opportunity granted
by the judgment and order dated 25.05.2010 to the noticees was
not intended to be an idle formality. The Division Bench of this
Court therein did not either mention or indicate that on the
expiry of the period allowed by it, any representation/show
cause as contemplated if submitted by the noticees could be
overlooked, ignored and disregarded. Though section 30B was
not in specific terms referred to in the judgment and order dated
25.05.2010, the course suggested for the parties does clearly
comport thereto. In our unhesitant opinion, in absence of any
unambiguous observation in the judgment and order dt.
25.05.2010 relieving MUDA of its obligation to undertake the
scrutiny as required of it thereby, its move to issue the final
order dated 05.07.2010 in the facts and circumstances of the case
cannot be determined to be in consonance with the letter and
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spirit of the above decision of this Court and section 30B of the
Act.
72. Chapter X with the Caption ‚Legal Proceedings‛
delineates a scheme for prosecution and punishment for the
contraventions of the kind as mentioned therein. Section 51
therein makes a breach of any provision of the Master Plan
and/or a Development Scheme to be punishable on conviction
by a Magistrate following a prosecution. Prior thereto, the
Authority is to notify the person of such breach or default
requiring him to discontinue the same, so much so, that the
failure to comply therewith would attract prosecution.
73. Section 56 comprehends simple punishment of fine to
the extent of Rs.500/-with or without simple imprisonment for a
term which may extend to two months. Section 58 prohibits
cognizance of any offence punishable under the Act except on
the complaint of or upon information received from the
Authority or from a person authorized by it. This Chapter
therefore, visibly contemplates a situation where penalties by
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way of imprisonment or fine can be awarded for the referred
violations and outrages on prosecution of the offender/violator
and conviction by a court of law. The framework of the Chapter
does not per se envisage the demolition of any development as
defined by the Act at the instance of the Authority permissible
under section 30B thereof. A prosecution for such development
though may very well be contemplated in one or more of the
provisions under Chapter X, steps for causing the demolition
of offending development as a corrective measure seems to be
beyond the purview thereof. This indeed, is endorsed by the
plain language of Section 30B as well. The Authority thereunder
may in addition to any prosecution that may be instituted under
the Act make an order directing removal of the development
made in contravention of the Master Plan or Development
Scheme or in absence of any permission, approval or sanction or
in transgression thereof.
74. To complete the narration, reference to Sections 73
and 74 of the Act is indispensable. Whereas, the former deals
with the power of the State Government to make rules, the latter
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empowers the Authority to make Bye laws in respect of matters
enumerated therein, but not inconsistent with the rules made by
the State Government. The themes with which the Authority is
endowed with the power of framing bye laws include inter alia–
“Clause (iv) : zoning regulations prescribing the
type and/or description of building which may
or may not be, and the purpose for which a
building may or may not be erected in any
prescribed area or areas ;
……………………………………………………….
(vi) regulations in any manner not
specifically provided for in this Act, erection of
any enclosure, wall, fence,tent or the structure
on any land within the limits of the Authority;
……………………………………………………...‛
75. In the exercise of the aforementioned power under
section 74 of the Act, the Bye Laws had been framed. We are
concerned with only Bye Law 11 thereof which occupies the
center stage of the debate qua, the vires thereof and is extracted
hereinbelow :-
‚11.Offences and Penalties‛:- Any person who
contravenes with the provisions of the bye-laws or
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who interferences or obstruct any authorized
personnel in the discharge of his duties shall be
guilty of an offences. The Authority shall :-
(i) Punish the person by a fine as fixed by
the Authority or as per the Meghalaya
Town ad Country Planning Act, 1973.
(ii) Take suitabrle action including
demolition of un-authorized works as
decided by the Authority.
(iii) Take suitable action against licensed
technical personnel and licence may
withdrawn in case of an offence as
decided by the Authority.‛
76. Section 73 amongst others permits the framing of
rules by the State Government in respect of matters that may be
delegated to any Authority established under this Act or to any
officer. Our attention has been drawn to the Meghalaya Town
and Country Planning (Constitution and Authority) Rules,1973
(for short, ‘Constitution Rules) as well as the Meghalaya Town
and Country Planning (Management of Authority) Rules, 1973
(for short, ‚Management Rules).
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77. It has indeed not been argued that the Bye Laws are
in contravention of any rules made by the State Government in
exercise of power under section 73. A close perusal of Clauses
(iv) and (vi) of Section 74 demonstrates their comprehensive and
inclusive expanse. The Authority having been empowered to
make bye laws in respect of matters catalogued in section 74, in
our view, it would be both impermissible and imprudent to
scuttle the ambit of empowerment in absence of any apparent
inconsistency with the rules framed by the State Government
and more importantly, the provisions of the parent legislation.
The Authority, as it is noticeable has been authorized to frame its
Bye Laws by the Act itself and not the State Government. The
obvious purpose of such endowment being to advance the
purposes of the Act, no other circumspection to curtail the
amplitude of the Bye laws ought to be inferred.
78. The plenary nature of the functions and the powers of
the Authority conceptualized by the scheme of the Act and
particularized amongst others in Section 8D and Chapters III, IV
and V in supplementation of each other emphatically endorses
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this view. The Bye laws therefore are well within the legislative
limits conferred on the Authority by section 74 of the Act and
are patently not in conflict therewith.
79. The Apex Court in H.C. SUMAN AND ANOTHER (Supra)
held in approval of the determination made in this regard in
KRUSE VS. JOHNSON, (1898) 2 QB.91 that a court ought to be slow
to hold that a bye-law is void for unreasonableness and that it
ought to be supported unless it is manifestly partial and unequal
in its operation between different classes, or unjust, or made in
bad faith, or clearly involving an unjustifiable interference with
the liberty of those subject to it.
80. The Apex Court in AGRICULTURAL MARKETING
COMMITTEE (Supra) tracing the power of delegation to be a
constituent element of the legislative jurisdiction under Article
245 of the Constitution of India, in particular , observed that in
course of enacting laws to meet the challenge of the complex
socio-economic problems, the legislature often finds it
convenient and necessary to delegate subsidiary or ancillary
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powers to delegatees of their choice for carrying out the policy
laid down by the enactment. The legislature has to essentially
lay down the legislative policy and the principles to afford
guidance for carrying out the same by the delegatee and the
subordinate legislation is comprehended for implementing the
purposes and objects of the parent legislation. While reiterating
that such delegation ought not to eventuate the effacement of
the legislature or the legislative policy outlined by it, their
Lordships emphasized that the delegatee has to assuredly
dwell within the scope of its authority and cannot widen or
constrict the contour of the delegating enactments or the policy
laid down therein.
81. In O.M. PRAKASH AND ORS. ( Supra), the Apex Court
recalled its observations in a Constitution Bench rendering in
AFZAL ULLAH VS. STATE OF U.P. , AIR 1964 SC 264, vis-a vis the
Bye laws framed under U.P. Municipal Act, 1916, that even if a
particular bye law is framed not relating to any clause of the
enabling provision of the concerned statue [section 298(2) of the
U.P. Municipal Act, 1916] making thereof could be justified by
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referring to the general power conferred on the jurisdictional
Municipal Board. It was further observed that once the Bye laws
are ascertained to be within the competence of the maker, the
fact that the preamble thereof mentioned clauses which are not
relevant would not affect the validity thereof. Their Lordships
underlined that the validity of the bye laws ought to be tested
by reference to the question as to whether the Municipal Board
had the power to make the same and if such power is
established , any incorrect or inaccurate allusion of the source
of power in the preamble thereof would not render it invalid.
The view based on Kruse vs. Johnson (Supra) was reiterated.
82. In the face of the deductions made on a survey of the
provisions of the Act and the authoritative pronouncements of
the Apex Court as above, the plea to the contrary raised on
behalf of the petitioner does not commend for acceptance. The
authorities cited on their behalf are also of no avail to them.
82 A. Now to analyze the salient traits of Bye Law 11. The
necessary prerequisites for the invocation of this Bye Law are– (i)
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contravention of the provisions of the bye laws and (ii)
interference with or obstruction to any authorized person in the
discharge of his duties. While enumerating that such a person
in these eventualities would be guilty of an offence, the
Authority thereby has been empowered to take any or more of
the steps contemplated in Clause (i), (ii) and (iii). Whereas,
clause(i) and (iii) contemplate punishment by imposition of fine
as conceived by the Authority or as per the Act and suitable
action against the licensed technical personnel together with
withdrawal of the licence by the Authority respectively, under
clause(ii), the Authority is competent to take suitable action
including demolition of the unauthorized works if decided by
it.
83. Action under clause(i) is instantly traceable to Section
31 and Chapter X of the Act and that under clause(iii) is within
the purview of the incidental and ancillary power of the
Authority recognized thereby. Though the caption of Bye law 11
reads- ‚Offences and Penalties‛, in the estimate of this Court, the
action envisaged in clause (ii) stems from section 30B of the Act,
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wherein, the Authority in addition to any prosecution that may
be instituted under the Act can make an order directing the
development mentioned therein to be removed by demolition,
filling or otherwise. The language applied in section 30B
unmistakably extricates the consequence of demolition of the
offending development from the ambit of prosecution otherwise
contemplated by the Act under Chapter X thereof. The action
contemplated under clause (ii) of Bye law 11 is thus clearly
distinguishable from and in addition to the remedies available to
the Authority under Chapter X for penalizing a person following
his prosecution and conviction by a court of law for his
contravention and violation construed to be an offence
thereunder. Bye law 11(ii) therefore is neither in conflict with
nor repugnant to Chapter X of the Act or any other provision
thereof and proclaims a distinct existence in the wholesome
functional scheme of the Authority. Bye law 11(ii) therefore
does not envisage a penalty otherwise awardable consequent
upon conviction of an offender by a court of law as enumerated
in Chapter X of the Act. The caption ‚Offences and Penalties‛
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of Bye law 11 therefore is not decisive vis-a-vis the import of
clause(ii) thereof. The petitioner’s impugnment of this clause in
the backdrop of Chapter X of the Act and the Cr.P.C. and the
legislative competence in the constitutional perspective
therefore lacks persuasion. The framework of Chapter X of the
Act and the ambit of Bye law 11(ii) enjoy independent and
distinct existence and are neither dissentient nor mutilative of
each other. These operate in their respective fields permitting
harmonious co-existence. The essential pre conditions for the
exercise of power under Bye law 11 aptly neuters its
impeachment as a source of uncanalised power. Bye law 11(ii) is
thus intra vires the Act qua, the front of challenges mounted in
the instant polemic.
84. Vis-a-vis the plea that even if Bye law 11 is valid , the
offences conceived of therein are triable under the Code, suffice
it to state that the action contemplated under Clauses (i) and
(iii) are visibly relatable to Chapter X and other provisions of the
Act. The action under Bye law 11(ii) which is in alignment with
section 30B having been held to be beyond the purview of any
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prosecution, conviction and penalty as prescribed by Chapter X
of the Act, this contention is not sustainable. Even otherwise, if
the direction for demolition of development is construed to be a
penalty for a criminal offence, the summary measure sanctioned
thereby is saved by section 5 of the Code of Criminal
Procedure,1973( as amended).
85. Having upheld the validity of Bye law 11, it is the
next imperative to examine the denunciation of the impugned
order dated 5.7.2010 for want of authority of the Secretary,
MUDA. Whereas, the petitioner contends that in the legislative
scheme of the Act such an order could have been issued only by
MUDA and none-else, the respondents assert otherwise and
endorse the validity thereof pleading that the Secretary had
thereby only conveyed the decision of the Authority.
That MUDA is a creature under the Act is obvious
from sections 8A and 8B thereof. Section 8A(2) enjoins that the
Authority would be a body corporate having perpetual
succession and common seal with power to acquire, hold and
establish properties both movable and immovable and to enter
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into any agreement and would by the same name sue and be
sued. As referred to hereinabove, section 8D projects a wide
expanse of its functions and powers in furtherance to the
objectives of the Act. Under section 8EE, the Chairman of MUDA
can exercise all powers vested by the Act in it. The staff of the
Authority under Section 8G is to be appointed by it with their
designation and grades as may be considered necessary for the
efficient performance of its functions. That the staff of the
Authority includes its Secretary is apparent from Rule 14 of the
Constitution Rules. Under this provision, the Secretary is
authorized to exercise such power and authority of the duties as
may be delegated to him by the Authority or the Chairman. Rule
31 of the Constitution Rules permits the Chairman to delegate
by general and special order in writing all powers, duties or
functions therein to any officer of the Authority as envisaged by
Rule 16 of the Management Rules. The Chairman may delegate
the functions to the Secretary of the Authority as desired by
him. In addition, the Chairman as contemplated under Rule 20
of the Management Rules may by general or special order in
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writing delegate to any officer of the Authority any of his
powers, duties or functions therein.
86. The Authority being a body corporate it logically has
to function through its staff under the supervision and control of
its Chairman. In view of the host of enabling provisions noticed
hereinabove, the plea of want of authority of the Secretary to act
on behalf of the Chairman, MUDA in absence of overwhelming
materials to the contrary, cannot be acceded to. The minutes of
the meeting held on 2.7.2010 in the office chamber of the
Minister In-charge, Urban and Planning etc. confirmed the
presence of the Chairman, MUDA in the deliberations,
whereafter the decision taken therein was conveyed by the
impugned order dated 5.7.2010 signed by the Secretary , MUDA.
The assailment of this order in the above legal and factual
backdrop on the ground of lack of power of the Secretary thus,
cannot be upheld. The decisions cited on behalf of the petitioner
on this aspect of the dissensus are distinguishable on facts and
do not advance their case.
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87. The present adjudicative pursuit would be left
incomplete sans the analysis of the challenge to the penultimate
action of MUDA in the form of the impugned order dated
05.07.2010. MUDA has not claimed ownership over the land
involved. This, however, is not a pre-requisite for its initiatives
under the Act, provided the same is located within the limits of
the Master Plan and Zoning Regulations as well as Development
Scheme conceived thereby. As held hereinabove, the MUDA’s
assertion to this effect to derive its jurisdiction to sustain the
impugned order, has remained unproved in the teeth of
irreconcilable factual dispositions of the parties on this count.
The impugned order dated 05.07.2010 and the notices mentioned
therein on this ground alone are thus liable to be interfered with.
88. Be that as it may, the prominent features of the
judgment and order dated 25.05.2010 may be recalled at this
stage for responding to the other facets of the challenge to the
MUDA’s decision for demolition and ouster. As contained in
paragraph 4 & 5 in particular of the aforementioned decision, the
following are the preponent aspects thereof: -
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i) The notices (referred to in the order dated
05.07.2010 issued subsequently) should be taken to be
notices to show cause.
ii) Any person aggrieved by the said notice would be
entitled to appear before the competent officer or the
Meghalaya Urban Development Authority.
iii) Such person may submit his reply and may also
convince the authority that the construction raised by
him is on his own land and that it is permissible and
is under the appropriate and proper sanction.
iv) If MUDA after making an inquiry comes to the
conclusion that the constructions in dispute, in fact,
have valid sanction would pass appropriate orders.
v) If MUDA comes to the conclusion that such
constructions are illegal and have no valid sanction or
are encroaching upon the public land or such other
places, then, after recording such finding, they would
be entitled to demolish such constructions.
vi) The noticees would be entitled to appear and file
their replies before MUDA within 30 days (from the
date of the judgment i.e. 25.05.2010).
vii) MUDA would not demolish the constructions
raised by the noticees till final disposal of the dispute.
viii) The noticees would not proceed further with any
construction on the land in dispute.
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ix) If the noticees are found proceeding with any
construction it would amount to contempt of the
lawful authority of the Court and result in
withdrawal of the concession granted in their favour.
x) MUDA then, without proceeding with the inquiry,
would be entitled to demolish the entire illegal
construction raised before and after the order.
xi) If the appellants or the noticees are aggrieved by
the final order to be passed by MUDA they would be
entitled to challenge the same in an appropriate
proceeding before an appropriate court/forum.
89. The above observations/directions apparently do not
ratify the validity of the notices referred to therein if otherwise
unsustainable and defeasible in law, amongst others, on the
ground of vagueness, imprecision and ambiguity. Though, the
parties are also at variance on the aspect of service thereof, the
materials on record are exiguous to arrive at a decisive finding
either way. The notices dated 14.12.2004, 28.07.2005 and
16.01.2007, on the face of the records, as mentioned in the
impugned order dated 05.07.2010, however, do not describe the
plot of land or the offending constructions thereon. The nature
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and extent of the violation under the Act and the Bye Laws
necessitating the steps as notified to be taken also do not find a
mention therein. Significantly, the notices dated 28.07.2005 and
16.01.2007 are addressed to ‚All Concerned Person‛ and to ‚All
Concerned‛ respectively. Though, MUDA has endeavoured
through the extracts of the relevant Dak Book to substantiate the
service of the aforementioned notices on all persons now
proposed to be ousted from the land in their occupation
following the demolition of their structures thereon, the same,
per se, cannot be unhesitatingly accepted to be a proof thereof
and that too, at this distant point of time. This is more so, in view
of the petitioners’ categorical refutation of issuance and service
of such notices to all the occupants likely to be affected by the
impugned order of demolition and eviction. The impugned
order dated 05.07.2010, thus, suffers from these legal infirmities
as well. The observation in the judgment and order dated
25.05.2010 that these notices are construable as those requiring
the noticees to show cause, ipso facto, does not cure these fatal
defects.
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90. The representations/show causes available on records
are by individuals and submitted on various dates, namely,
02.07.2010, 03.07.2010 and 05.07.2010. Admittedly, the noticees
had not submitted their representations/show causes within 30
days from the judgment and order dated 25.05.2010. On
24.06.2010 three letters of the even date had been addressed to
the Minister, Urban Affairs, Shillong, Chairman and Secretary of
MUDA on behalf of the petitioner Association requesting for
extension of 10 days time to do so, as certain relevant documents
had not been made available to the noticees. MUDA very
candidly has pleaded its inability to accede to such request, the
time frame for submission of the representation/show cause
having been fixed by this Court. That the representations
aforementioned were pending on the date of the issuance of the
order dated 05.07.2010 is apparent on the face of the records. A
plain reading of the representations/show causes reveal the
individual stands taken by the representationists/ noticees,
testifying the legality of their possession of their respective plots
as well as constructions thereon, claiming right, title interest in
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and possession of the same. MUDA treated these representations
to be non est having been submitted beyond time and as the
minutes of the meeting dated 02.07.2010 held in the office
chamber of the Minister In-charge Urban Affairs etc.,
Government of Meghalaya would reveal, a decision was taken to
evict the occupants and demolish their structures, which
eventually, found its shape in the form of the impugned order
dated 05.07.2010. Admittedly, MUDA did not either consider the
representations or conduct an enquiry into the same or
otherwise, prior to such a decision culminating in the order
dated 05.07.2010.
91. A plain reading of the text of the paragraph 4 & 5 of
the judgment and order dated 25.05.2010, to repeat, does not
convey the sanction of this Court to summarily evict the
occupants of the land by dismantling their structures on their
mere failure to submit representations/show causes within the
time permitted by it. Whereas, MUDA’s hesitation to grant
extension of time fixed by this Court is understandable, it reflex
action to effect the ouster of the occupant from their land by
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demolition of their structures does not meet the constitutional
mandate of fairness in State action. MUDA being a creature
under the Act, it is not only bound by the provisions thereof, it’s
actions ought to be necessarily informed with fairness,
transparency and non-arbitrariness to be valid. Though, not
specifically referred to in the judgment and order dated
25.05.2010, the directions contained therein enabling the noticees
to submit representations/show causes and to MUDA to conduct
an enquiry before taking a final decision, is apparently in
harmony with the prescription of the opportunity of hearing
contained in section 30 B of the Act. From this point of view the
noticees, who had not submitted any representation/show cause,
as well cannot be forcibly evicted from their lands in occupation
by demolition of their structures by an execute fiat, such a course
being an anathema to the rule of law, as has been enunciated in a
plethora of decisions, amongst others, in STATE OF UTTAR
PRADESH & ORS. VS. MAHARAJA DHARMANDER PRASAD SINGH &
ORS. (Supra) and HINDUSTAN TIMES & ORS. VS. STATE OF UP &
ANR. (Supra).
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92. That the right to property is a human right and
cannot be taken away, except in accordance with the provisions
of the statute, has been held by the Apex Court, inter alia, in
INDIAN HANDICRAFTS EMPORIUM & ORS. VS. UNION OF INDIA &
ANR. (Supra) and LACHHMAN DASS VS. JAGAT RAM & ORS. (Supra).
MUDA, therefore, was required, under a constitutional and legal
obligation to conduct an independent enquiry before taking an
unilateral decision to demolish the structures of the occupants
construing the same to be illegal and effecting their ouster from
the land in their possession. This Court by its order judgment
and order dated 25.05.2010 did never intend to supplant the
enjoinment of opportunity of hearing engrafted in section 30B,
but only required its compliance by issuing the necessary
directions as contained therein.
93. The impugned order dated 05.07.2010 when analysed
in the above backdrop, presents several other inherent and
irremediable pitfalls rendering it void in law. It suggests that the
action proposed thereby is in compliance of the judgment and
order dated 25.05.2010, the addressee having failed to submit his
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representation/show cause within the time fixed thereby. In
terms of this order, the MUDA’s conclusion of illegality of the
construction and encroachment upon government land was
inevitable only for the default of the addressee to comply with
the judgment and order dated 25.05.2010 necessitating, as a
corollary, the demolition of the structures. Not only this
comprehension of MUDA is belied by the judgment and order
dated 25.05.2010, such a fallout not having been intended
thereby, it manifests total non-application of mind and a restive
move on its part to get the land cleared of the occupants and
their structures under the cover of the aforementioned decision
of this Court without discharging its obligations ordained
thereby and the Act. MUDA, evidently, resorted to a summary
move without complying with the statutory edict engrafted in
section 30B and undertaking an independent exercise to arrive at
its own conclusion, on a consideration of the pending
representations/show causes to justify the impugned decision
with obvious irreversible and disastrous consequences qua those
to be affected. As an entity conceived of and created under a
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statute, in a subsisting constitutional scheme of administrative
governance, whereunder every State action to be valid, has to be
deferential to the fundamental precept of fairness in action
informed with the unflinching commitment to the rule of law,
the order dated 05.07.2010 cannot be sustained. For all these
considerations, the impugned decision of MUDA as contained in
the orders dated 05.07.2010 are adjudged to be illegal,
unconstitutional and void. The authorities cited by the
respondents disapproving interference with the initiatives to
demolish illegal structures, in the facts and circumstances of the
case, are of no assistance to them.
94. In the result, the validity of Bye Law 11 is upheld. The
decision of MUDA as conveyed by the final orders dated
05.07.2010, issued by its Secretary, however, is interfered with.
The impugned orders dated 05.07.2010 are set aside. The
petitions are accordingly partially allowed. No costs.
JUDGE JUDGE
beep/