WP(C) 3963/2010

WP(C) NO. 3963/2010, WP(C) NO. 3970/2010 Page 1 of 107

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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


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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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


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-


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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


5. MS. KA ARMOUR KHARKONGOR,

ING KHADDUH, KHARKONGOR CLAN, NONGTHYMMAI, SHILLONG, EAST KHASI HILLS DISTRICT, MEGHALAYA.

….…… Proforma Respondent


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



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.


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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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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WP(C) NO. 4268/2010

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/

Documents

WP(C) 3963/2010