Writ Petition (C) Nos. 3963, 4267 and 4268 of 2010. Case: 1. Greater Lew Polo Welfare Association and Sri. Morris Mylliemngap, Son of late R. Pyrtuh, President of Greater Lew Polo Welfare Association, 2. Shri H. Nongrum, S/o. (L) B. Nongrum, 3. Smti. Nani Bala Dey, W/o. Late Pranhari Dey Vs 1. State of Meghalaya, represented by The Chief Secretary Government of Meghalaya and Ors., [Alogwith Writ Petition (C) Nos. 3970, 4266 and 4268 of 2010], 2. State of Meghalaya, represented by The Commissioner and Secretary, Department of Urban Affairs, Government of Meghalaya, Meghalaya Urban Development Authority, represented by The Secretary, Meghalaya Urban Development Authority and The Deputy Commissioner, The Shillong Municipal Board represented by The Chief Executive Officer, 3. Secretary, Meghalaya Urban Development Authority, Deputy Commissioner and State of Meghalaya to be represented by the Chief Secretary. Guwahati High Court
| Case Number | Writ Petition (C) Nos. 3963, 4267 and 4268 of 2010 |
| Counsel | For Appellant: G.C. Bharuka, Sr. Adv., B. Goyal, K. Paul, J. Roy, A.M. Buzarbaruah and R.K.D. Choudhury, Advs. And For Respondents: Ranjan Mukherjee, Sr. Adv., B.P. Todi, Addl. Adv. General, S.P. Mahanta, N. Sarma and A. Nath, Advs. |
| Judges | Amitava Roy and C.R. Sarma, JJ. |
| Issue | Meghalaya Town and Country Planning Act, 1973, - Sections 30A, 30B, 73, 73(2), 74 and 174; Meghalaya Town and Country Planning (Amendment) Act, 2004; Meghalaya Public Premises (Eviction of Unauthorized Occupants) Act, 1980; Indian Independent Act, 1947; Assam Municipal Act, 1956; Uttar Pradesh Municipal Act, 1916 - Section 298(2); Criminal ... |
| Judgement Date | June 10, 2011 |
| Court | Guwahati High Court |
Judgment:
Amitava Roy, J.
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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, (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).
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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 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.
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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.
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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 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 unwilling to sell or part therewith to the British Crown he/she would continue fully to enjoy the same without any levy.
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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 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 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.
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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 leaving the State Government at liberty to establish its right, title and interest thereon before a competent court, if so advised.
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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.
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, 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.
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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...
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