Full Judgment Text
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PETITIONER:
THE DISTRICT COUNCIL; UNITED KHASI-JAINTIA HILLS, SHILLONG
Vs.
RESPONDENT:
KA DREPSILA LYNGDOH OF SYLLAI-U-LOR, MYLLIEM, MYLLIEM
DATE OF JUDGMENT20/02/1975
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
MATHEW, KUTTYIL KURIEN
KRISHNAIYER, V.R.
CITATION:
1975 AIR 1022 1975 SCR (3) 601
1975 SCC (4) 809
ACT:
Constitution of India, 1950. Schedule VI, Paras 6 and 20
Scope of--Whether village of Mawkher is included within the
Shillong Municipality.
HEADNOTE:
The Executive Committee of the District Council, United
Khasi-Jaintia Hills directed that no new construction or re-
construction of stalls Should be undertaken in Bara Bazar.
The respondents, who were thus prohibited from constructing
their shops filed the writ petitions in the High Court
challenging the direction.
Schedule VI of the Constitution shows that the United Khasi
Jaintia Hills District is a tribal area within the State of
Meghalaya. The territories comprised within this district
include Bara Bazar area, In view of para 6 of the Schedule
which enumerates the powers of the District Council. the
District Council has power to manage the Bara Bazar market
and issue the impugned orders. But para 20 of the Schedule
states that if any part of the area comprised in the
district were included in the municipality of Shillong,
before the district came into being the powers conferred on
the District Council by para 6 of the Schedule would not be
available to the Council in respect of that area. The High
Court found that the village of Mawkher which comprises Bara
Bazar, was a part of the municipality of the Shillong on the
basis of (1) a notification dated January 16, 1934, (2) an
extract from the Demand and Bill Register of the Shillong
Municipality for the year 1957-58 and (3) the Khasi
Siemships (Application of Laws) Order, 1949, and held that
the District Council had no jurisdiction, administrative or
otherwise over Bara Bazar and quashed the Impugned orders.
Allowing the appeal to this Court,
HELD : (1) ’The 1934 notification shows that what was ceded
by the Siem of Mylliem when he ceded Mawkher and other
villages to the British Government was only the jurisdiction
necessary for the municipal administration in accordance
with the Assam Municipal Act, 1923, and the Governor General
in Council issued an order extending the 1923 Municipal Act
to those villages. The Order provided that the villages
were to be deemed as a municipality designated the Shillong
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(Administered Areas) Municipality. Thus the villages were
ceded for the specified purpose of municipal administration
only and though the provisions of the Municipal Act were
made applicable to the ceded villages they were never
included within the territorial jurisdiction of the Shillong
municipality, but were deemed to be a distinct municipality-
the Shillong (Administered Areas) Municipality. This shows
that the villages were not intended to be merged in the
Shillong Municipality though the officer,.% of the
municipality were to exercise similar powers and discharge
like duties in the ceded areas. Chapter 11 of the Municipal
Act which empowered the provincial government to include
within a municipality any local area in its vicinity was not
made applicable to the villages. There is also no evidence
that these territories were subsequently merged in the,
Municipality of Shillong. [605F606A]
(2)The Demand and Bill Register of the, Shillong
municipality refers to South East Mawkher as a ward of the
Shillong Municipality. But it does not mean that Mawkher or
South East Mawkher was included In the territorial
jurisdiction of the Municipality. It only means that the
District Council, instead of taking up the administration
allowed existing arrangements to continue ill some places
for some time. [606B-C]
470 Sup. CI/75
602
(3)The Khasi Siemships (Application of Jaws) Order, 1949
refers to "Shillong Administered Areas" by which is meant
’so much of the areas for the time being comprised within
the municipality of Shillong’ as forms part of the United
Khasi Jaintia Hills District. and the first Schedule to the
Order defines the "Shillong Administered Areas" as
comprising the areas covered by the Shillong (Administered
Areas) Municipality which includes Mawkher. But, in view of
the notification dated January 16, 1934, and the absence of
any provision effecting merger with the Shillong
Municipality the expression ’comprised within the
municipality of Shillong,’ can only mean that part of the
district in which the officers of the Shillong municipality
continued to exercise powers and discharge duties as before.
[606C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1475 &
1476 of 1969.
From the judgment and order dated the 4th December, 1967 of
the Assam & Nagaland High Court in Civil Rule Nos. 264 and
328 of 1966.
D. N. Mukherjee, for the appellant.
A. K. Sen and S. K. Nandy, for Respondent No. 1.
G. S. Chatterjee, for Respondent No. 2.
The Judgment of the Court was delivered by
GUPTA, J. The only question arising for decision in these
two appeals, brought on certificates granted by the Assam
and Nagaland High Court, is whether the jurisdiction of the
District Council of the United Khasi-Jaintia Hills, extends
to the area called Bara Bazar in village, Mawkhar in
Shillong.
The question arises in this way. The first respondent in
each of these appeals had a shop in Bara Bazar, which is a
wen-known market area, and both these shops were destroyed
by fire. In December 1964 the Siem of Mylliem permitted Ka
Tiewmon Kharkongar, the first respondent in avil Appeal No.
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1476 of 1969, to construct on the old site a shop similar to
the one she had which was gutted by fire. A similar
permission was given in May 1965 to Ka Drepsile Lyngdoh,
the, first respondent in Civil Appeal No. 1475 of 1969. On
July 19, 1965, however, the Siem of Mylliem by a written
order asked respondent Ka Tiewmon Kharkongar not to proceed
with the construction of the shop; it was stated in the
order that the Executive Committee of the District Council,
United Khasi-Jaintia Hills, had that no now construction,
reconstruction or renovation of stalls should be undertaken
in Bara Bazar unless approved by the Executive Committee and
that all constructions in progress should be stayed. Res-
pondent Ka Drepsila Lyngdoh also received a similar
communication from the Siem of Mylliem on May 16, 1966.
Both these respondents filed writ petitions in the Assam and
Nagaland High Court questioning the authority of the
Executive Committee of the District Council to make any
order in respect of the Bara Bazar area which they contended
was outside the District Council’s jurisdiction. The High
Court disposed of the two writ petitions by a common
Judgment. Ile High Court found that the District Council
had no jurisdiction, administrative or otherwise, over the
area in question, and quashed the
603
orders by which the respondents were prohibited from
constructing their shops in that area. From the decision of
the High Court, the District Council, United Khasi-Jaintia
Hills, Shillong, and its Executive Committee have preferred
the instant appeals.
The United Khasi-Jaintia Hills District is a tribal area
within the State of Meghalaya as will appear from Part II,
item of the Table appended to paragraph 20 of the Sixth
Schedule of the Constitution. Article 244(2) of the
Constitution lays down that the provisions of the Sixth
Schedule shall apply to the administration of these tribal
areas. Paragraph I of the Sixth Schedule provides inter
alia that the tribal areas in each item of Parts I and II
and in Part III of the Table appended to paragraph 20 of
this Schedule shall be an autonomous district. It is
provided in paragraph 2 of the Schedule that each autonomous
district shall have a District Council which would be a body
corporate, vested with the power to administer the District.
Paragraph 6 of the Schedule which enumerates some of the
powers of the District Council states inter alia that the
District Council for an autonomous district may establish,
construct, or manage primary schools, dispensaries, markets,
cattle pounds, ferries, fisheries, roads, road transport and
water-ways in the district. There is no dispute that the
territories comprised within the United Kbasi-Jaintia Hills
District include the Bara Bazar area. There could be also
no dispute, in view of Paragraph 6 of the Schedule, as to
the power of the District Council to manage the Bara Bazar
Market and to issue for that purpose the orders impugned in
these two cases, if the provisions of the Sixth Schedule to
which we have so far referred were the only relevant
provisions for consideration. However, paragraph 20 of the
Schedule has a proviso which states that : "for the purposes
of clauses (e) and (f) of subparagraph (1) of paragraph 3,
paragraph 4, paragraph 5, paragraph 6,_sub-paragraph (2),
clauses (a), (b) and (d) of sub-paragraph 3 and sub-
paragraph (4) of paragraph 8 and clause (d) of sub-paragraph
(2)of paragraph 10 of this Shedule, no part of the area
comprised within the municipality of shillong shall be
deemed to be within the United Khasi-Jantia Hills
District". Therefore, if any part of the area comprised in
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the United Kbasi-Jaintia Hills District were included in the
municipality of Shillong before the said District came into
being, the powers conferred on the District Council, inter
alia, by paragraph 6 of the Sixth Schedule would not be
available to the Council in respect of that area. The
question then comes to this, did the municipality of
Shillong include within its limits the Bara Bazar area ?
The High Court has found that village Mawkhar which
comprises Bara Bazar was a part of the municipality of
Shillong. The Judgment of the High Court records the fact
that Mawkhar was originally part of the Kingdom of the Siem
of Mylliem. The Judgment also refers to a notification
dated the 16th January, 1934 showing that Mawkhar and
certain other villages were ceded to the British Government
by the Siem of Mylliem. The relevant portion of the
notification is as follows :
"No. 44-1, dated New Delhi, the 16th January
1934.
Whereas the Siem of Mylliem in the Khasi and
Jaintia Hills
604
has ceded to the British Government the
jurisdiction necessary for the municipal
administration in accordance with the Assam
Municipal Act, 1923, of the villages of
Mawkhar, Laitumkhrah, Mission Compound and
Jaiaw South-East Mawkhar and Garikhana,
Mawprem and Jhalupra,a Laban, Lumparing
cum Madan Laban, Matki and HaangUmkhra, situate
within the boundaries described in theSchedule
annexed hereto, subject to the maintenance of
allother his rights and powers as Siem of
Mylliem therein and with the reservation that
the rivers Umshipi and Unikhra, so far a,,
they are within the aforesaid villages, shall
remain the property of the Mylliem State :-
In exercise of this jurisdiction and of the
powers conferred by the Indian (Foreign
Jurisdiction) Order in Council, 1902, and of
all other powers enabling him in that behalf,
and in supersession of the Notification of the
Government of India in the Foreign Department
No. 31634-B., dated the 17th September 1913,
and of all notifications amending the same the
Governor General in Council is pleased to
direct as follows :-
1.All the provisions of the Assam
Municipal Act, 1923, (Assam Act 1 of 1923), as
hereinbefore or hereinafter amended and as in
force for the time being in the Municipality
of Shillong, and all notifications, orders,
schemes, rules, forms or bye-laws made or
hereafter to be made for the said Municipality
shall subject to the exceptions hereinafter
specified and unless otherwise declared by the
Government of Assam, be in force in the said
village in so far as the same may be
applicable thereto.
Provided that Chapter II and sections 9, 51,
58, 59(b), 59(g), 65, 78, 217 and 218 of the
said Act shall not apply to the said villages
and that clause (b) of subsection (i) of
section 55 of the said Act shall not apply to
the Umshirpi and Umkhra rivers so far as
they are within the said villages.
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2. For the purposes of the application of
the said provi-
sions, Notifications, orders, schemes,
rules forms, and byelaws.
(a) references to the Local Government shall
be read as reference to the Government of
Assam.
(b) the said villages shall be deemed to be
a municipality designated the Shillong
(Administered Area) Municipality, and every
officer or authority, for the time being
appointed or constituted in accordance with
the Assam Municipal Act, 1923 as amended, to
exercise powers or discharge duties within the
Municipality of Shillong, shall exercise the
like powers and discharge the like duties in
accordance with the said
605
Act within the Shillong (Administered Area)
Municipality and shall be deemed to have been
duly appointed or constituted in accordance
with the said Act.
(c) All sums received by the Municipal Board
of the Municipality of Shillong and all fines
paid or levied in the said villages shall be
credited to the municipal fund of the
Municipality of Shillong.
It would appear from this notification that what was ceded
to the British Government was only "the jurisdiction
necessary for the municipal administration in accordance
with the Assam Municipal Act, 1923" of certain villages
including Mawkhar and the Governor General in Council was
pleased to issue an order extending to the said villages the
provisions of the Assam Municipal Act, 1923 subject to
certain exceptions. The order also provided that for the
purposes of the application of the said Act, and the
notifications, orders, schemes, rules, forms and bye-laws
made for the Shillong Municipality which were also made
applicable, these villages were to be deemed as a muni-
cipality designated the Shillong (Administered Areas)
Municipality.
From this notification dated January 16, 1934, and an
extract from the Demand and Bill Register of the Shillong
Municipality for the year 1957-58, annexed to one of the
writ petitions, which refers to SouthEast Mawkhar as a Ward
of the Shillong Municipality, the High Court held that Bara
Bazar was part of the Shillong Municipal area. The High
Court also relied on the Khasi Siemships (Application of
Laws) Order, 1949. This order refers for its purpose to
"Shillong Administered Areas" by which is meant "so much of
the areas for the time being comprised within the
Municipality of Shillong as forms part of the United Khasi-
Jaintia Hills District". The first Schedule to the order
defines the "Shillong Administered Areas" as comprising the
areas covered by the Shillong (Administered Areas)
Municipality, which includes Mawkhar.
We do not think that the material on which the High Court
relied justifies the finding that village Mawkhar which
includes Bara Bazar was part of the Shillong Municipality.
The notification dated the 16th January, 1934 makes it clear
beyond doubt that the Siem of Mylliem ceded the villages for
the specified purpose of municipal administration only. It
seems to us also clear that though the provisions of the
Assam Municipal Act, 1923 were made applicable to the ceded
villages, the villages were never included within the
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territorial jurisdiction of the Shillong Municipality. The
notification itself directed that these villages were to be
deemed as a distinct municipality designated the Shillong
(Administered Areas) Municipality which shows that they were
not intended to be merged in the Municipality of Shillong
though the officers and authorities exercising powers or
discharging duties within the Municipality of Shillong were
to exercise similar powers and discharge like duties in the
ceded areas according to a direction contained in the
notification. Chapter II of the Assam Municipal Act, 1923
which, as it stood at the date of the notification,
606
empowered the provincial government to include within a
municipality any local area in the vicinity of the same, was
not made applicable to these, villages. There is also no
evidence that these territories were subsequently merged in
the Municipality of Shillong. After the commencement of the
Constitution of India, as paragraph 19 of the Sixth Schedule
provides, the administration of the territories comprised in
the United Khasi-Jaintia Hills District vested in the
Governor until the District Council was constituted in June
1952. It is not clear from the material on record whether
the District Council took up the entire burden of
administration throughout the territories from the beginning
or allowed the existing arrangements to continue at some
places for some time. The extract from the Bill and Demand
Register of the Shillong Municipality for the year 1957-58,
referred to in the Judgment of the High Court, seems to
suggest the second possibility. Even if this were so, it
does not mean that Mawkhar or South-East Mawkhar was
included in the territorial jurisdiction of the Shillong
municipality, In view of the notification dated the 16th
January, 1934 which preserves the distinct entity of the
ceded villages and in the absence of any provision effecting
a merger of these territories in the Municipality of
Shillong, reference in the Khasi Siemships (Application of
Laws) Order, 1949 to any part of the Khasi-Jaintia District
as "comprised within the Municipality of Shillong" must be
read to mean that part of the District in which the officers
and the authorities of the ghillong Municipality continued
to exercise powers and discharge duties as before. In our
opinion, the jurisdiction of the District Council of the
Khasi-Jaintia Hills extends to the Bara Bazar area and as
such the impugned orders issued at the instance of the
appellants to the first respondent in each of these two
appeals restraining them from constructing shops in the
aforesaid area are not invalid.
In the result, the appeals are allowed, the Judgment and
orders appealed from are set aside and the writ petitions
are dismissed. Considering the circumstances of the case we
make no order as to costs.
V.P.S. Appeals allowed.
607