WP(C) 2275/2004 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE H. BARUAH The dissenssus bears on the validity or otherwise of the collect ion of tolls at the check gates set up by the respondent District Council, the S yiems of the different Elakas located within the West Khasi Hills District of th e State of Meghalaya and their lessees. Whereas the petitioner in WP(C) 2398/200 8 and WP(C) 2421/2008 question the authority and power of the respondent Syiems to do so, the petitioner in WP(C) 2275/2004, Syiem of Mylleim and his Durbar see k an appropriate writ to restrain the State respondents from obstructing his/the ir lessees from collecting such tolls within the Syiemship. Viewing the striking identicalness of the issues to be attended, the related pleadings being minimal ly at variance, analogous hearing was the consensus and this adjudication would answer the debate. 2. We have heard Mr. A. Sharma, Sr. Adovcate assisted by Ms. S. Sha rma, Advocate for the petitioner in WP(C) 2398/2008 and WP(C) 2421/2008, Dr. B.P . Todi, learned Additional Advocate General, Government of Meghalaya, Mr. B.B. N arzari, learned Standing Council, Khasi Hills Autonomous District Council and Mr . D. K. Mishra, Sr. Advocate for the respondent No. 3 in WP(C) 2398/2008. 3. Skeletally the rival pleadings in pith need be adumbrated to lay the preface for the contentious pleas seeking resolution. The petitioner in WP( C) 2398/2008 and WP(C) 2421/2008 has introduced itself to be an association of t ruck owners/operators committed to the cause of its members plying their trucks on public roads including the National Highways laid in the State of Meghalaya. Its members are engaged in the business of transporting coal and agricultural pr oduce for which they utilise the NH 37 and NH 44E (Nongstoin-Shillong Road) whic h constitute the life line of the coal bearing region(s) of the State as these c onnect it with the rest of the country. It has alleged that such trucks carrying commercial loads of the aforementioned items while plying on the public roads i ncluding NH 44E connecting Nongstoin to Shillong are intercepted at check/toll g ates set up by or on behalf of the Khasi Hills District Council (for short herea fter referred to as the Council) and the respondent Syiemships and are subjected to exactions represented to be tolls without any authority of law. In its plead ings in WP(C) 2398/2008, the petitioner has enumerated as hereunder eight such p oints where the trucks of its members are stopped and such payments are realised : A. Nongstoin Syiemship check gate at Nongstoin (3 receipts of Rs. 300/-, Rs . 100/- and Rs. 300/-). B. Myriaw Syiemship check gate at Markasa (1 receipt of Rs. 50/-). C. Hima-Mawlang Syiemship check gate at Mawkohngei (Rs. 100/- without any r eceipt). D. The Khasi Hills Autonomous District Council, hereinafter referred to as the KHADC check gate at Mairang (Rs. 100/- without any receipt). E. KHADC check gate at Nongbri (Rs. 200/- without any receipt). F. Syiem of Hima Nongkhlaw check gate at Ladmihri (Rs. 100/- without any re ceipt). G. KHADC check gate at third mile, Upper Shillong (Rs. 200/- without any re ceipt). 4. While mentioning the amount(s) so extracted in addition to the o ther collections, the petitioner has alleged that any refusal to yield to such i llegal extortions result in damage to the vehicles as well as physical harm to t he drivers and handymen thereof which in turn cause serious disruption of the ve hicular movement on the highways and public roads causing traffic snarls every n ow and then. The petitioner has referred to various representations submitted by it to the different State authorities as well as the FIRs lodged with the Super intendent of Police, West Khasi Hills, Nongstoin, complaining of the above unlaw ful activities but to no avail. 5. The petitioner in WP(C) 2421/2008 has extended these assertions vis-à-vis illegal collections of toll in course of the transportation of the coa l by its members from their private forests by using the National Highway No. 37 . According to it, such coal is won from the private forests/mines situated at S hallang within Hima Nongstoin and thereafter transported to the State of Assam b y using the route Shallang via Riangdo to Atiabari and then joining the National Highway No. 37 at Boko in Assam. It is stated that there are four check gates s et up by the Syiem of Nongstoin on the way from Riangdo to Umsohpiang within a d istance of 20 kms without any permission from the Ministry of Surface Transport, or the District Administration or the State P.W.D. Authority. It has averred th at its members who hold private mines are issued a certificate of origin for tim ber or other forest produce on payment of tax but inspite thereof they are compe lled to pay tolls at the above mentioned check gates time and again. 6. The petitioner in the above backdrop has contended that the coll ection of tolls is not only violative of the mandate of Article 265 of the Const itution of India it besides being in infringement of the fundamental rights guar anteed under Article 14 and Article 19 is a constant cause of disruption of smoo th flow of traffic on the Highways and the public roads involved. It has pleaded that after the creation of the District Councils, the right to impose tax is av ailable to them only under the provisions of paragraph 8(3) of the Sixth Schedul e to the Constitution of India and in absence of any provision thereunder for le vy and collection of tolls from trucks carrying commercial loads, such realisati ons cannot be made in law either by them or the Syiems or their agents or lessee s. According to the petitioner, such pre-constitutional privilege of the Syiems, if any, ceased with the establishment of the District Council in which the admi nistration of tribal areas was vested by Article 244(2) of the Constitution of I ndia. 7. The Deputy Commissioner, West Khasi Hills District, Nongstoin, i n his counter in WP(C) 2398/2008 without offering any comment on the merit of th e averments made in the writ petition, set out the steps taken in response to th e representations received on behalf of the petitioner alleging forceful collect ions of tolls. According to him, w.e.f. 26/6/2008 all toll gates on the National Highway No. 44E had been removed in compliance of the order dated 11/6/2008 pas sed in the aforementioned writ proceeding. 8. The respondent No. 3 in WP(C) 2398/2008, the Acting Syiem of Non gstoin Syiemship, in his affidavit has pleaded that prior to the commencement of the Constitution of India, in the entire area comprising of the Khasi Hills Dis tricts, barring a few villages and the British portion of Shillong, there were 2 5 Syiemships as original tribal organisations of the Khasis encompassing civil, judicial and administrative jurisdictions. These traditional institutions, accor ding to the answering respondent, while were headed by Syiems or the Chief of th e Khasis were a limited monarchy and the Syiems were appointed by their clans of the particular Elakas. The Syiems or Chiefs were not territorial sovereigns but were elected democratic chiefs whose authority extended over the subjects and n ot the land. The Syiems managed their business with their Myntris who sat in the ir Durbars. The deponent stated that though the British assumed its supremacy ov er the Khasi Hills, it retained the tribal institutions and their customs and th us the Nongstoin Syiemship continued to exist and function as before being annex ed to the dominion of India through an instrument of accession in 1947 to be eve ntually merged with the erstwhile State of Assam with the advent of Constitution of India. 9. According to the respondent, however, the tribal usages and the customs of the Khasi States were preserved and thus the customary rights and pri vileges of the Syiems were left intact even under the constitutional set up whic h provided for the institutions of Syiemship and their continuance. By the same analogy the Khasi States were included in the Sixth Schedule to the Constitution of India along with other tribal areas of Assam. Though with the evolution of t he Constitution, the merged States lost all their attributes of being separate e ntities and the Sixth Schedule amongst others provided for the administration of the tribal areas enumerated therein, the age old institutions such as Syiemship and the customs prevailing in those areas were preserved. 10. The answering respondent has elaborated that the Syiemship in or der to conduct the administration of its affairs is required to collect tolls fr om the markets on entry of goods and/or produce, the same being the only source of revenue, wherefrom 1/8th of the proceeds is to be deposited with the territor ial District Council, the proforma respondent No. 8. He has asserted that realis ation of such customary tolls had been in vogue from time immemorial. The respon dent has in support of the validation of the impost referred to Khasi Hills Auto nomous District (Nomination and Election of Syiem, Deputy Syiem and Electors of Nongstoin Syiemship) Act, 2003 (hereafter referred to as the Act, 2003) and the Administration of Nongstoin Syiemship Rules, 2006 (hereafter referred to as the Rules 2006). He has avowed that the said enactments have the force of law under Paragraph-11 of the Sixth Schedule to the Constitution of India and thus the col lection of customary tolls in the Nongstoin Syiemship has legal endorsement and is thus neither illegal nor unauthorised. The deponent has further stated that n ot only the realisation is being made on the produce entering and leaving the Sy iemship in terms of Rule 12 of the 2006 Rules, necessary permission from the con cerned State authority as well as the Council has been obtained to set up such t oll gates/revenue stations. The respondent has denied that such toll/revenue sta tion(s) are situated on the National Highway and, that therefore, permission the refor from the Ministry of Surface Transport was essential. The allegation that the location of the toll/revenue stations hinder the smooth movement of traffic on the road has also been categorically denied. It has been denied as well that the trucks proceeding from Nongstoin to Shillong have to pass through all the ei ght gates referred to in the petitioners’ pleadings. It has been clarified that the issues in WP(C) 2421/2008 relate to Jyrngam and Riangsih Sirdarship and, the refore, do not concern the Nongstoin Syiemship. A report dated 3/7/1996 submitte d by the Extra Assistant Commissioner, West Khasi Hills in CR 110(SH)/1992 (K.K. Singh Phanbuh and others versus Fairly Syiem and others) has also been cited to demonstrate that toll collection has been the customary practice of the Syiemsh ips to supplement their revenue. 11. The Council in its counter in WP(C) 2398/2008 and WP(C) 2421/200 8 has while reaffirming the age old practice of levy and collection of customary tolls by the Khasi Chiefs on items of merchandise on transit in the Elakas unde r them has maintained that the same has been saved by the Constitution of India and has attained a force of law which has since been codified under the Rules, 2 006. According to it, such collection at the check gates is in conformity with t he provisions of the Sixth Schedule to the Constitution of India and is directed against illegal transportation of trees within its jurisdiction. It has reitera ted that the toll/revenue gates are on the land(s) contiguous to the public road and, therefore, no permission from the Ministry of Surface Transport is necessa ry. It clarified that the location of the tolls/revenue station did not in any w ay hinder the movement of traffic on the roads. While asserting that the Council had been collecting the royalty under the United Khasi Jaintia Hills Autonomous District (Management and Control of Forest) Act 1958 (for short hereafter refer red to as the Act 1958) and the Rules framed thereunder, the answering responden t has asseverated that with the closure of all such forest check gates by the Di strict Administration, illegal transportation of forest produce has ensued causi ng heavy financial loss of the State. The Council has maintained that the toll c ollection by it has been under appropriate authority of law. It has asserted as well that the practice of levy and collection of customary tolls by the Syiemshi p in particular within Nongstoin Syiemship has been codified under the Act, 2003 and Rules, 2006. 12. In its rejoinder affidavit, the Council has disclosed the variou s categories of forests under its control and has emphasised on the essentiality of the establishment of forest stations contemplated under section 12 of the Ac t 1958 to prevent illegal transportation of forest produce. It categorically den ied the allegations against the validity of such forest stations and has indicat ed rampant illicit transportation of forest produce outside the country as a res ult of prohibition of checking of the forest produce in the revenue stations. Th e stand of the respondent No. 1, Superintendent of Police, West Khasi Hills, Non gstoin, is identical to the one of the respondent No. 2 alluded hereinabove. 13. In its affidavit in reply, the petitioner while reiterating and reaffirming its averments in the writ petition has in substance maintained that the Act 2003 and the Rules 2006 are of no relevance as the same do not either re cognise or vest the Council or the Syiemship involved with the power to levy and collect tolls at the check/toll gates/revenue stations. 14. The affidavits on behalf of the Shirdarship of Jyrngam and Riang sih which are substantially the same aver that the route involved in WP(C) 2421/ 2008 is not a part of the National Highway 37 and is a PWD Road and, therefore, the provisions of National Highways Act, 1956, and the National Highways Authori ty Act, 1988, are not attracted. They have asserted as well that the collection of customary tolls in the Elakas of the respective Shirdarships and Durbars has been an age old practice and does not in any way infringe Article 301 of the Con stitution of India and is rather saved by Article 13 thereof. While reiterating that the collection of the customary tolls is neither forceful nor illegal but d uly approved by the Durbars and the Executive Committee of the Council, they hav e insisted that the toll gates at the concerned points have been erected with th e permission of the appropriate authorities of the State Administration as well as the Council. Contending that the customary tolls and the market tolls are the principal sources of revenue to meet the expenditure towards discharge of vario us functions, administrative, judicial and customary, the answering respondents have dismissed the allegation that the same impinges upon the petitioner’s funda mental right guaranteed under Article 19 and 21 of the Constitution of India. 15. In WP(C) 2275/2004, the writ petitioner, Syiem of Mylliem and Du rbar while adopting the stand of the Nongstoin Syiemship on the customary right and privileges of the Syiem and the authority of the Syiemships as traditional i nstitutions to levy and collect such tolls as the main source of revenue to cond uct the administration thereof, has reiterated as well that the toll gates invol ved are not situated on the National Highway but are erected at interior places within Raid Marwet, Mylliem Syiemship with due information to and approval of th e appropriate State authorities. While asserting that such exaction of tolls is valid, the petitioner has complained against unauthorised interference of the St ate authorities with the right of the lessees of the Syiemship, labouring under a wrong interpretation of the relevant laws. The allegation that such collection impedes the free flow of traffic has been denied and intervention of this Court has been sought for to restrain the State respondents from prohibiting and obst ructing their lessees from collecting tolls within the Syiemship. 16. The State of Meghalaya in its affidavit has admitted the power o f the Council under the Sixth Schedule to the Constitution of India to enact law s for collection of tolls by the Syiemship within its jurisdiction as per the pr ovisions of Act 2003 and has recited the stages through which a Bill made by it (Council) is processed culminating in an enforceable instrument of law on receiv ing the assent thereto of the Governor of the State. The deponent has indicated that the responsibility of implementing the Act 2003 is on the District Council and that the State Government has no role in that matter. 17. In the backdrop of this mammoth and contentious pleadings, Mr. S harma has insistently argued that the Syiems of the areas involved had never bee n the territorial sovereigns thereof and prior to the framing of the Constitutio n of India amongst others exercised a limited traditional right to collect tolls from those who sold goods in the market located within their jurisdiction. Rely ing on the authoritative texts titled, The Native Races of India by Major P.R. T. Curdon, A Collection of Treaties etc. compiled by Mr. C.U. Aitchison and Not es on Khasi Law by Sir Keith Cantlie, the learned Sr. Counsel has argued that t he Syiems were not authorised to collect tolls beyond the said territorial limit s. Mr. Sharma has urged that this limited right of the Syiems ceased as the admi nistration of the said areas stood vested in the District Council as mandated by the Constitution of India whereafter they (Syiems) only acted as its (District Council) Officers and could exercise only the powers conferred by it. No traditi onal right of the Syiems including that of collection of tolls was saved by the Constitution of India, he insisted. As in any view of the matter, the 2006 Rules being beyond the framework of 2003 Act are per se inoperative, null and void, t he action of the Syiems to set up toll gates and to collect tolls are purely exe cutive acts without any sanction of law and are thus obviously illegal and uncon stitutional. In order to drive home this plea, the learned Sr. Counsel principal ly relied on the decision of the Apex Court in T. Cajee versus U. Jormanik Siem and another, AIR 1961 SC 276. 18. Referring to paragraph 8(3) of the Sixth Schedule to the Constit ution of India, the learned Sr. Counsel maintained that though thereunder, the D istrict Council was empowered to levy and collect tax as contemplated therein, d elegation of such power to the Syiems was not comprehended per se. According to the learned Sr. Counsel, a District Council albeit through Regulations made by i t could provide for levy and collection of any of the taxes specified in paragra ph 8(3), the same ipso facto did not signify the Syiems’ authority to exact the same. Contending that the Act 2003 was not a law/regulation envisaged under para graph 8(4) of the Sixth Schedule, Mr. Sharma has urged that the rule making powe r contained in section 13 thereof could by no means be invoked to provide for le vy and collection of tolls and that too by the Syiem and his Durbur. This indeed is in contravention of the peremptory inhibition contained in Article 304 of th e Constitution of India. As imposition of tolls contemplated by Rule 12 has the impact of impeding the freedom of trade or commerce or intercourse guaranteed un der Article 301 of the Constitution of India, none other than the Legislature of the State is empowered by law to impose reasonable restrictions thereon as conc eived of in and approved by Article 304, he urged. Mr. Sharma, therefore, has ar gued that the Act and the Rules being repugnant to the constitutional guarantees enshrined in Article 19 and 301 are invalid and ab initio null and void. Even o therwise in absence of any power of delegation envisaged in the District Council , it could have neither assigned it to the Syiem nor legislated the transition t hereof, he urged. Having regard to the language employed in paragraph 8(3), it i s impermissible to concede any relaxation to the rigour thereof, he contended. 19. Without prejudice to the above, the learned Sr. Counsel maintain ed that it being apparent from the title and the preamble of the Act 2003, that it was a legislation under paragraph 3(1)(g) of the Sixth Schedule and not one c omprehended under para 8(3), the same as well as the Rules thereunder cannot leg ally devise any mechanism for levy and collection of tolls. The Act and the Rule s being vividly in repudiation of the inviolable rights treasured under Article 19, 301 and 304 of the Constitution of India, are liable to be adjudged nonest, he argued. To brace up his contentions, Mr. Sharma has placed reliance on the fo llowing decisions of the Apex Court as well. Saurashtra Cememt and Chemical Industries Ltd. and another versus Union of India and others, (2001) 1 SCC 91 State of Kerela versus Madras Rubber Factory Ltd., (1998) 1 SCC 616. Gupta Modern Breweries versus State of J&K and others, (2007) 6 SCC 317. New Delhi Municipal Council versus State of Punjab and others, (1997) 7 SCC 339 State of West Bengal versus Kesoram Industries Ltd. and others, (2004) 10 SCC 20 1 District Council of United Khasi and Jaintia Hills and others, AIR 1972 SC 787. State of Madhya Pradesh versus Thakur Bharat Singh, AIR 1967 SC 1170. Bishambhar Dayal Chandra Mohan and others versus State of Uttar Pradesh and ors. , AIR 1982 SC 33 Jantia Hill Truck Owners Association versus Shailang Area Coal Dealer and Truck Owner Association and others, (2009) 8 SCC 492 20. Dr. Todi, learned Additional Advocate General, Meghalaya, while affirming the power of the District Council under the Sixth Schedule to the Cons titution of India to enact laws for collection of tolls by the Syiemship within their jurisdiction has vouched for the validity of the Act 2003 and the Rules 20 06 and has with reference to the affidavit filed on behalf of his respondent ind icated the legislative process relatable thereto. While reiterating that the res ponsibility of implementing the Act 2003 and the Rules 2006 is exclusively on th e District Council, Dr. Todi has submitted that though initially pursuant to the orders of this Court all check gates/toll gates set up by it (District Council) had been dismantled later, only the illegal and unauthorised structures were re moved. The learned Additional Advocate General, however, did not elaborate on th e power of the Syiems to levy and collect tolls. 21. Mr. Narzary appearing for the District Council while ratifying t he age old practice of collection of customary tolls by the Khasi Chiefs on the commercial commodities on transit within their jurisdictional limits, has endors ed the validity of the Act 2003 and the Rules 2006. He has insisted that the col lection of the tolls at its check gates is not only in consonance with the imper atives of the Sixth Schedule to the Constitution of India but also is essential to prevent illegal transportation of timber and other items of merchandise. He h as clarified that as the check gates/toll gates are not on the Highway, no permi ssion from the Ministry of Surface Transport is warranted and that the collectio n thereat does not in any manner hinder or obstruct the free flow of traffic. Ac cording to him, the long standing practice of collection of customary tolls has since been codified into law by the Act 2003 and the Rules 2006 and that no exce ption