WP(C) 3963/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE CR SARMA Judgement And Order (CAV) Amitava Roy, J The present round of the extra decade procrastinated legal tussle lays a challen ge to the vires of Bye Law 11 of the Meghalaya Urban Development Authority Bye L aws, 2001, (hereafter for short referred to as the Bye Laws) framed under the Me ghalaya 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 b y the addressees to be illegal and directing demolition thereof. Thereby the add ressees have been held to be encroachers on Government land by raising construct ions without any valid permission. The final orders are in the hand of the Secre tary, Meghalaya Urban Development Authority, Shillong (for short hereinafter ref erred to as the MUDA). 02. By order dated 19.07.2010, this Court directed maintenance of st atus 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 Associat ion 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 r espondents to oust them from the land in their occupation as well as (2) the loc ation of the plots to ascertain as to whether those are within the Master Plan a rea within the meaning of the Act and the Bye Laws. In response thereto, the par ties exchanged pleadings. The interim relief granted as above, continues as on d ate. 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 p etitioners. Mr. Ranjan Mukherjee, Senior Advocate along with Dr. BP Todi, Addl. Advocate General, Meghalaya and Mr. N Sarma, A Nath, Advocates represented the S tate 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. F actual projection of other individual cases wherever warranted have also been sc ripted. The petitioner Association claims to be the successor entity of Polo Bazar Welfa re Association, a registered body with the charter of aims and objectives, among st 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 ord ers dated 05.07.2010, the Association in an emergent General Body meeting unanim ously authorized its President and Secretary to act for and on behalf of its mem bers for instituting legal proceedings as warranted. A list of its members has b een 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 Cla n 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 certai n rights in some lands at Shillong for establishment of Civil and Military Sanit aria and Cantonments etc., in favour of Her Majesty, the Queen of England. The a greement, however, stipulated inter alia that if the proprietor of any of the la nds mentioned therein was unwilling to sell or part therewith to the British Cro wn he/she would continue fully to enjoy the same without any levy. 05. The petitioner has asserted that the occupation of its members i s of such private lands of the Kharkongor Clan which were neither transferred no r 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 a nd the Cantonment in Shillong town in the year 1864, clearly demarcating the bou ndaries 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) take n over by the then British Administration. According to the petitioner, though certain lands were taken on lease by the Bri tish 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 po ssession 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 c lan. The petitioner has claimed that the respondent No.5 being the Ing Khadduh o f the Kharkongor clan family, she with the consent of the brothers and other fam ily members sold some plots of the said lands by registered sale deeds to the me mbers 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 19 73, 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 per manent injunction. The suit was decreed on compromise adjudging that the lands, in question, in the instant proceeding along with other properties had been allo tted to her share. Reference has also been made to other suits involving the res pondent 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 ass erted that its members are the rightful registered owners of their lands in occu pation. 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 evi ct them therefrom by resorting to illegal and coercive measures without followin g the due process of law since 1996-1997. It has been stated that being driven b y eviction notices on earlier occasions issued against a few of its members as w ell as a massive demolition drive against others without any notice, several wri t petitions were instituted by its affected members before this Court, which gra nted interim protection and also allowed some to reconstruct/re-erect their stru ctures. Eventually, this batch of writ petitions was disposed of by a common jud gment and order dated 10.10.2002, interfering with the eviction process and the related impugned notices/orders, inter alia, recording the existence of a disput e between the parties pertaining to their right, title and interest over the lan d and 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, a bstained 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 da ted 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 plot s 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 o f the Meghalaya Public Premises (Eviction of Unauthorized Occupants) Act, 1980, alleging that they were illegal occupants of the Government lands, an applicatio n 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 mem bers of the petitioner Association requiring them to demolish their construction s. As their representations to the effect that the structures were not fresh, bu t 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 p etition, the notices impugned were kept in abeyance. As the applications by some members of the petitioner Association with MUDA for granting building permissio n were turned down, representing that those were untenable in view of the direct ion 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 con cerned 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 directi on was issued to dismantle, immediately, the unauthorized construction within 30 days. This notice, as well came to be challenged in this Court by the petitione r 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(S H)/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 dispute d 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 WA No. 18(SH)/2007 were, thereafter, preferred against this jud gment and order, which were disposed of on 25.05.2010, in essence, leaving the n oticees to appear before MUDA and submit their reply to the notices. While obser ving that the notices ought to be construed as one for showing cause by the addr essees, it was held that if, on making an inquiry, MUDA came to the conclusion t hat the constructions were illegal, then, after recording such a finding, it (MU DA) would be entitled to demolish the same. The noticees were granted 30 days ti me to appear and file their reply, and MUDA was restrained, till the final dispo sal of the dispute, from demolishing the constructions raised by the noticees, w ho, however, were prevented as well from proceeding with any further constructio n on the land in dispute. Liberty was also granted to the appellants or the noti cees, if aggrieved by the final orders passed by MUDA to challenge the same in a n appropriate proceeding. 09. The petitioner has pleaded that due to the vagueness of the noti ce dated 16.01.2007, it having been issued to all concerned , and as old record s had to be consulted, it on 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 t he judgment and order dated 25.05.2010. The petitioner has asserted that the ext ension 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 th e Secretary, MUDA on 02.07.2010. The petitioner’s Association has maintained tha t while the representations of its members were thus pending consideration of MU DA, 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 i mmediately 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 r ecord, the documents authorizing its President and Secretary to initiate the ins tant proceeding. One survey map of 1864 prepared pursuant to the instrument date d 10.12.1863 between the then Syiem of Mylliem and Her Majesty, the Queen of Eng land, 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 05.0 7.2010, their shops were sought to be demolished. 11. The names and particulars of its members who have submitted repr esentations before the MUDA, as required by the judgment and order dated 25.05.2 010 as well as of those, who, it (petitioner) claims had purchased different plo ts of land through registered sale deeds on several dates and had been issued pa tta 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 b y MUDA were also brought on record. 12. The respondent Nos. 1 & 2 in their affidavit have questioned the maintainability of the writ proceedings. The answering respondents have insiste d that the members of the petitioner Association having failed to submit their s how cause within the time granted by this Court vide its judgment and order date d 25.05.2010, they are estopped from challenging the orders dated 05.07.2010, wh ich MUDA, was in the circumstances authorized in law to pass. They have repudiat ed the challenge to the vires of Bye Law 11 of the By Laws as barred by the prin ciple of res judicata, inasmuch, as the petitioner had failed to project this ch allenge in the earlier writ petitions instituted to assail the notices issued by MUDA in the year 2005, requiring demolition of unauthorized constructions/struc tures made by the illegal occupants of the same land. According to them, even ot herwise, no challenge to the vires of the Bye Laws having a statutory force bein g 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 and predominant significance. Reference to the ju dgment and order dated 13.02.2007 taking note of the earlier decision dated 10.1 0.2002 has been specifically made in this context. The respondents have endorsed the validity of the impugned orders dated 05.07.2010 contending that the member s of the petitioner Association having failed to submit their representations/sh ow causes to MUDA within the time allowed by this Court vide its judgment and or der 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 2 4.06.2010 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, cont ended that as the impugned orders dated 05.07.2010 are as a consequence of the f ailure of the members of the petitioner Association to submit their show cause/r epresentation in time, their challenge thereto is frivolous. The respondents hav e also denied the petitioner Association’s assertion that extension of time had been granted by MUDA as requested. They reiterated 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 re spondents maintained that the show causes/representations, submitted on 02.07.20 10 and thereafter being beyond the time permitted by this Court, those were righ tly not taken entertained by MUDA. That the land in occupation of the members of the petitioner Association is Gove rnment 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 demonst rate that the petitioner No. 2 claiming himself to be the President of the petit ioner 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 Kharko ngor has been denied as well. 14. The affidavit of the respondent Nos. 3 & 4 offers an identical n arrative. Additionally, they contended that in terms of the determinations made by a Full Bench of this Court rendered in NONGKHLAW CLAN & ORS. VS. UNION OF IND IA, 1997 (2) GLT 652 (FB), the entire European Ward comprising of three Wards of Shillong Municipality and Cantonment is unassailably Government land. As this d etermination has not been overturned by any higher forum, it has thus attained f inality. While emphasizing that the land in dispute has been admitted by the pet itioner to be within the European Ward, MUDA has asserted service of the impugne d 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 the reof. That the land is located within the limits of Shillong Municipality of war d No. 8, which is a part of the Master Plan Area, has also been asserted. MUDA h as further averred that the area in which the land in dispute is situated has be en earmarked as Green Belt Area for conservation of environment and protection o f River Wahumkhrah. It reiterated that the letter dated 24.06.2010 filed by the petitioner Associati on seeking extension of time for filing the 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 o f 30 days were not taken cognizance of being beyond the time stipulated. It cate gorically 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 an d other occupants in the process of preparation of inventory by it in terms of t he judgment and order dated 13.02.2007 of this Court. The answering respondent a lso referred to certain photographs in endorsement of their imputation of violat ion 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 i nvolved in NONGKHLAW CLAN & ORS. (Supra), is different from the one in the insta nt 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 t he Kharkongor Clan enjoying ownership over different areas which are dissimilar from each other. According to them, as in the proceedings disposed of by the jud gment and order dated 10.10.2002, MUDA was not a party therein, it was thereby n ot left at liberty to take any decision against the petitioners. Moreover, the n otices of eviction in those cases had been issued by the Deputy Commissioner, Ea st Khasi Hill Districts, Shillong, but those dealt with by the judgment and orde r dated 13.02.2007, had been by MUDA. The petitioners, therefore, averred that t he concept of merger of the two decisions is misconceived. While asserting that the decision in NONGKHLAW CLAN & ORS. (Supra) did not estab lish that the land involved in the instant proceeding is Government land, it ple aded that the judgment and order dated 25.05.2010 construing the notices impugne d therein to be those to show cause signified interference with the decision dat ed 13.02.2007, which therefore, had been rendered non est. The petitioner questi oned the authenticity of the signatures in the Dak Book (extracts whereof have b een appended as Annexure C to the affidavit-in-opposition of MUDA) to be those o f its members. According to it, though its members were ready and willing to app ear before the competent officer of MUDA and submit their replies in terms of th e 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 allegati on that the members of the petitioner Association and other occupants had not co operated in the process of drawing up of the inventory, it has been asserted tha t the process undertaken in connection therewith was a mere eye-wash as the docu ment prepared does not disclose the names of the land holders or the holding num bers 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 stipulat ed time fixed by the 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 state d that no construction has been made by any of its members since after the judgm ent and order dated 25.05.2010 had been delivered and that they have complied wi th 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 ha ve sold several plots of land to the individual members of the petitioner Associ ation. 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 h er 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 propert y. She stated that the lands belonging to the Kharkongor Clan in the Polo/Wahumk hrah area are shown between Pillar No. 16 and Pillar No. 17 as referred to in th e agreement dated 10.12.1863. She stated that being the Khadduh (youngest daught er) of the Kharkongor family, she with the prior permission and consent of her f amily members sold individual plots of the said land in Polo/Wahumkhrah to the m embers 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 t he Court of the Assistant to the Deputy Commissioner, Shillong, following a disp ute with regard to the ownership of the Kharkongor Clan properties, which eventu ally, was decreed on compromise by judgment and order dated 18.09.1989 to the