( '> .I

THE DISTRICT COUNCIL, UNITED KHASI-JAINTIA HILLS,

SHILLO~G AND ANR.

I'.

KA DREPSJLA LYNGDOH OF

SVLLAI-U-LOR,

MYLLIEM,

MYLLIEM SIEMSHIP, UNITED KHASI-JA1NTJA HILLS AND

ORS.

February 2\' 1975 [K. K. MHHEW, v. R. KRISHNA IYER A!\D A. c. GUPTA, JJ.]

Co11stir111ion of India, 1950, Schedule VJ, Paras 6 and 20 Scopeof-Whether l'illai;<' of Mall'kher is included within tile Sl1i/lo11g Municipality.

Th~ Exccu111c Com111i11ce of the District Council, United KhasiJaintia Hills

dircted thut no new construcllon or re-constr.u'ction of stalls should be under taken in Burn Bnznr. The respondents, who were. thus p1ohibitcd from construe

ting their shops !\led the writ petitions in the High Court chnllenglng the direc:Uon.

Schedule VI of th~ Constitution shciws thnt tho United Khusi Jalntia Hills District is a tribal area within the State of Megbalaya, The territories rom priseu:wi1hin this district include Bara Bazar area, In view of.para 6 o{ the Scbetlule which enumerates the powers of the District Council, the District.

Col, ltlcil ha~ power to manage the Bara Bazar market and issue the impugned ord.ers.

But oara 20 of the Schedule states that if any part of the area com prise.<.! in tile district were included i~ 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 Baza'". wns .a pmt of the muni:ipality of the Shillong on the basis of ( 1) a .. 1Jo!iflc.i-tion d'c1ted hnuary 16. 1934. (2) <:n extrnq from •he Demand and Bill

'Reistr of the '.Shillong Municipality for the year 1957-58 and (3) the Khasi

Siemship.1 (1\pplication of Law.,) Order. 1949, and held that the District Council had no jtfrisdiction. adminis1rative or otherwise over Bara Bazar and quashed tl1e Impugned orders.

Allowing the appeal to this Court,

HELD : (I) The 1934 notification show> that what was ceded by the Siem of l\1vlli"m when he ceded Mawkher and other villages to the British Government was only the jurisdiction necessary for the municipal admi:1:st1 :1tion in nccordance with the Assam Municipal Act. 1923. and the Governor General in Council issued an order extending the 1923 Municipal Act to those Yill:igcs. The Order orovided that the villages were to be deemed as a municipality designated the Shillong (Administered Areas) Municipality.

Thus the villages were ceded for the specified purpose of municipal administration only and though the provisions ot 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 he a distinct municipality-the Shillong (Administered Areas) Municipality. This shows that the villages were not intended to b' merged in the Shillong Municipaliiy though the officers of the municinalitv were to exercise similar powers and discharge like duties in the cecl:-d ar:o,,.:, Chapter II of the Municipal Act which empowered the provincial g<wernmcnt to include within a municinality any local area in its vicinity was not made :1:irlicable to the villages. There. is also no evidence that these territor'c; were •.uhs~uenlly merged in th,· Mu.nieirality of Shillong.

[6D5F 60(1","\

(2) Th' Demanc.1 and Bill Register of the Shillong municipality refers to Souih F, r; r Mawkher as a warJ of the Shillong Municipality.

But it does not mean :hnt Mawkher or South East Mawkher was mcluded in the territorial juris,!'c'.icn of the 1\fHnici!lalitv. It onlv means that the District Council. instead of takin.g ur the administratior, allowed existing arrangements to continue in some places for some time.

[6%B-C] 8-470 Sup. Cf/75

(3) The Khasi Siem.ships (Application of Laws) Order, 1949 refen1 to .. Shillong Admini.stered Areas" by which is meant 'so much of the areas foir the time being comprised within the municipality of Shillong' as forms part of the

United Khasi Jaintia Hills District. and the lirst Schedule to the Order ddines the "Shillong Administered Areas" as comprising the areas covered by the Shillong (Administered Areas) Municipality which includes Mawkher. llut, 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 munidpahty of Shillong,' can only mean that part of the district in whkh :he officers of the Shillong municipality ,; ontinued to exercise powers and discharge duties as before. [606C-EJ

Civ11 APPELLATE JURISDICTION : Civil Appeals Nos. 1475 & 1476 of 't 969.

From the judgment and order dated the 4th Decemb2r, 1967 of

the sam & Nagaland High Court in Civil Rule Nos. 264 and 328 of c 1966.

D. N. Mukheriee, for the appellant. .i. K. Sen 1md S. K. Nandy, for Respondent No. I.

G, S. Chatterjee, for Respondent No. 2.

The Judgment of the Court was delivered by

GUPTA, J. The only question arising for decision m these two appeals, brought on certificates granted by the- Assam and Nagalnnd High Court, is whether the jurisdiction of the. District Council of the

United K.hasi-Jaintia Hills, e.xtends to the area called .B\ll'a 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 well-known market area,,, and both these shops were destroyed by fire.

In December 1964 the Siem of Mylliem permitted Ka Tiewmon Kharkongar, the first riespondlent in Civil Appeal No,. 1476 of 1969, to com; truct on the cd 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 Lyngdob, the first respondent in Civil Appeal No. 1475 of 1969. On July 19, 1965, however, the Siem of Mylliem by a written order asked respm1dent Ka Tiewmon K.harkongar not to proceed with the constructiion of the shop; it was stated in the order that the Executive Committee of the District Council, United Khasi-Jaintia Hills, had directed that no ruw construct.ion, 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. Respond4:nt 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 autho1rity of the Executive Committee of the District Cow1- , cil to make any <>rder in respect of the Bara Bazar area which thf~Y contended was outside the District . Council's jurisdiction. The High COurt disposed of' the two writ petitions by a common Judgment. TI1e High, Court found that the District Council had no jurisdiction, admi- . nistra1ive or otherwise, over the area in question, and quashed the

.f'

orders by which the respondents were prohibited from con$tructing 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 arra within the State of Meghalaya as will appear from Part II, item I of the Table appended to paragraph 20 of the Sixth Schedu!e 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 1 of the Sixth Schedule provides inter alia that the tribal areas in each item of Parts I and Il and in Part III of the Table appended to paragraph 20 of this Schedule .shall be ari'. 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, dispensa ries, 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 Khasi-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 (0 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 1.0 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the United Khasi-J}l.intia Hills District." Therefore, if any part of the area comprised in the United Khasi-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 woajd not be available to the Council in rest 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

has ceded to the British Government' the jurisdiction neccs-

A sary for the municipal administration in accordance with . the Assam Municipal Act, 1923, of the villages of l'-1awkhar,

Laitumkhrah, Mission Compound and Jaiaw South-East

~.lawkhar anc.l Garikhana, Mawprem anc.l Jhalupra, a Laban,.

~ ; i:nparing cun1 i\1ad.:in Laban,. Malki anti Haang Umkhra. situate within the hounc.laries described in the Schedule annexed hereto. 'Ubjcct to the maintenance of all other his

right" antl powers aS Sk:in of Myllicm thcn:in and with th~'

-rli:.-~-at; on that the rivers Un1shipi and U111khra, so far as

they arc within the. aloresaic.l villages, shall remain the propmy or the Myllicm State :- .

 In exercise of this jurisdiction and of. the powers con;· !erred by the Indian (Foreign Jurisdiction) Order in c.'oun- .:il. I 902, and of all other powers cnablin~ hi111 in. that b~·

hair. and in supcrscssion or the Notification or the Government of India .in the Foreign Department No: 31634'-D .. <.lated the 17th September 1913, and of all notifications amending the <1ame the Governor General in Council is pleased to dircc, t as follows :-

1. All the provisions of the Assam Municipal. Act, 1923. tAssarn Act I of 1923), as hcrcinbdore or hcrernafter amended and as in force for'thc ti1nc being i1 the Municipality. of Shillong. and :ill notifications. orders. schemes,

rUls, forn1o;; or bye-la\VS 111adc or hereafter to be mad!.! for

the 'aid Municipality shall subject to the exceptions hereinafter specified and unless otherwise declared by the Govern- E

h~·; nt \)f r\ssari1, be in force ln the said village in so far as the

sam~ may he applicab!e thereto.

Provitbl that Chapter II ai1d sccti, ms 9. 51. 53. 59 (bl, 59(g),•65. 78. 217 and 218 of the saiJ Act shall not apply t" the said villages and thut clau'c (bl of suhscctlon (;) of <ection 55 or the said Act shall not apply to the Umshirpi and F

ll;1:.hr:1 rivers o far a~ they arc within the said villages.

2. For the purposes of the application of the said provisio11s. Notifications9 orders~ s.chcn1cs, rules for1ns, and bye- IJ\v-..

I") rcrerences. to the Local Government shall be read as

rcfcrcncct? th~.! Govern1ncnt of Asam.

(h) the said vilbgcs shall be deemed to be a municipolity

dcsi2natctl the Shillong (Administered Arca) Municipality. anit C'!cry officer or authority. for the time being ::i.ppointcd br constituted in accordanc.: \Vith_ the Assam Municipal Act, 1923 as amended. to exercise powers or discharge duties within the Municipality of Shillong. shall exercise tho like "powers and discharge the like duties in accordance with the said

Act within the Shillong (Administered Area) Municipalty and shall e dee!11ed to have been duly appomted or constituted m accordance with the said Act.

(c) All sums received by the Municipal Board of the

Municiplity . of Shillong and all fioos paid or levied

m the said villages shall be ;:redited to the municipal fund of the Municipality of Shillong.

1t would appear from this notification that what was ceded to the British Government was only "the jurisdiction necessary for the muni~ cipal. administration in accordance with the Assam Municipal Acf

1923" of certain villages including Mawkhar and the Governor Gene-'. ral 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 provide<.! that for the purposes of the application of the sai~ Act, and the notifications, orders, schemes, rules, forms and bye-Jaws made for the Shillong Municipality which were also made applicable, these villages were to b.:: deemed as a municipality 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 pcti•ion~. wh:ch refers to Soutb- East 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 Adiministered 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 rdicd )Ustifies the finding that village Mawkh1~ 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 ..,_etc made applicable to the ceded villages, the villages were never included within the territorial jufr;- diction 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 intende(, f to be merged in the Municipality of Shillong though the officers and authorities exercising powers or dischargin!!, 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 da!c of the notification,

empowered the provincial government to include within a municipality any local area in the vicinity of the same, was not made applicable to the:se 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 providc5, the administr2tion 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 aliowcd the existing arrangements to continu~ at some places for some time.

Th(: extract from the Bill and Demand Register of the Shillong Municipality for the year 1957-5~, referred to in the Judgment of the High Court, seems to suggest th~ second possibility.

Even if this were so., it does not mean that Mawkhar or South-East Mawkhar was inclucled in the t<rritorial jurisdiction of the Shillong Municipality. In viw of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of a:iy provision effocting 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 Hills 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 Shillong 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 re6training them from constructing shops in the aforesaid area are not invalid.

fn the result, the appcais are allowed; the Judgment and orders appealed from are set aside and the writ petitions are dismissed. Considering the circumstances or the case we make no order as to costs.

V.P.S Appeals allowed~