High Court of Meghalaya

Jaintia Hills Autonomous ... vs . State Of Meghalaya & 3 Ors. on 3 August, 2022

     Serial No. 03
     Supplementary
     List

                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG

MC[WP(C)] No. 130 of 2022
In WP(C) No. 273 of 2022
                                                Date of Decision: 03.08.2022
Jaintia Hills Autonomous District         Vs.   State of Meghalaya & 3 Ors.
Council, Jowai
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :       Dr. N. Mozika, Sr. Adv. with
                                          Mr. P. Nongbri, Adv.
                                          Mr. M.L. Nongpiur, Adv.
For the Respondent(s)             :       Mr. A. Kumar, AG. with
                                          Mr. A.H. Kharwanlang, GA.
                                          Ms. S. Laloo, GA.
                                          Mr. S. Sahay, GA.
i)       Whether approved for reporting in                   Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                           Yes/No


ORDER (ORAL)

1. An Order dated 12.07.2022 passed by the District Magistrate,

West Jaintia Hills District, Jowai whereby all the toll gates said to have

been illegally erected by the petitioner herein on National Highways, State

Highways and major District Roads within the jurisdiction of Jaintia Hills

District are directed to be closed down was challenged by the petitioner in

these proceedings. It may also be mentioned that the above mentioned

order was pursuant to the communication No. DCA.103/2016/387 dated

25.02.2022 passed by the Joint Secretary to the Government of Meghalaya,

District Council Affairs Department.

2. Since the check gates are operated by the petitioner at

Mookyndur, Amlarem and Ratacherra in the Jaintia Hills District with the

objective to detect, regulate and identify illegal trading by non-tribal

commercial vehicles without any licence within the jurisdiction of the

District Council, closing down of one of the said check gates at Mookyndur

by the respondents herein is deemed to have been an act done illegally,

arbitrarily and discriminatory which is liable to be interfered by this Court

under Article 226 of the Constitution of India.

3. Along with the writ petition filed, the petitioner has also filed this

application for stay of the operation of the said impugned letter dated

25.02.2022 and order dated 12.07.2022 respectively.

4. The respondents seeking to oppose the prayer made in this

application has filed an affidavit in this regard and accordingly, the matter

is now heard by this Court.

5. Dr. N. Mozika, learned Sr. counsel for the petitioner has, at the

outset referred to the Annexure R/6 of the affidavit filed by the respondent

which is a copy of the letter No. DCA.103/2016/381 dated 09.12.2021

addressed to all the Deputy Commissioners of the Khasi Hills as well as

Ri-Bhoi, directed specifically to the collection of taxes and tolls by the

Traditional Institutions and KHADC and which letter points out that

though, collection of taxes by the Autonomous District Councils is made

as per the provision of paragraph 8 of the Sixth Schedule of the

Constitution of India, yet the area of jurisdiction does not extend to

National Highways and State Roads and has submitted that the petitioner

has no issue with this particular communication.

6. However, as regard the reference of the respondents to 'The

Control of National Highways (Land and Traffic) Act, 2002," the learned

Sr. counsel has submitted that Section 38 of this Act speaks of the

requirement of seeking permission from the Highway Administration

before any construction is made on the National Highway. However, the

impugned orders were issued by the District Council Affairs Department

of the State which has no authority in this respect and nowhere was it

mentioned that any complaint has been received from the Highway

Administration in this regard. The issuance of the impugned orders is

therefore an act of malice in law, it was asserted.

7. The learned Sr. counsel has maintained that the check gate of the

petitioner was not erected on the National Highway, but about 15 meters

from the same on the lay bye and as such, there is no question of violation

of the said Control of National Highways (Land and Traffic) Act, 2002.

8. Again, while referring to Annexure R/9 of the affidavit which is

a copy of the minutes of a meeting held on 23.06.2022 to discuss the issue

with regard to establishment of toll gates by District Councils and

Traditional Institutions, which meeting was chaired by the Hon'ble Chief

Minister, the learned Sr. counsel has submitted that in the said minutes, it

was recorded that the Chairman has assured that the Government is not

interfering in the collection of tax and fees by the District Councils and

other Traditional Institutions, but not on National highway, State highways

and major PWD roads, which is exactly what the petitioner has maintained

when it was asserted that the concerned check gate was not situated on the

National Highway.

9. Finally, the learned Sr. counsel has submitted that the facts and

circumstances of this case are covered by the judgment in the case of Shri

Maiantis Mawlot v. Khasi Hills Autonomous District Council & Ors

whereby, vide order dated 27.09.2016, a coordinate bench of this Court

has held that "...This Court is clearly of the view that when the Council

has the power to make regulations for control of trading by the non-tribals

within its jurisdiction as per Paragraph 10 of the Sixth Schedule to the

Constitution, the power to appoint an Officer, Staff and/or Agent to achieve

the objects of regulations is inherent and innate therein. It remains trite

that a power to do something essential for the proper and effectual

performance of work which the statute has in contemplation may be

implied [vide: Asstt. Collector of Central Excise Vs. National Tobacco Co.

of India Ltd.: (1972) 2 SCC 560]; and that an express grant of statutory

powers carries with it, by necessary implication, the authority to use all

reasonable means to make such grant effective [vide: Sakiri Vasu

(supra))]. Thus, looking to the nature and purport of the powers conferred

by Paragraph 10 of the Sixth Schedule, there is hardly any reason to take

exception against engagement of an Agent by the Council to identify and

check the trading by non-tribals traders. However, the concerned Agent as

also the principal i.e., KHADC shall have to remain within the confines of

the powers available in law and cannot exceed the same in any

manner....." Again, this Court in the case of Shri Eddystone Shylla v.

State of Meghalaya in W.P(C) No 286 of 2018, which is a case involving

the same issue as in the case of the petitioner herein and also with regard

to the same check gate, that is, Mookyndur, this Court vide order dated

17.08.2018 in related MC[WP(C)] No. 143 of 2018, has, upon hearing the

parties therein, stayed the operation of the impugned orders therein.

10. This Court was also led to the order dated 16.02.2022 passed by

a coordinate bench of this Court in the case of Ridalin Law v. Jaintia Hills

Autonomous District Council & Ors in WP(C) No 29 of 2022 which is a

case wherein a dispute has arisen as between the bidders called upon to run

the self-same check gate at Mookyndur and vide the aforesaid order, the

Court has directed that the respondents therein shall not proceed with the

settlement of the said check gate and that the same shall be done

departmentally, which implies that the JHADC runs the said check gate

which was done so until it was interrupted by the implementation of the

impugned orders herein.

11. Mr. A. Kumar, learned Advocate General speaking on behalf of

the State respondents has submitted that the first objection to this

miscellaneous petition is whether the petitioner has the legal authority to

set up such check gates?

12. Referring to paragraphs 11, 12 and 13 of the main writ petition,

the learned AG has submitted that apparently, the petitioner claimed that

the source of authority flows from the provisions of "The Jaintia Hills

Autonomous District (Trading by Non-Tribal) Regulation, 2011 and

Regulation 2015" and on perusal of the provisions of the said Regulation,

nowhere is it provided that the District Council has been empowered to set

up check gates.

13. In this regard, the case of Sdangyoo L. Dkhar v. State of

Meghalaya 2016 SCC Online Megh 78 was referred to, to submit that in

this case, the petitioner therein with the intention to stop the alleged

leakage of royalty/revenue and illegal transportation of coal has set up

check gates within the jurisdiction of the Khasi Hills Autonomous District

Council. This Court has observed that interfering with the movement of

vehicle for the purpose of checking and imposing fees thereon have been

done without any sanction of law and consequently, the action of the State

authorities to stop such activities have been held to be legal.

14. It is further submitted that the above mentioned judgment has

been upheld by a Division Bench of this Court in Writ Appeal No. 52 of

2016 reported in 2017 SCC SCC Online Megh 313.

15. Again the case of Tangkham M.Sangma v. State of Meghalaya

2015 SCC Online Megh 93 wherein a Division Bench of this Court in a

case of collection of toll as regard forest produce in the Garo Hills District

has not interfered with the action of the authorities who have stopped the

petitioner therein from operating such toll gate on the ground that he lacks

the authority to do so.

16. On this point, the learned AG has submitted that under the rules

and regulations, there is no authority given to the petitioner to run the

check gate and that too on the National Highway.

17. Another point raised is that the petitioner has violated the

provisions of "The Control of National Highway (Land and Traffic) Act,

2002" by setting up the said check gate within 15 meters of the National

Highway. Sections 23 of the said Act has deemed that Highway land is the

property of the Central Government and Section 24 provides for

prevention of occupation of highway land. The fact that the petitioner has

set up the check gate 15 meters from the National Highway is also violative

of Section 28 which says that no person shall have right to a Highway

either through any vehicle or on foot except by permission from the

Highway Administration which permission was not found with the

petitioner.

18. The last point raised is with reference to the minutes of the

meeting held on 23.06.2022 wherein, it is seen that the petitioner was duly

represented by the Chief Executive Member and Executive Member and

in which meeting the main issue discussed is the complaints raised by

many groups/authorities to the act of stopping of vehicles by the District

Council and Traditional Bodies at the National Highway for collection of

toll. The proceedings of the said meeting would show that such acts have

been viewed as not authorized by law nor is it in conformity with the rights

of the citizen as guaranteed by the Constitution and consequently, all such

check gates/toll gates on the National Highway, State Highways and major

PWD roads are directed to be closed down.

19. It is therefore submitted that the petitioner has not been able to

make out a prima facie case, nor is there balance of convenience in his

favour to entitle him to interim relief.

20. In reply, the learned Sr. counsel for the petitioner has submitted

that the impugned order has to be considered as it is, that is, it has to be

assessed on the basis of the reasoning given in the said order and that

cannot be expanded or supplemented by affidavits. This has the authority

of the law laid down in the case of M.S.Gill [Mohinder Singh Gill v. Chief

Election Commissioner, (1978) 1 SCC, 405]

21. It is further submitted that the only issue raised in the impugned

orders is that the check gate of the petitioner is on the National Highway.

There is nothing mentioned that the petitioner does not have the power or

the authority to set up the said check gates. In fact, the relevant letter of

09.12.2021(supra) has recognized that the Autonomous District Councils

(the petitioner being one of them) have the power under paragraph 8 of the

Sixth Schedule of the Constitution of India to collect taxes, but the same

cannot be extended to National Highways and State Highways and PWD

roads. This was also confirmed by the statement of the Hon'ble Chief

Minister through the minutes of the said meeting held on

23.06.2022(supra).

22. As to the reliance of the learned AG on the case of Sdangyoo L.

Dkhar (supra), the learned Sr. counsel for the petitioner has submitted that

the issue raised in that case is with regard to the checking of collection of

Royalty by the District Council which has set up a parallel check gate to

that of the DMR check gate. This Court has held that the District Council

is not empowered to run such check gate as it is the duty of the Government

to collect royalty and is not the business of the District Council to do so.

23. In the case of Maiantis Mawlot (supra) this Court has made its

view clear that the Council has the power to make regulations for control

of trading by non-tribals within its jurisdiction as per paragraph 10 of the

Sixth Schedule to the Constitution which can be distinguished from the

case of Sdangyoo L. Dkhar.

24. This Court has given thoughtful consideration to the submission

and contention raised by the parties herein. The short question to be

answered is whether the petitioner is entitled to a stay of the operation of

the impugned order pending hearing of the matter.

25. The State respondent has contended that the petitioner has no

prima facie case since the very authority to set up such check gate is

questionable as the petitioner is not empowered by law even under relevant

provisions of the Jaintia Hills Autonomous District (Trading by Non-

Tribal) Regulation, 2011 and 2015 respectively. The authority in the case

of Sdangyoo L. Dkhar (supra) and also the case of Tangkham M. Sangma

(supra) was put forward by the State respondents to say that the act of the

petitioner in setting up the said check gate is per se illegal.

26. The other aspect of the matter is that the petitioner has violated

the relevant provision of the Control of National Highways (Land and

Traffic) Act, 2002 and as such, cannot assert that there is balance of

convenience in its favour.

27. In the opinion of this Court, the petitioner has been able to refute

the contention raised by the State respondents, inasmuch as, the fact that

an assertion has been made that there is no legal provision for the petitioner

to set up the said check gate, in the case of Maiantis Mawlot (supra), this

Court has held that the power to make regulation for control of trading by

non-tribals flows from the provision of paragraph 10 of the Sixth Schedule

to the Constitution. It was further held that the power to appoint an officer,

staff and/or Agent to achieve the objects of regulations is inherent and

innate therein. Therefore, it cannot be said that prima facie the petitioner

has no legal jurisdiction to set up the said check gate.

28. Again, on the contention of the State respondents that the case of

the petitioner is hit by the authority in the case of Sdangyoo L. Dkhar

(supra), this Court in the case of Maiantis Mawlot (supra) has observed as

follows:

"In the order dated 03.05.2016 in WP(C) No. 18 of 2016 as referred by the learned Sr. GA, this Court was essentially concerned with the alleged setting up of "KHADC Mineral Transport Challan Check Point/Royalty Check"; and with reference to the law applicable, this Court did not approve the attempt on the part of the KHADC to recover fees from the vehicles carrying minerals and subjecting them to checking/verification for the purpose of share of royalty. The said decision, essentially concerning Paragraph 9 of the Sixth Schedule to the Constitution as regards share of royalties, will not have a direct bearing on the question involved in the present matter....."

This, has accordingly answered the legal aspect of the matter

which in the opinion of this Court is the correct approach as far as this

instant case is concerned.

29. On the alleged violation of the provisions of "The Control of

National Highway (Land and Traffic) Act, 2002" this Court is in

agreement with the argument raised by the petitioner to say that the

question of whether the check gate of the petitioner is on the National

Highway or beyond it can be ascertained only when the entire matter is

heard as that is the crux of the problem in these proceedings. Prima facie,

it cannot be said that the petitioner has set up the said check gate on the

National Highway. It may also be mentioned that the Highway

Administration ought to have raised an objection or file a complaint if such