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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