Meghalaya High Court
Hima Mawlong Sirdarship & Anr. vs . State Of Meghalaya & Ors. on 20 June, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 239 of 2016
Date of Decision: 20.06.2022
Hima Mawlong Sirdarship & Anr. Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. H.L. Shangreiso, Sr. Adv. with
Ms. P. Biswakarma, Adv.
For the Respondent(s) : Mr. A. Kumar, AG. with
Mr. A.H. Kharwanlang, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. The respondent No. 2/Deputy Commissioner, East Khasi Hills District, Shillong by communication No. C & S2/2016/43 dated Shillong the 28th June, 2016 had requested the respondent No. 3/Sub-Divisional Officer (C) Sohra, (C) Sub-Division Sohra to depute a Magistrate for dismantling the Toll gate at Itchamati, East Khasi Hills run by Shri Rest Mawa authorized by Mawlong Sirdarship (the petitioner herein). A copy of the order dated 03.05.2016 passed by this Court in W.P.(C) No 18 of 2016 1 was also annexed with the said letter.
2. On the strength of the said communication dated 28.06.2016 (supra), the Executive Magistrate accordingly dismantled the said Toll gate in the second week of July, 2016.
3. Being aggrieved by the action of the respondents aforementioned, the petitioner No. 1 represented by its Sirdar, the petitioner No. 2 have approached this Court with this instant writ petition with a prayer to set aside and quash the said communication dated 28.06.2016 impugned herein by causing issue of a writ in the nature of a mandamus.
4. Heard Mr. H.L. Shangreiso, learned Sr. counsel for the petitioners who has submitted that the respondent No. 2/ Deputy Commissioner, East Khasi Hills District vide the impugned communication dated 28th June 2016 (Annexure-B to the writ petition) has requested the respondent No. 3/Sub- Divisional Officer (C) Sohra, to dismantle the Toll Gate at Itchamati run by the Agent of the petitioner Sirdarship apparently based on the authority of the order dated 03.05.2016 passed by this Court in W.P.(C) No 18 of 2016.
5. Now the issue involved in the said W.P.(C) No 18 of 2016 is with regard to the power of the Khasi Hills Autonomous District Council(KHADC) to establish the Mineral Transport Challan Check Point/Royalty check and collection of fees by the agent of the District Council from mineral laden commercial vehicles plying through its territory ostensibly for prevention of leakage of royalty collected by the State as that would in turn affect the revenue or royalty share of the District 2 Council due and payable by the State.
6. It is also submitted that this Court in the said W.P.(C) No 18 of 2016 while rejecting the prayer of the petitioner therein vide order dated 03.05.2016 has held that the District Council has no right under any provision of law to set up parallel check posts and to charge verification fees in the name of checking the vehicles.
7. The respondent No. 2 relying on the said order dated 03.05.2016 has issued the impugned order by ordering the toll gate of the agent of the petitioner to be dismantled which was done so.
8. It is however submitted that the respondent No. 2 has failed to distinguish the fact that the said order dated 03.05.2016 is only confined to the issue of the check points/royalty check operating at designated points along the national highway within the borders of the Khasi Hills Autonomous District Council by which the petitioner therein was allowed to conduct checking of all mineral laden vehicles originating from the council's territory and after verifying the mineral transport challan/royalty challan, to collect the verification fees from such vehicle. But, in this instant case, the issue is about the collection of customary tolls by the customary authorities (the petitioner being one of them) from goods or mineral laden vehicles entering into and leaving its territory.
9. The learned Sr. counsel has further submitted that under the provisions of sub-para 1 of para 9 of the Sixth Schedule of the Constitution of India, the State Government is empowered to collect royalties which 3 accrued each year from licences or leases issued for the purpose of prospecting or extracting of minerals from the State. However, the proceeds from such royalties has to be shared with the District Council of that area.
10. In para 8 of the Sixth Schedule, at sub-para 3, the District Council have been empowered to levy and collect taxes from within such district and collection of such customary tolls is allowed. In fact, the power of the local and traditional institutions to collect customary tolls has attained the force of law as was held in the case of Meghalaya Commercial Truck Owners and Operators Association v. State of Meghalaya & Ors: 2010 (4) GLT 172 at paragraph 57 wherein it was held that:-
"57. Having regard to the gamut of the legal and constitutional provisions referred to hereinabove, we are thus inclined to hold that the customary practice of collection of tolls by the Syiems and their Durbars had at the point of commencement of the Constitution of India acquired a force of law and was saved by Article 372 thereof so much so that exactions continued to be valid in terms of Article 277."
11. It is submitted that the said Meghalaya Commercial Truck Owners and Operators Association case has gone up before the Hon'ble Supreme Court by way of a Special Leave Petition, but the same was dismissed for non-prosecution, therefore this judgment has attained finality. The case of Hindustan Construction Co. Ltd and Anr v. Gopal Krishna Sengupta and Ors: (2003) 11 SCC 210 at paragraph 25 was cited by the learned Sr. counsel for the petitioner to say that if no appeal or revision is filed against an order, the said order has become final and judicial propriety requires that it should not be allowed to be reopened.
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12. The learned Sr. counsel has again submitted that there are various local Acts enacted by the Autonomous District Council in which the local institutions known as Sirdarship have been allowed to run the administration in accordance with customary law prevalent within the said Sirdarship. Under the 'United Khasi-Jaintia Hills Autonomous District (Administration and Election of Sirdar of Mawlong) Act, 1960,' Section 24(2) of the same has provided that the administration of the said Sirdarship is to be run in accordance with customary law. In a similar provision, under the Khasi Hills Autonomous District (Appointment and Succession of the Sirdar and Headmen of Riangsih Sirdarship) Act, 1995 under Section 11 of the same, the Executive Durbar was given the power to run the day today administration in accordance with customary practices.
13. Another point of argument advanced by the learned Sr. counsel for the petitioner is that the reason given by the respondent/Deputy Commissioner in the impugned order is the reliance on the authority of the Sdangyoo L. Dkhar case, which case as mentioned, deals only with the collection of verification fees from vehicles at the transport mineral check points/royalty check and the same has not dealt with the collection of customary tolls. Therefore, the respondents in their argument cannot travel beyond this point and bring in other issues not related to the subject matter. The case of Mohinder Singh Gill and Anr v. The Chief Election Commissioner, New Delhi and Ors: (1978) 1 SCC 405 at paragraph 8 was referred to in this regard wherein the Apex Court has held that "...when a 5 statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise...". While on this issue, another similar judgment was also cited by the petitioner, that is, the case of State of Punjab v. Bandeep Singh & Ors: (2016) 1 SCC 724 wherein at paragraph 4, the Apex Court reiterating the principle laid down in the Mohinder Singh Gill case has held at para 4 that "There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action..."
14. Per contra, the learned Advocate General appearing along with Mr. A.H. Kharwanlang, learned GA refuting the submission made by the learned Sr. counsel for the petitioner, has submitted that at the outset, the instant writ petition is liable to be dismissed as it was filed without disclosing any legal or fundamental rights of the petitioners being infringed. The petitioner has only made a vague reference to the interference by the respondents without giving details of whether the alleged act of interference has curtailed the legal rights of the petitioner.
15. On the issue of locus standi or rather the lack of it, the learned AG has cited the case of Vinoy Kumar v. State of UP & Ors: (2001) 4 SCC 6 734, paragraph 2, State of Orissa v. Ram Chandra Dev & Anr: AIR 1964 SC 685, paragraph 8 and also the case of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed: (1976) 1 SCC 671, paragraphs 37, 38 & 39.
16. Coming to the main issue in dispute, the learned AG has submitted that the petitioner has no jurisdiction to collect tolls from mineral laden vehicles as the same is barred in view of the decision of this Hon'ble Court in W.P.(C) No. 18 of 2016, (Mr. Sdangyoo L. Dkhar v. State of Meghalaya & Ors) referred to in the impugned order whereby, vide order dated 03.05.2016, a similar writ petition has been dismissed holding that there is no legal right in favour of the petitioner therein to set up check post over the mineral carrying vehicles and to charge verification fees from the said vehicles. The said order passed by the learned Single Judge of this Court on appeal, was upheld by the Division Bench of this Court vide order dated 12.10.2017 in W.A. No. 52 of 2016.
17. On the contention of the petitioner that the collection of tolls within the jurisdiction of the petitioner's Sirdarship is in accordance with the customary laws and practices which has now acquired the force of law, the learned AG has submitted that paragraph 12A of the Sixth Schedule of the Constitution of India has clearly provided that the law made by parliament will prevail over the laws made by the District Councils as well as the Customary laws.
18. In this respect, the Mines and Mineral Development and 7 Regulation (MMDR) Act, 1957 and the rules framed thereunder has regulated the entire field, as far as grant of transport challan and payment of royalty is concerned. The District Council or the petitioner in this case has no jurisdiction to check, inspect or collect tolls or fees from mineral laden trucks passing through the geographical territory of the same.
19. Section 23C of the (MMDR) Act, 1957 has endowed the State Government with the power to check illegal transportation of minerals including power of establishment of check post, inspection and regulation of minerals being transported and Section 21(4) of the said Act also provides for penalty of illegal transportation of minerals. In this regard, under the relevant rules, that is, Rule 26 of the Meghalaya Minor Mineral Concession Rules, the competent authority has been empowered to issue transport challan, for which no person shall transport or carry away any minor mineral from any place without a transport challan being issued thereto and again under sub-Rule 3 of Rule 26, it is provided that any person who transports minor mineral is to allow inspection of the minor mineral in transit and for the transport challan to be inspected by the competent authority.
20. It is reiterated that in the Sdangyoo L. Dkhar case, the court has held that "...it is manifestly clear that any attempt on the part of the KHADC to recover fees from the vehicles carrying minerals and to subject them to any checking or verification is neither authorized by law nor is it in conformity with the rights of citizens guaranteed by the Constitution of 8 India". Therefore, the establishment of check post by the petitioner without any sanction of law is arbitrary and amounts to restriction in freedom of trade and movement of the citizens guaranteed under Article 19(1)(g) and
(d) of the Constitution of India. Similarly, the imposition of verification fees by the petitioner is without any authority of law and is contrary to Article 265 which mandates that there can be no imposition of tax without authority of law. The case of Bijoe Emmanuel v. State of Kerala: (1986) 3 SCC 615, paragraphs 16 & 17 was relied upon by the learned AG in support of the above contention.
21. In terms of paragraph 12 A, it is submitted that Parliament has made the law, that is the Mines and Mineral Development and Regulation (MMDR) Act, 1957 and the State Government has also brought out regulations and rules in this regard whereby transportation of minerals, including minor minerals are regulated by issuance of Transport Challan, then no other authority, even the local and Traditional Institutions can stop the movement of vehicles carrying minerals on the strength of such Transport Challan on the ground that there is a customary law for collection of toll from such vehicles. In support of this contention, the case of State of Meghalaya v. All Dimasa Students Union: (2019) 8 SCC 177, paragraphs 77, 81, 82 and 146 was cited.
22. On the reliance of the learned Sr. counsel for the petitioner in the case of Meghalaya Commercial Truck Owners and Operators Association (supra), the learned AG has submitted that at paragraph 59 of the same, it 9 was held that "... No post constitutional law enacted either by the Parliament or the State Legislature has been cited repealing, annulling or superseding such customary practice so as to render it non est thereby..." This judgment has proceeded on the premise that no law was pointed out. However here the law has been pointed out, inasmuch as, the proposition in the case of Sdangyoo L. Dkhar (supra) which was passed by the learned Single Judge and upheld by the Division Bench and the same being dismissed by the Hon'ble Supreme Court as withdrawn and a review petition filed before this Court thereafter was also dismissed, would show that there is a law in this regard regulating the transport of minerals within the State of Meghalaya and that law is the MMDR Act, 1957.
23. The learned AG has summed up his argument by submitting that firstly that the petitioner has no right under the law, secondly, all collection of tolls has to be backed by law with reference to the provisions of Article 19(1) (d) and (g) and lastly that the law laid down in the Meghalaya Commercial Truck Owners and Operators Association is not applicable to the case of the petitioner as far as collection of tolls from mineral laden vehicles is concerned.
24. On consideration of the argument made by the respective parties, before proceeding to discuss the main bone of contention between the parties herein, the challenge of the State respondent to the locus of the petitioners is required to be taken up first. It has been contended that the petitioner has not disclosed any legal or fundamental right which is 10 infringed in the present matter, but has only made a vague reference to the alleged interference of the State respondent citing the impugned communication dated 28.06.2016 by the respondent No. 2 to respondent No. 3.
25. The petitioner has described itself as a rudimentary traditional institution with well-established customary practices acquiring the force of law to collect local tolls from vehicles carrying goods and minerals, and in this respect, have erected a toll gate situated about five meters from the Public Works Department Road for such collection. This fact has been acknowledged by the respondent No. 2 in the impugned letter, whereby the toll gate set up and run by the petitioner through its agent have been directed to be dismantled. Therefore, prima facie, it can be assumed that the right of the petitioner to run the said toll gate have been taken away by the action of the respondents and accordingly, the petitioner has been vested with a legal right to oppose the said action. The alleged arbitrary act of the respondent will thus enable the petitioner to come before this Court for issuance of an appropriate writ as mandated under Article 226 of the Constitution of India.
26. The authorities cited by the respondents in support of the contention that the petition was preferred without showing any instance of violation of the legal or fundamental rights of the petitioner by the respondents would therefore not come to its aid and the same are not required to be discussed in details. In fact, the case of Ram Chandra Dev 11 (supra) cited by the respondents at paragraph 8 would only fortify the stand of the petitioner wherein it was held that "...Under Art 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the encroachment of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone..."
27. Coming to the main issue, the stand of the respondents is that the petitioner has no jurisdiction to collect tolls from mineral laden vehicles in the light of the decision of this Court in W.P.(C) No. 18 of 2016 (supra), which decision was also upheld by the Division Bench of this Court in W.A. No. 52 of 2017.
28. To the extent of repetition, the brief facts of the case in W.P.(C) No. 18 of 2016 is that the Khasi Hills Autonomous District Council (KHADC) which is one of the key beneficiary of the collection of royalty from minerals as provided under paragraph 9 of the Sixth Schedule to the Constitution, taking note of the Comptroller and Auditor General of India (CAG) report dated 31.03.2013 wherein, it was stated that the State Government has failed to set up a mechanism to determine the mineral extracted between the years 2008-09 to 2012-13 thereby, causing huge revenue loss to the tune of 81.40 crores, has accordingly recommended to the State Government for improvement and overall restructuring of the 12 management of the check gates. In this connection, the KHADC has deemed it proper to set up check point/royalty check at designated points on the national highway within the Council's border and a public notice was issued inviting interested person to be appointed as agents to operate the said check point. The petitioner in the said case was eventually appointed as the said agent and had operated the said check point/royalty check. However, he was prevented from carrying out his duties, that is, to check and verify the royalty challan carried by the coal laden trucks by the Deputy Commissioner, West Khasi Hills District. The petitioner then approached this Court and upon adjudication of the matter, it was held that the attempt on the part of the KHADC to recover fees from the vehicles carrying minerals and to subject them to any checking or verification is neither authorized by law nor is it in conformity with the rights of citizens guaranteed by the Constitution of India.
29. The petitioner on the other hand, has maintained that the issue is not about setting up of check point to verify the mineral transport challan or to collect fees from the mineral laden vehicles, and has asserted that the rights of the petitioner to collect tolls which has been a regular practice and has formed part of the customary laws governing the administration of the Sirdarship, which practice has attained the force of law as was propounded by their Lordships in the case of Meghalaya Commercial Truck Owners and Operators Association (supra) and therefore, interference with the said practice by issue of the impugned order, the fundamental and legal rights 13 of the petitioner has been impinged.
30. The respondents have emphasized on the fact that according to the constitutional scheme, under paragraph 12 A (b) of the Sixth Schedule of the Constitution, the President has the right to exempt the application of any act of Parliament to any area belonging to the Autonomous District Council. However, the law holding the field as regard major and minor minerals is the Mines and Mineral Development and Regulation Act, 1957 and the rules framed thereunder, including the Mineral Concession Rules, 1960 and the Meghalaya Minor Mineral Concession Rules, 2016. Section 23C of the Mines and Mineral Development and Regulation Act, 1957 was specifically pointed out by which provision the State Government was empowered to establish check post and carry out inspection and also to regulate the transport of minerals within the State. Rule 26 of the Meghalaya Minor Mineral Concession Rules, 2016 has also empowered the competent authority to issue transport challan to enable the transporter to transport minor minerals and also to be subjected to inspection by the competent authority or any other officer authorized on his behalf while in transit.
31. Laying stress on this point, the respondents has also quoted the decision of the Hon'ble Supreme Court in the case of State of Meghalaya v. All Dimasa Students Union (supra) wherein at paragraph 146 of the same, the Apex Court has held as follows: -
"146. Para 9(1) confines to the licences or leases of minerals granted by government of the State. Schedule VI which 14 constitute the District Councils and Regional Councils enumerates their powers. Para 9 refers to licences or leases for extraction of minerals granted by the Government of the State. Para 9 only deals with share of the royalties to District Councils as agreed upon between the Government of the State and the District Councils. Further paragraph 12(A)(a) itself contemplates that any law made by District Council or Regional Council which is repugnant to any law of the State shall be void. Thus, the status of law made by District Council or Regional councils has to give way to the law made by the State. There can be no doubt that District Council and Regional Council cannot make any law which may be repugnant to the provisions of the Parliamentary Act."
32. Another limb of argument of the respondents is that the check post established by the petitioner amounts to restriction in freedom of trade and movement and is in violation of Article 14 and 19 (1) (g) and (d) of the Constitution of India, for which the imposition of verification fee for the purposes of royalty is unreasonable and infringes the rights of the citizens. The case of Bijoe Emmanuel (supra) at paragraph 16 was cited by the respondent to support this contention. The same is reproduced below as: -
"16. We have referred to Article 19(1)(a) which guarantees to all citizens freedom of speech and expression and to Article 19(2) which provides that nothing in Article 19(1)(a) shall prevent a State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The law is now well settled that any law which be made under clauses (2) to (6) of Article. 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be 'a law' having statutory force and not a mere executive or departmental instruction. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Article 19(2) 15 to (6). The Constitution Bench answered the question in the negative and said:
Though learned Counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chapter XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "a law"
which the State is entitled to make under the relevant clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would the same be "a procedure established by law" within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations."
33. In the opinion of this Court, the argument advanced by the learned Sr. counsel for the petitioners has considerable persuasive value, inasmuch as, the differentiation of the scenario as far as collection of tolls and the collection of verification fees from mineral laden vehicles is apparent. The collection of verification fees by the agent of the Khasi Hills Autonomous District Council as was enumerated in the case of Sdangyoo L. Dkhar (supra) was prohibited on the ground that there is a law governing the collection of royalty as regard the minerals extracted from within the State of Meghalaya, that is the Mines and Mineral development and Regulation Act, 1957 and the provisions of para 9 of the Sixth Schedule of the Constitution of India which speaks about the share of royalty between the State Government and the District Council. However, as far as the collection of toll is concerned, the Hon'ble Gauhati High Court in the 16 Meghalaya Commercial Truck Owner and Operation Association (supra) case has, taking everything into consideration, declared that such collection of toll by the Traditional and Local Institutions in the State of Meghalaya to be part of its customary practice which has acquired the force of law.
34. It may be reminded that the customary practice of collection of tolls from vehicles plying to and from the designated territory of such Traditional and Local Institutions including the petitioner Sirdarship herein is not for the purpose of collection of royalty or verification fee of transport mineral challan, but was meant to augment the revenue of the Sirdarship to enable the same to run its administration et al. The purpose being clearly distinguishable, the ratio of the Sdangyoo case cannot therefore be applied to the case of the petitioner herein.
35. There can be no quarrel with the proposition of law as laid down by the Hon'ble Supreme Court in the case of All Dimasa Student's Union (supra) wherein at paragraph 146 (cited by the respondent), apart from elaborating on the provision of para 9(1) of the Sixth Schedule, the latter part of the paragraph has reiterated the import of para 12-A(a) to say that the said provision contemplates that any law made by the District Council or Regional Council which is repugnant to any law of the State shall be void. However, the reference of the respondent to the State or Central law in this context was only confined to the Mines and Mineral development and Regulation Act, 1957 and the Rules made thereunder applicable to the State of Meghalaya. As pointed out above, the collection of customary toll 17 by the petitioner is not confined only to minerals laden vehicles, but also to goods laden vehicles. At paragraph 5 of the Meghalaya Commercial Trucks and Operators Association's case, the Court has clearly acknowledged the fact that collection of tolls by the Traditional and Local Institution as a customary practice also includes collection of the same from mineral laden vehicle amongst others.
36. As far as the customary rights having the force of law being repugnant to the provisions of the parliamentary Act, this Court in the said case of Meghalaya Commercial Trucks and Operators Association (supra) at paragraph 55 has observed as follows: -
"55. Not only the observations of the Apex Court in T.Cajee(supra), about the cessation of all administrative powers of the Syiem with the merger of the Khasi States in the dominion of India do not having regard to the contextual facts therein conclusively evince the annihilation of the Syiem's customary right to collect toll which existed prior thereto, the attention of this Court has not been drawn to any enactment by a competent Legislature or authority abrogating the same."
37. On the contention of the respondent that the petitioner has established the checkpoints without any sanction of law which infringes the right to trade and movement of the citizens guaranteed under Article 19(1)(d) and (g) of the Constitution, for which the relevant authorities in this regard was cited, under similar circumstances, the Court in the said case of Meghalaya Commercial Trucks and Operators Association (supra) at paragraphs 49 has observed as :-
"49. In the backdrop of the above narrative, the custom or usage of collection of tolls by the Syiem and his Durbar, with regard to the duration of its continuance having attained the 18 force of law, was, thus, clearly comprehended in the said expression. In view of the antiquity, continuity and certainty of the customary practice of collection of tolls by the Syiems and their Durbars as the factual backdrop demonstrates, it had by then ripened into law as comprehended in sub-clause (3)(a) of article 13 of the Constitution of India. Whether this custom is repugnant to article 19(1)(g) to be rendered void or is saved by other constitutional provisions to withstand the scrutiny in the context of the guarantee of free trade, commerce and intercourse throughout the territory of India is the next query. The fundamental right to practice any profession or to carry on any occupation, trade or business in not in absolute terms but subject to reasonable restrictions as envisaged in sub- clause (6) thereof. The State is free to make any law imposing in the interest of general public, reasonable restrictions in the exercise of such right as enumerated therein."
38. In answer to the above query, the Court at para 65 has held thus:-
"65....The petitioner's plea that the check gates/toll gates and the revenue stations cause obstruction to the free flow of traffic on the highway besides curtailing the freedom of trade, commerce and intercourse as assured under article 301 of the Constitution of India, in the facts and circumstances of the case, therefore does not commend for acceptance."
39. In the light of the above, the assertion of the petitioner that the brief of the respondents has travelled beyond the reason cited in the impugned order, inasmuch as, the issue of collection of customary tolls was not the subject matter of the Sdangyoo L. Dkhar case, the relevant authorities cited are also found to be acceptable by this Court.
40. Another aspect of the matter that was brought to the fore by the learned Sr. counsel for the petitioner is that the impugned order was passed without affording any opportunity to the petitioner to show cause and as such, the principles of natural justice has been violated. This argument has force in its application, inasmuch as, the respondent No. 2 having duly 19 acknowledged the fact that the said check gate was set up and run by the agent of the petitioner Sirdarship, yet no prior notice or opportunity to show cause was afforded to the petitioner.
41. In view of the above and on finding that the authority of the case of Meghalaya Commercial Trucks and Operators Association (supra) is applicable to the facts and circumstances of this instant case, this Court hereby held that the impugned order dated 28.06.2016 (Annexure B to the writ petition) was passed arbitrarily and in clear violation of the legal rights as well as the principles of natural justice of the petitioners.
42. The petitioners has been able to convince this Court that merits is on its side and notwithstanding the fact that the reference of the respondents to the various proposition of law including the authorities cited which are valid on their own account, however, placed in the context of the case of the petitioner, the same are found to be not applicable.
43. Viewed thus, this Court finds that the petitioner has been able to make out a case for setting aside and quashing of the impugned letter dated 28.06.2016 (Annexure 2), the same is hereby done so.
44. This petition is accordingly disposed of. No costs.
Judge Meghalaya 20.06.2022 "D. Nary, PS"
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