Meghalaya High Court
Shri Tirot Sing Syiemlieh vs State Of Meghalaya And Ors on 16 February, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
PIL No.9 of 2015
Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
PIL No.9 of 2015 Shri Tirot Sing Syiemlieh ..... Petitioner
-Versus-
State of Meghalaya and others ..... Respondents
Date of Order: :: 16.02.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri N Syngkon, for the petitioner Shri K Khan, for the respondents No.1 and 2 Shri HS Thangkhiew, Sr.Adv, with Shri Philemon Nongbri for the respondent No.3 Shri K Paul, for the respondent No.6 BY THE COURT: (per Hon'ble the Chief Justice) (Oral) In this petition, filed as Public Interest Litigation (PIL), the petitioner has essentially questioned the so-called order dated 05.11.2015, being a Public Notice issued by the Secretary, Meghalaya Urban Development Authority, Shillong („MUDA‟), which reads as under:-
"PUBLIC NOTICE The Press Release issued vide No.MUDA.BPI/596/2011-12/8-A dated Shillong the 5th August, 2015 extending the Meghalaya Building Bye Laws-2011 to areas within the Shillong Master Plan beyond the Shillong Municipal Area is hereby kept in abeyance under the proviso to sub-section (2) of section 1 of the Meghalaya Town and Country Planning Act, 1973 read with Section 35 of the Meghalaya Interpretation and General Clauses Act, 1972.
This has the approval of the Competent Authority."2 PIL No.9 of 2015
Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors It is submitted that the construction activity in the State is required to be regulated in a proper manner and for the purpose, the Meghalaya Building Bye Laws, 2011 were prepared and on the approval of State Government, were published in the month of July, 2011. The petitioner has questioned the aforesaid Public Notice with the submissions that the same was issued by the Secretary, MUDA without stating any reason and thereby, the earlier Press Release dated 05.08.2015, extending the Meghalaya Building Bye Laws, 2011 to the areas within Shillong Master Plan, was kept in abeyance without any justification. The petitioner has attempted to suggest various fall outs of non-application of the Building Bye Laws over the areas in question.
This petition was taken up for consideration on 16.12.2015 and a Division Bench of this Court, while taking note of some of the averments in the petition, felt dissatisfied with the aforesaid Public Notice dated 05.11.2015 and, therefore, stayed the operation thereof while observing that as a consequence, the Meghalaya Building Bye Laws would remain in operation during the pendency of this petition. The order dated 16.12.2015 reads as under:-
"16.12.2015 Mr. N. Syngkon, learned counsel, appears for the petitioner.
Mr. K. Khan, learned Addl. Senior GA, represents the State respondents.
We have heard learned counsel for parties. Learned counsel for the petitioner referred to paragraphs No. 9, 10 & 11 of the petition while informing the Court that the Meghalaya Building Bye Laws, 2011 which provides guidelines for construction of buildings as well as grant of permission to construct such buildings has been withdrawn by the Secretary, Meghalaya Urban Development Authority vide Memo No. MUDA.BPI/596/2011-12/13-A dated 05.11.2015 without any valid reason. The said paragraphs on reproduction would read as:3 PIL No.9 of 2015
Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors "9. That the petitioner states that the State of Meghalaya is at Zone-5 of the seismic activity. In metrological parlance, Zone-5 area would be an area in which the highest level of seismic activity is expected and inevitable. Zone-5 areas are likely to experience earthquakes which can be as high as 8/9 on the Richter scale above. Shillong town is on the slope of the hill and landslide is the common feature in Shillong town as a major portion of the hill in Shillong are loose soil and it is necessary to control, regulate and monitor the construction of buildings for the security and safety of its people.
10. That the petitioner states that the "Meghalaya Building Bye Laws, was prepared by the Meghalaya Urban Development Authority, and on approval of the State Government it was published in the Gazette of Meghalaya, Part-IIA on 21st July 2011 vide No. UAU.118/2010/Pt/3 dt.
12th March, 2011. The Meghalaya Building Bye Laws, 2011 apply to all the Master Plan Areas and scheme Areas notified or to be notified from time to time within the State.
11. That the petitioner states that the Secretary, Meghalaya Urban Development Authority, Shillong, had issued Public Notice vide Memo No. MUDA.BPI/596/2011-12/13-A dt. 5th November, 2015 and withdrawn the Meghalaya Building Bye Laws, 2011 from its operation in the Shillong Master Plan without citing any reason. If the Meghalaya Urban Development Authority is not capable to regulate, supervise, monitor, and implement the Meghalaya Building Bye Laws, 2011 in Shillong Master Plan Areas, where multistoried and high rise buildings are constructed rapidly, the Government should have notified any other Government Department or establish or notify any other Agency to implement the same. Such withdrawal indicated that the Government is not concern about the security and safety of the general public of the State."
Under the said Bye Laws, constructions upto only G + 3 is permissible. Now, in the absence of Meghalaya Building Bye Laws, the builders can raise high-rise buildings, an issue which was the subject matter of adjudication by this Court in PIL No. 1/2014, and wherein, this Court has taken a serious view in the judgment. Besides, the involvement of Officers, builders and others held to have carried out illegal construction is also being scrutinized by the Central Bureau of Investigation, and that matter is pending in this Court. On the other hand, learned counsel for the State, Mr. Khalid Khan, contends that the Meghalaya Building Bye Laws, 2011 has only been kept in abeyance and not withdrawn. Keeping in abeyance inter alia also means suspension of operation of Bye Laws, which was very much in force till the Secretary, MUDA issued the impugned order in November, 2016. In that view of the matter, the order of Secretary, Meghalaya Urban Development Authority vide Memo No. MUDA.BPI/596/2011-12/13-A dated 05.11.2015 is hereby stayed, and consequently, the Meghalaya Building Bye Laws shall remain in operation during the pendency of this petition. Issue notice to respondent No. 3 and it be made returnable by 02.03.2016. The respondents may file their affidavit-in-opposition within 4 (four) weeks. 4 PIL No.9 of 2015
Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors List the matter on 02.03. 2016."
On 02.03.2016, the Khasi Hills Autonomous District Council („KHADC‟) as also the Shillong Cantonment Board were allowed to join this petition after this Court found that direct interest of those bodies was involved. Thereafter, on 19.07.2016, it was submitted on behalf of the Cantonment Board that they were not proposing to make any submission on the subject-matter of this petition because the issue relating to the Building Bye Laws concerning the areas within their jurisdiction had been dealt with in the other writ petition that was disposed of by a separate order while making it clear that there would not be overlapping of the building Regulations/Bye Laws within the cantonment area. However, learned counsel for the KHADC was granted time to file his affidavit-in-opposition. The affidavits-in- opposition have been filed on behalf of the State, MUDA, and KHADC.
In a subsequent development, the MUDA has placed on record its „Press Release‟ dated 21.01.2016 whereby, the aforesaid Public Notice dated 05.11.2015 has been withdrawn, while stating that the Meghalaya Building Bye Laws would be applicable as per the Shillong Master Plan. The said Press Release dated 21.01.2016 reads as under:-
"PRESS RELEASE In pursuance to the Court Order dated 16-12-2015 passed by the High Court of Meghalaya in the PIL No.9/2015 of Shri. Tirot Singh Syiemlieh vrs State of Meghalaya and others, this office Public Notice vide No. MUDA. BPI/596/2011-12/13-A dated 5th November, 2015 is withdrawn with immediate effect. All General Public are hereby informed that the Meghalaya Building Bye Laws-2011 will be applicable as per the Shillong Master Plan with immediate effect and until further orders."5 PIL No.9 of 2015
Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors On behalf of KHADC, however, questions have been raised on the proposition stated by the petitioner and by MUDA. In essence, the contention on the part of KHADC is that the Bye Laws made under the Meghalaya Town and Country Planning Act, 1973 would not be applicable in the autonomous district areas and the Building Regulations of 2015 as made by the Executive Committee of KHADC on 04.08.2015 under the enabling power contained under the Town Committee Act, 1960 shall apply to the autonomous district area under their jurisdiction. It is submitted that the said Building Regulations of 2015 would be operating irrespective of the questions sought to be raised by the Government of Meghalaya on the publication thereof; and thus, the construction activity in the areas under the jurisdiction of KHADC would not be covered under the Building Bye Laws made by MUDA.
We have only taken note of, in brief, crux of the stand of the parties. Further dilatation on the issues sought to be raised by the respective parties does not appear necessary for the simple reason that the basic issue as raised in this petition could no longer be considered surviving when the questioned Public Notice dated 05.11.2015 has been withdrawn by MUDA.
Though, we find it rather questionable on the part of MUDA, the Development Authority constituted under the Meghalaya Town and Country Planning Act, 1973, that several of its decisions have been notified by way of so called "Public Notice" or "Press Release". In response to our query as to whether any specific notification has been issued by the MUDA, learned senior counsel appearing for the MUDA could not answer in the affirmative and submitted that the 6 PIL No.9 of 2015 Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors decisions taken by MUDA have been notified only in the manner aforesaid. It would be expected of the statutory body like MUDA to take corrective measure for its official acts and to issue proper notifications on its decisions. In any case, so far the present matter is concerned, the position obtaining is that the questioned decision, as stated in Public Notice on 05.11.2015, which was stayed by this Court on 16.12.2015, has since been withdrawn by MUDA on 21.01.2016. However, serious and significant questions have now been raised on behalf of the KHADC essentially with the submissions that the Building Bye Laws as framed by MUDA cannot be made applicable over the autonomous district areas. Though these issues ought to have been raised by KHADC in the appropriate forum and in the appropriate manner but they have been raised only by way of a counter affidavit in this petition. In our view, when the limited issue raised herein is not surviving, the proceeding in this petition deserve to be terminated, of course, while leaving all other issues open to be examined in the appropriate forum and in the appropriate proceedings.
As noticed, the questioned Public Notice dated 05.11.2015 was stayed by this Court on 16.12.2015 and the same has been withdrawn. The said Public Notice had even otherwise not spelt out any reason as to why suddenly the earlier decision dated 05.08.2015 was sought to be withdrawn. In the totality of circumstances and while taking note of the decision as stated by MUDA in the Press Release dated 21.01.2016, we deem it proper to make the order dated 16.12.2015 absolute to the extent it operated over the said Public Notice dated 05.11.2015, but while clearly providing that 7 PIL No.9 of 2015 Shri Tirot Sing Syiemlieh v. State of Meghalaya & Ors neither in the order dated 16.12.2015 nor in any other order passed in this matter, this Court has adjudicated on the issues sought to be raised by KHADC and all such questions/issues shall remain open to be examined in the appropriate proceedings and in the appropriate forum. It goes without saying that in relation to such questions/issues, the submissions of all the parties/stakeholders, including MUDA and the State Government shall equally remain open to be examined appropriately.
With the observations foregoing, this petition stands disposed of.
JUDGE CHIEF JUSTICE Lam Item No.5