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2001 DIGILAW 27 (GAU)

Bridar Kharbani v. State of Meghalaya

2001-02-08

N.SURJAMANI SINGH

body2001
In this writ petition, the petitioner made a prayer for a direction to the respondents to withdraw, recall or otherwise forbear from giving effect to the impugned decision of the Govt-respondents for transfer of the 14 villages to East Khasi Hills by contending inter alia that, the petitioner is the Secretary of the Joint Action Committee and he has been authorised by the Headmen of the villages comprising within Saw Symper area, to file this writ petition and the said Saw Symper is an area situated within the Maharram Syiemship in West Khasi Hills and, when the West Khasi Hills District was created in the year 1976 the whole of Maharram Syiemship including the 14 villages of Raid Saw Symper viz. 1. Langsynphut, 2. Mawteibah, 3. Wahmawpat, 4. Mawangor, 5. Weiloi, 6. Mawiyngkut, 7. Mawhiangbah, 8. Nongdum-Mawria, 9. Kmawan-Pongkung,10. Mawlyngku, 11. Domsohpian, 12. Kmawan-nim, 13. Mawryngkang and 14.Ladkrem-Mawpyllum, were transferred to the newly created West Khasi Hills, District, and later, when the Mwkyrwat Civil Sub Division was created in the year 1982, the above villages along with the rest of the Maharram Syiemship was also placed under the jurisdiction of Mawkyrwat Civil Sub Division. 2. It is also the case of the petitioner that some interested person for their personnel gain has lodged a representation for transferring the above mentioned 14 villages to East Khasi Hills allegedly on the ground of administrative convenience. 8 (eight) villages out of the 14 villages mentioned above held the Dorbar on various dates and resolved that these villages namely, 1. Langsymphut 2. Mawhiengbah 3. Kmawan Pongkung 4. Mawtiehbah 5. Nongdomsohpian & Nongdommawrang-kang 7. Mawiyngkut and 8. Kmawan, shall remain in the West Khasi Hills District in the year 1997-98 respectively, but the remaining 6 {six) villages did not submit their resolution to the Sub Divisional Officer concerned. Langsymphut 2. Mawhiengbah 3. Kmawan Pongkung 4. Mawtiehbah 5. Nongdomsohpian & Nongdommawrang-kang 7. Mawiyngkut and 8. Kmawan, shall remain in the West Khasi Hills District in the year 1997-98 respectively, but the remaining 6 {six) villages did not submit their resolution to the Sub Divisional Officer concerned. The Govt also constituted a Committee vide order No. HPL 229/91/200 dated 1.4.97 to examine the matter and the said Committee so constituted examined the matter in detail and observed that certain principles were followed at the time of creation of District/Sub Division in the State which in brief is that the boundaries of each District/Sub Division be co-terminus with the existing boundaries of traditional administrative institution, like Syiemship, Dolloiship etc, and in the instant case all the 14 villages fall under Maharram Syiemship which is situated wholly in the West Khasi Hills, and if these 14 villages are transferred to East Khasi Hills, it will create severe dislocation of the administrative machinery especially in the area of Health, Public Distribution System etc. The petitioner went on to contend that the Joint Action Committee also submitted representations to the Chief Minister of Meghalaya on several occasions and while the matter is/was pending, the petitioner and all the villagers concerned were shocked when a news report/item appeared in the 'Shillong Times' dated 4.10.99 and the local Khasi Daily 'Mawphor', wherein it was reported that the Cabinet had given a go ahead for bringing these 14 villages, under East Khasi Hills, and in another news report appearing in the 'Shiliong Times' dated 12.10.99, it was reported that the Govt had transferred 14 villages to East Khasi Hills District, and the petitioner having no alternative, approached this Court for redressal of his grievances with this writ petition. 3. 3. The respondent Nos 1,2,3 and 4, resisted the petition filed by me petitioner by contending inter alia that the Govt had received petitions from groups of people of the Raid Saw Symper of Maharram Syiemship (West Khasi Hills) to transfer the said 14 villages from West Khasi Hills District to East Khasi Hills District on the ground of the difficulties faced by the people of Saw Symper area in going to and coming from Nongstoin, the Head Quarter of West Khasi Hills District inasmuch as, the average distance from Weilei to Nongstoin is 72 KMs and from Weilei to Shillong is about 45 KMs and there is no daily transport facilities from Weilei to Nongstoin and back, but there is a daily transport facilities from Weilei to Shillong and back and as such, attending official works, visits to Nongstoin, District Head Quarter of West Khasi Hills District, people had to go first to Shillong and halt for one night at Shillong and then leave Shillong for Nongstoin and return to Weilei via Shillong again on the next day. Thus, it used to take at least 3 (three) days journey for attending work/official visits at Nongstoin and the people of Weilei area had to spend a lot of money and time which the poor people of the said 14 villages can hardly afford it. Apart from it, the Deputy Commissioner of West Khasi Hills District had also recommended to the proposal of transfer of these 14 villages from West Khasi Hills District to East Khasi Hills District specially for administrative conveniences as such, the State Govt had examined the matter and accordingly the policy decision was taken by the Cabinet to transfer the 14 villages of Saw Symper area from West Khasi Hills District to East Khasi Hills District, under the related notification vide, notification No. HPL 256/93/264 dated 1.10.99 as in Annexure Al to the counter affidavit and the validity of this notification dated 1.10.99 was not challenged and questioned by the petitioner. It is also the case of the respondent that no supporting documents are filed or annexed to this writ petition to substantiate the statement of the petitioner that he is the Secretary of the Joint Action Committee and that he has been authorised by the other Headman of the villages for filing this writ petition. It is also the case of the respondent that no supporting documents are filed or annexed to this writ petition to substantiate the statement of the petitioner that he is the Secretary of the Joint Action Committee and that he has been authorised by the other Headman of the villages for filing this writ petition. The respondents also urged that the petitioner has taken into consideration only the distance of these villages from the Sub Divisional Head Quarter i.e Mawkyrwat and not from the District Head Quarter Nongstoin where the people has to visit for various works relating to Court cases, schemes etc, and that the said policy decision was taken after taking into consideration of various representations received from different groups of people and for a more effective better administration the policy decision was taken and as such the petitioner has no fundamental or legal right to claim that these 14 villages should remain in a particular district his/their choice as the Govt had duly acted for the best interest of the people at large and in particular the people of the said area concerned 4. Mr. HS Thangkhiew, learned counsel appearing for the petitioner further submitted that the transfer of 14 villages of Raid Symper from West Khasi Hills District to East Khasi Hills District is against the mandates of the related Cabinet Memorandum issued in the year 1993 which laid down certain principles that the Govt should adhere of the earlier principles laid down by it while dealing with such matter of transfer of villages in order to avoid frequent change of District and Sub Divisional boundaries. According to the learned counsel, the impugned order pertaining to the transfer of these 14 villages is violative of the Article 14 h of the Constitution inasmuch as it causes a great inconvenience to the villagers of the said 8 villages and, apart from it, the action of the State-respondents is malafide and arbitrary arid the decision is not a right decision nor a reasoned order and, as such, a judicial review of it is called for. Supporting the case of the petitioner, Mr. Supporting the case of the petitioner, Mr. HS Thang view, learned counsel had relied upon certain decisions of the Apex Court reported in (1999) 1 SCC 759 , (1999) 7 SCC 89 , (1999) 4 SCC 117, (1995) 7 SCC 463 and submitted that even though the administrative instructions and the related office memorandum or policy decision has no legal force in other words, not a statue, it should be fair and just, and rather, it should be reasonable one and, if there is infirmity in the decision making process of it, the Court can exercise its extra ordinary power of judicial review and can quash it; and here in the instant case also there is infirmity in the decision making process and, as such, the impugned order pertaining to the transfer of 14 villages from West Khasi Hills District to East Khasi Hills District should be quashed. 5. At the hearing, Mr. VK Jindal, learned counsel for the respondents submitted that the petitioner has no locus standi to represent the villagers of the said 8 villagers as there is no proper representation before this Court as required under Order 1 Rule 8 of the CPC and,, moreover, no legal right has been taken away by the State-respondent while passing the impugned order and, as such, there is no infirmity in the impugned decision/order made by the State-respondents concerned. Similarly, Mr. GS Massar, learned senior counsel assisted by Mr. AS Siddique, learned counsel for the intervenor i.e Dorbar Saw Symper, Maharram Syiemship submitted that even assuming but no admitting that the competent authority defied or violates the above earlier administrative instructions; if the subsequent action of the authority is reasonable and it is for the general public convenience and importance, such subsequent action and decision made by the authority should not be disturbed and interfered with by this Court while exercising its extra ordinary power under Article 226 of the Constitution of India. Supporting his case, Mr. GS Massar, learned senior counsel relied upon the decision of the Apex Court rendered in the case of JR Raghupathy & others vs. State of AP & others reported in AIR 1988 SC 1681 and also the decision rendered in the case of Asif Hameed & others vs. State of Jammu and Kashmir & others reported in AIR 1989 SC 1899 . The learned senior counsel also submitted that it is for the general public convenience that the said 14 villages have been transferred from West Khasi Hills District to East Khasi Hills District under a decision of the Govt vide, notification dated 1.10.99 as in Annexure D to the petition filed by the intervenor. 6. Mr. HS Thangkhiew, learned counsel further submitted that the intervenor has no locus as they have no jurisdiction and power to extend time as per related Govt office order dated 24.5.2000 issued by the Khasi Hills Autonomous District Council, Shillong. Supporting his submission, Mr. HS Thangkhiew, learned counsel had produced a copy of the related order of 24.5.2000 which is hereby formed as part of the record and marked as 'X' for identification. This contention of Mr. HS Thangkhiew learned counsel is vehemently opposed by Mr. GS Massar, learned senior counsel for the intervenor. 7. Now this Court is to see and examine as to whether the present writ petitioner has enforceable legal rights or not in the instant case, and, whether the impugned policy decision taken by the State-respondents for transfer of the said 14 villages from West Khasi Hills District to East Khasi Hills District and the subsequent Govt order/notification dated 1.10 99 transferring the said 14 villages a to East Khasi Hills District as in Annexure A I to the affidavit in opposition of respondent Nos 1 to 4, is arbitrary, discriminatory or violative to the related Constitutional mandates particularly Article 14 of the Constitution or not. 8. 8. The writ petitioner stated that he is the Secretary of the said Joint Action Committee and he has been authorised by the Headman concerned for filing the , present writ petition, but a bare perusal of the available materials on record shows that there is no supporting document for enabling the present writ petitioner to represent all the villagers of the said 14 villages including the Headman in filing this writ petition and, there is also no application seeking permission from the end of this Court for enabling the petitioner to sue/file the present writ petition for and on behalf of all the villagers of the said 14 villages in the matter as c required under Order 1 Rule 8 of the CPC, the spirit of it is followed by a writ Court, and, apart from it, the petitioner could not produce any documentary evidence or related orders or resolution of other 6 (six) villages out of the said 14 villages objecting the impugned policy decision. 9. It is true that administrative action or a Govt policy decision should be fair and just and the same should not be arbitrary, and, a public body invested with statutory power or convention or practice must take care not to exceed or abuse its power and, it must keep within the limits of the authority committed to it and, it must act in good faith and reasonably. 10. In the instant case, the State respondents had examined the related matters pertaining to the transfer of the said 14 villages from West Khasi Hills District to East Khasi Hills District on the basis of the recommendation made by the Deputy Commissioner of West Khasi Hills District, and, apart from it, the State respondents had also examined the representations submitted by the people concerned and the State-respondents found that people of Saw Symper area have been facing certain difficulties in going to and coming from Nongstoin the Head Quarter of West Khasi Hills District as highlighted in paragraphs 4,10,12, 13 and 14 of the affidavit-in-opposition of the respondent Nos 1 and 4. 11. 11. According to me, the State Govt had considered the need for transferring of Saw Symper area from West Khasi Hills District to East Khasi Hills District for which a related notification was issued on 1.10.99 as in Annexure Al to the affidavit-opposition of respondent Nos 1 to 4 and the said notification dated 1.10.99 (Annexure A1) to the counter affidavit, the validity of it is questioned by the writ petitioner. A bare perusal of the said notification dated 1.10.99 shows that the transferring of the said 14 villages was made for administrative conveniences and better administration (emphasis given) and not for other oblique purpose. 12. Even though there is/was earlier Cabinet Memorandum as in Annexure A10 to the writ petition and the principles laid down therein (earlier memorandum) should be adhered to in dealing with the related matters to avoid frequent changes of Districts and Sub Divisional boundaries, and the existence and creation of a legitimate expectation of it (earlier decision) such policy decision can be changed by the decision makers in the public interest and such subsequent policy should be a reasonable one according to Wednesbury principles. At this stage, I, hereby recall a decision of the Apex Court rendered in Punjab Communication Ltd vs Union of India & others reported in (1999) 4 SCC 727 . However, it is made clear that the Court can strike down an executive order or even a policy decision based on irrelevant reasons. In the instant case reasons has assigned for making the said policy decision and for issuing the related notification dated 1.10.99 by the State-respondents in their related affidavit-in-opposition as discussed above. In my considered view, the said policy decision and that of the notification dated 1.10.99 as in Annexure Al to the affidavit-in-opposition regarding the transfer of the said 14 villages from West Garo Hills District to East Khasi Hills District is quite rational and reasonable, and a reasonable man/ person will accept it and the same cannot be treated as arbitrary. While dealing with the question of reasonableness or arbitrariness with regard to administrative action, the Supreme Court in Om Kumar & others vs Union of India, reported in 2000 AIR SCW 4361 made the following order and observations : "It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority. But where, an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary case are challenged), the question will be whether the administrative order is rational' or 'reasonable' and the test then is the Wednesbury test. The Court would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or whether his view is one which no reasonable person could have taken if his action does not satisfy these rules it is to be treated arbitrary (In GB Mahajanvs. Jalgaon Municipal Council (1991)3 SCC 91 at p. Ill: ( AIR 1991 SC 1153 at p 1165), Venkatachaliah, J (as he then was) pointed out that 'reasonableness' of the Administrator under Article 14 in the context of Administrative Law has to be judged from the stand point of Wednesbury rules. In Tataa Uidar vs. Union of India (1994)6 SCC 651 at Pp 679-680:(1994 AIR SCW 3344 and at P 3369-70 : AIR 1996 SC 11 ); in Indian Express Newspapers vs. Union of India, (1985) 1 SCC 641 at P691: (AIR 1986 SC 515 at Pp 542-43); Supreme Court Employees Welfare Association vs. Union of India, (1989)4 SCC 187 at Pp 241: ( AIR 1990 SC 334 at Pp 368:1990 Lab 1C 324 at p 358 and UP Financial Corporation vs. GEM CAP (India) Pvt Ltd, (1993) 2 SCC 299 , at P 307; (1993 AIR SCW 1189 at P1195: AIR 1993 SC 1435 at p 1439), while judging whether the administrative action is arbitrary under Article 14 (i.e otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always. Thus, when administrative action is attacked as discriminatory under Article 14 the principles of primary review is for the Courts by applying proportionality. However where administrative action is questioned as arbitrary under Article 14 the principle of review based on Wednesbury principles applies." 13. Applying these established principles of law mentioned above and also considering the existing facts and circumstances of the case, I am of the view that there is no infirmity in the related notification dated 1.10.99 as in Annexure A/1 to the affidavit-in-opposition of respondents 1 to 4 relating to the transfer of , 14 villages of Raid Saw Symper of Maharram Syiemship in Mawkyrwat Civil Sub-Division from West Khasi Hills District to East Khasi Hills District. 14. For the reasons, observations and discussions made above, I am also of the view that this writ petition is devoid of merit and accordingly it is dismissed but, no order as to costs.