Shillong Cantonment Board vs State of Meghalaya

Mr. Dinesh Maheshwari, C.J.(Oral) - The petitioners, Shillong Cantonment Board established under the Cantonments Act, 2006 and its Chief Executive Officer, have filed this writ petition essentially stating the grievance against the purported application of the Meghalaya Building Bye-laws, 2011 over the Shillong Cantonment areas under the impugned Notification dated 23.01.2016.

It is submitted that in exercise of the powers conferred under Section 74 of the Meghalaya Town and Country Planning Act, 1973, the Government of Meghalaya had enacted the Meghalaya Building Bye-laws, 2011, which were sought to be extended to the Shillong Cantonment area by a Notification dated 05.08.2015 but, such a Notification was withdrawn on 05.11.2015; but now, by the impugned Notification dated 23.01.2016, the said Bye-laws, 2011 are again sought to be extended to the Shillong Cantonment area.

It is contended that extending of the provisions of the Bye-laws of 2011 to the areas under the jurisdiction of the Shillong Cantonment Board would result in direct overlapping of the State Law and Union Law i.e., the Meghalaya Town and Country Planning Act, 1973 and the Cantonments Act, 2006. It is submitted that the Cantonments Act, 2006 itself provides for building regulations within the cantonment areas; and in fact, within such cantonment areas, only the building regulations framed under the Cantonments Act, 2006 could apply.

With the submissions aforesaid, it is prayed in this writ petition that Clause 1.2 of the Bye-laws, 2011 and the Notification dated 23.01.2016 be declared invalid and be quashed as being repugnant to the provisions of the Cantonments Act, 2006; and that by a writ of mandamus, the respondents be directed to exclude the areas under the jurisdiction of the petitioner-Shillong Cantonment Board from the ambit of the Shillong Master Plan and the Bye-laws of 2011.

Not much of dilatation appears requisite on the issues sought to be raised in this writ petition in view of the stand of the respondents i.e., the Government of Meghalaya as also the Meghalaya Urban Development Authority, who have essentially endorsed and accepted the submissions made by the petitioners. The position and stand of the Meghalaya Urban Development Authority has been made clear in the affidavit filed on its behalf in the following:-

"5. That at the very outset, the answering respondent no.3 states that the Meghalaya Building Bye-laws 2001 was notified vide government Notification No. UAU.64/93/535, dated 13.12.2001 under Section 74 of the Meghalaya Town and Country Planning (MTCP) Act 1973 as amended. The Meghalaya Building Bye Laws, 2001 was made applicable to all urban areas within the State as per Section A sub-section 1.2 of Meghalaya Building Bye Laws, 2001. That thereafter, during 2011, the Government notified the new Bye Laws namely Meghalaya Building Byelaws 2011 vide Government notification No. UAU.118/2010/pt./3 dated 21.03.2011. That the Meghalaya Building Bye Laws 2011 was made to apply to all Master Plan areas and scheme areas notified and to be notified by the Government from time to time as per Section A Sub-Section 1.2 of the Meghalaya Building Bye Laws 2011. It is pertinent to point out that the Cantonment area is a part of Shillong Master Plan area. However, since the Cantonment Board have formulated their own Building Bye Laws under Cantonment Act, 1924, as such, there will be overlapping applicability of the Meghalaya Building Bye Laws 2011 and the Cantonment Board Building Bye Laws. That in this scenario, there is a requirement for the State Government to exempt the operation of the Meghalaya Building Bye Laws, 2011 in the Cantonment Area of Shillong and there is a requirement to modify the Notification of the Secretary, Meghalaya Urban Development Authority, dated 23.01.2016, in order to avoid overlapping of the building bye-laws within the cantonment areas, Shillong."

The Government of Meghalaya, on its part, has also agreed on the submissions made on behalf of the petitioners; and it is categorically stated in the affidavit filed on behalf of the Government that,-

"With regard to the statements made in paragraph No.13, 14 and 15 of the writ petition answering respondent beg to state that as stated earlier Cantonment area is a part of Shillong Master Plan. However, since Cantonment Board have its own Building Bye-laws framed under the Cantonment Act (As amended up to date) hence, there will be overlapping of the Meghalaya Building Bye-laws 2011 and Cantonment Board Building Bye-laws. Accordingly the State Government agrees to exempt the operation of the Meghalaya Building Bye-laws 2011, in the Cantonment Area of Shillong and to modify the notification of Secretary, Meghalaya Urban Development Authority dated 23.1.2016."

Thus, it is an admitted position of the respondents, and that prima facie appears to be a valid stand in law, that the cantonment area of Shillong is to be governed by the regulations framed by the petitioner-Shillong Cantonment Board under the Cantonments Act, 2006; and any attempt to apply the Meghalaya Building Bye-laws, 2011 would result in unacceptable overlapping of the laws on the same subject in the area in question. The area in question being governed by the Cantonments Act, 2006, it would be just and proper on the part of the Government of Meghalaya that the Notification dated 23.01.2016 be modified without delay so as to avoid such overlapping of the building Regulations/Bye-laws within the cantonment area.

In our view, the observations foregoing, coupled with the admitted stand of the respondents, in the ultimate result, lead to the redressal of the legal grievance of the petitioners; and nothing further of any grievance of the petitioners could be considered subsisting, so far this writ petition is concerned.

Accordingly, this writ petition stands disposed of with the observations foregoing.

No costs.