Suleiman vs The State of Meghalaya

T. Nandakumar Singh, J.—Heard Ms. R Dutta, Advocate for the petitioner. Also heard Mr. KP Bhattacharjee, Govt. Advocate, for respondent No. 1, Mr. SP Mahanta, Senior Advocate, assisted by Ms. Suniti Rai, Advocate, for respondent No. 2. None appears for respondent No. 3 inspite of proper service of notice to him.

The relief sought for in the present writ petition is for a direction to the respondents to initiate proceeding/action for removal of all structures erected by respondent No. 3 over Haji Elahi Baksh Wakf Estate at Sweeper Lane Bara Bazar, Shillong.

It appears from the pleadings in the present writ petition that there was a dispute regarding Mutawali of the Haji Elahi Baksh Wakf Estate, Shillong. It is also stated in the writ petitioner that the petitioner was appointed as Mutawali by the Meghalaya Wakf Tribunal vide judgment and order dated 19.07.2006, passed in the Wakf Case No. 1 of 2002, which was upheld by the Gauhati High Court, Shillong Bench as well as by the Hon''ble Supreme Court of India.

The Haji Baksh Wakf Estate comprises of several landed properties in Shillong and the landed property measuring 7488 sq. ft. covered by Patta No. 8 of 2006 granted by the Syiem of Mylliem in durbar, Shillong and covered by Municipal Holding No. 3 and Ward No. 17, South East Mawkhar, situated at Sweeper Lane, Bara Bazar, Shillong is one of the wakf properties under the said Wakf Estate. It is stated in the writ petition that the respondent No. 3 was allowed to construct a temporary structure in the said Municipal Holding No. 3 and Ward No. 17 with the undertaking that as and when required, the respondent No. 3 shall remove the said temporary structure. Copy of the undertaking made by the respondent No. 3 dated 25.06.1990 is available at Annexure 7 to the writ petition. After the case regarding appointment of Mutawalli had been decided by the High Court, and affirmed by the Apex Court, the Secretary, Meghalaya Urban Development Authority, Shillong under his letter dated 06.05.2003 directed the respondent No. 3 to remove the said temporary structures as per undertaking made by him in view of the judgment and order of the High Court dated 10.04.2002. Copy of the said letter dated 06.05.2003 is available at Annexure 9 to the writ petition which reads as follows:

"MEGHALAYA URBAN DEVELOPMENT AUTHORITY, SHILLONG No. MUDA, 188/731/2002-04/Dated Shillong, 6.5.2003

To

Md Taiyab C/o Sagar Footwear, Jivan Complex, GS Road, Shillong-2

Subject: Demolition of temporary structure.

Sir,

You are hereby directed to remove the temporary shed, located at Municipal Holding No. 3, Ward No. 17 (SE Mawkhar) within 7(seven) days from the receipt of this letter. This has a reference to your undertaking dated 25.06.1990 (copy enclosed). This also has a reference in view of the judgment and order dated 10.04.2002 passed by the Hon''ble Gauhati High Court, Shillong Bench.

Yours faithfully, Sd/- Secretary Meghalaya Urban Development Authority, Shillong."

The respondent No. 3, inspite of giving opportunity of filing affidavit, had not filed affidavit-in-opposition in the present writ petition. The order of this Court dated 25.07.2014 passed in the present writ petition reads as follows:

"25.07.2014

There is a long chequered history in filing the present writ petition. Both the parties had even approached the Apex Court two times for the issue as to who is the Mutawali of the Haji Elahi Wakf Estate. It is further stated in the writ petition that the Apex Court had decided the case in favour of the petitioner two times. The present case relates with the temporary shed constructed by the respondent No. 3 with the undertaking to remove the temporary shed located at Municipal Holding No. 3 of South East Mawkhar Ward No. 17 as and when required. The Shillong Development Authority now Meghalaya Urban Development Authority had issued an order to the respondent No. 3 to remove the temporary shed as per the undertaking given by the respondent No. 3.

It appears from the record that the respondent No. 3 has not filed the affidavit-in-opposition for the last six months. But for the ends of justice, further three weeks'' time is granted as a last chance for filing affidavit-in-opposition. It is made clear that if the respondent No. 3 fails to file the affidavit-in-opposition within the period indicated above, this writ petition shall be considered and decided on the materials available on record.

List this case on 18.08.2014".

It is well settled law that if the assertions made by the petitioner in the writ petition are not controverted by filing affidavit-in-opposition by the respondents, it shall be presumed that the respondents had admitted the assertions made by the writ petitioner in the writ petition. In the present case, respondent No. 3 had refused to file affidavit-in-opposition.

In the above circumstances, after taking into consideration the submissions of the learned counsel for the parties, this court has no alternative except to grant relief as sought for in the present writ petition. Accordingly, respondent No. 3 has to remove the said temporary structures constructed on the Municipal Holding No. 3 and Ward No. 17 within seven days from the date of receipt of certified copy of this judgment and order. It is also made clear that if the respondent No. 3 fails to remove the said temporary structure within the stipulated period indicated above, the Meghalaya Urban Development Authority, Shillong is at liberty to take all necessary steps to remove the said temporary structure.

With the above observations and directions, this writ petition is allowed.