THE HIGH COURT OF MEGHALAYA

WA. No. 18 of 2005

(Old No. 157/2004)

Young Men Christian Association, represented by Secretary Ferndale, Shillong – 793001.

....Appellant/Respondent No.6 in writ petition.

-Versus-

1. Holy Mother of Aurobindo Ashram of Pondicherry, represented by Aurobindo Institute of Indian Culture, Bivar Road, Shillong.

....Respondent/Writ Petitioner.

• 2. State of Meghalaya, represented by Commissioner & Secretary, Revenue Department, Govt. of Meghalaya, Shillong.
• 3. Deputy Commissioner (Revenue), East Khasi Hills District, Shillong.
• 4. Meghalaya Board of Revenue, represented by Chairman, Board of Revenue, Shillong.

...Respondents.

5. Young Women Christian Association, represented by its Secretary Mawkhar, Shillong

...Proforma Respondent.

Shri S. Chakravarty, Advocate, present for the appellant. Shri V.K.Jindal, Senior Advocate, assisted by Shri S. Jindal, Advocate, present for the respondent No.1. Shri N.D.Chullai, Senior Govt. Advocate, present for respondents No. 2, 3 and 4. Ms. A. Thangkhiew, Advocate, present for respondent No. 5.

Date of Hearing 7^th October, 2013 Date of Judgment & Order 21^st October, 2013 HON'BLE THE CHIEF JUSTICE, and HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH

JUDGMENT AND ORDER

ORAL: Hon'ble Chief Justice, Prafulla. C. Pant,

This writ appeal is directed against the Judgment and Order dated 3- 10-2000 passed by the Learned Single Judge in the writ petition registered as Civil Rule No. 113(SH) of 1998 and Order dated 6-1-2004 passed on Review Petition No. 4(SH) of 2002. Earlier, this Writ Appeal was decided on 23-9-2009. However, the said order was set aside by the Apex Court vide its order dated 19-10-2012 passed in Civil Appeal No. 7601 of 2012 and Civil Appeal No. 7602 of 2012, and the matter was remanded for fresh decision of the Writ Appeal on merits not only against the review order but also against the main order dated 3-10-2000 passed in the writ petition.

2. Heard learned counsel for the parties at length and perused the papers in record.

3. This case has a chequered history. Brief facts of the case are that the writ petitioner, Holy Mother of Aurobindo Ashram, represented by Shri Aurobindo Institute of Indian Culture, Shillong filed the writ petition No. 113(SH) of 1998 with the pleading that plot No. 5 and 5A of lease hold land known as Morven Estate situated behind Raj Bhavan, Shillong was owned by one S.M. Maitra, a Philanthropist of Calcutta who gifted the entire land to Holy Mother of Aurobindo Ashram, Pondicherry on 20th April, 1955. It is also stated in the writ petition that plot No. 5 was originally leased out to one Edmond Harrison (wrongly mentioned as H.M.Hadow) for a period of 99 years with effect from 1-9-1865 vide lease agreement dated 8-3-1875 (Annexure V to the writ petition), and after changing hands several times, finally it came to S.N.Maitra in 1949 before the same stood transferred in the name of the writ petitioner in 1955. It is also pleaded in the writ petition that as per the mutation record and the original lease, boundaries of plot No. 5 are shown as under:

North: Drainage East: Drainage

South:Drainage

West: Government Road.

4. In the survey map prepared in 1963-1964 after survey of European Ward, Shillong, the plot owned by the writ petitioner was re-numbered as plot No. 24. After expiry of the lease of 99 years, an application was made by the writ petitioner for renewal of the lease, to the Deputy Commissioner, United Khasi Jaintia Hills District, Shillong on 3-8-1967 in response to which the State of Meghalaya vide its letter dated 2-1-1976 conveyed to the writ petitioner that it has decided to renew the lease for a further period of 75 years from the date of expiry of the lease. However, it is stated that the State government did not formally renew the lease, and allotted a part of the Morven Estate to Young Men Christian Association (for short YMCA, which is the appellant) and to Young Women Christian Association (for short YWMC, which is the respondent No. 5 in this appeal).

5. It is alleged by the writ petitioner that the 2(two) lease were granted illegally to YMCA and YWCA, against which several representations were made to the State Government between 1995 and 1998. It is also pleaded in the writ petition that Aurobindo Institute of Indian Culture came to know about the lease of land in favour of the YMCA and YWCA only in 1995. However, it is admitted in para 7 of the writ petition that the writ petitioner allowed YWCA, which is a social organisation to use a small portion of the land in question. It is also alleged by the writ petitioner that the order dated 20-7-1998 (copy Annexure VII to the writ petition) by which the representation of the writ petitioner was disposed of by the State Government is arbitrary and against the principles of natural justice. It is further stated that the writ petitioner filed an appeal before the Board of Revenue, Meghalaya, which was rejected vide order dated 28-8-1998 (copy Annexure VIII to the writ petition). It is pleaded in the writ petition that the land said to have been allotted to YMCA and YWCA out of the vacant waste land as mentioned in the impugned order dated 20-7-1998 is inconsistent to another para of the said order with the severance of the land settled with YMCA and YWCA has been done in accordance with the terms of the lease agreement. It is also pleaded by the writ petitioner that the State Government has erred in law in relying on the area of the plot in acres of which lease was executed on 18-3-1875 as against the area shown by the boundaries of the land leased out in 1865. It is also alleged in the writ petition that the State Government has wrongly rejected the claim of the writ petitioner on the ground that for 20 years allotment of land to YMCA and YWCA was not challenged by him, particularly when the allotment was not done in accordance with the established procedure of law. With these pleadings, the writ petitioner sought quashing of the order dated 20th July 1998 (copy Annexure VII) passed by State Government, and the allotment order dated 28th September, 1976 (copy Annexure VI to the writ petition) in favour of the YMCA and YWCA allegedly from the land constituting the Morven Property. A mandamus has also been sought by the writ petitioner for issuance of renewance of lease in terms of letter dated 2nd January, 1976 (copy Annexure V to the writ petition).

6. On behalf of respondent No. 1 and 2 (in the writ petition) a counter affidavit was filed by respondent No. 2 and it is admitted that the plot No. 5 measuring 2(two) acres of land used to be known as "Morven" along with site No. 5-A which were mutated in the name of Aurobindo Ashram of Pondicherry on 24th April, 1956, but it is denied that the writ petitioners were in possession of whole of plot No. 5 and 5-A, it is specifically stated that in

eighties and nineties, the property of Shri Aurobindo Ashram was left in a state of abandonment by the Ashram authorities. This encouraged some encroachers to raise constructions, some 3 pucca buildings and 29 sheds were constructed on plot No. 5 and 5-A by the encroachers against which demolition operations were carried out due to which the encroachers approached the High Court against the demolition operations by filing Civil Rule No. 1283 of 1994, but the said case was dismissed by the High Court vide its order dated 13th June, 1996. As to the boundaries mentioned in the Lease Deed dated 8th March, 1875, it is stated that though the boundaries mentioned in the Lease Deed show "drainage" in North, South and East, but the drainage indicates temporary aqueduct of drain and after 120 years, no one can expect to trace such drainages. It is further stated that from the Lease Deed, it is clear that land measuring 2(two) acres of plot No. 5 was leased to the original lease holder in respect of which the government has already decided to extend the lease in favour of the writ petitioner for another period of 75 years after expiry of lease of 99 years. In the counter affidavit of respondent No.2, it has been further stated that the actual land allotted to YMCA and YWCA is the waste land lying in the vicinity of plot No. 5 i.e. "Morven". It is further stated in the counter affidavit that neither the area of Morven belonging to the writ petitioner was reduced nor deminished by the impugned allotment order. It is also stated that YMCA and YWCA took possession of the land allotted to them in the year 1976, and after 19 years in 1995, the writ petitioner approached the government for removal of their possession. As to the authority of respondent No. 2 of the writ petition, to pass the order dated 20th July, 1998 by which the representation of the writ petitioner was rejected, it is stated that the respondent No. 2 being the Commissioner & Secretary, Revenue of the State Government was competent to pass the order under Section 122 of the Assam Land and Revenue Regulation 1886 as adopted by the State of Meghalaya. It is also

pointed out in the counter affidavit that the appellate authority of respondent No. 2 of the writ petition, was the Board of Revenue under Section 147 of above mentioned Regulation of 1886 (before whom the writ petitioner filed the appeal which was dismissed).

7. Respondent No. 6 of the writ petition (YWCA) filed its counter affidavit in which it is stated that it cannot be said that "Morven Property" and "Morven Estate" are the same property. Defending the allotment made to YWCA, it is stated that the same was made in accordance with law and the possession of the land allotted was handed over to it on 8th October, 1976. It is further stated in the counter affidavit of YWCA that the writ petitioner started challenging the allotment order only in 1995 (after 19 years of allotment). It is further stated that the writ petitioner was aware of the allotment of land as YWCA had already started construction in the land allotted to it in 1977. Lastly, it is stated that the land allotted to it is not part of the land belonging to the writ petitioner.

8. Respondent No. 5 of the writ petition (present appellant) YMCA filed its separate counter affidavit before the Learned Single Judge in which it was stated that the land known as "Morven Property" is a government land, while the land known as "Morven Estate" was the land held by the writ petitioner. Like YWCA, YMCA also pleaded in their counter affidavit that the allotment of land to it, made in 1976 suffers from no illegality. It is also pleaded that in terms of the lease agreement, YMCA has deposited the land revenue and the map of the land allotted has also been demarcated and surveyed. Claiming that the possession of the answering respondent is lawful, it is stated that infact YMCA and YWCA have been shown as immediate neighbours of the writ petitioner by the writ petitioner himself in his building plans submitted by him in the year 1996 to the authorities concerned. It is also pleaded by respondent No. 5 that only in 1998, the writ

petitioner raised objections to the construction of boundary wall by YMCA over the land in dispute.

9. In the rejoinder affidavits filed by the writ petitioner to the counter affidavits filed on behalf of the respondent, in substance, the pleas taken in the writ petition are reiterated.

10. The Learned Single Judge, after hearing the parties, in the impugned judgment and order dated 3-10-2000, observed that in the allotment made in favour of YMCA and YWCA, the State authorities did not follow the rules governing the field. It further observed that as to the area shown in acres and boundaries in the Lease Deed dated 18-3-1875, as per the settled principle of law, the boundaries mentioned in the Lease Deed are to prevail to identify the actual land leased to the predecessor in title of the writ petitioner. Consequently, the Learned Single Judge set aside the impugned order dated 20-7-1998 passed by respondent No. 2 and directed that in pursuance to order dated 2-1-1976 (copy Annexure V) renewal of lease in favour of the writ petitioner be issued. Alternatively, the Learned Single Judge directed the State authorities to take recourse of regulation 43, 44, 45 of regulation applicable to the case. In the concluding para of order dated 3-10-2000, the Learned Single Judge directed that the possession of the private respondents over the portion of land shall not be disturbed.

11. By the review order dated 6-1-2004, clarifying the concluding para of the impugned judgment and order dated 3-10-2000, Learned Single Judge observed that the words "respondents" mentioned in para 23 would cover only YWCA and not the other parties.

12. It appears that the above order passed on Review Application gave cause of action to the appellant, YMCA to file the present writ appeal which is filed not only against Review Order but also against the Main Order dated 3-10-2000. Earlier, the Division Bench vide its order dated 23-9-2009 dismissed the writ appeal after discussing the review order dated 6-1-2004 passed by the Learned Single Judge treating that the main judgment and order dated 3-10-2000 stood merged in the review order, and that there was no writ appeal against the main order dated 3-10-2000 passed by the Learned Single Judge. Respondent No. 6 of the writ petition (present appellant) appears to have filed a review application in this writ appeal before the Division Bench which was also dismissed vide order dated 16-6- 2011. Aggrieved by the order dated 23-9-2009 passed in this appeal and review order dated 16-6-2011, YMCA (appellant/respondent No.5 in the writ petition) filed special leave petition (Civil) No. 26640 and 26641 of 2011 before the Apex Court on the basis of which Civil Appeal No. 7601-7602 of 2012 were registered, and the Hon'ble Supreme Court vide its order dated 19-10-2012 remanded the matter for fresh decision observing that the writ appeal was not only against the review order dated 6-1-2004, but also against the main order dated 3-10-2000 passed by the Learned Single Judge in writ petition No. 113 (SH) of 1998.

13. Before further discussion, we think just and proper to quote the order dated 20-7-1998 (copy as Annexure VII to the writ petition) passed by respondent No. 2 to the writ petition which is sought to be quashed by the writ petitioner in the writ petition. The said order reads as under:

"GOVERNMENT OF MEGHALAYA REVENUE DEPARTMENT

IN THE MATTER OF

Representation by Shri Aurobindo Institute of Indian Culture, Shillong regarding the Sri Aurobindo Ashram"s land at Bivar Road, Shillong.

Date Order Signature

20.7.98 Seen the letters dated 1st July, 1996, 29th July, 1996 and 30th April, 1998 fromDr. B.B.Dutta (Chairman) and others(Trustees) Sri Aurobindo Institute

of Indian Culture, Shillong for renewal of lease of the land held by Sri Aurobindo Ashram at Bivar Road, Shillong and regarding the proposed laying of foundation Stone on the said land by the President of India for the new building complex of the Institute. Also seen the letter dt. 19th August, 1996 from Shri Manas Choudhury, Managing Trustee of the Institute objecting to the proposed survey and demarcation of the said land.

2. Dr B.B.Dutta, Chairman, the Trustee, and, Shri Manas Choudhury, Managing Trustee of the said Institute have by their letters aforesaid moved the State Government for-

(i) renewal of lease of the land known as "Morven Property" held by Sri Aurobindo Ashram;

(ii) cancellation of the allotment of a part of the Property leased out earlier to YMCA and inclusion of that part with the area held by the Ashram;

(iii) keeping in abeyance the proposed survey and demarcation of the Property and maintenance of Status Quo to allow Revenue Department to

rectify the order of 28th June, 1976 by cancelling the allotment to YMCA; and

(iv) arranging a visit of the President of India to Shillong for laying the Foundation Stone of the new building Complex of the Institute in the said property.

3. The matter has been duly considered and thoroughly examined. Relevant papers/documents were also called from the Deputy Commissioner. Before going into the above issues raised by the petitioners, I would like first of all to state the facts of the case in order to have a better appreciation of the position of the matter and the contentions made by the petitioners.

4. The property comprises of 2 plots viz:- Lot No.5 and Site No. 5A. Lot No. 5 known as "Morven Property" measuring an area of 2 acres was leased out to one Mr. Edmund Harrison w.e.f. 1st September, 1865 as per lease Deed of 8.3.1875 for a period of 99 years which has already been expired. Government after due consideration had agreed for renewal of the Lease for a period of 75 years w.e.f. the date of expiry and the Deputy Commissioner, Shillong vide No. RD-141/72/33,dt. 2.1.1976 was instructed to take necessary action accordingly. Site No. 5A which is contiguous to Lot No. 5 (Morven Property) with an area of 1.348 acres was leased out to one Mr. M.M.Hadow for a period of 99 years w.e.f.1.4.1906 vide lease Agreement dt. 29.10.1907. The lease for this plot will expire on 31.3.2005

5. In the course of time the property changed hands several times and with different Persons. Finally the two plots were purchased by one Mr. S.N.Maitra in March, 1949. Mr. Maitra finally donated the property to the Holy Mother of Sri Aurobindo Ashram of Pondicherry in 1955. Since then the property, comprising the two plots totaling 3.348 acres stands in the name of the Holy Mother of Sri Aurobindo Ashram of Pondicherry.

6. An area of 1.36 acres was Government"s waste land on the Southern Boundary of "Morven Property" and was lying vacant which is claimed by the Ashram to be part of their property. During 1976 Government allotted this plot to 2(two) organizations viz:- YMCA and YWCA without effecting area of the "Morven Property", while allotting the vacant plots to the YMCA and the YWCA, due care was taken not to take any part of the area standing in the name of the Holy Mother of Shri Aurobindo Ashram of Pondicherry, and thus the area 3.348 acres remains intact.

7. The YMCA was allotted a portion of the said vacant land measuring 0.69 acre (30,240 sq.feet, comprising the sub-Plot No. 5(c) (1) and sub-Plot No. 5(c) (2), which was handed over to them on 8th October, 1976. Similarly, the YWCA was allotted a portion of the vacant land measuring 0.67 acre (29,290 square feet), comprising sub-Plot No.5(b)(1) and sub-Plot 5(b)(2). The land was handed over to the YWCA on 8th October, 1976.

8. In the last few years, the property of Sri Aurobindo Ashram was left in a state of disuse and abandonment by the authorities of the Ashram. This had encouraged encroachment upon the land. One Blarin Nongkhlaw falsely claimed to be the owner of the land and sold out some plots to some gullible buyers and issued pattas to them. Some of these encroachers started raising structures on the land. As many as three pucca buildings, twenty nine sheds and one RCC building, were constructed on Plot No. 5 and Plot No. 5(A) by the encroachers. It may be relevant to point out that any construction on the land, without prior permission of Govt. was barred by a specific term in the lease. This condition was applicable even on the lease-holder on the land.

9. The Authorities of the Ashram did not make any complaint of such encroachment of the property. The Government was not therefore aware of the position and the encroachment upon the land until construction of sheds and buildings on the land was noticed. On receipt of report from Deputy Commissioner regarding the unauthorized construction, the State Govt. ordered for eviction of the encroachers and demolition of those unauthorized structures. Accordingly, the Deputy Commissioner, Shillong carried out the eviction operation and ejected all those encroachers from the land in March, 1994.

10. The encroachers moved the Gauhati High Court against the said eviction operation. The Hon"ble High Court by its interim order dated 4-4- 1994 in Civil Rule No. 1283 of 1994 directed that status quo as on 31.3.1994 be maintained. The said Civil Rule No. 1283 of 1994 was ultimately dismissed by the Hon"ble Gauhati High Court by its final order dated 13.6.1996.

11. In the meantime, the buildings of the Ashram were requisitioned on 29.3.1994 for accommodation of the C.R.P.F. personnels as per the order dated 29th March, 1994 made by the Deputy Commissioner, Shillong under section 3(1) of the Assam land (Requisition and Acquisition), Act, 1964 as adopted by Meghalaya.

12. This is the position and present standing of the matter relating to the land in question. Now going to the above issues raised by the petitioners as indicated in para 2 above.

Point No.1: Renewal of lease of the land.

The petitioners have, by their letters referred to in the opening para of this order, prayed for renewal of the lease of the land held by Sri Aurobindo Ashram for a further period of 99 years. On perusal and examination of records, it is found that the lease in respect of the land covered by Plot No. 5 and Plot No.5(A) which stands in the name of the Holy Mother of Sri Aurobindo Ashram of Pondicherry still subsists. The lease in respect of Plot No.5 will expire on 31st August of the year 2039 as per the instruction contained in this Department"s letter No. RD-141/72/33, dt.2.1.76 and that of Plot No. 5(A) on 31st March of the year 2005, as indicated in the foregoing para 4 of this order. Hence the question of further renewal of lease of the land does not arise for the present.

13.Point No.2: "Cancellation of the allotment of a part of the property to YMCA and YWCA and inclusion of that portion with the area held by the Ashram".

In their application for renewal of lease, the petitioners have also agitated on the issue of allotment of "a portion of Morven Property" to YMCA and YWCA. The petitioners claim that the portion of the property that was allotted to YMCA and YWCA is an integral part of Morven property which is held by the Ashram. They contended that the allotment of that portion of the property to YMCA and YWCA is illegal and not in accordance with law. They argued that the Government has acted illegally and arbitrarily in giving settlement of that portion of the property to the two organizations. They have therefore urged for cancellation of the allotment to the YMCA and for inclusion of that area with the parcel of the land held by the Ashram.

14. This claim and contention of the petitioners is not tenable. It is a settled principle of law that a person can claim, own, possess and occupy only that much area of land that was given to him and that he cannot lawfully claim to have a right over the area or over the land that is outside the allotted area. It is also a well settled principal of Revenue law that any area or piece of land that has not been allotted to any one remains as a Government land. It is technically known as "waste land" or land that has not been settled with any person. Such land vests absolutely with the Government.

15. The area held by the Ashram is only 3.348 acres as borne out by the record-of-rights as already mentioned in the foregoing para 4 and 5 of this order. The Ashram does not therefore have any right on title over the area outside the plot Nos. 5 and 5A. The Ashram"s right and title is confined only in respect of the area of 3.348 acres which was settled with it and for which land revenue is paid by it. The claim of the petitioners over the land outside their allotted plots, is therefore not maintainable.

16. The contention of the petitioners that the allotment of a part of the land to YMCA and YWCA is illegal, is also not maintainable in view of the above mentioned principle of Revenue Law. The Government is at liberty to give allotment of any vacant/waste land to any applicant as laid down in the land Revenue Code. The allotment to YMCA and YWCA was made by the Government out of the vacant/waste land which has nothing to do with the area of land leased out to the Ashram.

17. The severance of the excess land and allotment of the same to YMCA and YWCA is not illegal, as contended by the petitioners. The severance of the excess land was done in accordance with the terms of the lease conditions by re-adjusting the boundaries of the land. The lease agreement has specifically laid down a condition that "the Deputy Commissioner may re-adjust the Boundaries of the same (i.e. of the land) and that the orders of the Deputy Commissioner in this regard will be final. The fact that the area of the plots held by the Ashram was not reduced beyond the area mentioned in the original lease, i.e. 3.348 acres, would indicate that the Govt. has acted strictly as per law and has not acted in an illegal, arbitrary or irregular manner.

18. The allotment of the land to YMCA and YWCA was made by Govt. way back in 1976 in accordance with the procedure established by law. The allotment to the two organizations is a fait accompli and cannot be allowed to be agitated at this point of time after a lapse of more than 20 years.

19. YWCA has already utilized the land and has constructed a building and boundary wall on the land allotted to it. Hence, the question of cancellation of the allotment to YWCA does not arise as the petitioners have admitted and have rightly conceded not to press the issue. However, the petitioners have pressed for cancellation of the allotment to YMCA on the alleged illegal allotment and on the ground of non-utilisation of the land by YMCA. The contention of arbitrary and illegal allotment to YMCA is not maintainable in view of what has been discussed and observed in the foregoing paras. The allotment to the two Organisations was done in accordance with law and after following the procedures laid down in the Land Revenue Code. There is absolutely no illegality in it. Hence the question of cancellation of the allotment to YMCA and returning back the land to Sri Aurobindo Ashram does not arise in view of the fact that the portion of the land allotted to YMCA does not fall within the area of 3.348 acres held by the Ashram. Even if there is any ground for cancellation of the said allotment to YMCA, and the allotment is cancelled for any reason whatsoever, the land will revert back to the Government and not to the Ashram for the reasons indicated above both on point of law and of fact.

20. In view of the above observations, the application of the petitioners for cancellation of the allotment of that part of "Morven Property" as alleged to YMCA and returning back that portion to the Ashram is not maintainable in law as well as infact. The prayer of the petitioners for cancellation of the allotment and inclusion of that portion of the land with the area held by Sri Aurobindo Ashram is therefore rejected.

21.Point No.3: "Keeping in abeyance the proposed survey and demarcation of the property and maintenance of status quo to allow Revenue Department to rectify the order of 28th June, 1976 by cancelling the allotment to YMCA".

The legality of the allotment of the land to the two organizations, namely, YMCA and YWCA has been discussed above at length both on the point of law and on the point of facts. The allotment is found to have been made way back in 1976 in accordance with the law and there is no illegality in the said allotment. Hence there is no necessity of reviewing the allotment order of 28th June, 1976. The question of rectifying the said allotment order of 28th June, 1976 by Revenue Department cannot and does not arise at this stage.

22. As regards survey and demarcation of the property, it is considered necessary to do so in order to clearly define on the ground the boundaries of different plots held by different parties to avoid future disputes concerning the boundaries of the plots. The survey and demarcation is not meant to disturb or to interfere with the respective rights and title of the holders of the land. Rather it is meant to clearly define and demarcate on the ground the extent and limit upto and within which their right and title is recognized and enforceable. This is absolutely necessary in the interest of the landholders themselves. There is no plausible reason why the survey and demarcation of the land should be withheld or kept in abeyance as demanded by the petitioners. Maintainance of status quo, as urged by the petitioners, would not serve the interest of the parties in the long run. It will rather only complicate matters in future. If status quo is maintained and the survey and demarcation is not made it is likely to give rise to boundary disputes in future, which is not desirable.

23. In view of the above, the demand of the petitioners for keeping in abeyance the proposed survey and demarcation of the property and maintainance of status quo to allow Revenue Department to rectify the order of 28th June, 1976 by cancelling the allotment to YMCA, cannot be accepted. Their prayer is therefore rejected.

24. Point No.4:- "Arranging a visit of the President of India to Shillong for laying the Foundation Stone of the new building complex of the Institute in the Property".

The matter relating to the visit of the President of India is not connected with the matter of land, and is dealt with by the Political Department of the State Government. The prayer of the petitioners for arranging a visit of the President of India to Shillong may be sent to the Department for processing.

25. It is also pertinent to note in this regard that the land in question stands in the name of the Holy Mother of Sri Aurobindo Ashram of Pondicherry whereas the proposed building complex is for the Sri Aurobindo Insitute of Indian Culture. It is not clear whether the said Institute belongs to the Ashram or whether the Ashram has allowed the Institute to use the land for the new purpose. This point must also be clearly spelt out before the matter relating to final permission can be examined by the Government.

Send copy of this order to the Deputy Commissioner, Shilng. Also give copy of the order to the petitioners.

Case is disposed off."

14. From the pleadings of the parties and the order quoted above, it appears to be a case of boundary dispute of the plot leased to the original lease holder in 1865 for 99 years. In our opinion, normally such boundary disputes are cognizable by Civil Court and these kinds of disputes are not to be decided in a writ petition. As such, in our opinion, the Learned Single Judge has erred in law in deciding the factual controversy raised by the writ petitioner relating to the area that stood leased out in favour of the said party in terms of Lease Deed dated 18-3-1975.

15. We are also of the view that the writ jurisdiction is not meant for giving shelter to the parties to allow them to raise their time barred claim. Admittedly allotment order in favour of the appellant and respondent No. 5 challenged in the writ petition was passed in the year 1976 and the writ petition was filed in the year 1998 after about 20 years i.e. after limitation period had expired for filing the suit. As such, Learned Single Judge has further erred in law in deciding a claim which was barred time in the Civil Court.

16. Shri S. Chakravarty, learned counsel for the appellant argued that the Learned Single Judge has erred in law in holding that where area in acres and area by boundaries shown in the Lease Deed, boundaries mentioned in the Lease Deed would prevail. However, we are of the view that the Learned Single Judge has not erred on this point as it is settled principle of law is that where the area and boundaries are in conflict, the boundaries would prevail to examine as to how much land was transferred. Principle of law laid down by the Apex Court in Sheodhyan Singh and others vrs Sanichara Kuer and others AIR 1963 SC 1879 (para 7), P.K.A.B. Co-op. Society vrs Govt. of Palestine AIR (35) 1948 Privy Council page 207, Roy & Co. vrs Nani Bala AIR 1979 Calcutta 50 and T.P. Co-op. Society vrs Chief Commissioner AIR 1969 Manipur 84 also support the above view**.**

17. However, the State Government cannot be said to have faulted, merely for the above reason in granting allotment of land to the appellant YMCA or respondent No. 5 YWCA as the writ petitioner has failed to establish that land allotted to YMCA or YWCA was actually part of land

leased vide Lease Deed dated 18-3-1975. The boundaries in the Lease Deed dated 18-3-1875 cannot be said to be specific, for the reason that "drainage" has been shown on the North, South and East of the land leased to the original lease holder in 1865. After more than 100 years, it cannot be said that the drainage remained the same as it existed in 1865, particularly when it has been found on record that the total area claimed by the writ petitioner is in excess by 1.49 acres of total area of plot No.5 and 5A i.e. 3.348 acres. The said fact is evident from the map annexed with the rejoinder affidavit dated 13-6-2000. It is argued on behalf of the writ petitioner (present respondent No.1) that the allotment orders in favour of YMCA and YWCA are passed without following rules governing the field.

18. It is settled principle of law that though the High Court in its power of judicial review cannot review the decision of the State authority, but it can certainly review the decision making process so that the State is restrained from acting arbitrarily. This view gets support not only from H.B. Gandhi vrs Gopinath & Sons 1992 SUPP(2) SCC page 312, but also from TATA Cellular vrs. Union of India 1994 6 SCC page 651. In Saroj Screens Pvt. Ltd. Vrs Ghanshyam AIR 2012 SC 1649, the Apex Court has held that the State Governments hold the public property as a trustee of the public, and alienation of such property or any right or interest therein cannot be allowed to be made arbitrarily. As such, the observations made in the impugned judgment to that extent, by the Learned Single Judge do not require interference. But Learned Single Judge has not given reasons as to why it opted to protect possession of YWCA and not YMCA when allotment in favour of both allegedly suffered same infirmity.

19. As far as the possession of respondent No. 6 (respondent No. 5 to the writ petition) is concerned, it is admitted in the writ petition itself that the writ petitioner allowed the said party to raise the construction. As far as the appellant (respondent No. 5 to the writ petition) is concerned, he also

appears to be in possession of the land allotted to the said party (YMCA), since 1976 as is evident from the memorandum of possession dated 11^th October 1976 which is annexed as Annexure P-1 with the counter affidavit filed by respondent No. 6 before the Learned Single Judge. Memorandum of Possession of the respondent No.5 is filed by the said party (YWCA) as Annexure R-1 to its counter affidavit filed before the Learned Single Judge. The said document is dated 20^th September, 1976. As such, it cannot be said that they were not in possession of the land allotted to them. <u>Document Annexure VI (d) to the writ petition also shows that writ petitioner was shy of getting demarcated his plot as he opposed the demarcation</u>.

20. For the reasons as discussed above, we are of the view that the Learned Single Judge has erred in law in protecting the possession of only YWCA (present respondent No. 5) and not that of the appellant who was similarly situated as to the manner in which allotment of land is made in its favour.

21. Therefore the writ appeal is allowed. The impugned judgment and order dated 3-10-2000 passed by Learned Single Judge in W.P.Civil No. 113 (SH) of 1998 and Review Order dated 6-1-2004 passed in Review Application are hereby set aside. However, it is observed that the State Government may consider renewal of the lease only in respect of area in acres of plot No. 5 and 5A in favour of writ petitioner as committed by it vide its letter dated 2-1-1076. The writ petition is dismissed for rest of the reliefs. Possession of YMCA and YWCA shall not be disturbed in respect of area allotted to them. No order as to costs.

JUDGE (Hon'ble Mr Justice T.N.K Singh) 21^st October, 2013 CHIEF JUSTICE 21^st October, 2013

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S.Rynjah