- (1.) THIS writ petition shows the heavily polluted water of a natural stream, west end of the St. Anthony 's College butted to that stream, running towards Wahumkhrah River. That natural stream is a tributary of Wahumkharah River. The ''Doctrine of Public Trust '' is required to be considered in the present writ petition.
(2.) HEARD Mr. S Sen, learned counsel for the petitioner and Mr. ND Chullai, learned Sr. GA assisted by Mr. S Sen Gupta, learned GA appearing for the respondents No.1 -3, Mr. K Baruah, learned counsel for the respondents No.4 & 5 and Mr. GS Massar, learned senior counsel assisted by Mr. J.M. Thangkhiew, learned counsel appearing for the respondents No.6 & 7. The petitioner is the Principal of St. Anthony 's College, Bomfyle Road, Shillong and the College is butted on the west end by a natural stream which aids in mobilizing rainwater during monsoons towards the Wahumkhrah River. That stream is tributary of the said River. That natural stream carries effluent and wastewater discharged and other rubbish emitted into it, which is the major cause for its pollution. It is stated that there are regular cleaning drives conducted by the locals in which the college plays an integral part. Respondents No.6 & 7, who are the occupants of a plot of land on the west end of the St. Anthony 's college and across the stream had made certain construction over the stream in a manner to cover the entire stream and extended their construction to the college 's retaining wall. The respondents No. 6 & 7 had enlarged the area of their property by encroaching upon the stream and connecting their encroachment with college property. Because of the encroachment made by the respondents No.6 & 7 by covering the stream, a portion of the stream can no longer be cleaned. It is admitted case of all the parties that the portion of the said stream or stream passing through between St. Anthony 's college at the back side and the said plot of the respondent No.6 & 7 is a public stream situated within the Municipality. Under Section 62 of the ''Meghalaya Municipal Act, 1973 '' (for short the 'Municipal Act, 1973 '), the Municipal property includes all the public streams, channels, water courses, springs tanks, reservoirs cisterns, wells etc. situated within the Municipality; and those properties are under the management and control of the Shillong Municipal Board. For easy reference, Section 62 of the Municipal Act, 1973 is quoted hereunder: - ''MUNICIPAL PROPERTY 62. Municipal property - (1) Subject to any reservation made by the State Government all property of the nature hereinafter in this section specified and situated within the municipality shall vest in and belong to the Board and shall with all property of whatever nature or kind which may become vested in the Board, be under its direction, management and control, that is to say. (a) all public roads including the soil, the pavements, stones and other materials thereof, and all drains, bridges, trees, erection, materials, implements and other things provided for such roads; (b) all public streams, channels, water courses, springs tanks, reservoirs cisterns, wells, aqueducts, conduits, tunnels, pipes, pumps and other water -works whether made laid are created at the cost of the Board or otherwise and bridges, buildings, engines, works, materials and things connected therewith or appertaining thereto and also any adjacent land, not being private property, appertaining to any public tanks; Provided that water pipes and any water works connected therewith or appertaining thereto which with the consent of the Board are laid or set up in any street by the owner of any mill, factory, workshop or the like primarily for the use of their employees shall not be deemed to be public water -works by reason of their use by the public; (c) all public sewers and drains, all works materials and things appertaining thereto and other conservancy works; (d) all sewage, rubbish and offensive matter collected by the Board from roads, latrines, sewers, cess -pools and other places; (e) all public lamps, lamps -posts and apparatus connected therewith or appertaining thereto and all public gates, markets, slaughter houses and public buildings of every description which have been constructed or are maintained out of the municipal fund; (f) all land or other property transferred to the Board by the Government or acquired (by the Board) by gift, purchase or otherwise for local public purposes. (2) The State Government may by notification in the official gazette, direct that any property which has vested under sub -section (1) in the Board shall cease to be so vested, and thereupon the property specified in the notification shall cease to be so vested and the State Government may pass such orders as it thinks fit regarding the disposal and management of such property. ''
(3.) ON 17.07.2009, the petitioner wrote a letter to the Deputy Commissioner (Revenue) i.e. respondent No.3, intimating the illegal and unauthorized construction made by the respondents 6 & 7 over the said natural stream and a copy thereof was also forwarded to the Secretary (Revenue), Meghalaya Secretariat, Shillong i.e. respondent No.1. Pursuant to the said complaint, a survey was conducted by Smti. R.R. Marak, MCS on 21.07.2009 in the presence of the petitioner, respondents No.6 and 7 and other college authorities. It is also stated that on 24.07.2009, the respondents No.6 & 7 met the college authorities and in that meeting, the college authorities had clearly communicated to the respondents No.6 & 7 that the illegal encroachment and construction over the said natural stream is an environmental hazard and would adversely affect the boundary wall of the college premises. Respondent No.7 under his letter dated;