STATE OF JHARKHAND Vs PAKUR JAGRAN MANCH .
Bench: R.V. RAVEENDRAN,H.L. GOKHALE, , ,
Case number: C.A. No.-000436-000436 / 2011
Diary number: 29795 / 2007
Advocates: ANIL K. JHA Vs
ARUP BANERJEE
Reportable IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 436 OF 2011 [Arising out of SLP [C] No.20203 of 2007]
State of Jharkhand & Ors. … Appellants
Vs.
Pakur Jagran Manch & Ors. … Respondents
WITH
CIVIL APPEAL No. 437 of 2011 [Arising out of SLP [C] No.20636/2007]
Rocky Murmu … Appellant
Vs.
Pakur Jagran Manch … Respondent
J U D G M E N T
R.V.RAVEENDRAN, J.
Leave granted.
2. The Settlement Officer notified and published a record of rights under
section 24 of the Santhal Parganas Settlement Regulations, 1872
(‘Regulations’ for short) under which land measuring 4.40 acres in Thana
No.24, Plot No.1061, Mouza Solagaria, Circle and District Pakur,
Jharkhand, was recorded as gochar (village grazing land) for the said village
Solagaria.
3. In a public interest litigation (W.P. No.5332/2001), the High Court of
Jharkhand issued certain directions for effective implementation of national
leprosy eradication programme and for improving the standards of health of
the tribal residents of the area. In pursuance of it, the Department of Health
& Family Welfare, Government of Jharkhand and the Deputy
Commissioner, Pakur, on 21.12.2005, authorized the Executive Engineer,
Rural Development, Special Division, Pakur, to construct a hospital
building. The said gochar was identified as being suitable for construction of
the Hospital with the consent of village headman and village community (all
the Jamabandi Raiyats of the village), vide consent letter dated 10.11.2006.
4. When the construction commenced, the first respondent filed a public
interest litigation [W.P. (PIL) No.6779/2006] in the Jharkhand High Court
inter alia contending that the grazing land (gochar) could not be used for any
other purpose and seeking prohibition of construction of a hospital in the
said gochar.
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5. On 31.5.2007, the State government issued a notification denotifying
releasing the said 4.44 acres of gochar in Plot No.1061 and in its place
declaring an extent of 4.44 acres of Gairmajarua (Government) Khas land in
Khata No.44, Plot Nos. 62, 199 and 427 as gochar under section 38(2) of the
Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (‘Tenancy
Act’ for short). On the basis of the said notification it was contended by the
appellants in the two appeals before the High Court that the land in question
had ceased to be gochar and therefore, there was no impediment for using
the said land for construction of an hospital. The High Court by the
impugned order dated 17.8.2007 allowed the said writ petition holding as
follows : (i) The State had no authority to construct a hospital in the land
earmarked as gochar meant for grazing of cattle. (ii) The notification dated
31.5.2007, denotifying and releasing the gochar in order to hand over the
same to the health department for construction of a hospital, was not valid in
law, having regard to the bar contained in section 38(1) read with sections
67 and 69 of the Tenancy Act.
6. The said order of the High Court is challenged by the State of
Jharkhand and by the village headman in these two appeals by special leave.
The contentions of the appellants, in brief, are as under:
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(i) Having regard to section 2(1) read with section 38(2) of the Tenancy
Act, the State Government had the authority to denotify/release/withdraw
any land from its status as gochar, provided other suitable land is set apart as
gochar to make up 5% of the total area of the village as required under
section 38(2) of the Tenancy Act.
(ii) As the State had settled the said land as gochar for cattle grazing in
the settlement made in 1932, it had the implied authority to denotify/de-
reserve the said land from its status as gochar having regard to section 24 of
the Bihar and Orissa General Clauses Act (for short ‘General Clauses Act’)
subject to compliance with section 38(2) of the Tenancy Act.
(iii) Only the raiyats of the village Solagaria have the right to graze their
cattle in the said gochar. The village headman and the entire village
community (all the Jamabandi raiyats) have given their consent in writing on
10.11.2006 for the land in question being used for construction of a hospital.
None else had any right to use the said land and therefore, the first
respondent (writ petitioner) was not a person aggrieved.
(iv) Large amounts had already been invested for construction of a huge
hospital building. If at this stage the said land is to be declared or confirmed
or restored as gochar, it would result in irreparable financial loss to the
Government as it would involve demolition of the recently constructed huge
structure and construction of another building for the hospital at some other
place. Such an exercise would also delay in extending health facilities to the
residents/ tribals who are in dire need of the same.
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(v) Having regard to the declaration of an alternative area of 4.44 acres in
the same village as gochar under section 38(2) of the Tenancy Act, there
was no reduction in the village gochar nor violation of the provisions of the
Tenancy Act.
(vi) In several other cases, the Jharkhand High Court had accepted and
recognized the denotification of the gochar to enable the use thereof for
other purposes and therefore the Government bonafide proceeded on the
basis that such a procedure of denotification was permissible.
7. The first respondent on the other hand, supported the decision of the
High Court. It contended that having regard to the bar contained in section
38(1) of the Tenancy Act, the land earmarked and settled as gochar could
not be used for any other purpose (including the use as a hospital) under any
circumstances. They relied upon the following passage from the final Report
on “Revision Survey and Settlement Operations in the District of Santhal
Parganas” submitted by Mr. J.F. Gantzer in 1935 (vide Para 63) to highlight
the object of setting apart some Government land as gochar :
“Gochar and its Object
63. That there are mainly two objects of gochar or grazing land :
(a) It provides rights to Jamabandi Raiyats (Poor Tribal Agriculturist) to graze their cattle free of cost, and without any money. These tribal people are very poor and illiterate, and they cannot afford to purchase expensive feed and fodder for their domestic animals to provide them good health and nutrient foods. Grazing lands provides economic support
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to these indigent people, and it is a very source and means of livelihood for them.
(b) Grazing land is a part of our ecology, and helps a lot in maintaining our ecological balance by providing domestic animals of the tribes, their natural habitation, natural home and natural environmental and natural vegetation, where they eat food (grass), drink water, get pure air, sunlight, rest, move and enjoy freedom, freedom from the shackles of farm-house, freedom from the fetters of rope, and freedom from every iron bar. Their habitats are necessary, and necessary to be preserved, as otherwise it would be a perpetration of cruelty, torture, exploitation and degrading treatment of domestic animals unbalancing our ecological system.”
Whether section 2(1) of the Tenancy Act has any bearing ?
8. The appellants relied upon section 2(1) of the Tenancy Act, as the
source of power, to support the validity of the notification dated 31.5.2007
and the said section is extracted below :
“2. Power to vary local extent of the Act and effect of the withdrawal of the Act from any area.—(1) The State Government may, by notification withdraw this Act, or any part thereof, from any portion of the Santhal Parganas Division and may likewise extend this Act, or any part thereof to the area from which the same has been so withdrawn.”
Sub-section (1) of section 2 of the Tenancy Act enables the state
Government to re-organise or delimit any portion of the Santhal Parganas
Division for convenient revenue administration. De-reserving certain land
which has been recorded as gochar in the record-of-rights in pursuance of a
settlement under the Settlement Regulations, has nothing to do with
withdrawing the applicability of the Tenancy Act or any part thereof from
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any portion of Santhal Parganas Division. De-reservation or re-
categorisation of a land recorded as gochar in the record-of-rights is not
within the scope of the Tenancy Act. We are therefore, of the view that
section 2(1) of the Tenancy Act has no relevance and cannot be treated as
the source of power to issue a notification de-reserving gochar.
Whether the Notification dated 31.5.2007 is valid?
9. The core issue is whether section 38(1) of the Tenancy Act was
violated by the State Government, in using the gochar for constructing a
hospital, after de-reserving it from its status as gochar. Section 38 of the
Tenancy Act reads thus :
“38. Grazing land shall not be cultivated.—(1) No land recorded as village grazing land or gochar shall be settled or brought under cultivation or utilized for any purpose other than grazing by any one.
(2) If the area recorded as grazing land or gochar be less than five per centum of the total area of the village, the Deputy Commissioner may, in consultation with the landlord, village headman or mulraiyat, and raiyats, set apart suitable area of village waste land for grazing. Such land when so set apart shall be governed by the provision of sub-section (1).”
Sub-section (1) of section 38 prohibits any land recorded as village grazing
land or gochar being (i) settled or (ii) brought under cultivation or (iii)
utilized for any purpose other than grazing, by anyone.
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10. The appellants seek to support the notification dated 31.5.2007 with
reference to section 24 of the State General Clauses Act (corresponding to
section 21 of the Central Act) which provides that where by any State Act or
Regulation, a power to issue notifications, orders, rules or bye-laws is
conferred, then that power includes a power exercisable in the like manner
and subject to like sanction and conditions if any, to add to, amend, vary or
rescind any notification, orders, rules or bye-laws so issued. The power
implied from the said provision of General Clauses Act would be available
only to add, amend, vary or rescind a notification issued in exercise of power
conferred by a State Act or Regulation (which does not specifically confer
the power to add, amend, vary or rescind such notification). It is not the case
of the appellants that the lands in question were declared reserved or notified
as gochar by issue of a notification under any State Act or Regulation. The
notification dated 31.5.2007 was not issued to add, amend, vary or rescind
any notification issued in exercise of power under a State Act or
Regulations. Therefore, the implied power to rescind, vary or amend an
existing notification, recognised by section 24 of the State General Clauses
Act is of no assistance to support the power to issue a notification de-
reserving a land recorded as gochar.
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11. The High Court has erroneously assumed that as there is no provision
in the Tenancy Act for dereserving gochar for other uses, the State
Government has no power to dereserve any land recorded as gochar, under
any circumstances and therefore the notification dated 31.5.2007 was
invalid. The High Court has also erroneously assumed that once a land is
recorded as gochar, such land should forever be gochar. The prohibition
under section 38(1) of the Tenancy Act in regard to settlement, cultivation or
utilization for non-grazing purposes is applicable only to land recorded as
village grazing land or gochar. If the land is not recorded as gochar or
village grazing land, or if the land ceases to be shown as gochar or village
grazing land in the Record-of-Rights for valid reasons, then the bar under
section 38(1) will not apply. The manner of recording a land as gochar (or
village grazing land), or the manner of de-reserving any land recorded as
gochar (or village grazing land) is not governed or regulated by section 38
of the Tenancy Act. If the State Government has the power to dereserve or
denotify gochar (village grazing land) under any other law, and such power
is validly exercised, then the land will cease to be gochar and the prohibition
under section 38(1) of the Tenancy Act in regard to non-grazing use will not
apply.
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12. Let us now consider whether the State Government has the power to
de-reserve or de-notify gochar (village grazing land). We find that
appropriate provision therefor is found in the Regulations. The preamble of
the Regulations make it clear that it was made for securing the peace and
good governance of the territory known as Santhal Parganas (as contrasted
from the preamble to the Tenancy Act which shows that the Act was made
to amend and supplement certain laws relating to landlords and tenants in
Santhal Parganas).
12.1) Regulation 10 empowers the state government to appoint the officers
by whom the settlement is to be made and make rules for the procedure of
such officers in the investigation into rights in the land and hearing of suits,
and generally for the guidance of such officers.
12.2) Regulation 13 provides that the record of rights to be prepared by a
settlement officer shall show the nature and incidents of each rights and
interest held by each class of occupiers or owners in a village and if need be,
of each individual owner, occupier or headman in a village. The second part
of Regulation 14 provides that the Settlement Officer shall inquire into,
settle and record all rights in, or claims to, the lands of a village of which he
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is preparing a record-of-rights, even though such claims or rights may not be
urged by the parties interested.
12.3) Regulation 24 relates to publication or record of rights and it is
extracted below :
“Publication or record-of-rights – After the Settlement the Settlement Officer shall have made the record-of-rights for any village, he shall notify and publish the contents of such record to the persons interested by posting it conspicuously in the village and otherwise in such manner as may be convenient.
Objections against such record – Any person interested shall thereupon be allowed to bring forward (in the Settlement Courts) within a period of six months from the date of publication of such record-of-rights, any objection he may desire to make to any part of such record; and the objection so made shall be inquired into and disposed of by a decision in writing under the hand of the officer presiding in the court.”
12.4) Regulation 25 provides when and how the record-of-rights of any
village becomes final. Sub-sections (1) and (3) thereof which are relevant for
our purpose are extracted below :
“25. Record to be final after six months publication : (1) After a period of six months from the date of the publication of the record-of-rights of any village, such records shall be conclusive proof of the rights and customs therein recorded, other than the rights mentioned in section 25-A, except so far as concerns entries in such record regarding which objections by parties interested may still be pending in the Original or Appellate Courts, or may still be open to appeal.
xxxxxxx
(3) When a record-of-rights has become final, or any objection to any entry in a record-of-rights has been finally disposed of in the Settlement Courts, and when all final decisions and orders, including such as may have been passed on revision as provided in sub-section (2), have been correctly embodied therein, such record shall not, until a fresh settlement
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is made or a new table of rates and rent-rols are prepared, be re-opened without the previous sanction of the State government.”
12.5) It is evident from Regulation 25 read with Regulation 24 that though
normally once the record of rights has become final, it shall not be re-opened
until a fresh settlement is made, the entries in the record of rights can be re-
opened and altered with the previous sanction of the state government. It is
therefore clear that even if a land had been recorded as a gochar in the
record-of-rights of a village in pursuance of a settlement under the
Regulations, it can be re-opened and altered at any time, without waiting for
the next settlement, with the previous sanction of the state government.
Therefore the contention of the first respondent that once a gochar, always a
gochar, and there is no power in any one at any time, to alter its status as
gochar is without merit. All that the state government did by the notification
dated 31.5.2007 was to dereserve gochar in pursuance of a proposal/request
for sanction by the Deputy Commissioner so that it is no longer recorded as
gochar (or village grazing land).
13. The Deputy Commissioner is the authority empowered to reopen the
record-of-rights for the purpose of dereserving the land recorded as gochar
by altering its use. He made a proposal seeking the sanction of the state
government, for de-reserving the gochar in question (4.40 acres in Thane
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No.24, Plot No.1061, Solagoria) and the state government by the impugned
notification dated 31.5.2007 granted such approval by passing an order of
de-reservation. By the very same notification, it ensured that section 38(2) of
the Tenancy Act was also fulfilled by earmarking alternative land as gochar.
The only possible objection that can be raised to the notification dated
31.5.2007 is that having regard to the Regulation 25(3), the state government
had to merely sanction the dereservation and could not by itself de-reserve
the land. This technical objection has no merit as de-reservation is effected
by the Deputy Commissioner in pursuance of the approval granted by the
state government, by making appropriate entry in the record-of-rights of the
village. Therefore, the notification in question has to be read as an order
granting reopening of the final record of rights of the village Solgaria for the
purpose of dereserving the gochar of 4.40 acres for the purpose of
constructing a hospital with the consent of the village headman and
Jamabhandi Raiyats and at the same time instructing and directing the
Deputy Commissioner to ensure that appropriate suitable land is set aside for
grazing so as to make up 5% of the total land of the village as required under
section 38(2) of the Act.
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14. The notification no doubt does not refer to Regulations 24 and 25(3).
But it is now well settled the omission to refer to the provision of law which
is the source of power, or the mentioning of a wrong provision, will not by
itself render an order of the government invalid or illegal, if the government
had the power under an appropriate provision of law -- vide K.K. Parmar vs.
High Court of Gujart – 2006 (5) SCC 789 and Kedar Shashikant Deshpande
vs. Bhor Municipal Council (CA Nos.10452-457/2010 dated 10.12.2010).
15. We should however note that such de-reservation of any government
land reserved as gochar, should only be in exceptional circumstances and for
valid reasons, having regard to the importance of gochar in every village.
Any attempt by either the villagers or others to encroach upon or illegaly
convert the gochar to house plots or other non-grazing use should be resisted
and firmly dealt with. Any requirement of land for any public purpose
should be met from available waste or unutilized land in the village and not
gochar. Whenever it becomes inevitable or necessary to de-reserve any
gochar for any public purpose (which as stated above should be as a last
resort), the following procedure contemplated in Regulations 24 and 25 and
section 38(2) should be strictly followed :
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(a) The jurisdictional Deputy Commissioner shall prepare a note/report
giving the reasons why the gochar had been identified for any non-
grazing public purpose and record the non-availability of other suitable
land for such public purpose. Deputy Commissioner shall send the said
proposal for de-reservation to the State government for its previous
sanction.
(b) The state government should consider the request for sanction keeping
in view the object of gochar and the need for maintaining a minimum of
five percent of village area as gochar, and call for
suggestions/objections from the villagers before granting sanction.
(c) If the state Government grants the sanction, the Deputy Commissioner
should proceed to make an order de-reserving, the gochar by making
appropriate entries in the record-of-rights and re-classifying the same for
the purpose for which it was de-reserved.
(d) Whenever the gochar in a village is de-reserved and diverted to non-
grazing use, simultaneously or at least immediately thereafter the State
should make available alternative land as gochar, in a manner and to an
extent that the gochar continues to be not less than 5% of the total extent
of the village as provided under section 38(2) of the Tenancy Act.
When the gochar is not government land, but is village common land
vesting in the villagers and not the government, the consent of village
headman and the Jamabandi Raiyats/villagers in whom the land vests shall
have to be obtained, before de-reservation and diversion of use of gochar.
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16. In this case the urgent need for de-reserving the gochar of 4.40 acres
and diversion of its use for the public purpose of hospital is not in dispute.
The village headman and all the Jamabandi Raiyats have consented to the
de-reservation and use of the land in question for hospital. The land in
question was found to be most suitable for housing the hospital. Alternative
land was immediately notified as gochar. The Hospital has already been
constructed in the land. Any delay would come in the way of health care of
the villagers/tribals. In the circumstances, the notification dated 31.5.2007 of
the Government is upheld. It is needless to say that respondents 6 and 9 will
carry out necessary amendments in the Record of Rights of the village,
showing Plot No.1061 as used non-grazing public purpose and record Plot
Nos.62, 199 and 427 as gochar.
Other objections of first respondent
17. Learned counsel for the first respondent submitted that the hospital
could have as well been put up in Plot Nos.62, 199 and 427 measuring 4.44
acres which has now been declared as alternative gochar. The gochar
measuring 4.40 acres in plot No.1061 was chosen for the hospital having
regard to its easy accessibility as it adjoins a main road. Any interior land
would be disadvantageous for construction of a hospital but will not be
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disadvantageous for being used as a grazing land. Therefore the decision of
the authorities to locate the hospital in Plot No.1061 in question cannot be
faulted with.
18. The first respondent next submitted that Plot Nos.62, 199 and 427 are
rocky land and not suitable for grazing land for being declared/earmarked as
gochar. But such an objection has not been raised by the village community
who are entitled to use the gochar. If the alternative lands notified as gochar
were unsuitable, they would have raised the objection. When the village
headman and Raiyats have agreed for the alternative area as gochar, such a
contention is not available to the first respondent.
19. The first respondent lastly submitted that there were some
irregularities and misuse of funds in the construction of the hospital
building, during the pendency of the litigation, as it was done without
inviting tenders. That is a separate issue. If there is any irregularity in regard
to construction, the first respondent may agitate the issue by lodging a
complaint with appropriate authorities.
20. We therefore allow these appeals, set aside the impugned order of the
High Court and dismiss the public interest litigation (W.P. (PIL)
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No. 6779/2006) and permit the hospital to function in ex-gochar land
namely Plot No.1061, Mohza Solagaria.
……………………………J. (R V Raveendran)
New Delhi; …………………………..J. January , 2011. (H L Gokhale)
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