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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