JUDGMENT
M. Karpaga Vinayagam, C.J.
1. This petition, by way of Public Interest Litigation, has been filed by one Social Organisation, by name, Pakur Jagran Manch. There are two reliefs, which are as follows:
(i) The respondents, the authorities of the State, have been constructing 300 bedded hospital, estimated worth Rs. 5 crore without inviting tenders on the lands situated in Mouza Solagaria belonging to J.B. No. 13 bearing Plot No. 1061, which is recorded as Gochar Land. The same has to be stopped since it is not permissible under law.
(ii) After commencement of construction, the State Government issued a notification dated 31.5.2007 denotifying the said Gochar Land, in order to hand over to the Health Department for the construction of the Hospital in violation of Sections 38, 67 and 69 of the Act which is invalid. Hence, the same has to be quashed.
2. The case of the petitioner is as follows:
(i) The petitioner is a social organization.
(ii) On coming to know that in the Village Solagaria 300 bedded hospital is being constructed on ‘Gochar’ Land, that too without calling for tender at a cost of Rs. 5 crore by the respondents, the petitioner organization approached the State authorities and gave representation to stop the said construction.
(iii) They also filed an application under Sections 22 and 40 of the Santhal Parganas Tenancy Act for restraining the authorities from constructing the building on ‘Gochar’ Land.
(iv) But, no action has been taken by the authorities.
(v) On the other hand, the respondent authorities have begun the construction at a cost of several crores, even though under Section 38 of the Santhal Parganas Tenancy Act the ‘Gochar’ land should not be utilized for any purpose other than grazing of cattle.
(vi) In a near by area the Government land is lying vacant under Plot No. 1416 which could be used for constructing the Hospital, but the respondents are carrying out the construction on ‘Gochar’ Land, violating the provisions of the Act.
(vii) Hence, this public interest litigation.
During the pendency of this petition, one ftitervenor filed LA. No. 414 of 2007 in support of the case of the petitioner.
3. As indicated above, there are two prayers. Both the prayers, as referred to above, would involve the point with reference to the Act of the Government arranging for construction of hospital on the ‘Gochar’ Lands meant for grazing of cattle in violation of Section 38 of the Santhal Parganas Tenancy Act, 1949 and the issue of the notification denotifying the ‘Gochar’ land with a view to permitting the Government for such construction of the hospital. The sum and substance of the arguments, which are relevant in respect of both the prayers, made by counsel for petitioner and counsel for intervenor is given below:
(i) The village Solagaria consisting a ‘Gochar’ land is situated in the District of Pakur, which is declared as a Schedule Area by the President of India vide notification No. G.S.R. 797(E), dated 21:12.1977 in exercise of the power conferred on him under Clause (2) of Para 6 of Fifth Schedule of the Constitution of India.
(ii) The legislative and Executive Powers of the State is subject to the provisions of the Fifth Schedule whereby the Governor of the State has been made guardian and custodian of the people living in the Schedule Area.
(iii) The tribal farmers to perform agricultural operations, utilize domestic animals, like cow, bulls, bullocks, buffalos, etc. for ploughing, sowing, planking and other activities. They consume milk from them and thereby make other milk products. Their yielded excreta like urine and cow dung are extremely useful for production of biogas and organic manure.
(iv) In order to protect the animals, some lands of the village is declared as ‘Gochar’ Lands or grazing land, after due inquiry. The Grazing lands is not a Government land. The State Government has no right to dispose of it in any way by its own whims and caprice. It is recorded as village common right in the record of rights under Section 25 of Regulation III of 1872, which is final and conclusive.
(v) The ‘Gochar’ Lands’ or grazing cannot be utilized for any other purpose and brought under cultivation by any one and every individual jamabandi raiyats has joint rights over it. Jamabandi raiyats have the right to graze their cattle free of charge on the recorded grazing lands.
(vi) There are mainly two objects of ‘Gochar’ land or grazing land:
(a) It provides rights to jamabandi raiyats (Poor Tribal Agriculturists) to graze their cattle free of cost, and without any money. Grazing land provides economic support to these indigent peoples, and 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 tribals, their natural habitation, natural home and natural environment and natural vegetation.
(vii) In order to achieve these two objects, Sections 38, 67 and 69 have been introduced in the Santhal
Paragnas Tenancy Act providing prohibitory provisions, prohibiting the use of ‘Gochar’ land for some other purpose.
(viii) These provisions would reveal that the areas once declared as Grazing land cannot be allowed to be cultivated nor to be used for any purpose other than grazing for the cattle and if any body encroaches these lands or using these lands for some other purpose, they are liable to be punished.
(ix) In the above circumstances, the State has no jurisdiction to take away the ‘Gochar’ land from the purview of the Act since it snatches away and deprives the domestic animals their natural home, their natural vegetation and their habitant.
(x) The impugned notification which seeks to release the ‘Gochar’ lands from its nature and character is without any authority of law as the ‘Gochar’ lands do not belong to the State nor the State can acquire the same under the mandate of Section 69 of the Act. Thus, question of denotifying or releasing of ‘Gochar’ lands by the impugned notification does not arise.
(xi) Section 38(1) puts a specific bar under the Statute, which prevents the conversion of the nature of the ‘Gochar’ lands for any other use.
(xii) Section 38(2) further clarifies if the area of ‘Gochar’ land is less than 5% of the village, only then other waste land of the village can be notified as ‘Gochar’ land. That is not the case here. Therefore, the State has no authority to construct the hospital on the ‘Gochar’ land on the strength of notification which lacks jurisdiction.
4. The arguments advanced by the State-respondents:
(i) The notification, which has been issued by the State withdrawing the area comprising of ‘Gochar’ land for construction of hospital was issued under Sections 2(1) and 38(2) of the Act by which more area was declared as ‘Gochar’ land.
(ii) The effect of the notification is that area of ‘Gochar’ land has not been reduced.
(iii) Though Section 38(1) puts an embargo for using the ‘Gochar’ land for any other purpose, it is not mandatory, it is only directory.
(vi) Though Sections 67 to 72 in Chapter-IX provides for imposing penalty with reference to the encroachment of the ‘Gochar’ Land, there is no penalty provided for using ‘Gochar’ land for any other purpose.
(v) Section 2 of the Act provides the power for the same. As per Section 2(1) of the Act, the State Government may, by notification can withdraw this Act or any part thereof from any portion of the Santhal Pargan Division and may likewise extend this Act or any part thereof to the area from which same has been so withdrawn.
(vi) As a matter of fact, the construction of the hospital was started and carried on only on the direction of the High Court in its order dated 23.6.2006 in W.P. (PIL) No. 5332 of 2001.
(vii) By issue of notification the only area which is involved in the construction of the hospital, i.e., 4.40 acres has been denotified whereas 4.44 acres of land in the same village has been declared to be ‘Gochar’ Land.
(viii) The Cabinet of the State of Jharkhand convened a meeting on 8.5.2007 and denotified 4.40 acres of land. declared as ‘Gochar’ land and transferred the same to the Department of Health and Family Welfare of the State of Jharkhand. In the said Cabinet itself, land measuring to 4.44 acres of Government land situated in the same village has been declared to be ‘Gochar’ Land. This notification has been issued on 31.5.2007.
(ix) As per the notification, on the proposal by the Deputy Commissioner, Pakur and also the recommendation of the Divisional Commissioner, the 4.40 acres of ‘Gochar’ land in Mouza Solagaria is denotified and in place of it other khas land with a total area of 4.44 acres is declared as ‘Gochar’ land in view of Section 38(2) of the Santhal Par-ganas Tenancy Act.
(x) The construction of hospital has already been started in which substantial amount of Rs. 46 lakh has already been invested. Since construction has commenced in the above land, the same cannot now be used as ‘Gochar’ Land.
5. The arguments made by the Intervener supporting the State- respondents:
(i) The grazing land or ‘Gochar’ land where the construction of hospital was going on is situated at Solagaria Village. In this grazing land, only the raiyats of the village have right to graze their cattle and no person other than ratyat can graze within the Village Solagaria. The land was selected by the State Government for construction of hospital with the consent of those villagers of Solagaria. The other villagers have no right to object to the same.
(ii) The Government has got the power under Section 21 of the General Clauses Act to denotify the ‘Gochar’ land.
(iii) In the place of the said ‘Gochar’ land where the work of construction is going on, another place near to the village Solagaria, measuring 4.44 acres of land has already been set apart with the consent of the villagers and has been declared as ‘Gochar’ land for the use of the villagers.
Several decisions have been cited by t”e counsel for both the parties to substantiate their respective pleas.
6. In the light of the above rival contentions, the questions to be decided are as follows:
(1) Whether the respondent-State has got the authority to construct the hospital in the lands which is recorded as ‘Gochar’ land meant for grazing of cattle?
(2) Whether the Notification dated 31.5.2007 denotifying or releasing the ‘Gochar’ land to enable the Government to transfer the same to the health department for construction of the hospital under Sections 2(1) and 38(2) of the Act despite the bar under Sections 38(1), 67 and 69 of the Act is valid or not?
7. For deciding the first question, it would be worthwhile to refer to the facts which are not cannot be disputed by the respondents:
(i) The village Solagaria consisting a ‘Gochar’ land is situated in the District of Pakur, which is declared as a Scheduled Area by the President of India vide Notification No. GSR 797(E), dated 21.12.1977 in exercise of the power conferred on him under Clause (2) of Para 6 of Fifth Schedule of the Constitution of India.
(ii) The tribal farmers to perform agricultural operations, utilize domestic animals, like cow, bulls, bullocks, buffalos etc. for ploughing, sowing, planking and other activities. They consume milk from them and thereby make other milk products. Their yielded excreta like urine and cow dung are extremely useful for production of biogas and organic manure, and it enables the tribal farmers in avoiding the use of chemicals and inorganic manure, and thereby to improve the quality of the earth, its fertility and the environment. Thus, these domestic animals constitute the very backbone of Indian agriculture and economy, and for tribals, they are their very means and source of livelihood.
(iii) In order to protect the animals, some lands of the village is declared as ‘Gochar’ Lands or Grazing lands, after due inquiry. The grazing lands is not a Government land. The State Government has no right to dispose of it in any way by its own whims and caprice. It is recorded as village common right in the record of rights under Section 25 of Regulation III of 1872, which is final and conclusive.
(iv) The ‘Gochar’ Lands or grazing lands cannot be utilized for any other purpose and brought under cultivation by any one and every Individual jamabandi raiyat has joint rights over It. Jmabandi raiyats have the right to graze their cattle free of charge on the recorded grazing lands.
(v) There are mainly two objects of ‘Gochar’ land or grazing land:
(a) It provides rights to jamabantdi raiyats (Poor Tribal Agriculturists) to graze their cattle free of cost, and without any money. These tribal peoples 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 land provides economic support to these indigent peoples, and 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 tribals, their natural habitation, natural home and natural environment 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, otherwise, it would be a perpetration of cruelty, torture, exploitation and degrading treatment on them Imbalancing our ecological system.
(vi) To achieve these two objects Sections 38 , 67 and 69 have been introduced in the Santhal Parganas Tenancy Act providing prohibitory provisions, prohibiting the use of Gochar Land for some other purpose.
(vii) These provisions such as Sections 38, 67 and 69 of the Act would reveal that the areas once declared as grazing lands cannot be allowed to be cultivated nor to be used for any purpose other than grazing for the cattle and if any body encroaches these lands or using these lands for some other purpose, they are liable to be punished.
(yiii) As indicated above, the land in question, the Gochar Lands, in Pakur District, i.e” a Scheduled Area in the Santhal Parganas Division is not a Government land and is recorded in the Records of Rights as “Village Common Rights”. This is purposely designed to provide economic security and economic empowerment to the poor and indigent tribals raiyats, who allow their domestic animals to graze therein freely, and without any cost. This record of rights is prepared and published under Section 35 of Regulation III of 1872 and which is final and conclusive and no person, including the State Government, have any right or power to transfer or alienate or encroach or acquire the ‘Gochar’ land specified therein, otherwise it would be a crime.
(ix) In Santhal Pargana Area last survey of settlement was held in the year 1932. Accordingly a notification was published by the State Government under Section 24 of the Santhal Pargana Settlement Regulation, 1872 by which 4.40 acres of land in Mouza Solagaria, Circle Pakur, District Pakur, Thana No. 24, Plot No. 1061, i.e., the land in question, was declared as ‘Gochar’ land for Village Solagaria. After publishing the notification, the same were incluciSd under Section 38 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. From this fact it is clear that the land was declared as ‘Gochar’ Land by a notificaation even in the year 1932.
8. The gist of the above facts are given in the nutshell as below:
(a) The Village Solagaria consisting the ‘Gochar’ land in question is situated in the District of Pakur and the same is declared as a Schedule Area;
(b) The ‘Gochar’ Lands cannot be utilized for any purpose other than grazing of the animals;
(c) The jamabandi raiyats have the right to graze their catties free of charge on the recorded ‘Gochar’ Lands;
(d) For prohibiting the use of ‘Gochar’ Lands for some other purpose, the Legislature introduced prohibitory provisions, Sections 38, 67 and 69;
(e) The ‘Gochar’ Lands in question in a Schedule Area is not a Government land which is recorded in the Records of Rights as “Village Common Rights”. This record of rights is final and conclusive;
(f) No person including the State have any right or power to transfer or alienate or encroach or acquire the ‘Gochar’ Land;
(g) The land in question was declared as ‘Gochar’ land for village Solagaria by a notification even in the year 1932.
9. The above facts would clearly reveal that the ‘Gochar’ Lands in question has been declared as a ‘Gochar’ land in the year 1932 and the same has been recorded in the Records of Rights and the said lands do not belong to the Government and no person including the State Government have any right or power to transfer or encroach or acquire the ‘Gochar’ land for any other purpose. These things would make it obvious that State has no authority to construct the hospital in the lands which is declared as a ‘Gochar’ land even in 1932. Therefore, we answer the first question to the effect that the respondent-State has no authority to construct the hospital in the declared ‘Gochar’ Lands. Accordingly answered.
10. Let us now come to the second question relating to the validity of Notification.
Before dealing with the said question, ft would be better to refer to some factual developments that took place in this case.
11. From the admitted facts, it is apparent that the State Government having realized its mistake of commencing construction of hospital without authority, thought it fit to issue notification purported to have been issued under Section 38(2) for denotifying and releasing the said ‘Gochar’ land in order to allot the same to the Health Department for the construction of hospital.
12. As indicated above, the work of construction of the hospital in the ‘Gochar’ land had commenced even before the issuance of notification under Section 38(2) of the Act taking away the ‘Gochar’ land fromythe purview of the Act.
13. Hence, on coming to know of this, the petitioner sent the representation to the State authorities to stop the said construction under Sections 22 and 40 of the San thai Pargana Tenancy Act for restraining the construction of the hospital building in ‘Gochar’ Land. There was no response. Thereupon, the petitioner filed this writ petition by way of Public Interest Litigation.
14. This Court admitted this petition on 11.12.2006 and on being satisfied that a prima facie case is made out, this Court stayed the work of construction of the hospital over the land in question pending disnpsal of the Public Interest Litigation.
15. Only thereafter, State Government stopped its construction, and in order to validate their action, issued notification dated 31.5.2007 denotifying and releasing ‘Gochar’ land measuring 4.40 acres in order to hand over the same to the Department Health and Family Welfare for the purpose of construction of the hospital and in lieu of the said ‘Gochar’ land the other area measuring 4.44 acres was declared as ‘Gochar’ Land. This gave a further cause of action for the petitioner to file another interlocutory application in this Public Interest Litigation to seek for adding for adding one more prayer requesting for the quashing of the notification dated 31.5.2007. That is how the second question has arisen for consideration.
16. Let us now deal with the submissions made by the counsel for the petitioner regarding the second question, i.e” validity of the notification impugned. The gist of the argument is as follows.
There is no power conferred on the State under the Act to denotify the ‘Gochar’ land for using the said land for some other purpose. There is a bar under Section 38(1) of the Act. Admittedly, the ‘Gochar’ Land, in question, has been declared as a Scheduled area and the same is recorded in the Record of Rights in Village Common Rights. This record of right is prepared and published under Section 25 of the Regulation III of 1872 and this is final and conclusive. No person including the State Government have any power or right to denotify or encroach or acquire the ‘Gochar’ land for some other purpose. If such an Act has been committed it would be a crime. The ‘Gochar’ land cannot be used for any other purpose including for construction of the hospital in violation of Section 38(1) of the Act. To circumvent the bar under Section 38(1) of the Act, the impugned notification has been issued under the garb of Section 38(2) of the Act. As such, it is not valid in law, as it lacks jurisdiction.
17. Now let us first go into the contents of the notification issued on 31,5.2007. The notification issued and published in the extraordinary issue of Jharkhand Gazette, dated 31st May, 2007 in Hindi would read as follows:
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la[;k 294] 10 T;s"B 1929 'kdkCn
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ikdqM+ ftykvUrZxr vpy&ikdqM+ ds ekStk&lksyxfM+;k] Fkkuk ua0&24] nkx ua0&1061 jdck&
4-40 ,dM+ xkspj Hkwfe dks folwfpr ¼foeqDr½ djrs gq, mlds cnys esa laFkky ijxuk
dk'rdkjh vf/kfu;e dh /kkjk 38¼2½ ds vkyksd esa mlh ekStk ds [kkrk ua0& 44] nkx ua0&
62] 199 ,oa 427 jdck dze'k% 0-11] 1-36 ,oa 2-97 ,dM+] dqy jdck&4-44 xS0 e0
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18. English translation of the notification issued and published in the extraordinary issue of Jharkhand Gazette, dated 31st May, 2007 would read as follows:
Jharkhand Gazette
Extraordinary Issue
No. 294 10 Jyestha 1929 Shakabd
Ranchi, Thursday 31st May, 2007
Revenue And Land Reforms
Department
Notification
31st May, 2007
No. 5/Sa. Bhu. Pakur-31/2007-1821/Ra In view of the proposal by Deputy Commissioner, Pakur and the recommendation of the Divisional Commissioner, Dumka, 4.40 acres of Gochar Land in Mouza Solagaria, Circle Pakur, District Pakur, Thana No. 24, Plot No. 1061 is dehotified (released) and in place of that “Gairmajarua (Government) Khas land appertaining to Khata No. 44. Plot Nos.62, 199 and 427 measuring 0.11, 1.36 and 2.97 acres respectively, total area 4.44 acres, situated in the same Mouza is declared as “Gochar Land” in view of Section 38(2) of the Santhal Parganas Tenancy Act.
By the order of the Governor of Jharkhand
Sd/-
B.K. Sinha.
Deputy Secretary to Government.
19. The perusal of the notification would indicate the Government, invoking the power under Section 38(2) of the Santhal Parganas Tenancy Act, has issued notification denotifying the land in question and in lieu of that, some other area equivalent to the same has been declared as ‘Gochar’ Land. It is submitted by the State that notification was issued denotifying the ‘Gochar’ land for the purpose of using the said land for the construction of the hospital, i.e., other than the grazing purpose.
20. Let us now refer to Section 38 of the Act:
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 percentum 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 shall be governed by the provision of Sub-section (1).
21. Reading of the provisions of Section 38(1) would make it clear that there is specific bar under the Statute, which prevents the conversion of the nature of the grazing land. Section 38(2) further clarifies that if the area of the grazing land is less than 5 percentum of the total area of the village, then other waste land of the village can be notified as grazing land.
22. Thus, Section 38 of the Act states any land recorded as Village Grazing Land or ‘Gochar’ land shall not be settled or brought under cultivation or utilized for any purpose other than grazing by any one. Anvehe includes the Government as well.
23. This section reflects the purpose and object of the introduction intended to prevent the use of the land for any other purpose and as such the provision shall be construed to be mandatory in nature.
24.Besides this, Section 67 imposes penalty for contravention and violation of the said provisions, such as encroachment of grazing lands or using the grazing land for some other purpose etc.
67. Penalties.–(1) If any person–
(a) …
(b) …
(c) …
(d) …
(e) …
(f) …
(g) …
(h) …
(i) …
(ii) encroaches on any of the recorded village paths, camping or grazing grounds, or
(iii) …he shall be liable to a fine which may extend to who hundred rupees and in the case a continuing offence to a further fine not exceeding five rupees for each day during which the offence continues.
(2) If any land is transferred in contravention of the provisions of Section 20 or any other provision of this Act or by fraudulent method and is held or cultivated by any person with knowledge of such transfer, he shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to one thousand rupees or with both, and in the case of a continuing offence, to a further fine not exceeding fifty rupees for each day during which the offence continues.
25. Similarly, Section 69(e) clearly lays down the penal consequences over the acquisition of settled land. Proviso to Section 69, Clause (2) says that village headman’s official holding, grazing land, jeherthan and burning and burial grounds should not be converted or acquired for any other purpose. This means the same shall always be allowed to remain in its due nature as it stood recorded in the original record of rights.
Section 69(e) of the Act says the following:
69. Bar to Acquisition of right over certain lands.–Notwithstanding anything contained in any law or anything having the force of law in the Santhal Parganas, no right shall accrue to any person in,–
(a) …
(b) …
(c) …
(d) …
(e) village headman’s official holding grazing land, jeherthan and burning and burial grounds.
26. Conjoint reading of Sections 38, 67 and 69 would reveal that the areas, which are declared as grazing land cannot be allowed to be cultivated and to be used for any purpose other than grazing; if any body encroaches this land or using this land for any other purpose, they are liable to be punished; only when the Deputy Commissioner finds that the area of ‘Gochar’ land already declared is less than five percentum of the total area of the village, then alone the other lands could be set apart along with that land under Section 38(2) of the Act.
27. The notification, in question, would reveal that it has been issued under Section 38(2) of the Act. In this case Section 38(2) of the Act is not applicable as it does not satisfy the requirement of Section 38(2). There is no dispute in the fact that the total area of the lands of Mouza Solagaria, P.S. and District Pakur is 1291 Bighas, 16 Kathas and 13 Dhurs. In this case, admittedly, the area of ‘Gochar’ land in question is more than 5% of the total lands of the said Mouza. As the area of the grazing land in the said village is more than five percentum of the total area of the village, Section 38(2) will not apply to the present facts of the case.
28. Further, Section 38(2) does not provide taking away the ‘Gochar’ land and handing over the same for any purpose other than grazing and instead of that area, the Government can allot or declare other areas as ‘Gochar’ Land.
29. When there is a specific bar for change of nature of ‘Gochar’ land or for use of the same for some other purpose, how can the Government issue notification to use the ‘Gochar’ land for construction of hospital that too when the said ‘Gochar’ land does not exclusively belong to the State? Strangely in this notification, the ‘Gochar’ land has been denotified as ordinary land for constructing hospital, i.e., for different purpose and the other area which belongs to the Government, which was not declared as a ‘Gochar’ land in the register of rights, has been declared as ‘Gochar’ land by which the nature of the land itself has been changed. It is clear from the reading of the sections and the object of introduction of these provisions that the nature of land cannot be allowed to be changed. In other words, the nature of the land declared under the provisions of the Act cannot be allowed to be changed by mere notification in the absence of any provision that too when there is a specific bar.
30. Learned Advocate General contending that there are powers entrusted to the Government to notify the other area as ‘Gochar’ land and order denotifying the ‘Gochar’ land area to use for other purpose has referred to Section 2(1) of the Act.
31. It is submitted by the Advocate General that though notification has been issued in this case under Section 38(2) of the Act, it must
be construed to have been issued under Section 2(1) also while elaborating his argument, he submitted the under Section 2(1) of the Act the State Government may, by notification, withdraw this Act from any portion of the Santhal Pargana Division and extend this Act or any part thereof to the other area, and, therefore, the State Government is vested with power to denotify one area which is declared as ‘Gochar’ land and. declare another area, which is not recorded as ‘Gochar’ land in the record of rights, ‘Gochar’ Land.
32. The notification, in question, only refers to Section 38(2) of The Act. Therefore, the Government has to substantiate that the provisions of Section 38(2) has correctly been invoked. Instead of doing so, the Advocate General, probably having found It difficult to bring the notification under Section 38(2) in view of the failure to satisfy the main ingredients of Section 38(2) he has now chosen to take a plea that power is available under Section 2(1) of the Act.
33. Let us now see whether such power Is available under Section 2(1) of the Act, which would apply to this case:
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.
34. Section 2(1) is the provision which is an enabling provision enacted to give effect to restructuring and reorganizing of all the districts or any particular district or any part thereof in the entire Santhal Parganas Division. This section does not give any jurisdiction to the State to take away the ‘Gochar’ land from the purview of the Act and to declare another land as a ‘Gochar’ land to bring that land under the purview of the Act.
35. Reading of Section 2(1) does not indicate that such a power has been conferred to the State. Under this section the State Government may, by notification, withdraw this Act from one portion of the Santhal Pargana Division and extend this Act to the other area from which the same has been so withdrawn. That is not the case here. As per this section, the Government can withdraw the Act from one portion of the Santhal Pargana Division and extend this Act or part of the Act to the area from which the same has been earlier withdrawn. Admittedly, the area, which is declared now ‘Gochar’ land as per the notification is not the area from which the Act has been withdrawn earlier.
36. From the above provision, it is crystal clear that the State Government has power to withdraw or extend the provision of the Act in a compact area meaning there by Anchal. Division, District. This Section does not contemplate for a particular plot which is recorded as ‘Gochar’ land in the record of rights by circumventing the restrictions and embargo created under the Act. Therefore, we are unable to accept the arguments advanced by the learned Advocate General on this point.
37. One another aspect is pointed out by the counsel for the intervener supporting the petitioner. According to him, it is specifically provided in Section 2(l)(d) that any notification relating to the withdrawal of the Act shall not be issued or brought into force when some legal proceedings are pending.
(2) The withdrawal of this Act or any part thereof from any area under Sub-section (1) shall not,–
(a) …
(b) …
(c) …
(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty forfeiture or punishment may be imposed as If no such withdrawal had been made.
38. It is contended by the counsel for petitioner that no notification can be issued either under Section 38(2) or under Section 2(1) as Section 2(l)(d) clearly prohibits issuance of any notification under Section 2(1) during the pendency of legal proceedings and in this case, the notification has been issued only during the pendency of this Public Interest Litigation before this Court and as such it cannot be said thai the notification passes the test of validity. This submission, also in our view, merits consideration.
39. It is now pointed out by the counsel for the petitioner and the intervenor that in the final report on the Revision Survey and Settlement Operations in the District of Santhal Parganas, 1922-35, strong view was taken in respect of grazing land. In paragraph 42, page 22 of the said Gantzer Report it was mentioned that “Particular care has been taken to provide an adequate amount of grazing land in each village. A comparison with the last settlement maps disclosed the fact that maliks, headmen and roiyats had, in many villages, made wholesale reclamations in old ‘Gochar’ Land. Goala headmen and villagers were frequently the worst offenders. Where possible, the encroachers were evicted from their reclamations. In order to provide against a repetition of such objectionable reclamations, ‘Gochar’ plots have been marked on the maps of Blocks-H and I by broken lines drawn horizontally across the plots in addition to the usual entries in the khatian of waste lands and in column 4 of the Village Enquiry Papery
40. In the light of the said situation, Section 38 puts’ a specific bar that no land recorded as village grazing land shall be settled or brought under cultivation or shall be utilized for any purpose other than grazing by anyone.
41. The counsel for the intervener, supporting State, would submit that the Government has got the power under Section 31 of the General Clauses Act to denotify any land which was declared as ‘Gochar’ land and in this case Section 21 of the General Clauses Act will apply. This contention cannot be accepted. Section 21 of the General Clauses Act is not applicable in this case in view of the categorical and apparent bar contained under Section 38(1) of the Act. Section 21 is applicable only in case of ambiguity in the provisions, that too in Central Statute. Santhal Parganas Tenancy Act is a State Legislation, so this argument would not hold good.
42. Further submission is made by the Advocate General that construction of hospital was commenced only at the instance of the orders passed by this Court in W.P. (PIL) No. 3116 of 2002. We have gone through the order. The order shows that the general grievance expressed by the people of the area wanting for construction of hospital in various areas were considered by the Bench in the said Public Interest Litigation, and ultimately, the undertaking which was given by the Government for construction of the same in various places have been recorded and order has been passed accordingly. The question, whether the Government has got right or power to construct the hospital in ‘Gochar’ land was never raised in the said petition. Therefore, the Government cannot make a plea thai the construction of the hospital on the ‘Gochar’ land was at the instance of this Court in W.P. (PIL) No. 3116 of 2002.
43. At this stage it would be worthwhile to refer to the observation of the Supreme Court regarding the duty enjoined upon the State to protect the industrial resources in the case of M.C. Mehta v. Kamalnath , which is as follows:
The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. Thus the Public Trust doctrine is a part of the law of the land.
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial
purposes….
44. The above observation make it clear that the resources meant for a particular use cannot be converted into a private ownership and the State’s legal duty is to protect the natural resources meant for animals to be used as a grazing land. When that duty is violated in the grab of notification, this Court will be constrained to prevent such violation to protect the grazing land meant for domestic animals, which constitute the very backbone of Indian agriculture and economy.
45. Thus, viewed from any angle, we are unable to hold that the notification impugned on the basis of which right is claimed to denotify the ‘Gochar’ land for constructing the hospital without any power whatsoever is valid. So, the second question is answered accordingly.
To sum up:
(i) The respondent-State has no authority to construct the hospital in the land which is recorded as ‘Gochar’ Land meant for grazing of catties;
(ii) Notification dated 31.5.2007, denotifying or releasing the said ‘Gochar’ land in order to hand over the same to the Health Department to enable the construction of the hospital, purported to have been issued under Section 2(1) and Section 38(2) of the Act despite the bar under Sections 38(1), 67 and 69 of the Act is not valid in law.
Both the reliefs, sought for by the writ petitioner in the writ petition, are granted and the writ petition is allowed.
46. Before parting with this case, this Court is inclined to observe that as the counsel for the petitioner has pointed out in their affidavit that a nearby area, the Government land, in Plot No. 1416 is lying vacant, it is open to the Government to shift the place of construction from ‘Gochar’ land area to the said nearby Government land or any other Government land which is situated nearby and is suitable for the construction of the hospital.
Amareshwar Sahay, J.
47. I agree.