Supreme Court of India
STATE OF JHARKHAND & ORS.versusPAKUR JAGRAN MANCH & ORS.
- Citation
- 2011 INSC 38
- Decided
- 12 January 2011
- Disposal
- Appeal(s) allowed
- Bench
- R V RAVEENDRAN
Holding
The State Government, under the Santhal Parganas Settlement Regulations, 1872, validly de‑reserved the gochar land and the 31‑May‑2007 notification is lawful; consequently, Section 38(1) does not prohibit the hospital's construction.
Summary
The State of Jharkhand sought to construct a hospital on 4.40 acres of land that had been recorded as gochar (village grazing land) under the Santhal Parganas Settlement Regulations, 1872. A public‑interest writ petition challenged the de‑reservation of the gochar, arguing that Section 38(1) of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 barred any non‑grazing use and that the State lacked authority to de‑reserve the land. The State obtained a notification on 31‑May‑2007 de‑notifying the gochar and earmarking alternative government land as gochar, claiming power under the Settlement Regulations and the General Clauses Act. The Supreme Court held that the Regulations permit the record of rights to be reopened and altered with prior State sanction, thereby authorising de‑reservation; the notification was valid, and once the land ceased to be recorded as gochar, Section 38(1) no longer applied. Consequently, the hospital may continue to operate on the former gochar land. The Court set aside the High Court order, dismissed the PIL, and allowed the appeals.
Issues considered
- The State Government's power to de‑reserve or de‑notify gochar land recorded under the Santhal Parganas Settlement Regulations, 1872.
- Whether Section 38(1) of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 bars the use of de‑reserved gochar for a public purpose such as a hospital.
- Whether Section 2(1) of the Tenancy Act confers authority to de‑reserve gochar land.
- The validity of the Notification dated 31‑May‑2007 issued by the State Government.
- Whether the omission of a specific statutory reference in the notification renders it invalid.
- The correctness of the High Court's view that once land is recorded as gochar it remains so forever.
Legislation cited
- Bihar and Orissa General Clauses Acts. Section 24
- Santhal Parganas Settlement Regulations, 1872s. Regulation 24, s. Regulation 25
- Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949s. Section 2(1), s. Section 38(1), s. Section 38(2)
- State General Clauses Acts. Section 24
Subjects
gocharvillage grazing landde‑reservationSanthal Parganas Settlement RegulationsSanthal Parganas Tenancy Actpublic purposehospital constructionland reclassificationSection 38General Clauses Act
Judgment
[2011) 1 S.C.R. 687
STATE OF JHARKHAND & ORS. A
v.
. --' PAKUR JAGRAN MANCH & ORS.
(Civil Appeal No. 436 of 2011)
JANUARY 12, 2011
8
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Santhal Parganas Settlement Regulations, 1872 -
Regulations. 24 and 25 - De-reserve or de-notify gochar
(village grazing land) - Power of State Government - Record c
of rights whereby certain land recorded as Gochar, village
grazing land - Identification of the said land as suitable for
construction of hospital - Notification by State Government
de-notifying and releasing Gochar land and in its place
declaring Gairmajarua (Government) Khas land as Gochar - o.
•'\'
.Writ petition seeking prohibition of construction of hospital in
the said gochar, allowed by High Court -· On appeal held:
Land recorded as a gochar in the record-of-rights of a village
in pursuance of a settlement under the Regulations, can be
re-opened and altered at any time, without waiting for the next E
settlement, with the previous sanction of the State Government
- On facts, Deputy Commissioner, authority empowered to re-
open the record-of-rights for de-reserving the land recorded
~~
as gochar, made a proposal seeking the sanction of the State
Government, for de-reserving the gochar - State Government
F
by the Notification granted approval for de-reservation and.
earmarked alternative land as gochar - Notification has to be
read as an order granting re-opening of the final record of
rights of the village for the purpose of de-reserving the gochar
for constructing a hospital for the public purpose and the same
G
c-i was consented to by the village headman and all Jamabandi
Raiyats - Thus, Notification is valid - Order of High Court is
set aside and the hospital is allowed to function in ex-gochar
land - Santhan Parganas Tenancy (Supplementary
687 H
688 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A Provisions) Act, 1949 - s. 38 (2).
Santhan Parganas Tenancy (Supplementary Provisions)
Act, 1949:
s. 2(1) - Scope of - Held: De-reservation or re-
B categorisation of a land recorded as gochar in the record-of-
rights is not within the scope of the Act -s. 2(1) cannot be
treated as the source of power to issue a Notification de-
reserving gochar.
c s. 38 - Grazing land shall not be cultivated - Prohibition
uls. 38(1), in regard to non-grazing use - Applicability of -
Held: 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, bar ul
0 s. 38(1) would not apply.
Practice and Procedure - Omission to refer provision of i-·
law which is the source of power, or mentioning of a wrong
provision - Held: Would not by itself render the government
order invalid or illegal, if government had the power under an
E appropriate provision of law
The Settlement Officer notified a land measuring 4.40
acres as Gochar, village grazing land (Plot no. 1061). In
pursuance to the order of the High Court for
F implementation of health programme, the said gochar
was identified as being suitable for construction of the
hospital with the consent of village headman and
community. The first respondent filed a writ petition
seeking prohibition .of construction of a hospital in the
G said gochar. Subsequently, the State Government issued
a Notification dated 31.5.2007 de-notifying and releasing
4.44 acres of gochar land and declared 4.44 acres of
Gairmajarua (Government) khas land (Plot Nos. 62, 199
and 427) as gochar land. In the Writ Petition, the High
H Court held th~t the State had no authority to construct a
- STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 689
MANCH & ORS.
nospital in the land earmarked as Gochar meant for A
./ grazing catties; and that the Notification de-notifying and
releasing Gochar for construction of a hospital was not
valid. Therefore, the appellants filed the instant appeals.
Allowing the appeals, the Court B
HELD: 1. Sub-section (1) of section 2 of the Santhal
Pargansas Tenancy (Supplementary Provisions) Act,
-( 1949 enables the State Government to re-organise or
delimit any portion of the Santhal Parganas Division for
convenient revenue administration. De-reserving certain c
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 1949 Act or anv part
thereof from any portion of Santhal Parganas Div.ision. D
--'f De-reservation or. re-categorisation of a land recorded as
gochar in the record-of-righ_ts is not within the scope of
the 1949 Act. Therefore, Section 2(1) of the 1949 Act has
no relevance and cannot be treated as- the source of
power to issue a Notification de-reserving gochar. [Para E·
8] [699-E-G]
2.1 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
F
Reguiation. 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, recognized by Section
~i
24 of the State General Clauses Act is of no a,ssistance G
to support the power to issue a Notification de-reserving
~·
a land recorded as gochar. [Para 10] [699-G-H; 700-A-B]
. 2.2 The High Court erroneously assumed that as
there is no provision in the 1949 Act for de-reserving H
. I
,
~
...
690 SUPREME COURT REPORTS [2011] 1 S.C.R.
-
A gochar for other uses, the State Government has no
power to de-reserve any land recorded as gochar, under
. any circumstances and, therefore, the Notification dated
31.5.2007 was invalid; and that once a land is recorded
as gochar, such land should forever be gochar. The
B prohibition under Section 38(1) of the 1949 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
c shown as gochar or village grazing land in the Record-
of-Rights for valid reasons, then the bar under Section
38(1) would 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
0
1949 Act. If the State Government has the power to de-
reserve or denotify gochar (village grazing land) under
any other law, and such power is validly exercised, then
the land would cease to be gochar and the prohibition
E under section 38(1) of the 1949 Act in regard to non-
grazjng use would not apply. [Para 11] [700-B-F]
2.3 The appropriate provision as regards the State
Government's power to de-reserve or de-notify gocl1ar
(village grazing land) is found in the Santhal Parganas
F Settlement Regulations, 1872. 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, I
the entries in the record of rights can be re-opened and ·
G altered with the previous sanction of the State
Government. Therefore, 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
H
- STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 691
MANCH & ORS.
the· next settlement, with the previous sanction of the A
State Government All that the State Government did by
. -' the Notification dated 31.5,2007 was to de-reserve gochar
in pursuance of a proposal/request for sanction by the
Deputy Commissioner so that it is no longer recorded as
gochar. [Para 12) [702-F-H; 703-A-B] B
2.4 The Deputy Commissioner is the authority
empowered to re-open the record-of-rights for the
--../ purpose of de-reserving 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 c
(4.40 acres in Thane No.24, Plot No.1061) 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 1949 Act was also fulfilled by D
-1 earmarking alternative land as gochar. The only possible
objection that could 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 de-
reservation and could not by itself' de-reserve the land. E
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 has to be read as an order F
· · granting re-opening of the final record of r-ights of the
village for the purpose of de-reserving 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. G
Commissioner to ensure that appropriate suitable land is
--1 set apart for grazing so as to make up 5% of the total land
of the village as required under Section 38(2) of the Act.
[Para 13] [703-C-G]
H
692 SUPREME COURT REPORTS [2011] 1 S.C.R.
A 2.5 The Notification no doubt does not refer to
Regulations 24 and 25(3). The Omission to refer to the
provision of law which is the source of power, or the
mentioning of a wrong provision, would not by itself
render an order of the government invalid or illegal, if the
8 government had the power under an appr9priate
provision of law. Such de-reservation of any go:vernment
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
c 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 villag1e
and not gochar. Whenever it becomes inevitable or
D necessary to de-reserve any gochar for any public
purpose, which should be as a last resort, the procedure
contemplated in Regulations 24 and 25 and Section 38(2)
should be strictly followed. When the gochar is no1t
government land, but is village common land vesting in
E the villagers and not the government, the consent of
village headman and the Jamabandi- Raiyats/villagers in
whom the land vests would have to be obtained, before
de-reservation 2nd diversion of use of gochar. [Para 15]
[704-E-H; 705-A-D]
F
2.6 In the instant case, the urgent need f9r de-
reserving the gochar of 4.40 acres and diversion of its us;e
for the public purpose of hospital is not in dispute. The
village headman and. all the Jamabandi Raiyats have
G consented to the de-reservation and use of the land for
hospital. The land was found to be most suitable for ~- -·
constructing the hospital. Alternative land was
immediately notified as gochar. The Hospital has already
been constructed in the land. Any delay would come in
H the way of health care of the villagers/tribals. In the
... STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 693
MANCH & 9RS.
circumstances, the Notification dated 31.5.2007 of the A
.r{· Government is upheld. Respondent Nos. 6 and 9 would
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. [Para 16] [705-E-H] B
2.7 The gochar measuring 4.40 acres in plot No.1061
.
was chosen for the hospital having regard to its easy
-1· accessibility as it adjoins a main road. Any interior land
; would be disadvantageous for construction of a hospital
but would not be disadvantageous for being used as a
c
grazing land. Therefore, the decision of the authorities to
locate the hospitalin Plot No.1061 in question cannot be
faulted with. [Para 17] [706-B-C]
3. The first respondent submitted that Plot Nos. 62, 0
~'(
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 E
would have raised the objection. When the village
headman and Raiyats have agreed for th_e alternative area
·--( as gochar, such a contention is not available to the first
respondent; The submission that there were some
irregularities and misuse of funds in the construction of F
the hospital building, during the pe.ndency of the
litigation, as it was done without inviting tenders may _be
agitated by the first resp'ondent by lodging a complaint
with appropriate authorities. [Paras 18 and 19] [706-0-F]
. -1:. 4. The -impugned order of the High Court is set aside G
and the public interest litigation Is dismissed, and the
hospital is permitted to function In ex-gochar land namely
Plot No.1061. [Para 20] [706-G-H]
H
694 SUPREME COURT REPORTS [2011) 1 S.C.R..
A CIVIL AP PELLATE JURISDCITION : Civil Appeal No. 436 \
of 2011. ,._.
From the Judgment & Order dated 17.08.2007 of the High
Court of Jharkhand at Ranchi in W.P: (PIL) No. 6779 of 2006.
B WITH
C.A. No. 437 of 2011.
Amarendra Sharan, Anil K Jha, Santosh Kumar, Manis•h
C Kumar Saran for th~ Appellants.
Arup Banerjee, R.K. Prasad, R.K. Srivastava for the
Respondents.
The Judgment of the Court was delivered by
D
R.V.RAVEENDRAN, J. 1. 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
E 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
F 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
G 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
H
- STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 695 .
MANCH & ORS. [R.V. RAVEENDRAN, J.]
Jamabandi Raiyats of the village), vide consent letter dated A
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
(gocha" could not be used for any other purpose and seek.ing ·
~
prohibition of construction of a hospital in the said gochar.
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 c
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 D
.6(.
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 E
to c0nstruct 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 ln F
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: · G
(i) Having regard to section 2(1) read with section· 38(2}
of the Tenancy Act, the State Governm.ent had the authority
• to denotify/release/withdraw any land from its status as
gochar, provi~ed other suitable land is set apart as gochar H
696 SUPREME COURT REPORTS [2011] 1 S.C.R
A to make up 5% of the total area of the village as required
under sect!on 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
B
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.
c (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
D ·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
E
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
F exercise would also delay in extending health facilities to
the residents/ tribals wh0- are in dire need of the same.
(v) Having regard to the declaration of an alternative area
of 4.44 acres in the same- village as gochar under section
G 38(2) of the Tenancy Act, there was no reduction in the
village gochar nor violation of-the provisions of the Tenanc:y
Act.
(vi) In several other cases, the Jharkhand High Court had
accepted and recognized the denotification of the gochar
H
STA~ OF JHARKHAND & ORS. v. PAKUR JAGRAN 697
- MANCH & ORS. [R.V. RAVEENDRAN, J.)
to enable the use thereof for other purposes and therefore A
j the Government bonafide proceeded on the basis that such
a procedure of denotification was perrnissible.
7. The first respondent on the other hand, supported the
decision of the High Court. It contended that having regard to B
the bar contained in section 38(1) of the Tenancy Act, the land .
earmarked and settle_d 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
c
in 1935 (vide Para 63) to highlight the object of setting apart
some Government lan.d as gochar :
"Gochar and its.Object
Di,
-v 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, e
-. 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 to these indigent people, and it is a very source
and means of livelihood for them. F
(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 G
--t
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
H
698 SUPREME COURT REPORTS [2011) 1 S.C.R.
A 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
B 1
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:
c
"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
D
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
E 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 any
F 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
G issue a notification de-re-serving 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
H
STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 699
MANCH & ORS. [R.V. RAVEENDRAN, J.]
for constructing a hospital, after de-reserving it from its status AI
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 B
than grazing by any one.
(2) If the area recorded as grazing land or gochar be less·
----1
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 c
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 D
->y
village grazing land or gochar being (i) settled oi' (ii) brought
under cultivation or (iii) utilized for any purpose other than
grazing, by anyone.
10. The appellants seek to support the notification dated
31.5.2007 with reference to section 24 of the State General E
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, F
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
' -I of power conferred by a State Act or Regulation {which does G
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
byjssue of a notification under any State Act or Regulation. The
notification dated 31.5.2007 was not issued to add, amend, vary H
700 SUPREME COURT REPORTS [2011] 1 S.C.R.
A 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
8 recorded as gochar.
11. The High Court has erroneously assumed that as there
;s 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
C 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
D 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
E a land as gochar (or village grazing land), or the manner of de-
reserving any land recorded as gochar (or village grazing land]1
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
F 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.
12. Let us now consider whether the State Government has·,
the power to de-reserve or de-notify gochar (village grazing
G 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
H
STATE.OF JHARKHAND & ORS. v.
PAKUR JAGRAN 701
MANCH & ORS. [R.V. RAVEENDRAN, J.)
made to amend and supplement certain laws relating to· A
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 8
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 C
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 is preparing a record-of-rights, even D
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 : E
·· "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 F
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 G
.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."
I H
702 SUPREME COURT REPORTS [2011] 1 S.C.R.
A 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 "'-
B "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
c regarding which objections by parties interested may still
be pending in the Original or Appellate Courts, or may still
be open to appeal.
xxxxxxx
D
(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
E
. been correctly embodied therein, such record shall not,
until a fresh settlement is made or a new table of rates and
rent-rols are prepared, be re-opened withoutrthe previous
sanction of the State government.·
F 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
G 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
H sanction of the state government. Therefore the contention
STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 703
MANCH & ORS. [R.V. RAVEENDRAN, J.]
of the first respondent that once a gochar, always a gochar, A
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 B
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 rnade a
proposal seeking the sanction of the state government, for de-
c
reserving the gocharin question (4.40 acres in Thane 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 D
\/ 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 E
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 F
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 co ensure that appropriate G
---! 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.
)
• 1.14. The notification no doubt does not refer to Regulations
H
704 SUPREME COURT REPORTS (2011) 1 S.C.R.
•
A 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
B K.K. Parmar vs. High Court of Gujart - 2006 (5) SCC 789
and J<edar 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
C 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 gocharto house plots or other non-grazing yseshould be
resisted and firmly dealt with. Any requirement of land for any
D public purpose should be met from available waste or unutilized
land in the village and not gochar. Whenever it becomes T
inevitable or necessary to de-rese.rve any gocharfor any public
purpose (which as stated above should be as a last resort),
the following procedure contemplated in Regulations 24 and
E 25 and section 38(2) should be strictly followed :
(a) The jurisdictional Deputy Commissioner shall
prepare a note/report giving the reasons why the
gochar had been identified for any non-grazing
F 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 governmentfor its previous
sanction.
G {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
H granting sanction.
STATE OF JHARKHAND & ORS. v. PAKUR JAGRAN 705
MANCH & ORS. [R.V.. RAVEENDRAN, J.]
(c) If the state Government grants the sanction, the A
~ 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. 8
(d) Whenever the goch;lr 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
c
~
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 la~d. but is village common
land vesting in the villagers and not the government, the consent D
~ 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.
· 16. In this case the urgent need for de-reserving the gochar E
of 4.40 acres and diversion of its use for the put)fic purpose
ofhospital 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.
F
.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 G
Rights of the village, showing Plot No.1061 as used non-grazing
· publki purpose
~ .
and
.
record Plot Nos.62, 199 and 427
.
as gochar.
H
706 SUPREME COURT REPORTS [2011] 1 S.C.R.
A 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
B 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 disadvantageous for being used as a grazing +-,
land. Therefore the decision of the authorities to locate the
c 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
D has not been raised by the village commur:iity 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
E 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.
F If there is any irreg-ularity 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
G impugned order of the High Court and dismiss the public
interest litigation (W.P. (PIL) No. 6779/2006) and permit the }- .
hospital to function in ex-gochar land namely Plot No.1061,
Mohza Solagaria.
N.J. Appeals allowed.
H
-
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