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2006 DIGILAW 1053 (GAU)

Maisnam Ibomcha Singh and Anr. v. State of Manipur and Ors.

2006-11-27

I.A.ANSARI, U.B.SAHA

body2006
I.A. Ansari,J.:- 1. A notice was published by the Deputy Commissioner (Central) Manipur, in exercise of powers under section 13 of the Manipur Land h Revenue and Land Reforms Act, 1960 ('the Act') read with sub-clause (2) of rule 9 of the Manipur Land Revenue and Land Reforms Rules, 1961 ('the Rules'), inviting objections to the proposal for deraservation of grazing grounds measuring 14.05 acres covered by CS Dag Nos. 1 and 52 of Village 90 Thangtek, Imphal West, for agriculture purpose. Stating that no objection has been received to the notice so published, the Deputy Commissioner (Central) Manipur. issued a letter, dated 22.6.1978, addressed to the Secretary Revenue, Government of Manipur, requesting the Government to dereserve the said land for the purpose of agriculture. 2. Pursuant to the request made by the letter, dated 26.6.1978, aforementioned, an order was published, on 27.11.1978, in the name of the Governor of Manipur, granting sanction to the divestment of the said land from the village grazing ground, with immediate effect, for agricultural purpose. Acting upon the order, dated 27.11.1978, whereby sanction for divestment of the said land for agricultural purpose had been accorded by the Government, an order was published, on 17.1.1979, by the Deputy Commissioner (Central) Manipur, allotting the said land in favour of respondent No.2, namely, Hidaksungba Potthangpat Joint Farming Co-operative Society Ltd., Hidaksungba village, Nambol, for agricultural purpose, the allotment claiming to have been made under section 14(2) of the Act. 3. Aggrieved by the order, dated 27.11.1978, aforementioned, the writ petitioners, contending that the dereservation of the said land, which earlier stood reserved in their favour for the purpose of being used as a grazing ground, is illegal and de hors the relevant provisions of law, came to this court with the help of an application, made under article 226 of the Constitution of India, seeking cancellation of the said sanction order, dated 27.11.1978, aforementioned. This writ petition gave rise to Civil Rule No. 58 of 1979. By order, dated 17.3.1997, the learned Single Judge, having held that the writ petition had no merit, dismissed the writ petition. Aggrieved by the dismissal of the writ petition, the writ petitioners are, now, before this court with the help of the present appeal. 4. We have heard Mr. A. Nilmani Singh, learned senior counsel for the appellant, and Mr. Jogatchandra. Aggrieved by the dismissal of the writ petition, the writ petitioners are, now, before this court with the help of the present appeal. 4. We have heard Mr. A. Nilmani Singh, learned senior counsel for the appellant, and Mr. Jogatchandra. learned Government Advocate, appearing on behalf of the respondent No.l, We have also heard Mr. C. Kamal Singh, learned counsel for the respondent Nos. 2 and 3. 5. We may, at the very outset, point out that as far as private respondents are concerned, they have contended, inter alia, that the land, in question, had never been in the possession and use of the writ petitioners as grazing ground, for, the land, according to the private respondents, was never reserved for the purpose of being used as a grazing ground. This is, however, an aspect of the appeal, which we would deal with at appropriate stage of this judgment. 6. What has been contended, on behalf of the appellants, is that under section 14(2) of the Act, the State Government does not have power to make allotment of land for agricultural purpose, for, the power to allot Government land for agricultural purpose vests, according to the appellants, with the Deputy Commissioner. What has also been contended, on behalf of the appellants, is that in the case at hand, the said land, having been kept reserved for the purpose of being used as a grazing ground, could not have been dereserved by the State Government, as the State Government does not have such a power under the Act or the Rules. 7. Because of the fact that the very power of the State Government to make allotment of Government land for agricultural purpose in favour of a co-operative society is questioned, we deem it necessary to ascertain the ambit of the powers of the State Government under the Act as far as the allotment of Government land is concerned. 8. Our quest for an answer to the question, as to whether the State Government has the power to make allotment of Government land for agriculture purpose, brings us to section 13 of the Act, which contains the power of assignment of land for special purpose. 8. Our quest for an answer to the question, as to whether the State Government has the power to make allotment of Government land for agriculture purpose, brings us to section 13 of the Act, which contains the power of assignment of land for special purpose. Section 13 reads, "Subject to rules made in this behalf under this Act, the Deputy Commissioner may set apart land belonging to the Government for pasturage for the village cattle, for forest reserves or for any other purpose", 9. A careful reading of section 13 shows that the power to keep a land reserved for pasturage for village cattle lies with the Deputy Commissioner. What section 13 further indicates is that the power vested in the Deputy Commissioner to set apart a land for pasturage shall be exercised subject to the Rules. How to reserve a land for pasturage and how to dereserve a land, already reserved for pasturage, are prescribed by rules 9 to 14 of the Rules. Rules 9 to 14 are, therefore, reproduced hereinbelow : "9(1) Whenever it appears necessary to the Deputy Commissioner, that any land should be set apart under section 13 for pasturage for cattle of any village or villages, he shall cause such land to be demarcated with temporary boundary marks and, if it has not been already cadastrally surveyed shall cause a map of it to be prepared on the scale of sixteen inches to a mile. (2) The Deputy Commissioner shall then cause a notice in Form 1 to be published declaring his intention to so set apart the land and inviting objections, if any, within thirty days from the date of publication of the notice. (3) The notice shall be published - (i) by beat of drum in the village ; (ii) by affixing a copy in some conspicuous place in the village ; and (iii) by affixing a copy on the notice board of the Court House of the issuing officer. 10. The Deputy Commissioner shall receive and enquire into any objection which may be presented to him within the period prescribed in rule 9 and on such enquiry may add any available adjacent land to the proposed pasturage so remove any land from it or confirm the proceedings. 11. 10. The Deputy Commissioner shall receive and enquire into any objection which may be presented to him within the period prescribed in rule 9 and on such enquiry may add any available adjacent land to the proposed pasturage so remove any land from it or confirm the proceedings. 11. Any objection received under rule 10 shall be heard and disposed of after a formal inquiry in the manner laid down in Schedule III: Provided that the Deputy Commissioner may consolidate and hear all the objections together. 12. As soon as may be after the disposal of all the objections under rule 10, or when no such objection has been received within the prescribed period, after the expiry of that period, the Deputy Commissioner shall cause to be published in the manner prescribed in sub-rule (3) of rule 9 a final notice declaring the land to be set apart for pasturage for the cattle of the village or villages. He shall also cause the pasturage specified in the notice to be entered in the register of pasturage and the boundaries thereof to be demarcated with such boundary marks as he may deem suitable. 13. After the declaration under rule 12 the land may be used as pasturage for the cattle of the village or villages for which it has been set apart, provided that the Deputy Commissioner may, with a view to ensure proper utilization of the land, prescribed the conditions subject to which the pasturage may be used. 14. The Deputy Commissioner may at any time modify or cancel the declaration under rule 12 and the provisions of rules 9 to 12 shall mutatis mutandis apply to such proceedings." 10. Rule 9 contains the provisions for survey and demarcation of pasturage and requires the Deputy Commissioner to publish a notice inviting objection, if any, to his intention to set apart the land for the purpose of pasturage. Rule 10 requires the Deputy Commissioner to hear the objection, if any, raised and rule 11 permits him to dispose of the objection as may be deemed fit. While rule 12 empowers the Deputy Commissioner to make a declaration of pasturage after disposing of the objection raised, if any. Rule 13 permits the use of the land as pasturage for cattle of the village or villages for which the land has been set apart following such a declaration. While rule 12 empowers the Deputy Commissioner to make a declaration of pasturage after disposing of the objection raised, if any. Rule 13 permits the use of the land as pasturage for cattle of the village or villages for which the land has been set apart following such a declaration. Rule 14 lays down that cancellation or modification of declaration of pasturage shall be made by adopting the same very procedure as are applicable for making declaration of pasturage. Rules 9 to 13 are, therefore, required to be followed mutatis mutandis for the purpose of dereserving a land, which has been kept reserved for being used as pasturage for cattle. 11. From a combined reading of section 13 and rules 9 to 13, what transpires is that it is the Deputy Commissioner, who may set apart a land, belonging to the Government, for pasturage for village cattle after publishing notice inviting objections, if any, in the manner as indicated in rules 9 to 13. What Rule 14 reflects is that when a land, belonging to the Government, is set apart by the Deputy Commissioner for pasturage for village cattle in terms of the provisions of rules 9 to 13, cancellation thereof is possible only by resorting to, as far as possible, the same very procedure, which is resorted to for reserving the land for pasturage under rules 9 to 13. The question, now, is as to whether the State Government has the power to cancel a declaration made by a Deputy Commissioner reserving a Government land for pasturage ? Though sound unreal, yet it is unbelievably true, as we notice, that under the scheme of the Acts and Rules framed thereunder, the State Government has not been vested with the power to dereserve a land, which has been reserved for, by a Deputy Commissioner in exercise of powers under section 13, the purpose of being used as pasturage. We have, in fact, cautiously and minutely scanned the scheme of the Act and the Rules framed thereunder, but we find no authority vested in the Government enabling it to cancel or dereserve a land, which has been reserved by the Deputy Commissioner, under section 13, for the purpose of pasturage. We have, in fact, cautiously and minutely scanned the scheme of the Act and the Rules framed thereunder, but we find no authority vested in the Government enabling it to cancel or dereserve a land, which has been reserved by the Deputy Commissioner, under section 13, for the purpose of pasturage. There is, indeed, power vested, in the State Government, by section 167 of the Act to take any action not inconsistent with the provisions of the Act, which may appear to it necessary for the purpose of removing difficulty faced in giving effect to the provisions of the Act. Section 167, thus, aims at removing those difficulties, which may arise, while giving effect to the provisions of the Act, When there is no provision in the Act empowering the State Government to cancel or dereeerve a land, which has been kept reserved, under section 13, for the purpose of pasturage, the question of taking resort to section 167 for the purpose of giving effect to a non-existing power of the Government and cancel thereby reservation of such a land does not arise at all. In short, thus, the State Government, in the light of the provisions of the Act and the Rules, cannot be held empowered to cancel a declaration made by a Deputy Commissioner, in exercise of power under section 13 by reserving a land for the purpose of being used as pasturage for village cattle. The cancellation of such a declaration has to be, in fact by the Deputy Commissioner concerned and, that too, by adopting the procedure prescribed under rules 9 to 13. 12. We, now, turn to section 14, which relates to allotment of Government land. Section 14 reads as follows : (1) The Deputy Commissioner may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rules as may be made in this behalf under this Act; and such rules may provided for allotment of land to persons evicted under section 15. Section 14 reads as follows : (1) The Deputy Commissioner may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rules as may be made in this behalf under this Act; and such rules may provided for allotment of land to persons evicted under section 15. (2) The State Government shall have powers - (a) to allot any such land for the purpose of an industry or for any purpose of public utility on such conditions as may be prescribed, or (b) to entrust the management of any such land or any right therein to the Gram Panchayat of the village established under any law for the time being in force. 13. Upon giving our utmost consideration to the language used by section 14, we find that while section 14(1) empowers a Deputy Commissioner to allot Government land for any of the two purposes, namely, agricultural or construction of dwelling houses, the State Government has the power to make allotment of Government land for the purpose of industry or for any purpose of public utility. The purpose of public utility would include, to our mind, use of a land for agricultural purpose in a manner, which may be regarded as use for the purpose of public utility. A distinction may, however, be drawn between the expressions 'purpose of public utility' and 'public purpose'. Section 2(t) of the Act defines the public purpose, thus : " "Public purpose" includes a purpose connected with settlement of land with cultivators, tenants ejected as a result of resumption, landless agricultural works, ex-servicemen or co-operative farming societies". Whether, in a given case, the allotment of land for agricultural purpose can be regarded as a purpose of public utility' or not will be a question of fact and has to be decided on the basis of the facts of the given case. Merely because of the fact that the Deputy Commissioner has the power to make allotment of land for agricultural purposes, it cannot, as a corollary and necessarily, be concluded that the State Government has been divested of its power to make allotment of land for such agricultural purposes as would fall within the expression 'purpose of public utility'. Merely because of the fact that the Deputy Commissioner has the power to make allotment of land for agricultural purposes, it cannot, as a corollary and necessarily, be concluded that the State Government has been divested of its power to make allotment of land for such agricultural purposes as would fall within the expression 'purpose of public utility'. We are, therefore, unable to concede to the submissions made, on behalf of the writ appellants, that section 14(2) does not empower the State Government to allot Government land for agricultural purpose even if , such allotment amounts to a 'purpose of public utility'. 14. We may, at this stage, point out that the word 'agriculture', used in the Act, has a special meaning and significance, for, the word 'agriculture' has been given a special meaning under the Act. Section 2(b) of the Act defines "agriculture" to include horticulture, the raising of annual or periodical crops or garden produce, dairy farming, poultry a farming, stock breeding and grazing and pisciculture. From the very definition of the word 'agriculture', it becomes abundantly clear that allotment of a Government land for grazing would also amount to allotment of the land for agricultural purpose, 15. What logically follows from the above discussion is that the Government may, in exercise of its powers under section 14(1) of the Act, allot a land for the purpose of being used as a grazing ground, because such allotment would be allotment for the 'purpose of public utility'. The allotment of the land by the Government for being used as a grazing ground would, in the light of the definition of the word 'agriculture' given under the Act, amount to allotment of the land for agricultural purpose. Viewed from this angle too, it is abundantly clear that Government can allot a land for the purpose of being used for grazing ground or as pasturage and such an allotment would amount to allotment of land for the purpose of public utility and, further, such allotment of land, for being used as a grazing ground, would also amount to allotment of the land for agricultural purpose in a manner, which would amount to use of the land for public utility. This, in turn, shows that the State Government does have the power, if one may repeat, to allot Government land for agricultural purpose, notwithstanding the fact that the Deputy Commissioner too has the power to allot the land e for agricultural purpose. 16. Having settled that the State Government has powers to make allotment of Government land as indicated above, when we turn to the impugned sanction order, dated 27.11.1978, we find that by this order, the State Government has dereserved the said land. As already pointed out above, we have not been able to read into the provisions of the Act any power, vested in the State Government, to dereserve a land, which has been reserved under section 13. In the case at hand, though the private respondents have raised a dispute that the land, in question, was not a Government land reserved for grazing or for the purpose of pasturage, the fact remains that the chronology of events indicate that the Deputy Commissioner requested the State Government to grant sanction to dereserve the land, in question, from being used as a grazing ground and to be used, in future, for agricultural purpose. This request made by the Deputy Commissioner has been acceded to by the State Government by making the said sanction order. The private respondents are, thus, beneficiaries of the impugned order of sanction, dated 27.11.1978. This order is nothing, but an order of sanctioning divestment of the said land from village grazing ground for agricultural purpose. The private respondents cannot approbate or reprobate being beneficiaries of the very sanction order, which has led to the allotment of the land in favour of the private respondents. True it is that a disputed question of fact is not, ordinarily, entertained in a writ proceeding. What must, however, be borne in mind is that a writ court would not be inclined to entertain a writ petition involving disputed question of facts provided that the dispute, so raised, is a real, substantive and meaningful dispute; otherwise, it would become too easy for anyone to dispute a fact in a writ proceeding for the sake of raising a dispute so that the court restrains itself from entertaining a writ petition, which is otherwise, amenable to writ jurisdiction. 17. 17. In the case at hand, though the private respondents dispute the fact that the land, in question, was a land reserved for being used as a grazing ground, the overwhelming materials on record including the revenue records, the proposal for divestment and the sanction order are all proof of the fact that the said land was a land reserved for the purpose of being utilized as a grazing ground. In the absence of anything indicating to the contrary, one cannot help, but conclude that this reservation was made under the provisions of section 13 of the Act read with rules 9 to 13. When a land is reserved under section 13, the cancellation or deservation thereof can be done by following the provisions contained in rule 14. It was for the Deputy Commissioner, (Central) Manipur, in the present case, to cancel or dereserve the land, in question. In the case at hand, it is not the Deputy Commissioner, who has dereserved the land or cancelled the declaration of the said land as pasturage. When the reservation of the land was made by the Deputy Commissioner and the Deputy Commissioner also had the power to cancel declaration of pasturage or dereserve the said land, it was the Deputy Commissioner, who ought to have exercised the powers given to him to dereserve the land. This power cannot be delegated by the Deputy Commissioner to the State Government nor can the power, so vested in the Deputy Commissioner., be exercised by State Government. In the facts and circumstances of the present case, we have no hesitation in holding that when the Deputy Commissioner has the power, under the Act, to cancel the declaration of pasturage, and he could have exercised such a power, he ought not to have referred the matter to State Government. By referring the matter to the State Government, what the Deputy Commissioner has done is to divest himself of the authority, which he had to cancel, in terms of rule 14, the said declaration of pasturage. When an authority has the power to do a certain thing, it cannot legally divest itself of such a power and request any other superior authority to exercise such a power. When an authority has the power to do a certain thing, it cannot legally divest itself of such a power and request any other superior authority to exercise such a power. When the Deputy Commissioner has the power to cancel the declaration of pasturage, he could not have divested himself of such a power and merely act on the directions of the State Government and cancel the declaration of pasturage made earlier. Reference made, in this regard, by Mr. Nilmani, to the case of Indian Banks' Association, Bombay and Others v. Devkala Consultancy Service and Others, (2004) 11 SCO 1 and the case of Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759 , is, therefore, not misplaced. 18. What crystallizes from the discussion held above is that the land, in question, was a land reserved for the purpose of grazing. This reservation, having been made under section 13, could not have been cancelled except in the manner as indicated hereinabove. Since the Deputy Commissioner has not dereserved the land or cancelled the declaration of the said land as pasturage made earlier, the exercise of power by the Governor of the State under section 14(2), in favour of respondent No. 2, is beyond the provisions of the Act and cannot, therefore, be sustained. 19. It has been pointed out by Mr. Kamal, learned counsel for the private respondent, that the writ petitioner-appellants have not challenged the order of allotment, dated 17.1.1979, made in favour of the private respondents. In view of the fact that the order, dated 17.1.1979, is based on the sanction order, dated 27.11.1978, the order of allotment cannot survive, when the sanction order is interfered with. Logically, therefore, the order of allotment would become non est in law, when the sanction order, dated 27.11.1978, is set at naught. 20. In the result and for the reasons discussed above, this appeal succeeds. The impugned order, dated 17.3.1997, whereby the writ petition has been dismissed is hereby set aside and quashed. The impugned sanction order, dated 27.11.1978, and also the allotment order, dated 17.1.1999, shall stand set aside and quashed. We further hold that the order, dated 17.1.1979, shall be treated as non est in law and shall not confer any right or authority on the private respondents. 21. The impugned sanction order, dated 27.11.1978, and also the allotment order, dated 17.1.1999, shall stand set aside and quashed. We further hold that the order, dated 17.1.1979, shall be treated as non est in law and shall not confer any right or authority on the private respondents. 21. Before parting with the appeal, we, however, make it clear that we express no opinion as to whether the land, in question, can or cannot be allotted in favour of the private respondents. 22. With the above observations and directions, the writ appeal shall stand disposed of. 23. No order as to costs.