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2020 DIGILAW 31 (JHR)

Ishwari Das v. State of Jharkhand

2020-01-09

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition has been filed for quashing the decision of the State Government to construct flats over plot nos. 645 and 646 of Khata No. 56/5 in village Rampur measuring an area of 1.46 acres and 12 acres, in total 13.46 acres (hereinafter to be called as “the said land”) as the same is “Gochar” Land. 2. The factual background of the case as stated in the writ petition is that the said land is recorded as “Gochar” land in the Record of Rights and the same is being used for the purpose of grazing. Moreover, the water logged in the said land is also being used by the villagers for cultivating their nearby fields. However, suddenly, some of the government officials assembled on the said land and started demarcating it. On inquiry, the villagers came to know that the State Government has decided to construct flats over the said land to which they objected and demanded a copy of the government’s decision, however the same was not provided to them. A detailed representation was made before the respondent no. 4- the Deputy Commissioner, Deoghar as well as the respondent no. 5- the Administrator, Municipal Corporation, Deoghar requesting inter alia not to make any construction over the said land, however no action was taken. The petitioner no. 2 sought information under the Right to Information Act, 2005 with regard to construction of flats over the said land in response to which the respondent no. 6- Circle Officer, Mohanpur, communicated on 29.04.2019 that no information is available in his office. Hence the present writ petition. 3. Learned counsel for the petitioners submits that the State authorities are bent upon to make construction over the “Gochar” land which is otherwise prohibited under the provisions of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 (in short “the Act, 1949”) and the petitioners have been left with no option but to move this Court under its writ jurisdiction. It is further submitted that Section 38 of the Act, 1949 provides that the land recorded as “Gochar” cannot be settled or brought under cultivation or utilized for any other purpose other than grazing and therefore there is a clear bar on the utilization of said land for any other purpose much less for construction of flats by State agencies. It is further submitted that Section 38 of the Act, 1949 provides that the land recorded as “Gochar” cannot be settled or brought under cultivation or utilized for any other purpose other than grazing and therefore there is a clear bar on the utilization of said land for any other purpose much less for construction of flats by State agencies. Hence, the decision of the State Government to construct the flats over the said land is arbitrary, unjust and unsustainable in the eye of law. It is also submitted that Section 38 of the Act, 1949 further contemplates that at least 5% of the land of any Mouza shall be kept as “Gochar” land. However, the said land in Mouza Rampur has only been recorded as “Gochar” land and therefore if the flats are constructed over the said land in Mouza Rampur, no “Gochar” land will be left which would be in violation of the provisions of the Act, 1949. Earlier also in the year 2010-11, some land Mafias tried to capture the said land for which the local villagers filed application before the Land Reforms Deputy Collector, Deoghar, whereupon the respondent no. 6 directed the ‘Anchal Amin’ to enquire the matter who reported that the said land is “Gochar” land. The respondent no. 6 then directed the ‘Anchal Amin’ and ‘Revenue Karamchari’ to demarcate and put a signboard on the said land. Since then the said land remained vacant and was being used for grazing purposes and water logged in the said land was being utilised by the cultivators for irrigating their nearby fields. Learned counsel for the petitioners further submits that it is a settled law that the “Gochar” land can be utilized for any other purpose only in an emergent situation, that too, after declaring some other land as “Gochar” land in the same village. However in the present case, the State authorities have not followed the said settled principles of law. It is also submitted that the village- Bara where the land is proposed to be notified as “Gochar” is 15-20 km away from Rampur village. So far as Bara village is concerned, the same is itself a Panchayat whereas village Rampur where the present “Gochar” land is situated, was earlier the part of Punsia Panchayat and subsequently included in the municipal area of Ward No. 25. Moreover, Rampur and Bara both are independent villages. So far as Bara village is concerned, the same is itself a Panchayat whereas village Rampur where the present “Gochar” land is situated, was earlier the part of Punsia Panchayat and subsequently included in the municipal area of Ward No. 25. Moreover, Rampur and Bara both are independent villages. The said land is only “Gochar” land situated in village Rampur and the same itself is less than 5% of the land existing in Rampur village. It is lastly submitted by the learned counsel for the petitioners that the resolution dated 17.11.2016 does not empower the Deputy Commissioner to de-notify the “Gochar” land in any other village, rather the same empowers the said authority to notify other land in the same village. 4. On the contrary, learned counsel for the State-respondents as well as the respondent- Municipal Corporation, Deoghar submit that for implementation of a project under “Pradhan Mantri Awas Yojana (Urban)” Phase I and III, a part of the said land measuring an area of 5 acres has been proposed to be transferred to Urban Development & Housing Department, Government of Jharkhand, and in lieu thereof, particularly keeping in view to compensate the loss of “Gochar” land, a land pertaining to ‘Gairmazarua’ Khata No. 46, plot No. 1170 (parti kadim) measuring an area of 5 acres within Mouza Bara, Thana No. 428 is proposed to be acquired by the State Government for the said purpose. Pursuant to the proposal, the respondent no. 4 vide order contained in Memo No. 931/Rev. dated 28.03.2018 de-notified 5 acres of land of plot no. 646 under Gairmazaurua Khata No. 581 from the entry of “Gochar” land and notified 5 acres of land pertaining to Gairmazarua Khata No. 46 over Plot No. 1170 (part) under Thana No. 428, Mouza-Bara as “Gochar” land. Pursuant to the resolution No. 5959/Rev. dated 17.11.2016 issued by the Department of Revenue, Registration and Land Reforms, Government of Jharkhand, Ranchi, the power has been conferred on the Deputy Commissioner to de-notify/notify the “Gochar” land for the purpose of making interdepartmental transfer of land without any consideration. In exercise of the said power, the respondent no. 4 issued an order contained in memo no. 931/Rev. dated 17.11.2016 issued by the Department of Revenue, Registration and Land Reforms, Government of Jharkhand, Ranchi, the power has been conferred on the Deputy Commissioner to de-notify/notify the “Gochar” land for the purpose of making interdepartmental transfer of land without any consideration. In exercise of the said power, the respondent no. 4 issued an order contained in memo no. 931/Rev. dated 28.03.2018 whereby the Gairmazarua land pertaining to Gairmazarua Khata No. 58, Plot No. 646 (part) measuring an area of 5 acres of land was de-notified and handed over to Urban Development & Housing Department, Government of Jharkhand and an area of 5 acres being part of plot no. 1170 within Gairmazurwa Khata No. 46 under Mouza- Bara Thana No. 428 was notified as “Gochar” land to compensate the loss of “Gochar” land of 5 acres in Mouza Rampur Thana No. 581. It is further submitted that as per the report of the Revenue Sub-Inspector, Mohanpur, there is no Parti Kadim Government Land available in village Rampur, Thana no. 581 to convert it as “Gochar” land as per the preliminary inquiry based upon the available documents relating to record of rights as several records are under the custody of CBI. It is also submitted by the learned counsel for the respondents that a ‘Gram Sabha’ was convened on 02.01.2018 which was presided over by the ‘Gram Pradhan’ and no one raised any objection in this regard, rather the raiyats of the said village gave their consent for acquisition of the said land. Only the petitioners with a view to restrain the State Government from executing the social scheme, have filed the present writ petition which is liable to be dismissed. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have sought intervention of this court with the decision of the State Government in de-notifying the said land from “Gochar” land. Learned counsel for the respondents while justifying the said decision, has submitted that the same has been taken for implementing the scheme of ‘Pradhan Mantri Awas Yojna (Urban)’ which is a noble social scheme to provide houses to the poor people of the area. It has also been contended on behalf of the respondents that while de-notifying the said land from “Gochar” land, another land of similar measurement has simultaneously been notified as “Gochar” land in another Mouza i.e. Bara. 6. It has also been contended on behalf of the respondents that while de-notifying the said land from “Gochar” land, another land of similar measurement has simultaneously been notified as “Gochar” land in another Mouza i.e. Bara. 6. The Hon’ble Supreme court in the case of State of Jharkhand & Others Vs. Pakur Jagran Manch & Others reported in (2011) 2 SCC 591 has held as under:- “19. 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 reopened until a fresh settlement is made, the entries in the record-of-rights can be reopened and altered with the previous sanction of the State Government. It is therefore clear that even if a land had been recorded as a gochar in the record-of-rights of a village in pursuance of a settlement under the Regulation, it can be reopened and altered at any time, without waiting for the next settlement, with the previous sanction of the State Government. 23. We should however note that such dereservation of any government land reserved as gochar, should only be in exceptional circumstances and for valid reasons, having regard to the importance of gochar in every village. Any attempt by either the villagers or others to encroach upon or illegally 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 unutilised land in the village and not gochar. 24. Whenever it becomes inevitable or necessary to dereserve any gochar for any public purpose (which as stated above should be as a last resort), the following procedure contemplated in Regulations 24 and 25 and Section 38(2) should be strictly followed: (a) The jurisdictional Deputy Commissioner shall prepare a note/report giving the reasons why the gochar had been identified for any non-grazing public purpose and record the non-availability of other suitable land for such public purpose. The Deputy Commissioner shall send the said proposal for dereservation to the State Government for its previous sanction. (b) The State Government should consider the request for sanction keeping in view the object of gochar and the need for maintaining a minimum of five per cent of village area as gochar, and call for suggestions/objections from the villagers before granting sanction. (b) The State Government should consider the request for sanction keeping in view the object of gochar and the need for maintaining a minimum of five per cent of village area as gochar, and call for suggestions/objections from the villagers before granting sanction. (c) If the State Government grants the sanction, the Deputy Commissioner should proceed to make an order dereserving, the gochar by making appropriate entries in the record-of-rights and reclassifying the same for the purpose for which it was dereserved. (d) Whenever the gochar in a village is dereserved and diverted to non-grazing use, simultaneously or at least immediately thereafter the State should make available alternative land as gochar, in a manner and to an extent that the gochar continues to be not less than 5% of the total extent of the village as provided under Section 38(2) of the Tenancy Act. 25. When the gochar is not government land, but is village common land vesting in the villagers and not the Government, the consent of village headman and the jamabandi raiyats/villagers in whom the land vests shall have to be obtained, before dereservation and diversion of use of gochar.” 7. It is thus well settled that even if a land has been recorded as “Gochar” in the record of rights of a particular village, in pursuance of a settlement under the Act, 1949, it can be reopened and altered at any time, without waiting for the next settlement with the previous sanction of the State Government. However, the de-reservation of the “Gochar” land has to be made only in exceptional circumstance and for valid reasons. When any “Gochar” land is deserved, the State Government should also make available an alternative land as “Gochar”. Moreover, since the “Gochar” land is treated as common village land, the consent of the village headman and the jamabandi raiyats is also required to be obtained before de-reservation of the “Gochar” land. 8. Coming to the facts of the present case, admittedly, in order to implement the scheme of the central government i.e. ‘Pradhan Mantri Awas Yojna (Urban)’, the respondent no. 4 vide letter dated 28.03.2018 denotified the said land from “Gochar” and simultaneously notified another land of same measurement in Mouza Bara as “Gochar”. The petitioners have not disputed the said fact. Coming to the facts of the present case, admittedly, in order to implement the scheme of the central government i.e. ‘Pradhan Mantri Awas Yojna (Urban)’, the respondent no. 4 vide letter dated 28.03.2018 denotified the said land from “Gochar” and simultaneously notified another land of same measurement in Mouza Bara as “Gochar”. The petitioners have not disputed the said fact. However much emphasis has been given by the learned counsel for the petitioners that the land which has been notified as “Gochar” is situated in a different village and thus the action of the State Government is not in consonance with the direction given by the Hon’ble Supreme Court in the case State of Jharkhand & Others Vs. Pakur Jagran Manch & Others (supra). The specific stand taken in the supplementary counter affidavit by the State respondents is that there is no Parti Kadim (government land) available in village Rampur so as to convert it as “Gochar” and the said factual stand has also not been controverted by the petitioners. Moreover, it is evident from Annexure-D to the supplementary counter affidavit dated 22.11.2019 that in the ‘Gram Sabha’ held on 02.01.2018 under the chairmanship of ‘Gram Pradhan’, it was resolved that the villagers consented for implementation of ‘Pradhan Mantri Awas Yojna (Urban)’ upon the said land. Otherwise also, though the petitioners have claimed that they have been duly authorized by the residents of the said village to file the present writ petition on their behalf, they have not annexed any such authority letter issued by the villagers holding a ‘Gram Sabha’ for taking up the said call. In fact, the resolution taken by the ‘Gram Sabha’ on 02.01.2018 appears to be otherwise. 9. Since the State Government is empowered to de-notify the “Gochar” land for a valid reason and the said authorities have taken appropriate steps for implementing the scheme of the Central Government, in my view, the interest of the villagers is not going to hamper. Thus, I see no reason to interfere with the said decision of the state government. 10. The present writ petition is, accordingly, dismissed.