- (1.) THIS reference has been made by a D. B. of this Board in a case relating to the allotment of some land included in the village Charagah to an allottee in exchange for an equal area of land allotted to him from a certain Khasra No. as the land originally allotted was not considered fit for cultivation by the allottee. It was the contention of the appellants that the Collector had violated the provisions of sec. 101 of the Rajasthan Land Revenue Act read with the Rules framed thereunder in allotting the land out of the village pasture land. It was urged that the Collector had no jurisdiction to allot the pasture land entrusted to the Panchayat.
(2.) IN this connection, reliance was placed on the rule laid down in Nanuram vs. State of Rajasthan (1961 RRD 51 ). This case relates to village Barada which has a plot No. 9 measuring 204 bighas. The village was settled in the Smt. year 2008 and the entire area of this plot was entered in the settlement record as Charnot Mehfooz. At that time the village was in the Jagir and it appears that the Jagir-ars raised no objection thereto. Subsequently, however, he issued Pattas in respect of a portion of this field, measuring 74 bighas, in the names of his minor sons and a few other persons. On the strength of the Pattas mutations in the revenue records were claimed. At first, the Tehsildar refused mutations on the ground that the land in dispute was Charnot Mehfooz and, therefore, no cultivatory rights could be granted therein. On appeal, the Collector remanded the case to the Tehsildar for fresh decision whereupon the Tehsildar allowed mutation. This was followed by another appeal by the aggrieved party which was accepted by the learned Collector who set aside the order of the Tehsildar holding that the land in dispute was Charnot Mehfooz and could not be released or allotted for cultivation. Subsequently, however, it appears the Gram Panchayat at the instance of the Patta holders applied to the Collector that the area measuring 74 bighas having been brought under cultivation, fresh area bringing the total upto 204 bighas may be reserved for the village Charnot. Thereupon, the learned Collector allowed 74 bighas from Khasra No. 9 to be excluded from the Charnot and in lieu thereof permitted the area of some other plots measuring 82 bighas to be included in the village Charnot. This order was attacked in appeal before the learned Commissioner who dismissed the same holding that the Collector was competent to sanction this arrangement. This was followed by a revision petition before the Board of Revenue. The D. B. of the Board of Revenue which heard this case came to the conclusion that the learned Commissioner in upholding the order of the Collector in so far as it related to the exclusion of 74 bighas from the village Charagah had acted without jurisdiction. It was observed that the learned Commissioner appeared to have viewed the case as falling under Sec. 92 of the Rajasthan Land Revenue Act. In this connection, a reference was made to chap. II of the Government of Rajasthan Rules made under the Rajasthan Tenancy Act, 1955. The D B. quoted Rules 3 and 4 (2) made by the Government of Rajasthan to give effect to the provisions of Clause 28 of Sec. 5 and held that the combined effect of both these Rules is that the disputed area of 74 bighas must continue to be shown as Gochar Bhumi and must be excluded from assessment. It was observed that those rules take away all jurisdiction from the Revenue Courts to exclude areas from recorded Charagah and to release them for cultivation i. e. to bring them under assessment. The D. B. of this Board which heard the present case, however, did not feel persuaded to accept the above rule laid down by the previous D. B. , in view of Rule 7 of the aforesaid Rules which reads as follows: - 7. "the Land ear-marked in this manner shall be entered as pasture land or Charnot in the village papers and such land shall not be given to anyone for cultivation or for any other purpose without the sanction of the Collector. " According to this D. B. , the earlier D. B. had over-looked the above provision which authorises the Collector to sanction cultivation for Charnot lands or to put it to any other purpose. In view of this D. B. , therefore, the rule of law laid down in the case of Shri Nanuram vs. State of Rajasthan reported in RRD 1961 Page 51 that a Collector is incompetent to release Charnot land for cultivation was against the clear provision of Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955. Accordingly, therefore, the above D. B. made this reference to a larger bench of this Board for an authoritative pronouncement on this issue. We have had the benefit of hearing Sarvashri S. N. Parikh, Chaturbhuj Sharma and B. K. Parikh, Government Advocate on this issue. For facility of reference. , it would be desirable to reproduce the rules which are the subject matter of this reference. 3. Land, recorded as 'gochar Bhumi' in the village papers, or in the Settlement record, shall continue to be shown as such. 4. (1) In village where settlement operations are in a progress, the Settlement Officer shall take action for the demarcation of pasture land after making a. summary enquiry from the villagers with regard to the area in which this cattle of the village are usually grazed, and after consultation with the village Panchayat. (2) In case where the village Birs of Jagirdars used exclusively for the grazing of village cattle and no grass is cut out of it, it shall be recorded as 'gochar Mumkin Charagah, and excluded from assessment. (3) In cases where a Bir is used by the Jagirdar as a grass preserve and let out for grazing only after grass is cut and removed with or without any grazing fee, such area shall be recorded as 'bir Maqbooja Thikana. (4) In the case where any part of the Bir of a Jagirdar has been actually cultivated and is in the cultivatory possession of any individual it shall be recorded in the name of the individual concerned in such capacity in which he holds it, whether he is the Jagirdar or the tenant. (5) In cases where there is dearth of common grazing areas, parts or whole of the above noted 'maqbooza Thikana Birs' can also be turned into 'charagah'. 5. Where all land is occupied and no pasture lands exist, no action for the reservation of pasture land can be taken at present. 6. In Khalsa as well as Jagir villages, which have been surveyed and in which no pasture lands have been earmarked, the S. D. O. shall proceed to earmark such land from the unoccupied area of the village in consultation with the village Panchayat. In doing so, he shall have regard to total number of the cattle in the village and adopt roughly a scale of one-half bigha per head of cattle and also take into consideration not only the cattle population of the village but also its total unoccupied area, the area under cultivation and the demand for land for cultivation. The S. D. O. shall announce to the villagers the proposal that he intends to make; and the Collector shall give an opportunity to the villagers to adduce any objections to the proposals that they may wish to before he finally sanctions the S. D. O's proposals. 6-A. In any area which is included in any irrigation project pasture land shall be earmarked only out of unirrigated waste land or uncommanded land of the village. 7. The land earmarked in this manner shall be entered as pasture land or 'charnot' in the village papers, and such land shall not be given to any one for cultivation for any other purpose without the sanction of the Collector. Shri S. N. Parikh contended that the reference was incompetent on the basis of the facts of this case. In this connection a reference was made to sec. 48 (2) of the Rajasthan Tenancy Act which relates to the exchange of land and it was argued that under Sub Sec. (2) of Sec. 48 of the Rajasthan Tenancy Act, a land holder could in agreement with a tenant give such tenant land other than the land which is let, in exchange for the land which is included in such tenant's holding. A reference was also made to Rule 4 of Rajasthan Land Revenue (Allotment of land for Agricultural Purposes) Rules, 1957 which prohibits certain lands from being allotted. It lays down inter alia that the lands mentioned in sec. 16 of the Rajasthan Tenancy Act shall not be available for allotment for agricultural purposes under these Rules. The lists given in sec. 16 of the Rajasthan Tenancy Act, 1955 is headed by pasture land. This section clearly prohibits the allotment of khatedari right in such land, notwithstanding anything contained in the Rajasthan Tenancy Act or in any other law or enactment for the -time being in force in any part of the State. Our attention was also invited to the definition of pasture land as given in clause (28) of sec. 5. According to this definition, pasture land means the land used for the grazing of the cattle of a village or villages or recorded in settlement records as such at the commencement of this Act or thereafter reserved as such in accordance with Rules framed by the State Government. It was argued from this premise that the above mentioned rules which have been made to give effect to the provisions of this clause, relate to the land to be reserved subsequently as pasture land and that they do not govern (a) the lands already being used for the grazing of the cattle of a village or villages or (b) recorded in settlement records as such at the commencement of this Act. His contention, therefore, was that R. 7 governs only the land referred to in R. 6 which provides for the demarcation of the pasture land in Khalsa as well as Jagir villages which have been surveyed and in which no lands have been earmarked as pasture lands. It was argued that the plain meaning of R. 7 was that land earmarked in this manner shall be entered as pasture land or Charnot in the village papers and such land shall not be given to anyone for cultivation for any other purpose without the sanction of the Collector. It was argued that this rule could not by any stretch of interpretation be deemed to govern the lands referred to in rules 3 and 4. In other words, it means that the discretion of the Collector can be exercised only with regard to the lands earmarked subsequently as a result of the operations visualized in R. 6 and does not extend to the lands already used for grazing purposes or recorded as Charnot. It was argued, on the other hand, that the phrase "earmarked in this manner" in R. 7 covers all the lands earmarked as Charagah. It was contended that the pasture land as defined in the Rajasthan Tenancy Act covers three types of lands viz. (a) lands used for the grazing of the cattle of a village or villages at the commencement of this Act, (b) lands recorded in settlement records as such at the commencement of this Act, or (c) lands thereafter reserved as such in accordance with the rules framed by the State Government. R. 7 provides a bar against the misuse of such lands. It implies that the Collector shall have the power to change the nature of the use of this land and that without his express sanction, land demarcated as Charnot cannot be put to cultivation or any other use. It was stated that if the powers of the Collector are restricted only to the lands earmarked under the operations visualized in R. 6, it will create anomalies and will considerably hamper the discretion of the Collector who may be required to put such lands to other uses under the pressure of the social needs of a dynamic society such as the requirements for the extension of Abadi land, establishment of hospitals, schools, research stations and other allied purposes. These arguments have considerable weight. It is true that one of the recognised canons of interpretation of statutes is that the words used in a statute should normally be given their plain ordinary meaning. But if such a method of interpretation leads to manifest anomalies and is calculated to defect the professed and declared intention of the Legislature, it is open to the courts to abandon this rule and to interpret the words used in a manner so as to give effect to the intention of the Legislature. In Maxwell on the Interpretation of Statutes, 9th Ed. p. 236 the principle of construction is laid down as follows - "where the language of statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. " Applying this rule to the present case, it is obvious that if the power of the Collector is restricted to the lands reserved as pasture lands under rule 6, it will lead to absurdity confusion and anomalies. Clause 28 of sec. 5 indicates three sources out of which the pool of the pasture land in a village may be formed. Rules 3 to 6-A given in Chapter II of the Tenancy (Government) Rules 1955, specify all the three sources of land which ultimately go to form the village pasture. Once an area has been included in the pasture land, it would require quite a bit of research to determine from which of these three sources a particular piece of land entered as pasture land came to be included in this area. If rule 7 is to be interpreted strictly, only such land may be taken out of this pool which fell into it from the third source, namely as a result of the operations under rule 6. This would require such land to be separately demarcated for facility of recognition. To our mind, this would create an absurd situation and it can safely be said that it was far from the minds of the framers of this rule to land the administra-tors into such an absurdity. The apparent purpose of the enactment of rule 7 is to impose restrictions on the transfer of land entered as pasture land in the village papers for any other purposes except with the express sanction of the Collector. In the absence of this restriction, such land could be invaded by interested persons and pressure groups in the village to the great detriment of the cattle population. The Legislature, therefore, thought it fit to impose this restriction, On the other hand, to freeze the lands falling into this pool from the first two sources as Charnots in perpetuity would obviously appear to be an absurd proposition, in the context of a dynamic rural economy. In our opinion, such an inflexible rule would defeat the intendment of the Legislature. In conclusion, therefore, we are of the opinion that R. 7 governs all the rules laid down in Chapter II relating to the demarcation of pasture land as defined in clause 28 of sec. 5 of the Rajasthan Tenancy Act and, further, that the rule of law laid down in the case of Nanuram vs. State of Rajasthan (1961 RRD 51) is not in conformity with the provisions of the aforesaid R. 7. Before parting with the case, however, we would like to point out that no land can be excluded from the Charnot land and allotted in exchange for agricultural land merely on the application of an allottee as this would be violative of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957. R. 4 specifically prohibits the allotment of lands mentioned in sec. 16 of the Tenancy Act. R. 6 enjoins upon the Tehsildar to exclude lands of the categories mentioned in R. 4 from the list of unoccupied lands prepared under R. 5. It, further, requires the Tehsildar to see whether any unoccupied land entered in the list is required for the extension of pasture lands set apart under sec. 92 of the Act or otherwise or for the extension of the village Abadi; and if so, the Tehsildar is required to set apart suitable areas out of the unoccupied lands for this purpose in consultation with the Advisory Committee. Similarly, he is required to set apart lands required for Schools; Compost pits, Panchayat Farms and Scheduled Tribes, Scheduled castes and backward classes and for orchards and gardens. After all this action has been taken, the Tehsildar is required to issue a proclamation inviting applications from landless persons for allotment of land for agricultural purposes. This would show that the Legislature has very jealously tried to guard the exis-tence and development of Charnot lands and unless sufficient land has been reserved for this purpose, the Tehsildar may not proceed to invite applications for the allotment of land for agricultural purposes. It, therefore, follows that if a bite has to be made into the pasture land of a village, sufficiently strong reasons must exist-to justify the same and no land should be excluded from the Charnot without due consideration and sufficient cause. At the same time, the land to be allotted for agricultural purposes should first be notified to all the claimants and, their cases should be considered with due regard to their priorities. This would automatically bar the free exchange of Charnot land with agricultural land by the mere process of an application by an allottee who finds that the Charnot land is more suited for cultivation than the land already allotted to him.
(3.) WE find that as it is the Government have not so far framed any rules for the conversion of pasture land into other categories. The only restriction imposed is that this will not be done without the express sanction of the Collector. This is, to our mind, a lacuna which may lead to grave consequences and we would, therefore, recommend to the Government to consider the desirability of framing rules for this purpose also. Per R. N. Madhok, Member - I have gone through the opinion recorded by the Chaiaman and Shri G. B. K. Hooja and I regret that I cannot persuade myself to agree with the interpretation put by them on rule 7 of the Rules framed under Sec. 5 (28) of the Rajasthan Tenancy Act, 1955. Sec. 5 (28) of the Act speaks of three types of pasture land: - (a) land used for the grazing of the cattle of the village, (b) land recorded in settlement records as pasture land at the commencement of the Act, and (c) land reserved as pasture land after the commencement of the Act in accordance with Rules framed by the State Government. In my opinion it is patently clear that the Rules framed under Sec. 5 (28) refer only to category (c) of pasture lands defined in that section. The Rules framed under this section can only govern pasture land reserved as such after the commencement of the Act and this is also the meaning which emerges from a plain reading of Rules 3 to 7. These Rules are a piece of subordinate legislation and the intention of the Legislature cannot be inferred from these rules. These rules are intended merely to prescribe the process of earmarking of land as pasture land, and they cannot be given an extended measure so as to enable the Collector to divert land recorded in the settlement papers as pasture land to any other purpose. If any authority vests in the Collector to divert land recorded as a pasture land in the settlement papers to any other purpose such authority must have its origin outside the rules. I do not think these rules can be so construed as to give the Collector any power which is outside the scope of these rules. Thus I am clearly of the view that rule 7 of the Rules framed under Sec. 5 (28) confer no power on the Collector to divert land recorded as pasture land in the settlement papers to any other purpose. But this does not mean that we cannot look for such an authority having been vested in the Collector by another provision of the law. I think such a provision is sec. 92 of the Rajasthan Land Revenue Act, 1956. For convenience sec. 92 of the Land Revenue Act is reproduced below : - "92. Land may be set apart for special purpose - (1) Subject to the general orders of the State Government, the Collector may set apart land for any special purpose, such as, for free pasturage of cattle, for forest reserves, for development of abadi, or for any other public or municipal purpose; and such land shall not be used otherwise than for such purpose without the previous sanction of the Collector. " The above provisions empower the Collector to set apart land for any special purpose, such as, pasturage, forest reserves, abadi or for any other public or municipal purpose. I think this also means that the Collector may divert land vesting in Government from pasturage to forest reserves or abadi or any other public or municipal purpose. This is a power which the Collector can exercise subject to the general orders of the State Government. I am aware that Sec. 93 of the Rajasthan Land Revenue Act keeps the right of free grazing on pasture land which is available to the cattle of the village, but this right subsists only as long as the land retains the character of pasturage land and the villagers cannot claim that land once recorded as pasture land or earmarked as such cannot be put to any other public purpose. The omnibus expression used in Sec. 92 'any special purpose' in my view may even include extension of agriculture at the cost of pasture land. In taking this view, I am expressing no opinion regarding the desirability as distinguished from the legality of the order passed by the learned Collector in this case. . ;