M.KARPAGA VINAYAGAM, J. - (1.) THIS petition, by way of Public Interest Litigation, has been filed by one Social Organisation, by name, Pakur Jagran Manch. There are two reliefs, which are as follows: 16/5/2014 Page 86 (i) The respondents, the authorities of the State, have been constructing 300 bedded hospital, estimated worth Rs. 5 crore without inviting tenders on the lands situated in Mouza Solagaria belonging to J.B. No. 13 bearing Plot No. 1061, which is recorded as Gochar Land. The same has to be stopped since it is not permissible under law. (ii) After commencement of construction, the State Government issued a notification dated 31.5.2007 denotifying the said Gochar Land, in order to hand over to the Health Department for the construction of the Hospital in violation of Sections 38, 67 and 69 of the Act which is invalid. Hence, the same has to be quashed.
(2.) THE case of the petitioner is as follows: (i) The petitioner is a social organization. (ii) On coming to know that in the Village Solagaria 300 bedded hospital is being constructed on 'Gochar' Land, that too without calling for tender at a cost of Rs. 5 crore by the respondents, the petitioner organization approached the State authorities and gave representation to stop the said construction. (iii) They also filed an application under Sections 22 and 40 of the Santhal Parganas Tenancy Act for restraining the authorities from constructing the building on 'Gochar' Land. (iv) But, no action has been taken by the authorities. (v) On the other hand, the respondent authorities have begun the construction at a cost of several crores, even though under Sec. 38 of the Santhal Parganas Tenancy Act the 'Gochar' land should not be utilized for any purpose other than grazing of cattle. (vi) In a near by area the Government land is lying vacant under Plot No. 1416 which could be used for constructing the Hospital, but the respondents are carrying out the construction on 'Gochar' Land, violating the provisions of the Act. (vii) Hence, this public interest litigation. During the pendency of this petition, one ftitervenor filed LA. No. 414 of 2007 in support of the case of the petitioner. As indicated above, there are two prayers. Both the prayers, as referred to above, would involve the point with reference to the Act of the Government arranging for construction of hospital on the 'Gochar' Lands meant for grazing of cattle in violation of Sec. 38 of the Santhal Parganas Tenancy Act, 1949 and the issue of the notification denotifying the 'Gochar' land with a view to permitting the Government for such construction of the hospital. The sum and substance of the arguments, Equivalent Citation:2007 -JCR -4 -485 which are relevant in respect of both the prayers, made by counsel for petitioner and counsel for intervenor is given below: (i) The village Solagaria consisting a 'Gochar' land is situated in the District of Pakur, which is declared as a Schedule Area by the President of India vide notification No. G.S.R. 797 (E), dated 21.12.1977 in exercise of the power conferred on him under Clause (2) of Para 6 of Fifth Schedule of the Constitution of India. (ii) The legislative and Executive Powers of the State is subject to the provisions of the Fifth Schedule whereby the Governor of the State has been made guardian and custodian of the people living in the Schedule Area. (iii) The tribal farmers to perform agricultural operations, utilize domestic animals, like cow, bulls, bullocks, buffalos, etc. for ploughing, sowing, planking and other activities. They consume milk from them and thereby make other milk products. Their yielded excreta like urine and cow dung are extremely useful for production of biogas and organic manure. (iv) In order to protect the animals, some lands of the village is declared as 'Gochar' Lands or grazing land, after due inquiry. The Grazing lands is not a Government land. The State Government has no right to dispose of it in any way by its own whims and caprice. It is recorded as village common right in the record of rights under Sec. 25 of Regulation III of 1872, which is final and conclusive. (v) The 'Gochar' Lands' or grazing cannot be utilized for any other purpose and brought under cultivation by any one and every individual jamabandi raiyats has joint rights over it. Jamabandi raiyats have the right to graze their cattle free of charge on the recorded grazing lands. (vi) There are mainly two objects of 'Gochar' land or grazing land: (a) It provides rights to jamabandi raiyats (Poor Tribal Agriculturists) to graze their cattle free of cost, and without any money. Grazing land provides economic support to these indigent peoples, and is a very source and means of livelihood for them. (b) Grazing land is a part of our ecology, and helps a lot in maintaining our ecological balance by providing domestic animals of the tribals, their natural habitation, natural home and natural environment and natural vegetation. (vii) In order to achieve these two objects, Sections 38, 67 and 69 have been introduced in the Santhal Paragnas Tenancy Act providing prohibitory provisions, prohibiting the use of 'Gochar' land for some other purpose. (viii) These provisions would reveal that the areas once declared as Grazing land cannot be allowed to be cultivated nor to be used for any purpose other than grazing for the cattle and if any body encroaches these lands or using these lands for some other purpose, they are liable to be punished. (ix) In the above circumstances, the State has no jurisdiction to take away the 'Gochar' land from the purview of the Act since it snatches away and deprives the domestic animals their natural home, their natural vegetation and their habitant. (x) The impugned notification which seeks to release the 'Gochar' lands from its nature and character is without any authority of law as the 'Gochar' lands do not belong to the State nor the State can acquire the same under the mandate of Sec. 69 of the Act. Thus, question of denotifying or releasing of 'Gochar' lands by the impugned notification does not arise. (xi) Sec. 38(1) puts a specific bar under the Statute, which prevents the conversion of the nature of the 'Gochar' lands for any other use. (xii) Sec. 38(2) further clarifies if the area of 'Gochar' land is less than 5% of the village, only then other waste land of the village can be notified as 'Gochar' land. That is not the case here. Therefore, the State has no authority to construct the hospital on the 'Gochar' land on the strength of notification which lacks jurisdiction.
(3.) THE arguments advanced by the State -respondents: (i) The notification, which has been issued by the State withdrawing the area comprising of 'Gochar' land for construction of hospital was issued under Sections 2(1) and 38(2) of the Act by which more area was declared as 'Gochar' land. (ii) The effect of the notification is that area of 'Gochar' land has not been reduced. (iii) Though Sec. 38(1) puts an embargo for using the 'Gochar' land for any other purpose, it is not mandatory, it is only directory. 16/5/2014 Page 89 (vi) Though Sections 67 to 72 in Chapter -IX provides for imposing penalty with reference to the encroachment of the 'Gochar' Land, there is no penalty provided for using Equivalent Citation:2007 -JCR -4 -485 'Gochar' land for any other purpose. (v) Sec. 2 of the Act provides the power for the same. As per Sec. 2(1) of the Act, the State Government may, by notification can withdraw this Act or any part thereof from any portion of the Santhal Pargan Division and may likewise extend this Act or any part thereof to the area from which same has been so withdrawn. (vi) As a matter of fact, the construction of the hospital was started and carried on only on the direction of the High Court in its order dated 23.6.2006 in W.P. (PIL) No. 5332 of 2001. (vii) By issue of notification the only area which is involved in the construction of the hospital, i.e., 4.40 acres has been denotified whereas 4.44 acres of land in the same village has been declared to be 'Gochar' Land. (viii) The Cabinet of the State of Jharkhand convened a meeting on 8.5.2007 and denotified 4.40 acres of land. declared as 'Gochar' land and transferred the same to the Department of Health and Family Welfare of the State of Jharkhand. In the said Cabinet itself, land measuring to 4.44 acres of Government land situated in the same village has been declared to be 'Gochar' Land. This notification has been issued on 31.5.2007. (ix) As per the notification, on the proposal by the Deputy Commissioner, Pakur and also the recommendation of the Divisional Commissioner, the 4.40 acres of 'Gochar' land in Mouza Solagaria is denotified and in place of it other khas land with a total area of 4.44 acres is declared as 'Gochar' land in view of Sec. 38(2) of the Santhal Par -ganas Tenancy Act. (x) The construction of hospital has already been started in which substantial amount of Rs. 46 lakh has already been invested. Since construction has commenced in the above land, the same cannot now be used as 'Gochar' Land. ;