Gauhati High Court
Md Joynal Abedin vs The State Of Assam And Ors on 27 September, 2019
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
Page No.# 1/17
GAHC010223632010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2105/2010
1:MD JOYNAL ABEDIN
SON OF LT. TAYAB ALI R/O VILL. NO. 2 SHIVPUR P.O. BURUNGATULI, P.S.
MURJHAR, DIST. NAGAON, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND ORS
REP. BY THE SECRETARY, REVENUE AND DISASTER MANAGEMENT
SETTLEMENT BRANCH, DISPUR,GUWAHATI-6.
2:THE DEPUTY COMMISSIONER
NAGAON
DIST. NAGAON
ASSAM.
3:THE SUB DIVISIONAL OFFFICER CIVIL
SANKARDEV NAGAR
HOJAI
NAGAON
ASSAM.
4:MARKAJUL MA'ARIF
HOJAI
REP. BY ITS CHAIRMAN MAULANA BADARUDDIN AJMAL SON OF LT.
HAJI AJMAL ALI RESEIDENT OF HOJAI
NAGAON
ASSAM
Advocate for the Petitioner : MD.A KHAN
Advocate for the Respondent : MR.S DUTTAR-4
Page No.# 2/17
Linked Case : WP(C) 2203/2013
1:MARKAZUL MA'ARIF
REP. BY ITS MANAGER MD. KHALILUR RAHMAN LASKAR
S/O- LT. SHURMAN ALI LASKAR
R/O VILL.- MABARAKBASTI
P.S.- MARAJHAR
NAGAON
ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 2 ORS
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI
ASSAM
PIN- 781006.
2:THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
REVENUE DEPTT.
DISPUR
GHY- 6.
3:THE DY. COMMISSIONER
NAGAON
ASSAM.
Advocate for the Petitioner : MR.B C DAS
Advocate for the Respondent : GA
ASSAM
Linked Case : WP(C) 5306/2013
1:MARKAZUL MA'ARIF
REP. BY ITS MANAGER MD. KHALILUR RAHMAN LASKAR
SON OF LT. SHURMAN ALI LASKAR R/O VILL- MOBARAK P.S. MARAJHAR
NAGAON
ASSAM
VERSUS
Page No.# 3/17
1:THE STATE OF ASSAM AND 3 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI
ASSAM
PIN- 781006.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
REVENUE DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE COMMISSIONER and SECRETARY
TO THE GOVT. OF ASSAM
REVENUE and DM DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE DEPUTY COMMISSIONER
NAGAON
ASSAM.
Advocate for the Petitioner : MR.N S LASKAR
Advocate for the Respondent : MR.A R TAHBILDAR
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 27-09-2019 This order will dispose of WP(C) No.2105/2010, WP(C) No.2203/2013 and WP(C) No.5306/2013.
2. Heard Mr. P.K. Roy Choudhury, learned counsel for the petitioner in WP(C) No.2105/2010; and Mr. B.C. Das, learned Senior counsel, assisted by Mr. D.N. Bhattacharyya, learned counsel for the petitioner in WP(C) Nos.2203 and 5306/2013, petitioner being common in both the proceedings. Also heard Mr. D. Mazumdar, learned Additional Advocate General, Assam assisted by Ms. J. Kakoti, learned counsel for the State respondents as well as Mr. P.S. Deka, learned Standing Counsel, Revenue Department, Government of Assam.
3. In WP(C) No.2105/2010, Md. Joynal Abedin is the petitioner whereas in the other two writ petitions, Markazul Ma'arif is the petitioner.
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4. In WP(C) No.2105/2010, prayer made is for a direction to the respondents for settlement of land under occupation of the petitioner forming part of the Village Grazing Reserve (VGR) whereas in the latter two cases, challenge made by the petitioner is to the cancellation of allotment of VGR in favour of Markazul Ma'arif.
5. Facts of individual cases may be briefly highlighted.
5.1 WP(C) No.2105/2010(i) According to the petitioner, he is a poor landless person living below the poverty line. He is somehow managing his family comprising of 13 members by earning daily wages.
(ii) There is a grazing reserve called Padum Pukhuri Grazing Reserve under Padum Pukhuri Kissam within Kapasbari Mouza in Hojai Sub-Division of Nagaon district covered by Dag Nos.247 and 216. There is about 400 bighas of land within this reserve which was so reserved about 50 years back for the benefit of the people of the nearby villages.
(iii) About 25 numbers of families were given settlement in one corner of the said grazing reserve by the Government. Petitioner has stated that he has been residing over a small area measuring about 3 bighas of the said grazing reserve since the last 13 years.
(iv) In January, 2009, petitioner submitted a representation before the Chief Minister, Assam seeking his intervention in settlement of the said land. In this connection, Revenue Department, Government of Assam on 08.05.2009 directed the Deputy Commissioner, Nagaon to cause an enquiry and to submit report.
(v) While settlement of the land in favour of the petitioner was yet to be finalized, petitioner apprehended threat to dispossession at the instance of respondent No.4 which is the petitioner in WP(C) Nos.2203 and 5306/2013.
(vi) With the above grievance, present writ petition came to be filed seeking the relief as indicated above.
(vii) This Court by order dated 31.03.2010 had issued notice. Thereafter, on 09.04.2010, this Court passed an interim order directing the respondents to maintain status quo as regards possession of the land in question as on 09.04.2010.
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(viii) A common affidavit has been filed by respondent Nos.1 to 3. Stand taken in the affidavit is that there is no record of the petitioner being a landless person; rather petitioner was found to be an occupier of about 3 bighas of land out of total 150 bighas of land allotted to Krishi Vigyan Kendra, Hojai. There is also no record of the petitioner seeking settlement of land occupied by him. Threat of dispossession expressed by the petitioner has been denied. It is also stated that petitioner was not eligible for allotment of land out of grazing reserve as per land policy of Government of Assam.
(ix) Respondent No.4 has also filed a counter affidavit. Stand taken is that a group of persons had initially filed PIL No.29/2010 questioning settlement of land in favour of Krishi Vigyan Kendra, Hojai. However, the PIL was withdrawn and accordingly it was dismissed on withdrawal vide order dated 13.06.2011. Regarding claim of the petitioner, it is contended that name of the petitioner was not found in the voter's list prior to the general elections held in the year 1985 and his nationality is also doubtful. Regarding allotment of land to the Krishi Vigyan Kendra, Hojai, it is contended that it is in the public interest and would help in the development of agriculture in the Hojai area. The land was de-reserved and thereafter allotted to Krishi Vigyan Kendra. Some encroachers had encroached upon the land allotted to respondent No.4 but they were evicted except the petitioner.
(x) Petitioner has filed reply affidavit to the affidavits filed by both set of respondents.
5.2. WP(C) No.2203/2013(i) As already noted, in this writ petition Markazul Ma'arif represented by its Manager Md. Khalilur Rahman Laskar is the petitioner. Petitioner has challenged order dated 17.12.2012 passed by the Deputy Commissioner, Nagaon recommending to the Revenue Department, Government of Assam that allotment of land to Krishi Vigyan Kendra be set aside and that the VGR be restored to its original shape.
(ii) According to the petitioner, it is a non-government organization established in the year 1982 with its head office at Hojai. Markajul Ma'arif literally means center of knowledge. It was registered under the Societies Registration Act, 1860.
(iii) With a view to provide vocational education in agriculture and allied fields, petitioner set up Krishi Vigyan Kendra which is a brainchild of agricultural research by Indian Council for Page No.# 6/17 Agricultural Research.
(iv) Petitioner wrote to the then Chief Minister of Assam on 10.03.1993 for allotment and settlement of a plot of land measuring 50 acres out of the Padum Pukhuri Grazing Reserve in favour of the Krishi Vigyan Kendra.
(v) Sub-Divisional Officer (C), Hojai vide his letter dated 27.09.1995 recommended to the Government allotment of 150 bighas of land out of 400 bighas in the said VGR for establishment of the Krishi Vigyan Kendra.
(vi) It is stated that Government decided to de-reserve 50 acres of land in the VGR for allotment to the petitioner for setting up Krishi Vigyan Kendra. This decision was communicated by the Deputy Secretary to the Government of Assam, Revenue (S) Department to the Deputy Commissioner, Nagaon vide letter dated 11.12.1995. As per the aforesaid letter, Government had ordered for de-reservation of VGR land measuring 50 acres and allotment of the said land in favour of Krishi Vigyan Kendra subject to utilization of the land within three years for the specific purpose for which it was allotted failing which it was mentioned that the land in question would automatically be reverted to the Government of Assam in Revenue (S) Department.
(vii) It is stated that on being directed, petitioner deposited premium amount of Rs.1,82,490.00. Thereafter, the land was handed over to the petitioner by the concerned Circle Officer on 31.07.1996. It is stated that after taking over possession of the allotted land on 31.07.1996, petitioner started construction of Krishi Vigyan Kendra. Moreover, a Memorandum of Understanding dated 17.07.1999 was entered into with the Sub-Divisional Agriculture Officer, Hojai for providing resource persons to conduct training courses.
(viii) It is stated that from 2009 onwards, a group of people started a move to maintain the Padum Pukhuri Grazing Reserve in its original shape and to cancel the allotment made in favour of the petitioner. It is in this backdrop that PIL No.29/2010 was filed only to be dismissed on withdrawal. Thereafter, the Deputy Commissioner, Nagaon passed the impugned order dated 17.12.2012 recommending to the Revenue Department, Government of Assam for cancellation of the allotment made in favour of the petitioner and for restoration of the VGR to its original shape.
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(ix) Though petitioner submitted representation dated 26.02.2013 before the Principal Secretary to the Government of Assam, Revenue Department, no decision was taken thereon.
(x) Aggrieved, present writ petition has been filed. (xi) This writ petition was initially taken up by a Division Bench along with a PIL. An order
was passed on 21.05.2013 to the effect that Deputy Commissioner, Nagaon would ensure that no construction activity takes place on the land involved.
(xii) Petitioner filed an additional affidavit to bring on record a copy of report dated 26.11.2012 submitted by the Circle Officer, Doboka to the Deputy Commissioner, Nagaon.
(xiii) Respondents have filed a common affidavit through Sri Dinesh Chandra Saud, Under Secretary to the Government of Assam, Revenue and Disaster Management Department. In the said affidavit, it is stated that Commissioner and Secretary of the said Department had conducted an enquiry through the Commissioner, North Assam Division about the irregularities and receipt of premium from the petitioner when the land was not allotted to the petitioner and under what circumstances land was handed over to the petitioner. This enquiry report has been annexed to the affidavit. It is asserted that land was not allotted to the petitioner. Therefore, letter of the Additional Deputy Commissioner, Nagaon dated 05.07.1996 asking the petitioner to deposit premium was not sustainable. That apart, petitioner could not produce mandatory Memorandum of Understanding with Indian Council for Agricultural Research for establishing Krishi Vigyan Kendra. It is stated that the Krishi Vigyan Kendra was renamed as Ajmal Rural Technology and Demonstration Center which possessed the said plot of land. Petitioner possessed the said plot of land without any allotment by the Government. There is not a single Government order to show that the land was allotted to the petitioner or to the Ajmal Center. Recommendation of Deputy Commissioner, Nagaon has been justified.
(xiv) Petitioner has filed a rejoinder affidavit to the counter affidavit of the respondents.
5.3. WP(C) No. 5306/2010(i) Subsequent to the recommendation of the Deputy Commissioner dated 17.12.2012, Commissioner and Secretary to the Government of Assam, Revenue and Disaster Page No.# 8/17 Management Department had issued order dated 05.08.2013 cancelling the allotment made in favour of the petitioner besides deciding to conduct an enquiry regarding handing over of the land to the petitioner and unauthorized receipt of premium from the petitioner.
(ii) Notice in this case was issued on 13.09.2013 with an interim order giving liberty to the respondents to proceed with cancellation proceeding but not to dispossess the petitioner without leave of the Court.
(iii) Respondent No.2 has filed an affidavit through Additional Deputy Commissioner, Nagaon who has stated that she was authorized by respondent No.2 to swear the affidavit supporting the recommendation of the Deputy Commissioner as well as cancellation of allotment by the Government.
(iv) Petitioner has filed reply affidavit.
6. While Mr. P.K. Roy Choudhury, learned counsel for the petitioner in WP(C) No.2105/2010 submits that the writ petition has become infructuous as the petitioner was evicted from the land, Mr. B.C. Das, learned Senior counsel for the petitioner Markajul Ma'arif submits that grounds given by the Government for cancellation of allotment are wholly irrelevant and cannot stand the test of law. The order must be able to stand on the strength of the reasons given in the order itself. Refuting the contention of the respondents that land was not allotted to the petitioner he submits that Krishi Vigyan Kendra was a project of the petitioner and petitioner had applied for a parcel of land for establishment of Krishi Vigyan Kendra. It is the authority which had shown the land allotted in favour of Krishi Vigyan Kendra though a copy of the order was marked to the petitioner. Therefore, the contention that land was not allotted to the petitioner is wholly unsustainable. It is further submitted that the ground given that the time limit of three years for utilization of the land was not adhered to for which the land stood reverted to the Government is clearly unsustainable inasmuch as the said period would commence from the time certificate of title is granted. He further submits that by its own conduct, Government held out a clear promise to the petitioner from which position it cannot resile by invocation of the doctrine of promissory estoppel. Besides, such conduct on the part of the Government has given rise to legitimate expectation to the petitioner.
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7. Mr. D. Mazumdar, learned Additional Advocate General, Assam sought to distinguish between allotment and settlement of land. He submits that the land in question was not yet settled with the petitioner. Mere allotment of land and payment of premium would not confer any right. Besides, land was allotted to the Krishi Vigyan Kendra and not to the petitioner. Rules do not provide for allotment/settlement of VGR land. Therefore, there can be no estoppel against the statute. He further submits that no promise was held out by the Government to the petitioner. If relief claimed is contrary to law, neither promissory estoppel nor legitimate expectation will come into the picture.
8. In his reply submission, Mr. Das, learned Senior counsel for the petitioner, reiterates his contention pertaining to promissory estoppel and legitimate expectation. He has also referred to the Land Policy, 1989 and contends that reservation of VGR land would also include de- reservation.
9. In support of their respective submissions, learned counsel for the parties pressed into service a large number of judgments.
10. Submissions made by learned counsel for the parties have been considered. Also perused the judgments relied upon.
11. At the outset, it would be apposite to advert to the recommendation made by the Deputy Commissioner, Nagaon and the order passed by the Government. Deputy Commissioner in his order dated 17.12.2012 recorded the following findings:-
"I have gone through all the relevant documents and given sufficient hearing to all the parties concerned. These are the findings of the case in question.
1. It is evident from the original copy of chitha that the land has been allotted in the name of Krishi Vigyan Kendra and the name of Markazul Ma'arif does not appear in any part of chitha or any land records. However, ICAR guidelines lay down the following conditions:-
The land proposed should be absolute property of the organization and not a single or joint property in the name of any individual.
The organization should have clear and marketable title to the land/property.
The NGO should mortgage the land in favour of ICAR.
Page No.# 10/17 Although the NGO has the possession certificate of the land, it has failed to produce the original title of the land, because the government has allotted the land in the name of KVK not in the name of Makrazul Ma'arif. Though the Government has allotted land to KVK, the reason for handing over of land to Markazul Ma'arif and furthermore taking premium from them is not understandable.
The ICAR in its letter dated 16.01.1996 has again reiterated that the concerned NGO should ensure that the title of land vests with the NGO, Makrazul Ma'arif before taking further necessary action at their end.
2. Further, the ICAR guidelines say that "For effective and successful implementation of the project of KVK, a Memorandum of Understanding (MoU) between the Indian Council of Agricultural Research and the Grantee/Host Institution shall be entered into. However, the NGO has failed to produce original MoU document signed with ICAR in which the ICAR had formally given approval for the setting up of Krishi Vigyan Kendra at Hojai.
3. It is quite discernible from the website of Indian Council of Agricultural Research that the name of Makrazul Ma'arif, Hojai does not feature in its list of Krishi Vigyan Kendras. The only Krishi Vigyan Kendra in the district of Nagaon is in Regional Agricultural Research Station, Shillongani, Nagaon-782002 which was established in the year 2004, the host organization being the Assam Agriculture University, Jorhat.
4. It is pertinent to mention that the letter from Dr. P. Das, Deputy Director General (AE) dated 16.10.1995 indicates the funding pattern i.e. 100% funding from ICAR for the first 5 years and 75% for the next 5 years after which there will be no funding from ICAR. However, the NGO Makrazul Ma'arif could not show any vouchers with regard to financial transactions between the NGO and the ICAR.
5. Further, it appears name of the organization has been changed and used as Ajmal Rural Technology and Demonstration Center (ARTDC). The NGO/Center has been running courses in its private capacity for individuals while charging them the course fee. It has got nothing to do with Krishi Vigyan Kendra or ICAR.
6. Referring to the letter of Deputy Secretary to the Government of Assam dated 11/12/1995 in which it is stated that the government orders for de-reservation of VGR land measuring 50 Page No.# 11/17 acres covered by Dag No.247 of village Padum Pukhuri and allotting that land in favour of Krishi Vigyan Kendra subject to utilisation of the land within three years for the specific purposes for which it is allotted failing which the land in question will automatically be restored to the government.
From the Government order in 1995 till 1998, there is no proof to show that the land is used for KVK. (However, it is observed that the NGO started construction only on 17.12.2008 which is well and above the ceiling of 3 years prescribed by the government. This observation is given without expressing any direct/indirect right to the NGO on the land). This was highlighted by the then SDO (Civil) Hojai in his letter dated 20.09.2005 to the DC Nagaon that the land possessed was not utilized by the concerned NGO even after 10 years. But no action was taken then. Moreover, the President of Makrazul Ma'arif himself has given undertaking that there is an English Medium School operating on the land allotted for KVK. The Principal of the English Medium School was also called during the hearing. The Circle Officer, Doboka has also found the school during his inspection. To my surprise, 3 bighas of land out of total 151 bighas has been encroached by one Sri Jainal Abedin, s/o late Tayab Ali with or without the consent of the NGO. This shows that the NGO is using land for its own purposes.
7. It is also worth mentioning that the Hon'ble Gauhati High Court in its interim order dated 10.05.2010 asked the government to file the documents leading to the allotment of the land enabling the Court to understand as to why such land which was earlier reserved for grazing area was converted into private land and has been allotted to respondent No.5. However, these are untraceable except for a letter written by the Deputy Secretary, Govt. of Assam dated 11.12.1995 allotting the land in the name of KVK. Further, the Circle Officer, Lanka's letter to SDO (Civil) Hojai dated 12.12.1997 states that "except the above, no other allotment order regarding allotment of land to Makrazul Ma'arif is available in our office".
8. The NGO Makrazul Ma'arif had written to Additional Chief Secretary praying for settlement certificate (patta) on 08.10.2006. This shows that the NGO does not have the title rights to the land in question.
9. The NGO entered into a MoU dated 17.07.1999 with Shri Subodh Chandra Paul the then Sub-Divisional Agriculture Officer, Hojai for providing resource persons for conducting the Page No.# 12/17 training. However, it has to be noted that the SDAO, Hojai is not a competent authority to sign any sort of MoUs with anybody. The Government means Secretary to the Government of a department. The SDAO is relatively junior field level post. It is pertinent to mention that the present SDAO stated that there are no such office records of this so called MoU. This concludes that the then SDAO has signed the agreement in his personal capacity with the NGO for the best reasons known to him and the NGO. Moreover, he has already expired after his retirement.
10. It attains significance in the light of landmark judgment passed by Hon'ble Supreme Court in the case of Jagpal Singh and others vs. State of Punjab (SLP 19869 of 2010). In its January 28, 2011 decision, the apex court directed all State Governments to prepare schemes for the eviction of those occupying village commons and restore them to the community. It asked the States to submit compliance reports by May, 2011. As per the National Sample Survey Organisation, common property resources of the village including grazing reserves, forests, common threshing grounds, ponds, irrigation channels and rivers which constitute 15 percent of the country's total area are shrinking at the rate of 1.9 percent every five years due to encroachment. The Hon'ble Supreme Court expressed shock that on this matter in this case.
11. The ICAR norms indicate that there has to be a Permanent Committee of a KVK. The Deputy Commissioner, Sub-Divisional Officer (Civil), representatives of Assam Agricultural University and Dept of Agriculture, Assam, some local people are the members of this committee. However, till now there has not been a single meeting of this Permanent Committee. In addition to this, there has to be a Local Management Committee too as per the letter of ICAR, Barapani, Meghalaya dated 23.02.1996. Even this committee is conspicuously absent.
The case can be summarized as follows:
Ø This assumed allotment of Village Grazing Reserve to a NGO and its possession is a clear violation of the ruling of the Hon'ble Supreme Court.
Ø The non-utilization of land within time is violation of the terms of allotment and land should have automatically reverted to Government.
Ø A part possession/encroachment of the land by a third party is again a violation.
Ø Utilization for the purposes not meant in the original allotment letter for school buildings Page No.# 13/17 etc is also a violation of Government order."
12. After holding the no objection certificate of Gaon Panchayat Secretary and Gaonburah as irrelevant as not being statutorily authorized to deal with allotment or possession of land in any manner, Deputy Commissioner declared the petitioner to be in illegal occupation of the land and recommended cancellation of allotment. It was held thus:-
"Keeping in mind the above findings, respondent No.5 is guilty of encroachment and illegal occupation of land without having necessary title of the land. Therefore, the contentions raised in the representation are factually correct and legally tenable. In the facts and circumstances of the case, I recommend to the Revenue Department, Government of Assam that the allotment of the land to the KVK be set aside and the Village Grazing Reserve be restored to its original shape."
13. Commissioner and Secretary to the Government of Assam, Revenue and Disaster Management Department considered the report of the Deputy Commissioner. Accepting the recommendation, Government decided to cancel the allotment. Relevant portion of the order of the Commissioner and Secretary dated 05.08.2013 is extracted hereunder:-
"Now, after due consideration of the grounds cited by the DC, Nagaon for cancellation of the allotment granted in favour of KVK, the representation/Appeal petition submitted by the Makrazul Ma'arif dated 26.02.2013 dated 14.03.2013 and 31.07.2013 and the facts mentioned above, Government has come to the opinion that - (1) the land under reference allotted in favour of KVK has not been utilized for the purpose for which the same was allotted within the stipulated 3 years period, (2) the District Revenue Authority, Nagaon unauthorisedly and irregularly handed over the possession of the land to the Makrazul Ma'arif and (3) the payment of premium by the Makrazul Ma'arif and receipt of the same by office of the DC, Nagaon are unauthorized and irregular as the payment and acceptance of premium do not arise for allotted land.
Government, therefore, considering all aspects, agree with the recommendation of the DC, Nagaon for cancellation of the allotment as submitted vide order No.NRP.106/2012/199 dated 17.12.2012 and accordingly decides to cancel its earlier order vide No.RSS.1034/95/14 dated 11.12.1995 in the matter of allotment of 151 bighas of land in favour of KVK and also to restore Page No.# 14/17 the said land to its original status of VGR as specified in DC's order and issue necessary order accordingly."
14. The above recommendation of the Deputy Commissioner and cancellation of allotment by the Government cannot be said to be arbitrary, unreasonable or irrational. A second view may be taken but that does not mean the recommendation and consequential order become unsustainable in law.
14.1. In so far grazing ground is concerned, Regulation 13 of the Assam Land and Revenue Regulations, 1886 provides that the State Government may make Rules for the allotment of grazing grounds to inhabitants of any village in the neighbourhood whom it considers in need of such allotment and to regulate and control enjoyment of those grazing grounds.
15. Grazing ground per se has not been defined under the Settlement Rules framed under the aforesaid Regulations though waste land has been defined under Rule 1(2)(b) of the Settlement Rules to generally mean land at the disposal of the Government which has not been disposed of by lease etc, which is not included in a reserve forest etc and which has not been allotted as a grazing ground. However, as per Rule 16, lease shall be issued on written application only and no person shall enter into possession of waste land in any area until a lease has been issued to him or on a written permission by Deputy Commissioner pending issue of such lease.
16. Chapter II comprising of Rules 83 to 96 of the Settlement Rules deals with allotment of grazing grounds. Rule 83 starts the initiation of survey and demarcation of grazing grounds. As per Rule 95, no person shall occupy any part of grazing ground for purposes other than grazing, contravention of which will invite fine as a penalty. Rule 95A is relevant. It says that if at any time the Deputy Commissioner is of opinion that a village grazing ground constituted under the Settlement Rules is wholly or in part not needed for the purpose for which it was allotted, he shall publish a notice regarding the proposed cancellation of the allotment, hear objections and forward his proceedings together with his recommendation to the Government for final order(s). The Government will pass order(s) either accepting, rejecting or modifying the recommendation of the Deputy Commissioner.
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17. Therefore, it is evident that Chapter-II of the Settlement Rules more particularly Rule 95A thereof provides a procedure to be followed by the Deputy Commissioner for recommending de-reservation of village grazing ground. Unless the procedure is followed, there can be no de-reservation. Rule 95A envisages several stages. Firstly, the Deputy Commissioner has to form an opinion that a particular VGR wholly or in part is not needed for the purpose; secondly, after formation of such opinion, he shall publish a notice regarding cancellation of allotment as VGR and hear objections; and thirdly, after hearing objections, he shall forward the proceedings together with his recommendations to the Government for final order(s). The use of the word 'shall' in the second stage of issuing notice is indicative of the obligatory nature of the procedure, deviation from which may vitiate the process itself.
18. In Kundargaon Anti Eviction Action Committee Vs. State of Assam, (2006) 3 GLR 1999 , this Court went into the question of occupation of village grazing land and held as under:-
"12. As discussed above, Rule 16 of the Settlement Rules read with Rule 95 of the said Rules provides that any person from occupying either government waste land or the Village Grazing Reserve. Rule 16 of the Settlement Rules provides that no person can possess any land without lease or any permission from the Deputy Commissioner. Therefore, it is evident that to acquire bona fide claim of right over the land possessed by a person, he must have a lease in his favour or written permission from the competent authority to possess the same. Unless a lease or permission is granted in his favour, he cannot occupy the land and consequently, he has to be termed as an encroacher and liable to be evicted by virtue of rule 18 of the Settlement Rules. In the instant case, the petitioner has not been able to show any semblance of right or any document issued by any authority allowing its members to occupy the land which is presently under their possession and, therefore, however, long period of possession may be, such unauthorized act on the part of the members of the petitioner's committee shall not give rise to any bona fide claim of right to remain in possession and consequently, not evictable by invoking the provisions of rule 18 of the Settlement Rules. As discussed above, the land is the Village Grazing Reserve, the occupation of which has been prohibited by rule 95 of the Settlement Rules.
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16. Settlement Rules framed under the Assam Land and Revenue Regulation prohibits possession or settlement of any VGR unless such VGR is de-reserved first. The notification dated 20.01.1968 issued by the Government of Assam also prohibits such action. In the instant case, the Deputy Commissioner allotted the land in favour of the respondent No. 4, without there being a final order passed by the Government of Assam under rule 95A of the Settlement Rules though the land in question is a part of VGR. The Deputy Commissioner has no power and authority to make such settlement of VGR without such final order of Government. Therefore, though it has been held that the members of the petitioner's association have no right to occupy the land in question, they being the encroachers of the land and they are to be evicted therefrom, the respondent Nos. 1 to 3 are directed not to allow the respondent No. 4 to undertake any activities over the land allotted to them, unless and until final order is passed by the Government under rule 95 A of the Settlement Rules, on the proposal for de-reservation of VGR submitted by the Deputy Commissioner."
19. Therefore, from the facts and circumstances of the case, it is evident that the laid down procedure was not followed while making allotment of village grazing land to the petitioner. In such circumstances question of any promissory estoppel working against the State or any legitimate expectation of the petitioner does not arise. But there is a larger issue to this. In the case of Akhil Bharatiya Upbhokta Congress vs State of MP, (2011) 5 SCC 29 , Supreme Court held that there cannot be any policy of allotting land on the basis of applications made by individuals dehors an invitation or advertisement by the State. By entertaining applications made by individuals for allotment of land, the State cannot exclude other eligible persons from lodging competing claims. Any allotment of land by the State dehors such a procedure would be liable to be treated as arbitrary, discriminatory and an act of favouritism violating Article 14 of the Constitution of India.
20. Again in Jagpal Singh Vs. State of Punjab, (2011) 11 SCC 396 , Supreme Court directed all the State Governments in the country to prepare schemes for eviction of illegal/unauthorized occupants of village land so that such land can be put to common use of the villagers.
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21. Therefore, viewed in the above context, decision of the Government to cancel allotment of land cannot be said to be illegal or arbitrary.
22. In so far the first petition is concerned, irrespective of the fact of eviction of the petitioner Md. Jaynal Abedin, he cannot claim settlement of village grazing reserve in his favour which in any case has been found to be factually untenable.
23. In view of the discussions made above, Court is of the considered opinion that all the three writ petitions are devoid of merit. Accordingly, all the writ petitions are dismissed.
24. Interim orders are vacated.
JUDGE Comparing Assistant