Himachal Pradesh High Court
Vikram Kumar And Others vs State Of Himachal Pradesh And Others on 12 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMP No.17021 of 2022 in CWP .
No.8445 of 2022.
Order Reserved on: 09.01.2023.
Date of decision: 12.01.2023.
Vikram Kumar and others .....Petitioners.
Versus State of Himachal Pradesh and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes For the Petitioners : Mr. Rajnish Maniktala, Senior Advocate with Mr. Naresh Verma, Advocate.
For the Respondents : Mr. Anup Rattan, Advocate General with Mr. Yashwardhan Chauhan, Senior Additional Advocate General with Mr. Y.P.S. Dhaulta, Additional Advocate General and Mr. J.S. Guleria, Deputy Advocate General, for respondent Nos.
1 to 4.
Mr. Deepak Kaushal, Senior Advocate with Mr. Abhishek Verma, Advocate, for respondent No.5.
Mr. Balram Sharma, Deputy Solicitor General of India, for respondent No.6.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 2 Tarlok Singh Chauhan, Judge CMP No.17021 of 2022.
.
The instant petition has been filed for grant of the following substantive reliefs:
"(A) That the notice inviting tender for putting the Village Common Land in reserve pool as incorporated in Khata No. 19 min, Khatauni No. 120min, Khasra No. 355, situated at Mohal-Har Dogri, Gram Panchayat- Kohlapur, Tehsil-Rakkar, District-Kangra, Himachal Pradesh as per jamabandi for the year 2018-19 and acceptance of highest bid pursuant to notice inviting tender, may be quashed and set aside.
(B) That the contract entered pursuant the notice inviting tender Annexure P-4 (Colly) between respondents 1 to 4 and respondent No.5 allotting the land bearing Khata No. 19 min, Khatauni No. 120 min, Khasra No. 355, situated at Mohal-Har Dogri, Gram Panchayat-Kohlapur, Tehsil-Rakkar, District-
Kangra, Himachal Pradesh to the respondent No.5 may also be quashed and set aside.
(C) That the respondent Nos. 1 to 4 may be restrained from allotting the land in Khata No. 19, Khatauni No.120 min, Khasra No. 355, situated at Mohal-Har Dogri, Gram Panchayat-Kohlapur, Tehsil- Rakkar, District-Kangra, Himachal Pradesh to the respondent No.5 for the purpose of mining. (D) That the respondent No.5 may be restrained from using the land bearing Khata No. 19 min, ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 3 Khatauni No. 120 min, Khasra No. 355, situated at Mohal-Har Dogri, Gram Panchayat-Kohlapur, Tehsil .
Rakkar, District-Kangra, Himachal Pradesh for mining purposes contrary to the provisions of Himachal Pradesh Village Common Land Vesting Utilization Act, 1974.
(E) That the respondent No.6 may be restrained from getting environmental clearance to respondent No.5 since in law the land cannot be used for mining purposes and if granted, may be quashed."
2. Along with the petition, the instant application has been filed for grant of the following reliefs:
"(i) that the further proceedings towards grant of permission for operating the quarry in Khata No.19, Khatauni No.120, Khasra No. 355, situated at Mohal-Hall Dogri, Gram Panchayat-Kohlapur, Tehsil-Rakkar, District-Kangra, Himachal Pradesh, my be stayed till adjudication in the matter.
(ii) that the respondent No.5 may be restrained from operating the quarry for purposes of mining in land recorded in Khata No. 19', Khatauni No.120', Khasra No. 355, situated at Mohal-Hall Dogri, Gram Panchayat-Kohlapur, Tehsil-Rakkar, District-Kangra, Himachal Pradesh during pendency of petition."::: Downloaded on - 13/01/2023 20:32:37 :::CIS 4
3. Petitioner Nos. 1 and 2 are residents of Mohal Har Dogri. Similarly, petitioner Nos. 3 and 4 are residents of .
Mohal Jatoli Chakran. Both these villages fall in Gram Panchayat, Kaulapur, Tehsil Rakkad, District Kangra, Himachal Pradesh. All the petitioners are residents of same estate.
The land bearing Khata No.90 min, Khatauni No. 13 min, Khasra No. 355, measuring 15-23-10 hectares is recorded in ownership of r State of HP and in possession of "Bartandaaraan" in "Reserve Pool", situated in Village-Har Dogri, Panchayat-Kaulapur, Tehsil-Rakkad, District-Kangra, Himachal Pradesh.
4. According to the petitioners, respondent No.1 being the Principal Secretary (Revenue) to the Government of Himachal Pradesh is required to ensure that the provisions of Himachal Pradesh Village Common Land Vesting and Utilization Act, 1974 (for short the 'Act') are scrupulously followed and implemented in its letter and spirit as similar duties have also been imposed by law upon respondent Nos.
3 and 4 i.e. Director, Department of Industries, Government of Himachal Pradesh, Udyog Bhawan, Bemloe, Shimla, Himachal Pradesh and State Geologist, Office of the Director, Department of Industries, Government of Himachal Pradesh, ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 5 Udyog Bhawan, Bemloe, Shimla, Himachal Pradesh. All these respondents have failed to follow and implement the .
provisions of law by illegally granting the land on lease to respondent No.5 for the purpose of mining which is contrary to the provisions of law.
5. It is averred that as per the provisions of law, the land which vests with the State is divided into two parts.
The first part of the land, not less than 50% of the land, is reserved for grazing and common purposes of the villagers and is commonly known as reserve pool land. Rest of the land falls in allottable pool which can be allotted to the landless and houseless persons in accordance with the provisions of the Act. It is further averred that the land falling in the reserved pool or in the allottable pool is required to be used only in accordance with the provisions of the Act and cannot be let for any other use inconsistent with the objectives of the Act including the mining purposes.
It is also averred that the land in the present petition forms a part of the reserve pool, which has specifically been allocated for grazing and other common purposes of the villagers. The said land is strictly to be used for grazing and ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 6 common purposes of the villagers and cannot be put to any other use including that of the mining.
.
6. Respondent No.5 has contested the petition by filing the reply wherein in the preliminary objections, it has been averred that the petition is not maintainable being misconceived in view of the fact that the same has been filed with an oblique motive and by concealing the vital facts from the Court. It is submitted that the instant petition has been filed on behalf of the crusher owner namely M/s Sada Shiv Stone Crusher owned by Shri Davinder Bhutoo, situated at Village Kohlapur, Tehsil Rakkar and M/s Maa Jawala Stone Crusher owned by Sh. Gian Chand, situated at Village Adhwani. In addition to the aforesaid objections, certain other preliminary objections have also been raised.
7. On merits, it is contended that even though there is no clear description of the land which may go to show that the same is "Shamlat" land and is covered by the Act, but even if, it is to be assumed so, the same cannot be termed to be prohibited for the purpose of mining. It is submitted that the judgment rendered by this Court in CWP No.1077 of 2006 case titled Khatri Ram and another vs. State of H.P. and others, decided on 22.11.2007, is per incuriam as ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 7 it does not deal with the provisions of Mines and Minerals (Development and Regulation) Act, 1957, (for short 'MMDR .
Act'). It is further submitted that Section 8(a) of the Act neither empowers the State for the grant of mining lease nor does it prohibit the same because the mines and minerals are the subject matter of the Central Government and there is specific declaration under Section 2 of the MMDR Act which stipulates that "it is hereby declared that it is expedient in the public interest that the Union should take under its control the regulating of mines and the development of minerals to the extent hereinafter provided."
8. We have heard the heard the learned counsel for the parties and have gone through the records of the case.
9. It is not in dispute that the vires of Section 8-A that was inserted in the Principal Act vide amendment No.18 of 1981 was assailed before this Court and the same reads as under:
"8-A. Utilisation of land for development of the State:- Notwithstanding anything contained in Section 8 of the Act, the State Government may utilize any area of the land vested in it under the Act by lease to any person or by transfer to any Department of the Government in the interests of the ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 8 development of the State, if the State Government is satisfied that there are sufficient reasons to do so .
subject to the condition that land for the purposes mentioned in clause (a) of sub-section (1) of section 8 in no case shall be less than fifty per cent of the land vested in the Government under the Act. Provided that when land is not used by a person for the purpose for which it has been leased, the lease shall stand terminated free from all encumbrances and the Government shall re-enter on the demised premises and lease money, "if paid to the Government, shall be forfeited and no person shall be entitled to any compensation for any improvement made and for any building constructed thereon."
10. This Court vide its judgment dated 22.11.2007(supra) allowed the petition and held that the expression 'utilization of the land for developmental activities' mentioned in Section 8-A is read down and explained to mean those developmental activities which are akin to the agricultural pursuits read with the expression 'common purposes' defined in the Act and not the mining activities. We are not referring the judgment in detail because the matter thereafter subsequently came up before the Division Bench of this Court in Him Privesh Environment Protection Society vs. State of H.P. ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 9 Latest HLJ 2012 (HP) (DB) 533 wherein it was observed as under:
.
"80. At this stage we are not required to go into this question in detail but vide the amendment Act of 2001 certain amendments were introduced in Section 3 and some of these lands were given back to the villagers. Section 8 of the Act provides that out of the land so vested 50% shall be kept in the common pool for common purposes of grazing etc. of the inhabitants of the State and the remaining land can be allotted to landless or other eligible persons, handicapped or houseless persons for construction of the houses and to eligible persons under the schemes belonging to poor sections of the society. The land reserved for the common pool was required to be demarcated by the Revenue Officer.
81. Section 8-A was introduced by the Act of 2001 and this reads as follows:
"8-A Utilization of land for development of the State- Not withstanding anything contained in section 8 of the Act, the State Government or any other officer authorized by the State Government in this behalf may utilize any area of the land vested in it under the Act by lease to any person or by transferred to any Department of the Government in the interests of the development of the State, if the State Government or the Officer authorized by it is satisfied that there area sufficient reasons to do so subject to the condition that land for the purposes mentioned in clause (a) of subsection (1) of section 8 in no case shall be less than fifty percent of the land vested in the ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 10 Government under the Act. Provided that when land is not used by a person for the purpose for which it has been leased, the lease shall stand .
terminated free from all encumbrances and the Government shall re-enter on the demised premises and lease money, if pay to the Government, shall be forfeited and no person shall be entitled to any compensation for any improvement made and for any building constructed thereon."
82. This Section enables the Government to transfer the land by lease to any Department of the Government. This section has been the subject matter of a detailed decision rendered by this Court in Khatri Ram v. State of H.P, CWP No. 1077 of 2006 decided on 22.11.2007. The Division Bench of this Court held that though Section 8-A was unconstitutional being violative of Articles 14 and 19 of the Constitution of India, by invoking the principle of reading down the words in Section 8A were given a restricted meaning and therefore the Government could use the land vested in it under the Act only for those development activities which are akin to agricultural pursuits read with the expression 'common purposes' defined in the Act. The Division Bench held that these common lands could not be leased out for mining purposes. Relying upon this judgment the petitioner contends that the State had no authority to lease out the common pool land for industrial use. On the other hand it is contended by the respondents that this judgment is under challenge before the ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 11 Apex Court and the judgment has been stayed. The stay order passed by the Apex Court reads as .
follows:
"Delay condoned. Issue notice. Stay in the meantime. Ms. Revathy Raghavan, learned counsel waives notice on behalf of respondent Nos. 1&2. Counter affidavit to be filed within four weeks. Rejoinder affidavit to be filed in four weeks thereafter. List thereafter."
83. This Court in Khatri Ram's case (supra) held as follows:
"It is thus evident from the scheme of the r Act that 50% of the land was reserved for the purpose of grazing and other common purposes of the inhabitants of the estate and the remaining 50% was to be allotted to a landless person or any other eligible person as well as for allotment of site to handicapped or houseless person for the construction of a house. The land which as per the Amendment Act No. 18 of 1981 is being allotted for developmental activities was the remaining 50% which was reserved for landless person or any other eligible person. The expression "landless person"
and other "eligible person" had been defined. It is clear from the combined reading of both the expression as defined under section 2(c)(dd) that the land was to be allotted to agricultural labourer, who had no land or had land less than an acre. The utilization of 50% land, which was to be allotted to the landless and other eligible persons for mining activities will run counter to the spirit of the Principal Act. It is not that the land to be allotted to the ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 12 landless or other eligible person has drastically been reduced but the same has also been put to other non-agricultural .
purposes i.e mining activities etc. This was never the intention of the legislature at the time of the enactment of the Principal Act.
These observations also strengthen our findings that the land which has been vested in the State under section 3 of the Principal Act, could not be permitted to be used for mining purposes. It is in this backdrop that we have to consider whether section 8-A inserted in the Principal Act by way of Act No. 18 of 1981 is unconstitutional being violative of Articles 14 and 19 of the Constitution of India.
It is reiterated that the H.P Village Common Lands Vesting and Utilization Act, 1974 is an agrarian piece of legislation and it was for this reason alone that it was put at Sr. No. 139 in Schedule-IX of the constitution of India. The Amendment Act 18 of 1981 whereby section 8-A has been inserted in the Principal Act has never received the assent of the President of India and its vires can be challenged being violative of the fundamental rights enshrined under Part-III of the Constitution of India. The land which had vested in the State in view of the Principal Act, 1974 was reserved for grazing pasture as well as for allotment to landless and other eligible persons. The landless and other eligible persons are the persons who are primarily dependent on agriculture labour and ancillary activities. Section 8-A though talks of utilization of the land for development but read as a whole it runs contrary to the spirit of the Principal Act. Section 8-A is unreasonable and arbitrary, ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 13 thus violative of Article 14 as well as Article 19 of the Constitution of India. We are also fortified in taking this view for declaring .
Section 8-A ultra vires of the Constitution on the basis of definition given to the expression "common purposes" by way of amendment carried out in the year 2001. The mining activities could never be treated as part of agrarian reform as projected by the respondents at the time of hearing of the petition. The grant of mining lease in favour of respondent No. 3 is alien to the spirit of the Principal Act, 1974. The petitioners and other co-villagers are bound to get back their land which had earlier been vested in the State in the year 1974 after the insertion of clause (d) in subsection (2) of Section 3 with effect from 1974. Though in clear terms we have declared Section 8-A of the Amendment Act, 1981 unconstitutional, but we can avoid its striking down by reading down Section 8-A harmoniously with other sections of the Principal Act, 1974. The intent and the will of the Legislature is to protect the rights of the tillers of the land as is evident from the main Objects and Reasons discussed here in above. Striking down of Section 8-A can be saved by this Court by giving a very very restrictive meaning to the expression utilization of land to the development by confining it to the agricultural pursuits/occupation and by not agreeing to the submissions made by the learned Advocates appearing on behalf of the respondents to give the expression 'development' extensive meaning. In view of the law laid down by the Hon'ble Supreme Court and after harmonizing ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 14 Section 8-A of the Amendment Act, 1981, and other sections of the Himachal Pradesh Village Common .
Lands Vesting and Utilization Rules, 1975, the Himachal Pradesh Lease Rules, 1993 and the Himachal Pradesh Village Common Lands Vesting and Utilization Scheme, 1975, we read down Section 8-A instead of striking it down by declaring that the mining activities/operations etc., cannot be termed as developmental activities as mentioned in section 8-A and the action of the State to grant lease to respondent No. 3 from the allotable pool is contrary to the Principal Act. Section 8-A will not get immunity under Article 31-A if the developmental activities carried out by the State are against the agrarian reforms. It is for this reason that the Court has to give very restrictive meaning towards developmental activities by restricting the word "development" to agriculture pursuits to achieve the purpose of this Statute as evidence by the context."
84. On behalf of the JAL it has been contended that the judgment in Khatri Ram's case is per in-
curium because of the following reasons:
i) statements and object of the Act No. 18of 1981 by which section 8A was introduced was not considered;
ii) Provisions of Rules 2-f and Rule 4 of the H.P Lease Rules 1993 alongwith Section 3-f (VII) of Land Acquisition Act, 1894 were not considered;::: Downloaded on - 13/01/2023 20:32:37 :::CIS 15
iii) The non-obstante clause of Section 8A of H.P Village Common Land Vesting and Utilization Act, 1974 was .
not considered. Refer 1984 Supp. SCC 196, UOI v. Kokil, para 11 was not considered.
iv) The paragraph 19 of Sukhdev v. State of H.O, 1995 (2) Shimla LC 381 was not considered.
85. The judgment in Khatri Ram's case was delivered by a Division Bench. In this detailed and lengthy judgment, we find that objections raised have been dealt with. The statements and objects have been considered. The H.P Lease Rules have no effect whatsoever because they cover a large variety of land legislations and are not confined to the Village Common Lands Act. Furthermore, the dominant legislation i.e the Act cannot be interpreted on the basis of the subordinate legislation i.e the Rules.
86. The non-obstante clause of Section 8A has been considered by the Division Bench. The entire Section 8A has been considered by the Court and it is too much for the coordinate Bench to hold that the earlier Division Bench was not aware of the nonobstante clause. The decision in Sukh Dev v. State of H.P, 1995 (2) Shim.LC 381 has no relevance to the interpretation of Section 8A because in that case the Court was not considering the constitutional validity of Section 8A.
::: Downloaded on - 13/01/2023 20:32:37 :::CIS 1687. It was next urged that the judgment in Khatri Ram's case has been made inoperative by the .
stay order referred to above and we should not follow the said decision. Reference in this behalf has been made to the judgment of the Apex Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association Madras, (1992) 3 SCC 1 and Kunhayammed v. State of Kerala, (2000) 6 SCC 359. In our view both these judgments are not at all applicable to the facts of this case. As far as the judgment in Chamundi Moped's case is concerned that has no relevance to the facts of the present case. Even the judgment in Kunhayammed's case does not help the case of JAL. The said judgment relates to the theory of merger but in the present case the Apex Court has not passed any final order on the SLP. In fact the Apex court held that when a SLP is dismissed by a non-speaking or un-reasoned order the order of the High Court did not merge in the order of the Supreme Court and therefore can be reviewed by the High Court.
88. In any event, we are of the view that once a coordinate Bench has taken a decision then this Bench should not take a different view especially when the judgment of the coordinate Bench is under challenge before the Apex Court. Judicial propriety and discipline demands that we should respect the judgment of the coordinate Bench till it is set-aside by the Apex Court.
::: Downloaded on - 13/01/2023 20:32:37 :::CIS 1789. We are of the considered view that when the Apex Court in a given case stays the judgment .
the stay is only applicable to the parties covered by the said order. When the Apex Court wants to stay the declaration of law made in a judgment then specific orders in this regard are passed. The Apex Court while granting stay has not stayed the declaration of the law laid down by this Court in Khatri Ram's case (supra) and therefore we are bound by the said decision.
90. The Calcutta High Court considered the following identical question in Niranjan Chatterjee v. State of West Bengal, 2007 (3) CHN 683:
"14. Therefore, the question that arises for determination is, simply because in an application for grant of special leave, the Supreme Court has stayed the operation of an order passed by the Division Bench of this Court declaring a statutory provision as ultra vires the Constitution of India as an interim measure by imposing further conditions upon the State in those cases, whether a citizen who is not a party to the previous litigation can be deprived of the benefit of doctrine of precedent in resisting the action of the State on the ground that it could not invoke the ultra vires provision of the statute against him."
The Calcutta High Court held as follows:
"20. Therefore, the effect of the order of stay in a pending appeal before the Apex Court does not amount to "any declaration of law"::: Downloaded on - 13/01/2023 20:32:37 :::CIS 18
but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding .
effect of the judgment of the High Court as a precedent because while granting the interim order, the Apex court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned.
21. We, therefore, find substance in the contention of the writ petitioner that a Division Bench of this Court having declared the provision contained in the West Bengal Land Reforms Act regarding vesting without making any lawful provision for compensation for such vesting in the Act as ultra vires the Constitution of India, the State cannot be permitted to proceed with the said provision of vesting against the petitioner so long adequate provision is not made in the statute for compensation."
We are in agreement with these views.
91. The order of stay passed by the Apex Court only stays the judgment but not the law laid down in the said judgment. As far as this Court is concerned, we are bound by the judgment rendered by the earlier Bench. We cannot set- aside the earlier judgment of the Division Bench as that would be against the judicial propriety. We cannot also stay the proceedings in this case to await the judgment of the Apex Court. Therefore, we are bound by the judgment delivered in Khatri Ram's case (supra) and if this judgment is applied it is apparent that the land ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 19 which vested in the State Government could not have been allotted for industrial purposes of .
setting up a cement plant.
92. The Apex Court in a recent judgment in case Jagpal Singh v. State of Punjab, AIR 2011 SC 1123, dealt in detail with the Punjab Common Lands and the rights of the villagers. The Apex Court held as follows:
"4. The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya v. Paladuge Anjayya, 1972 (1) SCC 521 (529) this Court observed:
"It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act."
5. What we have witnessed since Independence, however, is that in large parts of the country this common village ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 20 land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now .
there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.
6 to 12 xxxxxxxxxxxxxxxx
13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid.
::: Downloaded on - 13/01/2023 20:32:37 :::CIS 21We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be .
regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.
14. xxxxxx
15. In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored."
If we were to apply this judgment, it would be apparent that Section 8A would be wholly unconstitutional. We are however not saying anything in the matter since that question is pending before the Apex Court.
93. Applying the aforesaid decision to the facts of the case, we are of the considered view that the Government had no authority to allot this land to the Departments and further allot it to JAL.
94. Assuming for the sake of arguments that land falling in the reserved pool could be transferred to the allotable pool and vice versa, we find that no material has been placed on record before us to show how a portion of the land was taken out of the reserved pool and placed in the allotable pool. The total land ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 22 allotted to JAL is 325 bighas and 16 biswas out of which 119 bighas 10 biswas was in the common .
pool i.e reserved for grazing etc to be used for common purpose as defined under Section 3 of the Act. The balance 126.6 bighas was in the allotable pool. Assuming that this land could be leased out, we fail to understand how the Government could have taken out the land from the reserved pool/common pool and transferred it to the allotable pool and transferred some land from the allotable pool to the reserved pool.
95. Section 8 of the Act provides that the land reserved under clause (a) of sub-section (1) shall be demarcated by the Revenue Officer in the prescribed manner. Once the land is demarcated and set aside for common purposes we do not find any power in the State to re-transfer the land from the common pool to the allotable pool.
The power to modify the scheme under Section 8(4) only relates to the schemes framed in terms of Section 8(b)(i) and once the land is put in the common pool we find that there is no power remaining in the State to take it out of the common pool and put this land in the allotable pool.
96. Even if, we presume that such power exists, we are clearly of the view that this power, if any, to transfer the land from the common pool to the allotable pool and vice-versa cannot be exercised without taking the local inhabitants ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 23 into confidence. It is their rights which are going to be affected and no order transferring the land .
which will definitely affect their rights can be passed without giving them reasonable hearing. No such hearing was given and in fact the record reveals that the land was transferred by the stroke of a pen four years later without giving any hearing to the villagers.
97. In this behalf, we may also add that after the amendments brought about in 2001 certain lands which had vested in the State Government again went back to the villagers.
The Act was amended in the year 2001 with a view to define the expression 'common purposes'. It further provided that the land which reverted back to the co-sharers in terms of Section 3(d) could not be re-transferred by them. Therefore, the land which was recorded as "shamlat tika Hasab Rasad Malguzari" or any other such name and recorded to be in the cultivable possession of the co-sharers before 1950 was to go back to co-sharers. In this case no exercise was done to ascertain whether the land which was transferred to JAL fell within this category or not.
98. As far as the proposal of transfer of land is concerned, we find that nobody first of all applied their mind as to in what manner the land from the common pool could be transferred to the allotable pool. This was done by a stroke ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 24 of the pen only on the ground that the government had allotted this land to JAL. The .
cart was placed before the horse. Instead of first deciding whether this land was required for common purposes and whether the land which was being transferred from the allotable pool to the common pool was fit for common purposes the land was transferred. In fact the Law Department had clearly opined that this could not be done and was contrary to the judgment of this Court in Khatri Ram's case (supra). Despite this fact, the proposal was approved only on the ground that there is stay of the judgment. We feel that it would have been much better if the Government had approached the Apex Court for clarification of the stay order rather than interpreting the same itself. Be that as it may, as held by us above, there is no conscious decision shown to us as to how it was decided that the land should be transferred from the common pool to the allotable pool. Again only the interest of JAL was watched and the interests of the common people were totally forgotten. It appears that the officials were more concerned about the interest of the project proponent and nobody bothered about the interest of the villagers or the purposes of the Village Common Lands Act."
::: Downloaded on - 13/01/2023 20:32:37 :::CIS 2511. A bare perusal of the aforesaid judgment would go to show that this Court expressly refused to take a .
different view from the one expressed in Khatri Ram's case (supra) especially when the said view was under
challenge before the Hon'ble Supreme Court.
12. But what is more important is that the Court held that when the Hon'ble Supreme in a given case stays the judgment, the stay is only applicable to the parties to the said order and when the Hon'ble Supreme Court wants to stay the declaration of law made in a judgment, then specific orders in this regard are passed. Whereas, in the instant case, the Hon'ble Supreme Court while granting stay in Khatri Ram's case (supra) has not stayed the declaration of the law laid down in the said case and, in such circumstances, the learned Division Bench of this Court held itself to be bound by the said decision in Khatri Ram's case (supra).
13. Thus, what stands stated for the time being is that once the land is demarcated and set out for the 'common purposes', then there is no power of the State to re-transfer the said land from the 'common pool' to the 'allottable pool'.
14. That apart, as per the scheme of the Act, 50% of the land has to be reserved for the purpose of grazing and ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 26 other common purposes of the inhabitants of the State and the remaining 50% can be allotted to the landless persons .
and any other eligible persons for the construction of the house. The utilization of 50% of the land which is to be allotted to the landless and other eligible persons cannot be granted for mining activities which runs counter to the spirit of the Act as held by the learned Division Bench of this Court in Khatri Ram's case (supra). This was never the intention of the legislature at the time of promulgating the Act and run counter to the provisions of Section 3 of the Act. Thus, the action of the State to grant lease to respondent No.5 from the allottable pool is, prima facie, contrary to the Act which has been mentioned in the Schedule IX of the Constitution and is thus saved under Article 31A of the Constitution of India.
15. It is not in dispute that Khasra No.355 has been kept in the reserved pool as is evident from an extract of the register (Annexure P-7) showing allottable/reserved pool land.
16. As regards the contention of respondent No.5 that the judgment rendered in Khatri Ram's case (supra) is per incuriam as it failed to take into consideration the provisions of MMDR Act and Rules framed by this Court, we would not, at ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 27 this stage, like to go into the question, lest it prejudices the case of either of the parties, more particularly, respondent .
No.5 herein. Suffice it to say that once the declaration of law made by this Court has not been stayed by the Hon'ble Supreme Court, then as a matter of judicial precedent, propriety and comity, we are bound to follow the same.
17. The respondents would then contend that the entire exercise of putting the village common land use for mining purpose is after taking cue from the order passed in CWPIL No.108 of 2017 on 31.08.2018 by a Division Bench wherein one of us (Justice Tarlok Singh Chauhan) was a member. But, having gone through the said order, we find that there is no direction to the respondents therein to auction the lands that have been kept in the reserved pool and, therefore, no advantage can be taken on the basis of these directions.
18. Therefore, in the given facts and circumstances of the case, while leaving all questions of law open, we deem it appropriate to restrain respondent No.5 or any other person from operating quarry in Khata No. 19 min, Khatauni No. 120 min, Khasra No.355, situated at Mohal Har Dogri, Gram Panchayat-Kohlapur, Tehsil-Rakkar, District-Kangra, Himachal ::: Downloaded on - 13/01/2023 20:32:37 :::CIS 28 Pradesh, till further orders. The application stands disposed of.
.
CWP No. 8445 of 2022.
19. List on 6.3.2023 by which time respondent Nos. 1 to 4 and 6 shall positively file their responses to the writ petition.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 12th January, 2023.
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