PIL 64/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE H. BARUAH Amitava Roy, J Judgment And Order (Oral) The petitioners, who are the residents of Hatikhola, Gohain Chapori Gaon, Puthim ari Gaon, and Bormuthoriani Gaon in the district of Dhemaji, have collectively i nitiated the instant public interest litigation complaining against the use of t he land involved allotted for grazing purposes under the Rules framed under the Assam Land and Revenue Regulation, 1886 (for short hereafter referred to as the Regulation) for purposes different therefrom though, impermissible in law. Alle ging that the respondent No. 4 has since been illegally inducted into the land b y the State respondents, thereby denying the petitioners their right to graze th eir cattle thereon, they also seek an appropriate direction for its eviction the refrom. 02. We have heard Mr. P Kataki, Advocate assisted by Mr. M Haloi, Ad vocate for the petitioners and Ms. B Goyal, learned State Counsel, for the offic ial respondents. Though, served with the notice of the instant proceeding, the respondent No. 4 has abstained from arranging its representation. 03. The pleaded case of the petitioners in short, is that they along with their families, while in uninterrupted possession of the above land measur ing about 934 Bighas 2 Katha and 10 Lessa, covered by Dag Nos. 198, 241 and 149, located in the aforementioned villages and earning their livelihood from the cu ltivation grown thereon, were, on 07.03.2008 forcibly ousted therefrom by the Ci rcle Officer, Dhemaji Circle. Being aggrieved, they approached this Court with WP(C) No.1124/2008, which was disposed of on 19.09.2008 with the following opera tive directions: - However, it is made clear that the Deputy Commissioner shall keep the VGR free from all sort of encroachment and nobody should be given any right over the said VGR except their common rights of grazing cattle for which the land has been re served for grazing cattle. In case in due course of time, if the authority deci des to de-reserve the VGR or part thereof following due process as required unde r the law the eligible persons who may apply for settlement, their application s hall definitely be considered by the competent authority in accordance with law. This Court negated the challenge made by the petitioners on the ground that the land in question, admittedly, was a part of the Village Grazing Reserve (for sho rt hereafter referred to as the VGR) and that no notice under Rule 18(2) of the Regulation was envisaged to evict trespassers therefrom. The action of ousting the petitioners from the land was thus sustained. 04. The petitioners have averred that inspite of the above determina tion, the official respondents permitted the respondent No. 4 to occupy the graz ing land and allowed it to cultivate the same and erect structures thereon and t o convert the same for farm use. As permitted by this Court vide its order dated 19.09.2008, when they sought to graze their cattle on the land, a FIR was lodge d on 05.01.2009 on behalf of the respondent No. 4 accusing them of unauthorized trespass and damage to the house and crops of its members, so much so that Dhema ji P.S. Case No. 10/2009 under section 143/ 147/ 447/ 427/323/397 of the IPC was registered against them. Contending that the official respondents had failed t o discharge their statutory duty without any justification, thus denying their l egal and fundamental rights, the petitioners have approached this Court with the instant petition praying for the aforementioned reliefs. 05. The Circle Officer, Dhemaji in his affidavit, while denying that the official respondents had permitted the respondent No. 4 to occupy the grazi ng land, as alleged, has claimed that the same is being used for sericulture pur poses by the Department of Sericulture under RSVY Scheme under the Dhemaji Devel opment Block, 2007-08. The deponent has, therefore, pleaded that such occupation of the land does not amount to trespass on a grazing land and that therefore, t here is no cause of action for the instant proceeding. 06. Whereas, Mr. Kataki with particular reference to section 12 of t he Regulation and Rule 83 and 95A of the Settlement Rules framed thereunder, has argued that the action of the State respondents in permitting the respondent No . 4 to occupy the grazing land without following the procedure prescribed by law is not only illegal, but also in contemptuous disregard to the directions conta ined in the judgment and order dated 19.09.2008, rendered in WP(C) No. 1124/2008 , by this Court and that therefore to protect a public cause, this Court ought t o intervene, Ms. Goyal, has sought to maintain that as the land is being used fo r sericulture purposes by the Department of Sericulture of the State, the imputa tions levelled are factually unfounded and, therefore, the petition ought to be dismissed in limine. According to her, having regard to the background of the l itigation initiated by the petitioner following their eviction from the land, th e instant endeavour can by no means be construed to be in the interest of any pu blic cause and, therefore, the present proceeding ought to be dismissed without further scrutiny. 07. That the petitioners had approached this Court earlier with WP(C ) No. 1124/2008, being aggrieved by their eviction from the same land is a matte r of record. In his affidavit filed in WP(C) No.1124/2008, the jurisdictional A ddl. Deputy Commissioner, branded them as encroachers in respect of the Village Grazing Reserve while justifying their eviction therefrom under the Rules. In ot her words, the State respondents acknowledged the said land to be a VGR and this Court on a consideration of the said factor upheld the action of the State resp ondents in evicting the petitioners therefrom treating them to be encroachers. The operative directions of this Curt as contained in the judgment and order dat ed 19.09.2008 would demonstrate that the concerned Deputy Commissioner was direc ted to keep the VGR free from all sort of encroachment and to ensure that nobody be given any right therein, except the common right of grazing cattle for which it had been reserved. 08. Though, the petitioners’ assertion that the land inspite of the above determination of this Court had been allowed to be occupied by the respond ent No. 4 for non-grazing purposes has been disputed by the official respondents , we are of the view that, having regard to the nature of the right recognized i n the land by this Court, the contentious stands on this aspect of the controver sy, per se, ought not dissuade it (Court) to entertain the instant petition. Tha t a debate with regard to the nature of the used subsists is apparent from the r egistration of the police case on a complaint filed by the respondent No. 4. In the background of the determination made by this Court that the land at all rele vant times was a Village Grazing Reserve, this Court considers it appropriate to outline the remedial measures as considered expedient in the facts and circumst ances of the case. This is more so, in view of the section 12 of the Regulation, which confers a power on the Government to make rules, inter alia, to provide f or disposal by way of grant, lease or otherwise of a land on which no person has a right as a proprietor, land holder or settlement holder under the Regulation as well as Chapter II of the Settlement Rules dealing with allotment of grazing grounds. 09. A plain reading of Rule 83 proclaims that the Deputy Commissione r after an inquiry and if it is considered necessary may allot from the land ref erred to section 12 of the Regulation to the inhabitants of any village area or villages as a grazing ground and to effectuate the use thereof for the said purp ose cause the same to be demarcated with temporary boundary marks. The aforement ioned Chapter of the Settlement Rules, which are a complete code in itself envis age Rule 95A whereunder, if at any time a Commissioner is of the opinion that a VGR constituted under the Rules is wholly or in part not needed for the purpose for which it had been allotted, he would publish a notice recording the proposed cancellation of the allotment and after completing the prescribed formalities, as set out therein, submit his recommendations to that effect to the Government for final orders. Whereas, Rule 93 therefore, obligates allotment of a Governme nt land for being used for grazing purpose in favour of the inhabitants of a vil lage or villages, Rule 95A prescribes the mode of de-reserving the same by recal ling the allotment made. In other words, in terms of the scheme under Chapter I I of the Settlement Rules identification of any grazing land presupposes allotme nt thereof for the said purpose under Rule 83 and the allotment would subsist ti ll it is withdrawn in terms of Rule 95A. 10. This assumes significance in the facts and circumstances of the present case as the land involved had been claimed to be VGR by the jurisdiction al Addl. Deputy Commissioner in his pleadings submitted in WP(C) No. 1124/2008 a nd had been accepted to be so by this Court, while disposing of the same. It is , therefore, reasonable for this Court to infer and that too in absence of any m aterial to the contrary that the land was put to use for a grazing land after al lotment under Rule 83 of the Settlement Rules. In that view of the matter, unle ss the exercise envisaged in Rule 95A is undertaken in our estimate, the same st atus thereof would continue. Neither the State respondents in their affidavit, in the instant proceeding, hav e categorically denied that the land involved is a grazing reserve nor has it be en asserted that, the necessary process as contemplated in section 95A had been undertaken to de-reserve the same. The plea of the Circle Officer, Dhemaji, tha t the land is being used for sericulture purposes, therefore, is no answer to th e other demonstrable facts as recited hereinabove, clearly establishing the iden tity of the land involved to be a Village Grazing Reserve. In this premise, unl ess necessary steps are taken, if so advised, by the concerned authorities of th e State Government under Rule 95A of the Rules, this land cannot be used for pur poses other than those contemplated for a grazing reserve land, subject to the c onditions as envisaged under Chapter II of the Settlement Rules and in particula r in Rules 92 and 93 thereof. In the above view of the matter, this instant pro ceeding is closed with the following directions: - 1) The Commissioner and Secretary, Government of Assam would cause necessary ste ps to be taken forthwith to ascertain the present status of the land involved an d the nature of its user as on date. 2) If, in the facts and circumstances of the case as well as the law outlined he reinabove, the land is determined to be a village grazing reserve, the aforement ioned authority would ensure that it is not put to use for any other purpose and would issue necessary instructions to that effect without fail. 3) If for reasons to be recorded in writing and to the satisfaction of the above authority in coordination of the Deputy Commissioner, Dhemaji, it is considered essential that the land ought to be de-reserved, the procedure as prescribed by law would be undertaken adhering to the full rigour thereof. 4) In ensuring that the land is utilised for the purpose for which it had been e armarked as on date the, the aforementioned authority would not hesitate to take necessary steps as warranted by the exigencies of the situation. 11. The petition stands disposed in the above terms. No costs. A c opy of this order be furnished to Ms. B Goyal, learned State Counsel, so as to e nable her to do the needful.