M. Karpaga Vinayagam, C.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:

(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 Section 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.

3. 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 Section 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, 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 rig