Rajasthan High Court - Jaipur
Ultra Tech Cement Ltd. vs State Of Rajasthan & Another. on 26 February, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICIATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B.Special Appeal (Writ) No.73/2013. Ultra Tech Cement Ltd. VERSUS State of Rajasthan & Another. Order reserved on : 28th January, 2016. Date of Judgment : 26th February, 2016. PRESENT HONBLE MR.JUSTICE AJAY RASTOGI HONBLE MR.JUSTICE J.K.RANKA Mr.M.S.Singhvi, Senior Counsel assisted by Mr.Raunak Singhvi, Counsel for appellant. Mr.Anurag Sharma, Addl.Advocate General for respondent-State. ***** BY THE COURT (Per Honble Mr.Ajay Rastogi,J):
Instant intra-court appeal is directed against order of the ld. Single Judge dt.05.10.2012 dismissing the writ petition in limine at the admission stage holding that since in the order of the District Collector dt.23.02.2012 allotment has been made with the condition that the appellant may approach the Rajasthan High Court and obtain NOC for grant of mining lease over the land classified as 'Johad' means 'a water reservoir' and if at all the land is a 'Johad' i.e. water reservoir which cannot be approved for mining lease in view of the judgment of Division Bench of this court in Abdul Rahman Vs. State of Rajasthan & Others reported in 2004 (4) WLC (Raj.) 435 and being a disputed question of facts as to whether the subject land is a 'Johad' is to be decided by the authorities and treating the writ petition to be misconceived, accordingly dismissed.
The brief facts that can be culled out from the averments made in the writ petition and since that has not been considered by the ld.Single Judge while dismissing the writ petition under order impugned, for appreciation, it is necessary to glance through a few relevant facts for examining the controversy involved in the instant special appeal. The appellant is a registered Company and a subsidiary of Grasim Industries Ltd. and incorporated and registered under the provisions of Companies Act, 1956.
The appellant-Company, as alleged, has other two running cement plants in the State of Rajasthan for cement manufacturing. The present dispute relates to Nawalgarh Cement Works, a unit of Ultratech Cement Ltd. Initially, applications for grant of mining lease bearing Nos.14/2000 & 6/2001 for mineral lime stone (cement grade) were moved for area covering 11.539 KMs & 34.612 Sq.KMs on 22.09.2000 & 29.03.2001 respectively in Tehsil Nawalgarh, District Jhunjhunu. The letter of intent was issued by the State Government on 16.03.2002 in respect of M.L.No.14/2000 and on 03.04.2003 for M.L.No.6/2001 with the condition to obtain environment clearance within six months. Because of non-availability of environment clearance certificate both the LOIs were cancelled by the State Government vide order dt.07.02.2005 which came to be challenged by the appellant in a revision petition and the same was allowed by the revisional authority vide order dt.19.07.2007 and the matter was remitted back to the State Government to re-look and examine the matter afresh in accordance with law.
After the matter being remitted to the State Government, on hearing the parties, the State Government issued order of restoration of LOI vide order dt.22.11.2007 subject to compliance of certain conditions and it was based on the undertaking furnished by the appellant and the period of compliance was extended from time to time. However, the Mines Tribunal cancelled the letter of intent vide order dt.29.07.2009 and it was challenged by the appellant in S.B.Civil Writ Petition No.10659/2009 and that came to be set aside by the ld.Single Judge of this court vide order dt.19.08.2010 and in compliance thereof LOI was issued by the Government on 28.10.2010. After such a long battle, the District Collector, Jhunjhunu issued letter of allotment of the subject land falling within the mining lease area subject to the condition that for the parcel of land classified as Gair Mumkin Johad the appellant may obtain necessary clearance from the Rajasthan High Court, vide order dt.23.02.2012. The terms & conditions on which LOI was issued to the appellant, being relevant for the present purpose, is reproduced hereunder ad infra:-
''?????, ????????? ???????????? ?????????? ???? ?? ?????? ????? ????? ?? ?????? ?????????? ?????? ??. ?? ??????? ??????? ??????? ???? ???? ??????? ??? ??????? ??? ????? ???? ?????? ??????? ?? ??????????? ??? ????? ?????? ?? ??.???.???? ?? ???? 92 ?? ???????? ??????? ???? ??? ????? ???? ?? ?????? ???????? ?????? ?? ?? ?
1.??????? ??? ??????? ??? ?? ???? ??????? ???? ?? ??? ?? ???? ?? ???????? ?????? ?? ?????? ???? ???? ?? ???????? ?????? ?? ???? ?? ?? ?????? ?????? ???? ?? ????? ???? ???? ??? ????? ??? ???? ?? ??????? ????? ??? ??????? ?? ??? ??? ?????? ?? ?? ???????? ????????? ????? ?????? ?? ???? ???? ?????? ??????? ?
2.??????? ??? ???????? ??? ????? ??? ?????? ???? ?? ???? ????? ????? ?????? ?????? ???? ??? ?? ???? ???????????: ????? ?? ????? ?? ???? ?? ?? ???? ?? ?? ?????? ???? ???? ???? ?? ???? ?? ??? ??? ?????? ?? ??????? ????? ??? ???????? ?????? ?????? ???? ???????? ?? ???? ???? ????? ?? ????????/??????? ??????? ?? ???????? ?????
3.?????? ?? ??? ??? ??? ????? ??? ?????? ????? ????? ??????????, ?????? ??? ?? ??? ?????? ??? ????? ??? ?????? ????? ?? ????? ???? ?? ????????/???????? ??????? ???? ?? ?? ????? ?? ????? ???? ?????? ?
4.??? ??? ??????? ??? 0.32 ???????? ???? ????? ??????? ????? ???? ??. ?? ??? ?? ???? ?? ? ???? ???? ????? ??????? ????? ???? ??. ?? ???????? ??????? ???? ?? ???????? ?????? ?? ?????? ?? ?? ?????? ?
5.???????? ??? ????? ??? ?????? ??? ? ??? ?????? ?????? ???????? ???? ?? ?????? ?? ??? ??? ??????? ?? ??? ??? ???? ?? ??? ??? ??????????? ?????????? ????? ???? ?? ???????? ?????? ?? ?? ?? ?
??: ????? ??????? ?????? ?? ?????? ????????? ???? ???? ????????? ???? ?'' It may be relevant to mention that while passing letter of allotment by the District Collector, Jhunjhunu dt.23.02.2012, principally granting approval for the allotment of the so-called alleged Johad land for mining activity with the condition that equal alternate land may be identified and developed as water reservoir by the appellant.
The appellant approached this court by filing of the writ petition and placed tangible evidence on record to show that twice there was physical/ spot inspection made by the Tehsildar, Nawalgarh and he submitted its report that the subject land which has been classified as 'Johad' neither falls in the catchment area nor the water ever gets collected there and no natural source of water exists on the subject land recommended for converting it as a siwai chak land. On the basis of the report submitted by the Tehsildar, Nawalgarh, the District Collector, Jhunjhunu recommended to the State Government to change the classification of the subject land. In furtherance thereof, the State Government directed the District Collector, Jhunjhunu to examine the matter and pass necessary orders in accordance with law. However, the District Collector, Jhunjhunu again recommended the State Government to issue necessary orders for correction of revenue records. Indisputably, the report submitted by the Tehsildar, Nawalgarh has not been disputed by the State Counsel but the ld.Single Judge in its order impugned observed that it is a disputed question of fact as to whether the subject land in question is a 'Johad' and such disputed question of fact can be decided by the respondents and while treating the writ petition to be misconceived, dismissed the same without even calling upon the response from the respondents under order impugned dt.05.10.2012.
It has come on record that the Tehsildar, Nawalgarh after making a physical & spot inspection of the subject land in question submitted its detailed report to the District Collector, Jhunjhunu dt.19.04.2011. Thereafter, at the later stage, subject land was again inspected by the Tehsildar, Land Records, Nawalgarh and on physical inspection, the Officer again sent his report to the District Collector, Jhunjhunu on 25.11.2012/05.12.2012. We consider it appropriate to quote the factual report of the subject land in question submitted by the Tehsildar, Land Records, Nawalgarh dt.25.11.2012/ 05.12.2012 which reads ad infra:-
''??????? ???????????? ????????? ???? ?????? ?????? ?????????? ??????? ??????? ?? ?????? ??????? ??????? ??????? ??? ???? ???? ?????? ???? ??? ??.??. ???? ?? ????? ???????? ???? ???? ?? ???? ??????? ??????????? ???????? ???
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?????493
3.96 ???? ???? ??????? ??? ???? ??? ?? ??? ???????? ????? ??? ???? ??? ?? ?
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54616.73 0.10 ?????? ???? ???? ??? ?????? ????. ???????? ??? ??? ??? ??, ??? ???? ???? ???? ??????? ??? ???? ??? ?? ??? ???????? ????? ??? ???? ??? ?? ?
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60817.55 ???? ???? ??????? ??? ???? ??? ?? ??? ???????? ????? ??? ???? ??? ?? ?
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6494.81 ???? ???? ??????? ??? ???? ??? ?? ??? ???????? ????? ??? ???? ??? ?? ?
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1304/493 0.14 ???? ???? ??????? ??? ???? ??? ?? ??? ???????? ????? ??? ???? ??? ?? ?
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1316/608 0.11 ???? ???? ??????? ??? ???? ??? ?? ??? ???????? ????? ??? ???? ??? ?? ?
??: ??????? ??????? ?? ?????? ?? ?? ?????? ?????????? ??????? ??????? ?? ??????? ??????? ????? ??? ??????? ??????? ??? ???? ???? ???? ?????? ???? ??? ??.??. ???? ??? ??? ????????? ?? ??????? ???? ?? ??? ???????? ????? ???? ?? ? ???? ???? ?? ????? ???????? ?? ??????? ???? ???? ?? ??????? ?? ???? ?? ?'' Based on the report submitted by the Tehsildar, Land Records, Nawalgarh, the District Collector, Jhunjhunu vide his letter dt.19.12.2012 endorsed the correctness of the imputations and recommended to the State Government to change the classification of the land to be recorded as siwai chak in view of the fact that neither there is any natural water reservoir nor it is a part of catchment area nor the water ever collected over the subject land. We consider it appropriate to quote the recommendation made by the District Collector, Jhunjhunu vide his letter dt.19.12.2012 to the State Government, which reads ad infra:-
?? ??????? ??? ???????? ????? ?? ???? ?? ?????? ?? ??????? ???? ???? ?? ???????? ????? ?? ???? ??????? 2501 ?????? 5-12-12 ?? ?????? ???? ????? ?? ?? ????? ????? ????? ??. ??. ???? ???? ?. ??. 493, ???? 3.96 ????????, ?. ??. 546, ???? 16.73 ????????, ?. ??. 608, ???? 17.55 ????????, ?. ??. 649, ???? 4.81 ????????, ?. ??. 1304/493, ???? 0.14 ????????, ?. ??. 1316/608, ???? 0.11 ????????, ???? ?? ???? ???? ?? ?????? ?. ??. 546, ???? 16.73 ??. ??? ?? 0.10 ??. ???? ??? ?????? ????. ???????? ??? ??? ??? ?? ??? ???? ???? ???? ??????? ??? ??????? ????? ??? ???? ??? ??? ???? ???? ?????? ?? ???? ??. ??. ???? ??? ??? ????????? ?? ??????? ???? ?? ??? ? ?? ??????? ????? ??? ???????? ????? ?? ???? ???? ?? ????? ???????? ?? ??????? ???? ???? ?? ??????? ?? ???
?????? ???. ???? ??????? ?? ????????? ???????? ?? ???????????? ??? ??? ???????? ????? ?? ??????? ??????? ??????? 2501 ?????? 5.12.12 (????? ?????? ??) ? ???? ?????? ??????? ????? 2067-2070 ?? ???? ????? ?????? ?? ?????? ?? ?? ???????? ????? ?? ??????? ??????? ? ???????? ???? ???? ????? ?? ??????? ??? ????? ????? ????? ??. ??. ???? ???? ?. ??. 493, ???? 3.96 ????????, ?. ??. 546, ???? 16.73 ????????, ?. ??. 608, ???? 17.55 ????????, ?. ??. 649, ???? 4.81 ????????, ?. ??. 1304/493, ???? 0.14 ????????, ?. ??. 1316/608, ???? 0.11 ???????? ???? ?? ???? ???? ?? ?????? ?. ??. 546, ???? 16.73 ??. ??? ?? 0.10 ??. ???? ??? ?????? ????. ???????? ??? ??? ??? ??, ?? ????? ???????? ???? ???? ? ???? ???? ??. ?????????? ??????? ??????? ?????? ?? ?????????? ????? ???? ???? ?? ??????? ?? ???? ???"
After the aforesaid recommendation made by the District Collector, Jhunjhunu, the State Government directed the District Collector, Jhunjhunu to examine the matter and pass appropriate orders in accordance with law vide communication dt.01.02.2013. In furtherance thereof, the District Collector, Jhunjhunu again recommended the State Government to issue necessary orders for correction in the revenue records vide his letter dt.26.02.2013.
The Gram Panchayat Baswa, Tehsil Nawalgarh, District Jhunjhunu in its resolution No.21 dt.03.02.2011 observed that no water ever accumulated on the subject land in question and the Gram Panchayat has no objection in granting the land classified as 'Johad' to the appellant for mining lease provided the appellant-Company gives equal developed land to the Gram Panchayat in the same village and such declaration was made by the appellant-Company before this court in S.B.Civil Writ Petition No.15416/2012 that it would initiate the following activities for benefit of surrounding villages:-
(a) Equal and alternate land will be developed as 'Johad' in place of 'Johad' land in mining activity area in the same village so that villagers are benefited from the basic amenities.
(b) It will create a water reservoir in mined out area.
(c) Water harvesting structure will be developed for augmenting ground water recharging in the area.
(d) CSR activities will be initiated in the surrounding villages.
It was further declared by the appellant-Company in the writ petition that the site for development of alternate 'Johad' would be developed in a planned manner where the catchment, water harvesting structures and cattle grazing land would be developed and to develop suitable drainage pattern for augmentation of ground water table by converting existing Dug-cum-Bore Well (DCB Well) into injection wells.
When no action was taken either by the State Government or the District Collector, Jhunjhunu, who was competent in taking decision and the appellant was shifting from pillar to post, we were informed that after the instant special appeal came to be preferred against order of the ld.Single Judge, a representation was made by the appellant to the State Government to have a re-look of the entire matter and in the light of the recommendation made by the District Collector, Jhunjhunu dt.19.12.2012, the matter may be examined afresh for making necessary corrections in the revenue records on 31.05.2013 and at the same time, the Settlement Commissioner wrote to the State Government that since settlement operations in the Nawalgarh Tehsil, District Jhunjhunu have been closed, necessary corrections in the revenue records can now be made only by the Revenue Department. In furtherance thereto, one after the other representations were submitted by the appellant to the State Government to examine the matter afresh and take appropriate decision in accordance with law.
At this stage, when the appeal came to be preferred and this fact was brought to the notice of the court that representations have been submitted by the appellant to the State Government and that is still pending, this court vide order dt.23.11.2015 directed the State Government to consider the representation of the appellant in the light of the observations made by the Division Bench of this Court in the case of Director General, Research and Development Vs. State of Rajasthan & Others [D.B.Civil Writ Petition No.10384/2010] decided on 09.03.2011 and para 3 of the judgment being relevant for the present purpose is reproduced ad infra:-
It is conceded on facts that in fact there is no Gair Mumkin Nadi existing on the spot, therefore the decision rendered by the Division Bench of this Court in (Abdul Rahman Vs. State of Raj. & Ors.) shall not come in the way of the respondents in making the allotment. In view of aforesaid factual matrix and considering the nature of requirement, we direct that let the allotment be processed as assured within six weeks from today.
Taking note thereof this court directed the State Government to examine the representation made by the appellant and pass final orders. In compliance thereof, the State Government disposed of the representation vide order dt.25.01.2016 without disputing the factual matrix which came on record and with admission that neither there is any natural water reservoir nor the subject land in question is a part of the catchment area but it appears to be influenced by the judgment of Division Bench of this court in Abdul Rahman Vs. State of Rajasthan & Ors. reported in 2004 (4) WLC (Raj.) 435 holding that the subject land in question being recorded as 'Johad', no allotment can be made in favour of the appellant. It is informed that appropriate steps have been taken by the State Government also to seek certain clarification from the Court.
Counsel for appellant submits that if there are disputed questions of fact, certainly this court may not like to hold a roaming enquiry in its equitable jurisdiction u/Art.226 of the Constitution but when the indisputed facts are on record that the subject land in question is neither a natural water reservoir nor it is a part of catchment area and it has been reported by the Tehsildar, Nawalgarh twice in his report which has been accepted and forwarded by the District Collector, Jhunjhunu to the State Government and this fact has not been disputed even by the State Government and counsel appearing for the State as regards the status report of the subject land, submitted by the Tehsildar, Nawalgarh, is concerned. Thus, there appears no justification available with the State not to pass appropriate orders for making necessary corrections in the revenue records over the subject land in question in exercise of powers conferred u/Sec.136 of the Rajasthan Land Revenue Act, 1956 and since the authority has failed to carry out its duty conferred by law and the District Collector, Jhunjhunu has shown its inability to pass appropriate orders u/Sec.136 of the Act, 1956 more so, when the State Government has rejected their representation in view of the communication dt.25.01.2016, no other alternative is left with the appellant than to seek a mandamus from this court against the District Collector, Jhunjhunu to pass appropriate orders and hand over possession of the subject land in question to the appellant to be used for mining purpose in fulfillment of the condition imposed in the order of allotment dt.23.02.2012.
Counsel further submits that it is true that the present appellant is going to use the subject land in question for commercial use but this fact can be noticed that the plant in question, if established, would provide 3.3 million tons of cement per annum and the country is running short of cement inasmuch as by the year 2017, the demand of cement would be 397.50 million tons whereas the production would be 228.30 million tons and as regards the subject land in question is concerned, counsel submits that substantial deposits of lime stone mineral exist in the critical area which is classified as 'Johad' and it contains 60 million tons of lime stone out of the total reserve of 200 million tons and in these circumstances, if the subject land in question is not allotted, then the appellant has to take a decision to install a short capacity of plant and further submits that even otherwise the area falling is in the center of the land in question and the surrounding land has been either allotted or purchased from the recorded tenants and no useful purpose is going to be served in denying allotment of the subject land in question and its allotment is also in public interest and the circular issued by the State Government dt.25.04.2011 also permits allotment of the land if it is needed for public utility and looking to these circumstances, the restriction, as being imposed, by this court in Abdul Rahman's case (supra) may not come in the way for passing of appropriate orders and in these facts & circumstances, dismissal of writ petition at the motion stage by the ld.Single Judge without examining material available on record is not legally sustainable and the order impugned deserves to be quashed.
Since the writ petition was dismissed in limine at the motion stage, after the State Government filed their reply and the factual report of the subject land in question has been submitted by the Tehsildar, Nawalgarh twice to the District Collector, Jhunjhunu is not disputed and despite recommended by the District Collector, Jhunjhunu for allotment of land, the State Government has shown its reluctance because of the judgment of this court in Abdul Rahman's case (supra).
Counsel for State submits that since the land has been recorded as 'Johad' (water reservoir) certainly could not be allotted in the light of the Division Bench judgment of this court in Abdul Rahman's case (supra) and that is the only reason, the Condition No.2 seeking necessary clearance from the Rajasthan High Court has been incorporated by the District Collector, Jhunjhunu in the letter of allotment while treating it to be alleged water reservoir.
Even before this court, it has not been disputed by the State Counsel that the subject land in question has been classified as 'Johad' but it neither falls within any catchment area nor the water ever gets collected and there is no natural water reservoir on the subject land in question.
We have heard counsel for the parties and perused the material available on record with their assistance.
Concededly, the water bodies are required to be retained and such requirement is envisaged not only in view of the fact that the right to water as also qualify life are envisaged u/Art.21 of the Constitution but also in view of the fact that the same has been recognized in Art.47 & 48-A of the Constitution. Art.51-A of the Constitution further makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers & wildlife. Even wetlands act as a benefactor to the society. It is also true that natural water storage resources are not only required to be protected but also steps are required to be taken for restoring them if they have fallen in disuse.
The judgment of Division Bench of this Court in Abdul Rahman's case (supra), on which reliance has been placed, lays down a chalk out plan for restoration of catchment areas to their original shape and it does not lay down a law that alienation of the property held as a public trust is necessarily prohibited and what emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.
Coming to the topography of the area, as evident from Ann.8, the demarcation in orange colour is the area for mining lease, which has been allotted to the appellant-Company and the green colour portion is the land which is purchased by the appellant-Company from the recorded Khatedars and the critical land classified as 'Johad' is a very small pocket identified in small blocks and the subject land in question is surrounded from all the sides of the land which is either allotted or has been purchased from recorded khatedars and it is presently in possession of the appellant-Company and the total area of ML No.6/2001 and ML No.14/2000 is 3461.20 hectares & 1153.40 hectares respectively. The Tehsildar, Land Records, Nawalgarh in his report dt.25.11.2012/ 05.12.2012, after physical verification, has categorically recorded that the subject land in question khasra Nos.493, 546, 608, 649, 1304/493 & 1316/608 approximately 45.26 hectares situated at Village Baswa, Tehsil Nawalgarh are neither part of any catchment area nor they are natural water reservoir and made recommendation to the District Collector, Jhunjhunu for change in classification as a siwai chak and endorsed the correctness of the imputations and recommended to the State Government for change of classification of the subject land in question and in furtherance the State Government directed the District Collector, Jhunjhunu to pass appropriate orders in accordance with law. However, the District Collector, Jhunjhunu appear to be reluctant after the representation of appellant has been turned down by the State Government not on facts but because of the judgment of this court in Abdul Rahman's case, of which we have made reference supra.
We can further observe that the subject land in question, for which a dispute has been raised, of which site plan is on record as Ann.8 may be of no use for any other purpose but at the same time, the site selected for mining has commercially viable lime stone deposits. The site was selected after consultation with the Gram Panchayat, Baswa based on resolution No.21 dt.03.02.2011 certifying that no water ever accumulated on the subject land in question and it has no objection in granting the land classified as 'Johad' to the appellant particularly for mining lease provided that the appellant part with equally developed land to the Gram Panchayat in the same village and that was acceptable to the appellant-Company and certain declarations have been made by the appellant-Company before this court in S.B.Civil Writ Petition No.15416/2012 only to develop the nearby areas and for benefit of surrounding villages and that the appellant is duty bound to carry out its commitments.
It is true that disputed questions of fact, if raised, certainly cannot be looked into by this court in its limited jurisdiction u/Art.226 of the Constitution but it may not be justified on our part in relegating the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. More so, when the factual matrix of the matter and the fact finding report of the Tehsildar, Land Records, Nawalgarh, makes the present status of the land clear and in unequivocal terms that the subject land in question is neither a part of any catchment area nor it is a natural water reservoir and no water ever gets collected over the subject land in question and correctness of imputation has been accepted and concurred by the District Collector, who is the authority to pass appropriate orders u/Sec.136 of the Land Revenue Act but once the State Government has turned down and rejected their representations vide communication dt.25.01.2016 because of the judgment of Division Bench of this court in Abdul Rahman's case (supra) and more so when no contentious issues are involved in the matter to be examined, it will not be appropriate to relegate the appellant to approach the District Collector, Jhunjhunu for seeking appropriate orders, who may not be in a position to examine the matter independently and relegating the appellant, in these facts & circumstances, will remain an empty formality.
The Division Bench also in the case of Director General, Research & Development Vs. State of Rajasthan & Ors. reported in 2004 (4) WLC 435 where the question arose regarding allotment of land which was shown in the revenue records as Gair Mumkin Nadi (river) and falls within the prohibited category and cannot be allotted in view of the directions issued by this court in Abdul Rahman's case (supra), examined the controversy and observed that if there is no Gair Mumkin Nadi (river) existing on the spot, the decision rendered by the Division Bench of this court in Abdul Rahman's case (supra) shall not come in the way of the authorities in making allotment.
In the instant case, we are also satisfied that the subject land in question deserves to be allotted in favour of the appellant after going through the report of Tehsildar, Land Records, Nawalgarh dt.25.11.2012/ 05.12.2012, which has been accepted by the District Collector, Jhunjhunu who has sent his report to the State Government dt.19.12.2012 seeking approval for change of classification of the subject land in question and the State Government also directed the District Collector, Jhunjhunu, at the first instance to examine and pass appropriate orders in accordance with law but under directions of this court, the representation submitted to the State Government by the appellant has once been rejected primarily for the reason that the restriction has been imposed by this court and accordingly it is not possible for the State Government to allot the subject land in question and left the appellant to seek clarification from this court, as has been indicated in Condition No.2 of the allotment letter issued by the District Collector, Jhunjhunu dt.23.02.2012.
Taking the facts, in totality, into consideration, in our considered view the ld.Single Judge was not justified in relegating the appellant to approach the concerned competent authority for seeking appropriate orders and in the facts & circumstances of the case, when the fact finding report of the subject land has come on record and it has been conceded by the State Government as well that there exists no natural source of water and it does not fall within any catchment area nor the water ever gets collected there on the subject land and this what has been indicated by the Tehsildar, Land Records, Nawalgarh in his report as well, of which we have made a reference in detail supra, the appellant has made out a case seeking indulgence of this court.
Consequently, the instant special appeal succeeds and is hereby allowed. The order impugned passed by the ld.Single Judge dt.05.12.2012 is hereby quashed & set aside and in view of the aforesaid factual matrix and considering the nature of requirement, we direct that let the allotment of subject land in question be processed by the competent authority in fulfillment of condition No.2 of LOI dt.23.02.2012 (Ann.3 to the writ petition) and appropriate orders be passed by the respondents within a period of thirty days. No costs.
(J.K.RANKA),J. (AJAY RASTOGI),J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, P.S.