Rajasthan High Court - Jodhpur
Gram Panchayat, Kalyan Singh Ki Sidd, ... vs State Of Rajasthan on 21 August, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:32248] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10542/2023 Gram Panchayat, Kalyan Singh Ki Sidd, Panchayat Samiti Bap, District Jodhpur through its Sarpanch Keshu Ram Meghwal S/o Jagmal Ram Age 42 Yrs. R/o Kalyan Singh Ki Sidd, Tehsil Bap District Jodhpur.
----Petitioner Versus
1. State of Rajasthan through Secretary, Department of Revenue, Government of Rajasthan, Jaipur.
2. District Collector, Jodhpur.
3. Tehsildar, Bap District Jodhpur.
4. M/s S.B.E. Renewables Fifteen Projects Private Limited, Through Its Director Ist Floor World Mark 2, Asset Area 8, Hospitality District, Aerocity, NH 8, New Delhi, 110037.
5. Rajasthan Renewable Energy Corporation Limited, Through Its Executive Director E 167, Yudhisthir Marg, C Scheme, Jaipur.
----Respondents
For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. Rajesh Panwar, Sr. Advocate. AAG
assisted by Mr. Ravindra Puri, AGC
and Ms. Meenal Singhvi
Dr. Sachin Acharya, Sr. Advocate
through VC assisted by Mr. Jitendra
Mohan and Mr. Karan Parihar and
Mr. Samyak Dalal
JUSTICE DINESH MEHTA
CAV Judgment
REPORTABLE Reserved on:- 25/07/2024
Pronounced on:- 21/08/2024
1. The Gram Panchayat Kalyan Singh Ki Sidd (hereinafter referred to as the 'Gram Panchayat') has approached this Court (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (2 of 33) [CW-10542/2023] calling the order dated 06.04.2021 in question, whereby the State has accorded permission for allotment of 800 bighas land of Kharsra No.1 and 2328 bighas land of Khasra No.14 of the revenue village Kalyan Singh Ki Sidd, Tehsil Bap, Jodhpur (hereinafter referred to as 'the Village') to the respondent No.4.
2. Before adverting to the grounds raised in the writ petition and rival contentions, it would be apt to be abreast with the facts, which would be relevant for the purpose of pronouncing upon the challenge laid by the petitioner.
3. The revenue village Kalyan Singh Ki Sidd had 7013.08 bighas land at the time of settlement, spreading in 6 different khasras being Khasra Nos.1, 12, 14, 15 28 and 77 out of which 30.17 bighas land of Khasra No.1 and 1309.02 bighas land of Khasra No.14 (in total 1339.19 bighas land) were recorded in the name of State Government, as has been indicated in the report dated 24.07.2024 filed with the additional affidavit dated 25.03.2024. 3.1. Apart from the above, 833.06 bighas land of Khasra No.1 and 4472 bighas land of Khasra No.14 were recorded as Gair Mumkin Magra (uncultivable hillock). It may be pertinent to mention that the term 'Magra', is a vernacular version of expression 'Hillock' and 'Gair Mumkin' means impossible or not possible.
3.2. It is relevant to note that out of the total land of the village, 36 bighas land has been earmarked as pasture land. 3.3. It is also pertinent to note that for the purpose of water conservation, the State Government has developed a kachha dam in the name of 'Modakiya Nada' under the Mahatma Gandhi NAREGA Scheme.
(Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (3 of 33) [CW-10542/2023] 3.4. The respondent no.5 - Rajasthan Renewable Energy Corporation Limited (hereinafter referred to as 'the RREC') sent a letter dated 28.09.2020 to the District Collector, Jodhpur for allotment of government land for development of 300 megawatt solar power project at village Kalyan Singh ki Sidd to be developed by M/s. SBE Renewables 15 Private Limited (respondent No.4). 3.5. The communication aforesaid indicated that for the purpose of project of generation of 300 megawatt electricity, 600 acres land would be required, while also indicating that respondent No.4 has identified 724 hectares government land in Khasra Nos.1 and 14 of Kalyan Singh ki Sidd Village. The particulars of the land given to the District Collector is as under:
Details of Revenue Land of Village Kalyan Singh ki Sid, Tehsil Bap, District Jodhpur S.No. Khasra Type of Area as per record Area applied for allotment No. Land Bigha Biswa Acres Hectares Bigha Biswa Acres Hectares 1 1 GM 830 17 332.34 134.44 830 17 332.34 134.44 Magra 2 14 GM 4247 0 1698.80 687.22 3642 2 1456.8 589.34 Magra 4 5077 17 2031.14 821.66 4472 19 1789.1 723.78 8 3.6. In furtherance of the communication so sent by the RREC, the Additional District Collector (First) sent a letter to the Tehsildar Bap to send his report as to whether the land proposed by RREC can be allotted to respondent No.4.
3.7. The Additional District Collector sought information on 28 different points, such as - whether the subject land has been allotted to someone else? Whether the allotment is likely to effect electric transmission lines and right of way? Whether it would (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (4 of 33) [CW-10542/2023] effect ecological system and whether the proposed land is a part of the catchment area or flow of any river?
3.8. Though the letter was sent to Tehsildar but the Patwari concerned with the approval of Tehsildar Bap sent a report dated 19.10.2020, inter-alia stating that 830.17 bighas land in khasra No.1 and 3642.01 bighas land in khasra No.14 of the village are recorded as Gair Mumkin Magra (uncultivable hillock). It was indicated that a Nala exists in khasra No.1 and if the land covered by the said Nala is kept apart, remaining 800 bighas land can be allotted. In relation to khasra No.14, it was indicated that except for one 'Nadi', no other water body, pond, nala or river existed. 3.9. The Tehsildar further reported that the remaining land neither contains any forest land nor forms part of catchment area. 3.10. With the aforesaid explanation, the Tehsildar proposed that 800 bighas land of khasra No.1 and 2800 bighas land of khasra No.14 (including the small naadis and the part of the land on which the plantation has been made) be allotted. The Tehsildar also stated that the proposed land is not a restricted land. 3.11. In furtherance of the above referred report of the Patwari, the Tehsildar sent his letter dated 20.10.2020 to the Sub Divisional Officer, indicating therein that after site inspection, site map has been prepared and accordingly, the proposed land is not a restricted land and that land ad-measuring 3642.06 bighas be allotted to the respondent No.4, as the ponds and river etc. have been excluded in the proposal, and have been duly highlighted/marked in the site map.
3.12. Considering the report/recommendation so sent by the Tehsildar, the District Collector (respondent no.2) sent a (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (5 of 33) [CW-10542/2023] communication dated 01.12.2020 to the Sub Divisional Officer, raising queries about the distance of the proposed land from the Abadi of the revenue village. He also directed the Tehsildar to send revised proposal, excluding the high tension line, road and the land on which plantation has been done apart from the land on which Nadi and Nala existed.
3.13. The Sub Divisional Officer, in turn, revised his proposal and excluded the land on which high tension line was passing; the road and the land on which plantation had been done so also the Nadi and river land. In the revised proposal, he recommended that 800 bighas land out of 830.17 land of khasra No.1 and 2328 bighas land out of 3642.02 bighas of khasra No.14 (total 3128 bighas land) be allotted.
3.14. It was however stated in the above proposal that the land on which plantation has been made is not recorded as forest land, hence, the same can be considered for allotment, and if that be done, then, total 3538 bighas land can be allotted. The District Collector on the basis of above referred report dated 16.12.2020 sent by the SDO, Bap, Jodhpur proceeded to recommend allotment of 3128 bighas land vide letter dated 23.12.2020. 3.15. On learning about the recommendation so made by the District Collector on 23.12.2020, the Sarpanch made a representation dated 06.01.2021 to the District Collector, Jodhpur followed by another representation dated 13.01.2021, which was sent to the Divisional Commissioner raising grievance about the recommendation so made.
3.16. It was contended by the petitioner - Gram Panchayat that a large chunk of 2800 bighas land of Khasra Nos.1 and 14 has been (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (6 of 33) [CW-10542/2023] proposed to be allotted for establishment of solar project and if the same is done, the village will be left with practically no land and consequently, the development of the village will stop. It was flagged that the village will be deprived of basic amenities such as health centre, crematorium, sports ground, sanskrit school, Primary Health Centre and Animal Sub-Health Centre. It was also stated that the proposed land is adjacent to Abadi of the village and if the project is established, not only the rights of the villagers would be affected but the grazing of the cattle would become impossible.
3.17. Acting on the representation dated 13.01.2021 sent to the Divisional Commissioner, the Additional Divisional Commissioner sent a communication dated 14.01.2021 to the District Collector to do the needful and send a report after due enquiry. 3.18. It is noteworthy that the Additional District Collector (First) Jodhpur had also sent a communication dated 03.03.2021 to the Sub Divisional Officer, Bap requiring him to send the factual report while also asking as to whether he had received any objections before sending the recommendation.
3.19. According to the petitioner, they did not hear anything from the District Collector, Sub Divisional Officer, Bap or the Divisional Commissioner for a considerable time, and in the meantime, the State proceeded to grant sanction to allot 3128 bighas land (800 bighas land out of 830.17 bighas land from khasra No.1 and 2328 bighas land out 3642.02 bighas land of khasra No.14) of the village to the respondent no.4 vide order dated 06.04.2021. 3.20. The approval aforesaid was given under Rajasthan Land Revenue (Allotement of Land for Setting Up of Power Plant Based (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (7 of 33) [CW-10542/2023] on Renewable Energy Sources) Rules, 2007 (hereinafter referred to as 'the Rules of 2007'). While according its approval, the State Government enjoined upon the District Collector to ensure that the right of way and easementary rights of the existing allottees and interested khatedars are not interfered with. 3.21. The District Collector, in turn, sent a communication dated 03.05.2021 to the Tehsildar Bap to take a sum of Rs.5,58,67,644/- as payable premium and lease rent. 3.22. The respondent No.4 deposited the said amount on 21.05.2021 and the District Collector (respondent No.2) in turn passed an order of allotment of 3128 bighas land to the respondent No.4 for establishment of 300 MW solar power project on the terms and conditions mentioned in the said letter of allotment dated 26.05.2021.
3.23. In furtherance of the allotment made by the District Collector vide its order dated 26.05.2021, a lease deed came to be executed between the State and the respondent No.4 in relation to 3128 bighas (506.35 hectare) land of the village situated in khasra Nos.1 and 14 for a period of 30 years for setting up of 300 MW solar power project.
4. The petitioner has challenged State's action of allotment of the land on various grounds:-
(i) the allotment is contrary to Rule 5(a) and 5(b) of the Rules of 2007;
(ii) the allotment of the subject land is contrary to the provisions of Section 16, more particularly, sub-section 10 of Section 16 of Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Tenancy Act);
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(iii) in contravention of Rule 7 of the Rules of 2007, without jurisdiction, as no land can be allotted for solar project;
(iv) as per Rules of 2007, land can be given on lease, whereas after allotment, the name of the allottee - respondent No.4 have been shown as khatedar in the revenue record;
(v) no survey and demarcation of the land was made;
(vi) after recommendation being made by the Collector, objections were filed by the petitioner on 06.01.2021 and 13.1.2021 to the District Collector and Divisional Commissioner, but no heed was paid.
5. Having given the prelude or pointers on which he would be arguing, Mr Moti Singh, learned counsel for the petitioner submitted that the grievance of the petitioner - Panchayat has to be considered keeping in mind that revenue land of the village is 5305.06 bighas, out of which, 36 bighas is pasture and land ad- measuring 1339 bighas is recorded as government land whereas, human population is about 800 and cattle population is 3830 (998 cows, 24 buffaloes, 721 goats and 2070 sheep). Submissions of the petitioner :-
6. Mr. Moti Singh, learned counsel for the petitioner submitted that keeping the figures of human and cattle population, if the decision of the State Government is tested, it clearly turns out to be a decision taken without application of mind or a decision taken in ignorance of the relevant factors. He submitted that the revenue authorities so also the State Government has taken into consideration the interest of the respondent No.4 only, while giving a complete go-by to the needs of the residents of the village.
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7. He underscored that out of total land available in the revenue village, major part had already been allotted for establishment of solar plant earlier to SGI Suryalab (P) Ltd. (about 600 Bigha) and this time to respondent No.4 (ad-measuring 3128 bighas), without even recognizing the present requirements of the villagers and the cattle and the projects under consideration (sports ground, primary health centre, veterinary Hospital, crematorium etc.) let alone the future plans.
8. He argued that it was incumbent upon the revenue authorities (Patwari, Tehsildar and Sub Divisional Officer) to objectively consider the request for allotment of land to the respondent No.4, while keeping in mind the needs of the residents and cattle of the village.
9. Mr. Singh navigated the Court through the Rules of 2007 and submitted that the allotment in question is contrary to clause (a) and (b) of Rule 5 of the Rules of 2007, which puts a clear embargo on allotment of land which is prohibited under section 16 of the Tenancy Act so also the land situated in catchment area of any tank river, Nala and Nadi.
10. Learned counsel submitted that indisputably, the tank which was developed under MGNAREGA Scheme is situated in khasra No.14 and there are 2-3 Nadis and Nala in said khasra. He raised a concern that major part of the land (khasra No.14), which has been allotted to the respondent No.4 serves as catchment area of these pond, Nadi, river, etc.
11. Learned counsel contended that the allotment in question is in clear contravention of Clause (i), (iii), (iv), (x) and (xiv) of Section 16 of the Tenancy Act. Taking the Court through the (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (10 of 33) [CW-10542/2023] scheme of the Act and above Clauses of Section 16, learned counsel submitted that the allotment in question could not have been made in the face of clear statutory embargo.
12. Learned counsel took the Court through the Rajasthan Land Record Rules, 1957 and submitted that the allotment is against the mandate of Rule 39 of the Rules of 1957 as well. It was further contended that looking to the present cattle population of 3830, at least 1900 bighas pasture land is required, and if the allotment is not set aside, there will be no land left for the cattle to graze.
13. It was contended by learned counsel for the petitioner that in the desert area like the one under consideration, the cattle have to survive on small bushes or grass, which naturally grow in the open land. Expressing his concern for the cattle, he submitted that the State Government has practically allotted entire land at the disposal of the village, without even thinking that what would happen to the cattle of the area, which is the main or only source of survival for many families.
14. Learned counsel submitted that the land of khasra No.14 which has been recorded as Gair Mumkin Magra is a rocky area on account of presence of small hillock and the same serves a catchment area, because the rain water flows to the river and/or to small ponds and nadis. He argued that maybe, the same have not been recorded in the revenue record as water bodies but are factually water bodies and lifeline of the cattle and residents of the area.
15. He raised a grievance that in a remote village of the desert where basic necessities of drinking water is not available, it (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (11 of 33) [CW-10542/2023] becomes all the more necessary for the State and for the Courts to ensure that the water bodies (nala, nadi etc.) are saved, irrespective of their entries in the revenue record.
16. Learned counsel argued that no survey was made by the revenue authorities prior to making the report. He emphasised the need of survey of the land having due regard to the nature of soil, topography of the land and the question whether it forms part of catchment area or nadi. He argued that such survey was required to be made by the settlement department, which department is entrusted with such job, whereas, the Patwari and Tehsildar etc. have made the recommendation solely based on the entries in the revenue record.
17. Learned counsel invited Court's attention towards the map/plan (Annex.27) to highlight that entire land has been included in the allotment made to respondent No.4.
18. Grievance with vehemence was raised against the revenue authorities, including the District Collector, Tehsildar and Patwari with the allegation that despite the fact that the petitioner - Gram Panchayat had made a representation dated 06.01.2021 to the District Collector followed by another representation dated 13.01.2021 to the Divisional Commissioner, which was registered at grievance portal of the State Government, and ignoring the direction of the Divisional Commissioner who had called for the report of the District Collector, Tehsildar and Patwari have proceeded to recommend allotment paying no heed to ground realities.
19. Learned counsel pointed out that immediately after the District Collector had made the recommendation for allotment of (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (12 of 33) [CW-10542/2023] the land by his communication dated 23.12.2020, the petitioner proceeded to make a representation but the Collector neither got any inquiry held in pursuance of the petitioner's representation nor did he think it appropriate to even forward the petitioner's representation to the State Government. He contended that entire exercise of allotment has been done hastily and in order to give undue advantage to the respondent No.4.
20. Learned counsel argued that the representations were given by none other than the Gram Panchayat, a local body, and therefore, the State was under bounden duty to consider the same. While emphasizing that the petitioner's cause is for the people and cattle of the village, he argued that the entire proceedings for allotment and the recommendation dated 06.04.2021 so also consequential allotment order dated 26.05.2021 are illegal and liable to be quashed and set aside being violative of Articles 14 and 21 of the Constitution of India.
21. Mr. Moti Singh submitted that as per Rule 136, the land (Gair Mumkin Magra) would vest in Gram Panchayat and the same can be used only for public purposes.
22. Learned counsel for the petitioner relied upon the following judgments to serve petitioner's cause:-
(i) 1997 AIR (SCW) 1120 (Union of India & Anr. Vs. Sher Singh & Ors.)
(ii) 2012 AIR (SCW) 3569 (Center for Public Interest Litigation & Ors. Vs. Union of India & Ors.)
(iii) 1980 RRD 315 (Jai Narain Vs. Board of Revenue)
(iv) 2001 RRT (2) 1145 (Pratap Ram Vs. Board of Revenue)
(v) 2009 RRD 574 (Munnalal Vs. State of Raj.) (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (13 of 33) [CW-10542/2023] Submission of the State/Respondent Company:
23. Mr. Rajesh Panwar, learned Sr. Advocate and Additional Advocate General argued that most of the submissions which the petitioner has made do not find mention in the memo of the writ petition and therefore, they cannot be considered.
24. Learned counsel argued that the Land Records Rules of 1957 have no relevance while also submitting that Rule 136 of the Rajasthan Panchayati Raj Rules, 1996 has nothing to do with the present controversy inasmuch as the same is meant for nature/classification of soil.
25. Learned Additional Advocate General also submitted that the land has been recorded as 'Gair-Mumkin Magra' which, classification is made on the basis of soil. He argued that such classification is relevant only for the purpose of showing as to whether the cultivation over such land is possible or not. He submitted that the Government land which is recorded as 'Gair- Mumkin Magra' can well be allotted for any purpose other than the agricultural purpose and it cannot be said that the land with such classification falls in prohibited area category.
26. Though being incited by small interjections by counsel of the petitioner, learned AAG vociferously asserted - "the land belongs to the State Government and it can allot it to anyone, unless there is a prohibition for allotment".
27. Learned counsel argued that the respondent No.4 is not a khatedar tenant and added that if for whatever reasons, the revenue authorities have showed the company's character as khatedar, it cannot be treated to be a khatedar, as it has been conferred lease hold rights and not khatedari rights. He submitted (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (14 of 33) [CW-10542/2023] that even lease hold rights are for 30 years under the Rules of 2007 and thus, petitioner's apprehension that no land will be left is baseless.
28. Learned Additional Advocate General submitted that Rule 4 to Rule 8 of the Rules of 2007 and the conditions of the allotment make it absolutely clear that the land cannot be put to any other use than for which it has been allotted and since the allotment has been made according to the Rules, no interference is warranted.
29. Dr. Sachin Acharya, learned senior counsel appearing for the respondent - company submitted that the petitioner has no right or locus to thwart the project of the respondent - company or challenge the allotment made in its favour as none of the statutory or fundamental rights of the petitioner has been infringed. He added that the petitioner cannot maintain the present writ petition under Article 226 of the Constitution of India.
30. Learned senior counsel argued that the resolution of the Gram Panchayat that has been placed on record is only meant for making representation before the District Collector and not for filing the present writ petition and hence, the writ petition is not maintainable for want of requisite resolution of the Gram Panchayat.
31. Mr. Acharya further submitted that the petitioner's contentions that land of two naalas and naadis has been allotted to the respondent - company is factually incorrect inasmuch as the same has been categorically excluded as is evident from perusal of the revenue map prepared by the Revenue Authorities.
32. It was argued that the land on which the water body exists (as per revenue record) has been left out and since the same has (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (15 of 33) [CW-10542/2023] not been allotted, the Gram Panchayat cannot challenge the allotment made in favour of the respondent-company, simply because on some part of the area, rain water gets accumulated owing to topography of the area.
33. He submitted that unless a water body is recorded as such in the revenue map, neither its existence can be presumed nor can there be a statutory embargo on allotment.
34. He emphasized that the concept of sustainable development in the present era has changed and now more focus is being given to combat climate change and in this process, the solar power project which generates electricity without any adverse impact on the environment deserves encouragement.
35. He submitted that the Court is required to be sensitive towards the need of the environment and eco-friendly generation of energy rather than worrying for non-existent water resources - the preference should be given to the solar power project, as the same would restrict or reduce the use of traditional sources of generation of electricity, which otherwise entail adverse impact on the environment due to use of coal, water and atomic substances.
36. Learned counsel further submitted that the land allotted to the respondent - company is at least half a kilometer away from 'Modkiya Talab' and people of the village and cattle etc. can conveniently go there for their requirements.
37. Mr. Acharya, learned senior counsel argued that by virtue of amendment brought in the Specific Relief Act, more particularly, in the form of Section 20A thereof, no injunction can be granted by the Court.
38. Judgments cited by Dr. Acharya:-
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(i) Jal Grahan Vikas Sanstha Vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.8472/2021),
(ii) M.K. Ranjitsinh & Ors. Vs. Union of India & Ors. (Writ Petition (Civil) No.838 of 2019,
(iii) Dhanraj & Ors. Vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.17353/2021),
(iv) Papapuri & Ors. Vs. State of Rajasthan & Ors. (D.B. Civil Writ (P.I.L.) Petition No.5132/2021,
(v) Kheem Singh Rathore Vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition (PIL) No.1579/2021,
(vi) N.G. Projects Ltd. Vs. Vinod Kumar Jain and Ors., reported in (2022) 6 SCC 127
(vii) Dr. Praveen Singh Shekhawat Vs. State of Rajasthan, (S.B. Civil Writ Petition No. 4595/2020, Neutral Citation No.2023:RJ-
JD:32556).
Rejoinder Arguments of Petitioner:
39. Addressing the Court on the issue of its locus, Mr. Moti Singh argued with vehemence that the petitioner before this Court is a Gram Panchayat, which is under a Constitutional and statutory duty to protect and safeguard not only the land belonging to it but also to save and protect natural resources. He submitted that since the impugned allotment is in violation of the statutory provisions, the Gram Panchayat can very well maintain the present petition.
40. In response to Mr. Acharya's contention that on account of embargo given under Section 20A of the Specific Relief Act, no injunction can be granted, Mr. Moti Singh submitted that the expression 'court' as used in Section 20A of the Specific Relief Act (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (17 of 33) [CW-10542/2023] is meant for Civil Court and such inhibition given under Section 20A of the Act does not apply to the Constitutional Courts.
41. He nevertheless submitted that according to Section 20A of Specific Relief Act, no court can grant any injunction in relation to infrastructural projects but in the instant case as the petitioner is not seeking any injunction, provision of Section 20A of the Specific Relief Act does not have any bearing. Stance of Mr. Moti Singh, in other words, has been that since the Court is finally deciding the writ petition, provision of Section 20A of the Specific Relief Act has lost its applicability.
42. Responding to the judgments, which were cited by respondent's counsel, Mr. Moti Singh, learned counsel for the petitioner submitted that the judgment in the case of Papapuri (supra) was about pasture land; he pointed out that in the case of Khim Singh (supra), the disputed land was that of Municipal Board, Barmer and not 'gair mumkin magra'; he tried to distinguish the judgment of this Court rendered in the case of Jal Grahan Vikas Sanstha (supra).
43. In response to Mr. Panwar's contention that the arguments and grounds which he had advanced before the Court have not been taken in the memo of writ petition, learned counsel for the petitioner asserted that the grounds, which he has put forth before this Court have mostly been taken in the memo of the writ petition or in rejoinder.
44. Heard learned counsel for the parties and perused the record.
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45. Various issues have cropped up for consideration of this Court. Out of the submissions made by the rival parties, this Court would take one issue after the another.
Whether the State was required to consider petitioner's representation:
46. Admittedly, no sooner had the Collector recommended allotment of 3128 bighas land to the respondent Company (on 23.12.2020), than the petitioner - Gram Panchayat had sent a representation dated 06.01.2021 to the District Collector followed by another representation dated 13.01.2021 to the Divisional Commissioner. The grievance so raised by the petitioner was registered and reflected on the Sampark Portal of the State Government and even the Additional District Collector had sought comments from the Sub-Divisional Officer, Bap, but the District Collector or the Sub-Divisional Officer, Bap neither sent their comments to the Divisional Commissioner nor have they forwarded the representations filed by the petitioner to the State Government.
47. The State Government, therefore, proceeded to approve the allotment of 3128 bighas of land to the respondent Company under the Rules of 2007 for establishment of Power Project on 06.04.2021 and consequently allotment letter dated 26.05.2021 came to be issued by the District Collector, oblivious of the objections filed by the petitioner - Gram Panchayat and unmindful of the fact that practically no land will be left for the village.
48. The Gram Panchayat is a local body and entrusted with various responsibilities for ensuring overall development of the village. Rule 136 of the Rajasthan Panchayati Raj Rules, 1996 in (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (19 of 33) [CW-10542/2023] clear terms provides that all Abadi land shall vest in Gram Panchayat and all other lands within the Panchayat Circle shall be managed by the Panchayat subject to such conditions as may be imposed by the State Government.
49. It will not be out of place to reproduce Rule 136 of the Rules of 1996, which reads thus:-
136. Panchayat properties.
-[(1) All common lands and public streets together with pavements, stones and other material thereof within the Panchayat Circle as well as all Government lands lying within the Abadi Area shall vest in and belong to a Panchayat. All other Government lands within the Panchayat Circle shall be managed by Panchayat subject to such conditions and restrictions as may be imposed by the State Government, from time to time.] (2)The State Government may, subject to such conditions and restrictions as it may think fit to impose, vest in the Panchayat any land, properties, works, materials, things belonging to the State Government.
(3)All properties mentioned in Sub-secs. (1) and (2) shall be under the direction, management and control of the Panchayat and shall be held by it as a trustee for the purposes of this Act.
(4)All the markets and fairs except those managed by the State Government or Panchayat Samiti, that are held on the lands vested or vesting in the Panchayat, shall be managed and regulated by it. (5)Income from sale proceeds or lease of such properties or material produce therefrom and any dues levied or imposed in respect of markets and fairs, held on such lands, shall form part of Panchayat fund and shall be applied by the Panchayat in the achievement of objects of Panchayat Raj Act.
(6)The State Government, may resume any such property vested in the Panchayat: -
(i)if the panchayat is found upon enquiry to have mismanaged the same or utilised in contravention of terms and conditions imposed at the time of vesting, or
(ii)if the same is otherwise required by the State Government in the public interest, on (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (20 of 33) [CW-10542/2023] such terms, as the State Government may determine.
50. A perusal of Rule 136 makes it abundantly clear that the Abadi land of the village vests in the Gram Panchayat while government land within the Panchayat circle is to be managed by a Panchayat. That apart, as per the mandate of Article 243G of the Constitution, the Gram Panchayat has got even constitutional recognition. Accordingly, it is enjoined upon the State to endow the Panchayat with such powers and authority to function as an institution of self government and to confer or devolve powers and responsibilities.
51. The provisions of Rule 136 get strength from Article 243G of the Constitution of India and if both of them are read conjointly, it is apparent that the Panchayat has a duty to manage the land which vests in the State and to protect rights of the villagers and cattle and so also to factor in future needs.
52. It is only the Gram Panchayat which can raise legitimate objections and brought to fore the future needs of the residents and on-going projects because as per Clause (a) of Article 243G, it is the Panchayat, who is entrusted with the responsibility to prepare the plan for economic development and social justice.
53. Such being the position, when the Gram Panchayat had filed representation and raised objections, it was incumbent upon the allotting authority viz. District Collector to at least consider the same and also to forward the representation and corresponding comments to the State Government so that a holistic view of the situation could be taken.
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54. In the instant case, the representations sent by the Gram Panchayat have been withheld and the State Government was not made aware of the objections and concern raised by the Gram Panchayat. Resultantly, the State Government granted approval for the allotment, in utter ignorance.
55. True it is, that the Rules of 2007 do not contemplate consideration of representation by Gram Panchayat much less providing an opportunity of hearing to it. In the opinion of this Court, the State being a trustee of the land, which essentially belongs to its citizenry cannot stifle or silence the voice of its residents - it cannot completely give a go-bye to the present and future needs of the residents of the village under the guise of industrial development or under any other pretext, including the climate change.
56. This Court, not even for a second, is against establishment of solar power project or for industrial development but a blind eye cannot be turned towards the grievance raised by the petitioner. The respondents have practically allotted every inch of available land of the village to the respondent Company. It is clear from the record that two chunks of land - unoccupied government land, were available with the State Government i.e. one in khasra No.1 and another in khasra No.14. It is surprising to note that out of 830.17 bighas land of khasra No.1, 800 bighas land has been allotted and out of 3642.02 bighas land of khasra No.14, 2328 bighas government land has been allotted.
57. The part of the land which has not been allotted or which has been kept out of the allotment is, the land which was prohibited by Section 16 of the Tenancy Act and/or Clause (a) and Clause (b) (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (22 of 33) [CW-10542/2023] of Rule 5 of the Rules of 2007. The representations of the Gram Panchayat, if not the villagers, have not been heeded to, such an approach has definitely violated the rights of the residents guaranteed by Article 21 of the Constitution of India.
58. The view point or representation of the petitioner - Gram Panchayat being a representative body was therefore, required to be objectively considered by the District Collector and the State Government, before taking a final call on the allotment of land to the respondent Company.
59. According to this Court, when huge chunk of government land is sought to be allotted to a private player for establishment of solar power project or for any other cause, the State Government is required to elicit comments from the concerned Gram Panchayat(s), if not consent or 'no-objection'. However, as the statutory provision does not envisage any such requirement, the proceedings for want of approval/consideration of the representation by the Gram Panchayat, cannot be set at naught.
60. This Court strongly feels that the concern or representation given by the Gram Panchayat of the area from which, land is being sought to be allotted is required to be taken into account so that rights of the residents and their cattle can be given due regard by the state authorities before allotting the land under the Rules of 2007.
61. In the instant case, the objections filed by the petitioner were not even given short shrift by the Collector and the same remained unattended. Instead of directing the District Collector to consider the representation and annulling the allotment already (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (23 of 33) [CW-10542/2023] made, this Court proposes to dilate upon the objections or concern expressed by the petitioner.
62. If the representations which were sent by the Gram Panchayat to the District Collector are taken into account, the major concern which the Gram Panchayat had expressed was that proposed allotment of land in terms of the recommendations would thwart future development plans of the village, as no vacant land would remain with the Gram Panchayat/State. As has been flagged by the petitioner, the requirement of land for basic amenities such as sports ground, sanskrit school, primary health centre, veterinary health sub centre, crematorium etc. has not been factored in by the State. That apart, another concern expressed by the Gram Panchayat that the right of way would be blocked and no land will be left for pasturage has not been taken into account.
63. This Court would be dealing with the legality of the allotment of the land which has been described as 'Gair Mumkin Magra' and the requirement of pasturage land etc. in latter part of the judgment, but at this stage, it would like to record that while recommending the land for allotment, the concerned Patwari and Tehsildar have been a bit too liberal and have recommended every possible inch of the land which was open for allotment.
64. The District Collector had sent recommendation to allot entire land, except the land which comprises of nala, river and pond etc; 410 bighas land on which dense plantation has been made and the pond which has been developed under NAREGA Scheme. It is, therefore, clear that whichever part of the land could be allotted out of khasra Nos.1 and 14 of the village has (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (24 of 33) [CW-10542/2023] been allotted to respondent Company, in utter disregard of the present and future needs of the village.
65. The concern expressed by the Gram Panchayat that it would require land for play ground, sanskrit school, primary health centre, crematorium etc. calls for active consideration.
66. During the course of submission, Mr. Moti Singh, learned counsel for the Gram Panchayat conceded that there is sufficient land for expansion of abadi but flagged that so far as school, play ground, health centre etc. are concerned, at least 10 bighas land should have been kept out of the allotment so as to ensure that land is available to be used by Gram Panchayat or any other agency for basic amenities and essential requirement.
67. This Court is unable to swallow the stance of the State - "the land belongs to the State Government and it can allot it to anyone, unless there is a prohibition for allotment". The land, according to this Court, is not owned by the State. The State is a trustee of all the natural resources, including the land and it has a fiduciary duty to use, allot or distribute the same in accordance with law - the distribution of natural resources has to be equitable and within the framework of the Constitution Scheme striking a balance between the basic needs of the people and commercial interests.
68. True it is, that the economic development and exploitation of natural resources is necessary and inevitable in order to see the overall development of the nation, but at the same time, under the cloak of economic development the basic needs and requirements of common people, animals, vegetation and water bodies cannot be side tracked or ignored.
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69. The State actions are required to be in-tandem with Part-IV of the Constitution, encapsulating directive principles. Article 39(b) of the Constitution in this regard needs special mention, which reads "that the ownership and the control of the material, resources of the State community are so distributed as best to subserve the common good".
70. This Court would hasten to add that while striding for strengthening the economy, the State can neither stifle the present needs nor can it overlook the needs of coming generation, more particularly, when it comes to land which is the only limited and unexpandable resource.
Whether land described as Gair Mumkin Magra can be allotted:-
71. Mr. Moti Singh, learned counsel for the petitioner relied upon Rule 39(1) of the Rajasthan Land Revenue (Survey, Record & Settlement) (Government) Rules, 1957 and submitted that as per Rule 39, dry unculturable 'gair mumkin' land is earmarked for land unit for village. According to him, the expression "land unit for village" means public purpose and therefore, the land of khasra Nos.1 and 14, which was recorded as 'Gair Mumkin Magra' (unculturable hillock) could not have been allotted, as the same is meant for public use.
72. Considered legally, the submission so made by Mr. Singh is fallacious. Rule 39 of the Rules of 1957 that has been relied upon by Mr. Singh was enacted in order to give effect to the provision of Section 150 of the Rajasthan Land Revenue Act, which reads thus:-
150. Soil Classification - The Settlement Officer shall also divide villages in each assessment circle or (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (26 of 33) [CW-10542/2023] assessment group formed under Section 149 into various soil classes in accordance with rules made in that behalf.
73. Unquestionably, Section 150 of the Rajasthan Land Revenue Act deals with soil classification and provides that the settlement officer shall divide village or circle into various soil classes. Rule 39 of the Rules of 1957 is, therefore, clearly meant for classification of the soil. Rule 39 of the Rules of 1957 carves out four broad divisions of soils, which includes (A) - Irrigated (B) - Dry cultivated (C) - Dry uncultivated and (D) - Dry unculturable. The soil category 'dry unculturable' has been sub-categorised as 'gair mumkin', which as per this Court means that such land is a dry unculturable land, on which cultivation or agriculture is 'Gair - Mumkin' - impossible.
74. If the table given under Rule 39 is carefully construed, it is clear that 2nd column of the table indicates the nature of the soil while 3rd column reflects the reason for which such classification has been made. To explain it further, if we see category - Irrigated (1) Chahi, then the description part of column No.3 shows 'Irrigated by well'. Similarly, when it comes to category 'B' - Dry- cultivated, Barani or Barsati or Mal in 4 th column, the description comes that 'Depending on rain'. It is, therefore, clear that it is not the purpose for which the land has been earmarked as claimed by Mr. Moti Singh, but it is the reason, for which the soil has been so classified.
75. Hence, the expression 'Gair Mumkin' given in clause-D of Rule 39 of the Rules of 1957 cannot be taken as the land earmarked for village. It is pertinent that soil classification for land unit or village or 'Abadi' land is required to be shown as 'Gair (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (27 of 33) [CW-10542/2023] Mumkin' or 'Gair Mumkin Abadi', which a revenue map of a village usually depicts, while preparing a 'jama-bandi'. Because, that part of land which has been earmarked as 'Abadi' - no agriculture or cultivation is permissible.
76. The land of khasra No.1 and 14 of Village Kalyan Singh ki Sidd has been shown as 'Gair Mumkin Magra', which in the opinion of this Court means that since the land is 'pathrili' - rocky or hillocks, the cultivation is impossible and that is why it has been described as 'Gair Mumkin' or unculturable hillock. This Court is firmly of the view that such entry in revenue record (Gair Mumkin Magra) indicates that the land is not open for allotment for agricultural purposes, because the land is unculturable and the cultivation is impossible.
77. But by no stretch of imagination it postulates that such land is for public purpose or for public amenities. In a small village of 800 people and 4000 cattle, keeping a big chunk of 4000 bighas of land for the public amenities is inconceivable and if that be done, it would be a complete waste of resource.
78. If the arguments that land described as 'Gair Mumkin Magra' cannot be allotted or is not open for allotment is accepted, then, the village in question and all other hilly areas, or the areas with hillocks, would see no development at all.
79. This Court is, therefore, of the considered view that subject to other restrictions given under Section 16 of the Rajasthan Tenancy Act, there cannot be any inhibition or embargo on allotment of land described as 'Gair Mumkin Magra' under the Rules of 2007 or any other rules, subject of course to a caveat (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (28 of 33) [CW-10542/2023] that such land should not form part of any river, nala or catchment area of water body including pond or river.
Whether the land allotted to the respondent - Company forms part of catchment area :
80. This Court would like to observe that a land being part of a water body is entirely different than forming part of catchment area. Catchment area of a river or a pond is usually much larger than the size of the river and pond. The same can be ascertained or determined by the survey officer on the basis of geographical condition of the river pond, comparative gradients of the land and water bodies and the topography. Simply because a part of the land is near or adjacent to a water body, it cannot be said with certitude that such part of the land serves as catchment area of the river or pond.
81. Learned counsel for the petitioner failed to show from the record that the land which has been allotted to the respondent - Company forms part of the catchment area of the river and/or any pond or nadi. In other words, the assertion that the allotment of the land in question is contrary to Section 16 of the Tenancy Act and rule 5(b) of the Rules of 2007 is not supported by any ocular evidence, and therefore, the same is untenable.
82. Given the fact that a large chunk of land has been allotted to the respondent - Company, it is quite natural that from some part of the allotted land, the water may go to river or pond. But in view of the statement made by Dr. Sachin Acharya under the instructions of the representatives of the Company that the solar plates are not fixed on the surface of the land as such and they are mounted on small pillars having width of 3-4 inches and the (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (29 of 33) [CW-10542/2023] plates are placed at least one meter above the land - surface and further in view of the assurance given that even if the solar plates are installed in the course of the water, there is no possibility that the solar plates to be erected would obstruct or hinder the free flow of the water, this Court is satisfied that these plates or solar power project will not impede the flow of water. The anxiety or apprehension of extinction of water bodies in light of the photographs depicting installation of solar plates, turns out to be misplaced.
Whether the land in question could not be allotted being a pasture land :
83. A perusal of the record reveals that the subject land has not been classified as pasture land. As per the figures of census of the cattle given by Mr. Moti Singh, there are 3800 cattle. He claimed that as per Rule 6 of the Tenancy Rules, 1959, 1900 bighas land is required to be ear-marked as pasture land. It is to be noted that as per the revenue record, 36 bighas land has already been demarcated as pasture land and neither the Gram Panchayat nor any other resident of the village has ever made any request to the competent authority to set apart the land for pasturage giving out the cattle population.
84. Even the representations which the petitioner had given to the District Collector makes no whisper about the requirement of pasture land.
85. Furthermore, as the facts have emerged, forestations on land ad-measuring 410 bighas has been made and the State Government has carried out extensive plantation on such land. It has so far neither been categorized as forest land nor as pasture (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (30 of 33) [CW-10542/2023] land. Still, having regard to the nature of the land and the vegetation grown thereupon and considering the overall factual matrix, this Court is of the view that the existing pasture land and the other land ad-measuring 410 bighas on which plantation has been done, would cater to the need of the cattle. No interference on this count is called for, at least at this stage. In case, deemed necessary, the State can set apart land from adjacent village for pasturage. That apart, the vegetation on the open land which has not been allotted to the Company can also be used by the cattle.
86. It was also argued that the allotment to the respondent company for establishment of Solar Power Project is contrary to law and without authority inasmuch as expression 'solar project' has not been given in the Power Plant Rules, 2007. Learned counsel had taken the Court through various provisions of the Rules of 2007 and contended that the Rules of 2007 only talks of solar plant, solar power plant, solar PV power plant etc. and not solar project and, therefore, the allotment is per-se void.
87. In this regard, this Court would like to mention that a Division Bench of this Court has already decided this issue. It is intriguing to note that such question has been decided by a Division Bench of this Court in the case of Jal Grahan Vikas Sanstha (supra), and said was argued by none other than Mr. Moti Singh, learned counsel for the petitioner. Learned counsel had better not raised this contention, at least to save time of the Court
- a counsel having put in about 20 years of practice is expected to be fair to the Court.
88. This Court has sifted through not only the judgment in case of Jal Grahan Vikas Sanstha (supra) but also other judgments (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (31 of 33) [CW-10542/2023] which have been cited by the rival counsel - they are general in nature and throw light on the scope of interference, requirement of protecting natural resources and need to ensure development of natural sources of energy. While keeping the factual matrix of this case in mind, the Court has taken into consideration the exposition made by the judgments cited at Bar. Separate and extensive discussion is not being made about these judgments, as none of them are directly on the point.
Conclusion:
89. In light of the discussions made in preceding paragraphs, this Court is of the view that the challenge laid to the State's approval of allotment in favour of the respondent - Company vide communication dated 06.04.2021 so also the allotment letter dated 26.05.2021 do not call for any interference on any of the grounds, except the reasonable requirement of land for existing and future needs of the village as claimed by the petitioner - Gram Panchayat.
90. As already observed in earlier part of the judgment that District Collector ought to have forwarded the objections raised by the Gram Panchayat and the State Government should have considered the same, this Court is firmly of the opinion that some land should have been left open for school, play ground, crematorium etc. Considering what has transpired during the course of hearing and considering petitioner's representations, at least 10 bighas land was required to be kept out of the allotment for the needs of the residents of the village as has been claimed by the petitioner.
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91. In view of the discussion made in Para Nos. 46 to 62, the State Government is hereby directed to ensure that when the Collector sends recommendation proposing to allot the land for establishment of solar power plant or power project, as the case may be, under the Rules of 2007, a copy of the recommendation be sent to the concerned Gram Panchayat from whose circle/area the land is proposed to be allotted while giving requisite details/particulars of the land specifying the area and nature of the land. It will be required of each of the District Collectors to send report of the Patwari/Tehsildar itself while eliciting the response of the Gram Panchayat and objections, if any.
92. The concerned Gram Panchayat shall peremptorily send its comments within a period of 15 days of the receipt of the copy of the report. Such comments/representation shall be lawfully considered and dealt with by the District Collector before making recommendation for allotment of the land required by the power producers, seeking allotment under the Rules of 2007.
93. In case, no comments or objections are filed by the concerned Panchayat, the District Collector shall proceed in furtherance of the report so given by the concerned Tehsildar.
94. While rejecting petitioner's other contentions, the writ petition is partly allowed to the extent of keeping at least 10 bighas suitable land out of the allotment made to the respondent company. The District Collector is hereby directed to elicit a report from concerned Tehsildar and Patwari within a period of 15 days from today pursuant to petitioner's representation dated 06.01.2021. The Tehsildar shall send a report within 15 days (Downloaded on 21/08/2024 at 08:45:05 PM) [2024:RJ-JD:32248] (33 of 33) [CW-10542/2023] indicating therein the land to be kept out of allotment with particulars, size and clear identification of the land.
95. On the report being furnished, the District Collector shall modify the allotment order dated 26.05.2021 reducing the requisite land out of the allotment made to the respondent Company.
96. The respondent Company (if so advised) can suo-motu hand over possession of suitable land (at least 10 bighas) near the abadi area of the village so that future expansion and development of the village and requirement of basic amenities is not denied for want of availability of land. In case, the respondent
- Company gives a proposal to this effect to the District Collector, the District Collector shall take appropriate decision while taking into account the interest of the villagers as a paramount consideration.
97. The writ petition as well as stay application stands disposed of accordingly.
(DINESH MEHTA),J Arvind/Arun, PS/-
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