Gujarat High Court
Kasam Sidhiq Chuchiya vs State Of Gujarat on 23 September, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 122 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KASAM SIDHIQ CHUCHIYA
Versus
STATE OF GUJARAT
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Appearance:
C J GOGDA(7488) for the Applicant(s) No. 1
MR SHIVANG M SHAH(5916) for the Applicant(s) No. 1
VIKAS V NAIR(7444) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Opponent(s) No. 4,5,6,7
MS MEGHA JANI(1028) for the Opponent(s) No. 8
NOTICE SERVED(4) for the Opponent(s) No. 1,11,12,2,3,9
VIRAL K SHAH(5210) for the Opponent(s) No. 10
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/09/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI) Page 1 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021
1. The writ-applicant has filed the present writ-application by way of Public Interest Litigation seeking the following reliefs:-
"(A) YOUR Lordships may be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ, order or direction declaring the action of the respondent authorities in allotment of Gauchar lands as mentioned at "Annexure-B" as illegal by quashing the notifications at 'Annexure-B for grant of such allotments;
(B) YOUR LORDSHIPS may be pleased to declare the erection of windmills in such areas adjoining the agricultural lands as unconstitutional, illegal and void as the same has direct adversary impact on the cultivation and environment leading to infringement of fundamental right of life for public at large;
(C) Pending hearing and till final disposal of the present public interest litigation, YOUR Lordships may be pleased to pass an order restraining the respondents from proceeding in any manner for erection, plantation and positioning of the windmills at the sites in question as mentioned at "Annexure-
B";
(D) Pending hearing and till final disposal of the present public interest litigation, YOUR Lordships may be pleased to pass an order for constitution of a committee comprising of Page 2 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Environmental experts and call for their report with regards to the environment impact of the proposed windmill erection, construction and call for any suitable modifications in the said plan;
(E) That any other further relief that may be deem fit in the facts and circumstances of the case also please be granted."
2. The facts giving rise to this writ-application may be summarized as under :-
2.1 The writ-applicant claims to be a public spirited person and has filed the present writ-application in Public Interest Litigation on his own. The interest of the locals of Bhuj area and the direct impact on environment and the prevailing eco-
system is the genesis of the writ-application.
2.2 The writ-applicant has challenged the action of the respondent authorities in allotting the Gauchar land spread over the areas of Kutch to the private companies for setting up of Windmills which at the relevant point of time was vehemently objected to by the local people as there is already a shortage of Gauchar land and the manner in which the Windmills have been set up has lead to serious damage to the agriculture activities in the nearby areas.
2.3 The writ-applicant seeks to rely upon the directions Page 3 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 issued by the Apex Court and the High Court in various of its judgments concerning the use of Gauchar land. It is further the case of the writ-applicant that the record reveals that the land which came to be allotted to the private respondents for setting up the Windmills was actually gauchar land. It is only upon the promulgation, the said reservation has been manipulated to certain extent but the land still remains gauchar and is being used for the said purpose by the locals.
2.4 The writ-applicant has stated that the local panchayats passed illegal resolutions in favour of private respondents who are also questioned by public at large. Reliance is also placed on the affidavit filed by the members of the Panchayat to the effect that they had opposed such resolution which permitted the setup of Windmill in the gauchar land. The writ-applicant has also pointed out the adverse impact of Windmills on biodiversity and also due to its illusory vision it causes blindness in the birds and creatures in the surrounding habitat. The reliance is also placed on the report published by the environmentalists and the studies.
Submissions on hehalf of the writ-applicant :-
3. Mr. Harsh Parekh, the learned counsel appearing for the writ-applicant mainly submitted that the permission granted by the local authority for setting up of Windmill is in violation of the various orders passed by the Apex Court and the High Court from time to time. He submitted that the setting up of Page 4 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Windmills by private companies was vehemently objected to by the local public as there is already a shortage of gauchar land and the manner in which the Windmills have been permitted to be set up has lead to extensive damage to the agriculture produce in the nearby areas. He relied on the revenue records and the allotment order of the land situated at Vavdi : Bhuj and Varli : Bhuj.
3.1 He submitted that such permission and allotment order passed by the local authority is in violation of the provisions of the Bombay Land Revenue Code. He submitted that the Windmills require vast parcel of land which not only affect the setup area but also the nearby area rendering the land uncultivable in the long run due to its impact.
3.2 He submitted that setting up of Windmills also affect on the bio-diversity and he supported his submission by relying on the report published by a Scientific Journal of Environmental Science, reported in the year 2012.
Submissions on hehalf of the respondent No.10 - GPCB :-
4. The respondent No.10 - GPCB has filed affidavit. Paragraphs 6, 7 and 8 of the affidavits are produced thus :-
'6. Thus, on perusal it seems that in pursuance of the applications made by respondent nos.8 and 9 the land belonging to the State Government aliis allotted to them for Page 5 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 installing wind mill.
7. It is respectfully submitted that the Central Pollution Control Board has liberalised the policy of according the No Objection Certificate to the windmill projects on 29/02/2016 and it is held that if any windmill turbine having capacity of less than 25 MW intends to start the project, it need not be required to take no objection from the Pollution Control Board. In these facts and circumstances considering the development as referred herein above vide office order circular dated 12/04/2016, answering respondent had made itclearthat for the installation of wind turbine, no permission is required from the Gujarat Pollution Control Board. Annexed herewith and marked as Annexure I is the copy of circular issued by Central Pollution Control Board. The office order / circular issued by Gujarat Pollution Control Board is marked as Annexure II.
8. In so far as issue pertaining to Noise pollution, raised by the petitioner herein, it is respectfully submitted that as per Noise 2000 Pollution (Regulation and Control) Rules, the authority for the enforcement of the rules is District Magistrate, Police Commissioner, or any other officer not below the rank of Deputy Superintendent of Police. For the immediate reference the relevant Rule is quoted herein below:
In nutshell, answering respondent has no major role to play in so far as any issue pertaining to Noise pollution is concerned.
In view of the above circumstances, this Honourable Court Page 6 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 may be pleased to pass appropriate order disposing of the captioned writ petition filed by the petitioner."
In view of the above, it appears that the CPCB granted the permission and issued the No Objection Certificate for setting up the Windmill projects on 29.2.2016. If any Windmill turbine having capacity of less than 25 MW is to be started, no permission is required to be taken from the Pollution Control Board. So far as the Noise Pollution (Regulation and Control) Rules, 2000 are concerned, the authority of enforcement of the rules is the District Magistrate, Police Commissioner, or any other officer not below the rank of Deputy Superintendent of Police. In view of the above, the GPCB by way of an affidavit has taken a stance that the Government of Gujarat is keen on the development of renewable energy sector in view of the dwindling resources of fuel, increased threat of global warming. Having regard to the geographical location of the State of Gujarat i.e. long coastline and good wind speed, the State of Gujarat decided to accelerate the investment in the sector of generation of electricity through Windmills and, therefore, the State of Gujarat formulated the policy and decided to allot the Government land to private party/sector/company for installing wind turbines. According to the respondent No.10 GPCB, it has no major role to play so far as the issue pertaining to noise pollution is concerned.Page 7 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021
C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021
5. The respondent No.8 - Ostro Kutch Wind Pvt. Ltd., has filed an affidavit dated 22.9.2021. The paragraphs 6 to 11 are produced thus :-
"6. The Respondent No. 8, Ostro Kutch Wind Private Limited, is engaged in the business of wind power generation and was incorporated on June 25, 2015. It is a subsidiary of Ostro Energy Private Limited, which is a wholly owned subsidiary of RenewPower Private Limited. ReNew Power Private Limited is a leading national renewable energy Independent Power Producer (IPP) by capacity and is the 10th largest global renewable IPP by operational capacity. As of August 31, 2021, it hadatotalcapacity of approximately 10.2 GW of wind and solar energy projectsacrossIndia, including commissioned and committed projects.
7. As per its sustainability report for FY 20-21, prepared following Global Reporting Initiative's (GRI) sustainability reporting standards and assuredby globally renowned assurance agency, DNV GL Business Assurance India Private Limited (DNV), the renewable energy generation by the Company could avoid 10 million metric tons of carbonemissions, equivalent to 0.5% of India's total carbon emissions andequivalentto 1.1% of the emissions from the Power sector. The subjectlands in the present petition are part of the fully commissioned and operational 250 MW wind power project set up by the answering respondent in Bhuj and Mandvi Taluka in Kutch District of Gujarat. The present petition, supposedly filed in public interest, is mainly on the Page 8 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 ground that the windmills are set up on Gauchar lands. Such a claim is falsified on a bare reading of the allotment orders produced at Annexure B by the Petitioners. The Petitioners have failed to establish that the land in question is Gauchar land as claimed. The petition is required to be dismissed on the sole ground of it have been founded on a factually incorrect premise.
8. The petition is in respect of the following allotment orders:
Sr. Order Date Survey No. Area (In Village Allotted No. Hectare)
1. 22.02.2018 122 paiki 17 1-00-000 Vavdi R.8
2. 02.02.2018 172/1, 1-00-000 Gandher R.8 190, 1-00-000 211, 1-00-000 225 2-00-000
3. 22.02.2018 380/paiki 3-00-000 Chubadak R.9 1/paiki 1
4. 22.02.2018 175 1-00-000 Gandher R.9 195 1-00-000 235 2-00-000 It is submitted that the land bearing Survey No. 122 paiki 17 in Village Vavdi and land bearing Survey No. 190 in Village Gandher has been returned by the Respondent Company to the Government of Gujarat. The lands appearing at Sr. No. 3 and 4 are allotted to Respondent No. 9. 2 out of 3 hectares of land bearing Survey No. 380/paiki 1 paiki 1 in Village Chubadak and all the lands bearing Survey No. 175, 195 and 235 in Village Gandher are subleased to Respondent No. 8 by Page 9 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Respondent No. 9 for a period of 20 years from 26.03.2018 and 22.02.2018 respectively.
9. In accordance with the allotment orders and acting in good faith upon the observations made by the Revenue Authorities pertaining to the nature of the land, the answering respondent has put up 10 Wind Turbine Generators ("WTG") at the aforesaid lands at a total invested cost ofRs. 125 Crores. Copies of the Certificate of Commencement issued by GEDA to the answering respondent dated 06.09.2018, 14.11.2018, 10.01.2019 and 10.04.2019 are annexed hereto and marked Annexure R1 collectively. The project on an average generates 770 million units of power annually. The power so generated is supplied to the Powergrid Corporation of India Limited (PGCIL) substation at Bachau and ultimately transmitted to the gridline. The answering respondent has executed Power Purchase Agreements in respect of the 250 MW power plant in July, 2017 with PTC India, formerly Power Trading Company India, for supply of power from the said gridline for 100 MW to Uttar Pradesh Power Corporation Limited, 50 MW to Jharkhand Bijli Vitran Nigam Limited, 50 MW to Gridco (in Odisha) and 50 MW to North Bihar Power Distribution Company Limited and South Bihar Power Distribution Company Limited.
10. As far as safety of birds is concerned, the Petitioner's reliance on the study at Annexure F is misconceived since the study is carried out across four villages, namely Vandhiya, Page 10 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Modpar, Lakhapar and Jangi in Kutch, Gujarat whereas the captioned petition is concerned with lands situated in villages Vavdi, Gandher and Chumbadak. Even otherwise, it is worth noting that the study is an old study, conducted in 2012 and is itself inconclusive, while calling for further research into the issue. Hence, averments made on the basis of the said study are misplaced and required to be discarded. In any case, the answering respondent is taking widely adopted1 42 precautionary and preventive measures to avoid possible bird collision like installation of bird guards and bird reflectors across the transmission lines and painting the WTG blade tips.
11. The Writ Petition, filed as a Public Interest Litigation, lacks necessary details, makes bald and unsubstantiated allegations and is in reality a vexatious, private inquisitiveness litigation. PIL is an innovative legal tool essentially to safeguard and protect the human rights of people who are unable to protect themselves. It is only where there has been a failure on the part of any authority in acting according to law or in non-action that the Court of law is required to step in. The Court should notbe called upon to undertake governmental duties or functions. In the present case, a considered policy decision has been taken, particularly keeping environmental concerns in mind, and the Wind Power project undertaken by the Respondent Company is the intended outcome of such State Policy. It is submitted that the impugned decisions are evidently taken after due care and consideration by the concerned State Authorities. Hence, it is Page 11 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 not the function of the Court to go into the matter afresh and, in a way, sit in appeal over a policy decision. In view of what is submitted hereinabove, I pray that the application be dismissed with costs."
6. We have heard Mr. Harsh Parekh, the learned counsel appearing for the writ-applicant, Ms. Megha Jani, the learned counsel appearing for the respondent No.8 and Mr. Viral Shah, the learned counsel appearing for the respondent No.10.
Analysis :-
7. We take notice of the fact that the writ-applicant has filed the present writ-application to preserve the gauchar land in the Kutch-Bhuj area of the State of Gujarat. Further the writ-applicant has submitted that the permission for setting up Windmills to the private respondents by the competent authority could not have been granted in the area reserved for the gaurchar. The case put up by the writ-applicant appears to be that the setting up of the Windmill on gauchar land renders the nearby parcels of land uncultivable and the setting up of Windmill also affects the bio-diversity. It creates illusory vision impact which leads to blindness in the birds and creatures of the habitat. A report from environmentalists is sought to be relied upon by the writ-applicant and we have also perused the affidavit filed by the local people and few members of the panchayat which are forming part of the writ-application.
Page 12 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 7.1 It appears that, the State Government decided to accelerate the investment in the sector of generation of electricity through Windmills. The State of Gujarat formulated a policy and decided to allot the Government land to private party/sector/company for installing wind turbines. The system of generating energy by a private sector like the respondents can decide to take the benefit of the said policy and install Windmill turbine generators. The said Windmill installed by the private parties would be a Windmill of requisite generating capacity at the cost of the said company and the said Windmill would generate electricity. The Gujarat Energy Transmission Company Ltd., ('GETCO' for short) has a sub-station at Wind Farm. The electricity so generated would be duly supplied to the GETCO and for that purpose one agency known as Gujarat Energy Development Agency ('GEDA' for short) is formulated which is a nodal agency for installation of Wind Power Projects and certifying the quantity of energy generated by the concerned Windmill owner and supplied to GETCO. The electricity so generated by the Windmill would be transmitted to the gridline of GETCO and the same would be supplied to four electricity distributing companies in the State of Gujarat i.e. (1) Uttar Gujarat Vij Company Ltd., (2) Dakshin Gujarat Vij Company Ltd., (3) Madhya Gujarat Vij Company Ltd., and (4) Paschim Gujarat Vij Company Ltd. The respondents Nos.8 and 9 made an application to the Collector for allocation of setting Page 13 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 up of Wind-turbine. The Collector passed an order dated 22.2.2018 of allotment in favour of the private respondent for a lease of twenty years by imposing certain conditions.
7.2 The Collector passed following orders allotting the Government land on lease for a period of 20 years in favour of respondents Nos.8 and 9 by order dated 22.2.2018 :-
(1) With respect to Survey Nos.172/1, 190 and 211 Mouje Gandher, Taluka : Bhuj for 1-00-000, 1-00-000, 1-00-000 and 2-00-000, Area (hectare) the Collector passed an order dated 2.2.2018 on the application of Ostro Kutch Wind Pvt. Ltd.
(2) With respect to Survey Nos.380/Paiki, 1/Paiki-1 Mouje Chubadak, Taluka : Bhuj for 3-00-000 Area (hectare) the Collector passed an order dated 22.2.2018 on the application of Maruti Windpark (Devikhidi) Pvt. Ltd.
(3) With respect to Survey Nos.175, 195 and 235 Mouje Gandher, Taluka : Bhuj for 1-00-000, 1-00-000 and 2-00-000 Area (hectare) the Collector passed an order dated 22.2.2018 on the application of Maruti Windpark (Devikhidi) Pvt. Ltd.
(4) With respect to Survey Nos.122/Paiki 17 Mouje Gandher, Taluka : Bhuj for 1-00-000 Area (hectare) the Collector passed an order dated 22.2.2018 on the application of Ostro Kutch Wind Pvt. Ltd.. The order passed by the Collector with respect Page 14 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 to Survey Nos.122/Paiki 17 Mouje Gandher, Taluka : Bhuj in favour of Ostro Kutch Wind Pvt. Ltd. Is produced thus :-
"Collector Office Revenue Branch, Kutch-Bhuj Date 22/02/2018 Sub : To obtain the land situated at Tra. S.No.122/ paiki 17, Hectare-Are 1.00.00 of Vavadi, Taluka Bhuj on lease for wind farm project.
Shri Ostro Kutch Wind Pvt. Ltd., New Delhi Read : (1) Resolution No.-JMN/3903/UOR/29/A, of the Revenue Department of the Government, dated 11/06/2004.
(2) Applications of Ostro Kutch Wind Pvt. Ltd. dated 03/08/2016 and 08/05/2017.
(3) Letter No.JMN/VASHI/986/2017 of Deputy Collector, Bhuj, dated 30/08/2017.
(4) Letter No.DSO/39/M.R.No.2/4/17-18 of D.I.L.R. Bhuj, dated 18/09/2017.
(5) Letter No.B/JMN/T.12/14836/17-18 of Deputy Conservator of Forest dated 28/09/2017. (6) Letter No.CGM/lease/TP/N.O.C./402 to 415/Ostro/Kutch/2017-18/2 of The Geologist (Lease), Geology and Minerals Commissioner, Gandhinagar, Dated 01/01/2018.
(7) Resolution No.-JMN/3903/UOR/29/A, of the Revenue Department of the Government, dated 02/12/2018. (8) Letter No.KMN/2/Vshi/31/201/ of this office dated 09/02/2018.
(9) Letter No.Land/Challan/Kharai/Vavadi/2018 of Mamlatdar, Bhuj, dated 17/02/2018.
(10) Letter dated 16/02/2018 of Talati Cum Mantri, Chumbadak Group Gram Panchayat.
(11) Letter No.Stamp/lease/windfarm/stamp duty/1420 of Deputy Collector, Stamp Duty Valuation Authority, Bhuj dated 15/02/2018.
-: ORDER :-
Page 15 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 The fact in this matter is such that, new policy to give land on lease for the wind farm project has been published vide resolution read at No.1. Demand has been made by the applicant Ostro Kutch Wind Pvt. Ltd. for 1.5 hector land per wind-mill vide their application dated 03/08/2016. The guidance wassought from the Governnet regarding the same by this office. Meanwhile, demand has been made by the Applicant Unit vide the application at read No.-(2) for allotment of land on lease situated at Tra. S.No.122/ paiki 17, Hectare-Are 1.00.00 of Vavadi, Taluka Bhuj for twenty years for the wind farm unit.
A proposal was prepared vide a letter No. JMN/Vshi/63/2017 dated 23/08/2017 of the Mamlatdar, Bhuj and an affirmative proposal was produced here vide letter under reference at Sr. No.(3) of the Deputy Collector, the facts of which in detail are as follows.
The land in question of the applicant company is situated within the limit of Vavdi village. The land in question is open, government vested, uneven and hilly on the site. It appears that the said land is not fit to keep reserve for the government or public purpose. As the land in question is hilly, it appears that it is not useful for farming or horticulture. Scattered thorny bushes and other bushes are there in the land in question. Timber would not be available but firewood could be obtained. One point of land in question does not fall under the forest or grazing land. The land in question is not reserved for the public or any other purpose and it is not fit for the same. The land in question is not subject to any court matter or litigation. There is no religious place, protected monument, religious spot or seat in the land in question. One point of the land in question is part of government waste land. The applicant has prayed to get the said land on the lease period of 20 years. It is stated that there is rough road / cart road for commuting to the land in question, but in the check-list, it is declared that the land in question is waste and hilly land. It is clearly opined to allot the land accordingly.
It has been stated that the applicant unit has paid the amount of Rs.3,150/- at the rate of 1% towards service Page 16 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 charge for the land in question in the prescribed head of the Government at Bhuj Branch of State Bank of India on 30/07/2017 in accordance with the provision of the Government resolution dated 26/04/2011.
The Circle Officer, Bhuj has carried out site inspection of the land in question and after verifying with the record, the Deputy Collector, Bhuj has provided an opinion for the land of government tra. survey No.122/paiki 17 of Vavdi, Ta. Bhuj, admeasuring Hectare 1.00.00 Arey to be given to Ostro Kachchh Wind Pvt. Ltd. as per the provisions of resolution under read at Sr. No.(1) and (7) of the Revenue Department of the Government.
It has been stated vide a letter under read at Sr. No.(4) of the D.I.L.R., Bhuj that the land of Survey No.122/paiki 17 moje - Vavdi, Ta. Bhuj, admeasuring Hec. 1.00.00 Arey has been measured. Accordingly, measurement-
sheet No. M. R. No. 2/4/17-18 dated 17/09/2017 for windmill point No.83, thus total windmill - 1, Hec. 1.00.00 Arey has been produced.
A conditional approval has been granted vide letter under read at Sr. No.(5) of the Deputy Conservator of Forests, Kachchh Eastern Forest Department, Bhuj for the land of Survey No.122/paiki 17 moje - Vavdi, Ta. Bhuj, admeasuring Hec. 1.00.00 Arey. According to it, the opinion has been provided subject to the conditions of insulating the electric lines, installing bird guards and reflectors on the poles and lines and other conditions.
Vide letter of Geologist (Lease), Office of the Commissioner of Geology and Mining, Gandhinagar read at (6), the " No Objection Certificate " has been submitted to allocate the land at moje Vavdi, Taluka - Bhuj, Survey No - 122/paiki 17, Hectare - 1.00.00 Are for windmill in Point No
- 83.
In this manner, considering the above opinions, the land at moje Vavdi, Taluka - Bhuj, Survey No - 122/paiki 17, admeasuring Hectare - 1.00.00 Are, is eligible to be allocated for 1 (one) windmill with respect to the demand of Page 17 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 the applicant company.
The rate of rent for the land being demanded for the windfarm projects has been fixed as per the provision contained in resolution of the Revenue Department of the Government read at (7). As per the same, the annual rent of Rs.10,000/- per hectare has been fixed. As per this, the annual rent of Rs. 10,000/- is to be paid for total 1.00.00 hectare Are land which is to be allocated to the applicant unit. As provided in the resolution of the Revenue Department of the Government read at (7), it falls under this jurisdiction. As per the said resolution, the applicant company was instructed vide letter read at (8) to pay the annual rent of Rs. 10,000/- for the total land Hectare - 1.00.00 Are located at moje Vavdi, Taluka - Bhuj, Survey No - 122/paiki 17, which was to be given on lease for windmill Point No - 83, and other taxes to the Mamlatdar, Bhuj within 21 days.
In this regard, as per the report of Mamlatdar, Bhuj read at (9), the applicant company has paid the annual rent of Rs.10,000/- through Challan No - 777 dated 16/02/2018. Further, the conversion tax of Rs. 60,000/- has been paid through Challan No - 775 dated 16/02/2018. Further, the difference amount Rs. 450/- for 1% service charge instructed by the Deputy Collector, Stamp Duty, Valuation Authority, Bhuj has been paid through Challan No - 776 on 14/02/2018. For the verification that all the amounts have been deposited to the respected heads of the Government, the letters of the District Treasury Officer, Bhuj dated 17/02/2018 have been submitted.
Vide letter of Talati-cum-Mantri, Chumbdak Group Gram Panchayat read at (10), it has been informed that Non- agriculture rate Rs. 1000/- Receipt No - 1 dated 16/02/2018, Local Cess amount Rs. 500/- Receipt No - 1 dated 16/02/2018 and Educational Cess amount Rs.500/- Receipt No - 144 dated 16/02/2018 have been paid. Their original challans have been submitted along with the receipts.
As per the letter of the Deputy Collector, Stamp Duty, Valuation Authority, Bhuj read at (11), a report stating that amount of Rs.3920/- to be collected as the stamp duty as per Page 18 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 the rules has been paid through Challan No - 1296, dated 15/02/2018, has been submitted.
In this regard, since the applicant company has paid the annual rent amounts as per the resolution of the Revenue Department of the Government dated 02/12/2004, an order is passed to sanction the lease of the land located at moje Vavdi, Taluka - Bhuj, Tra. Survey No - 122/paiki 17, admeasuring Hectare - 1.00.00 Are (Windmill Point No - 83) to the Ostro Kutch Pvt. Ltd. New Delhi for 20 years for 1(one) windmill as per the provisions contained in resolutions of the Revenue Department read at (1) and (7) and the above opinions and under the prescribed conditions and as per the conditions laid down by other departments.
Terms and conditions:-
(1) The lease period of the land will be 20 years.
(2) As decided vide the government resolution dated 02/12/2014, annual rent at the rate of Rs.10,000/- per hectare shall be paid regularly. Also, the taxes levied on a non-agricultural land and the other taxes shall be paid regularly. The rent shall be paid by a developer company or a client who procures the sub-lease. In future, if any changes in the rate of rent are made by the government, it shall be binding on the company. Also, the proofs about payment of above stated amounts shall be produced here from time to time.
(3) The issues related to annual rent and other taxes are connected with the financial interests of the government. If the proofs about payment thereof are not produced by you, legal procedure will be undertaken.
(4) As per the Revenue Department resolutions at reference
- (1) and reference - (7), one hectare of land is considered as standard for one windmill. While allotting land as per the standards, at the time of developing adjoining land, it shall be invariably ensured that the wind velocity is not disturbed.
A developer is entitled to right of easement for installing a WTG and a transmission. The land shall have to be used with Page 19 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 the respective purpose within two years from the date of receiving possession.
(5) A developer of a wind-farm project shall acquire land on lease and after developing the land, it can be sub-leased to a client once. A sub-lease contract is required to be endorsed by the collector within 30 days of its execution. This provision is necessary for recovering the rent of land from a sub-lease holder from time to time. If the provision is violated, the lease agreement shall be terminated and a mutation entry in favor of the government, without any encumbrance, shall be made in the revenue records and without giving any compensation to the lease holder.
(6) If any of the above mentioned conditions are violated or the leased land is used for any purpose other than the purpose of lease, the lease can be terminated with immediate effect without any kind of compensation for violation of the condition.
(7) The land in question is given to the applicant/ company Ostro Kutch Wind Pvt. Ltd. for a lease of 20 years. In the village records of Form-7/12, 'the Government' shall be shown as the possessor of the land. In the column of second right, it shall be recorded as "approved for 20 years of lease to M/s. Ostro Kutch Wind Pvt. Ltd.". Even if a sub-lease is executed, the name of party executing the sub-lease shall be recorded in the column for the second right of Form-7/12.
(8) For constructing roads and laying power lines through privately owned lands, procedure as per the rules needs to be followed after obtaining consent of the concerned unit/ owner and permission of the concerned department.
(Post: - Land admeasuring Ha. 1.00 Sq.ya 00 at no. 17 of Survey no. 122 of Vavdi, Ta. Bhuj) (Windmill point no. 83) Dispatched on 22/02/2018 SD/-
(Ramya Mohan) Collector, Kutch Page 20 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 SD/- (illegible) Chitnish to Collector Kutch- Bhuj"
We have referred to one of the orders as produced above to indicate the considerations that weighed with the Collector while passing the order of allotment of land for setting up of the Windmills. The other three orders granting the permission as referred above are similar. The perusal of the above referred orders would indicate that the land which has been allotted for the purpose of setting up of Windmill is not a grazing land. The land is not reserved for public or for other public purpose. The land in question is hilly and does not appear to be useful for farming and horticulture. Some part of the allotted land is Government waste land. The respondent applied for the grant of land for twenty years and the said land came to be allotted in favour of the respondents for setting up of the Windmills in accordance with the policy of the State Government.
7.3 Though the writ-applicant has submitted that the State Government has granted permission for installing the Windmills to the private respondents in gauchar land and against the public policy, after perusing the orders passed by the Collector it cannot be said that the land granted by the State Government for setting up of Windmills is a gauchar land. All the orders clearly state that the land is not a gauchar land the Page 21 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 land is not such a land which can be used by animals for grazing or it results in overreaching the public interest in any manner.
7.4 It appears that the land bearing Survey No.122 Paiki 17 in Village : Vavdi and land bearing Survey No.190 in Village :
Gandher have been returned by the respondents Nos.8 and 9 to the State Government. The other parcels of lands i.e. 3 hectors of land bearing Survey No.380/Paiki-1 in Village : Chubadak came to be allotted to the respondents Nos.8 and all lands bearing Survey Nos.175, 195 and 235 in Village Gandher are sub-leased to respondent No.8 by the respondent No.9 for a period of twenty years from 22.2.2018 and 26.3.2018 respectively.
7.5 The Windmills have been set up past almost three years and the same are in use and generating electricity in accordance with the Government policy.
7.6 In view of above, the policy of the State Government for generating electricity by way of Windmill is a policy decision taken by the State Government with a view to develop renewable energy sector, in view of dwindling resources of fuel, increased threat of global warming and the concern about the environmental protection. Further the geographical location of the State of Gujarat having long coastline and good wind Page 22 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 speed is found favourable and when the State took a policy decision to accelerate the investment in the sector through the Windmill in our view the said action of the State Government does not require any interference.
7.7 For the time being we proceed on the footing that the land upon which the Windmills have been setup is a gauchar land still that by itself will not render the action or decision of the State Government to grant the necessary permission for setting up of Windmills in accordance with its policy.
Sometime even gauchar land may have to be utilized, if it is for public purpose. There is no hard and fast rule that in any circumstances the gauchar land cannot be touched. It all depends upon various factors like area of the land, the place where the gauchar is situated, number of cattle in the area etc. In the aforesaid context, we may refer to a judgment of this very Court to which one of us (J. B. Pardiwala, J) was party. In the case of Chaudhary Laxmanbhai Parthibhai and ors. vs. State of Gujarat notice through Secretary and ors, Writ Petition (PIL) No.155 of 2011 dated 6.8.2012, this Court observed as under :-
"We shall first deal with the question as to whether there is at all any conflict between the order passed by the Collector dated 18th January 2011 and the one passed by the Secretary, Panchayat Department dated 29th September 2011. There is no doubt in our mind that the order passed by respondent Page 23 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 no.2 - Collector dated 18th January 2011 has been passed in exercise of delegated powers by the State Government under Section 271 of the Gujarat Panchayats Act, 1993. As Section 271 of the Act empowers the Government to authorize any officer of the Government to exercise any of the powers exercisable by the State Government, except the power to make rules, the power delegated to any officer would still remain the power of the Government and, therefore, the officer who exercises the power under Section 108(4) of the Act is, in fact, not exercising his own statutory power but he is exercising powers of the Government and, therefore, his action taken in pursuance of delegation under Section 271 of the Act would be treated as an action of the Government.
We may only say that the powers exercised by the Collector under Section 108(4) of the Act for resumption of land is by virtue of the delegated powers in view of the provisions of Section 271 of the Act. Thus, in substance, it is an order passed by the State Government.
So far as the revision application which was heard by the Additional Secretary (Panchayat) is concerned, the issue was altogether different. In our opinion, the issue was very limited to the extent as to whether the Panchayat could have reviewed its earlier resolution and passed a fresh resolution to the effect that they do not agree to the allotment of 'gauchar' land in favour of respondent nos.3 and 4. First, it is nobody's case that the consent or the views of the Panchayat in this Page 24 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 regard were ever called for by any authority before taking decision for allotment of land in favour of respondent nos.3 and 4. It appears that it was a unilateral act on the part of the Panchayat having come to learnt that land is being allotted to respondent nos.3 and 4.
Be that as it may, the Panchayat could have passed a resolution stating that they do not agree to grant of such land. The question is how far such a decision of the Panchayat would be binding on the Government. So far as this question is concerned, it should not detain us any longer to answer the same.
Section 108 of the Panchayat Act, 1993 pertains to vesting of certain land in Panchayat by the Government and reads as follows :
"108.Government may vest certain lands in panchayat.-
(1) For the purpose of this Act, the State Government may subject to such conditions and restrictions as it may think fit to impose vest in a panchayat open sites, waste, vacant, or grazing lands or public roads, streets, bridges, ditches, dikes and fences, wells, river-beds, tanks, streams, lakes, nallas, canals, water-courses, trees or any other property in the village vesting in the Government.
(2) Subject to any conditions and restrictions imposed by the State Government under sub-section(1) and with the previous sanction of the Collector, a panchayat may discontinue or stop up any such public road or street vested in it by the State Government but which is no longer required as public road of street and may lease or sell any such land therefore used for the purposes of such public road or street:Page 25 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021
C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Provided that one month before it is decided to stop up or discontinue such public road or street, the Sarpanch shall, by notice signed by him and affixed in the part of the public road or street which is proposed to be discontinued or stopped up, and published in such other manner as is prescribed, inform the residents of the village of the said proposal and consider any objections in writing made thereto. The notice shall indicate the alternative route, if any which it is proposed to provide or which may already be in existence.
(3) Whenever any public road or street or any part thereof has been so discontinued or stopped up, reasonable compensation shall be paid to every person who was entitled to use such road or street or part thereof, otherwise than as a mere member of the public, as a means of access to or from his property and has suffered damage from such discontinuance or stopping up, and the provisions in the Bombay Highway Act, 1955 (Bom.LV of 1955) in relation to the assessment apportionment, and payment of compensation shall, mutatis mutandis, apply thereto as they apply in relation to the closure of a highway under section 52 of that Act.
(4) Where any open site or waste, vacant or grazing land vesting in Government,has been vested by Government in a panchayat whether before or after the commencement of this Act, then it shall be lawful for the State Government to resume at any time such site or land, if it is required by it for any public purpose:
Provided that in case of any improvement of such site or land made by the panchayat or any other person, the panchayat or person, as the case may be, shall be, entitled to compensation equal to the value of such improvement and such value shall be determined in accordance with the provisions of the Land Acquisition Act, 1894 (I of 1894)."
In terms of Sub-section(4) of Section 108 of the Gujarat Panchayat Act, 1993, it is lawful for the State Government to Page 26 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 resume any land including the grazing land vested by the Government in Panchayat, if it is required for any public purpose.
In Panchayat Varga Shramjivi Samudaik Sahakari Khedut Co- op Society Ltd. and others v/s. Haribhai Mevabhai and others, reported in AIR 1996 SC 2578, Supreme Court had an occasion to deal with the issue, as to whether before resumption of a land by the State Government under Section 108(4) of the Act was it obligatory to hear the panchayat or seek its consent. [In the case before the Supreme Court, Supreme Court was dealing with Section 96(4) of the Gujarat Panchayats Act, 1961, which is now Section 108(4) of the Gujarat Panchayats Act, 1993].
The Supreme Court answered the issue in negative observing as under:
"Economic empowerment of the poor, in particular the Scheduled Castes and Scheduled Tribes, as is enjoined under Article 46, is a constitutional objective as basic human and fundamental right to enable the labourer, Scheduled Castes and Tribes to raise their economic empowerment. When the appellant-Society had requested for assignment of the waste land vested in the Gram Panchayat, the Gram Panchayat undoubtedly passed a unanimous resolution requesting the Collector to resume the land for assignment to the appellant Society. Since, the Gram Panchayat as a representative body passed the resolution, it would be obvious that the elected members represent the interest of the Gram Panchayat for effecting the constitutional goal. When the Gram Panchayat in turn passed the resolution for the said purpose, there was no obligation to issue notice to the villagers. That apart, the Page 27 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 scheme of Section 96 is clear. The Legislature is cognizant of the fact that when public road or street is sought to be discontinued or closed, public is likely to be effected, Sarpanch or Chairman acting on behalf of Gram Panchayat etc. is enjoined by the proviso to sub-section (2) of Section 96 to issue notice to them. It specifically enjoins the Sarpanch or the Chairman, as the case may be, to cause a notice to be issued in the prescribed manner, before passing a resolution so that the affected users would have an opportunity to put in their objections for consideration by the Gram Panchayat. But when the waste land or open site or vacant land or grazing land vested in the State was sought to be resumed from the Gram Panchayat by the Collector for another laudable public purpose, then the silence of issuance of notice is eloquent. Requirement of hearing the villagers is not insisted. The Legislature did not intend issuance of notice to villagers.
We may now come to the question of adequacy of 'gauchar' land at village Mahi. It would be profitable to refer to few relevant Government Resolutions. It appears that the said did not cover the merged areas of the State and it did not also clearly indicated as to which animals would fall under 'cattle' for which free grazing areas should be assigned under the Land Revenue Code and the Rules issued thereunder and, therefore, Government issued another Government Resolution and issued the following orders.
"(i) The Collectors in charge of villages merged in the State of Bombay should, after consultation with the Director of Agriculture, the Chief Conservator of Forests and the Director of Animal Husbandry and Veterinary Science, prescribe the standard grazing areas in respect of the merged villages and communicate them to the officers concerned and also to Government for issuing the requisite correction slip to the Bombay Forest Manual.Page 28 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021
C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021
(ii) While fixing the area to be assigned for grazing in each village only the following cattle should be taken into account :-
(a) Cows, bulls, bullocks, he-buffaloes, shebuffaloes, donkeys and ponies provided that they are useful for breeding, milking, agricultural operations and other useful work connected with agricultural operations.
(b) Calves as defined in the 'Comments' below Village Form XV in the Revenue Accounts Manual.
(iii) All useless cattle, sheep, goats, cattle belonging to professional grazers or professional cattle breeders or commercial dairies and cattle used for business purposes e.g. ponies exclusively used for tongas plying for hire, bullocks exclusively used for carts playing for hire, should not be taken into account for the purpose of assigning lands for free grazing in a village."
It appears that thereafter following points were raised for consideration of Government :-
"(a) Whether reservation of grazing areas is necessary and if so, what area should be reserved per hundred head of cattle: and
(b) Whether Government land, which is under cultivation, should be withdrawn from cultivation for being assigned for grazing."
It appears that thereafter after considering the report received from the officers concerned, Government issued the Government Resolution No.GR8-1053/5627 dated 10.05.1954 and Government issued the following directions :
Page 29 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 "(i) the old practice of assigning lands for grazing under Section 38, Land Revenue Code and rule 73, Land Revenue Rules and the orders issued from time to time, should be maintained.
(ii) The standard acreage of grazing area fixed under paragraph 1 of Government Resolution No.7633/49, dated the 11th December 1952, should be fixed at 40 acres per 100 head of cattle in the Northern Division and 50 acres per 100 head of cattle in the Central Division and the Southern Division subject to the consideration mentioned in (v) below.
(iii) The Collectors of the districts concerned should revise the assignment of grazing area on this basis and dispose of the surplus area (i.e. area remaining after assigning land for public purpose including grazing), for cultivation in accordance with the standing orders of Government.
(iv) In some villages land has been in fact used for grazing without formal assignment. The Collectors concerned should now make a formal assignment and see to it that it is noted in the village records.
(v) If forest areas are available for grazing in or adjoining a village, that factor should be taken into account at the time of determining the area required to be assigned for grazing in that village and the limits prescribed in (ii) above halved where necessary.
(vi) In villages where the total area assigned for grazing is inadequate, attempt should be made to make up the deficit by assigning uncultivable waste land for this purpose."
Thereafter, considering the aforesaid orders, Government issued Circular dated 30th December 1988 reiterating that as per Government standards for 100 cattle, 48-acres (16- hectares) of 'gauchar' land is required to be maintained so that village cattle can be properly looked after. However, the Page 30 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Government is empowered to resume even the 'gauchar' land for any public purpose. The circular further provided that wherever availability of 'gauchar' land is less than the prescribed standard, in such cases, 'gauchar' land should not be utilized for any other purpose and that in exceptional cases only when such land is required for public purpose, procedure for resumption of land should be undertaken. Even in such case, if there is opposition from the local self-government bodies, as far as possible, procedure for resumption of such land should be avoided unless opposition is found to be baseless.
This circular is significant for two purposes. First, it refers to the ratio of village cattle to the 'gauchar' land to be maintained as far as possible. Secondly, though while recognizing the Government power to resume 'gauchar' land for any public purpose, it also refers to consultation with the village panchayat while resuming the 'gauchar' land in case where minimum ratio is not maintained. We may only say that Government Circulars or Resolutions provide guidelines for the purpose of administration. Government Circulars or Resolutions do not have any statutory force, though in the resolution consultation has been provided for but the Act does not contemplate such consultation before resumption of land for any public purpose. So far as this issue is concerned, we have discussed the judgment of the Supreme Court quoted above in the case of Pachhat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. (supra).
Page 31 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Under such circumstances, if the State Government decided to allot some portion of grazing land vested with Mahi Gram Panchayat to rehabilitate respondent nos.3 and 4 as they lost their land in the Mukteshwar Reservoir Project, then it could not be said that the decision of the State Government is arbitrary and based on no reason whatsoever, but even on mere ipse dixit of the said authorities. The Executive Authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the decision of policy framed is absolutely capricious and not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the execution functionaries thereby offending Article 14 of the Constitution of India or such policy offending other constitutional provisions or comes into conflict with any statutory provision. The Court could not and should not outstep its limit and tinker with the Policy decision of the authorities of the state.
We shall now look into the judgment relied upon by Mr.Majmudar in support of his contentions. Mr.Majmudar has relied upon decision of the Supreme Court reported in the case of State of Jharkhand and others v/s. Pakur Jagran Manch and others [(2011)2 SCC 591]. Mr.Majmudar has relied upon the observations made by the Court in paragraphs 23, 24 and 25, which read as under :
Page 32 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 "23. We should however note that such de-reservation of any Government land reserved as gochar, should only be in exceptional circumstances and for valid reasons, having regard to the importance of gochar in every village. Any attempt by either the villagers or others to encroach upon or illegaly convert the gochar to house plots or other non-
grazing use should be resisted and firmly dealt with. Any requirement of land for any public purpose should be met from available waste or unutilized land in the village and not gochar.
24. Whenever it becomes inevitable or necessary to dereserve any gochar for any public purpose (which as stated above should be as a last resort), the following procedure contemplated in Regulations 24 and 25 and Section 38(2) should be strictly followed :
(a) The jurisdictional Deputy Commissioner shall prepare a note/report giving the reasons why the gochar had been identified for any non-grazing public purpose and record the non-availability of other suitable land for such public purpose. The Deputy Commissioner shall send the said proposal for de-reservation to the State Government for its previous sanction.
(b) The State Government should consider the request for sanction keeping in view the object of gochar and the need for maintaining a minimum of five percent of village area as gochar, and call for suggestions/objections from the villagers before granting sanction.
(c) If the State Government grants the sanction, the Deputy Commissioner should proceed to make an order de-
reserving, the gochar by making appropriate entries in the record-of-rights and reclassifying the same for the purpose for which it was de-reserved.
(d) Whenever the gochar in a village is de-reserved and diverted to non-grazing use, simultaneously or at least immediately thereafter the State should make available alternative land as gochar, in a manner and to an extent that the gochar continues to be not less than 5% of the Page 33 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 total extent of the village as provided under Section 38(2) of the Tenancy Act.
25. When the gochar is not Government land, but is village common land vesting in the villagers and not the Government, the consent of village headman and the Jamabandi Raiyats/villagers in whom the land vests shall have to be obtained, before de-reservation and diversion of use of gochar."
What could be deduced from the observations made by the Supreme Court is that de-reservation of any Government land reserved as 'gauchar' must be in exceptional circumstances and for good reasons. Any requirement of land for any public purpose should be met from available waste or unutilized land in the village and not 'gauchar'. Apart from this, it appears that the Supreme Court was dealing with a regulation framed by the State of Jharkhand. In paragraph 25, the Supreme Court has observed that when 'gauchar' is not Government land but is village common land vesting in the villagers and not the Government, the consent of village panchayat shall be obtained. This is suggestive of the fact that it is only in cases where the land in question is a village common land vesting in the villagers that the consent of the village panchayat be obtained, but if it is 'gauchar' land of the Government, then consent need not be obtained of the village panchayat. In the present case, as discussed earlier, Section 108(4) of the Panchayats Act makes the position very clear that no prior consent or permission is required of the village panchayat before resuming the 'gauchar' land or before utilizing any portion of 'gauchar' land for any public purpose. Under such Page 34 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021 C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 circumstances, this judgment would not help Mr.Majmudar in any manner as it could not be said that the Supreme Court has laid down as an absolute proposition of law that under any circumstances Government cannot part with 'gauchar' land even if it is to be used for any other genuine and bonafide public purpose.
Before parting, we would like to state, more particularly considering that the litigation in the nature of a public interest relating to 'gauchar' has been alarming over a period of time, undoubtedly Government has a Policy in this regard. However, the question is, to what extent Government is able to adhere to and follow the norms as laid down under the said Policy. We are of the view that many a times Government may find difficulties in allotting suitable land other than 'gauchar' land for public purpose. Under such circumstances, the other public purpose also could not be permitted to be overlooked or avoided. Though total cattle population may be very high as pointed out in most of the cases on the strength of certificates and statements issued by Talati-cum-Mantri, Sarpanch, Taluka Development Officer, etc., but not all the cattle in the village are to be counted for the purpose of maintaining minimum 'gauchar' land. The resolutions of the State Government itself provide that useless cattle, cattle belonging to professional grazers or professional cattle breeder or commercial dairies and cattle used for business purpose, should not be taken into account for the purpose of maintaining minimum area of 'gauchar' land.
Page 35 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021C/WPPIL/122/2018 JUDGMENT DATED: 23/09/2021 Keeping this in mind, we suggest to the State Government to review its resolutions passed in this regard from time to time and amend them accordingly. If the Government itself is not able to follow its own policy or strictly adhere to it, then it is meaningless to keep such a policy subsisting thereby giving rise to litigations in the nature of a public interest. It is high time that the State Government takes up this issue seriously and evolve a policy which is workable, practical and would protect the interest of one and all."
7.8 For all the foregoing reasons, we decline to entertain this writ-application in public interest any further. We accordingly close this litigation. The writ-application is accordingly disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 36 of 36 Downloaded on : Sun Oct 10 02:06:26 IST 2021