2021 Supreme(Raj) 744

IN THE HIGH COURT OF RAJASTHAN
Sangeet Lodha,Rameshwar Vyas, JJ.
Kalyan Singh - Appellant
Versus
State Of Rajasthan - Respondent
Special Appeal Writ No. 51 of 2020, 52 of 2020, 223 of 2020
Decided on : 29-06-2021

The allotment of land to the respondent companies was illegal and violative of the provisions of the Rajasthan Tenancy Act, 1955, and the Rules made thereunder.

Headnote:

The court held that the allotment of land to the respondent companies was illegal and violative of the provisions of the Rajasthan Tenancy Act, 1955, and the Rules made thereunder. The court directed the State Government to cancel the allotment of the land of public utilities etc. made in favor of the respondent-AREPRL in Village-Nedan measuring 1452.13 bigha, the possession whereof has not been handed over to AREPRL for the reasons specified. The court also directed the State Government to conduct a survey of the lands allotted to the respondent companies in all the three villages and if any part of the land allotted is found covered by public utilities, the allotment of the land to that extent shall also be canceled. Further, the allotment of the land surrounding the lands of the petitioners, other khatedar tenants and the land of public utilities made in favor of the respondent-ESUCRL in Village-Nagnechinagar and Ugras and in favor of the respondent-AREPRL in Village-Nedan shall also be reviewed by the State Government so as to ensure that on account of allotment made in favor of the respondent companies, ESUCRL and AREPRL the rights of the khatedar tenants and the inhabitants of the aforesaid villages to beneficial use and enjoyment of their properties and public utilities are not infringed or adversely affected.

Fact of the Case:

The appellants, who are khatedar tenants and cultivators of agricultural land, challenged the legality of the allotment of land made in favor of M/s. Essel Saurya Urja Company of Rajasthan Limited ("ESUCRL") in revenue villages Ugras and Nagnechinagar of Tehsil Phalodi, District Jodhpur and in favor of Adani Renewable Energy Park Rajasthan Limited ("AREPRL") in revenue village Nedan, Tehsil Pokaran, District Jaisalmer, for establishment of Solar Park. The petitioners placed on record the jamabandi of their land annexed with the writ petition as Annexure-1. Precisely, the case set out by the writ petitioners in the writ petition was that they are in cultivatory possession of the disputed land and are residing there after constructing dhani for last 40-45 years. The land in question has been allotted to the respondents ignoring their rights and without issuing any notice to them. The petitioner claimed to be khatedar tenant of the land and averred that prior to allotment of land in question in favor of ESUCRL, no other land has been allotted in their favor. The petitioners claimed that despite request being made by them, their possession has not been regularised by the revenue authorities. Further, according to the writ petitioners, the land allotted to the respondent Company includes the lands of charagah, water tank (talab), hills, oran, river, school, temple and residential etc., the allotment whereof is prohibited under the law. The writ petitioners while assailing the legality of the allotment made in favor of ESUCRL sought direction to the respondents not to dispossess them from the land in their possession.

Finding of the Court:

The court held that the allotment of land to the respondent companies was illegal and violative of the provisions of the Rajasthan Tenancy Act, 1955, and the Rules made thereunder. The court found that the State Government had not taken proper care to ensure that the land allotted to the respondent companies did not include any land falling in prohibited categories, such as land used for casual and occasional cultivation in the bed of a river or tank, land covered by water and used for the purpose of growing Singhara or other like product, land acquired or held for a public purpose or a work of public utility and land which has been set apart or is, in the opinion of the Collector necessary for the flow of water therein into any reservoir or tank of drinking water for a village or for the surrounding villages. The court also found that the State Government had not taken care to ensure that the allotment of land did not adversely affect the rights of the khatedar tenants and the inhabitants of the villages to beneficial use and enjoyment of their properties and public utilities.

Issues: 1. Whether the allotment of land to the respondent companies was illegal and violative of the provisions of the Rajasthan Tenancy Act, 1955, and the Rules made thereunder? 2. Whether the State Government had taken proper care to ensure that the land allotted to the respondent companies did not include any land falling in prohibited categories? 3. Whether the State Government had taken care to ensure that the allotment of land did not adversely affect the rights of the khatedar tenants and the inhabitants of the villages to beneficial use and enjoyment of their properties and public utilities?

Ratio Decidendi: The court relied on the following principles of law in reaching its decision: 1. The land falling in prohibited categories were not available for allotment to the respondent AREPRL. 2. The State Government was under an obligation to open the new way where there exists no way for access to holding of the khatedar tenant but in the instant case, the access of the khatedar tenant to their land was taken away without making provision for the way to their lands, before making the allotment. 3. Rule 12A of the Rules of 2007 does not debar the State Government from allotting the land in favor of any other entrepreneur for developing the solar park, if is otherwise permissible in terms of the Rules of 2007.

Final Decision: The court partly allowed the special appeals and consequently, the writ petitions. The allotment of the land of public utilities etc. made in favor of the respondent-AREPRL in Village-Nedan measuring 1452.13 bigha, the possession whereof has not been handed over to AREPRL for the reasons specified shall be canceled forthwith. The State Government shall conduct survey of the lands allotted to the respondent companies in all the three villages and if any part of the land allotted is found covered by public utilities, the allotment of the land to that extent shall also be canceled. Further, the allotment of the land surrounding the lands of the petitioners, other khatedar tenants and the land of public utilities made in favor of the respondent-ESUCRL in Village-Nagnechinagar and Ugras and in favor of the respondent-AREPRL in Village-Nedan shall also be reviewed by the State Government so as to ensure that on account of allotment made in favor of the respondent companies, ESUCRL and AREPRL the rights of the khatedar tenants and the inhabitants of the aforesaid villages to beneficial use and enjoyment of their properties and public utilities are not infringed or adversely affected. The lands required to be excluded from the lands already allotted so as to ensure the beneficial use of the lands of the khatedar tenants and the inhabitants of the village and the public utilities land shall be set apart and the allotment thereof made in favor of the respondent companies to that extent shall be canceled. The land for approach road to the lands of khatedar tenants and the dhani of the inhabitants of the village shall be specifically set apart and entered in the revenue record for the said purpose. The entire exercise pursuant to this order shall be completed by the State Government within a period of six weeks from the date of receipt of certified copy of this order. The order passed by the learned Single Judge shall stand modified to the extent indicated above. No order as to costs.