IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 30 of 2012 With CIVIL APPLICATION No. 3872 of 2012 In WRIT PETITION (PIL) No. 30 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= HIRABHAI VALBHAI RAVA - PETITIONER Versus STATE OF GUJARAT & 3 - RESPONDENT ========================================================= Appearance :
MR MUKUL SINHA for PETITIONER : 1, MR PK JANI, LD.GOVERNMENT PLEADER WITH MRS.KRINA CALLA, LD.ASST. GOVERNMENT PLEADER for RESPONDENT : 1 - 2.
NOTICE SERVED BY DS for RESPONDENT : 1 - 3. MR BHARGAV HASURKAR for RESPONDENT : 4, ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 08/11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This writapplication under Article 226 of the Constitution of India, in the nature of a Public Interest Litigation, has been preferred by a resident of village Titva, Taluka Wankaner, District Rajkot, wherein the writ petitioner has prayed for the following reliefs :
“(A) This Hon’ble Court may be pleased to admit and allow this petition.
(B) This Hon’ble Court may be pleased to issue appropriate writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, permanently restraining respondent No.4 from constructing any approach road or any transmission towers in any of the goacher lands situated in the Village Titva and more particularly in the goacher lands bearing Survey No.1212/1/p3 or encroach upon any of the goacher lands situated in Village Titva for any purpose whatsoever.
(C) This Hon’ble Court may be pleased to issue appropriate writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing respondent No.1 and 2 to prevent respondent No.4 from encroaching upon any of the goacher land situated in the village Titva and also review the land allotted for the wind farm project, insofar as such allotment prejudicially affects the villagers of Titva.
(D) During the pendency and final disposal of this petition, by way of interim relief, this Hon’ble Court may be pleased to restrain the respondent no.4 from constructing any approach road or transmission tower in any of the goacher lands bearing Survey NOs.1212/1/p3 or in any manner, encroaching upon the aforesaid pieces of lands or disturbing the peaceful use of the lands by the villagers.
(E) This Hon’ble Court may be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require.”
2. The case made out by the petitioner in this writapplication could be summarized as under :
2.1 It is the case of the petitioner that the village Titva is situated in Wankaner Taluka, District Rajkot and has a population of around 8000. The village also comes under the jurisdiction of the Titva Gram Panchayatthe respondent No.3 herein. The village also houses 125 families of Maldhari Community (cattle breeders), whose entire livelihood depends upon the cattle breeding and the sale of milk and milk products.
2.2 It is further the case of the writpetitioner that according to the 18th Livestock Census carried out by the Gujarat State, the village had 1795 buffaloes, 1676 cattle, 1595 sheep, 1316 goats and total number of Animals were 9543.
2.3 It is further the case of the petitioner that so far as the number of buffaloes, cows, sheep and goats are concerned, the total numbers in the village Titva are one of the highest in the entire Taluka of Wankaner.
2.4 It is further the case of the petitioner that as on date there are four pieces of pastoral land (gaucher land) in the village Titva. Apart from the said pastoral lands, there are certain pieces of waste (Kharaba) land also in the said village.
2.5 It is also the case of the petitioner that according to the information obtained under the Right to Information Act and on inquiring with the Panchayat, the petitioner came to know that the respondent No.4 had made an application with the Government of Gujarat to grant them land in the village of Titva for the purpose of constructing a Windmill project. The said Windmill project proposed to be constructed by respondent No.4 was to generate 50 MW electricity and it appears that the Gujarat Energy Development Agency (GEDA) has granted the approval for setting up of the 50 MW Wind Farm.
2.6 It is the case of the petitioner that prior to the aforesaid approval being granted, the respondent No.2Collector, Rajkot had allotted 34 hectors of land in favour of the respondent No.4 for the purpose of the said wind farm project. Out of 34 hectors, 19 hectors of land was from Survey No.1046/1/p4, whereas 15 hectors of land was from land bearing Survey No.1212/1/p1, both being waste lands of the Government.
2.7 The said order granting 34 hectors of land was modified thereafter, since after the measurements were made, it was found that the total land available from the aforesaid two survey numbers was less than what was granted and, therefore, by order dated October 11, 2010, 15 hectors of land was granted from Survey No.1046/1/p4 and 10 hectors of land was granted from Survey No.1212/1/p1 i.e. the total of 25 hectors of land was allotted for the Wind Farm Project on lease for a period of 20 years.
2.8 It is the case of the petitioner that both the aforesaid parcels of land were Government waste lands and despite objections of the villagers, the aforesaid waste lands were allotted to the respondent No.4.
2.9 It is the case of the petitioner that to the utter shock and surprise, the villagers found that the respondent No.4 apart from starting construction of their Wind Farm in the aforesaid two survey numbers, had also marked six windmills in Survey No.1212/1/p3, which is a gaucher land.
2.10 It is the case of the petitioner that two encircled boundaries and the left and right side village road are the two gaucher lands bearing Survey No.1046/1/p2 and Survey No.1212/1/p3 respectively. The windmill Nos.6 and 7 were marked in the Survey No.1046/1/p2, whereas the windmill Nos.16, 17, 18, 19 and 21 were marked in the land bearing Survey No.1212/1/p3.
2.11 It is the case of the petitioner that after coming to know that the respondent No.4 was proposing to construct the aforesaid windmills in the gaucher lands, the villagers along with the petitioner, had protested against the allotment before the authorities. The letter dated July 28, 2011 signed by the villagers was submitted to the Taluka Development Officer, but as no response was received, one another letter dated August 08, 2011 was sent to the Taluka Development Officer protesting against the grant of gaucher lands to the respondent No.4.
2.12 It is the case of the petitioner that thereafter the Taluka Development Officer had addressed a letter dated August 09, 2011 to Mr.Bhambhava Radhabhai Valabhai and the villagers informing that the gaucher lands were vested with the Gram Panchayat and, therefore, it is the duty of the Gram Panchayat to remove the encroachment. According to the petitioner, the respondent No.3 had passed a resolution opposing the allotment of the gaucher lands and had forwarded the resolution to the Taluka Development Officer.
2.13 It is the case of the petitioner that thereafter the petitioner received a letter from the respondent No.4 stating that they will not install wind turbine generators in the land bearing Survey Nos.1046/1/p4 and Survey No.1212/1/p1. The second survey number was given incorrectly by the respondent No.4 and it ought to be Survey No.1212/1/p3. After conceding to the demand, the respondent No.4, however, has started building an approach road and also transmission line in the gaucher land bearing Survey No.1212/1/p3.
2.14 It is the case of the petitioner that as the land within the gaucher is uneven, the respondent No.4 had brought heavy landmoving machinery to flatten the land to make a road in the first week of February, 2012. When the villagers had collectively tried to prevent the construction of the road through gaucher land, the local police from Wankener Police Station was called in by the respondent No.4 and on the basis of the First Information Report filed by the site supervisor of the respondent No.4, three villagers, including the Deputy Sarpanch were arrested and detained vide C.R. No.3023/2012 filed under Sections 323, 504, 506(2) and 114 of the Indian Penal Code, etc. The Deputy Sarpanch Shri Bhambhava Radhabhai Valabhai is paralytic and is fully paralyzed below his waist. He cannot even walk. It is further the case of the petitioner that the respondent No.4 with the help of the police is now determined to construct the approach road for carrying massive equipments of the wind generating mills to the other site of the waste lands, where they have been allotted land by the Government without considering the fact that granting or allotting such lands to the respondent No.4 would completely destroy the livelihood of the villagers.
STANCE OF THE RESPONDENT NO.4 :
3. The respondent No.4 is engaged in the business of generating energy through windmill and the entire process of generating electricity is a pollution free process. According to the respondent No.4, the entire process would not create even 1% of pollution in the process of generating electricity as against any other method of generating electricity, like Thermal, Nuclear and Hydro.
3.1 In order to cater to the growing need of electricity, the Government of Gujarat has, as a part of its policy, decided to encourage various methods of generating renewable energy and one of such is wind energy.
3.2 The respondent No.4 had approached the Government of Gujarat for the purpose of allotment of land in Rajkot District. The respondent No.4 had requested for allotment of a particular area of land after undertaking extensive research as to the quality and speed of wind to drive the turbine and generate electricity. The respondent No.4 had requested for the land on the basis of the approval certificate issued by the Centre for Wind Energy Technology. According to the respondent No.4, the certificate (AnnexureIV to the petition) would go to establish that the land had been selected with the sole criterion of quality and speed of the wind. Incidentally, some portion of the said land which has been allotted to the respondent No.4 falls into the gaucher area. It is the case of the respondent No.4 that the initial order of allotment was passed by the Collector, Rajkot dated June 13, 2008. After the initial allotment of land on October 12, 2010, the order was modified and out of 34 hectors of land which was allotted, the respondent No.4, ultimately, had to settle for only 25 hectors of land. According to the respondent No.4, the petitioner has raised a grievance with reference to five locations which are falling in the gaucher land and to take care of such a situation, the respondent No.4 also agreed to return the said land to the Government. According to the respondent No.4, the only issue which remains now is with regard to construction of approach road through gaucher land so as to reach the land where windmills are to be erected. According to the respondent No.4, it is not true that they are constructing new approach road passing through a gaucher land, but there is already a kachcha foot road passing through the gaucher land through other waste lands, where five locations for the purpose of erecting windmill towers are situated. According to the respondent No.4, except the said kachcha foot road, there is no other approach road available for them to reach at the locations situated in the undisputed area.
3.3 It is the case of the respondent No.4 that the original order of allotment of land is of the year 2008 and the possession of the land was also handed over in the year 2010. The respondent No.4 has invested a huge sum by now and has already undertaken the foundation work by investing a sum of Rs.60 lakh. At this stage, if the respondent No.4 is asked to give up the land and to shift to some other place, then it would cause irreparable injury to the respondent No.4.
3.4 According to the respondent No.4, they are ready and willing to undertake the work of a temporary road passing through the gaucher land for the purpose of carrying equipments and machinery to erect windmills at the locations by using a technique known as water bound MCADAM (WBM), which is an ecofriendly method causing least damage to the land in question. According to the respondent No.4, such a technique will help grass to grow within a period of four months and thereafter the land could once again be used as a gaucher land. It is also the case of the respondent No.4 that they would not claim any right over the said road, but they need to make the road so that the equipments and the machinery could be transported for the purpose of erecting the windmills. Once the windmills are erected, thereafter there would not be any necessity to use any heavy transport vehicles.
STANCE OF THE RESPONDENT NO.2 :
4. It is the case of the respondent No.2 that the respondent No.4 Company had preferred an application before the Collector for grant of land of Survey No.1046/1 P.4 and 1212/1 P.1 of Village Titthva, Taluka Wankaner, District Rajkot.
4.1 It is the case of the respondent No.2 that the Collector after following due procedure, granted land admeasuring Hector 190000 of Survey No.1046/1 P.4 and land admeasuring Hector 150000 from the Survey No.1212/1 P.1. The concerned Gram Panchayat i.e. Titthva Gram Panchayat had passed a Resolution No.15 on February 02, 2008, that they do not have any objection.
4.2 According to the respondent No.2, as far as Survey No.1046/1 is concerned, it consists of waste land admeasuring Hector 2720509 which is earmarked as Survey No.1046/1 P.4, whereas, Survey No.1046/1 also consists of gaucher land, admeasuring Hector 922387 which is earmarked as Survey No.1046/1 P.2.
4.3 It is the case of the respondent No.2 that as far as Survey No.1212/1 is concerned, it consists of waste land admeasuring Hector 139 6569 which is earmarked as Survey No.1212/1 P.1 , whereas, Survey No.1212/1 also consists of gaucher land, admeasuring Hector 809376 which is earmarked as Survey No.1212/1 P.3.
4.4 It is the case of the respondent No.2 that thus, both the Survey Nos.1046/1 and 1212/1 consist of both, Government waste land as well as gaucher land. The Collector vide its order dated June 13, 2008 granted Government waste land from both the aforesaid Survey Numbers, specifically mentioning Survey No.1212/1 P.1 and Survey No.1046/1 P.4.
4.5 According to the respondent No.2, in absence of any specific marking, differentiating or earmarking exact government waste land and gaucher land, the respondent No.4 Company was handed over possession of the land admeasuring Hector 50000 in Survey No.1212/1 P.3 and Hector 10000 in Survey No.1046/1 P.2 of gaucher land, instead of the Government waste land, which was granted by the Collector, Rajkot vide order dated June 13, 2008.
4.6 It is the case of the respondent No.2 that some villagers of Titthva village had made a representation to the State Authorities stating that the respondent No.4 Company has encroached upon the gaucher land and had started the process of erecting towers. On receipt of the representation, a survey was conducted by the State Authorities and the exact area of waste land as well as gaucher land was earmarked.
4.7 According to the respondent No.2, after measurement, it was found that the respondent No.4 was given possession of the gaucher land of Survey No.1212/1 P.3 admeasuring Hector 5 0000 and gaucher land of Survey No.1046/1 P.2 admeasuring Hector 10000. The possession of the gaucher land admeasuring Hector 50000 of Survey No.1212/1 P.3 was taken back from the respondent Company on November 17, 2011.
4.8 It is the case of the respondent No.2 that as far as windmills which are to be erected by the respondent No.4 company on the Government waste land granted by the Collector dated June 13, 2008 is concerned, a right of way was given to the company, since, there is no other way to reach the exact site. There exists an approximate three kilometres of kachcha road, which passes through the gaucher land and it leads to the exact site located in the Government waste land bearing Survey No.1212/1 P.1, where the proposed windmills are going to be established.
4.9 It is the case of the respondent No.2 that having realised about the discrepancy/mistake which had occurred after the order passed by the Collector dated June 13, 2008, the Collector again passed a fresh order dated October 11, 2010 allotting the land admeasuring Hector 150000 of Survey No.1046/1 P.4 and the land admeasuring Hector 100000 of Survey No.1212/1 P.1 to the respondent No.4 Company for establishing the windmill.
4.10 It is the case of the respondent No.2 that as far as the grievance of the petitioner with regard to the road which is being constructed by the respondent No.4 company is concerned, as such there is no pakka road which is constructed by the company till date. The Collector had in its order dated June 13, 2008 granted a right of way to the petitioner to pass through the gaucher land to reach the project site.
5. Having heard the learned counsel for the respective parties and after going through the materials on record, the only question that falls for our consideration in this Public Interest Litigation is as to whether the respondent No.4 should be permitted to undertake the process of making a temporary road passing through the gaucher land for the purpose of transporting equipments and machinery at the sanctioned locations to erect the windmill towers.
6. It appears that the State Government, as a part of its policy, has been allotting the land all over the State for the purpose of a windmill project. The respondent No.4 being engaged in the business of generating electricity through windmill had applied with the State Government for allotment of such land and after due considerations, the State Government had granted permission to the Collector, Rajkot to pass necessary orders in that regard. Accordingly, vide order dated June 13, 2008, the Collector, Rajkot allotted the land in question in favour of the respondent No.4, subject to certain terms and conditions. The terms and conditions as imposed in the original order of allotment are as under :
“(1) 4.90 percent of the annual license fees of the land in question as stamp duty and 1.5 percent registration fees amount has to be recovered from the applicant company and after forwarding the same with evidences the Mamlatdar will hand over the possession to the applicant company.
(2) The lease of the land will be considered commenced from the date on which the possession of the land in question is handed over. Entry to be made in the village form No.2 and 7/12 in the secondary rights.
(3) After the applicant company has developed the said land for the concerned purpose then it can be subleased once. After entering into the sublease agreement the endorsement will have to be made before the Collector or authorised officer within 30 days. All the conditions of these orders will be binding upon the subleasee.
(4) The measurement of the land will have to be done by the applicant No.2 company at their own costs within 30 days, the said measurement will have to be done and accordingly at site the Mamlatdar will hand over the possession and forward copy of the rojkam to this office.
(5) The land in question will have to be made use of the Wind Farm Project.
(6) On the land in question the public road, cart way, farmers/ passersby road rights will remain intact, and there will not be any change/ obstructions or hindrances created.
(7) The applicant company will have to act as per the MOU entered into with the Gujarat Energy Development Institution and the Government existing and time to time policy and rules and regulations.
(8) The developer and sublease holder will have the right of way for installing the Wind Turbine Generator and Transmission.
(9) Before putting up any kind of concrete construction on the land in question, the permission from the competent authority will have to be obtained.
(10) If the said land is required for any public purpose or any other purpose by the government then the competent officer has the reserved rights to take back the land in question.
(11) After the lease period is over then it may be considered for extension. And, for what period this lease is to be extended such decision will be the discretion ofhte government.
(12) This land can be subleased only as per the government resolutions from time to time, provisions of circulars. It cannot be divided, gifted or sold.
(13) With regard to the land granted on lease the applicant company will have to put their stamp and signature in the specified form in the Sanad. The terms and conditions of the Sanad will be binding upon the lessee and their sublessee.
(14) If any of the above conditions are breached by the lessee or their servants, agents, sublease holder and others then without issuing notice of any kind and without payment of any compensation the lease on the land will be terminated and the possession of the land will be taken over by the government.”
7. It also appears from the record that thereafter the Collector, Rajkot, vide order dated October 11, 2010, modified its earlier order and restricted the allotment of land from 34 hectors to 25 hectors. However, the conditions imposed earlier were kept intact.
8. It also appears that the respondent No.4 has undertaken substantial work at the locations which have been fixed and has invested quite a substantial amount for the project. During the course of hearing of this petition, on August 16, 2012, this Court had passed the following order :
“At the time of hearing of this application, it appeared that for the purpose of construction of the windmill in question, the State Government allotted some land to the Respondent No.4. Subsequently, it was detected that part of such lands allotted was Gauchar land. After coming to know the aforesaid fact, the Staterespondent, as stated in its affidavit has rectified such mistake and the allotment order has been modified by restricting the waste type of land as the proposed place of installation of the windmill.
Mr. Hasurkar, the learned advocate appearing on behalf of the Respondent No.4, however, submits before us, on taking instructions that in respect of one of the windmills already constructed, the land really falls within the category of Gauchar. He, however, submits that in respect of the lands reallotted to his client which are of the nature of the waste land, his client proposes to give an undertaking that it will prepare a temporary road for the purpose of carrying the equipments to the place of construction and immediately after the construction is over, the land will be reverted to the existing position and in the process, his client will use ecofriendly material so that subsequently grass can grow on such land that would be converted into road. Mr. Hasurkar further submits that the entire exercise would be completed within five months from today, if this goes well. Before considering the said proposal, we direct the Respondent No.4 to give an undertaking before this Court to the aforesaid effect.
Mr. Rashesh Rindani, the learned AGP, appearing on behalf of the Staterespondent is also directed to inquire whether any windmill is going to be installed on Gauchar land (location no. 7) as submitted by Mr. Hasurkar. The Staterespondent is directed to file a short affidavit whether the location no. 7 is really Gauchar land by dealing with the averments made in the Civil Application No. 3872 of 2010 wherein such fact has been stated in detail by the Respondent No. 4.
Let the undertaking as aforesaid be given within a fortnight from today. Let the matter appear on August 30, 2012. Interim relief granted earlier be continued till then.”
9. Pursuant to our order dated August 16, 2012, the respondent No.4 did file an undertaking, but on going through the said undertaking, we had found that the same was not in tune with the one which was submitted before us on behalf of respondent No.4 on the date of passing of the order dated August 16, 2012. Therefore, the respondent No.4 was given liberty to file a modified undertaking strictly in consonance with the order dated August 16, 2012. Accordingly, the respondent No.4 has filed an undertaking on oath, which reads as under :
“I, Mukul Chitarao, Authorised Signatory of Azalia Enterprises, do hereby solemnly affirm and state on oath as under :
1. That I am duly authorised by Respondent No.4, Company herein to file this undertaking and I am, therefore, competent to file the same as per the directions of this Hon'ble High Court vide its order dated 16/8/2012.
2. That, I Mukul Chitarao, do hereby on behalf of Azalia Enterprises, undertake to prepare a temporary road (Through Gaucher land in Survey No.1212/1/B) for the purpose of carrying equipments and machinery to erect Wind Mills at following locations 20, 22, 23, 24 & 25 (in Kharaba land in Survey No.1212/1/P1/P1).
3. Further, as part of this undertaking, we undertake to prepare a road on existing Kachha road having a maximum width of 25 feet and that this road will be prepared using a technique known as water bound MCADAM (WBM) which is an ecofriendly nethod causing least possible damage to the land in question.
4. Respondent No.4 undertakes that they would endeavour to accomplish preparing of the road leading to the locations where windmills are to be erected within a period of 5 months after the Hon'ble Court's order.
4a. Respondent No.4 undertakes to revert the road leading to the above locations back to public purpose and will not exercise any proprietary right over the said roads. This road will be dedicated for public use. The entire exercise of preparing of the roads and its dedication to public will be done as stated above, within 5 months.
In light of the above undertaking, necessary permission to prepare a temporary road for erection of Wind Mills may kindly be granted in favour of Respondent No.4.”
10. We had also directed the Staterespondent to report to us the exact area occupied by the respondent No.4 for the purpose of construction of windmill No.7 admittedly on gaucher land and whether the same amount of gaucher land can be given to the villagers concerned. In response to our order dated September 17, 2012, an affidavit has been filed by the Deputy Collector, Wankaner pointing out that the location No.7 is in gaucher land bearing Survey No.1046/1.2 admeasuring 30 metres X 30 metres.
Therefore, total area of gaucher land, which was included in Location No.7 is 900 sq.mtrs. of land. It has also been brought to our notice that Location No.7 is at a distance of about 500 metres from the Gamtal and, therefore, there is a lot of opposition by the villagers, which may lead to a law and order situation.
11. Taking into consideration all the relevant aspects of the matter, we propose to dispose of this Public Interest Litigation by issuing following directions :
(i) The respondent No.4 shall commence the work of construction of temporary road by using the technique known as water bound MCADAM (WBM), which is considered to be ecofriendly causing least possible damage to the land and as undertaken by the respondent No.4, at the earliest and complete the same within a period of five months from today.
(ii) The width of the road shall not exceed more than 15 feet.
(iii) After the road is completed, the respondent No.4 shall not claim any right over the said road and it will be open for the villagers to use the said road for the purpose of gaucher.
(iv) So far as Location No.7 is concerned, we direct the respondent No.4 not to undertake any work at Location No.7. The State respondent is directed to allot any other land to the respondent No.4 admeasuring 900 sq.mtrs., which is not a part of the gaucher land and which is also not close to Gamtal. Such allotment shall be made within a period of two months from today.
1. With the above observations and directions, we close the present Public Interest Litigation. In case of any difficult, it will be open to the parties to approach this Court by moving an appropriate application.
(Bhaskar Bhattacharya, Chief Justice)
(J.B. Pardiwala, J.)
Aakar