Gauriben Chandubhai Bediya vs State Of Gujarat
2022 Latest Caselaw 7677 Guj

     C/SCA/7408/2021                                JUDGMENT DATED: 08/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7408 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                       Sd/-

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1     Whether Reporters of Local Papers may be allowed                   NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                            NO

3     Whether their Lordships wish to see the fair copy                  NO
      of the judgment ?

4     Whether this case involves a substantial question                  NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       GAURIBEN CHANDUBHAI BEDIYA & ORS.
                                     Versus
                            STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR PRATIK Y JASANI, ADVOCATE for the Petitioners
MR MEET THAKKAR, AGP for the Respondents No. 1,2,3 - State Authorities
MR ISHAN JOSHI, ADVOCATE for the Respondent No. 4
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 08/09/2022

                                ORAL JUDGMENT

1. The present petition is filed by the petitioners

with the following main prayers :

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"7(A) Your Lordships be pleased to issue appropriate writ, order and/or directions, quashing and setting aside the impugned order dated 17.02.2020 passed by respondent no.2 (Annexure A) and further be pleased to direct respondent no.2 to reconsider his decision and not to allot land bearing survey no.407 paiki 19 situated at village Rohishala, village Tankara, District : Morbi to respondent no.4 for the purpose of construction of wind mill;

(B) Your Lordships be pleased to issue appropriate writ, order and/or directions, directing respondent no.2 to take appropriate steps to forbear respondent no.4 from installing High Tension Poles for wind mill on the land allotted to it by respondent no.2 viz., on the land bearing survey no.407 paiki 19 situated at village Rohishala, village Tankara, District : Morbi, in the interest of justice;

(C-1) Pending admission hearing and till final disposal of this petition, Your Lordships be pleased to stay operation, execution and implementation of impugned order dated 17.02.2020 passed by respondent no.2 in the interest of justice;

(C-2) Pending admission hearing and till final disposal of this petition, Your Lordships be pleased to direct respondent no.2 to reconsider the representation

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made by the petitioners on 15.04.2021 as early as possible, or within such time limit as may be deemed appropriate by this Hon'ble Court, in the interest of justice;

(D) xxx"

2. Heard Mr.Pratik Jasani, learned advocate for

the petitioners, Mr.Meet Thakkar, learned AGP for the

State Authorities and Mr.Ishan Joshi, learned advocate

for the private respondent at length.

3. Rule. Learned AGP Mr.Meet Thakkar and

learned advocate Mr.Ishan Joshi waive service of notice

of rule on behalf of the respective respondents.

4.1 Mr.Pratik Jasani, learned advocate for the

petitioners has submitted that respondent No.2 ought to

have appreciated that though the land bearing survey

no.407 paiki 19 is a Government waste land, same is

forming part of the panchayat and therefore, it is

mandatory on the part of the respondent no.4 to obtain

permission from the village panchayat first as provided

under Section 104 of the Gujarat Panchayats Act, 1993

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or the respondent no.2 is required to take nod of the

concerned panchayat or atleast to take the opinion of the

said authority.

4.2 He has further submitted that a wind mill is

a process of generating wind energy through a towering

structure. The wind process through air foil section of

the blades attached to the wind mill and the lift

produces due to aerodynamics of the air foil generates

torque which is then transformed to electricity in the

generator. He has submitted that the wind mill converts

wind energy into mechanical energy of turbine and it is

then converted into electricity which later on passes to

the grid. Therefore, in view of Section 2(k) of the Factories Act, 1948, such process is called 'manufacturing

process' and also consider 'power' which is defined under

the provisions of 2(g) of the Factories Act, 1948.

4.3 He has further submitted that erection of wind

mill is for the purpose of generating electricity and

thereafter transmitting it to power grid of the concerned

electricity company and therefore, there would be

necessity of further installing / putting up high tension

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wire lines. He has submitted that for installing such

high tension wire lines, mandatory provisions as provided

under Section 12 of the Electricity Act are required to

be followed and requisite permission is required to be

obtained, which is not obtained in the present case.

4.4 He has further submitted that the petitioners

have time and again made oral representations to the

Authorities that due to such wind mill, noise pollution

will be created and therefore, he has submitted that the

impugned action of respondent no.2 to pass the order

dated 17.02.2020 is highly unjust, improper, illegal and

arbitrary and is required to be quashed and set aside.

5.1 Per contra, Mr. Meet Thakkar, learned AGP for the State Authorities has, by heavily relying upon

the affidavit-in-reply filed by the respondent no.2 - the

Collector, Morbi, through the Mamlatdar, vehemently

opposed this petition and has submitted that the State

Government has formulated a policy and decided to allot

the Government land to private party / sector / company

for installing wind turbines for generating energy through

the wind mills.

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5.2 He has further submitted that similar issue

has been arisen before the Division Bench of this Court

in the case of Kasam Sidhiq Chuchiya versus State of

Gujarat - Writ Petition (PIL) No.122 of 2018 decided on

23.09.2021. He has submitted that the property i.e.

Survey No.407 paiki 19 is in the nature of Government

waste land admeasuring total area of 6,60,360 sq.mtrs.,

from which the Authorities have decided to allot 10,000

sq.mtrs., land for construction of wind mill, as no

electricity lines, railway lines, canal, etc., are passing

through the property. He has submitted with regard to

the contention regarding crematorium that, a portion of

the land bearing survey no.407 paiki 19 for use as a crematorium for persons belonging to the SC/ST category

(Crematorium) and size of the said land appears to be

0-16 gunthas or 1618 sq.mtrs., only and there is no

overlap between the property allotted to respondent no.4

and the land allotted for the crematorium.

5.3 He has further submitted that respondent no.3

- Mamlatdar has indicated that the land allotted for

construction of wind mill was more than 0.6 kilometers

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away from village : Rohishala. He has submitted that

the wind mill was to be installed at the property i.e.

survey no.407/p/19 and not at the lands which were of

the ownership of the petitioners. He has submitted that

the land in question was not so close to the

crematorium.

5.4 He has further submitted that subsequently,

Mamlatdar addressed a letter dated 07.06.2021 to

respondent no.4 - Bhuj Wind Energy Pvt. Ltd., stating

that they can commence the work of construction of the

wind mill, subject to not causing any disturbance to

existing roads, canals, electricity lines, etc., if any. He

has submitted that at present, total four wind mills are functioning.

5.5 He has further submitted that in terms of

Section 104 of the Gujarat Panchayats Act, 1993,

permission for construction of buildings from the

panchayat is only required if the proposed construction is

within the limits of the village. He has submitted that

in the present case, the property is approximately

situated 0.6 kilometers away from village : Rohishala and

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therefore, there is no requirement of taking permission

under Section 104 of the Act.

5.6 He has submitted that the present petition is

found meritless and is required to be dismissed, as

neither there is malafide action on the part of the

Government nor arbitrariness in the impugned order. He

has submitted that this petition may be dismissed.

6.1 Mr.Ishan Joshi, learned advocate for respondent

no.4 - Bhuj Wind Energy Pvt. Ltd., has also vehemently

opposed this petition and has adopted the submissions

made by learned Assistant Government Pleader.

6.2 He has submitted that the subject land is

situated at 0.6 kilometers away from the village :

Rohishala and therefore, provisions of Section 104 of the

Gujarat Panchayats Act, 1993 does not applicable in the

facts of the present case.

6.3 He has submitted that the present petition

deserves to be dismissed as the petitioners are the

private parties and they have not approached this Court

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with clean hands. He has submitted that this petition

may be dismissed with cost.

7.1 I have heard learned advocates for the

respective parties. I have gone through the material

available on record. Prima facie, the contentions raised

by the petitioners look very attractive, but considering

the record, more particularly the annexures annexed to

this petition, including the affidavit in reply by the

respective respondents, it is found that the present

petition is not filed by the Rohishala Village Panchayat,

which can be considered at the best aggrieved party. The

village panchayat is not impleaded as party in the

present proceedings by the petitioner.

7.2 It is relevant to note here that as per the

report of the Mamlatdar, the petitioners are residing far

away i.e. two kilometers away from the land where the

wind mill is installed. Further, it is not in dispute that

the wind mill is installed on the Government waste land,

which is 0.6 kilometers away from the limit of the

village Rohishala and therefore, the provisions of Section

104 of the Gujarat Panchayats Act, 1993 does not

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applicable to the present case. Section 104 of the Gujarat

Panchayats Act, 1993 is reproduced hereunder.

"104. Control on erection of buildings - (1) No person shall erect or re-erect or commence to erect or re-erect within the limits of the village, any building without the previous permission of the panchayat.

(2) Permission shall be presumed to have been granted if the panchayat fails to communicate its sanction or refusal in respect thereof within one month from the date of receipt of the application for the permission. In case of refusal, the panchayat shall communicate to the applicant the reasons thereof, and an appeal shall lie against any such order of refusal to the taluka panchayat:

Provided that no such appeal shall be entertained if it is made after the expiry of thirty days from the date on which the refusal is communicated to the applicant.

(3) No person, who becomes entitled under sub- section (1) or (2) to proceed with any intended work of erection or re-erection shall commence such work after the expiry of one year from the date on which he became entitled to proceed therewith unless he shall have again become so entitled by a fresh compliance with the provisions of sub-section (1) or (2) as the case may be.

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(4) Whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the provisions of subsection (1) or any bye-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to two hundred rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to twenty rupees for each day during which such contravention continues after conviction for the first such contravention.

(5) Without prejudice to the penalty prescribed in sub-section (4) the panchayat may--

(a) direct that the erection or re-erection be stopped,

(b) by written notice require such erection or re- erection to be altered or demolished, as it may deem necessary, and, if the requirement under clause (b) is not complied with within the time fixed in the notice, the panchayat may cause the alteration or demolition to be carried out by its officers and all the expenses incurred by the panchayat therefor, shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter X:

Provided that when a notice for bringing any action against any direction for the alternation or

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demolition of any erection or re-erection issued under this sub-section has been given under sub-section (2) of section 270, alteration or demolition shall not be caused to be carried out until the expiry of the period of such notice and a further period of seven days.

(6) Nothing contained in this section shall apply to any building which is used or required for public service or for any public purpose, and if the property of the State or Central Government or any local authority, or is to be erected or re-erected by the State Powers of panchayat to manage institutions or execute work transferred to it by taluka or district panchayat. Control on erection of buildings. 1993 : Guj. 18] Gujarat Panchayats Act, 1993. 41 or Central Government or the local authority but reasonable notice of the proposed construction shall be caused to be given to the panchayat, and the objections or suggestions of the panchayat, if any, shall be considered.

Explanation.-- The expression "erect" or "re-erect" with reference to a building in this section includes-

(a) any material alteration, or enlargement of or in any building;

(b) the conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation;

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(c) such alteration of a building as would effect a change in the drainage or sanitary arrangement or materially affect its security;

(d) the addition of any rooms, buildings, outhouses, or other structures to any building;

(e) the conversion by any structural alteration into a place of religious worship or into a sacred building of any place or building, not originally meant or constructed for such purpose;

(f) roofing or covering an open space between walls and building's as regards the structure which is formed by roofing or covering such space ;

(g) conversion into a stall, shop, warehouse, or godown of any building not originally constructed for use as such or vice versa;

(h) construction in a wall adjoining any street or land not vested in the owner of the wall, of a door opening on such street or land."

7.3 In view of above, it is apparent that when the

property in question is not situated within the limit of

the village panchayat, the contention regarding applicable

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of Section 104 of the Act found misconceived and not

applicable in the facts of the present case.

7.4 It also transpires from the affidavit-in-reply

filed by respondent no.2 that there is neither electricity

line, nor railway line nor canals passing through the

land in question. Further, it is a matter of fact, which

has come on record, that four wind mills are already

installed and are at present functioning in the property

in question. The said wind mills are installed as per the

policy of the State Government. The allotment of

government wast land for wind farm project is a policy

decision of the State Government and such policy is

framed with a view to develop renewable energy sector in view of dwindling resources of fuel, increased threat

of global warming and the concern about environment

protection.

7.5 Looking to the entire facts and circumstances

of the case, it seems that the petitioners, who are the

private parties, are trying to pressurise the respondent

no.4 - Bhuj Wind Energy Pvt. Ltd., by making such

frivolous grievances with some ulterior motive. At this

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stage, it is relevant to take support of the decision

rendered by the Division Bench of this Court in the case

of Kasam Sidhiq Chuchiya versus State of Gujarat -

Writ Petition (PIL) No.122 of 2018 decided on 23.09.2021. The Division Bench of this Court has considered all the

averments raised and submissions made in that petition

and has not entertained that petition. Relevant Paras :

7.3 to 7.7 are relevant and quoted as under :

"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 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 :

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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 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

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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 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

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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 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

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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-

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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:

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

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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 resume any land including

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the grazing land vested by the Government in Panchayat, if it is required for any public purpose.

In Panchayat Varga Shramjivi Samudaik Sahakari Khedut Coop 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

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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 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

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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. (ii) While fixing the area to be assigned for grazing in each

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village only the following cattle should be taken into account :-

(a) Cows, bulls, bullocks, he-buffaloes, she-buffaloes, 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

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(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 :

"(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

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(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 Government is empowered to resume even the

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'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

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the case of Pachhat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. (supra). 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

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upon the observations made by the Court in paragraphs 23, 24 and 25, which read as under :

"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 illegally convert the gochar to house plots or other nongrazing 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

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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 dereserving, 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 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

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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

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before utilizing any portion of 'gauchar' land for any public purpose. Under such 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

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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. 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.""

7.6 In view of above, I find that the petitioners has no locus or no reason to challenge the impugned

order passed by the Authorities. There is no arbitrariness

or colourable exercise of powers in the impugned order

passed by the Authorities. On the contrary, the

Authorities has passed the impugned order by taking

into consideration the relevant policy of the State

Government qua the wind energy. There is no justifiable

reason is made out to entertain this petition. This

petition is therefore meritless and no extra-ordinary

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powers under Article 226 of the Constitution of India are

required to be exercised in this petition. This petition

therefore deserves to be dismissed.

8. It is noted that this Court has decided

identical issue vide judgment dated 08.09.2022 rendered

in Special Civil Application No.8004 of 2021, whereby

this Court has dismissed the petition.

9. For the reasons recorded above, the following

order is passed.

9.1 The present petition is dismissed, with no

order as to costs.

9.2              Rule is discharged.

                                                                    Sd/-
                                                             (SANDEEP N. BHATT,J)
M.H. DAVE