SANGEET LODHA,J. - (1.) These intra-Court appeals directed against orders dated 27.11.19 passed by the learned Single Judge of this Court, dismissing the writ petitions preferred by the appellants assailing the legality of the allotment of the lands made in favour of M/s. Essel Saurya Urja Company of Rajasthan Limited ('ESUCRL') in revenue villages Ugras and Nagnechinagar of Tehsil Phalodi, District Jodhpur and in favour of Adani Renewable Energy Park Rajasthan Limited ('AREPRL') in revenue village Nedan, Tehsil Pokaran, District Jaisalmer, for establishment of Solar Park, were heard together and are being disposed of by this common order.
(2.) To appreciate the controversy raised in these appeals, it would be appropriate to notice the brief facts of the each case: D.B.Special Appeal (Writ) No.51/2020 (Kalyan Singh and Ors. v. State of Rajasthan and Ors.) This special appeal arises out of the order dated 27.11.19 passed by the learned Single Judge in Writ Petition No.16305/18. The writ petitioners claiming themselves to be khatedar tenants and cultivators for last 40-45 years of agriculture land comprising various khasras of village Nagnechinagar, assailed the legality of the order dated 23.3.18, issued by the District Collector, Jodhpur, allotting the lands measuring 70.08 bighas comprising khasra no.416, 1958.02 bighas comprising khasra no.439 and 454.04 bighas comprising khasra no.441 of revenue village Nagnechinagar, in favour of ESUCRL for establishing a 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 favour of ESUCRL, no land has been allotted in their favour. 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 favour of ESUCRL sought direction to the respondents not to dispossess them from the land in their possession. A reply to the writ petition was filed by the State before the learned Single Judge taking the stand that the land allotted to ESUCRL is siway chak Government land and not khatedari land of the petitioners as alleged. It is averred that the possession of the land allotted has already been handed over to the respondent Company after following the due procedure of law. The State categorically denied the factum of existence of dhani, tanka, talab, hills etc. upon the land in question. According to the State, the land allotted is rocky and not cultivable as alleged by the petitioners. D.B.Special Appeal (Writ) No.52/2020 (Shankra and Ors. v. State of Rajasthan and Ors.) This special appeal arises out of the order dated 27.11.19 passed by the learned Single Judge in Writ Petition No.16304/18. The writ petitioners claiming themselves to be khatedar tenants and cultivators of the agriculture land comprising various khasras of village Ugras, challenged the legality of order dated 23.3.18, issued by the District Collector, Jodhpur allotting the land measuring 2045.11 bighas comprising khasra no.359, 360/20 and 361 of revenue village Ugras, in favour of ESUCRL for installation of 450 Mega Watts Solar Park. The petitioners averred that they are in cultivatory possession of the land of the aforementioned khasras of village Ugras for last 40-45 years. 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 since 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 favour of ESUCRL, no other land has been allotted in their favour. 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 favour of ESUCRL sought direction to the respondents not to dispossess them from the land in their possession. A reply to the writ petition was filed by the State taking the stand similar to the stand taken in the reply to writ petition filed in S.B.Civil Writ Petition No. 16305/18 :'Kalyan Singh v. State of Rajasthan and Ors.. D.B. Spl. Appl. Writ No. 223/2020 (Barkat Khan and Ors. v. State of Rajasthan and ors.) This special appeal arises out of the order dated 27.11.19 passed by the learned Single Judge in Writ Petition No.11551/18. The writ petitioners had challenged the legality of order dated 11.1.18, issued by the District Collector, Jaisalmer allotting the land measuring 6115.06 bighas comprising khasra nos. 2, 3, 4, 483/3, 480/4, 493/4, 494/4, 527/4, 528/4, 5, 8, 9, 11, 43, 82 and 485/82 of revenue village Nedan, Tehsil Pokaran, District Jaisalmer, in favour of AREPRL for installation of 1500 Mega Watts Solar Park. In the writ petition filed, the petitioners averred that the Sub-Divisional Officer, Pokaran ('SDO') had issued an advertisement dated 8.3.06 inviting applications for allotment of the agriculture land inter-alia in the revenue Village Nedan, under Rule 7 of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 ('the Rules of 1970'). The petitioners being cultivators of the land in revenue Village Nedan since 40-45 years, submitted their applications along with requisite documents to SDO, Pokaran. The receipts of the applications submitted, issued in favour of the petitioners Barkat Khan, Deep Singh, Gemar Singh, Manohar Singh and Arjun Singh, were placed on record as Annexure-2. No proof regarding the applications, if any, submitted on behalf of the remaining petitioners was filed. Precisely, the case set out by the petitioners in the writ petition was that the applications of the petitioners, the landless persons, seeking allotment, being pending since the year 2006 and thus, the land could not have been allotted in favour of AREPRL without considering their applications for allotment in accordance with the Rules of 1970. The petitioners contended that they are entitled for regularization of their old possession. According to the petitioners, in the first instance, half of the land of Village Nedan i.e. 5547 bighas was allotted in favour of RIICO Limited and now the remaining land ad measuring 6115-06 bigha has been allotted in favour of respondent AREPRL. In this regard, the layout plan of the allotted land has been placed on record by the petitioners as Annexure-5. It is submitted that the petitioners are residing in their dhani constructed in Village Nedan and there exists Schools, Temple, Water Tank, Pond, Oran land etc., but while allotting the land this fact has also been ignored. Prior to allotting the land in favour of AREPRL, no opportunity of hearing was extended to the petitioners and thus according to the petitioner, the action of the respondents is highly illegal, arbitrary and violative of principles of natural justice. The grievance of the petitioners is that if they are divested of the land in their possession, in respect whereof the applications submitted are pending consideration since 2006, they shall stand deprived of their livelihood. The petitioners while questioning the legality of the order dated 11.1.18 prayed that the respondents be directed to regularise their old possession over the land in question by deciding the applications submitted by them in the year 2006 and they may not be dispossessed from the lands in their cultivatory possession. No reply to the writ petition was filed by any of the respondents before the learned Single Judge.
(3.) All the three writ petitions preferred as aforesaid, have been dismissed by the learned Single Judge in the light of the decision in the matter of Chanesar Khan and Ors. v. State of Rajasthan and Ors.: S.B.Civil Writ Petition No.5707/18, decided on the same day. The said writ petition was related to the challenge to the allotment made in favour of company AREPRL in the Village Nedan. In Chanesar Khan's case, the learned Single Judge opined that the petition preferred involve host of disputed question of facts, which cannot be gone into by the Court in exercise of the writ jurisdiction and thus, the petitioners were heard only qua the prayer clause (a) of the writ petition i.e. with respect to order impugned therein dated 11.1.18 issued by the District Collector, Jaisalmer allotting 6115 bighas 6 biswas land comprising various khasras of Village Nedan in favour of AREPRL. The contentions of the petitioners therein that the land has been allotted in violation of Section 16 of the Rajasthan Tenancy Act, 1955 ('Act of 1955') and Rule 5 of the Rajasthan Land Revenue (Allotment of Land for Setting up of Power Plant based on Renewable Energy Sources) Rules, 2007 ('Rules of 2007') was negated by the learned Single Judge taking note of the submission of the learned Advocate General appearing for AREPRL that the possession of the land of public utility such as Pond, Talab, 1, Graveyard etc. has not been handed over to AREPRL and they will not insist for handing over possession or allotment of such land, possession whereof, has not been given. The Court further observed: 'Before adverting to the argument of learned counsel for the petitioners, Mr. Raghav with respect to provision contained in Section 16 (xiv) of the Act of 1955, it would be apt to reproduce the provision for ready reference, which I hereby do: 'Land which has been set apart or is, in the opinion of the Collector, necessary for flow of water thereon in to any reservoir or tanka for drinking water for a village or for surrounding village' A simple look at the provision aforesaid leaves no room for ambiguity that it has been enacted with a view to protect water flow to any reservoir or 'tanka', which has been set apart by the Collector. Argument advanced by learned counsel for the petitioners that before allotting such land it was imperative of the Collector to summon a report, cannot be countenanced. As a matter of fact, the provision postulates that a land which has been set apart or in the opinion of Collector is necessary for flow of water, in terms of the proviso, a report would be summoned. There is no material on record to show that the part of the land has been set apart or in the opinion of Collector is necessary for flow of water. As such, the argument advanced in this regard is untenable and thus rejected. However, in view of the statement given by the respondent- State that possession of the land which falls in the catchment area or flow of river, pond has not been given to respondent No.6, and that the allotment made in relation to such land would stand cancelled; argument advanced by the petitioner does not need any further deliberations.' Regarding the pending applications of the petitioners for allotment, taking note of the material placed by the respondent- State that the Cabinet of the State Government by way of resolution has decided on 16.8.09 that the applications invited for allotment of the land in Jaisalmer would stand cancelled, learned Single Judge observed that the argument of the petitioner has no ground to hold. The learned Single Judge observed that the petitioners' applications for allotment/regularization having been turned down by the State, the argument of prior right of allotment is no more available to them. ;