THE STATE OF RAJASTHAN AND ANOTHER versus ULTRATECH CEMENT LTD on 26 August 2022

[2022] 13 S.C.R. 1

THE STATE OF RAJASTHAN AND ANOTHER

v.

ULTRATECH CEMENT LTD.

(Civil Appeal No. 5841 of 2022)

AUGUST 26, 2022

[N. V. RAMANA, CJI, HIMA KOHLI ANDC. T. RAVIKUMAR, JJ.]

Allotment of Land – For setting up a cement plant –Respondent-company was asked to produce NOC/orders forallocation of ‘Johad’ land from the High Court – The respondent-company approached the High Court by filing writ petition –Accompanying the said writ petition were several documentspertaining to the spot inspection of the site, the reports of theTehsildar and the correspondence between the parties todemonstrate that the subject land that had been classified as ‘Johad’,neither fell in the catchment area, nor did water gather there andthere did not exist any natural source of water on the subject landand therefore, classification of the subject land could be convertedto ‘Siwai Chak’ land – Single Judge of the High Court dismissed thewrit petition – Division Bench of the High Court directed theappellant-State Government to consider the respondent’srepresentations – Appellant-State Government passed an order dated25.01.2016, holding, inter alia, that the subject land having beenrecorded in the revenue record as ‘Johad’, no allotment could bemade in favour of the respondent-company – Thereafter, the DivisionBench proceeded to hear the respondent’s appeal on merits andallowed the same, directed the appellant-State Government to allotthe subject land in question to the respondent-company and takeconsequential steps – Before the Supreme Court, appellant-State byrelying on a letter of Tehsildar stated that in some khasra numbersof the said village, there exists a pucca pond which acts as acatchment area of rain water – Held: The aforesaid communicationby Tehsildar was not filed by the appellant-State Government beforethe High Court at the appropriate stage, well before the date ofpassing of the impugned judgment – Nothing prevented theappellant-State Government from producing the relevantphotographs of the purported pucca pond existing at some spots

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Awithin village Baswa – It is not the case of the appellant-StateGovernment that the earlier reports submitted by the Tehsildar afterconducting a physical spot inspection were manipulated or preparedin a mala fide manner, nor is there any averment made in the appealthat departmental action was initiated against the then Tehsildarfor having prepared incorrect reports of the spot inspection – GivenBthe said position, there is no reason to discard the two Inspectionreports prepared by the Tehsildar that form a part of the record –Both the said reports have stated in clear terms that there is nonatural water body on the subject land and the ‘Gair-Mumkin Johad’falling under the proposed mining lease area does not fall withinCthe water logging area or the catchment area – Therefore, theappellant-State Government directed to take necessary steps toprocess the allotment of the subject land in favour of the respondent-company.

Dismissing the appeal, the CourtD

Conclusion

Dismissing the appeal, the CourtD

HELD: 1. It is a matter of record that the appellant–StateGovernment has not questioned the Reports prepared by theTehsildar, Nawalgarh after making spot inspection on twooccasions. The position remains the same even as of now. Thefirst Report was prepared by the Tehsildar on 19th/27th April,E2011 and the second one on 25th November, 2012/05th December,2012. Both the Reports were categorical in their findings thatthere was no natural water body on the subject land classified asa ‘Johad’ and that the subject land neither fell in the catchmentarea, nor did water ever collect there and there was no naturalsource of water that existed on the subject land. That being theFposition, we see no reason to permit learned counsel for theappellant–State Government to rely on a communicationaddressed by the Tehsildar to the District Collector, in respectof a part of the subject land falling in village Baswa to urge thatthere exists a pucca pond at some spots, more so when there isGno explanation for not filing the documents. The aforesaidcommunication could have easily been filed by the appellant–StateGovernment before the High Court at the appropriate stage, wellbefore the date of passing of the impugned judgment. Nothingprevented the appellant–State Government from producing therelevant photographs of the purported pucca pond existing atH

some spots within village Baswa. It is not the case of theappellant–State Government that the earlier Reports submittedby the Tehsildar, Nawalgarh after conducting a physical spotinspection had been manipulated or prepared in a mala fidemanner, nor is there any averment made in the appeal thatdepartmental action was initiated against the then Tehsildar,Nawalgarh for having prepared incorrect Reports of the spotinspection. Given the said position, there is no reason to discardthe two Inspection Reports prepared by the Tehsildar, Nawalgarhthat form a part of the record. Both the said Reports have statedin clear terms that there is no natural water body on the subjectland and the ‘Gair–Mumkin Johad’ falling under the proposedmining lease area does not fall within the water logging area orthe catchment area. This Court, therefore, decline to give anyweightage to the letter dated 07th July, 2014 addressed by theTehsildar, Nawalgarh to the District Collector, Jhunjhunu. [Para8][14-A-G]

2. The High Court has also taken note of the Resolutionpassed by the Gram Panchayat, village Baswa and the certificateissued by the Gram Panchayat which records that no water hadever accumulated on the subject land and the Gram Panchayatdid not have any objection to the said land being granted to therespondent–Company for mining lease purpose subject to thecondition that it would be receiving an equal measure of developedland in the same village from the respondent–Company in viewof the land being consumed for mining lease purpose. Therespondent–Company has also given undertakings to the HighCourt that the environment of the village will not be adverselyimpacted and the ecological balance shall be maintained. One ofthe undertakings given by the respondent–Company is that thesite identified for development of an alternate ‘Johad’ would beidentified and developed in a planned manner, so as to create acatchment area, water harvesting structure and cattle grazingland. [Para 11][16-F-H; 17-A]

3. This Court concur with the findings returned in theimpugned judgment which is upheld. The appellant–StateGovernment is directed to take necessary steps to process theallotment of the subject land in favour of the respondent–

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ACompany. The respondent–Company shall file a freshundertaking with the State Government, within the same timeline,as was filed by it before the High Court, for initiating time boundactivities for the benefit of the surrounding villages, ascompensatory measures for the allocation of the subject land.The appeal is dismissed while leaving the parties to bear theirBown expenses. [Para 19][19-H; 20-A-B]

Abdul Rahman v. State of Rajasthan and Others 2004(4) WLC (Raj.) 435; Director General, Research andDevelopment v. State of Rajasthan & Others 211 SCCOnline Raj 3197; Vellore Citizens’ Welfare Forum v.CUnion of India and Others (1996) 5 SCC 647 : [1996]5 Suppl. SCR 241; A. P Pollution Control Board v.Prof. M. V. Nayudu (Retd.) and Others (1999) 2 SCC718 : [1999] 1 SCR 235; Lafarge Umiam Mining PrivateLimited (Applicant) in T. N. Godarvarman ThirumulpadDv. Union of India and Others (2011) 7 SCC 338 : [2011]7 SCR 954; Electrotherm (India) Limited v. PatelVipulkumar Ramjibhai and Others (2016) 9 SCC 300 :2016 (7) JT 487; Common Cause v. Union of India(2017) 9 SCC 499 : [2017] 13 SCR 361; AlembicPharmaceuticals Limited v. Rohit Prajapati and OthersE(2020) 17 SCC 157; Jagpal Singh and Others v. Stateof Punjab and Others (2011) 11 SCC 396 : [2011] 2SCR 250; Narmada Bachao Andolan v. Union of India(2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94 – referredto.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5841of 2022.

From the Judgment and Order dated 26.02.2016 of the High Courtof Judicature for Rajasthan at Jaipur Bench in D.B. Civil Special Appeal(Writ) No. 73 of 2013.

Dr. Manish Singhvi, Sr. Adv., Arpit Parkash, Vikalp Sharma, MilindKumar, Advs. for the Appellants.

Haren Raval, Sr. Adv., Ujjawal Sharma, Mahesh Agarwal, E. C.Agrawala, Advs. for the Respondent.

The Judgment of the Court was delivered by HIMA KOHLI, J.

1. Leave granted.

2. The appellant–State of Rajasthan[1] has assailed the judgmentdated 26[th] February, 2016, passed by a Division Bench of the High Courtof Judicature for Rajasthan Bench at Jaipur whereby the order dated05[th] October, 2012, passed by the learned Single Judge dismissing a writpetition preferred by the respondent–Ultratech Cement Ltd.[2] (S.B. CivilWrit Petition No. 15416 of 2012) was set aside and its appeal allowedwith a direction to the appellant–State Government to process theallotment of the land in favour of the respondent–Company for settingup a cement plant in Tehsil Nawalgarh, District Jhunjhunu, in terms ofthe letter of allotment dated 23[rd] February, 2012.

3. A brief overview of the facts of the case is necessary.

3.1 With the idea of setting up a Cement plant having the capacityof 3 million tons of cement per annum in four villages situated in TehsilNawalgarh, District Jhunjhunu, spreading over 1000 hectares of land,the respondent–Company purchased/acquired 400 hectares of landthrough direct negotiations and took steps to acquire the remaining partof land through private negotiations, as also by way of allotment throughRIICO. For executing the project of cement manufacturing, therespondent–Company applied to the appellant–State Government in theyear 2000 – 2001 for grant of adjoining mining leases for mineral limestone (cement grade) in Tehsil Nawalgarh, District Jhunjhunu. A letter 1 In short ‘State Government’

2 In short ‘Company’

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1 In short ‘State Government’

2 In short ‘Company’

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Aof intent[3] was issued by the appellant–State Government on 16[th] March,2002 in respect of two mining leases, but due to non-availability ofenvironment clearance within the stipulated time, the said LOI wascancelled by the State Government by order dated 07[th] February, 2005.The said order was challenged by the respondent–Company by preferringa revision petition before the Mines Tribunal which was allowed videBorder dated 19[th] July, 2007 and the matter was remitted back to theState Government for fresh examination in accordance with law. Theappellant–State Government vide order dated 22[nd] November, 2007,restored the LOI subject to compliance of certain conditions and on anundertaking to be furnished by the respondent–Company. The said LOICwas however, cancelled by the Mines Tribunal vide order dated29[th] July, 2009. Aggrieved by the said cancellation order, the respondent–Company approached the High Court by filing a writ petition which wasallowed vide order dated 19[th] August, 2010 and the appellant–StateGovernment finally issued a LOI on 28[th] October, 2010.

D3.2 This time, the District Collector, Jhunjhunu issued an approvalletter dated 23[rd] February, 2012, for allocation of Government land fallingunder mining lease area to the respondent–Company for setting up acement plant subject to the fulfillment of certain conditions stipulatedtherein. The captioned letter issued by the District Collector, Jhunjhunuis extracted hereinbelow:E

“Sir,

Vide above referred letter under above mentioned subject, theState Government has granted approval for reservation andallocation of land falling under mining lease area for setting up aFcement plant is granted under Section 92 of the L.R. Act whichshall be subject to the fulfillment of the below mentioned conditions:-

(i) Approval for allocation of the land recorded as pasture landin the mining leased area is given in favour of the applicantcompany subject to the condition that the company shallGsurrender the land equivalent to the allocated land afterpurchasing it in the same village and after developing it asgrazing land and will also make it available to the concernedGram Panchayat after doing fencing of the four walls ofthe land.

THE STATE OF RAJASTHAN AND ANOTHER v. ULTRATECHCEMENT LTD. [HIMA KOHLI, J.]

(ii) In-principle consent for allocation of the gair-mumkin johadAland falling under mining lease area, as applied for by thecompany, is given in favour of the company subject to thecondition that company shall purchase other land anddevelop it as Johad and surrender it to the Gram Panchayat.The company shall also produce NOC/orders for allocationBof Johad land obtained from Hon’ble High Court.

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(iii) Company’s application for allocation will be considered onlyafter producing permission/NOC of the competent authorityof Panchayat Raj Vibhag and Education Department forgair-mumkin abadi school, graveyard, maszid etc. situatedon the mining lease area.

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(iv) 0.32 Hectare land in the mining lease area is recorded inthe name of Ajmer Electricity Distribution Corporation Ltd.Above land shall be allocated in favour of the applicant-company on producing NOC from the Ajmer ElectricityDistribution Corporation Ltd.

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(v) Consent is issued for allocation of the classified land ofgair-mumkin Bani & gair-mumkin passage as per yourproposal which falls under mining lease area for the purposein accordance with rules.

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Therefore, kindly ensure action as above.

Encl: as above.

Sd/-

District Collector, Jhunjhunu”

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3.3 In view of condition No.(iii) contained in the captioned letterwhich called upon the respondent–Company to produce NOC/ordersfor allocation of ‘Johad’ land from the High Court, the respondent–Company approached the High Court by filing S.B. Civil Writ PetitionNo.15416/2012. Accompanying the said writ petition were severaldocuments pertaining to the spot inspection of the site, the Reports ofthe Tehsildar and the correspondence between the parties to demonstratethat the subject land that had been classified as ‘Johad’, neither fell inthe catchment area, nor did water gather there and there did not existany natural source of water on the subject land and therefore,classification of the subject land could be converted to ‘Siwai Chak’

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Aland. Not persuaded by the averments made in the writ petition, thelearned Single Judge dismissed the writ petition at the stage of admissionitself with an observation that it is for the State Government to decidewhether the disputed land is ‘Johad’ land or not and that the Court wasbound by the judgment of the Division Bench of the High Court in thecase of Abdul Rahman v. State of Rajasthan and Others[4].B

3.4 Dissatisfied with the in limine dismissal of its writ petition,the respondent–Company preferred an appeal before the Division Benchof the High Court registered as D.B.Special Appeal (Writ) No. 73/2013.Noting that several representations submitted by the respondent–Company to the appellant–State Government for examining the matterCafresh and for making necessary corrections in the revenue recordswere pending, vide order dated 23[rd] November, 2015, the Division Benchdirected the appellant–State Government to consider the respondent’srepresentations in the light of the observations made in the case of DirectorGeneral, Research and Development v. State of Rajasthan &DOthers[5], in particular, para 3 thereof, that is extracted hereinbelow:

“It is conceded on facts that in fact there is no Gair Mumkin Nadiexisting on the spot, therefore the decision rendered by the DivisionBench of this court in (Abdul Rahman Vs. State of Rajasthan& Ors.) shall not come in the way of the respondents in makingEthe allotment. In view of aforesaid factual matrix and consideringthe nature of requirement, we direct that let the allotment be •processed as assured within six weeks from today”.

While passing the aforesaid order, it was made clear that in theevent the appellant– State Government does not decide the representationFof the respondent–Company, the appeal will be decided on merits.

3.5 In compliance of the aforesaid order, the appellant–StateGovernment passed an order dated 25[th] January, 2016, holding interalia that the subject land having been recorded in the revenue record as‘Johad’, no allotment could be made in favour of the respondent–GCompany. In view of the aforesaid stand taken by the appellant–StateGovernment, the Division Bench proceeded to hear the respondent’sappeal on merits and allowed the same by virtue of the impugned judgmentwhereunder the appellant–State Government has been directed to allot H

4 2004(4) WLC (Raj.) 435

5 211 SCC Online Raj 3197

the subject land in question to the respondent–Company and takeconsequential steps in the matter.

3.6 The High Court has specifically recorded in the impugnedjudgment that learned counsel for the appellant–State Government didnot dispute the fact even before the Court that though the subject land inquestion was classified as ‘Johad’, it neither fell within any catchmentarea, nor did water ever collect there and there was no natural waterreservoir on the subject land. The court opined that looking at thetopography of the area, the site in question did not have use for anyother purpose at all. In fact, the said site selected for mining, hadcommercially viable lime stone deposits and the selection was madeafter due consultation with the Gram Panchayat, Baswa. Thus, therewas no justification for turning down the fact-finding Reports filed bythe Tehsildar, Land Records, Nawalgarh, regarding the status of theland. In fact, the said Reports had been duly accepted by the appellant–State Government.

3.7 The impugned judgment went on to record that in AbdulRahman’s case[4], referred to by the learned Single Judge, the Court hadonly directed the State Government to chalk out a plan for restoration ofthe catchment areas to their original shape. The said judgment did notprohibit alienation of the property held as a public trust except forhighlighting the fact that any such alienation would require a higher degreeof judicial scrutiny, thus creating a balance between the Doctrine ofPublic Trust and the Doctrine of Sustainable Development. It wasobserved that a pragmatic view ought to be taken in the matter, more so,when the area classified as ‘Johad’, did not fall in any catchment area,nor was there any natural water reservoir for it to be declassified fromthe category of ‘Johad’ to ‘Sawai Chak’ land.

4. Mr. Milind Kumar, learned Standing Counsel appearing for theappellant–State Government has assailed the impugned judgment bysubmitting that the same runs contrary to the judgment of the High Courtin Abdul Rehman’s case[4] where it has been held by the Division Benchthat no right can be given to use Nadi land or other water bodies forconstruction activity and that catchment of pond/water reservoir shallnot be allotted for any personal/commercial purposes; that utilizing the‘Johad’ land for commercial purpose may cause environmental damage;that the High Court has erred in placing reliance on Director General,Research and Development[5]; that there are decisions of this Court as A

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Ain Vellore Citizens’ Welfare Forum v. Union of India and Others[6],A.P Pollution Control Board v. Prof. M. V. Nayudu (Retd.) AndOthers[7], Lafarge Umiam Mining Private Limited (Applicant) in T.N.Godarvarman Thirumulpad v. Union of India and Others[8],Electrotherm (India) Limited v. Patel Vipulkumar Ramjibhaiand others[9], Common Cause v. Union of India[10], AlembicBPharmaceuticals Limited v. Rohit Prajapati and Others[11] that havehighlighted the use of precautionary principle in environmental mattersand held that the burden of proof is on the project proponent who isproposing to alter the status quo or impact the environment. Referencewas also sought to be placed on the judgment of this Court in JagpalCSingh and Others v. State of Punjab and Others[12], where directionswere issued to all State Governments to prepare schemes for eviction ofillegal occupants of Gram Sabha land and for restoration of the said landfor common use of the villagers of the area. Learned counsel for theappellant–State Government went on to refer some additional documentsfiled recently, in particular, letter dated 07[th] July, 2014, addressed by theDTehsildar, Nawalgarh to the District Collector which mentioned the statusof land in one of the four villages identified as mining area in districtJhunjhunu, namely Village Baswa and stated that in some khasra numbersof the said village, there exists a pucca pond which acts as a catchmentarea of rain water. Some circulars issued by the State Government have

Ealso been cited which state that all the allotments which were recordedin the revenue records as nala, river, pond, dam or embankment after1955 and were converted by changing the land classification fromagricultural purpose to non-agricultural purpose, be referred to thecompetent Court with the relevant facts for classification of allotment.F5. The aforesaid submissions have been repelled by Mr. Hiren P.Raval, Senior Advocate appearing for the respondent–Company whosubmitted that the present appeal is not maintainable when the appellant–State Government has already given its in-principle consent for therespondent–Company to use the subject land for mining purpose subject G6 (1996) 5 SCC 6477 (1999) 2 SCC 7188 (2011) 7 SCC 3389 (2016) 9 SCC 30010 (2017) 9 SCC 49911 (2020) 17 SCC 157H12 (2011) 11 SCC 396

to obtaining a No Objection Certificate from the High Court. Once theHigh Court has given a No Objection Certificate in terms of the viewexpressed in the impugned judgment, there was no occasion to file thepresent appeal. On merits, it was submitted that there is no good reasonfor the appellant–State Government to have refused to rectify the errorin the revenue records in respect of the classification of the parcel ofland, part of which has been wrongly classified as ‘Gair-Mumkin Johad’i.e. reservoir land, despite the fact that the Tehsildar, Nawalgarh and theDistrict Collector, Jhunjhunu submitted two Reports stating inter aliathat there was no water reservoir on the subject land at any point intime. To substantiate the said submissions, learned counsel referred tothe two Reports submitted by the Tehsildar, Nawalgarh dated 19[th]/27[th]April, 2011 and 25[th ]November, 2012/5[th] December, 2012. He also tookthis Court through the recommendations made by the District Collector,Jhunjhunu calling upon the State Government to examine the matter andpass appropriate orders. In particular, he referred to the letters dated19[th] December, 2012 and 26[th], February, 2013, addressed by the DistrictCollector, Jhunjhunu to the Deputy Secretary, Revenue Department ofthe State Government recommending change of class of the land in therevenue records from ‘Gair-Mumkin Johad’ to ‘Sawai Chak’ land, onthe basis of the certificates issued by the Tehsildar, Nawalgarh. Learnedcounsel pointed out that at no stage has the appellant–State Governmentdisputed the Reports of the Tehsildar or the recommendations made bythe District Collector. Instead, it has been harping on the judgment of theDivision Bench of the High Court of Rajasthan in Abdul Rehman’scase[4], without appreciating that the said judgment has not declared thatalienation of property held as a public trust, is totally prohibited. It wassubmitted that the fact situations of each case would have to be examinedbefore taking a decision and in the instant case, it is not disputed by theappellant–State Government that the subject land does not fall in anycatchment area, water does not collect there and there is no naturalwater reservoir on the land. In all this back and forth that commenced inthe year 2000 and is continuing till now, the environment clearancesissued in favour of the respondent–Company are going to lapse at theend of the year 2022, which would automatically result in cancellation ofthe LOI issued by the appellant–State Government, thus, leaving therespondent–Company high and dry for no fault attributable to it. It wastherefore urged that the impugned judgment does not deserve to beinterfered with, as it is based on fact finding Reports submitted by the ABC

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Arevenue authorities that have not been questioned by the appellant–StateGovernment till date.

6. We have heard the arguments advanced by the learned counselfor the parties, perused the impugned judgment and the documents placedon record. The only issue that arises for the consideration of this CourtBis that once an in-principle consent has already been accorded by theappellant–State Government for reservation and allocation of the subjectland under the mining lease in favour of the respondent–Company for itto set up a cement plant and the condition inserted in the approval letterdated 23[rd] February, 2012 that the respondent–Company should producea No Objection Certificate/order from the High Court permitting allocationCof ‘Gair–Mumkin Johad’ land stands satisfied by virtue of the impugnedjudgment, would a challenge still lie against the same at the instance ofthe appellant–State Government?

7. A perusal of the impugned judgment indicates the followingfactors that have weighed with the High Court for allowing the appealDpreferred by the respondent–Company :- (a)That the Tehsildar, Nawalgarh had made a physical spotinspection of the subject land in question and submitted adetailed Report to the District Collector, Jhunjhunu on19[th] April, 2011 stating that the subject land, classified as aE‘Johad’ neither fell in the catchment area, nor did waterever collect there and that no natural source of water existedon the subject land;That the subject land was again inspectedby the Tehsildar, Land Records, Nawalgarh, who sent aReport to the District Collector, Jhunjhunu on 25[th] November,F2012 / 05[th] December, 2012 stating inter alia that there isno natural water body on the subject land and the ‘Gair-Mumkin Johad’ falling under the proposed mining leasearea, does not fall within the water logging area or thecatchment area. Therefore, a recommendation was madefor change of the class of land and for recording it as ‘SawaiGChak’ land; (b)That the District Collector, Jhunjhunu made hisrecommendations on two different occasions to the StateGovernment for issuing necessary orders to correct therevenue records and change the classification of the landHto be recorded as ‘Sawai Chak’ land.

THE STATE OF RAJASTHAN AND ANOTHER v. ULTRATECHCEMENT LTD. [HIMA KOHLI, J.]

(c) That on receiving a communication dated 01[st] February,A2013 from the State Government calling upon him to re-examine the matter and pass appropriate orders, the DistrictCollector, Jhunjhunu had once again made arecommendation vide letter dated 26[th] February, 2013, thatnecessary orders for correction of the revenue records oughtBto be made in the instant case; (d)That the Gram Panchayat Baswa, Tehsil Nawalgarh, DistrictJhunjhunu passed Resolution No.21 dated 03[rd] February,2011, stating that no water had ever accumulated in thesubject land and the Gram Panchayat had no objection ingranting the said land classified as ‘Johad’, to therespondent–Company for mining lease purposes, subject tothe Company giving equal measure of developed land tothe Gram Panchayat in the same village; C

(e) the Court took note of the undertaking given by therespondent–Company in the writ proceedings for initiatingthe following activities for the benefit of the surroundingvillages –

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(i) Equal and alternate land to be developed as ‘Johad’ inplace of ‘Johad’ land in the mining activity area in thesame village so that villagers could benefit from thebasic amenities.

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(ii) Creation of a water reservoir in the mined out area.

(iii) Development of water harvesting structures foraugmenting ground water recharging in the area.

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(iv) Initiation of CSR activities in the surrounding villages.

(f) The respondent–Company gave an undertaking before theCourt that development of the site for alternate ‘Johad’would be done in a planned manner where the catchmentarea, water harvesting structures and cattle grazing landwould be developed. The Company also undertook toconvert Dug-cum-Bore Well (DCB Well) into injection wellsin order to develop suitable drainage pattern foraugmentation of ground water table; G

A8. It is a matter of record that the appellant–State Governmenthas not questioned the Reports prepared by the Tehsildar, Nawalgarhafter making spot inspection on two occasions. The position remains thesame even as of now. The first Report was prepared by the Tehsildar on19[th]/27[th] April, 2011 and the second one on 25[th] November, 2012/05[th]December, 2012. Both the Reports were categorical in their findingsBthat there was no natural water body on the subject land classified as a‘Johad’ and that the subject land neither fell in the catchment area, nordid water ever collect there and there was no natural source of waterthat existed on the subject land. That being the position, we see no reasonto permit learned counsel for the appellant–State Government to rely onCa communication dated 02[nd] July, 2014, addressed by the Tehsildar tothe District Collector, in respect of a part of the subject land falling invillage Baswa to urge that there exists a pucca pond at some spots,more so when there is no explanation for not filing the documents. Theaforesaid communication could have easily been filed by the appellant–State Government before the High Court at the appropriate stage, wellDbefore the date of passing of the impugned judgment. Nothing preventedthe appellant–State Government from producing the relevant photographsof the purported pucca pond existing at some spots within village Baswa.It is not the case of the appellant–State Government that the earlierReports submitted by the Tehsildar, Nawalgarh after conducting aEphysical spot inspection had been manipulated or prepared in a malafide manner, nor is there any averment made in the appeal thatdepartmental action was initiated against the then Tehsildar, Nawalgarhfor having prepared incorrect Reports of the spot inspection. Given thesaid position, there is no reason to discard the two Inspection Reportsprepared by the Tehsildar, Nawalgarh that form a part of the record.FBoth the said Reports have stated in clear terms that there is no naturalwater body on the subject land and the ‘Gair–Mumkin Johad’ fallingunder the proposed mining lease area does not fall within the waterlogging area or the catchment area. We, therefore, decline to give anyweightage to the letter dated 07[th] July, 2014 addressed by the Tehsildar,GNawalgarh to the District Collector, Jhunjhunu.

9. The Circulars dated 26[th] June, 2012, 17[th] April, 2013 and 26[th]July, 2017 issued by the Revenue Department can also not be of anyassistance to the appellant–State Government, for the simple reasonthat the said circulars came to be issued in compliance of the judgmentsHof the High Court and this Court directing removal of encroachment

from the Gram Panchayat land and eviction of unauthorized occupantstherefrom. The present case does not fall in the above categories for thesimple reason that the respondent–Company has applied through properchannel for allotment of land for mining purpose; it has received requisiteenvironment clearances followed by LOIs issued by the appellant–StateGovernment. Armed with the necessary approvals from the StateGovernment for reservation and allocation of land falling under mininglease area, the respondent–Company had approached the revenueauthorities for setting up a plant on the subject land and requested thatnecessary changes be made in the revenue records pertaining to landdescribed as ‘Johad’ at certain spots, where in fact, no ‘Johad’ actuallyexisted. In this context, the recommendations made by the DistrictCollector, Jhunjhunu gain significance. The first letter in this regard wasaddressed by the District Collector to the Deputy Secretary, RevenueDepartment of the appellant–State Government on 19[th] December, 2012,relevant extract whereof is reproduced hereinbelow:

“When a site inspection report in this connection was soughtfrom Tehsildar, Nawalgarh, he informed vide his letter No.2501dated 5.12.12 that there is a government primary school buildingon the gair-mumkin Johad land of Khasra No.493 area 3.96hectare, Khasra No.546 raqba 16. 73 hectare, Khasra No.608raqba 17.55 hectare, Khasra No.649 raqba 4.81 hectare, KhasraNo.1304/493 raqba 0.14 hectare and Khasra No.1316/ 608 raqba0.11 hectare land situated in village Basawa and rest of the landdoes not come within the catchment area. Land of the abovementioned Khasra Numbers does not have any natural waterreservoir, nor it is in the catchment area. Tehsildar, Nawalgarhhas recommended to change its class and declare it Sivaychakland.

In perspective of the above decisions of Hon’ble RajasthanHigh Court and enclosing herewith the Tehsildar Report attachedwith letter No.2501 dated 5.12.12 (copy enclosed) and copy ofthe enclosed Jamabandi for Samvat 2067-2070, it is submittedthat Tehsildar’s report has been analyzed and I am satisfied withthe report. As per the site inspection report of the Gair-mumkinJohad land of Khasra No.493 area 3.96 hectare, Khasra No.546raqba 16.73 hectare, Khasra No.608 raqba 17.55 hectare, KhasraNo.649 raqba 4.81 hectare, Khasra No.1304/4 93 raqba 0.14

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Ahectare and Khasra No.1316/608 raqba 0.11 hectare land situatedin village Basawa, there is a government primary school on 0.10hectare land out of 16.73 hectare of Khasra No.546 it isrecommended that class of the above land may be changed andallocated to M/s Ultratech Cement Limited Co. in accordancewith law.”B

A

10. After receiving the aforesaid letter, the Secretary, RevenueDepartment addressed a letter dated 1[st] February, 2013 to the DistrictCollector, Jhunjhunu clearly stating inter alia that only he as the ‘DistrictCollector’ must certify whether the land in question is a ‘Johad’ land ornot and the said certification is not to be done by the State Government.CTherefore, the District Collector was directed to visit the site himselfand inquire into the matter and then issue appropriate orders. Incompliance of the said directions, the District Collector wrote anotherletter dated 26[th] February, 2013 to the Deputy Secretary, RevenueDepartment, reiterating that the revenue records do not record any waterDreservoir in the relevant khasra numbers of the subject land and it was inthis background that letter dated 19[th] December, 2012 had been issuedby him recommending change of class of the land on the basis of thecertification of the Tehsildar, Nawalgarh in the revenue records. It wasagain stated by the District Collector that in the light of the Report of theTehsildar and the copies of old and current revenue records, orders mayEbe issued by the State Government with regard to change of class of theproposed land that was entered into revenue records as ‘Johad’.

11. The aforesaid material has been examined at length in theimpugned judgment. The High Court has also taken note of the Resolutionpassed by the Gram Panchayat, village Baswa and the certificate issuedFby the Gram Panchayat which records that no water had everaccumulated on the subject land and the Gram Panchayat did not haveany objection to the said land being granted to the respondent–Companyfor mining lease purpose subject to the condition that it would be receivingan equal measure of developed land in the same village from theGrespondent–Company in view of the land being consumed for mininglease purpose. The respondent–Company has also given undertakingsto the High Court that the environment of the village will not be adverselyimpacted and the ecological balance shall be maintained. One of theundertakings given by the respondent–Company is that the site identifiedfor development of an alternate ‘Johad’ would be identified and developed H

in a planned manner, so as to create a catchment area, water harvestingstructure and cattle grazing land.

12. Given the above background, reliance placed by learned counselfor the appellant–State Government on the judgments cited by him, isfound to be misplaced. In Vellore Citizens’ Welfare Forum[6]and A.PPollution Control Board[7], this Court recognized the requirement ofreconciliation between the concept of development and ecology as afacet of sustainable development. The relevant Articles of the Constitutionof India including Articles 21, 47, 48-A, 51-A (g) that protect and improvethe environment have been highlighted and the Precautionary Principleand Polluter-Pays Principle have been declared to be a part of theenvironmental law of the country. It has also been accepted that theburden of proof should lie on the entity proposing an activity that ispotentially harmful to the environment. There can be no quarrel with theabove position, but neither of the aforesaid judgments are relevant in thefacts and circumstances of the instant case, inasmuch as no burden hasbeen placed on the respondent–Company to demonstrate that the industryproposed to be set up by it, shall not cause any serious and/or irreversibleharm to the ecology of the area. On the contrary, it is the stand of theRevenue Department of the appellant–State Government itself that thereis no likelihood of any damage to the ecology of the area as the spotinspections reveal that there is no pond existing on the subject land thatmay be impacted adversely.

13. In Narmada Bachao Andolan v. Union of India[13], this Courthad the occasion to discuss the Precautionary Principle and it was heldthat the said principle and the corresponding burden of proof on theperson who wants to change the status quo, will ordinarily apply in thecase of polluting or other projects or industry where the extent of damagelikely to be inflicted, is not known. But when the effect of the project isknown, then the principles of sustainable development would come intoplay which will ensure that mitigative steps can be taken to preserve theecological balance. In the present case, there is no such uncertainty dueto lack of availability of data or scientific material about the damage ifany, likely to be caused to the ecological balance of the area. Instead,detailed spot inspections have been conducted by the revenue authoritiesfrom time to time that establish that there is no ‘Johad’ existing on thesubject land. Despite that, the respondent–Company has been directed A

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Ato develop an alternate ‘Johad’ in a planned manner at the same area,as a mitigative step which it has undertaken to execute.

14. In Lafarge Umiam Mining Private Limited[8], this Court hasrecognized the fact that the environment has different facets and universaldependence of humans for the use of environmental resources for theBmost basic needs, inescapably requires choices to be made at differentlevels on environmental protection and factor in the risks which are tobe regulated, as recognized by the concept of sustainable development.Conceding that it is impossible to lay down ‘across-the-board’ principlesand much would depend on the facts of each case, this Court opinedthat what was required to be seen was how much protection would beCsufficient and whether ends would be served by diverting resources toother uses and at the same time, strike a fine balance betweenenvironmental protection and environmental risk. No such fine balanceis required to be struck in the instant case when admittedly, the spotinspections show that there does not exist any ‘Johad’ on the subjectDland that is likely to be affected on account of the change proposed inthe revenue records.

15. The directions issued in Jagpal Singh’s case[12]calling uponState Governments to prepare a scheme for eviction of illegal/unauthorized occupants of Gram Sabha land also do not come in theEway of the respondent–Company. The purpose of the said direction wasto prepare a scheme for removal of illegal occupants expeditiously. Thisdoes not prevent the respondent–Company from approaching the Courtfor correction in the revenue records when the site inspection Reportsprepared by the Revenue Authorities show that there is no water bodyor catchment area on the subject land.

F

16. The focus in the case of Electrotherm (India) Limited[9 ]wason conducting public hearings as a mandatory requirement of theenvironmental clearance process and the Court has frowned upon doingaway with public hearings in the course of the decision-making process.In the case of Common Cause[10], this Court was seized of the aspect ofGillegal/unlawful mining in the State of Odisha and it was observed thatCourts cannot interfere with the Mining Policy or lay down limits on theextent of mining activity that should be permitted by the State/CentralGovernment. The said decision does not have any application to thefacts of the instant case where the appellant–State Government hasHalready given an in-principle consent for setting up a cement plant in favour of the respondent–Company and the High Court was only requiredto examine the aspect of correction in the revenue records in relation tothe subject land where a ‘Johad’ was mentioned, but none existed atsite.

17. In Alembic Pharmaceuticals’ case[11], the issue before thisCourt was with respect to the operation of industries without obtainingprior environmental clearance for a long time and their liability on accountof such non-compliance. Noting that the industries had evaded the legallybinding regime of obtaining environment clearance, it was held thatpenalty must be imposed on them for disobedience and non-complianceof the rules and regulations. Here, the respondent–Company hasadmittedly received environmental clearances and in spite of the same,its project has not taken off due to various hurdles created by theappellant–State Government. Clearly, the present case is not one ofbreach of any norms for imposition of penalty on the respondent–Company.

18. Even the judgment of the Division Bench of the RajasthanHigh Court in the case of Abdul Rehman[4]is being completely misreadby the appellant–State Government. The focus in the said judgment wason the restoration of the catchment area to its original shape for which aplan was directed to be drawn up which included demarcation of thecatchment areas, demarcation of drainage channels etc. Nowhere inthe said judgment has it been observed that the description of a land asa pond in the revenue records, when no pond exists on site, cannot becorrected after conducting a spot inspection. We are inclined to acceptthe submission made by learned counsel for the respondent–Companythat in the absence of any pond at the spot, the decision rendered in thecase of Abdul Rehman[4] cannot be an impediment for processing theapplication of the respondent–Company for allocation of the subject land,for setting up a cement plant. The High Court has rightly referred to thedecision of this Court in Director General, Research andDevelopment[5], where noting the fact that there was no ‘Gair-Mumkin’Nadi existing on the spot, it was observed that the decision of the HighCourt in Abdul Rahman[4 ]will not come in the way of allotting the land tothe petitioner.

19. For the aforesaid reasons, we concur with the findings returnedin the impugned judgment which is upheld. The appellant–StateGovernment is directed to take necessary steps to process the allotment A

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Aof the subject land in favour of the respondent–Company within fourweeks from today. The respondent–Company shall file a freshundertaking with the State Government, within the same timeline, aswas filed by it before the High Court, for initiating time bound activitiesfor the benefit of the surrounding villages, as compensatory measuresfor the allocation of the subject land.B

The appeal is dismissed while leaving the parties to bear theirown expenses.

C

Ankit Gyan

Appeal dismissed.

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