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Friday, May 9, 2014

Mansagar Lake - Development scheme on private partnership - lease executed for 99 years - Pils - High court set aside the lease agreement for 99 years and directed to restore back the entire land to the Govt. at his costs - Apex court set aside the High court order and held that since it is public policy Courts should not interfere unless tainted with malafides and on substance less allegations - A Govt. can not create 99 years lease as it leads to perpetual lease - lease period is restricted to 30 years with renewal option , if not extended govt. has to give costs of structures - 30 is to be counter from the date of judgment of Apex court - with some modifications allowed the appeal partly = Jal Mahal Resorts P. Ltd. ..Appellant Versus K.P. Sharma & Ors. ..Respondents = 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41512

   Mansagar Lake - Development scheme on private partnership - lease executed for 99 years - Pils - High court set aside the lease agreement for 99 years and directed to restore back the entire land to the Govt. at his costs - Apex court  set aside the High court order and held that since it is public policy Courts should not interfere unless tainted with malafides and on substance less allegations - A Govt. can not create 99 years lease as it leads to perpetual lease - lease period is restricted to 30 years with renewal option , if not extended govt. has to give costs of structures - 30 is to be counter from the date of judgment of Apex court - with some modifications allowed the appeal partly =

the Mansagar Lake  was a man-made  lake  on
the northern fringe of Jaipur city.  Within the  lake a  pleasure   pavilion
called Jal Mahal was  constructed by the erstwhile  rulers of Jaipur in  the
18th century and this  structure   is still existing  in the  midst  of  the
lake.

 PILs -  whereby the Division Bench of the High Court was pleased  to

cancel an Environment  and  Monument  Improvement/Preservation  and  Tourism
Development Project at Jaipur by declaring  it  as  illegal  which  was
awarded to the petitioner/appellant  Jal Mahal Resorts Private Limited   via
global tender floated in  2003  and   finally  granted  in  2005  after  all
requisite approvals as per the petitioner/appellant under the  Environmental
  Law  including  Environment  Impact  Assessment  under   the   Environment
Protection Act and the Notifications  issued  thereunder  of  the  Rajasthan
Pollution Control Board.  However,  in  view  of  the  cancellation  of  the
project, the High Court has directed   immediate   dismantling
and removal of the entire project and diversion of the two drains which  was
done to  purify waters of  a man made artificial water body and detritus.
= resultantly  the Mansagar Lake Precincts   Lease
Agreement dated 22.11.2005 awarding  100  acres  of  land  on  lease  for  a
period  of 99 years to the respondent No.7/the appellant  herein/  M/s.  Jal
Mahal  Resorts  Private  Limited  was  declared  illegal  and  void.
As  a
consequence   of the same, the appellant Jal Mahal  Resorts Private  Limited
 has  been directed  to bear costs  to be incurred  in  restoration  of  the
original position  of 100 acres of  land in removing  the soil filled in  by
it  and to restore  back the  possession of land to the  Rajasthan   Tourism
Development Corporation (‘RTDC’ for short)   which in turn  will  hand  over
the  land  to  Jaipur  Development  Authority   (‘JDA’  for  short),  Jaipur
Municipal Corporation ( ‘JMC’ for short)  and the State of  Rajasthan.   
The
appellant  has  further   been  directed   to   immediately    remove    all
sedimentation  and settling tanks  from the  Mansagar  Lake  Basin   and  to
realize  costs  from M/s. Jal Mahal Resorts Private Limited and  to  examine
restoring  position of Nagtalai  and  Brahampuri   Nala  (drains)  to  their
original   position    as  redesigned  by    RUIDP   under   Mansagar   Lake
Restoration Plan in consultation with  the  Ministry   of  Environment   and
Forests (‘MoEF’ for  short) of  the  Central  Government.    
The  respondent
authorities of the State of  Rajasthan   have  been  further   directed   to
monitor, maintain and refix  boundaries  of the Mansagar Lake  in  its  full
original  length, breadth  and  depth  in  consultation  with  the  MoEF  of
Central  Government  and  not  to   reduce    normal   water   level.    
All
encroachments made in the attachment area of  the  Mansagar Lake  have  been
ordered to be removed  immediately and the  control erected   by   appellant
M/s. Jal Mahal  Resorts Private Limited into the  lake   is  ordered  to  be
dismantled and costs have been  ordered to be realized from  the   appellant
M/s. Jal Mahal Resorts Private Limited.  
All the three writ  petitions  were thus disposed of by the High Court.=
It is not the function of a judge to act as a super board, or with the
      zeal of a pedantic schoolmaster substituting its judgment for that  of
      the administrator.  The result is a theory of review that  limits  the
      extent to which the discretion of the expert may be scrutinized by the
      non-expert judge. It was suggested that the alternative for the  court
      is to desist itself from interference on technical matters, where  all
      the advantages of expertise lie with the agencies.  If the court  were
      to review fully the decision of an expert body such as State Board  of
      Medical Examiners, ‘it would find itself wandering amid  the  maze  of
      therapeutics or boggling at the mysteries of the pharmacopoeia’.”



120.        Bearing the aforesaid aspects in mind, we  are  prone  to  infer
that the disputed area of the lease deed borne out from the  revenue  record
is clearly confined to14.15 acres plus 8.65 acres and the  balance  area  of
the lease deed could not have been interfered with so as to  set  aside  the
entire project.

121.        However, we have noted that the period of  the  lease  deed  had
been finally fixed as 99 years which in our view could not  have  been  done
by the State Government as that clearly  converts  the  lease  deed  into  a
perpetual lease.  In fact we have noted that when  the  tender  was  floated
for granting the lease deed, the maximum period for the lease  deed  as  per
the Rule could not have been more than 30 years yet the tender  was  floated
for a period of 60 years which was later extended to 99 years.  This in  our
view could not have been done by the State Government as one can infer  even
at a glance that the same being  contrary  to  the  rules,  could  not  have
granted it for a period of 99 years.

122.        We, therefore, set aside the period  of  lease  which  has  been
granted in favour of the appellant for a period of 99  years  and  the  same
shall stand reduced to a period of 30 years only which could be the  maximum
period of the lease  for  the  land  under  the  rules  which  should  start
ordinarily from the date of its execution so as to expire on or  before  the
period of 30 years.  But we are conscious of the fact  that  much  time  has
lapsed after execution of the lease deed in 2005 due to which  only  Phase-I
of the project could start after which it got stuck and the project is in  a
state of limbo due to delay on account of  the  litigation  started  at  the
behest of the respondent/PIL petitioners who questioned the validity of  the
lease deed executed and finally succeeded in getting it set aside.  We  are,
therefore, of the  view  that  the  lease  deed  which  could  not  be  made
effective in view of the intervening litigation due  to  which  the  Project
got delayed, it is legally just and appropriate to direct  that  the  period
of 30 years of the lease  shall  now  be  counted  from  the  date  of  this
judgment and order.

123.        We are further of the view that on or after expiry of  30  years
to be counted from the date of this judgment and order, if  for  any  reason
whatsoever the lease deed is not renewed in favour of  the  lessee/appellant
or the appellant chooses not to seek its renewal,  the  appellant  shall  be
adequately  compensated  for  the  property  and  structure   which   stands
developed at the instance of the appellant during the period when the  lease
subsisted in its favour.  Subsequently, however, as to  what  would  be  the
adequate period of lease to be granted in favour of the existing  or  a  new
lessee obviously  would  be  determined  by  the  State  Government  at  the
relevant time but in so far as the instant  lease  deed  is  concerned,  the
existing period of 99 years shall stand decreased to 30 years to be  counted
from the date of judgment and order of this Court.

124.        Thus the lease deed although was executed for  a  period  of  99
years shall pursuant to this decision, run for a period of  30  years  which
shall commence from the date of this judgment and order and may be  extended
by the State Government for such other period as may be  considered  legally
viable based on the rules  and  regulations  at  the  relevant  period.   We
further add in the interest of justice, that after expiry  of  30  years  of
lease period and in case the lease deed is not  renewed  in  favour  of  the
appellant, the State Government  shall  compensate  the  appellants  at  the
market value of the project including compensation for the loss of  business
and profit.  It is clarified that in the event of any dispute  arising  with
respect to quantum of compensation, it  may  be  resolved  by  availing  the
remedy of arbitration mechanism provided in the lease deed.

125.        We are informed that the first phase of  the  Project  has  been
completed  since  February,  2011.   It  is  therefore  directed  that   the
completion certificate and the  lease  agreement  for  the  first  phase  be
issued expeditiously but not later than a period of 30 days  from  the  date
of receipt of this order.  Accordingly, the  State  Government  shall  issue
the restoration completion certificate for Phase I  to  enable  the  Project
alongwith the Jal Mahal Monument as per the Lease Deed, to  open  for  entry
and visit of the members of  the  public.   Upon  issuance  of  the  phase–I
certificate, the project  developer/lessee/appellant  shall  be  allowed  to
undertake the construction as per the approved plan in terms  of  the  lease
deed.

126.        We further hold that the area of 8.65  acres  equivalent  to  13
bighas and 17 biswas shall not form part of the lease hold area  as  already
stated  hereinabove  and  the  same  shall  stand  re-transferred   to   the
Government of Rajasthan which shall be recarved and added to the  lake  area
and the same shall be maintained by the competent authorities of the  State.
 However, the area of 14.15 acres equivalent to  22  bighas  and  17  biswas
although shall be notionally treated as part of the  lease  deed,  the  said
area shall be treated as a construction free zone which will be  allowed  to
be used as a walkway/ the  public  promenade  free  of  any  charge  at  the
instance of the lessor and  the  lessee.   Remaining  portion  of  the  land
forming part of the lease deed  shall  remain  intact  to  be  used  by  the
appellant as per  the  terms  and  conditions  of  the  lease  deed  already
executed.  However by way of abundant  caution,  we  clarify  that  Mansagar
Lake Restoration Project if undertaken by  the  State  or  the  Ministry  of
Environment, the same shall not get affected by virtue of the lease deed  in
any manner.
127.        It is further held that since the land which is a  part  of  the
lease hold area barring 2 chunks viz. 8.65 acres equivalent to 13 Bighas  17
Biswas of land and 14.15 acres of land approximately 22  Bighas  10  Biswas,
in all 35 bighas and 27 biswas equivalent to 22.80 acres, the Wetland  Rules
of 2010 shall not apply to  the  project  since  environment  clearance  had
already been issued under PIA 2006 prior to commencement of the project.  In
any view the lease hold area barring the land equivalent to  35  bighas  and
27 biswas having not been held as wetland or  lakebed  as  per  the  revenue
record as also the fact that it was available for development way back  from
1982 which gets established from the various Master Plans of Jaipur and  the
historical background referred  to  hereinbefore,  no  dispute  relating  to
application of the  Wetland  Rules  2010  shall  be  allowed  to  be  raised
hereinafter with retrospective effect in regard to the lease  hold  area  of
the land which has been granted for development of  the  project  and  could
not be proved to be wetland barring 22.80 acres equivalent to 35 bighas  and
17 biswas.  It is further clear by  now  that  the  project  comprising  the
lease hold land is not in conflict with the development of lake area or  Jal
Mahal monument so as to raise issues or concern regarding the lake  area  or
environment degradation as restoration and maintenance of Jal  Mahal  cannot
possibly disturb the monument or lead to environmental degradation.  In  any
view, the dispute being confined to the lease hold area for  development  of
the project which we have now resolved, we direct that the  appellant/lessee
shall be entitled to re-start the project forthwith subject to what we  have
recorded hereinbefore.
128.        The judgment and order of the High  Court  thus  stands  quashed
and set aside to the extent by which  the  lease  deed  has  been  cancelled
except an area of 13 bighas 17 biswas  equivalent  to  8.65  acres  and  the
balance disputed area claimed to be lake bed comprising  14.15  acres  shall
be notionally treated as part of the lease deed but the same shall remain  a
construction free zone where neither the State Government of  Rajasthan  nor
the appellant-lessee/Jal Mahal Resorts Pvt. Ltd. shall  have  the  right  to
raise any construction on this area as the  same  shall  remain  exclusively
for the use of public promenade / walkway free of charge.
129.        In view of the analysis made hereinbefore, these  appeals  stand
partly    allowed   to   the   extent  indicated  hereinabove  but  in   the
circumstance, the parties are directed to bear their own costs.
2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41512
GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE
                                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELALTE JURISDICTION

                        CIVIL APPEAL NO.4912 OF 2014
                   (Arising out of SLP (Civil) 17701/2012)

Jal Mahal   Resorts P. Ltd.                        ..Appellant
                                   Versus
K.P. Sharma & Ors.                                ..Respondents
                                    With
                        CIVIL APPEAL NO.4913  OF 2014
                   (Arising out of SLP (Civil) 19239/2012)

                                     AND

                        CIVIL APPEAL NO.4914  OF 2014
                   (Arising out of SLP (Civil) 19240/2012)


                               J U D G M E N T

GYAN SUDHA MISRA, J.

        1.        Leave granted.
2.          These appeals by  way  of  special  leave  have  been  preferred
against the common judgment and final order dated 17.5.2012  passed  by  the
High Court of Judicature  for Rajasthan at Jaipur  Bench,  Jaipur  in  three
public interest litigation petitions filed by the petitioners  K.P.  Sharma,
Dharohar  Bachao  Samiti,  Rajasthan  and  Heritage   Preservation   Society
respectively against the State of  Rajasthan  and  the  beneficiary  of  the
project  who  was  respondent  No.7  in  the  High  Court  and  is  now  the
petitioner/appellant in Civil Appeal (arising out of  SLP(c)  No.17701/2012.
The three petitions were D.B. Civil Writ (PIL) Petition  No.6039/2011,  D.B.
Civil Writ (PIL) Petition No.5039/2010 and D.B. Civil  Writ  (PIL)  Petition
No.4860 of 2010 whereby the Division Bench of the High Court was pleased  to
cancel an Environment  and  Monument  Improvement/Preservation  and  Tourism
Development Project at Jaipur      by declaring  it  as  illegal  which  was
awarded to the petitioner/appellant  Jal Mahal Resorts Private Limited   via
global tender floated in  2003  and   finally  granted  in  2005  after  all
requisite approvals as per the petitioner/appellant under the  Environmental
  Law  including  Environment  Impact  Assessment  under   the   Environment
Protection Act and the Notifications  issued  thereunder  of  the  Rajasthan
Pollution Control Board.  However,  in  view  of  the  cancellation  of  the
project, the High Court has directed   immediate   dismantling
and removal of the entire project and diversion of the two drains which  was
done to  purify waters of  a man made artificial water body and detritus.

3.           Other  three  Special  Leave  Petition  bearing   SLP   (Civil)
Nos.22467/2012, 22820/2012 and 24341/2012 had also  been  preferred  by  the
State of Rajasthan challenging the impugned judgment  and order of the  High
Court referred to hereinbefore.   But  after   the  arguments  were  finally
advanced  by  the  learned  Attorney  General   and  the  same   also  stood
concluded, permission of this Court was sought  by the  senior  counsel  Sri
Jaydeep Gupta to withdraw these special leave petitions filed by  the  State
of  Rajasthan  which  were  permitted  by  this  Court  vide   order   dated
05.02.2014.  The petitions preferred by the  State  of  Rajasthan  assailing
the  impugned  judgment  and  order  thus  stand  dismissed  as   withdrawn.
However, Sri Gupta submitted that he can still address the  Court  on  merit
in the connected special  leave petitions bearing SLP (Civil)  Nos.17701  of
2012, 19239/2012 and 19240/2012 preferred by  the  petitioner/appellant  Jal
Mahal Resorts Pvt. Ltd. & Ors. against the PIL petitioners before  the  High
Court since the State of Rajasthan is still  a  party  respondent  in  these
matters and hence it can support or oppose the  impugned  judgment   of  the
High Court in spite of withdrawal of the special  leave  petition  filed  by
the State assailing the judgment and order of the High Court.   However,  at
this juncture  we refrain from  expressing  further on its  implication  and
would deal  with the same,  if necessary,  at the appropriate  stage.

4.          In so far as the appeals preferred by   the  appellant-M/s.  Jal
Mahal Resorts Private Limited is  concerned,   we  have  noticed   that  the
appeal has been preferred  against the  common judgment  and  order  of  the
High Court under challenge herein whereby  the  writ  petitions  which  were
filed by the respondents as public interest  litigation  bearing   DB  (CWP)
No.6039/2011 entitled Prof. K.P. Sharma vs. State of Rajasthan  and  Ors  as
also DB (CWP) PIL  No. 5039/2010 entitled Dharohar Bachao  Samiti  Rajasthan
vs. State of Rajasthan and Ors.  as also the 3rd  writ petition  bearing  DB
(CWP)  PIL No. 4860/2010 entitled Heritage  Preservation  Society  Rajasthan
and Anr. vs. State of Rajasthan and Ors.  have been allowed by the  Division
Bench of the High Court and resultantly  the Mansagar Lake Precincts   Lease
Agreement dated 22.11.2005 awarding  100  acres  of  land  on  lease  for  a
period  of 99 years to the respondent No.7/the appellant  herein/  M/s.  Jal
Mahal  Resorts  Private  Limited  was  declared  illegal  and  void.   As  a
consequence   of the same, the appellant Jal Mahal  Resorts Private  Limited
 has  been directed  to bear costs  to be incurred  in  restoration  of  the
original position  of 100 acres of  land in removing  the soil filled in  by
it  and to restore  back the  possession of land to the  Rajasthan   Tourism
Development Corporation (‘RTDC’ for short)   which in turn  will  hand  over
the  land  to  Jaipur  Development  Authority   (‘JDA’  for  short),  Jaipur
Municipal Corporation ( ‘JMC’ for short)  and the State of  Rajasthan.   The
appellant  has  further   been  directed   to   immediately    remove    all
sedimentation  and settling tanks  from the  Mansagar  Lake  Basin   and  to
realize  costs  from M/s. Jal Mahal Resorts Private Limited and  to  examine
restoring  position of Nagtalai  and  Brahampuri   Nala  (drains)  to  their
original   position    as  redesigned  by    RUIDP   under   Mansagar   Lake
Restoration Plan in consultation with  the  Ministry   of  Environment   and
Forests (‘MoEF’ for  short) of  the  Central  Government.    The  respondent
authorities of the State of  Rajasthan   have  been  further   directed   to
monitor, maintain and refix  boundaries  of the Mansagar Lake  in  its  full
original  length, breadth  and  depth  in  consultation  with  the  MoEF  of
Central  Government  and  not  to   reduce    normal   water   level.    All
encroachments made in the attachment area of  the  Mansagar Lake  have  been
ordered to be removed  immediately and the  control erected   by   appellant
M/s. Jal Mahal  Resorts Private Limited into the  lake   is  ordered  to  be
dismantled and costs have been  ordered to be realized from  the   appellant
M/s. Jal Mahal Resorts Private Limited.  All the three writ  petitions  were
thus disposed of by the High Court.
5.          Before we deal with the respective case and counter case of  the
contesting parties,  it may  be relevant  and  appropriate   to   state  the
background of the matter giving rise to these appeals.  The  writ  petitions
which have been  dealt with by the High Court   had  been  filed  in  public
interest to quash Jal Mahal  Tourism  Project   and   cancel  Mansagar  Lake
Precincts  Lease Agreement dated 22.11.2005 giving 100  acres  of  land   on
lease for  a period of 99 years to the respondent No.7.   (appellant  herein
M/s. Jal Mahal Resorts Private Limited  and  Jal  Mahal  Lease  and  License
Agreement dated 22.11.2005).  In  Writ Petition   No.  6039/2011  which  was
filed by  Prof.  K.P. Sharma  prayer had    been  made  to  quash  approvals
and clearances  contained in the orders dated 16.9.2009  and  22.9.2009  and
to direct  the respondent  No.7/appellant  herein  M/s.  Jal  Mahal  Resorts
Private Limited to restore  the original position of 100 acres  of  land  by
removing  the soil   filled  in by it  at its own costs.

6.          The appellant  M/s.  Jal  Mahal  Resorts  Private  Limited   has
assailed the judgment and order of the High Court  on  several  grounds   to
be related hereinafter.  But before doing so it has related the factual  and
historical background of the matter giving rise to these appeals.   In  this
context, it has been stated that the Mansagar Lake  was a man-made  lake  on
the northern fringe of Jaipur city.  Within the  lake a  pleasure   pavilion
called Jal Mahal was  constructed by the erstwhile  rulers of Jaipur in  the
18th century and this  structure   is still existing  in the  midst  of  the
lake.  Tracing out the  historical background,  it has been stated  that  in
1962, the two main sewerage drains of the  walled city of  Jaipur   Nagtalai
and Brahmapuri were diverted  to empty into the water  body   which  led  to
its degeneration, siltation and settled  deposits   and  contaminations   to
such an extent   that it could not support aquatic  life nor  support  flora
and fauna  in the  surrounding areas.   The  water  body  was  covered  with
floating  hycinth  and its aquatic life and there were large scale death  of
fish  that had earlier survived and    led to a drastic  reduction   in  the
fauna  including  the  migratory birds that used to  flock in  the  vicinity
of the lake was on the  verge of extinction.  About  40%  of  the  catchment
area which covered approximately 23.5 Sq.Kms  was  dense  urban  population.
Towards  the   south  side  of  the  lake,    large  amounts  of  unintended
developments  and  encroachments  had  taken  place    thereby   drastically
increasing  the quantity of effluents discharged into the lake and also  put
other pressures by unconditional grazing of cattle  and  urban  development.
Jal Mahal had also  very substantially deteriorated  over a period  of  time
not only because of natural  process of degeneration  but  also  because  of
maintenance.  The monument was in a  dilapidated state and required  massive
restoration works.
7.          The deteriorating condition  of  the   Lake  and  the   Monument
compelled the  Government  to  find  ways  and  means  to  restore  the  two
components to their original glory.  Over a period  of  30  years   attempts
were made by various government  agencies and  departments  to  restore  the
ecological and environment  condition  of the lake and its  adjoining  area.
However, none of these attempts yielded very  positive  results  because  of
paucity of resources to take up and  sustain  the restoration.
8.          The Government of Rajasthan,  therefore,  decided  to  adopt  an
incentivized approach to restore the Lake and the Monument and  develop  the
precinct area on a  public  private  partnership  format.   To  improve  the
condition of the lake, the State of Rajasthan, in consultation with  experts
and after detailed surveys  and  analysis,  developed  a  holistic  approach
involving three components namely (i)  restoration of  Mansagar  Lake,  (ii)
restoration of Jal  Mahal  and  (iii)  development  of  tourism/recreational
components   at the lake precincts.  Thus, the third  component   visualized
development of the precincts  area of the  lake  which  comprised  of  about
100 acres of  land towards  the south  on a sustainable  development  model.
 It was, therefore, required that the lake and Jal  Mahal  be  restored  and
the lake precinct be developed for limited eco friendly  tourism  facilities
which would also provide funds for O & M of the lake on a continuous  basis.
 The benefits of this project was that it would result  in  the  restoration
of the Mansagar  Lake  and  the  Jal  Mahal  monument  and  there  would  be
consequent development of eco friendly tourism destinations with large  open
green  spaces  in  the  vicinity  of  the  lake  which  would  improve   the
environment and resultantly, the aesthetics and visual quality of the area.
9.          The Government,  therefore,  adopted  the  approach  of  public-
private partnership to the restoration and development of the  precincts  in
an  environmentally  conscious  way.    For        this   purpose,   project
conceptualization   was  chalked  out  and  the   project   structure    was
conceptualized after detailed studies over a number of years.  In  the  year
1999 a Detailed Feasibility Report (“DFR”) was prepared.   The  DFR  covered
architectural conservation and reuse of Jal  Mahal;  Ecological  Restoration
of the Lake along with  Development  of  surrounding  areas  for  integrated
tourism development and recreational facilities.  Approval to  the  DFR  was
accorded by Jaipur Municipal Corporation in November 2000.
10.        As a consequence of the aforesaid conceptualization, process  for
bidding started  which has been described   as  First  Bid  Process  by  the
appellant which started after publication  of  the  advertisement.   Request
for  Qualification  (“RFQ”)  was  released  in  December,  2000.   6   firms
responded and made submissions for qualification. In the  meantime,  Request
for Proposal (“RFP”)  document  was  prepared  by  the  Project  Development
Corporation Limited (PDCOR) which is a joint venture company  of  Government
of Rajasthan and IL&FS  and  approvals  were  given  by  the  Government  of
Rajasthan.  Request for proposal was released and  Board  of  Infrastructure
Development & Investment (BIDI), a high powered committee of the  Government
headed by the  Chief  Minister  with  an  objective  to  accelerate  private
investment in industry and related infrastructure,  formed  a  sub-committee
to decide on fiscal  concessions  necessary  for  the  project.  The  Jaipur
Municipal Corporation was  made  the  nodal  agency  for  project  purposes.
However, the first bid process failed as despite applying for  qualification
no bidder ultimately participated in the bid.
11.         The aforesaid failure led to the appraisal  and approval of  the
project report by the Ministry of Environment and Forests.   The  Government
of Rajasthan, through Department of Urban  Development,  sent  proposals  to
Ministry  of  Environment  and  Forest  (MoEF),  Government  of  India,   on
17.08.2001 seeking funds for Lake Restoration  of  the  said  project  under
National  Lake  Conservation  Programme   (‘NLCP”).    MoEF   responded   by
requesting that details regarding fund requirement, O&M  agency,  source  of
funding for O&M along with  Detailed  Project  Report  (DPR)  comprising  of
bankable proposal be submitted. Hence, On  8th  &  9th  December,  2001  and
thereafter on 26th & 27th January, 2002, the Project  Site  was  studied  by
the representatives of MoEF.
12.         On 22.1.2002, a letter was written by MoEF wanting break  up  of
estimated costs as also commitment of State Government to bear  30%  of  the
cost sharing as well as identifying agency for carrying out O&M.  The  State
Government was also to ensure that no untreated sewage should be  discharged
into Mansagar Lake which could be achieved inter alia by diverting  the  two
nallahs that discharged waste in the lake.
13.          Based  on  experts  recommendation  after  complete   technical
surveys and environmental studies of the lake, the area for the project  was
identified and recommended by  renowned  consultants  LASA  (Lea  Associates
South Asia Private Limited) as being ecologically viable.   The  DPR  itself
mentioned that the ecological restoration of the lake would be  carried  out
on the basis of which it can be sustainable  and  bankable  as  required  by
MOEF through a Public Private Partnership model.
14.         On the basis of commitment  of  State  Government  to  meet  30%
expenditure on restoration of Mansagar  Lake,  MoEF,  Government  of  India,
approved the DPR in October, 2001 under the NLCP with 70%  amount  as  grant
in aid.  MoEF  also  conveyed  its  appreciation  on  DPR  and  observed  as
follows:


           “the project  document  and  structure  as  developed  by  PDCOR
           Limited has served as a  benchmark  for  developing  sustainable
           Lake restoration projects on a Public Private Partnership  (PPP)
           model.  You will be pleased to know that we are  recommending  a
           similar  approach  to  other  states   for   Lake   Conservation
           projects”.



15.   This gave rise  to the new bidding process which  may  be  termed   as
‘Second Bid Process’ for which decision was taken  in its 9th  meeting  held
on 10.1.2002, approved further fiscal concessions necessary for the  project
and approved a fresh round of bidding.  The nodal  agency  for  the  project
was changed to Jaipur Development Authority  (“JDA”)  from  earlier  agency,
Jaipur Municipal Corporation.  The bid documents were duly approved  and  an
advertisement  inviting  Expression  of  Interest  (“EoI”)  was  issued  for
selection of Private Sector Developer (“PSD”) in April, 2003 after  the  key
commercial terms of the project and even the draft of the advertisement  was
approved by JDA.  The  Empowered  Committee  of  Infrastructure  Development
(“ECID”), a high powered  committee  headed  by  Chief  Secretary,  formerly
known as SCID, directed Secretary, UDH to finalize key commercial terms  for
selection of PSD.  During the first round of bidding the proposed lease  was
60 years in the aggregate.  As that period was considered unviable,  in  the
second round of bidding the period  of  lease  was  proposed  as  99  years.
Moreover, restoration of Jal Mahal by the PSD  was  made  optional  and  not
mandatory.
16.         In pursuance to the aforesaid steps, detailed RFP  were   issued
to interested private parties which   was approved by JDA  and  released  in
July, 2003.  The advertisement inviting RFP for selection of Private  Sector
Developers (“PSD”) was published in leading  newspapers  (Rajasthan  Patrika
and Economic Times).  In addition, PDCOR developed  strategy  for  marketing
and wide publicity of  the  project  by  apprising  potential  entrepreneurs
across the globe about the features of the project with a view to  encourage
them to come forward to participate in the  bid  process.   As  the  tourism
project was to generate funds for sustained O&M measures, the Department  of
Tourism  (“DOT”)  and  later  Rajasthan  Tourism   Development   Corporation
(“RTDC”) was made the nodal agency for the project.  Four  competitive  bids
including from the Petitioner were received which were evaluated  and  PDCOR
submitted its report to Government  of  Rajasthan  for  its  approval.   The
Technical Evaluation Committee constituted for evaluation of bids  comprised
of eminent experts like Padamashree Dr. B.V.  Doshi,  Architect,  Mr.  Mohd.
Shaheer, Landscape Architect and Mr.  Hemant  Murdia,  Chief  Town  Planner,
Government of Rajasthan.
17.         The petitioner/appellant  got the  highest  marks  in  technical
evaluation of its bid and when financial bids were opened  the  Petitioner’s
bid was found to be the highest.  Consequently, ECID in its meeting held  on
9.2.2004 headed under the Chairmanship of Chief Secretary decided  to  grant
the project to the Petitioner.  The letter  of  intent  was  issued  to  the
Petitioner on 30.9.2004.  On 22.11.2005 after approval from  the  Government
of Rajasthan the Lease in respect of the project land and  the  License  for
restoration and reuse of Jal Mahal were executed.
18.         In terms  of the  project an area of 100 acres of  land  towards
the south of Mansagar Lake was to be leased out for a  period  of  99  years
for development of eco-friendly tourism components as set out  in  the  RFP.
The entire development, at the end of 99 years, was to be  transferred  back
to the State Government without any  compensation  payable  to  the  Private
Sector Developer.  In terms of the RFP, it  was  optional  for  the  Private
Sector Developer to undertake the restoration and reuse  of  the  Jal  Mahal
Monument.  The Petitioner while making the bid  also  exercised  the  option
for restoration and reuse of  the  Jalmahal  monument.   The  Petitioner  in
terms of the license agreement set out to restore  the  monument.   The  RFP
estimated the cost of restoration of  Jal  Mahal  at  approximately  Rs.1.50
crores.   In reality the cost of restoration of  Jal  Mahal  worked  out  to
Rs.10 crores.  The  State  Government  had  also  constituted  an  Empowered
Committee to oversee the time bound restoration of  Mansagar  Lake  and  Jal
Mahal Monument.
19.          The  Petitioner’s/appellant’s  in  pursuance   to   the   lease
appointed    consultants who did  extensive  research  plan  which  was  got
approved from the Empowered Committee.  Ultimately the  monument  was  fully
restored under  the  supervision  of  Empowered  Committee  upon  advice  of
renowned conservation architect Dr. Kulbhusan Jain and other consultants.
20.         The Petitioner/appellant, who had been given the  lease  of  100
acres of land on the southern shore of Mansagar Lake,  after  obtaining  all
necessary approvals, had completed Phase-1 of the Project.  But the  project
 suffered a grave set back and knee jerk obstruction as by  this  time  i.e.
in the year  2010 public interest petitions  were filed in  the  High  Court
although the  petitioner had already started executing the project  and  had
already spent  an amount of  Rs.38 crores   besides  paying   more  than  14
crores  as project  development  fees and lease rent  to  RTDC  as  per  the
petitioner/appellant’s case in terms of the lease  deed.   In  pursuance  to
the same, the restoration of the Mansagar Lake under  the  DPR  prepared  by
PDCOR was to be undertaken by the State Government.  The O&M work was to  be
carried out from lease rentals received from Private Sector  Developer  i.e.
the Petitioner.  The total amount sanctioned for restoration of the lake  by
the Central Government and the State Government was Rs.24.72  crores.   This
amount proved to be inadequate and the Government due  to  further  resource
crunch was not in a position to spend any further amount.  Resultantly,  the
restoration of the lake, which was the cornerstone of the  project,  was  in
danger.  The Petitioner spent over Rs.15 crores on restoration of  the  lake
with the approval of the Empowered Committee.
21.         As a measure of restoration  and  development  of  the  project,
the entire  project  implementation   had  to  be  done  so  as  to  achieve
sustainable eco preservation and development.   The  Petitioner,  therefore,
acted under  the  advise  and  on  the  recommendation  of  experts.   These
activities were further monitored by the Government  of  Rajasthan  and  its
agencies.  The  petitioner/appellant  stated  that  for   the   purpose   of
restoration,  the  Petitioner   engaged   a   number   of   nationally   and
internationally renowned consultants including Mr. Soli  J.  Arceivala,  Ex.
Director of NEERI, Dr. Shyam R. Asolekar from IIT Mumbai,  Dr.  G.C.  Mishra
from IIT Roorkee, Mr. Jal R. Kapadia Environment Consultant, Mumbai and  Mr.
Herald Craft, renowned lake expert from Germany.    Some  of  these  experts
had also worked for restoration of the  Hussain  Sagar  Lake  in  Hyderabad.
The State Government had also constituted an Empowered Committee to  oversee
the time bound restoration of Lake.  The work involved  realignment  of  the
Nagtalai and Brahmpuri drains so that domestic sewage  and  waste  including
run-off and  detritus  during  the  monsoons  no  longer  emptied  into  the
cleansed waters as also desilting of the water  body  which  were  essential
components of DPR as approved by MoEF under NLCP.  In order to  ensure  that
the ongoing discharge of drainage did not once again pollute the water,  Mr.
Herald Craft the German Lake Conservation expert  prepared  a  report  which
suggested preparing temporary sedimentation/settling tanks near the mouth  /
discharge point of the re-aligned drains.  The purpose  of  constructing  of
sedimentation tank was to trap the silt and organic  content  of  the  storm
water so that the quality of water  in  the  whole  of  water  body  is  not
adversely affected.  The sedimentation process were also reviewed by a  team
of experts from  MoEF  which  found  the  system  as  a  viable  and  proper
solution.  It has been further brought  to the notice  of  this  Court  that
the  project fell within  item  8(a)  of  Environmental  notification  dated
14.09.2006 and was also confirmed by MoEF in its Affidavit  in  Reply  filed
to the writ petition and a detailed Environmental Impact Assessment  (“EIA”)
was carried out by  State  Level  Environment  Impact  Assessment  Authority
(“SEIAA”)  constituted  by  MoEF.   It  is,  therefore,  stated   that   all
requisite environmental approvals were obtained.
22.         The project  thereafter was started and the  land leased to  the
Petitioner, according to the appellant,  was not a part of  the  water  body
in the first Master Plan 1971-1991 for Jaipur  and  an  area  of  200  acres
around the south side of Jal Mahal was demarcated and reserved  for  tourist
facilities.  The land leased to the Petitioner was a part of this land  area
reserved for tourist facilities.  The said land  continued  to  be  retained
for tourism and recreational activities in the subsequent city master  plans
including the master plan of 2011 and 2025.
23.         The appellant has further stated that the   Man  Sagar  Lake  on
its western side is bound by Jaipur-Amer road.  The level of the road is  at
a contour level of 100 MRL.  The ground floor  of  the  Jal  Mahal  monument
within the lake is at the contour  level  of  98.2  MRL.   PDCOR,  based  on
intensive studies, found this level as the  most  appropriate  level  taking
into account the fact that the lake was not freshened by  natural  acquifers
but was dependent on surface runoff during the monsoons, and to ensure  that
ground floor of Jal Mahal was not submerged.

24.         However, the contesting respondents herein  who  were   the  PIL
petitioners before the High Court, averred that the  PIL  petitioner   Prof.
K.P. Sharma is involved in the research  with regard to Man Sagar Lake   and
has published  a paper which was  read out in the 12th World  Lake   Forests
TAAL 2007.  It was submitted by learned  counsel  Mr.  Aruneshwar  Gupta  on
behalf of the PIL petitioner/one of the three contesting respondents  herein
that the  Man  Sagar  Lake  and  the  management  thereunder  were  declared
protected monuments  but were  deleted from the list of protected  monuments
in the year  1971.   The  contesting  respondents   have  also  related  the
history of the lake  glory and have recorded that  Man  Sagar  Lake   is   a
large lake on the northern fringe  of Jaipur city and the glory of the  lake
as a pristine  water  body  lasted    until  the  former  rulers  had  their
control over the city and  unpleasant  history  of  lake   began  when   new
administration of Jaipur diverted  walled city  sewage in 1962  through  two
main  waste  water  drains  namely   Brahmapuri  and  Nagtalai.   The   most
notorious aquatic weed  water   hyacinth   (Eichhornia   crassipes)  entered
into lake in 1975.   The  petitioner/contesting  respondent   herein  stated
that  during  the  studies  made  by  the  contesting  respondent  and   his
colleagues, 10  zooplankton Species,  arthropods,  fishes  and  92   species
 of birds were observed  at Mansagar Lake and out  of  92,  41  are  aquatic
and 51 were  forest  dwellers.   The  water  fowl   population  included  16
resident  and 25 migratory species.    It is in this  context  that  it  was
submitted that the Man Sagar Lake and the  monument  therein  were  declared
protected monuments but they  were  deleted  from   the  list  of  protected
monument  in the year 1971.
25.         It was further  averred  by  the  PIL  petitioner  in  the  High
Court/contesting respondent herein that the  Ministry  of   Environment  and
Forests  (for short ‘MoEF’ ),  Government of India  prepared  National  Lake
Conservation Plan  (for short  ‘NLCP’)  for  restoration,  conservation  and
maintenance  of urban lakes.  The Government of Rajasthan submitted  project
for restoration of Man Sagar Lake to  the  Central  Government.   The  total
cost of the project was  estimated to be  Rs.24.72  crores,  out  of   which
70% was to be provided by the Government of India   while  rest  was  to  be
borne by the State Government.  The administrative approval and  expenditure
 was granted by the MoEF  vide  order  dated  5.9.2002  and  the  order  was
revised by the MoEF  vide dated 23.12.2002. The  JDA  implemented  the  lake
restoration  plan   under  which   Sewage  Treatment   Plant   (STP)    near
Brahmapuri has been revamped  from which  treated water is  being   diverted
to lake for  compensating evaporation losses  during  dry  weather.   A  two
step Tertiary  Treatment Plant   has also  been   developed  and   lake  has
been cleared from  hyacinth plants  completely by the  JDA.   The  JDA   has
also invested in development  of lake   front   promenade  on  Jaipur  –Amer
Road and constructed road along  the lake on northern side which has  formed
a new water body of about 5 hectares  in  size  for  storing  hill  run  off
during   rainy  season  for  wild  life  which   includes   Hanuman   langur
(Semnopithecus  entellus),  Black  aped  Hare  (Lepus  nigricollos),  Indian
Porcupines  (Hystrix   Indica),  Blue   bull   (Boselalphus   tragocamelus),
Sambhara (Cervus unicolor), Common Mangoose (Herpestes  edwardsii),  Jackals
(Canis aureus),  Striped  Hyaena  (Hyaena  hyciena)  and  panther  (Panthera
leo).   The JDA  has also  funded  Rs. 10 million    to  the   State  Forest
Department  for improving    lake catchments area  falling in the  Nagargarh
hill area (Arawali Range) which is the only  natural  watershed.   The  lake
is surrounded almost from three sides by Arawali  Hill  Ranges.   The  hills
are either part of Nahargarh Wildlife  Sanctuary or Reserved  Forest  Ranges
known as Amer Block 54 and Amargarh  Block  92.   The  petitioner/respondent
herein and his team was working in executing  a  JDA  sponsored  project  on
bank stabilization of the lake since May, 2005.  35 species of tree  and  28
varieties of shrubs  were planted.  Besides improving landscape,  the  plant
species  provide shelter and food to the local fauna and    migratory  birds
may also be benefited.  Similar plantation was also done on three islands.
26.         The PIL petitioner/respondent herein had further  averred   that
Jal Mahal Tourism  Infrastructure Project was  conceived  and  approval  was
given by the Standing Committee on Infrastructure  Development   (for  short
‘SCID’) in its 3rd meeting held on 21.12.1999.   Resolution  has  also  been
filed  in  which it was stated that Jaipur Municipal  Corporation  must  own
the  project.    The  bids  were  invited  in  the  year   2001-01   without
identification of the land to be used and without  studies  with  regard  to
environment impact assessment.  The bid process was scrapped  and   JDA  was
made sponsoring  department for the lake side development  component in  the
meeting of Board of Infrastructure  Development   and  Investment  Promotion
(for short ‘the BIDI’) held on  23.8.2002 and 3.9.2002.
27.         It was  contended  on  behalf   of  the  petitioner   that  MoEF
granted administrative approval and expenditure  sanctioned   only  for  the
lake  restoration components  and there was absolutely no consideration   by
the MoEF    to the lake side development  component  of  the so-called   Jal
Mahal Tourism Project.  It was submitted that  as  a  matter  of  fact   the
National Lake Conservation Plan did not  contemplate   any  such  commercial
venture  upon the lakes to be restored  under the plan  which  according  to
the  PDCOR contemplated the following three components as  already  referred
to hereinbefore  but  for facility  of   reference   it  may  be  reiterated
that three components were as follows:-
      (1)   Restoration of Mansagar Lake;
      (2)   Restoration and re-use of  Jal Mahal  Monument;
      (3)   Development  of Tourism/Recreational components
            at the lake precincts.


28.          It  was  further  submitted   by   the    petitioner/contesting
respondent  herein that in the  meeting of BIDI held  on  5.8.2003,  it  was
decided that  nodal agency  for  the  Jal  Mahal  Tourism  Project  will  be
Tourism  Department  of  Government   of   Rajasthan     instead   of   JDA.
Thereafter, the tourism  department   assigned  the  responsibility  to  the
Rajasthan Tourism Development Corporation  (for  short  ‘RTDC’)  vide  order
dated 6.9.2003.  It has been submitted that although biding was started,  no
survey of the actual site  and demarcation  of  100 acres area  on the  lake
was made and even  environment  impact  assessment    was  not  carried  out
before  planning  the  project.   It  was  further  submitted  that  in  the
advertisement  last date for submission  of the bid  was  5.9.2003   and  it
was necessary  under  the  terms  of  the bid  that  only   private  limited
company or public  limited company could  have  submitted  tender.   It  was
necessary that  lead Manager should be  private or  public limited  company.
 The offer was submitted by  KGK Enterprises,  partnership  firm   and   its
HUF Manager.  Thus   was not fulfilling eligibility  qualification  provided
under the terms notifying tender.
29.         However,  the petitioner/contesting  respondent    himself   has
added and clarified  that  later on   decision  was  taken  to  include  KGK
Enterprises which according to the petitioner /contesting  respondent   lack
eligibility condition and Jal Mahal Resorts Private Ltd. Company   has  been
incorporated  on 10.11.2004.  The decision was also taken to give  exemption
of stamp duty etc.
30.         The contesting respondent No.7 who was the PIL petitioner    has
further  stated  that  during  the   bidding  it  was  made  clear  that  no
commercial activity would be  permitted within the precincts  of  Jal  Mahal
Complex, but even before  agreements  were executed, the  successful  bidder
not  only   sought  exemption   from   commercial   activity    within   the
precincts of Jal  Mahal Complex but  also  sought  revision of  the  project
proposal  and for maintenance of  lake, water  level  at  the  cost  of  the
Government vide  letter  dated  13.7.2004.   The  contesting  respondent/PIL
petitioner   had also submitted   that out  of  100  acres  of  land,  14.15
acres of land was  submerged  in water which has also been leased  out.
31.         Mr. Aruneshwar Gupta on behalf of the PIL  petitioner/contesting
respondent  No.7 further averred that  Master Plan of  Jaipur 2011  did  not
permit such activities at the site.   It was also stated that 100 acres   of
land was part of the lake bed itself, out of  which  14.15  acres  of   land
was submerged in the water.  The area was sensitive   for   eco  system  and
thus  environment  impact assessment  was required to be carried out  before
any such project was prepared but the same was  not  done.    It  was  still
further  stated that 100 acres  of land  beyond  the spread of  lakebed  was
not available  on the site  and  it was further  submitted  that   wall   of
sufficient height has been constructed  for setting apart  the proposed  100
acres of   land from the lakebed and the soil from  the  lake   bed   itself
was actually used for this purpose.  It was alleged by  the  PIL  petitioner
that the appellant   herein   Jal  Mahal  Resorts  Private  Limited  started
constructing  high walls of mud and soil in the  eastern  part of  the  lake
bed near sluice gates and a  large  area  around  it  for   the  purpose  of
preparing sedimentation tanks in the lake  bed itself.  The  project  people
visit  land  most  frequently  disturbing   birds  on  the  island  and  the
connection of island with mainland has also led to  entry  of  dogs  on  the
island which feed on the eggs of birds and thus, basic objective  of  island
to provide  habit/breeding  ground  for  resident  and  migratory  birds  is
forfeited.
32.         It was further contended by  the   petitioner  before  the  High
Court  that  one  third  of  the  lake  was  converted  into  a   series  of
sedimentation tanks made in the down stream    of the  lake   by  respondent
No.7 and now all dirt with floating objects enter into  sedimentation  tanks
made in the lake bed.  Thus, the entire lake  has  been   converted  into  a
series of small tanks followed  by  a   large  tank  i.e.  lake.   This  has
adversely affected aesthetic  value of the  Mansagar  Lake.   Prior  to  the
construction of  storm water  management plan, lake water also  used  to  be
released for irrigation.  Now water will be  released through  sluice  gates
into down stream directly  without   flowing  through  the  lake  basin  and
there will be no  flushing out of salts from the lake.  The build  of  salts
will convert  fresh water lake into  a saline  lake  which  will  alter  its
flora and fauna.  It was  further submitted  before  the  High  Court   that
the appellant herein was not at all  concerned   with  the  construction  of
storm water management plant  that too in the lake bed  itself  and  it  has
been  carried out without any requisites sanction and study by  any  of  the
concerned authority otherwise such a large area of the lake could  not  have
been  allowed to be sacrificed  for such purpose.   As  per  the  monitoring
done by the  PIL petitioner/contesting respondent, the chloride  content  in
the Mansagar Lake has been  increased and  salt in  water   has  gone  high.
The sudden increase  in the chloride  content of the  lake    is  attributed
to direct human interference by way of   altering  lake   basin   character.
This increase in  salinity will definitely  affect the lake  bio   diversity
 and both  the native and migratory birds   and   species    diversity  will
significantly  be dropped.  The PIL petitioner  further submitted  that  the
unique feature   of the area  is an endemic  species,  namely,  Plum  Headed
Parakeet found in the  protected forest in Arawali  and  the  project  would
be dangerous to the species.   Due  to   settling/sedimentation   tanks   in
the  lake  bed  itself,   silt/filth   which  was  to  be   avoided    after
restoration of the lake,  is willfully  invited and drained  into  the  lake
itself  which  has  increased   salinity  of  the  water   also.   The   PIL
petitioner  had  further  submitted   before  the  High  Court    that   the
revision  had destroyed the  very  substratum   of  the  project  which  was
earlier  conceived .  The whole project after completion was  to be put   in
use by  2010, but the  appellant has  not  done  anything   except   filling
and compacting  the 100 acres of land in the lake bed itself by   excavating
the soil  from the lake basin.  Though  only  13% of the land     was to  be
used for construction activities    of  the  private  sector  developer  and
would be of  restricted entry and rest 87% was to  remain  in  the  form  of
open space, parks, gardens and unrestricted public  entry   spaces,  but  in
the name of commercial viability and  loosely drafted  clauses  of  the  bid
documents and contracts,  complete revision of the plan has been  sought  by
the appellant after  declaration  as  successful  bidder.   It  was  further
submitted that the committee under the Chairmanship of  the Chief  Secretary
of the Government of Rajasthan considered   the  Revised  Master  Plan   and
rejected the changes on 10.10.2007.   However,  another  representation  was
submitted by the appellant herein/respondent No.7 in the High Court  and  on
10.9.2009 sanction was granted by the Committee.
33.         The PIL petitioner  also  raised a grievance that    Environment
 Impact Assessment  was not carried out  by  the  finalization       of  the
project   or  execution  of  the  lease  agreement  and  even    environment
clearance from MoEF , Central  Government  was  not  obtained   as  required
under  EIA Notification  dated  27.1.1994.    The  Central  Government   had
issued  a fresh Notification on 14.9.2006 in exercise  of  power   conferred
under Section 3 of the Environment Protection Act,  1986  (shortly  referred
to as ‘the act  of  1986’)  and  rules  framed  thereunder  for  environment
clearance before implementation of the projects mentioned therein.   It  was
further  contended   that  the  project  cannot  be  implemented     without
obtaining  environment  clearance from  the  Central  Government  under  the
aforesaid notification and no Environment Impact  Assessment   was   carried
out nor any  environmental clearance has  been  obtained  before  finalizing
the project  &   all  actions  taken   by  the  respondent   are  absolutely
illegal  and  void.   The  PIL  petitioner  further  contended    that   the
environment  clearance  as  required  under   notification  dated  14.9.2006
had not been obtained  nor any compliance  of  Wetlands  (Conservation   and
Management ) Rules  2010 had been made so  far.   The   PIL  petitioner  had
raised a grievance that  it is a case of  siphoning   off  valuable   public
property as the value  of 100 acres  of  land  is   not  less  than  3,500/-
crores.    The  DLC rates for commercial land  in question   is  Rs.79,063/-
per sq. mtrs. and lease for  99 years  amounts  to  sale,  although  as  per
rules  it was necessary  for  the  respondent-authorities   to  realize  the
sale price  and additionally lessee was required to pay annual  lease  money
also.   The  market  price  used  to  be   much  higher    than  DLC  rates,
especially due to location being picturesque  and ecologically    rich.   If
such land is sold  for commercial purposes  for   constructing    five  star
hotels,  resorts,  luxury  villas  etc.   such  land   carries    invaluable
importance.  According to the PIL  petitioner/contesting  respondent  herein
the value  of such land cannot  be said  to be  less  than  3,500/-  crores.
It was, therefore,  submitted that the State  Government  had   handed  over
valuable  natural resources of water   surrounded   by  natural  beauty   of
hills  and  forests,  full  of  wildlife   and  other   natural    resources
maintaining    environmental  and ecological  balance  of  the  city   to  a
private  entrepreneur  society   for  economic exploitation  at the cost  of
the public.  The revision of the  Master  Plan   completely    converts  the
tourism project into  privately owned township upon 100 acres of land  which
has been  let out for  a  petty sum by  the Government.
34.         In so far as  writ  petition  no.   5039/2010   Dharohar  Bachao
Samiti vs. State of Rajasthan  and Ors.  and  writ  petition  No.  4860/2010
Heritage Preservation Society Rajasthan  and Anr. vs.  State of Rajasthan  &
Ors. are  concerned,   have   also  substantially  urged  the  sacrifice  of
public  interest on  account  of  the  lease   granted  in  favour  of   the
appellant and as such  to establish sacrifice  of  public  interest  as  per
their  perspective which have been  related in  the  impugned  judgment  and
order.
35.          Contesting  the  PIL  petition  before  the  High  Court,   the
respondent   State  of  Rajasthan  and  its  functionaries/authorities   had
submitted that Master Development  Plan   1976   to  1991   of  Jaipur  city
contained provisions of various facilities  on south and west side  of   Jal
Mahal Lake  on 200  acres.   It  was  submitted  that  the  erstwhile  Urban
Improvement Trust Jaipur had proposed a scheme  in  respect  of  520   acres
land  which  was  published   in  the  gazette  on  31.7.1975.   The  Jaipur
Development Authority Act 1982  (for short ‘JDA Act 1982’) came  into  force
and Urban Improvement Trust was replaced by the JDA.  A  notification  under
Section 39 of the JDA Act was  issued by the  JDA  on  30.6.1987.   However,
development  of Jal Mahal area  could  not   materialize  .   The  JDA  then
decided to undertake the exercise for  development   of  integrated  tourism
infrastructure  development for Jal Mahal and required  Project  Development
Company  of Rajasthan (PDCOR)  to prepare  project    on  commercial  format
for private public participation.  The preliminary  approval  was  given  by
the Standing Committee    on  Infrastructure   Development  (  for  short  ‘
SCID’) in December 1999.  It was stated that the bids were notified  in  the
year 2000 but no entrepreneur   came forward  in  the  bidding  process  and
thus the tender process was scrapped.  Thereafter,  the JDA   was  appointed
as nodal agency to  undertake  the  bidding  process.   Global  tenders  are
invited  on 25.4.2003 and  in  pursuance  thereof   9  entrepreneur   showed
interest.  It was mentioned in the advertisement  that  100  acres  of  land
would be leased out for 99  years.      A  pre  bid  meeting  was  held   on
24.8.2003  for removal of doubts.  The Department of Tourism    on  6.9.2003
transferred the  development of Jal Mahal  to RTDC vide letter  R-1/12.   On
 15.9.2003, pre-qualification bids were opened in response to  which    four
entrepreneurs submitted bids.  Rejection   of one  bid  was  recommended  on
account  on inadequate  information   on evaluation.   It  was  pointed  out
that the respondent  M/s.  KGK  Enterprises   was  a  partnership    concern
whereas the criteria for  bidder  was  that  it  has  to  be  private/public
limited company and thus  final view  of  the  Government   was   sought  in
respect of qualification/disqualification  of M/s. KGK Enterprises   in  the
next phase of  evaluation  bid.   Later  on,  14.11.2004,  KGK   Enterprises
formed private limited company  in the name and style of “Jal Mahal  Resorts
Pvt. Limited”.   The PDCOR  suggested retention of KGK  Enterprises  as  its
presence will increase competitiveness.   The  State  Government   permitted
the consideration of bid of KGK Enterprises on  17.10.2003  to  enlarge  the
scope of  competitiveness.  Thereafter,  the technical  bid was   opened  on
21.10.2003 and financial bid was opened on 3.12.2003.  The RTDC  recommended
the award of project  to the  highest  bidder  namely  KGK  Enterprises  and
accordingly the Commissioner, Tourism vide noting dated  19.2.2004  put  the
matter before the State Government  for issuing   a  letter  of  intent  and
signing  the lease agreement in favour of the successful bidder.   This  was
forwarded by  Secretary,  Tourism   to  Minister  Incharge   Tourism  (Chief
Minister), who  approved  the  minutes  of  the   Empowered  Committee    on
Infrastructure Development (ECID) and directed to  put up  the  draft  lease
agreement early.  On 9.5.2005  the Collector intimated  that  100  acres  of
land has been mutated in favuor of  RTDC.  The approval of  lease  agreement
and license agreement  and authorizing  of Managing  Director   of  RTDC  to
sign  the  agreement    was  granted  finally   by  the  Chief  Minister  on
27.10.2005.   On 29.10.2005, the RTDC  authorized  the Managing Director  to
sign  Jal Mahal  Lease Agreement  on  behalf  of   Government  of  Rajasthan
with Jal Mahal Resorts  Pvt.  Ltd.  and  accordingly   lease  agreement  was
executed  on  22.11.2005.   The  Central  Government  ,  MoEF  recorded  its
appreciation for the project vide letter dated 13.9.2002 and 1.12.2009.

36.         It was further contended  on behalf  of  respondent  State  that
it is incorrect to say that the  size  of  the  lake  has  been  reduced  on
account of  leasing out 100 acres of land.  It was averred that  the  action
is as per  Master Development   Plan.  The State  Government  has  submitted
the project to the Central Government  MoEF   for restoration of  Man  Sagar
Lake   at  the  estimated  cost  of     Rs.24.72  crores  and   the  Central
Government  agreed   to provide 70% of the  cost.   PDCOR   in  the  project
report prepared in October 2001 included the following facilities:

1.    Restaurant;

2.    Traditional Technological Park

3.    Club Resort

4.    Amusement  Park

5.    Heritage  Village

6.    Light and Sound Show land

7.    Recreational Centre.

It was further stated by the respondent State  of Rajasthan before the  High
Court that there will be no damage to the wild life  or reserve  forest   or
birds  and  it  is  for  the  respondent  No.7  Jal   Mahal   Resorts   Pvt.
Ltd./appellant herein to  obtain clearance  as per requirement of law.   The
sedimentation tank      covers 5% of the area of lake.  It was  also  stated
that the  Wetland Rules are not applicable and they are made  applicable  to
Sambhar Lake and Keola Deo  Lake in Rajasthan.  It was still  further  added
that the land leased out does not fall within   the  definition  of  Section
2(1) (g)  and Section 3.  The consent had been given under the Water Act  by
the Rajasthan Pollution Control Board on 20.5.2010.  It  was  further  added
that for the last 3  decades , the State Government had been making  efforts
 for restoration of Jal Mahal, Man Sagar  Lake  and  the  Area  around  lake
and  desilting has not caused any ecological damage.

37.         In so far as the  stand  of  Jaipur  Development   Authority  is
concerned, on its  turn  submitted  that   for  development  of   Jal  Mahal
Tourism Project  land  of  private  unit  was  acquired,  certain  land  was
sawaichak (government land) and land of  public works  department,  land  of
three villages namely , Vijay Mahal,   Bansbadanpura  and  Kasba  Amer   was
included, 178 bighas 9 biswas was in private tenancy, 475  bighas  9  biswas
was sawaichuk (government land ) , 25 bighas   4  biswas  was  of  PWD,  133
bighas 15 biswas was of Municipal Council , 19  bighas  10  biswas   was  of
forest department.   Thus in total 832 bighas   01 biswas was  mentioned  in
the letter dated 7.6.1982 written  by  UIT  to  the  Deputy  Secretary  UDH.
When JDA was formed the area of  Jal Mahal Project stood transferred to  the
JDA by virtue of JDA Act and the JDA vide letter dated  5.10.1983  requested
the Government  to  acquire land admeasuring  832  bighas  4  biswas   which
was in the tenancy of  private  persons.   The  JDA   sent  a   proposal  on
25.2.21988  to  the  UDH  for  publication  under  Section  4  of  the  Land
Acquisition Act, the report under Section  5A  was  submitted  by  the  Land
Acquisition Officer to the Government   for  acquisition  of  land  for  Jal
Mahal Reclamation Project ands the same was  accepted  and  land  award  was
passed on 17.4.1996.  It  was   further  explained  that  a  part  of   land
however falling in  the  area  known  as  Karbala  measuring  46  bigha  was
decided  not  to  be  acquired.   On  31.3.1999  BIDI  was  formed  to  take
decisions to accelerate growth of  investment   and  industrial  development
in the State of Rajasthan.  Thereafter, the decisions were taken details  of
which  have been given in the  return.  On  10.0.2009, approval  of  revised
layout plan  was granted by the Committee  chaired by the  Chief  Secretary.
Lease amount had to be enhanced  by 10% every  time  after  a  period  of  3
years.  It was therefore submitted that JDA having  considering  the  nature
of investment, lease of 99 years was justified.  It was also  admitted  that
out of 100 acres  of leased area 13 bighas 17 biswas of land is recorded  as
‘gairmumkin talab’ in khasra No.67/317.

38.         In so far as  the  reply  of  the   lessee/respondent  No.7  and
8/appellants herein/Jal Mahal  Resorts  Pvt.  Ltd.  and  KGK  Consortium  is
concerned, it had submitted in their reply to the writ petition before   the
High Court that the State  Government   promoted  the  concept   of  private
public partnership to save the  burden on the  exchequer  and  the  decision
had been taken  by the expert  body  at  the  highest  level  which  is  not
amenable   to  interference  by  this  Court.   MoEF  granted  approval   of
5.9.2002, on 23.12.2002  administrative approval and  expenditure   sanction
was issued by the Government of India for conservation   and  management  of
Mansagar Lake.  The bid submitted by M/s.   KGK  Enterprises   in  2003  was
found  to be the highest and hence the then Chief   Minister   had  approved
the decision of  giving project to the  highest bidder   KGK Enterprises  on
 27.2.2004 and thereafter  letter of  intent was issued on  30.9.2004  after
which  lease agreement  was executed  on 22.11.2005 on which  the  appellant
has already spent  amount  of Rs.70 crores  while executing  part I of   the
project.

39.          The  appellant  herein  had  also  submitted  that  the  public
interest  petition was not bona fide   rather  amounted  to  abuse   of  the
process of  the court  and  they have  been filed   with   gross  delay  and
laches.

40.         Responding to  writ petition No. 4860/2010 which PIL  was  filed
by Dr. Ved Prakash Sharma in the High Court  also,  was  contested   by  the
appellant  herein and it was submitted  that  Dr.  V.P.  Sharma  appears  to
have obtained    registration  on  19.3.2010  mainly  for  the  purpose   of
approaching  this Court in PIL.  It was also urged that  Prof.  K.P.  Sharma
in W.P. No. 6039/2011 is not a recognized authority  or  lake  functionaries
or expert in lake management, irrigation, environment protection  and  there
has been  orchestrated campaign through  vernacular  newspaper  for  reasons
best known to the   correspondent   and  the  newspaper  itself.   The  said
newspaper runs the  Janmangal Trust on behalf of  the Irrigation  Department
and the said trust also carries  out  commercial  activities    to  generate
revenue for upkeep of the dam.  It  was  further  added  that  in  1992  the
newspaper group wanted to utilizes   the  Jal Mahal Complex   and  the  land
which  is part of Jal Mahal   Tourism  Project  for   its  own  benefit  and
commercial use free of cost/at a paltry  sum and having failed to  grab  the
land , hostile campaign had been started  against the project and more  than
200  misleading articles  had been published in  the  newspaper   attempting
to  hold a media  trial  in  the  matter.   The  appellant   herein  further
stated that the PIL petitioner Prof. K.P.  Sharma  respondent  No.6  in  the
appeal  has not  come up  with  clean  hands  and  concealed   the  material
facts   that on the complaint filed by him before   PIL cell of the  Supreme
Court, no  cognizance  was  taken   and  the  file  was  closed.   The  writ
petitions which were filed were barred by  res judicata   inasmuch  as  writ
petition  No.  1008/11  Ram  Prasad  Sharma  vs.  State  of   Rajasthan  was
dismissed by the High Court as withdrawn by order  dated  15.2.2011  without
liberty to file a fresh writ petition.   It  was  also  submitted  that  the
interference  in contractual matter is not permissible specially  when   Jal
Mahal Tourism Project is in  larger public interest  as it has to  undertake
 restoration of  Mansagar Lake. It was still further added  that  there  was
encroachment of about  50-60 acres of land, decision had been taken  by  the
expert body, bids were invited  by   global  tender     and   the  appellant
having been  found   the  highest  bidder  was  rightly   considered,  lease
agreement  and leave and license agreement  are  valid,  possession  of  the
land  was rightly handed over to them;  nursery  has been  set up over  this
land which has numerous varieties  of plants  and they have also  introduced
several varieties  of aquatic  vegetation in the Mansagar  Lake  to  attract
migratory birds.  Beautification  of Jaipur-Amer Road  divider     has  also
been  taken up and work of  phase I has been  completed  and  allegation  of
environment damage is baseless as the  State  Government  after  environment
impact assessment  granted permission and  consent has also been granted  by
the Rajasthan Pollution Control Board in 2009-10, capacity of water  in  the
lake has not been reduced; sedimentation  basin   has  been  constructed  as
per expert  advice.  The appellant  further had stated that they  had  spent
about  Rs.  15  crores  on   lake   restoration    which   was   not   their
responsibilities under lease agreement   and  they  have  also  spent  Rs.10
crores   on  restoration  of  Jal  Mahal   Monument    voluntarily    though
obligation  was limited to Rs. 1.5 crores only.    Hence,  there  cannot  be
any interference  by this Court  with the opinion of the expert.

41.         It was still further added that Jal Mahal  monument   is  not  a
place of worship for both Hindu or Muslim or  either of them  and  there  is
no  document  showing  that it has been  permitted to be used   as  a  place
of worship.   It was  stated  that   Jal  Mahal  monument  was   a  pleasure
pavilion  used for  hunting ducks and other similar  pleasure activities  by
the  kings, opinion  of legal  consultant of  JDA  was not  correct.   Issue
of identity of  director/owner of the company  constituting  the  consortium
 is not relevant  in any manner whatsoever to the  project  for  restoration
of  Mansagar Lake.  Jal Mahal Monument and Development  of  precinct area  ,
bid was submitted  by KGK  Consortium  comprising  of  six  private  limited
companies, one HUF and partnership firm namely,  M/s.  KGK  Enterprises  who
was lead  bidder  of   the  KGK  Consortium.   It  was  stated  that  it  is
mandatory  under the  tender document  that  in  case   of  consortium  bid,
successful bidder  has to form special  purpose  vehicle  (limited  company)
and lease would be executed    with  such  SPV,  in  the   pre-qualification
round the bidder should have   satisfied  any two of the three   eligibility
criteria  for meeting  the financial  capability :

1.    Tangible net worth of not less than Rs.100 million (US  $  2  million)
      as per the latest audited financial statement;

2.    Annual turn over  than Rs.300 million (US $  6  million)  as  per  the
      latest audited financial statement.

3.    Net cash accruals not less than Rs .50 million (US  $  1  million)  as
      per the latest audited financial statement.



Relying on these credentials,  it  was  stated  that  M/s.  KGK   Consortium
satisfied the aforesaid technical financial criteria.   However,  its  leads
member  M/s. KGK  Enterprises  was  a  partnership  firm   and  as  the  KGK
Enterprises met all the requirements in respect  of technical,  financial  ,
shareholding  and lock in periods  as given in  RPF, deviation from the  RPF
which mandated that the  lead   firm must be  a public/private  company  was
permitted and KGK Enterprises was  allowed  to  compete  so  as  to   ensure
adequate competition.  Factual details are  further added stating  that  KGK
Enterprises   acquired  83 marks while the next  highest   82  marks    were
secured by M/s. J.M. Projects Pvt. Ltd.  and both  were considered  eligible
for opening of  their    financial  bids,  bid  of  KGK  Enterprises   being
highest was accepted.   Under the lease agreement ,  the Jal  Mahal  Resorts
Pvt. Ltd.  has  a right  of development of 100 acres of  project  land   and
no proprietary right over the management has been given.  License   for  the
restoration of the Jal Mahal  monument  does not  confer any  right  on  Jal
Mahal  Resorts Pvt. Ltd.  except to ferry  passengers for  a  minor   charge
and it has not been  authorized to use the Jal Mahal  monument  commercially
and the monument  remains within  the   possession  and  use  of  the  State
Government.  Out of 100 acres of land, 87%  area  is  to  be  maintained  as
green area and in PIL terms and   conditions   of  the  contract  cannot  be
questioned after several years.   The  appellant   further  stated  that  on
restoration  of Mansagar Lake Rs. 15 crores   have  already  been  invested,
catchment area  is not being    disturbed in any manner,  report  of   Prof.
K.P. Sharma is merely an opinion based on  personal  interpretation.   There
was temporary road  constructed by the licensee for  easy  access  for   the
purpose  of restoration of Jal Mahal monument which  is  situated  otherwise
in Mansagar Lake   surrounded  by  water  and  the    said  road   has  been
dismantled  and  no material is left  to compromise the filling capacity  of
lake.  JDA has  approved   detailed   building  plans  for  the  project  on
13.7.2010.  The Jal Mahal Resorts Pvt. Ltd.   diverted  the  sewage  nallahs
away from the  Mansagar Lake with the approval of the   State  Govermment  ,
lake has been cleansed  substantially,  BOD  of the water in  Mansagar  Lake
has been reduced substantially after commencement of the work,  creation  of
sedimentation basin  has not decreased   the  water  capacity   of  Mansagar
Lake and use  of   soil of lake itself  has  not  damaged  the  ecology   or
environment or the lake.  Sedimentation basin is a  part  of the lake    and
created  only  by moving the soil  of the lake from one  place   to  another
and it is wholly temporary reversible  in  nature   and  the  soil   can  be
leveled when arrangements are in place  to ensure   that  the  storm   water
drains do not discharge   silt  and  organic   load  into  the  lake  during
monsoon, land in question is not covered under the provision of the  tenancy
act and the lake  is with the State Government  ,  which  will  continue  to
remain so.   It  has   however  been  added  the  responsibility   of   lake
maintenance  is  purely  of  the  JDA  and  Jal  Mahal   monument  has  been
denotified  in 1971 from the protected monuments  under  the  provisions  of
the   Act of 1961.  Changes in the  Jal  Mahal  monument  has  been  brought
with the consent of the Empowered  Committee,   these  PIL  petitions   were
clearly  devoid of merit and the  appellants  herein  had a right to   start
phase II of the project.

42.         In so far as the   MoEF , Government of India is  concerned,  it
has clarified that it has only sanctioned   the  project  for   conservation
and management  of Mansagar Lake  in Jaipur in December   2002.   Thus,  the
averment made in the  petition  that  no  sanction  for  Jal  Mahal  Tourism
Project was obtained from MoEF is not disputed in the  return filed  by  the
MoEG.    It was stated  that   project for conservation and  management   of
Mansagar Lake in  Jaipur  was  sanctioned   as  per  the  mandate    of  the
National Lake Conservation Plan.  It was further  contended   that   project
for  conservation and  management  of lake  in Jaipur   was   sanctioned  in
December 2002 at the cost of Rs.24.72 crores under the NLCP on  70:30   cost
sharing  basis between  Government of India   and the  State  Government  of
Rajsthan  and the sanctioned order was issued  which   contained  break   up
of  cost   estimated.    The  different  components   which  were   approved
further  included  realignment   of   drains    ,    desilting   ,    insitu
bioremediation , sewage treatment  plant  and  wetland  construction,  check
dams, aforestation, nesting  islands etc.   It  has been  accepted  by   the
MoEF that the JDA was the  nodal implementing agency  for the  project   and
MoEF  Central  Government   has  released  entire  share  of  the    Central
Government  amounting to Rs.17.30 crores.   Other  details   had  also  been
recorded on behalf of the MoEF regarding the cost of  upgradation    and  it
was  stated  that  the  State  Government    was  committed    to  bear  the
additional fund towards the development  from its own resource.   The  State
Government had informed that in addition  to the sewerage work   under  NLCP
 scheme , other projects     are  also  being  taken  up  thereby   ensuring
that all sewage generated in the lake catchment area  is  being  taken  care
of.   The learned Judges  of the Division Bench on a scrutiny of  facts  and
on hearing the counsel for the contesting parties however  were  pleased  to
hold that the PIL was bona fide  and in public interest.   Resultantly,  the
High Court was pleased to declare  that the  Mansagar  Lake  Precinct  Lease
Agreement  dated 22nd November 2005 giving  100  acres  of  land   on  lease
for a period of  99 years  to respondent No.7 Jal Mahal  Resorts  Pvt.  Ltd.
was illegal and void.  The  appellant  Jal  Mahal   Resorts  Pvt.  Ltd.  was
therefore, directed to restore the possession of the land to  the  RTDC  who
in  turn was  directed  to   give  back  the  land   to  Jaipur  Development
Authority, Jaipur Municipal Corporation and the State.   As  already  stated
in the introductory paragraph, certain  other directions   like  removal  of
sedimentation and settling tanks  from the Mansagar Lake    basin  was  also
issued by the High Court  and cost  also  had   to  be  realised  from   the
appellant.

43.         The appellant lessee/Jal Mahal Resorts Pvt. Ltd. felt  seriously
aggrieved and  affected by the impugned judgment and  order    of  the  High
Court   and  therefore  preferred  this   appeal  along  with    the   other
connected appeals  which are being heard  and decided  analogously.

44.         In order to test the   merits and demerits/strength of the  case
of the contesting parties , we deem it appropriate  to  take  note   of  the
historical background giving rise  to this matter  whereby  certain  factual
aspects and the background may be  traced  out  from  1962  when  admittedly
the two sewerage  drains   of  the  walled  city  of  Jaipur   Nagtalai  and
Brahmapuri  were diverted  to  empty into the  water  body   which  led   to
its  degeneration, siltation and settled  deposits   and  contamination   to
such an extent  that it could not support the  aquatic   life   nor  support
flora   and fauna  in the surrounding   areas.   It   is  also  an  admitted
position  that the condition of Mansagar  Lake    and  the  Jal  Mahal  also
started substantially deteriorating  over   a  period  of  time    not  only
because of   natural  process  of  degeneration  but  also  because  of  ill
maintenance and monument   reduced to  such  a  dilapidated  state  that  it
required   massive  restoration  work.   It  is  also  borne  out  from  the
historical  background  and  the  sequence  of  events    related   by   the
contesting  parties that the deteriorating condition of the  lake   and  the
monument compelled the State Government to find ways and  means  to  restore
the    monuments  to  their  original  glory.     We  have  noted  from  the
averments of contesting parties that over a period  of   30  years  attempts
were made by Government agencies  and  departments  to  restore   ecological
and environment condition of the lake  and its adjoining area but   none  of
the  attempts   yielded   any  positive   result  because  of   paucity   of
resources  to take up and sustain  their  restoration.   The  Government  of
Rajasthan  therefore  had  taken  a  decision   to  adopt   an  incentivized
approach  to restore the lake and monument  and declare  the  precinct  area
on a  public/private  partnership   format.    In   order  to  improve   the
condition of the lake the State of   Rajasthan   in  consultation  with  the
experts and after detailed surveys  and analysis   adopted  an  approach  of
development  covering three components which are:

1.    Restoration of  Mansagar Lake;

2.    Restoration of  Jal Mahal and

3.     Development  of  tourism/recreational    components   at   the   lake
precincts.



While  restoration  of Mansagar Lake was approved as per the   averment   of
the MoEF confined to  the development  of  lake area,  restoration  of   Jal
Mahal  which lie within  the  precinct of the lake,  development   of   lake
and the adjoining   area  to the lake  fell  within  the   domain    of  the
Government    of    Rajasthan    which    related    to    development    of
tourism/recreational  components at the lake  precincts.
45.         On  a  scrutiny  of  the  extensive   factual  details  and  the
submissions advanced by the contesting parties ,  we  have  noted  that  the
entire  dispute is essentially confined to the Lease Deed    which has  been
 granted in favour of  the appellant for  development   of  100  acres  land
adjoining the lake area for a period  of  99  years.   The  PIL  petitioners
although have urged that the land  for which lease deed  had  been  executed
were wetland, it could not  establish from  any  material  on  record   that
except  an area of 14.15 acres equivalent to  22 bighas and 10  biswas   and
another area comprising 8.65 acres equivalent  to 13 bighas  and  17  biswas
are in  fact the contentious area on the basis of which  PIL   petition  has
been filed engulfing the entire area  of the lease deed.   In  this  respect
it cannot  be overlooked  that the  project which was visualized  and  given
effect to, was with a view  to  sustainable  conservation  and  preservation
approach stipulated in consultation  with   the  experts   in  pursuance  to
which a global tender was  floated and implemented under  extra  supervision
with all  approvals in place  from the concerned authorities.
46.         Learned  counsel  for  the  petitioner/appellant,  Dr.  Abhishek
Singhvi assailed the impugned judgment and  order  of  the  High  Court  and
urged that the High Court has proceeded on  a  patently  erroneous,  illegal
and factually incorrect basis when it inter alia held as follows:
        a. That the public-trust doctrine has been  breached  because  land
           measuring 13 Bighas 7 Biswas submerged area  of  lake  has  been
           leased to  the  petitioner  and  resultantly  lease  deed  dated
           22.11.2005 is void in law.
        b. That 14.15 acres equivalent to 22 Bighas and 10 Biswas  of  land
           submerged forming part of the Lakebed and could  not  have  been
           leased out.
        c. The State Government has leased 25 percent  of  the  Lake  basin
           itself to the petitioner/appellant for preparing  100  acres  of
           land and the lake level has been reduced to carve out 100  acres
           of land for the lease.
        d. The Environment  Clearance  given  by  State  Level  Environment
           Impact  Assessment  Authority  (SEIAA)  to  the  petitioner   on
           29.04.2010 is void in law.
        e. That the Project is in violation of Rule 4 of the Wetland  Rules
           of 2010 and the Ramsar Convention.  Thus, the lease deed  is  in
           contravention of the Wetland Rules and cannot  be  given  effect
           to.
        f. That the sedimentation tanks are illegal as they  could  not  be
           built without clearance from the  Ministry  of  Environment  and
           Forests.
        g. That the No Objection given by the Rajasthan  Pollution  Control
           Board to the petitioner’s project is of no avail in the  absence
           of clearance by MOEF under the Environment Protection Act, 1986.
        h. That the lease has  been  executed  in  violation  of  Rajasthan
           Tourism Disposal of Land Rules,  1997  (RTDC  Rules),  Rajasthan
           Municipalities  (Disposal  of  Urban  Land)  Rules   1974,   The
           Rajasthan Municipality Act, 1959 and the Jaipur Development Act,
           1982 is liable to be cancelled.
        i. That the State  was  bound  to  give  effect  to  the  essential
           conditions of eligibility stated in the tender document and  was
           not entitled  to  waive  such  a  condition.   Thus,  action  of
           respondent No.2 was not for bonafide reasons.
47.         Learned  senior  counsel  for  the  appellant  Dr.  Abhishek  M.
Singhvi at the outset submitted that the  writ  petitions  before  the  High
Court by way of Public Interest Litigation ought to have  been  held  barred
by delay, latches as also on the ground that  they  were  not  bonafide  and
filed with ulterior motive.  It was explained that three purported PIL  came
to be filed by the writ petitioners/respondents  herein  in  2010  and  2011
after expiry of 5 years from the date of execution of  the  lease  deed  and
licence agreement dated 22.11.2005.   In  this  respect,  it  was  submitted
giving out the sequence of events that the Detailed  Project  Report  (‘DPR’
for short) in regard to the Project was prepared way back in 2001 which  was
the underlying basis for the Project.  The tender process commenced in  2003
and the fish shaped leasehold area comprising 100  acres  was  part  of  the
Expression of Interest dated 25.04.2003 published in various  public  media.
Notice Inviting Tenders for the Project  was  published  in  various  public
media on 30.07.2003.  The pre-qualification bids were opened on  15.07.2003,
the technical bids were opened on 21.10.2003 and  the  financial  bids  were
opened on 03.12.2003.  Thereafter, decision making  process  was  undertaken
at several stages  upto  the  level  of  the  Chief  Minister  in  order  to
determine the award of the Project to the respondent-lessee  KGK  Consortium
which are indicated in the  order  09.02.2004,  27.02.2004,  30.09.2004  and
27.10.2005.  Thereafter,  finally  on  22.11.2005,  the  Lease  and  Licence
Agreements were executed between the State Government  and  the  petitioner-
appellant.  It was submitted that all the above steps were taken  in  public
domain and in fact one of the PIL-petitioner/respondent herein  K.P.  Sharma
was aware of the developments as far back  as  in  February  2005  that  the
project was to come up.  Yet he chose to sit by and do  nothing  until  2011
and  during  these  intervening  8  years,  the  State  Government  and  the
petitioner/appellant substantially altered their positions by spending  huge
sums of money in implementing the Project.  It was therefore submitted  that
the motive of respondent No.1/PIL petitioner is questionable because he  has
sought to disrupt a Project much after the public money  came  to  be  spent
even though he could have approached the High Court earlier.

48.         Learned counsel for the petitioner further  submitted  that  one
of the factors that the Court should look into before entertaining a PIL  is
to ensure whether the PIL has been filed promptly and in utmost good  faith.
 It ought to further consider whether by allowing  a  grossly  delayed  PIL,
the parties who have acted bonafide would be prejudiced and suffer.  In  the
present case, the petitioner/appellant has spent gratuitously on the  belief
that it had the right to develop 100 acres  of  land  leased  and  it  spent
Rs.10 crores on  restoring  the  Jal  Mahal  Monument  which  is  now  fully
restored and ready to be opened for the public.  It has paid  more  than  22
crores on lease rent alone and has built a 1.75  KM  long  public  promenade
over its leased land, substantively and the petitioner  during  this  period
completed the whole phase -1  under  the  agreement.   In  support  of  this
submission, the petitioner/appellant relied upon the ratio of  the  decision
delivered in R.D. Shetty Vs. Airports Authority of India, 1979 (3) SCC  489,
where the Court despite holding that the State had violated  Article  14  of
the Constitution permitted the contract  to  continue.   The  Court  in  its
conclusions overlooked the rights and liabilities of  the  successful  party
on the  one  hand  and  the  conduct  including  delay  and  motive  of  the
PIL/petitioner on the  other  and  finally  upheld  the  right  to  continue
contract under challenge as it was of the view that  the  Court  may  refuse
relief to the party challenging the award of contract if  the  equities  are
in favour of the party holding the contract. In the instant case, it is  not
even the plea of the PIL/Petitioner that he himself  has  been  deprived  of
his rights.  Even in the case of State of M.P.  Vs.  Nandlal  Jaiswal,  1986
(4) SCC 566, this Hon’ble  Court  took  the  view  that  the  writ  petition
suffered from latches and thus considered it fit to dismiss it.

49.         It was added that in fact the PIL/petitioner in the  High  Court
Mr. K.P. Sharma is guilty of suppression of facts from the High Court as  he
had sent a complaint letter dated 12.06.2007 to the Supreme  Court  and  the
SC Registry was directed to submit a report dealing with all the  allegation
raised by PIL/petitioner.  The SC Registry took the  report  on  record  and
closed the matter on 20.12.2007.  The petitioner K.P. Sharma thereafter  did
not move forward and suddenly after 4 years in  April  2011,  filed  a  writ
petition by way of PIL in  the  High  Court  without  even  disclosing  that
complaint had been enquired by the Registry of the  Supreme  Court  and  the
matter was closed.  However, the PIL/petitioner made a  further  application
to the Supreme Court in the year 2011 but the Additional  Registrar  of  the
Supreme Court vide letter dated 11.10.2011 informed the PIL/petitioner  that
pursuant to GOR Report, the file had been closed and  the  file  was  weeded
out on 14.04.2011.  Thus,  the  PIL/petitioner  was  clearly  aware  of  the
factual report of the GOR to the effect that the SC Registry had closed  the
matter based upon that report, yet the PIL/petitioner K.P. Sharma failed  to
disclose this vital fact  to  the  High  Court.   Thus,  the  PIL/petitioner
deliberately tried to mislead the Court and has not come to the  Court  with
     clean hands.  It was therefore contended that it cannot  be  overlooked
that the complaint  of  the  PIL/petitioner  to  the  SC  Registry  and  its
rejection thereafter based upon a factual  report  submitted  by  GOR  is  a
vital and material fact that ought to have been disclosed to the High  Court
specially since the allegations in the complaint and the  PIL  substantially
overlap.
50.         It was next contended  that  the  PIL  by  the  petitioner  K.P.
Sharma lacks the bonafide to prefer the PIL/petition because his conduct  is
malicious  and  vindictive.   Elaborating  on  this,  it  was  stated   that
PIL/petitioner K.P. Sharma with Dr. Brij Gopal had approached the  appellant
in the year 2007 purporting to offer their  services  for  monetary  reward.
Since the appellant had already engaged a lead panel of conversationist  and
environmentalist, the services of  the  PIL/petitioner  were  not  required.
Thereafter, the PIL  was  filed  only  as  a  way  to  vent  his  pique  and
frustration at the SLP petitioner/appellant herein.  It was  submitted  that
these vital background facts ought to have been disclosed to  the  Court  at
the time of preferring the PIL and since these  facts  were  suppressed  and
not disclosed, it is apparent that the PIL petition had not been filed  bona
fide and had been preferred for own vexatious reasons.
51.         It was further contended that the High  Court vide the  impugned
order  has  proceeded  on  a  patently  erroneous,  illegal  and   factually
incorrect basis when it  held  that  the  public  trust  has  been  breached
because land admeasuring 13 Bighas 7 Biswas forming part  of  Lakebed  which
has  been  leased  to  the  petitioner/appellant  vide  lease   deed   dated
22.05.2005 is void in law.  It was explained in this regard that  13  Bighas
17 Biswas of land equivalent to 8.65 acres of land from the  very  inception
has been reflected and treated as part of the land that was proposed  to  be
leased.  This land was described in the  original  Detailed  Project  Report
which was prepared much earlier in the year 2001 when this land  was  formed
part of the fish shaped land.  It  is  highlighted  that  during  the  first
attempt to initiate the Project Jal Mahal and preparation  of  the  Detailed
Project Report (‘DPR’ for short), the petitioner/appellant  was  nowhere  in
the picture.  In this regard, it had been contended by  the  respondent  PIL
petitioner that the area admeasuring  13  Bighas  17  Biswa  bearing  Khasra
No.67/316 (8.65 acres approx.) is part of the  lake  area  as  per   revenue
record which is recorded as “gairmumkin talab” and therefore could not  have
been leased to the petitioner.  Contesting this plea, it  was  submitted  by
the petitioner/appellant that Khasra No.67/317 does not  form  part  of  the
submerged area and is in fact a part of landmass  which  is  outside  water.
The survey reports placed on record leave no doubt on this  score.   It  was
submitted that the consistent and specific case of  respondent  No.6/Project
Development Corporation of Rajasthan (‘PDCOR’ for  short),  this  land  does
not constitute part of submerged land.   However,  revenue  record  reflects
this land as gairmumkintalab and the State has entrusted the preparation  of
the Jal Mahal  Tourism  Project  that  includes  ecological  restoration  of
Mansagar Lake Restoration  of  the  Jal  Mahal  Monument  and  the  Lakeside
Development  on  the  land  leased  to   the   petitioner.    However,   the
petitioner/appellant has also added that it has no desire  or  intention  to
construct or in any manner commercially utilise  this  land  and  should  be
open to the public.  As a matter  of  fact,  respondent  No.2/the  State  of
Rajasthan had specifically informed the  High  Court  that  no  construction
shall be allowed to be raised on the said area and hence this can hardly  be
a ground for quashing  the  award  of  the  entire  Project.   It  has  been
submitted that this Court can uphold the award of the  Project  despite  the
alleged illegality by keeping the area open in green and the same cannot  be
a reason to entail a consequence  of  cancellation  of  the  entire  Project
resulting  into  huge  loss  of   Project   to   larger   public   interest.
Cancellation of the Lease and Licence Agreement in such  circumstance  would
be patently erroneous and in conflict with  settled  law.   Learned  counsel
for the petitioner has  relied  upon  the  ratio  of  Century  Spinning  and
Manufacturer Company Limited Vs. Nagar Municipal Corporation, 1970  (1)  SCC
582.  Finally, on this point, it was urged that the High Court at  the  most
could have severed reference to the said 13  Bighas  7  Biswa  of  land  but
should have upheld the lease pertaining to the  rest  of  the  land  as  the
Lease Agreement expressly permits such severance vide  Clause  18.4  of  the
Lease Deed.
52.         Learned Attorney General on behalf of  State  of  Rajasthan  had
contended that on spot inspection by Jaipur Development Authority(‘JDA’  for
short) showed that no lake existed in 13 Bighas 17 Biswas of land  and  that
this land was a landmass.  The reason for including this area in  the  lease
deed was to maintain the shape of the  allotment.   It  was  further  argued
that Court may direct this area to be kept open as no construction zone  and
may be kept open excluding the  area  which  has  been  consumed  in  public
promenade.
53.         The High Court  however  had  held  that  14.15  acres  of  land
submerged formed part of the Lakebed and could not  have  been  leased  out.
Assailing this view taken by the High Court,  it  was  contended  that  this
Court would have to adopt an objective  test  to  determine  which  land  is
classified as Lakebed and for this purpose reliance has been placed  on  the
ratio of the decision delivered in the  matter  of  Noida  Memorial  Complex
Judgment, 2011 (1) SCC 74.  It was submitted that reference to  the  revenue
record with  respect  to  100  acres  lease  shows  that  even  though  land
admeasuring  14.15  acres  is   submerged   in   water,   historically   and
contemporaneously this land has been classified as ‘barren’ land and not  as
part of the Lakebed and also for that reason  is  not  a  wetland.   It  was
further elaborated that the PDCOR,  the  body  that  prepared  the  Detailed
Project  Report  had  carried  out  land  surveys,  prepared   topographical
surveys, output surveys, water quality tests  and  received  secondary  data
from Survey of India  etc.  which  has  been  incorporated  in  the  counter
affidavit before this  Court  and  before  the  High  Court  explaining  the
reasons for submergence.  PDCOR has stated in its affidavit  that  the  said
14.15 acres of land was submerged due to huge silt deposits that had  caused
the depth of the lake to reduce and as a result  the  water  had  spilt  out
into adjacent land being the concerned 14.15 acres of land.  Thus, the  said
land was never part of the Lakebed and for this reason, is  not  a  wetland.
Factually, out  of  the  14.15  acres  permitted  to  be  reclaimed  by  the
petitioner under the lease deed dated 22.11.2005  the  petitioner  has  only
reclaimed approximately 11 acres out of which approximately  6-7  acres  has
been consumed for creating a public promenade open to the public.
54.         In fact, the learned Attorney General on  behalf  of  the  State
had also argued that this land of 14.15 acres was never part of the  Lakebed
as per revenue records.  The Attorney General also stated further  that  the
approach of the High Court is completely contradictory.  While  on  the  one
hand, in respect of the 13 Bighas 17 Biswas area, the  revenue  records  are
relied upon, in respect of the area of  14.15  acres,  the  revenue  records
which clearly show that this area is not a part  of  lake,  is  disregarded.
Based on  the  revenue  records  referred  and  shown  to  this  Court,  the
inevitable and indisputable conclusion that appears is that the  entire  100
acres land leased to the petitioner is not a part of the Lakebed  except  13
Bighas 17 Biswas bearing  Khasra  No.67/317  (8.65  acres).  It  would  thus
follow  that  this  land  cannot  form  part  of  the  Lakebed   under   any
circumstance.
55.         Besides the above, it  was  urged  that  over  the  years,  huge
amount of silt had been deposited onto  the  Lakebed  by  the  Nagtalai  and
Brahmpuri Nala as a result of which the depth of the land has reduced  which
resulted in spilling  of  the  water  from  the  lake  into  adjacent  areas
including the land adjacent to it.
56.       On the premise of the aforesaid facts, it was urged that there  is
no violation of the public trust doctrine as public  trust  doctrine  cannot
be applied to defeat  public  interest.The  Project  as  approved  and  when
implemented would in fact create an unprecedented Lake water front  ambience
and would be the only large water body in Jaipur that had been subjected  to
massive destruction over the years. In fact, the Project  would  inter  alia
create approximately 1.5 km long walkway (promenade) along  the  lake  which
has been constructed by the petitioner/appellant on the leased land that  is
open for use by the public.  Importantly, another 3.5 km promenade has  been
built by the JDA along the Lake. A perennially filled Lake  admeasuring  310
acres (approx.)  with  a  depth  between  3  to  5  metres  and  a  complete
renovation and restoration of Jal Mahal Monument with  a  pleasure  pavilion
built in the mid 18th century, the restoration includes  artistic  paintings
depicting Rajasthani culture. The Project includes access  to  the  restored
monument by the public on paying a nominal  charge  of  Rs.25/-  per  person
essentially a cost towards being carried by boat to the Monument,  a  crafts
village to promote handicrafts and other world famous heritage  products  of
Rajasthan,  an amusement park for the public, a restaurant  positioned  with
adequate setback from the Lake, for the public to enjoy clean  surroundings,
a heritage resort, a convention and Exhibition center to serve  multipurpose
functions.  It was submitted that these highly pro  public  elements  cannot
be negated and  destroyed  by  erroneous  contentions  raised  in  the  PIL.
Indeed, the aforesaid enormous  improvement  to  the  environment  involving
air, water and land, is itself in high  public  interest  and  this  Hon’ble
Court should countenance no dilution in that.
57.         It was next submitted that the conclusion in the impugned  order
that the Lake has been artificially reduced to get more land and lake  water
level  and  its  spread  had   been   reduced   is   completely   erroneous,
unsustainable because it is the petitioner and the State who  have  together
restored 310 acres (approx.) of the Lake that has resulted in  ensuring  the
Lake remains filled with water around the year having the depth of around  3
to 5 meters, whereas earlier it was nothing but a cesspool of filth,  sewage
and silt etc.
58.         The factual context of this issue has  been  summarized  by  the
petitioner in order to  demonstrate  the  grave  and  patent  error  of  the
impugned order and it has been stated as follows:

      i     The level of Jaipur-Amer road is 100 m RL,  and  the  full  tank
           level of the lake is 99 m RL.
      ii    The plinth level of the Jal Mahal Monument is however only 98.12
           RL i.e. almost 2 metres below the Jaipur-Amer road level.
      iii. It is obvious that a water level equal to the  Jaipur-Amer  road
           level would not only create problem for  surrounding  areas  but
           would seriously damage and impair  the  Jal  Mahal  Monument  by
           entering it and eroding its structure.
       iv. Consequently, from the creation of the DPR in 2001 which was not
           known to the petitioner, the Government has recognised that  the
           water level of the lake should not be kept above 98 m RL.

59.         It is stated that DPR is not only a final document  but  in  its
final form has been approved without objection or protest  by  the  Ministry
of Environment and  Forest  (‘MOEF’  for  short)  under  the  National  Lake
Conservation Plan (NLCP) Guidelines and in  particular  the  clause  dealing
with maintenance of water level at 98 m RL which  has  been  considered  and
approved by the MOEF.  In any event, without prejudice to the foregoing,  it
was submitted that the impugned order  is  patently  erroneous  in  that  it
purports to act as  a  MOEF,  Pollution  Control  Board,  State  Environment
Regulatory Authority, Independent and International Experts  and  Consultant
all rolled into one.  It is impermissible under established judicial  review
parameter to admit the role of second-guess  expert  body.   It  is  equally
impermissible for a Court to substitute its  review  in  respect  of  highly
complex factual technological and scientific issue.  The  Court  cannot  sit
either an expert or arbitrate or as an appellate body nor  can  it  allow  a
PIL petition to convert  it  into  a  super  regulator.   To  reinforce  the
submission, reliance was placed on the ratio and observations  made  in  the
matter of Tata Cellular Vs. Union of  India,  1994  (6)  SCC  680.   It  was
submitted that unfortunately the impugned order has committed precisely  the
aforesaid errors repeatedly, inter alia in  respect  of  size  of  lake  and
water level of the lake.
60.         It was  pointed  out  that  prior  to  the  petitioner/appellant
taking up the Project, the  Lake  was  virtually  empty  except  with  dirt,
sewage and silt.  The very use of the word ‘reducing of the water level’  is
highly misleading and inappropriate.  It is  the  petitioner  alongwith  the
State who has ensured the  availability  of  clean  water  around  the  year
rather than reducing the level of the Lake.   It  was  still  further  added
that since Mansagar Lake is a manmade lake, the principle  source  of  water
during and after the restoration  work  has  been  treated  sewage/effluence
coupled with some replenishment during monsoon.  Consequently,  in  view  of
the release of post treated sewerage water into the Lake, the regulation  of
the water level at 98 m  RL  has  always  been  an  intrinsic  part  of  the
Government’s regulation of the entire area.
61.         It was submitted that it is axiomatic in law and  in  fact  that
the award of a tender must  necessarily  be  judged  by  the  terms  of  the
tender, subject to permissible variations.  It is most significant  to  note
that the  RFP  on  the  basis  of  which  everyone  was  invited  to  tender
prescribes, specifies and stipulates the clear water level at 98 m  RL.   It
is common ground that neither the PIL petitioner nor any  bidder  or  anyone
else has challenged the per se stipulation of the water level at  98  m  RL.
Therefore, the allegation of the  PIL  petitioner  is  absolutely  baseless.
Consequently, it was contended that  the  respondents  contention  that  the
petitioner/appellant is guilty  of  reducing  Lake  water  level  is  highly
misleading and distorted submission which has been accepted in the  impugned
order contrary to the factual position.
62.         It was further urged that  the  PIL  petitioners’/  respondents’
herein penchant for false, distorted  and  misleading  submissions  alleging
reduction of the size of the lake and the spread of the lake  alleging  that
this was done by keeping the water level at 98 m RL thereby giving  enhanced
area  of  land  to  the  petitioner/appellant  herein  and  correspondingly,
diminishing the spread of the lake is equally  fraudulent  and  deliberately
distorted for the following reasons:

      i     It is vital to note that the Detailed Project Report (DPR)  made
           in 2001 at  least  two  years  before  even  the  Expression  of
           Interest  was  issued  for  the  present  Project  and  the  SLP
           petitioner  herein/appellant  was   nowhere   in   the   picture
           categorically gives the landmass area available at each  of  the
           three different levels of 100 m RL, 99 m RL and 98 m RL  of  the
           lake and then goes on to specifically declare that the best  and
           the only feasible solution to prevent damage to  the  Jal  Mahal
           Monument is to keep the water level at 98 m RL,  neither  higher
           nor  lower  vide  DPR.    Consequently,   the   SLP   petitioner
           herein/appellant had nothing whatsoever to do with a decision to
           maintain  the  water  level  at  98  m  RL.   It  is   therefore
           deliberately misleading for  the  PIL  petitioner  /  respondent
           herein to suggest that because the water level is kept at  98  m
           RL, the SLP petitioner has  been  given  a  greater  land  area.
           Thus, it is submitted that it is patently false for  the  simple
           reason that irrespective of the water level, the  land  actually
           given in the RFP is the necessary controlling tender document is
           no more than 100 acres and even if 99 m RL which  is  full  tank
           level had been fixed as  the  lake  level  even  then  the  land
           available for the successful bidder would be  100  acres.   This
           underscores the point that 98 m RL level  was  not  the  guiding
           factor while granting 100 acres to the petitioner.
63.         It was further contended that the  High  Court  has  erroneously
relied on a PWD document that states the area of the  lake  has  reduced  to
0.79 sq. km after independence whereas prior to  independence  according  to
the High Court it was 1.154 sq.  km.   However,  the  High  Court  does  not
appreciate and consider that the DPR was prepared  in  2001  after  carrying
out extensive surveys and preparing  topographical  maps,  after  doing  all
such research and based upon all such material it was determined by the  DPR
that the size of the lake was 130 hectares more  than  what  it  purportedly
was prior to  independence.   It  was  therefore  submitted  that  the  High
Court’s finding on this aspect suffers from lack of application of  mind  to
the material on record and it was submitted that if anything,  the  size  of
the lake  from  independence  has  only  increased.   Consequently,  it  was
submitted that the two vital and unchangeable parameters  show  the  falsity
of the PIL petitioner contention viz.
      (a)   A decision fixed and taken more than two years before the tender
           in 2001 to get the lake level at 98 m RL.
      (b)   A decision taken in the RFP to lease out no more than 100 acres,
           once these two  polar  points  are  fixed,  assuming  everything
           against the petitioner/appellant herein or the State  Government
           that can be no prejudice or detriment  of  any  kind  to  public
           interest.


64.         It was next contended that the  High  Court  conclusion  on  de-
silting is patently erroneous and unsustainable  because  de-silting  was  a
sanctioned activity under NLCP and MOEF had sanctioned funds  for  the  said
purpose.  The DPR had provided for de-silting as a measure to  increase  the
depth of the lake so as to enhance  the  water  holding  capacity  thus  de-
silting had a scientific basis  to  it.   In  fact,  in  the  meeting  dated
03.04.2006  which  was  held  to  review  the  lake  restoration  under  the
Chairmanship  of  Principal  Secretary,  Urban  Development   and   Housing,
permission was granted to the petitioner/appellant to de-silt  the  lake  to
achieve 2 meters depth at its  own  cost.   Therefore,  the  petitioner  had
valid permission from the State  Government  to  carry  out  de-silting  and
there was nothing illegal in the manner rather than minutes of  the  meeting
show that it was a well considered decision of  the  Committee  and  was  in
line with the DPR.
65.          The  petitioner/appellant  submitted  that  the  High   Court’s
finding is patently erroneous and unsustainable as except  for  the  revenue
entries showing 13 Bigha and 7 Biswa of land as gairmumkin  talab  no  other
parcel of land that was leased to the petitioner was part of the Lakebed  as
per the revenue entries.  Only because silt was dumped on  the  land  leased
to the petitioner, cannot make land that was not part of the Lakebed, as  is
evident from the revenue record and is now suddenly being asserted  as  part
of the Lakebed.  It is  being  stated  that  it  is  always  advisable  that
Lakeside development should be at higher level than the water level.
66.         On a consideration of the rival submissions urged on  behalf  of
the   contesting parties, in  the  light  of  the  factual  matrix  and  the
materials which were produced before the High  Court,  it  clearly   emerges
that the PIL petitioner/ respondent NO.1 herein K.P. Sharma   had  contended
that  the lease executed and granted to the appellant  for  development   of
100 acres land was illegal, arbitrary disturbing the  natural   resource  of
lake which was fit to be struck down  as invalid   as  the  100  acres  land
was carved out from the lake area and thus the breadth  and  height  of  the
lake was reduced.
67.         However, on a scrutiny of materials  on  record  which  included
the revenue record of the land in question, it is sufficiently   clear  that
the man made Mansagar lake  comprised of an area of  only  3  hundred  acres
towards  the  lake  area.   Counsel  for  the  respondents/PIL  petitioners,
however, at the outset  and as the first and foremost point sought  to  make
good the submission  that the lake area was reduced by 100 acres  which  was
leased out to the appellant/lessee by  reducing  the  lake  area.   But  the
counsel  in spite of his best efforts could not establish  the  same  except
the fact that 8.65 acres and 14.15 acres were submerged  area  of  the  lake
and lakebed respectively which was carved out as land area so as to make  it
a part of the 100 acre  land  area.   In  fact,   even  on  perusal  of  the
impugned judgment and order of the High Court  it could not  be  established
even remotely that the entire 100 acres land which  comprises  the  area  of
lease deed is a part of the lake or lakebed in any manner. In fact, all  the
contentions which had been raised before the High Court as also before  this
Court in general terms urged that the lake area  has  been  reduced  to  310
acres and 100 acres have been carved out of 400 acres  of  lake  area  which
was reduced to 310 acres.  But in  clear,  specific  or  precise  terms,  it
could not go beyond urging that 8.65 acres which was submerged and  hence  a
portion of the  Lake area, could not have been made a  part  of  the  leased
area.  In this context, it was further urged that  this  area  being  a  wet
land, could not have been included in the leased portion  of  the  land  for
which the development was permitted by executing a lease deed.
68.         When this plea was scrutinised  in the light  of   the   revenue
record, it could be noted that this area has been recorded  in  the  revenue
record  as ‘gair mumkin talab’ .  Based on this entry, it was  submitted  by
the PIL petitioner/ respondent herein that  ‘gair mumkin talab’  area  could
not have been allowed to be developed by raising construction as that  would
be clearly contrary to the Wet Land Rules  which was enacted for  the  first
time in  the  year  2010.   In  other  words,  the  contention  of  the  PIL
petitioner/ respondent No.1 herein is that since 8.65 acres  of  land  which
forms  part of 100 acres leased area granted to the appellant  is  submerged
under water which area according to the  PIL  petitioner/  respondent  would
also form part of the lake,  the State Government could  not  have  included
this land in the leasehold area to be granted to the petitioner/appellant.
69.         The appellant/lessee on his  part  confronting  this  submission
argued that this Court  would have to adopt an objective test  to  determine
which land claimed as  Lake Bed and wet land is fit to be accepted  and  for
this purpose placed reliance on the ratio of the decision delivered  in  the
matter of Noida Memorial Complex (2011) SCC 744 paras 24 and 25  which  held
as follows:

      “24. In support of the applicants’ case that there used to be a forest
      at the project site he relies upon the report of the CCF based on site
      inspection and the Google image and most heavily  on  the  FSI  Report
      based  on  satellite  imagery  and  analysed  by  GSI  application.  A
      satellite image may not always reveal the complete story.  Let us  for
      a moment come down from the  satellite  to  the  earth  and  see  what
      picture emerges from the government records and how things  appear  on
      the ground.  In the revenue  records,  none  of  the  khasras  (plots)
      falling in the project area  was  ever  shown  as  jungle  or  forest.
      According to the settlement year 1359 Fasli (1952 AD) all the  khasras
      are recorded as agricultural  land,  banjar  (uncultivable)  or  parti
      (uncultivated).


      25.  NOIDA was set up in 1976 and the lands of the project  area  were
      acquired under the Land Acquisition Act mostly between the years  1980
      to 1983 (two or three plots were notified under Sections  4/6  of  the
      Act in 1979 and one or two plots as late as in the year 1991). But the
      possession of a very large part of the lands under  acquisition  (that
      now form the project site) was taken over in the year 1983.  From  the
      details of the acquisition proceedings furnished  in  a  tabular  form
      (Annexure 9 to the counter-affidavit on behalf of Respondents 2 and 3)
      it would appear that though on most of the plots there were properties
      of one kind or the other, there was not a single tree on  any  of  the
      plots  under  acquisition.   The  records  of  the  land   acquisition
      proceedings, thus, complement the revenue record of 1952 in which  the
      lands were shown as agricultural and not as jungle or  forest.   There
      is no reason not to give due credence  to  these  records  since  they
      pertain to a time when the impugned project was not even  in  anyone’s
      imagination and its proponents were nowhere on the scene.”

Placing reliance on the aforesaid categorical view taken by this  Court,  it
was submitted that a reference to the revenue records with respect  to   the
100 acres lease shows  that even though  the  land  admeasuring  8.65  acres
might have been submerged under water, historically  and  contemporaneously,
14.15 acres has been  classified as ‘barren land’  and not as  part  of  the
Lake Bed.   It, therefore,  must   follow  as  per  the  submission  of  the
counsel for the appellant placing reliance on the revenue records  that  the
14.15 acres forming part of  100 acres leased to the appellant    is  not  a
part of the Lake Bed and also for that reason is not a Wet Land.
70.          It  was  further   urged   that    the   Project    Development
Corporation (PD COR) of the State of Rajasthan, the body that  prepared  the
Detailed Project Report  in the year  2001,  when  the  petitioner/appellant
was not in the picture in any manner  carried  out  land  surveys,  prepared
topographical surveys , output surveys, water  quality  tests  and  received
secondary data from Survey of  India   etc.  as  in  the  counter  affidavit
before this Court and before  the  High  Court  explained  the  reasons  for
emergence  of this area of 14.15 acres of land.  It was further pointed  out
that the PDCOR  has stated in its affidavit    that  the  said  14.15  acres
land emerged  due to  huge silt deposits that had caused  the depth  of  the
lake to reduce and as a result, the water had spilt out into  adjacent  land
 being the  concerned 14.15 acres of land.  Based  on  this  project  report
prepared at the instance of PDCOR, it was argued  that the  said  land   was
never part of the Lake Bed and is not for this reason a Wet  Land .  It  was
further  added that  factually out of the  14.15   acres   permitted  to  be
reclaimed by the appellant under the   Lease  Deed        dated  22.11.2005,
the  appellant  has  only  claimed  approximately  11  acres  out  of  which
approximately 6-7 acres has been consumed by the appellant  for  creating  a
public  promenade  open to the public.
71.          The  appellant  sought  to  add  additional   weight   to  this
argument  by placing  reliance on the submission  of  the  learned  Attorney
General on behalf of the State who had argued that this land of 14.15  acres
was never part of the Lake Bed as per the  revenue  records.    The  counsel
further pointed out  that the Attorney General  had further  submitted  that
the  approach of the  High  Court  was  completely  contradictory   in  this
regard.  While on the one hand in respect of the 13 bighas 17 biswas    area
equivalent to 8.65 acres, the revenue records  had  been  relied  upon,  the
same was not taken care of and relied upon in respect of the area  of  14.15
acres although, the revenue records clearly show that this  area  is  not  a
part of the lake and yet it was  disregarded by the High Court.
72.         On the aforesaid aspect, it was further  urged  that   based  on
the revenue  records  referred  and  shown  to  this  Hon’ble  Court  ,  the
inevitable  and indisputable   conclusion that appears is  that  the  entire
100 acres  land leased to the appellant is  not  a  part  of  the  Lake  Bed
including 13 bighas 17 biswas  bearing  Khasra  No.67/317  corresponding  to
8.65 acres.  It was submitted that from this   it ought to follow that  this
land could not have been held to be forming a part of  the  Lake  Bed  under
any circumstance.
73.         The PIL petitioner/respondent No.1 herein   had  further  argued
that the project is illegal because no  sanction  for   this   project   had
been  received  under  the  Wet  Land  Rules  2010  and,   therefore,    the
respondents have sought for a declaration of the Lease Deed being void.
74.         Challenging this part of the argument urged on  behalf   of  the
PIL petitioner/respondents herein, it  was  contended   on  behalf  of   the
appellant   that the language of the Wet Land Rules 2010  when  referred  to
in detail makes it clear  that these rules  can only apply  in  a  situation
where  the  Central  WetLand  Authority  ,  a  Government  of   India   body
established under the Wetland  Rules 2010 sends its  recommendation  to  the
Central Government  for  notifying a  certain area  as a wetland.    It  was
urged  that in the present case, it is undisputed  that when the Lease  Deed
 was executed and environmental clearance (EC) from State Level  Environment
 Impact Assessment Authority  (SEIAA for short) was granted  on   29.4.2010,
the Wetland Rules  2010 were not even enacted.  Therefore, the  question  of
 Wetland Rules 2010 applying   to  the  project  retrospectively  would  not
arise.  Even otherwise under the Wetland Rules 2010,  there  is  a  detailed
procedure specified which has to be  complied  with  mandatorily  before  an
area can be notified as a wetland.  It was submitted  that  in  the  present
case even after the Wetland Rules 2010 came into force,  no  such  procedure
admittedly has been undertaken to identify  Mansagar Lake as a wetland  when
these PILs were filed.  It was further contended in this  regard  that  such
a project is contrary to the specific intent  of  the  framers     which  is
unequivocal   viz   even  assuming    that   an   area    is   zoologically,
scientifically, environmentally  or   technologically  to  be  factually   a
wetland, it does not  become  so  legally  unless  and  until  the   persona
designata  under  the  delegated  legislation   so  declares   it   to   be.
Admittedly, that  persona  designata   is  only  the  specialized  authority
appointed under the rules and has chosen not to   exercise  its   power  for
the Mansagar Lake.
75.         It was still further contended on behalf of the  appellant  that
the  technique  of applying a law  by    notification  to  a  specific  fact
situation is an  age  old  parliamentary  technique  and/or   the  technique
applied  by  the  framers  of   delegated  legislation  like   the   Central
Government  who framed the Wetland Rules.  Even the  Apex  Court  would  not
consider it legally  appropriate  to issue a mandamus to  notify  and  bring
into force legislation or a  delegated  legislation  until  and  unless  the
persona designata under that regime chooses to do so.  In  support  of  this
 proposition  of law, learned counsel for the appellant has placed  reliance
on the following case laws:  (1982) 1 SCC 271 at page 308, 310 paras 51  and
59 A.K. Roy vs. Union of India when it recorded as follows:
   “……the question which was put in the forefront by  Dr.  Ghatate,  namely,
   that since the Central Government has failed to exercise its power within
   a reasonable time,  we  should  issue  a  mandamus  calling  upon  it  to
   discharge its duty without any  further  delay.   Our  decision  on  this
   question should not be construed as putting a seal  of  approval  on  the
   delay caused by the Central Government  in  bringing  the  provisions  of
   Section 3 of the 44th Amendment Act into force…………But we  find  ourselves
   unable to intervene in a matter of this nature by issuing a  mandamus  to
   the Central Government obligating it to bring the provisions of Section 3
   into force.  The Parliament having left to the unfettered judgment of the
   Central Government the question as regards  the  time  for  bringing  the
   provisions of the 44th Amendment into force, it is not for the  court  to
   compel the government to do that which, according to the mandate  of  the
   Parliament, lies in its discretion to do when it considers  it  opportune
   to do it.”

Similarly reliance was placed on  the  judgment  and  order  of  this  Court
reported in (2002) 5  SCC 44 at 49-50 para  7 delivered  in  the  matter  of
Union of India vs. Shree Gajanan Maharaj Sansthan  when  it  concurred  with
the view that no mandamus could be issued to the executive directing  it  to
commence the operation of the enactment  although  non-issuance  of  such  a
direction should not be construed as any   approval  by  the  Court  of  the
failure on the part of the Central Government for a  long  period  to  bring
the provisions of the enactment into force; leaving it to  the  judgment  of
the Central Government to decide as to when the various  provisions  of  the
enactment should be brought into force.
76.         Relying on these  decisions  it was urged  that from  the  ratio
of these decisions it follows that  since Mansagar Lake  itself   is  not  a
Wetland,  therefore, the contention of the respondents that the entire   100
acres  land leased  to  the  appellant  is   part   of  the  Lake  Bed  and,
therefore,   a wetland  ought to be rejected outright  and  the  finding  of
the High Court  on  this  aspect   ought  to  be  reversed.    However,  Mr.
Jaydeep Gupta, learned senior counsel who was  appointed  to  represent  the
State of Rajasthan after the change of the Government in 2014  in  place  of
the Attorney General  Shri G.E. Vahanwati who  had  already  concluded   his
arguments  on  behalf   of  the  State  of  Rajasthan,  submitted  that  the
incumbent Government of Rajasthan cannot accept the interpretation given  to
the Wetland Rules  2010 by the previous government.   As           per   the
subsequent  stand  taken  by  the  counsel  for  the  new  government,   the
previous government ought to have identified wetland  in  the  State  within
one year of the Wetland Rule  2010 being enacted.  According to the  counsel
for the new  incumbent government,  since the previous government   did  not
undertake  the activity  of identifying  Mansagar Lake  as  a  wetland,  the
2010 rules have been violated.  Thus, it had been  urged by Mr.  Gupta  that
the stand taken by the previous government  before the High  Court  as  well
as  this Hon’ble Court is untenable.
77.         The appellant, in turn, has submitted that the change  in  stand
by the incumbent government should not be permitted by this Court.   It  was
submitted  that  reference  to  the  pleading   put  forward  by  the  State
Government on the issue of the wetland before the High Court and this  Court
has been categoric and specific .  It has been  expressly pleaded  that  the
Wetland Rules 2010  do not apply to the project and  that   the  said  rules
are not retrospective so as to affect the  project.   This  stand  has  been
specifically taken in the counter affidavit filed  by the  State  Government
in the three Special Leave Petitions preferred by Jal  Mahal   Resorts  Pvt.
Ltd.  It was, therefore, submitted that assuming   without   admitting  that
the incumbent State Government   can  withdraw   its  three   Special  Leave
Petitions, the appellant strongly disputes this and it   does  not    follow
and should not be allowed that the stand taken by the State  Government   in
the counter affidavit in the three SLPs filed  by  the   appellant  and  the
three SLPs filed by the State Government can in any manner   be  changed  or
altered.  In addition, it was submitted  on this aspect that the  stand   of
the State Government in the High Court should not be allowed to  be  changed
before the Supreme Court merely due to change of the  Government  after  new
elections were   held   and  it  has  been  strenuously   submitted  in  the
pleadings before this Court  by the State Government  earlier   through  the
Attorney General that the High Court  had gravely erred in law   in  holding
that the Wetland Rules  2010  were applicable  to the Project.  The  attempt
being made by the State Government  shifting   its  stand  which  was  taken
before the High Court and also before this Court when the  learned  Attorney
General  had appeared and concluded the arguments, it is  clearly  a  change
in stand from the stand taken by it from the High Court  right up  to   this
Court.
78.         It was submitted that the underlying  basis for  the   incumbent
State Government to change its stand has been justified by it based  on  its
understanding  of the  Wetland  Rules  2010.   According  to  the  incumbent
government  and  its   political  philosophy   Mansagar  Lake  ought  to  be
identified as a wetland.  According  to the incumbent government   the  fact
that the Mansagar lake was not identified  as  a  wetland  by  the  previous
government   itself was an  illegality  and  was  contrary  to  the  Wetland
Rules.
79.         Contesting the aforesaid stand taken  by  the  respondent-State,
the appellant strongly urged that such  an  interpretation  of  the  Wetland
Rules had been taken by the previous Government of Rajasthan   as  a  matter
of policy which had decided not  to  notify   Mansagar  Lake  as  a  wetland
keeping in mind the Master Plan of Jaipur since 1976.   As  per  the  Master
Plan, the Vijay Mahal Area  approximately 200 acres (including   the  entire
100 acres leased to the appellant) was to be urbanized  and  developed   for
tourism purposes.  Therefore, as  per  the  contention  of  the   appellant,
this    area naturally could not have been identified  as wetland.   In  the
alternative, it was submitted  that even otherwise   the  100  acres  leased
was  not  part     of  the  Lake  Bed  and,  therefore,   the  question   of
identifying  the leased  100 acres land as a wetland is  out  of  the  ambit
and scope of the question involved.
80.         In regard to  the  plea   pertaining  to  the   Master  Plan  of
Jaipur, it was submitted that  the  Master  Plan  has  statutory  force  and
since the Master Plan itself has identified   this area to  be  urbanized  ,
the question of it being declared as a wetland does not  arise.    In  fact,
the  Master  Plan  consistently   from  1976  onwards  has   provided   that
approximately  more  than  200  acres  of  land   is  available    for   the
development  of tourism facilities  on the southern  and  western  sides  of
the Mansagar Lake.  In view  of  these  aspects,  learned  counsel  for  the
appellant urged that the Mansagar  Lake  is not a wetland under the  Wetland
Rules 2010 and  100 acres leased land was  not a part of the  Lake Bed  and,
therefore,  the leased land  of  100  acres  is  not  a  wetland  under  the
Wetland Rules 2010.   As already stated hereinbefore, it was urged that  the
 Wetland Rules  2010 are not retrospective in nature since  the  Lease  Deed
was executed in the year 2005 and the wetland rules  framed thereunder   and
enacted  only five years later in 2010 when  implementation of  the  Project
had already started.
81.         In so far as the plea   taken by the  PIL  petitioner/respondent
herein regarding   reduction of the  Mansagar Lake area in  order  to  carve
out 100 acres of land is concerned, it was explained by  relying   upon  the
historical background  of the matter that Maharaja Man Singh   of  Amer  who
ruled  from the year 1589  to  1614,  constructed  the   Mansagar  Dam  much
earlier  than Jaipur   was  founded.   The  Mansagar  Lake  was  created  by
damming  Darbhawati River  on the north side  of  the  Khilangarh  fortress.
The purpose of the lake was to create a water body  that would cater to  the
 irrigation needs  and ground water   recharge  of  the area.  It was  urged
that the Mansagar Lake is a man-made  water body and its beauty,  therefore,
is not a  natural one but the creation of man.   Elaborating on  this  part,
it was submitted that certain  undisputed  facts established  that  100m  RL
is the Amer Road level.  At 99m RL is  the full tank  level  and  this   has
been admitted by the PIL petitioner   K.P.  Sharma   in  his  writ  petition
before the High Court and  98.12m RL is  the  plinth  level   of  Jal  Mahal
Monument as enumerated  in the Detailed Projects  Report  (DPR  for  short).
It was submitted  that admittedly one of the primary objects of the  Project
was to restore  Jal Mahal Monument.  Thus water level  had to be  maintained
at a level that ensured  plinth/ground floor of  the  monument  and  is  not
submerged and further weakened.   It was submitted that the Master  Plan  of
Jaipur 1976 establishes  that approximately 200 acres  of  land  located  in
Vijay Mahal  (including  the 100 acres land leased to the appellant) was  to
be developed for tourism  purposes.  Thus, obviously,  the  100  acres  land
leased to the appellant  pre-existed  the execution of the Lease Deed  dated
22.11.2005 and was available much before the  Project was undertaken.
82.         It was further contended  on behalf of the  appellant  that  the
hydrological modeling undertaken by the Project Development  Corporation  of
Rajasthan  (PDCOR)  in  Detailed   Project   Report   (DPR)   scientifically
determined  a sustainable water  level.   The  DPR  explored  the  following
water level scenarios  finally  chose a water level of  98m RL.   The  water
level scenarios examined scientifically reported  that water  could  not  be
maintained at 100m RL because at this  level  in  the   monsoons  water  can
flood the neighbouring  areas that are densely  populated   since  at   this
level water would be at  Amer  Road  level.   Consequently,  the  Jal  Mahal
Monument  would   be  nearly  wholly  submerged.     It   was   added   that
technically supplying so much quantity  of water  all the  year  around  was
not possible.
83.          It  was  further   contended   that  the  water  could  not  be
maintained  at 99m RL because at this level   lake   spread  and  volume  is
difficult to maintain through out the year this being  a  technical  matter.
Consequently, the lower floor  of Jal Mahal  Monument   would  be  submerged
having only terrace  and  first  floor  for  re-use.    Thus  the  appellant
submitted that 98m RL being the next  lowest water level after  99m  RL  was
considered  ideal  for maintaining water level.  It  was  argued  that  most
important thing if water level were to be fixed at 99m  RL  i.e.  full  tank
level then also  there  would  have  been  more  than   100  acres  of  land
available to lease, yet the appellant was granted only 100 acres.
84.         Learned counsel for the appellant  further  elaborated  on  this
by relying upon  Detailed Project Report (DPR) and urged that  as  a  matter
of fact the DPR found that the lake at  present   is  an  approximately  130
hectares in its full spread.  However,  “at first, a much  smaller   natural
shallow lagoon existed, on the edge  of which, the Jal Mahal  structure  was
located.  Thus, originally the spread  of the lake was much smaller than  at
present.  The spread of the lake has increased and the  depth  decreased  in
recent times mainly due to the silt deposits as a result of erosion.”
85.         It was contended that neither  the  respondents/PIL  petitioners
have challenged  the correctness of the DPR nor its scientific basis.   Thus
it is not open  to  them  to  advance  arguments  that  indirectly  seek  to
question the DPR.  It was submitted that the respondents are  bound  by  the
report of the DPR  entirely and wholly.
86.         The appellant further referred to the arguments advanced by  the
learned Attorney  General  on  behalf   of  the  State  of  Rajasthan    and
submitted that the approach of the High Court was  wrong   as  it  proceeded
on an erroneous basis that  the  Lake  Bed  was  manipulated   to  make  the
project viable while there was no such  manipulation.  The Attorney  General
has further  argued that the DPR was correct and the decision   to  maintain
water level at 98m RL  was  a   conscious,  well  informed  and  deliberated
decision taken to protect the integrity of the monument.   The  counsel  for
the appellant, therefore,   submitted  that  since   the  water  level   was
determined scientifically and much  before   the  appellant  came  into  the
picture rather was not even born in regard to this  dispute,  the   question
of its tampering   with the lake  so as to reduce the size of the lake  does
not arise and, therefore,  the  finding of the High Court   on  this  aspect
is contrary to the DPR and hence  deserves to be set aside.
87.         In regard to the question   pertaining   to  general  conditions
in Environment  Impact Assessment 2006 (EIA), it was  submitted  on   behalf
of the appellant  that  even  according  to  the  respondents-  Ministry  of
Environment  and  Forests  (MoEF)  is  the  appropriate   authority     with
jurisdiction  to decide  on the environment  impact of the  project  in  the
present case.  The MoEF being the author  of  EIA  2006  has  construed  its
own notification (EIA 2006) to mean that general conditions do not apply  to
Item  8 (a) and 8 (b)  projects.   Adding further on this it  was  contended
that it ought  to be  clarified that the need to issue  OM  dated  24.5.2011
was  felt because   OM  dated   28.4.2011  in  broad  terms   provided  that
category  B  projects  that  fell  within   10  KM  of  notified  critically
polluted areas  would be treated as category A  and general condition  would
be applicable to  such  projects.   MoEF  in  order  to  clarify   OM  dated
28.4.2011 issued  OM  dated  24.5.2011  that  expressly  provided  that  the
projects falling under Items 8 (a) and/or 8 (b)   do  not  attract   general
condition even if  such projects fell within   critically   polluted  areas.
It was urged on behalf of the appellant that  it  has  received  environment
clearance from SEIAA dated 29.4.2010.  This clearance  is in terms of    EIA
2006 and is, therefore,  valid.  It was added further  that as  the  general
conditions do not apply to the present project, as made  clear  by  MoEF  in
its affidavit and also by OM dated 24.5.2011, the appellant did not  require
clearance from MoEF.  Therefore,  the impugned judgment of  the  High  Court
ought to be reversed on this aspect as  it    failed   to  appreciate  these
crucial  facts.  It was still further submitted on this that even  otherwise
on an interpretation of EIA 2006,  it  becomes   apparent   that  MoEF   has
consciously decided   not  to  stipulate  general  condition  in   column  5
against Item 8 (a and 8 (b)  because  EIA 2006 has  issued   originally  and
till date  does not stipulate general condition against Item  8  (a)  and  8
(b) in the Schedule, while it does so with respect to  a  number   of  other
items  in the Schedule. It was  added  that  MoEF  vide  notification  dated
1.12.2009 had carried out  wide ranging amendments to the  Schedule  in  EIA
2006 and in doing so general condition had been stipulated/inserted for  the
first time against certain items.  However, while doing so,  the  MoEF   has
not stipulated  the general condition against  the Item  8  (a)  or  8  (b).
It is, therefore, evident that MoEF  consciously as a policy decision    has
chosen not to stipulate general conditions  against Item 8  (a)  or  8  (b).
Further paragraphs 4 (iii) of EIA  2006  provides  activities   included  as
category B in the Schedule  which require prior environment  clearance  from
SEIAA  except  those  that  fulfil  general  condition  stipulated  in   the
Schedule.  It was,  therefore, submitted    that since general condition  is
not applicable to Item  8  (a)  and  8  (b)  projects  irrespective  of  the
location  of   such  project,  therefore,  the   contention   of   the   PIL
petitioners/respondents and  the finding of the High Court  that  since  the
project  is within  10  Km  of  the   Nahargarh  Sanctuary    ought   to  be
declared as illegal without substance which is liable to be rejected.

88.         The learned Attorney General Mr.  Vahanvati  on  behalf  of  the
State of Rajasthan had also argued that the finding of  the  High  Court  on
this aspect is entirely incorrect as the  environment  clearance  from  MoFF
is not required for   this  project as the  general conditions specified  in
EIA 2006 did not apply to this project.    Therefore,  neither  general  nor
specific conditions apply  to Item 8 to the Schedule and  hence  environment
clearance  given by SEIAA is legal and valid.

89.         The PIL  petitioner/respondents  had  also  contended  that  the
Rajasthan Municipalities (Disposal of Urban  Land)  Rules  1974  (for  short
‘1974 rules’) have been violated since Jaipur  Municipal  Corporation  while
allotting  land   to RTDC has violated  certain norms and that  the  premium
was not charged  from RTDC  for  the  land  allotted  to  it  and   secondly
without any General  House Resolution     allotment  of  land  was  made  to
RTDC.  On this aspect it was submitted on  behalf  of  the   appellant  that
both the contentions are misplaced for the reason that under    18 (2)   and
the proviso to  1974 Rules, the State Government   can  exempt  the  payment
of  cost of land being allotted by   Jaipur  Municipal  Corporation  to  any
government  department.  In the present case, the Government decision  dated
9.2.2004 makes it clear that RTDC  shall not have  to pay any cost  of  land
to the land owning agencies including   Jaipur Municipal Corporation as  the
whole   intent   of   this  allotment  in  favour  of   RTDC  was  to   only
facilitate the project of  the Government.  As  a  matter  of  fact,  Jaipur
Municipal Corporation through its General  House  Meeting   dated  28.4.2004
was attended by at least 58 of its members who resolved to  allot  the  said
land to RTDC in order to implement the project.  Thus,  it  is   more   than
apparent  that  the Government had exempted charge of  any  kind  from  RTDC
for the transfer/allotment of land to which a furthermore  RTDC  through   a
transparent  and  well  considered   resolution  comprising  of  is  members
resolved to allot this land to RTDC.  Thus the contention of the  respondent
that the 1974 rules have been violated is wholly unsustainable  and  finding
of the High Court  on this aspect  therefore needs to be  reversed  and  set
aside.

90.         It was still  further  contended  that  the  Jaipur  Development
Authority Act 1982  was  not  violated  in  any  manner  and  the  appellant
submitted  that  rule 18  of the Rajasthan Improvement  Trust  (Disposal  of
Urban Land) Rules, 1974 enabled  JDA to allot land without any  adding  cost
of  the  land  if  the  State  Government  exempts  any  department  of  the
government from paying   cost  of  the  land.   In  the  present  case,  the
Government of Rajasthan  vide its  meeting dated 16.9.2003  had  noted  that
the JDA had issued orders for transfer of land to RTDC.   The  object  of  a
gazette notification   under Section  54 (3) is  to  keep  matters   in  the
public domain  but not to affect  3rd party   rights  since   the  land   is
merely being transferred  from a subordinate  state instrumentality  to  the
Sovereign State itself.  Thus, there is no  project cost in  view  of   non-
gazetting of  the  decision   of  the   Government  under  Section  54  (3).
Reference to  official gazette  under  Section  54  (3)   must  be  read  as
directory  and  not  mandatory  and  the  provision  has  been  specifically
complied with.

91.         It was further submitted  on  behalf   of  the  appellant   that
admittedly  development of tourism in Jaipur on  the  southern  and  western
side of Mansagar Lake has been an avowed   object   of  the  Jaipur   Master
Plan 1976, 2011 and 2025.   Thus the  project  is  in  alignment  with   the
Master Plan.  Jaipur Master Plan  is a statutory document under  Section  21
of the JDA Act 1982.  Section 26 mandates that once the Master Plan   is  in
force and JDA  must take  action  for  implementing   the  plan  as  may  be
necessary.  Thus, it is statutorily incumbent on the JDA  to  implement  the
Master Plan inter alia which enables development of tourism   in  the  given
area.  Undisputedly  approximately 43 acres  in the 100  acres  leased   was
vested in the JDA  and  transfer  to   it  for  the             purpose   of
developing the tourism project in the area designated  in  the  Master  Plan
referred to above.  Therefore, the land allotted by  JDA  to RTDC  was  also
for  implementation   of   JDAs  Master  Plan.   Therefore,  it   cannot  be
disputed  that the present project is a tourism project.   Thus,  there  was
ample authority with the JDA to allot land to RTDC under the  JDA  Act  1982
particularly  section   54   (1)   for   implementing   its   master   plan.
Cumulatively, it was submitted that the JDA under Section  54 (1)   has  the
power to allot land   vested in  it for  the  purposes   of   the  JDA  1982
subject to rules by the Government of  Rajasthan.   It  was  submitted  that
obviously allotment of land  to implement the  Master Plan of  the  JDA  Act
1982,  Rule 18  gives  Government  of  Rajasthan  power  to    exempt  State
Department from paying  cost  of  the  land   when  land  from  the  JDA  is
allotted.  Exemption  by the Government of Rajasthan  in  favour   of   RTDC
acting on behalf of Department  of Tourism  as an agent  from  paying   cost
of the land  is  traceable   to   power  vested  under  Rule  18  read  with
Government of  Rajasthan decision  dated  9.2.2004.   Hence  for  all  these
reasons, non-gazetting under Section 54 (3) was  not a requirement.

92.         Contesting the argument raised by the PIL  petitioner/respondent
that the State Government  has changed  the rules of the  tender  so  as  to
favour  the petitioner company in awarding the contract is  not   borne  out
by the record that has been produced  before this  Court   in  the  form  of
various collegiate,  transparent meetings that have been presided   over  by
the highest functionaries in the State Government, inter  -alia    including
the Chief Secretary, the Principal Secretary and various Head  or  statutory
authorities who participated  in  these meetings .   On a  perusal   of  the
pre-qualification  evaluation  report dated 6.10.2003 which was prepared  by
the Project Development Corporation of Rajasthan (PDCOR),  a  joint  venture
between the Rajasthan State Government  and  IL & FS, it  is  clear   beyond
any doubt  that  the  threshold   qualification   criteria  required  to  be
satisfied by the appellant  KDG  Enterprises  (  the  lead   Member  of  KGK
Consortium) stood  more than adequately  made out    when   KGK  Enterprises
satisfied   the  technical  requirement    and  the  financial  requirements
required under the  request for proposal.  It  is  pertinent  to  point  out
that KGK Enterprises  satisfied  the   substantive  provision  of  the  pre-
qualification  violation  criteria  (namely   the  technical  and  financial
capabilities).  In other words, the  technical  and  financial   bids   were
yet to be  opened and the criteria  that was satisfied  by  KGK  Enterprises
was  only  threshold    preliminary  criteria   at  the    pre-qualification
evaluation stage. A further    perusal of  this  report  makes  it  apparent
that PDCOR   has observed  that  the  tender  submitted  by  KGK  Consortium
through KGK Enterprises, the lead bidder was a partnership firm,  therefore,
the argument of the respondent that there  was   concealment   with  respect
to material fact does not  stand and is for this reason unsustainable.

93.          PDCOR   as  a  part  of   its   evaluation  report  and   other
correspondence recommended    that apart from the  other  two  bidders   who
had  satisfied  the  pre-qualification   evaluation   criteria,   even   KGK
Consortium should be permitted   for  being  considered  and  the  technical
evaluation  phase    as   KGK    Consortium   satisfied   the    substantive
conditions   at  the  pre-qualification  evaluation  stage.   PDCOR  in  its
recommendation  further opined that condition of   KGK  enterprises  at  the
subsequent  stage   would  promote  competition  amongst  the  bidders  and,
therefore,  be in public interest.  The intent of the RFP  according to  the
PDCOR  was never to  exclude  any    bona  fide  legal   entity    that  may
consider  putting its bid   subject to it satisfying   the  other  threshold
criteria as already stated hereinbefore.

94.          It  is  pertinent   to   mention   again     that   the   above
recommendations were transparent, bona fide  and  were  put  for    approval
before the Government of Rajasthan for considering  the  recommendations  of
PDCOR.  The Government of Rajasthan  after due deliberation  permitted   KGK
Enterprises to be considered for technical evaluation.

95.         Another important feature   of  the  tender  process   was  that
after the financial bids were opened only KGK Consortium  was  found  to  be
the highest bidder   by 39%, the matter was  considered  by  the   Empowered
Committee on Infrastructure  Development (ECID for short)  meeting held   on
 9.2.2004  headed by the  Chief  Secretary   with  other  senior  government
functionaries  attending .  In the  said  ECID    meeting  on  perusing  the
entire  tender process  decided to award the project to the highest   bidder
being the KGK Consortium.  Thereafter,   these recommendations  of the  ECID
were  put  up    for  the  approval   of   the  then  Chief   Minister   who
unreservedly   endorsed  the  decision of the ECID  dated  9.2.2004.

96.         Thereafter, on 30.9.2004, the Government of Rajasthan  issued  a
letter of intent to KGK Enterprises  (lead Member of   KGK  Consortium)  for
award of  the project.  The final decision  in the decision making   process
that  culminated in the execution of   the   lease  and  license   agreement
was taken by the Chief Minister on 27.10.2005 whereby it was  approved  that
the execution of the lease and license  agreements be entered  into  by  the
State Government with the highest  bidder M/s. Jal Mahal Resorts  Pvt.  Ltd.
a Special Purpose Vehicle Company of KGK Consortium.

97.         It   was,  therefore,  submitted  that  on  a  perusal  of  this
detailed  decision making process undertaken by the Government of  Rajasthan
   during   the  regime  of  successive  Chief  Minister   after  which  the
government contested the PIL petitioner  before   the  High  Court  as  also
before this Court  through the  Attorney General, there  is  no  doubt  that
the  decision taken to approve the project and execution of Lease Deed   was
a bona fide decision for the general and overall betterment  of the  project
meeting the area around the Jal Mahal and,  therefore,    no  fault  can  be
found in regard to the decision  even  if   certain  procedural  relaxations
were  granted  for  approving  the  project.   In   sum  and  substance,  it
  was submitted that in so far as the relaxation                 granted  in
concerned, the action of the State  Government                  was     bona
fide   approved   by   the   previous   and   subsequent   government     of
Rajasthan which was bona fide and cannot be called  unfair   or  illegal  in
any manner.

98.         In support of  the  submission,  the  learned  counsel  for  the
appellant has cited several  authorities  of this Court  inter  alia   being
BSN Joshi & Sons vs. Nair Coal Services Ltd. & Ors. (2006) 11  SCC  548  and
the relevant portion at 571 para 66 (v) and (vii) states as follows:

   “(v)     when a decision is taken by the appropriate authority  upon  due
   consideration of the tender document submitted by all  the  tenderers  on
   their own merits and if it is ultimately found  that  successful  bidders
   had in fact substantially complied with the purport and object for  which
   essential conditions were laid down,  the  same  may  not  ordinarily  be
   interfered with;

   (vii)    where a decision has been taken purely on public  interest,  the
   court ordinarily should exercise judicial restraint.”

Similarly reliance was also placed in Poddar Steel  Corporation  vs.  Ganesh
Engineering Works & Ors. (1991) 3 SCC 273  wherein this Court held that   as
a matter of  general  proposition  it  cannot  be  held  that  an  authority
inviting tenders is bound to give effect to  every  term  mentioned  in  the
notice in meticulous detail, it is not entitled to waive  even  a  technical
irregularity of little or no significance.  Thus, it  was  held  that  minor
technical    irregularity    and    deviation    from    non-essential    or
ancillary/subsidiary requirement can be waived and the Government  would  be
justified in waiving technical compliance with a tender condition.

99.         The thrust of the aforesaid case law  cited   is  to   reinforce
the submission that when there is substantial   compliance   of   the  terms
of tender , the government  is entitled to waive   any  non-essential   term
in the tender for the  bona fide reasons and in public   interest.   In  any
case,  since the project in terms of the RFP had to be  executed through   a
SPV  and the appellant being  as such  SPV, then the vehement insistence  by
the respondent that the lead  member  must be a company is not  a  violation
of a substantial  condition  of the tender. In conclusion therefore  it  had
to be  held  that there was no mala fide in the decision making process  and
the finding given by the High Court is perverse and cannot be sustained  and
deserves to be set aside.
100.        On perusal of the background and other materials on  record,  it
could be noticed  that  the  genesis  of  restoration  and  conservation  of
Mansagar Lake goes back to 1984 whereby the efforts of the State  from  1984
onwards have been directed towards  restoring  and  developing  the  largest
water body in Jaipur (that was lying disused the sewage, filth,  stench  and
effluent) into an attractive public interest  destination  with  a  pleasing
environmental ambience for attracting tourists from all over the world.

The figures and conclusions  in  the  impugned  order  itself  indicate  the
enormous difficulty and repetitive  failures  of  the  State  Government  to
either implement the restoration itself or to get any private entity  to  do
so over a period of approx. 20 years from 1984 to year  2003.   Indeed,  the
attempts immediately preceding the present tender from  year  2000  to  2002
have also admittedly failed.

Had the figures found in  the  impugned  order  or  the  conclusion  of  the
impugned order that the Project proposal constituted a squandering of  State
largesse  had  been  correct,  applicants  would  have  been  falling   over
themselves to bid for the Project not only in the present  tender  but  also
in the preceding unsuccessful attempts.  Even in the present  case,  despite
the attendance of as many as  20  major  participants  (including  corporate
names like Oberoi, Taj, Ansal, Neemrama to mention  a  few)  who  admittedly
attended the pre-bid meeting, no one  except  the  SLP  petitioner/appellant
and three other ultimately came forward.  Obviously, the  proposal  was  ex-
facie not an attractive one for potential  investors,  and  the  inescapable
conclusion is that all attempts to restore the Lake and develop the area  as
a tourism hub had failed when the SLP Petitioner/appellant  was  nowhere  in
the picture.
101.        We have  further  taken  note  of  the  reasons  for  the  clear
reluctance of potential investors which have been stated as follows:
      The pre-existing state of the entire area of approx. 310 acres of Lake
      and more than 100 acres of land seemed  physically  irreparable  which
      has been demonstrated by the photographs submitted [V/X].   There  was
      no water body; the so called Lake consisted of an empty  large  hollow
      filled with sewerage stench, filth and huge sedimentation;  two  major
      nallas of the city were emptying all their sewerage and  effluents  in
      to the lake; the monument was completely dilapidated, over  growth  of
      shrubbery, and not visited by any one for decades; the nearby land was
      barren, filled with mud and dirt and therefore not in use.


      The impugned order further appears to  have  ignored  that  the  whole
structure of the tender was conceptually different and had been thus in  all
previous attempts failed as (i) it sought huge investment by the  successful
bidder to restore the entire area which, at  conservative  estimates,  would
cost approx.  Rs. 100 crores (in the year 2003),  and  now  with  the  gross
delay occasioned by the PIL Petitioner, involves              an  investment
(approx.) Rs. 500 crores.  (ii)   No commercial exploitation either  of  the
monument or of the lake was involved and indeed was  not  permitted.   (iii)
Approximately 10.5 out of 14 acres would be utilized for a  walk-way  around
the Lake involving no commercial return. (iv) The  successful  bidder  would
pay the State Government/RTDC Rs.  2.52  crores  per  year  which  would  be
escalated by 10% every 3 years, which, if calculated in  the  99th  year  of
the lease would amount to Rs. 27 crores approx, and  if  calculated  in  the
50th year of the lease would amount to Rs.  12  crores  approx.   (v)    The
accommodation/resort could only be  constructed  within  a  FAR  of  0.1362.
Relevantly, the normal FAR permitted is 2 while the FAR  permitted  for  the
SLP Petitioner’s Project is only 0.1362. (vi) No  structure  in  the  entire
project could exceed the height of 9 meters and also could not  exceed  more
than a total of two floors viz. ground and first. (vii)  Almost 12 acres  of
land would be devoted to  a  handicrafts  village  showcasing  the  cultural
heritage of Rajasthan where the commercial return to  the  bidder  would  be
only in the form of lease rent, and the sales  occurring  due  to  footfalls
would accrue to the sub-lessee who sells  the  craft  and  not  to  the  SLP
Petitioner. (viii)     The project has along gestation period  not  only  in
terms  of  restoration  and  development  costs  but  also  construction  of
infrastructure, and the footfalls would increase only over  time  after  the
Project has fully established its  credentials.  (ix)       In  a  nutshell,
therefore,  huge  investments-sure,  certain  and  un-avoidable  were  front
ended; possible returns-unsure and uncertain were back ended. (x)   All  the
forgoing admitted points  have  been  completely  ignored  in  the  impugned
order, or not noticed or cursorily mentioned and not  decided,  and  in  any
event not given adequate probative weight. (xi)    Equally ignored has  been
the very raison-d-etre of the Project actuated by the fundamental object  by
the State Government to restore heritage site and to  create  a  sustainable
and pleasing environmental ambience.  The lease rent  model,  increasing  as
time goes on had always been the consistent  approach  of  the  State  since
1999 when restoration was first envisaged.  It is  inconceivable  that  this
model could be created  to  assist  or  benefit  the  bidder  like  the  SLP
Petitioner who came in to the picture for the first time only in year  2003.


102.        Learned Attorney General had submitted that it is  an  axiomatic
legal principle that revenue maximization cannot and need not  be  the  sole
or even the predominant  object  of  a  State  initiative.  Indeed,  revenue
maximization as  the  sole  object  is  frequently  antithetical  to  public
interest projects involving  long gestation periods,  a  history  of  disuse
and  failure,  reluctant  bidders,  certain  and  unavoidable  front   ended
investments and highly uncertain back ended gains.   As  a  matter  of  law,
also  as  matter  of  business  reality  and  commercial  efficacy,  it   is
universally  recognized   that   even   direct   invitation   to   potential
investors/bidders without any bid or auction at all is a fully valid  manner
of creating infrastructure where non-existed, especially  in  nascent  areas
and new areas projects. In respect of  this  submission  reliance  has  been
placed on (i) Natural Resources Allocation (2012) 10 SCC 1 @87 pr. 119, 120-
CLC 1/153-244 @ 206; (ii) Sachidanand Pandey V. State ofWest  Bengal  (1987)
2 SCC 295 @ 314 p. 19, @ 264 pr. 35, @ 266 pr. 39, @ 266-67 pr.  40-41,  43;
(ii) M.P. Oil Extraction vs. State of M.P. (1997) 7 SCC 592 @ 612-613 pr 45-
 CLC 1/271-285 @ 284; (iv) Kasturi Lal  Lakshmi  Reddy  v.  State  of  Jammu
Kashmir (1980 4 SCC 1 @ 13 pr. 14 – CLC 1/286-300 @ 294].

103.        In fact, we have noted that  there  was  not  one  but  repeated
attempts at tendering which had failed. While the earlier  attempts  failed,
the present tender open to the whole  world,  shrunk  from  20  parties  to9
parties and then to only 4 parties   at  the  time  of  submission  of  bids
(whereby the SLP petitioner succeeded on  merits).   If  the  project  value
correctly involved 4 and 5 crore figures mentioned in  the  impugned  order,
it is inconceivable and inexplicable as to how and why neither  the  20  nor
the 9 nor the 3 ultimate bidders apart from the  SLP  Petitioner  offered  a
maximum figure of Rs. 2.52 crores only.  The bidding process  was  open  and
transparent considering tourism development.
104.        We have taken note of the factual submission  that  the  reserve
figure of lease rental expected by the State had been fixed at Rs.  1  crore
in the RFP [Vol 3/551 @ CL 3.2].  This  was  not  merely  an  adhoc  magical
figure plucked out from the air but arrived at  after  repeated  transparent
evaluation by expert committees and proclaimed openly to  the  whole  world.
There is not even an allegation of surreptitious or ex-parte dealing at  the
stage of conceiving and designing the tender  or  stipulating  its  multiple
parameters.  This minimum rent had been determined  with  the  objective  of
providing a rate of return of 20-22% per  annum  from  the  Project  to  the
private sector developer. Such a rate of return was considered a  reasonable
return for a long term capital asset which at the end  of  the  lease  would
have no terminal value  for  the  developer,  as  it  would  require  to  be
transferred back to RTDC who is acting on behalf of R2 [PDCOR-R6 WS in  HC(B
pr 6). Thus, it is evident that  sufficient  economic  diligence  were  used
before issuing the RFP and subsequently accepting KGK  Consortium’s  highest
financial bid. In conclusion, therefore, it had to be held  that  there  was
no mala fide in the decision making process and the  finding  given  by  the
High Court, cannot be sustained and hence deserves to be set aside.
105.        On a careful analysis  of  the  submissions  of  the  contesting
parties in the light of the materials referred to before the High  Court  as
also this Court, we further cannot overlook the  historical  background  and
the sequence of events which led to  the  culmination  of  the  project  for
which a lease deed was executed on 22.11.2005 and 5 to  6  years  thereafter
the  respondents  herein  filed  three  public  interest  litigations  which
clearly fails the test of utmost good faith.  It  needs  to  be  recollected
from the sequence of events and the  historical  background  related  herein
before that the  Jal Mahal Tourism Infrastructure Project was conceived  and
approval was given by the Standing Committee on  Infrastructure  Development
(for short ‘SCID’)  for  the  first  time  in  its  third  meeting  held  on
21.12.1999. Resolution had been filed in which it was stated  that  at  that
point of time Jaipur Municipal Corporation  must  own  the  project.   Hence
bids were initially invited in the year 2000-01  without  identification  of
the land to be used and without studies with regard  to  Environment  Impact
Assessment.  The bid process were therefore scrapped and JDA  was  made  the
sponsoring department  for  the  lake  side  development  component  in  the
meeting of Board of Infrastructural  Development  and  Investment  Promotion
(BIDI) held on 23.08.2002 and  3.9.2002.   After  approval,  an  expenditure
sanction was granted by the MoEF, for the  Lake  Restoration  Component  but
MoEF had clearly granted approval to the lake side development component  of
Mansagar Lake.  It is  no  doubt  urged  on  behalf  of  the  respondent–PIL
petitioner and taken note of by  the  High  Court  that  the  National  Lake
Conservation Plan did not contemplate any commercial venture upon  the  lake
to be restored under the plan.  But it cannot be overlooked that  the  State
Government had full authority to carve out a plan for  development  of  lake
and the lake area considering the fact that way back in 1962 the lake  glory
as a pristine  water  body lasted only until the  former  rulers  had  their
control over the city and  unpleasant history of lake  began when   the  new
administration of Jaipur diverted  walled city  sewage in 1962  through  two
main waste water drains namely  Brahmapuri and Nagtalai.  It  is  borne  out
from the factual history of the lake that most notorious aquatic weed  water
 hyacinth  entered into lake in 1975 and  the  water  fall  foul  population
started affecting the  resident  and  migratory  species.   It  is  in  this
background  that  the  Government  of  Rajasthan   submitted   project   for
restoration of Mansagar Lake to the  Central  Government.   Thereafter,  Jal
Mahal Tourism Infrastructure was conceived  and  approved  by  the  Standing
Committee on Infrastructure  Development in its meeting held  on  21.12.1999
and initially Jaipur Municipal Corporation was  to  own  the  project.   The
bids were invited in the year without identification of the land to be  used
and without studies  with  regard  to  the  Environment  Impact  Assessment.
Hence, the bid process was scrapped and  the  Jaipur  Development  Authority
was made sponsoring department for the lake side  development  component  in
the meeting of Board of Infrastructure Development and Investment  Promotion
(for short ‘BIDI)  held  on  23.8.2002  and  3.9.2002.   Hence  the  Project
Development Corporation of Rajasthan (for  short  ‘PDCOR’)  got  a  detailed
project report prepared which contemplated the following components:
      (1)   Restoration of Mansagar Lake;
      (2)   Restoration and re-use of  Jal Mahal  Monument;
      (3)   Development  of Tourism/Recreational components
            at the lake precincts.

106.        Thereafter, in the meeting of BIDI held  on  9.08.2003,  it  was
decided that  nodal agency  for  the  Jal  Mahal  Tourism  Project  will  be
Tourism  Department  of  Government   of   Rajasthan     instead   of   JDA.
Thereafter, the  tourism  department  assigned  the  responsibility  to  the
Rajasthan Tourism Development Corporation  (for  short  ‘RTDC’)  vide  order
dated 6.9.2003.  The last date for submission  of  deed  was  5.9.2003.  The
petitioner on the other hand and also the Attorney  General  clarified  that
the need to issue office memorandum dated 24.5.2011  was   felt  because  OM
dated  28.4.2011 in broad terms  provided that  category   B  projects  that
fell within  10 KM of notified critically polluted areas  would  be  treated
as category A  and general condition would be applicable to  such  projects.
MoEF in order to clarify  OM dated  28.4.2011  issued   OM  dated  24.5.2011
that expressly provided that the projects falling under Items 8  (a)  and/or
8 (b)  do not attract  general condition.
107.        On an analysis of the aforesaid aspects, it is  clear  that  the
project that was conceived, deliberated and given  effect  to  emerged  from
the status of the land adjoining the lake area which had  a  history  behind
it and in view of the garbage, filth stench on the area, decision  had  been
taken to develop the two project site.
108.        We have further taken note of the arguments advanced by the  Ld.
Attorney General who had submitted that the High Court has  not  taken  into
account the steps that were taken in  the project since 1998  onwards.   The
Ld. Attorney General representing the State had relied  on  a  comprehensive
list of dates beginning from 1984 onwards  discussed  hereinbefore  to  show
the step by step decision taken before the project was awarded  to  the  KGK
Consortium including the Jaipur Master Plan of 2011.
109.        It may further be  noted  that  the  argument  advanced  by  the
counsel for the respondent PIL Petitioner that 100 acres land lease  to  the
petitioner was part of the lakebed, does not get supported from the  revenue
entries placed on record or any other material  which  makes  it  clear  and
establishes that only 13 bighas  17  biswas  is  classified  as  ‘gairmumkin
talab’  (lakebed) being khasra No. 67  /317  which  would  be  approximately
8.65 acres.  However, the balance land that is 100 acres less 8.65 acres  is
in fact recorded as ‘Banjar’ in the revenue record and not lakebed. We  find
sufficient substance in the plea that this Court in  the  past  have  placed
reliance on revenue entries to determine the nature of land  from  which  it
follows that based on the revenue entries, no other khasra of  land  forming
part of 100 acres of land leased to  the  petitioner  is  lakebed.   It  may
further be noted that as per the petitioners/appellants 14.15 acres of  land
is ‘banjar’ and not lakebed whereas according to the PIL petitioner it is  a
lakebed/wetland which is  contrary to the revenue record.
110.        From the version and counter version  of  the  counsel  for  the
parties, it is obvious that although the PIL petitioners had challenged  the
100 acre land as lakebed so as to assail that the same could not  have  been
a part of the lease area, the fact remains that the entire emphasis is  only
 in regard to the land comprising 14.15 acres equivalent to  22  bighas  and
10 biswas and another chunk comprising 8.65 acres equivalent  to  13  bighas
and 17 biswas. The counsel for the appellant-lessee submitted  that  if  the
revenue record for 13 bighas 17 biswas equivalent to  8.65  acres  noted  as
‘gairmumkin talab’ lakebed bearing khasra No. 67/317 is relied  upon by  the
Court,  then  further  revenue  entries  classifying  14.15  acres  of  land
recorded as barren land/banjar also should be accepted,  adopting  the  view
taken in the matter of  Okhla  Bird  Sanctuary  case  (Supra)  that  revenue
entries are fit to be relied upon in  order  to  determine  the  nature  and
character of the land.
111.        However, we are  of  the  view  that  in  order  to  avoid  this
controversy in regard to these two chunks of lands as to  whether  the  same
form parts of the lakebed or not, it would be just and appropriate to  slash
this part of the land from the lease hold area as per  clause  18.4  of  the
lease deed itself implying that these two areas shall not form part  of  the
lease hold area so as to be given out on lease to the  petitioner/appellant.
 In view of this 13 bigas and 17 biswas of land  equivalent  to  8.65  acres
which has been classified as ‘gairmumkin talab’/ bearing khasra  no.  67/317
shall not be treated as a part of the lease hold area and the same shall  be
within the control and domain of the Government of Rajasthan which  will  be
free to reconvert this area into the lake area.
112.        In so far as 14.15 acres of land recorded as barren  land/banjar
is concerned, we are pleased to hold that this area shall be  treated  as  a
construction free zone and neither party i.e. the  State  of  Rajasthan  nor
the lessee/appellant herein shall be permitted  to  raise  any  construction
thereon.  We are  informed  that  this  area  is  being  used  as  a  public
promenade (walk way) for the use of the public which  shall  be  allowed  to
continue.
113.        In so far as the balance area of land pertaining  to  the  lease
deed  is  concerned,  we  are  pleased  to  hold  that  the  respondents/PIL
petitioners have not been able to lead any iota of evidence or  material  to
prove that this area was at all or at any point of time lakebed or  wetland.
 This fact  is  further  proved  from  the  historical  background  of  this
litigation as it is the case of the  appellant/lessee/  the  PIL  petitioner
which gets reinforced from the record and the  detailed  project  report  of
the PDCOR indicating that the efforts were being made to develop  this  land
way back from 1984 and in  the  year  1999  as  already  noted  hereinbefore
reflected from the minutes of the third meeting  held  on  21.12.1999,   the
Standing Committee on Infrastructure  Development  (SCID)  agreed  that  the
Jaipur Municipal Corporation must own the project to develop this  land  and
the bids were invited in the year 2000-01 with regard to the development  of
the land.  However,  the  same  was  scrapped  and  the  JDA  was  made  the
sponsoring department  for  the  lake  side  development  component  in  the
meeting of the board of infrastructure development and investment  promotion
held on 23.8.2002 and 3.9.2002.
114.        From the aforesaid history, it gets factually  established  that
this land in any view was available for development atleast  way  back  from
21.12.1999 and no question was ever raised that this was not  available  for
infrastructural development.  In fact, we have further  noted  that  in  the
three  Master  Plans  of  Jaipur,  200  acres  of  land   were   shown   for
infrastructural development for tourism purpose and out of  that  100  acres
was made a part of the lease deed after extensive research conducted by  the
Project Development Corporation of  Rajasthan  which  got  detailed  project
report prepared way back in 2001 when the petitioner/appellant was not  even
in the picture so  as  to  develop  the  land.   Even  if  the  Ministry  of
Environment and  Forest  of  the  Central  Government  did  not  accept  the
position that it had given clearance for  this  project,  the  fact  remains
that the land was lying within the domain of the  State  Government  due  to
which it had full administrative discretion to take a decision in regard  to
development of the land and it is not that it was done in a  huff  or  hurry
without deliberation or study.  In fact the Project Development  Corporation
(PDCOR) got the detailed project  report  prepared  way  back  in  2001  and
thereafter in 2003,  steps  for  inviting  tender  were  taken  by  the  PIL
petitioners.  If at all the bonafide of the respondent/PIL petitioners  were
clear, they ought to have assailed the invitation of  tender  which  finally
got executed only in the year 2005.
115.        Thus, from the  year  2001  when  detailed  project  report  was
prepared, decision to award  tender  was  taken,  ‘Expression  of  Interest’
invitation of tender and bid was invited and accepted, the  PIL  petitioners
never ever challenged these activities on the part of the  State  which  was
approved, accepted and continued by the successive  Governments  which  were
ruling in the State of Rajasthan.  Thus, the submission of the  counsel  for
the appellant that the PIL lacks bonafide and good faith cannot  be  brushed
aside totally although the same has neither been  a  reason  with  the  High
Court nor with us to reject the petition as we have ignored  the  delay  and
also lack of bonafide on the part of the PIL petitioners/respondents  herein
and have examined the matter  on  merit  taking  note  of  every  meticulous
argument and counter argument advanced by the contesting parties.
116.        From this, it is clear that although  the  Courts  are  expected
very often to enter into the technical and  administrative  aspects  of  the
matter, it has its own limitations and in consonance  with  the  theory  and
principle of separation of powers, reliance at least to some extent  to  the
decisions of the State Authorities specially if it based on the  opinion  of
the experts reflected from the project report prepared by  the  technocrats,
accepted by the entire hierarchy of the State administration,  acknowledged,
accepted and approved by one Government after the other,  will  have  to  be
given due credence and weightage.  In spite of this if the Court chooses  to
overrule the correctness of such administrative decision and merits  of  the
view  of  the  entire  body  including  the  administrative,  technical  and
financial experts by taking  note  of  hair  splitting  submissions  at  the
instance of a PIL petitioner without any evidence in  support  thereof,  the
PIL petitioners shall have to be put to strict proof and cannot  be  allowed
to function as an extraordinary and  extra  judicial  ombudsmen  questioning
the  entire  exercise  undertaken  by  an  extensive  body   which   include
administrators, technocrats and financial experts.  In our considered  view,
this might lead to a friction if not collision among  the  three  organs  of
the State and would affect the principle  of  governance  ingrained  in  the
theory of separation of powers.  In fact, this Court in the matter  of  M.P.
Oil Extraction v.  State  of  M.P.,  (1997  7  SCC  592  at  page  592)  has
unequivocally observed that the power of judicial review  of  the  executive
and legislative action must be kept  within  the  bounds  of  constitutional
scheme so that there may not be any occasion to entertain  misgivings  about
the role of judiciary in  outstepping  its  limit  by  unwarranted  judicial
activism being very often talked of in these days.  The  democratic,  set-up
to which polity is so deeply committed cannot function properly unless  each
of three organs appreciate the need for  mutual  respect  and  supremacy  in
their respective fields.
117.        However, we hasten to add and do not wish  to  be  misunderstood
so as to infer that howsoever gross or  abusive  may  be  an  administrative
action or a decision which is writ large on a  particular  activity  at  the
instance of the State or any other authority connected with  it,  the  Court
should remain a passive, inactive and a silent spectator.   What  is  sought
to be emphasized is that there has to be a boundary line or  the  proverbial
‘laxman  rekha’  while  examining  the  correctness  of  an   administrative
decision taken by the State or a Central Authority  after  due  deliberation
and diligence which do  not  reflect  arbitrariness  or  illegality  in  its
decision and execution.  If such equilibrium in  the  matter  of  governance
gets disturbed, development  is  bound  to  be  slowed  down  and  disturbed
specially in an age of economic liberalization wherein  global  players  are
also involved as per policy decision.
118.        In a matter of the instant nature,  where  the  policy  decision
was taken way  back  from  1976  followed  by  Master  Plans  to  develop  a
particular chunk of land by adopting the mode of private/public  partnership
method and a global tender was floated, obviously the private  players  were
bound to participate specially in an age when private partnership is not  an
anathema.  In that view of  the matter when  a  particular  policy  decision
was taken to develop a particular project supported  by  extensive  research
and study by the experts in  the  field  who  prepared  the  project  report
relying upon the three successive Master Plans of the  city  of  Jaipur  and
the global tender was floated for development of land for tourism  adjoining
the lake area, entertaining PIL petition on the  ground  that  the  area  in
question is a wet land without substantiating the same in any  manner,  i.e.
neither from the revenue record nor any other material,  the  perception  of
PIL Petitioners without factual basis cannot be allowed to prevail over  the
decision of the entire group of experts which was finally  accepted  by  the
State Government through the Project Development Report of  a  State  Agency
which got the detailed project report (DPR) prepared and  nothing  could  be
brought to the notice of the Court that the DPR was not  fit  to  be  relied
upon or that it was prepared in a clandestine  manner.   In  our  considered
view unless the Detailed Project Report,  Master  Plan  of  Jaipur,  Revenue
Record indicating the nature of land that the project was fraught with  risk
of environmental degradation which could  establish  with  facts  &  figures
that the decision is not in  public  interest,  interference  by  the  Court
adopting  an  over  all  view  smelling  foul  play  at   every   level   of
administration is bound to make the governance an impossibility.  Therefore,
the courts although would be justified in questioning a particular  decision
if illegality or arbitrariness  is  writ  large  on  a  particular  venture,
excessive probe or restraint on the activity of a State is bound  to  derail
execution of an administrative decision even though the  same  might  be  in
pursuance of a policy decision supported  by  other  cogent  materials  like
survey and search by the reliable Expert Agency of a State after  which  the
State Project or private and public partnership  project  is  sought  to  be
given effect to.
119.        At this juncture, we take note of two overriding  considerations
which combined, narrow the scope of review.  The first is that of  deference
to the views of administrative experts and  the  other  we  take  assistance
from the words of Chief Justice Neely who expressed as follows:
           “I have very few illusions about my own limitations as  a  judge
           and  from  those  limitations  I  generalise  to  the   inherent
           limitations of all appellate courts reviewing rare cases.”


The learned Chief Justice further observed as follows:
      “I am not an accountant, electrical engineer, financier, banker, stock
      broker, or systems management analyst.  It is the height of  folly  to
      expect judges intelligently to review a5000 page record addressing the
      intricacies of public utility operation.


      It is not the function of a judge to act as a super board, or with the
      zeal of a pedantic schoolmaster substituting its judgment for that  of
      the administrator.  The result is a theory of review that  limits  the
      extent to which the discretion of the expert may be scrutinized by the
      non-expert judge. It was suggested that the alternative for the  court
      is to desist itself from interference on technical matters, where  all
      the advantages of expertise lie with the agencies.  If the court  were
      to review fully the decision of an expert body such as State Board  of
      Medical Examiners, ‘it would find itself wandering amid  the  maze  of
      therapeutics or boggling at the mysteries of the pharmacopoeia’.”



120.        Bearing the aforesaid aspects in mind, we  are  prone  to  infer
that the disputed area of the lease deed borne out from the  revenue  record
is clearly confined to14.15 acres plus 8.65 acres and the  balance  area  of
the lease deed could not have been interfered with so as to  set  aside  the
entire project.

121.        However, we have noted that the period of  the  lease  deed  had
been finally fixed as 99 years which in our view could not  have  been  done
by the State Government as that clearly  converts  the  lease  deed  into  a
perpetual lease.  In fact we have noted that when  the  tender  was  floated
for granting the lease deed, the maximum period for the lease  deed  as  per
the Rule could not have been more than 30 years yet the tender  was  floated
for a period of 60 years which was later extended to 99 years.  This in  our
view could not have been done by the State Government as one can infer  even
at a glance that the same being  contrary  to  the  rules,  could  not  have
granted it for a period of 99 years.

122.        We, therefore, set aside the period  of  lease  which  has  been
granted in favour of the appellant for a period of 99  years  and  the  same
shall stand reduced to a period of 30 years only which could be the  maximum
period of the lease  for  the  land  under  the  rules  which  should  start
ordinarily from the date of its execution so as to expire on or  before  the
period of 30 years.  But we are conscious of the fact  that  much  time  has
lapsed after execution of the lease deed in 2005 due to which  only  Phase-I
of the project could start after which it got stuck and the project is in  a
state of limbo due to delay on account of  the  litigation  started  at  the
behest of the respondent/PIL petitioners who questioned the validity of  the
lease deed executed and finally succeeded in getting it set aside.  We  are,
therefore, of the  view  that  the  lease  deed  which  could  not  be  made
effective in view of the intervening litigation due  to  which  the  Project
got delayed, it is legally just and appropriate to direct  that  the  period
of 30 years of the lease  shall  now  be  counted  from  the  date  of  this
judgment and order.

123.        We are further of the view that on or after expiry of  30  years
to be counted from the date of this judgment and order, if  for  any  reason
whatsoever the lease deed is not renewed in favour of  the  lessee/appellant
or the appellant chooses not to seek its renewal,  the  appellant  shall  be
adequately  compensated  for  the  property  and  structure   which   stands
developed at the instance of the appellant during the period when the  lease
subsisted in its favour.  Subsequently, however, as to  what  would  be  the
adequate period of lease to be granted in favour of the existing  or  a  new
lessee obviously  would  be  determined  by  the  State  Government  at  the
relevant time but in so far as the instant  lease  deed  is  concerned,  the
existing period of 99 years shall stand decreased to 30 years to be  counted
from the date of judgment and order of this Court.

124.        Thus the lease deed although was executed for  a  period  of  99
years shall pursuant to this decision, run for a period of  30  years  which
shall commence from the date of this judgment and order and may be  extended
by the State Government for such other period as may be  considered  legally
viable based on the rules  and  regulations  at  the  relevant  period.   We
further add in the interest of justice, that after expiry  of  30  years  of
lease period and in case the lease deed is not  renewed  in  favour  of  the
appellant, the State Government  shall  compensate  the  appellants  at  the
market value of the project including compensation for the loss of  business
and profit.  It is clarified that in the event of any dispute  arising  with
respect to quantum of compensation, it  may  be  resolved  by  availing  the
remedy of arbitration mechanism provided in the lease deed.

125.        We are informed that the first phase of  the  Project  has  been
completed  since  February,  2011.   It  is  therefore  directed  that   the
completion certificate and the  lease  agreement  for  the  first  phase  be
issued expeditiously but not later than a period of 30 days  from  the  date
of receipt of this order.  Accordingly, the  State  Government  shall  issue
the restoration completion certificate for Phase I  to  enable  the  Project
alongwith the Jal Mahal Monument as per the Lease Deed, to  open  for  entry
and visit of the members of  the  public.   Upon  issuance  of  the  phase–I
certificate, the project  developer/lessee/appellant  shall  be  allowed  to
undertake the construction as per the approved plan in terms  of  the  lease
deed.

126.        We further hold that the area of 8.65  acres  equivalent  to  13
bighas and 17 biswas shall not form part of the lease hold area  as  already
stated  hereinabove  and  the  same  shall  stand  re-transferred   to   the
Government of Rajasthan which shall be recarved and added to the  lake  area
and the same shall be maintained by the competent authorities of the  State.
 However, the area of 14.15 acres equivalent to  22  bighas  and  17  biswas
although shall be notionally treated as part of the  lease  deed,  the  said
area shall be treated as a construction free zone which will be  allowed  to
be used as a walkway/ the  public  promenade  free  of  any  charge  at  the
instance of the lessor and  the  lessee.   Remaining  portion  of  the  land
forming part of the lease deed  shall  remain  intact  to  be  used  by  the
appellant as per  the  terms  and  conditions  of  the  lease  deed  already
executed.  However by way of abundant  caution,  we  clarify  that  Mansagar
Lake Restoration Project if undertaken by  the  State  or  the  Ministry  of
Environment, the same shall not get affected by virtue of the lease deed  in
any manner.
127.        It is further held that since the land which is a  part  of  the
lease hold area barring 2 chunks viz. 8.65 acres equivalent to 13 Bighas  17
Biswas of land and 14.15 acres of land approximately 22  Bighas  10  Biswas,
in all 35 bighas and 27 biswas equivalent to 22.80 acres, the Wetland  Rules
of 2010 shall not apply to  the  project  since  environment  clearance  had
already been issued under PIA 2006 prior to commencement of the project.  In
any view the lease hold area barring the land equivalent to  35  bighas  and
27 biswas having not been held as wetland or  lakebed  as  per  the  revenue
record as also the fact that it was available for development way back  from
1982 which gets established from the various Master Plans of Jaipur and  the
historical background referred  to  hereinbefore,  no  dispute  relating  to
application of the  Wetland  Rules  2010  shall  be  allowed  to  be  raised
hereinafter with retrospective effect in regard to the lease  hold  area  of
the land which has been granted for development of  the  project  and  could
not be proved to be wetland barring 22.80 acres equivalent to 35 bighas  and
17 biswas.  It is further clear by  now  that  the  project  comprising  the
lease hold land is not in conflict with the development of lake area or  Jal
Mahal monument so as to raise issues or concern regarding the lake  area  or
environment degradation as restoration and maintenance of Jal  Mahal  cannot
possibly disturb the monument or lead to environmental degradation.  In  any
view, the dispute being confined to the lease hold area for  development  of
the project which we have now resolved, we direct that the  appellant/lessee
shall be entitled to re-start the project forthwith subject to what we  have
recorded hereinbefore.
128.        The judgment and order of the High  Court  thus  stands  quashed
and set aside to the extent by which  the  lease  deed  has  been  cancelled
except an area of 13 bighas 17 biswas  equivalent  to  8.65  acres  and  the
balance disputed area claimed to be lake bed comprising  14.15  acres  shall
be notionally treated as part of the lease deed but the same shall remain  a
construction free zone where neither the State Government of  Rajasthan  nor
the appellant-lessee/Jal Mahal Resorts Pvt. Ltd. shall  have  the  right  to
raise any construction on this area as the  same  shall  remain  exclusively
for the use of public promenade / walkway free of charge.
129.        In view of the analysis made hereinbefore, these  appeals  stand
partly    allowed   to   the   extent  indicated  hereinabove  but  in   the
circumstance, the parties are directed to bear their own costs.


                                                            ………………………………….J.
                                                          (GYAN SUDHA MISRA)


                                                            ………………………………….J.
                                                      (PINAKI CHANDRA GHOSE)

New Delhi;
April 25, 2014
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