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.
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.
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
-----------------------
130
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 theAgreement 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.=
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
REPORTABLEGYAN SUDHA MISRA, PINAKI CHANDRA GHOSE
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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