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TMI Blog2012 (5) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ited and Jal Mahal Leave & License Agreement dated 22nd November, 2005. In Writ Petition No.6039/2011, prayers have also been made to quash the approvals and clearances contained in the orders dated 16.9.2009 and 22.9.2009 and to direct the respondent no.7-Jal Mahal Resorts Pvt. Ltd. to restore the original position of 100 acres of land by removing the soil filled-in by it at its own cost and to hand over the possession to the Municipal Corporation, Jaipur; to immediately remove all sedimentation and settling tanks from the Mansagar Lake basin at its own costs; to restore position of Nagtalai and Brahampuri Nalah (Drains) to their original position as realigned by RUIDP under Mansagar Lake Restoration Plan. Prayer has also been made to direct the respondents-authorities to monitor and maintain the Mansagar Lake in its full original length, breadth and depth and to take appropriate action against all those responsible for execution of the contract for transfer of 100 acre land in favour of RTDC as well as the respondent no.7-Jal Mahal Resorts Pvt. Ltd. and for permitting the respondent no.7 to excavate the soil of the Mansagar Lake, construct sedimentation and settling tanks in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.72 crores, out of which, 70% was to be provided by the Government of India while the rest was to be borne by the State Government. The administrative approval and expenditure sanction was granted by the MOEF vide order Annex.5 dated 5.9.2002 and the order was revised by the MOEF vide Annex.6 dated 23.12.2002. The JDA implemented the lake restoration plan under which Sewage Treatment Plant (STP) near Brahampuri has been revamped from which treated water is being diverted to lake for compensating evaporation losses during dry weather. A two step Tertiery Treatment Plant has also been developed. 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 etc. along the lake on north side which has formed a new water body of about 5 hac. 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 (Boselaphus tragocamelus), Sambhar (Cervus unicolor), Common Mangoose (Herpestes edwardsii), Jackals (Canis aureus), Striped Hyaena (H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 "the RTDC") vide order Annex.14 dated 6.9.2003. Though bidding was started, but no survey of the actual site and demarcation of 100 acres area on the map was made and even environment impact assessment was not carried out before planning the project. In the advertisement, the last date for submission of bid was 5th September, 2003. 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, it was not fulfilling eligibility qualification provided under the terms inviting tender. However, later on decision was taken to include KGK Enterprises though it was lacking eligibility condition. Jal Mahal Resorts Pvt. Ltd. Company has been incorporated on 10th November, 2004. The decision was also taken to give exemption of stamp duty etc. During t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anks followed by a large tank i.e. lake. This has adversely affected aesthetic value of the Mansagar Lake. Prior to construction of storm water management plan, lake water also used to be released for irrigation. Now, water will be released through sluice gates into downstream 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 is further submitted by the petitioner that the respondent no.7 was not at all concerned with the construction of storm water management plan that too in the lake bed itself. It has been carried out without any requisite 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 petitioner, the chloride content in the Mansagar Lake has been increased and salt in water has gone high, details of which have been given in the petition. The sudden increase in the chloride content of the lake is attributed to direct human interference by way of altering lake basin character. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed thereunder for environment clearance before implementation of the projects mentioned therein. The project in question is covered by item 8(a) as well as 8(b) of the said notification and therefore, project cannot be implemented without obtaining environment clearance from the Central Government under the aforesaid notification. Since no environment impact assessment was carried out nor any environment clearance has been obtained before finalizing the project, all actions taken by the respondents are absolutely illegal and void. The petitioner has further submitted that respondents are deliberately and willfully acting in collusion with the private entrepreneur in violation of the provisions of the Water (Prevention and Control of Pollution) Act,1974 (hereinafter referred to as "the Water Act"). The petitioner has come to know that the Pollution Control Board has also been mislead by representing that the Tourism Project has clearance of MOEF though no such clearance was obtained for the said Project from MOEF. The environment clearance as required under notification dated 14.9.2006 has not been obtained nor any compliance of Wetlands (Conservation and Management) Rules, 2010 (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets such as the facilities, foundation, embankments, buildings, structures, pavement and walkways, drainage facilities, sign boards, milestone, electrical works for lighting, telephone and other communication equipment at the demised premises etc. Jal Mahal Resorts Private Limited has also been given right to sub lease, grant license and determine, demand, collect, retain and appropriate the sub lease rentals and license fees. It is further averred that as per the provisions of Section 16 of the Rajasthan Tenancy Act (for short 'the Tenancy Act') Gairmumkin land cannot be transferred to any person. Jal Mahal Resorts Pvt.Ltd. has constructed a wall and almost stopped the flow of water to the lake from one side. No one has a right to obstruct catchment area and supply of water. However, the respondents-authorities have permitted Jal Mahal Resorts Pvt.Ltd. to construct 400 rooms in the hotel in the catchment area and part of the lake. It is further averred that in the year 1968, as per Section 3 of the Rajasthan Monuments, Archaeological Site and Antiquities Act, 1961 (hereinafter referred to as "the Act of 1961"), Jal Mahal was declared as protected monument. However, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of disposal of land vested in JDA and similarly, Sections 80 and 92 of the Municipalities Act govern the disposal of land by Municipalities. The State Government has framed the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (hereinafter referred to as "the Rules of 1974") and the action is in violation of the aforesaid provisions of the Acts and Rules; lease deed has been executed by the Government of Rajasthan on behalf of the Governor of Rajasthan through Rakesh Saini, Director, RTDC under authorization granted vide order dated 14.11.2005, however, in the recital it has been mentioned that the RTDC owns the demised premises and in that case, Government of Rajasthan cannot be party to the lease; 100 acres of land did not belong to the Government of Rajasthan or RTDC; land belonging to Municipal Corporation could not have been divested except in accordance with the provisions of the Municipalities Act and the Rules; there is misrepresentation with regard to size of the lake; the original size of the lake is much more than 432.8 acres and area of Mansagar Lake was never limited to 310 acres and this artificial size has been projected with a malafide intention to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other authorities are under obligation to complete the aforesaid exercise and thereafter, to go with the project. The action is violative of Articles 14, 21, 48A and 51-A(g) of the Constitution of India. Ground has also been raised that it is a case of fraudulent siphoning of valuable public property. The value of the land in question was not less than Rs. 3500 crores and annual lease money at the rate of 5% would come to Rs. 175 crores per annum, but the respondents-authorities have only realized annual lease rentals of Rs. 2.52 crores and thus, the transaction in question is against public interest and public largesses have been frittered away to a private sector developer. Successful bidder had no experience of executing a single such type of project; successful bidder was not even qualified; the company which was created after acceptance of the bid was nothing but fraudulent creation of a limited liability private company of father and son only whose total paid up capital share on the date of its incorporation was Rs.one lac only and total authorized capital of the company itself was merely Rs. 50 lacs. Such a private company could not have been given the land worth Rs. 3500 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bal tenders were invited on 25.4.2003 and in pursuance thereof, 9 entrepreneurs shown 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 14.8.2003 for removal of doubts. The Department of Tourism on 6.9.2003 transferred the development of Jal Mahal to RTDC vide letter Annex.R-1/12. On 15.9.2003, pre-qualification bids were opened; 4 entrepreneurs submitted bids; rejection of one bid was recommended on account of inadequate information on evaluation. It was further pointed out that 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 for the next phase of evaluation. Two other firms were found fit in pre-qualification bid. Later, on 14th November, 2004, KGK Enterprises formed Private Limited Company in the name and style "Jal Mahal Resorts Private Limited". The PDCOR suggested retention of KGK Enterprises as its presence will increase competitiveness. The State Government permitted the considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition of Section 2(1)(g) and Section 3. The consent has been given under the Water Act by the Rajasthan Pollution Control Board on 20th May, 2010. For the last three decades, the State Government has been making efforts for restoration of Jal Mahal, Mansagar Lake and the area around lake. Desilting has not caused any ecological damage. Stand of Jaipur Development Authority Jaipur Development Authority in its return has 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 bigha 9 biswa was in private tenancy; 475 bigha 9 biswa was sawaichak (Government land), 25 bigha 4 biswa was of PWD; 133 bigha 15 biswa was of Municipal Council; 19 bigha 10 biswa was of Forest Department total 832 bigha 01 biswa as 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. The JDA vide letter dated 5.10.1983 requested the Government to acquire land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L; Prof.K.P.Sharma-petitioner in Writ Petition No.6039/2011 is not recognized authority or lake conservationist or expert in lake management, irrigation, environmental protection; 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 which maintains the Mansagar Dam on behalf of the Irrigation Department and the said Trust also carries out commercial activities to generate revenue for upkeep of the dam; in 1992, the newspaper group wanted to utilize the Jal Mahal complex and the land which is part of Jal Mahal Tourism Project for its own benefit and commercial use at free of cost/paltry sum and having failed to grab the land, hostile campaign has been started against the project and more than 200 misleading articles have been published in the newspaper attempting to hold a media trial in the matter. Petitioner- Prof.K.P.Sharma has not come with clean hand and concealed the material fact that on the complaint filed by him before PIL Cell of the Supreme Court, no cognizance was taken and file was closed; writ petitions are barred by res judicata, inasmuch as, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 out of following three eligibility criteria for meeting financial capability:- "(i)Tangile net worth of not less than Rs. 100 Million (US $ 2 Million) as per the latest audited financial statement; (ii)Annual turn over s than Rs. 300 Million (US$ 6 Million) as per the latest audited financial statement. (iii)Net Cash Accruals not of less than Rs. 50 Million (US $ 1 Million) as per the latest audited financial statement." M/s KGK Consortium satisfied all the aforesaid technical financial criteria, however its "lead member" M/s KGK Enterprises was a "partnership firm". As the KGK Enterprises met all the requirements in respect of technical, financial, share holding 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; KGK Enterprises secured 83 marks while the next highest 82 marks wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of the Act of 1961; changes in the Jal Mahal monument have been brought with the consent of the Empowered Committee; petitions have no merit and there is a right to start phase-II of the project. Stand of MOEF The Ministry of Environment and Forests, Government of India in its return 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 MOEF. Project for conservation and management of Mansagar lake in Jaipur was sanctioned as per the mandate of the National Lake Conservation Plan. It is also contended in the return that project for conservation and management of lake in Jaipur was sanctioned in December, 2002 at the cost of Rs. 24.72 crore under the NLCP on 70:30 cost sharing basis between Government of India and the State Government of Rajasthan and the sanction order Annex.R-10/1 to its return was issued which contained break up of cost estimates. The different components which were approved further include re-alignment of drains, de-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.K.Jain, learned counsel appearing on behalf of the petitioners have submitted that lease agreement for 100 acres of prime and valuable land belonging to the State Government, Municipal Corporation and JDA held by them in public trust for no payment to them and payment of annual license fee of Rs. 1/- per year to the State and Rs. 2.52 crores to RTDC with obligations to maintain lake and various other kinds of obligations, is unreasonable and fraud on economics of the State and public exchequer. The Municipal Board and JDA have got no lease amount for the assets held by them in public trust. The minimum value of the land as per DLC rate is Rs. 2500 crores, which could fetch a minimum return at 6% amounting to Rs. 150 crores per annum. Market price is 3500 crores. They have further submitted that out of 100 acres of land leased out to Jal Mahal Resorts Pvt. Ltd., more than 13 bigha of land is recorded as Gairmumkin Talab, which is in the lakebed itself and as apparent from the possession report, more than 14 acres of land was submerged at the time of handing the possession. It was not permissible to lease out the lake. Thus, the lease agreement and leave and license agreement are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of public trust. Jal Mahal Resorts Pvt.Ltd. was incorporated having no nexus with the activities to be undertaken under the leave and license agreement, which are in the nature of conservation, restoration and reuse of Jal Mahal as a monument and not as a hotel or resort; the license agreement and the work of conservation, restoration and reuse of Jal Mahal has been used as a mere mask for giving on lease 100 acres of wetland in the prime location of the city of Jaipur. The lease agreement and leave and license agreement are in violation of the Ramsar Convention 1982 and Rule 4 of the Wetlands Rules. It was also submitted that PPP model projected by Jal Mahal Resorts Pvt.Ltd. is under a serious cloud because IL and FS with whom RTDC has formed PDCOR has a serious case study against them and are also the consultants of Jal Mahal Resorts Pvt.Ltd.; it is apparent that umpire is acting as advisor in the whole process. There is no delay in filing the writ petitions as plan has been revised in 2009 and some of the clearances have been obtained on 19.7.2010 and so far no clearance is obtained of MOEF. Reliance has also been placed on Section 16 of the Rajasthan Tenancy Act; it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2010, therefore, they are not applicable; decision has been taken by the empowered committee; transaction is proper; no case is made out to interfere in the matter; condition of eligibility was rightly relaxed; this Court can pass order regarding 13 bigha 17 biswa land which is part of lake bed. PPP is now being promoted in such ventures. In contractual matters, Court cannot interfere. Shri A.K.Sharma, learned Senior Counsel appearing on behalf of Jal Mahal Resorts Pvt.Ltd. and KGK Enterprises has submitted that the writ petitions cannot be said to be maintainable having been filed with delay and laches; credential of the petitioners have been doubted; they were not having any interest in the preservation and restoration of Mansagar Lake and Jal Mahal monument; writ petitions are not bonafide, rather amounted to abuse of the process of the court; there is campaign of vernacular newspaper which resulted into filing of the writ petitions; for maintenance of Mansagar Dam, Janmangal Trust was carrying out commercial activities to generate revenue for upkeep of the dam and a particular newspaper group wanted to utilize the Jalmahal complex and the land which is now part of Jalmahal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even star hotel on part of 100 acres of land is not going to violate the directions of this Court in Abdul Rehman's case (supra); Jalmahal was never used as Hindu Temple or Peer Baba Ki Mazzar. Jalmahal is not protected monument after entry has been deleted in the year 1971; new pleas based on new facts cannot be permitted to be raised by the petitioners in the rejoinder; the lease rent of Rs. 2.52 crores shall be first used for maintenance of the lake and the remaining, if any, for appropriation by RTDC or JMC or Government of Rajasthan; lease rent is not Rs. 1 as alleged but lease rent is Rs. 2.52 crores per annum with an escalation of 10% in every three years; the auction notice has not been questioned; it was mandatory under tender document that in case of consortium bid, successful bidder has to form Special Purpose Vehicle (Limited Company) and lease will be executed with such SPV, as such, Jal Mahal Resort Pvt.Ltd. was formed and it has incurred Rs. 10 crores in restoration of Jalmahal Monument and further, it has incurred total expenditure of more than Rs. 70 crores without taking any loan; there is no contravention of Articles 48A, 49 and 51A(g) of the Constitution. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h which created lake. Jal Mahal had been constructed in the said Mansagar lake which is the place of international tourism and attracts foreign tourists to Jaipur. Jal Mahal is a pleasure palace which is perched amidst Mansagar lake surrounded by Nahargarh hills and reserve forest area. The Palace is famous for its sophisticated design and grand architecture. The Palace was developed as a pleasure spot and was used for the royal duck shooting parties. A causeway leads to Jal Mahal Palace situated in the middle of Mansagar lake, opposite the cenotaphs. The first four floors of the building is under water, only the top floor remains outside. Wonderful view of the lake and palace is visible from Nahargarh Fort built in 1799. In 18th Century, the palace and the lake around it were renovated by Maharaja Jai Singh II of Amber and the Palace has got an eye-popping make over. There are wooden boats made by traditional boat makers from Vrindavan; drains were diverted; toxic silt was dredged from the bottom; a water treatment system was developed. Lake is based on vastu and is vital for Jaipur. Lake was created by constructing a dam across the Darbhawati River between Khilagarh hills and hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ophical forests. The main predominant floral specie is Dhauk (Anogeissus pendula). Due to thin tree cover, lean foliage, lack of law vegetation cover and steep gradient a substantial amount of eroded material reaches into the lake. On the wester side, beyond the urbanised area, the Nahargarh hills are also bereft of vegetation resulting in decline in moisture retaining capacity. As part of the preliminary survey of biodiversity of Nahargarh Wildlife Sanctuary, Jaipur, conducted by Dr.Satish Kumar Sharma in 1999, Man Sagar Lake area was also covered. The survey results suggest that predominant species in the foothills surrounding the project area are jungle cat, striped hyena, India Fox and India wild boar. Also according to the people residing in the Kanak Vrindavan valley leopards were also seen in the forest area. All the above observations establish that there exists a predominantly significant wildlife in the area and this wildlife in the northern hills visit Man Sagar Lake for drinking water. Man Sagar lake draws a large number bird species during winters especially from September to March-April (Annex.6). They are largely migratory. They feed upon the aquatic vegetation, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aceful possession and the use of the demised premises. As per clause (a) of Article 7 covenants of lessee, the licensee shall develop, establish, implement, operate and maintain the project at its cost and expense by itself or through sub contracting arrangements in accordance with the terms and conditions of the agreement and complete the project Phase I within the time period specified therein. As per clause (g), prior to any assignment, mortgage, sub lease or transfer of the demised premises the lessee shall obtain from the lessor or its duly authorized representative in this behalf prior written approval for such assignment, mortgage, sub lease or transfer and to the terms of such assignment etc. and ensure that all such assignees, mortgagees, sub-leases or transferees and their successors and assigns and the successors of the lessee are bound by all the covenants and conditions herein contained and be liable in all respect in this behalf. The lessee shall further ensure that such assignees, mortgagees, sub lessees or transferees execute a supplementary lease/undertaking/necessary documents in the form and manner specified by the lesser to abide by the terms of this agreement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in project area as mentioned in Appendix 2 to the lease agreement:- (i)Hotel/Resort/Heritage Village (ii)Convention Centre (iii)Sports & Sailing and other Club activities (iv)Boating and Sailing (v)Light & Sound Shows (vi)Art Galleries (vii)Restaurants/Food Court (viii)Limited Shopping Mall (craft bazaar) (ix)Family Entertainment Centre/multiplex (x) Recreation activities on the lake (only non motorized boats would be allowed other than 2 or 3 rescue boats which an be motorized) Tourism & Recreational Total Land area Products in acre 1. Resort 30.0 2. Craft village 5.0 3. Chowki Dhani Type 7.0 4. Restaurant + Bar 1.0 5. Food Court 1.0 6. Ent.Centre 0.5 7. Multiplex 2.0 8. Go Karting 3.0 9. Boat House 2.0 10. Amusement Park 30.0 11. Convention Centre 8.0 Total:- 89.5 Common Facilities 2 Public Garden/ Square 10.5 Fountain ________ Total:- 100.0 It is also mentioned here that successful bidder shall design, develop, finance, implement, operate and maintain the area of 100 acres of land on the lake precinct. The bidder may use 89.5 acres of land for tourism and recreational products and 10.5 acres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nument at the rates set out in Annexure 3, which shall be rounded to the nearest rupee. For the avoidance of doubt, the Licensor acknowledges the right of the licensee to restrict visitors failing to pay the specified user charges from entering the Monument, provided that this condition shall not apply to duly authorised personnel of the licensor and competent authorities visiting the Monument for discharging official duties under the applicable laws." It is also apparent from clause 2.2(c) that the entry fee to the monument will be Rs. 25/- per visitor with escalation 10% per year. This goes to show that leave and license agreement is also for commercial gain given at Rs. 1/- per annum for 99 years. A revised proposal was submitted by Jal Mahal Resorts Pvt.Ltd. on 26th June, 2006 increasing the number of rooms in the hotel from 200 to 435, increase in the built up area under the sub head of resort hotel from 11,500 sq.m. to 32, 185 sq.m. The Department of Tourism of Government of Rajasthan discussed the matter in the meeting held on 10.10.2007 and it had been decided that master plan could not be changed and the company was informed accordingly. However, decision dated 10.10.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. The Government is bound to protect environment, forest, air, water, coastal zones etc. The State Government is bound to act as guardian and trustee in relation to catchment area of the pond, lake or river. People are owner of the natural resources. The Courts in India, considering Article 48, 48A, 51A(g) of the Constitution of India have issued directions from time to time with respect to natural resources, process of distribution to private persons, doctrine of public trust was evolved as part of Indian Jurisprudence, polluter-pay-principle was developed in M.C.Mehta V/s Kamal Nath (1997(1) SCC 388) and has been followed in Jamshed Hormusji Wadia V/s Board of Trustee (2002(3) SCC 214). The Apex court in the case of Centre for Public Interest Litigation (supra) referred to the decision in Fomento Resorts and Hotels Limited v. Minguel Martins (2009) 3 SCC 571 and has laid down that the the public trust doctrine enjoins upon the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources." In M.C.Mehta Vs. Kamal Nath & Ors, (1997) 1 SCC 388,the Apex Court has laid down that the river is a public property. It cannot be given for private use. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. The public trust doctrine is a part of law at present. Even in absence of legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. Large area of the bank of River Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. v. Mississippi 108 S.C.C. 791, the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological concepts to determine which land can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources. 34.Our legal system-based on English Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is beneficiary of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment is bound to protect historical tanks qua concept of 'sustainable development' and 'public trust doctrine'. Destruction of local ecological resources is not permissible. Property subject to trust must not only be used for a public purpose, but it must be held available for use by general public. Property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources. Principle of 'Inter-Generational Equity' also to be applied for protecting natural resources has also been taken into consideration by their Lordships of the Apex Court. The Apex Court has held that the "tank is a communal property" and State authorities are "trustees" to hold and manage such properties for benefits of community. State cannot be allowed to commit any act or omission which will infringe right of community and alienate property to any other person or body. Fact that the party has spent money on developing land is immaterial. The Apex Court has laid down thus:- "67. The responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Earth Summit at 1992, to which also India is a party, adopts the notion of sustainable development. Principle 4 of the declaration states: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. 73. In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. Public Trust Doctrine 74. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Company v. People of the State of Illinois (1892) 146 US 537 where the Court held: The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources, [Joseph L. Sax "The public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol.68 No.3 (Jan.1970) PP 471- 566)]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to imposed by the public trust doctrine [ibid]: 1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; 2. the property may not be sold, even for fair cash equivalent 3. the property must be maintained for particular types of use. (i) either traditional uses, or (ii) some uses particular to that form of resources. 77. In the instant case, it seems, that the Government Orders, as they stand now, are violative of principles 1 and 3, even if we overlook principle 2 on the basis of the fact that the Government is itself devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her person or body. " (emphasis added) In Akhil Bharatiya Upbhokta Congress v. State of M.P. (2011) 5 SCC 29, the Apex Court examined the legality of the action taken by the Government of Madhya Pradesh to allot 20 acres land to an institute established in the name of Kushabhau Thakre on the basis of an application made by the Trust. One of the grounds on which the Appellant challenged the allotment of land was that the State Government had not adopted any rational method consistent with the doctrine of equality. The High Court negatived the Appellant's challenge. Before the Apex Court, it was argued that the Court cannot exercise the power of judicial review to nullify the policy framed by the State Government to allot Nazul land without advertisement and the Apex Court rejected the said argument. Public interest is supreme in such matter. The Apex Court in Jagpal Singh and ors. V/s State of Punjab and ors. (Civil Appeal No 1132/2011 decided on 28.1.2011) has held in the context of village "pond" which was being used for the common purposes by villagers that if appellants have built houses on the land in question, they must be ordered to remove their constructions and posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng should only be by way of an exception. In our opinion, this decision will apply with greater force in cases of encroachment of village common land. Ordinarily, compounding in suchcases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers or a dispensary for them. 15. In many States Government orders have been issued by the State Government permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such government orders are illegal and should be ignored. 16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari V/s Kamala Devi AIR 2001 SC 3215 (followed by the Madras High Court in L.Krishnan V/s State of Tamil Nadu 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and natural springs. Badkhal lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types as explained in the report show that the Badkhal lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 7.The two expert opinions on the record - by the Central Pollution Control Board and by the NEERI - leave no doubt on our mind that the large scale construction activity in the close vicinity of the two lakes is bound to cause adverse impact on the local ecology. NEERI has recommended greenbelt at one KM radius all around the two lakes. Annexures A and B, however, show that the area within the greenbelt is much lesser than one KM radius as suggeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs. Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined: The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires." The Division Bench of this Court in Rajendra Kumar Razdan Vs. State of Rajasthan (D.B.Civil Writ Petition No.4271/1999 decided on 6.2.2007), has also ordered that the conversion and construction permission in and around the lakes and in their respective catchment areas is completely banned except the rarest of rare exceptional cases keeping in view the earlier orders of this Court. In the instant case, on facts it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot part of the area of lake. As the area of lake had not been ascertained by the concerned authorities with the help of old map etc., it could not be said that the area which was in submergence was not part of area of lake. When possession of the land in question was given, 14.15 acres land was in submergence, therefore, it was part of the area of lake, which could not have been reclaimed by respondent no.7. Such exercise is wholly impermissible. The area of the lake could not have been leased out and by doing so, lake is being damaged by proposing construction in it. The area of lake has been reduced, which is also illegal, arbitrary, without jurisdiction and void. When the possession was handed over, 14.15 acres of land was found in submergence and since it was submerged, obviously it has to be treated as part of the lake. Thus, the submission of respondent no.7 that 14.15 acres of land which was in submergence was not part of lake, is liable to be rejected. It is shocking and surprising that area which was under submergence of 14.15 acres and obviously formed part of the lake was permitted to be reclaimed by Jal Mahal Resorts Pvt.Ltd. There was no authority with the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O.60(E) dated the 27th January, 1994 wherein the Central Government directed that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification. As per note appended to the notification, any project or activities specified in category-B be treated as category A if located within 10 kms from boundary of protected area. Admittedly the Nahargarh Wildlife Sanctuary is nearby and within the periphery of 1 km. from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose built up area is between 20,000-1,50,000 sqm.falls in the category-B and will require prior environment clearance from SEIAA and with respect to item 8(b), it was submitted that neither any communication nor any document was received from the State Government of Rajasthan or the project proponents seeking permission from Central Wetland Regulatory Authority. Thus, it has not been disputed by MOEF that no permission for the project over 100 acres of land or on the other project area has been granted. For what purpose, it has granted the sanction has been clearly specified in the return. Relevant portion of the reply of MOEF is quoted below:- "17. That the contents of para 7 of the petition are replied in terms that the respondent had received a representation from the petitioner which was referred to the State Government of Rajasthan MOEF had given sanction only for the project conservation and management of Mansagar lake in Jaipur. 18. That with respect to the contents of paras 8A to H of the writ petition, it is submitted that the project for conservation and management of Mansagar Lake in Jaipur was sanctioned for improvement of Mansagar Lake, as per the mandate of the Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons shall be borne by the state Govt. (c) Annual operation and maintenance expenses shall be borne by state Govt. fully. (d) Approval is subject to compliance of commitment by the state Govt. with regard to O & M costs. (e) The State Govt. will ensure that no untreated sewage is discharged into the Mansagar Lake after the implementation of the lake conservation project. The Mansagar lake project would be monitored by Ministry of Env. & Forests/Planning Commission. For which necessary local arrangements shall be made by the implementing agency/state Govt. (f) Release of fund for this scheme will be further linked to:- (i) Fulfillment of legal and physical requirements by the state Govt. to enable local bodies to augment their resources for operation and maintenance of the assets created under the National Lake Conservation Plan. (ii) Full proof arrangements being made by the state Govt. to tackle non-point sources of pollution. (iii) Constitution of citizen monitoring committee under Divisional commissioner which should meet and monitor the progress regularly. (iv) Compliance of PERT chart for implementation of the scheme. Be done. 5. The funds for expenditure on the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 dated 20.12.2002. Yours faithfully -sd- (Asha Makhijani) Under Secretary to the Govt of India DETAILS OF BUDGET ESTIMATE FOR MANSAGAR LAKE CONSERVATION PROJECT UNDER NLCP S.No. ACTIVITIES COST ESTIMATE (Rs.IN CRORE) 1. Realignment of Drains 2.54 2. Desilting of Lake 7.01 3. Insitu Bioremediation 3.00 4. STP & Wetland construction 4.50 5. Settling Tank near Amer Road & Pumping Arrangement 0.10 6. Analysis of Water Quality and Sludge/sediment 0.14 7. Aforestation of the Lake 1.00 8. Lake Front Promenade 0.72 9. Water Supply & Sewerage 0.99 10. Electric Supply 1.38 11. Nesting Island 0.70 12. Checkdam 0.80 Total Rs. 22.89 crore Centages @ 8% Rs. 1.83 crore Total estimated cost Rs. 24.72 crore Total estimated cost= Rs. 24.72 crore GOI share = Rs. 17.30 crore State share = Rs. 7.42." What has been sanctioned is clearly culled out in the aforesaid estimate/sanction. It is no where mentioned that project of 432.8 acres has been sanctioned or that of 100 acres given on lease under project. It is shocking and surprising that various respondents in their return have tried to mislead this Court that the tourism project has clearance of Central Government MOEF, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, it was incumbent upon the respondents to have obtained environment clearance from the Central Government MOEF, which has not been obtained. It was also incumbent upon the respondents to have obtained environment clearance of Central Government MOEF in view of notification dated 14th September, 2006 issued under the Environment Protection Act as the project in question was within 10 kms from the boundary of protected area, but no such clearance has been obtained. The Central Government MOEF has only granted sanction for conservation and management of Mansagar Lake in 2002, but that sanction has got nothing to do with the project in question. It was also incumbent upon the respondents-State and its functionaries to consider the effect on ecology, flora, fauna, wildlife birds sanctuary considering the importance of the area, which has not been done. Water level of lake could not have been fixed in the manner done so as to carve out area for project. Permission has also been obtained from the Rajasthan Pollution Control Board on the pretext that MOEF has granted clearance to the project and as such, permission granted under Water Act and Air Act by the Rajasthan Pollution Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comparison". At page 36 of DPR it is stated as under: "2.7. Spread and Volume of lake water: (a) ........ (b) At the higher contour level there is constant threat of the lake waters spilling over on to the Amber Road, surrounding settlements and Projects Area. Hence, there is a need to establish a particular spread and volume of the water that ensures round the year sustenance of the lake." At page 51 to 54 of DPR, it is stated as under:- "3.0 ALTERNATIVE SCENARIOS CONSIDERED FOR DECIDING LEVEL OF LAKE. While developing the lake management and restoration plan, it has been envisaged that the lake precinct area after restoration will be used for tourism and recreation facilities. Hence while assessing different scenarios for deciding the lake level, the extent of lake precinct area to be released, has also been taken into consideration. With reference to the year-round sustainable quantum of water to be maintained in the lake and an acceptable lake profile three scenarios were considered. 3.1 Scenario 1: Maintaining Water Level at 100 contour level (if the current maximum spread of the lake is respected) (a) at 100 m RL, land available for lake precinct, to be utilized for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved through this dredging process. This process could be started immediately on being given the go ahead for the project and could be achieved in a far quicker time frame than through conventional methods of desilting and filling..................." At page 98 of DPR it is mentioned as under: "6.3 Mansagar Lake Precinct (a) Land available for Development The land availability option chosen is based on restoring lake water to maximum of 98 m level (412.085 in above MSL) Level. This scheme provides an area of 61.62 ha of land for the Tourism and Recreation activities.............." In our opinion, it is crystal clear from paras 3.3 and 3.4 of DPR that lake level has been reduced to carve out 100 acres land for lease, same is wholly impermissible act. The map no.2.6 in DPR the State Government has clearly shown that the area where tourism project is being implemented is shown as dried lake bed. The details of land handed over to Jal Mahal Resorts Pvt.Ltd. clearly show that the land pertaining to khasra no.67/317 is actually recorded as Gairmumkin talab with measurement of 13.17 bigha which also clearly shows that the tourism project area is part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shrubs which were planted during the lake restoration plan were completely destroyed. There is substance in the said submission. What had happened to the planted trees and shrubs, if they have not been destroyed during the aforesaid process, is not properly explained by the respondents. Size of Lake It was submitted by the petitioners that originally the lake was much larger in size and spread which was reduced due to several causes and after the respondents carved out a platform of 100 acres of land by use of silt excavated from the lake in the year 2006-07, its area remained about 130 hectares. Original size of lake is much more than 432.8 acres. Though this fact has been disputed by the respondent no.7 Jal Mahal Resorts Pvt.Ltd., it was submitted that total area of lake was 310 acres apprx.; PDCOR in the month of Oct.2001 has found that full spread of the Mansagar lake was approx.130 hectares with a catchment area of 23.50 kms; 40% of total catchment area is urban catchment and rest of the catchment area is in the form of denuded Aravali hills. We need not go into the exact area as there are disputed claims. It is for the respondents-State, JMC and JDA to fix the precise area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986. Thus, there is violation of the notification issued under section 3 of the Act of 1986 and the Environment (Protection) Rules framed thereunder which is punishable under section 15 of the Act of 1986 for a term which may extend to five years, as no requisite permission from the Central Government MOEF was obtained, as evident from the reply of the Central Government MOEF. The submission based on letter of Central Government MOEF dated 13.9.2002 that it approved PPP does not advance case of respondent no.7; firstly it is not sanction of project as conceived as apparent from return of MOEF; secondly, no sanction has been applied for to Central Government MOEF, which is necessary; thirdly PPP cannot be for such a venture in lakebed itself, which is unalienable public property held in trust; no such project with Private Public Partnership can ever be conceived much less sanctioned. The submission that Central Government MOEF has sanctioned project made on the basis of said letter is misleading based on distortion of facts amounts to deliberate misrepresentation of facts as apparent from reply of MOEF itself that it has not sanctioned the project in question given to respondent n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase agreement for a period to be determined by the committee Provided that the maximum lease period shall not exceed 30 years. 15. The Committee will determine the value of the property which shall form the basis for determining minimum lump sum down payment and also minimum annual lease rent and increase thereon." (Emphasis added) Rule 22 of the Rules of 1997 provides that DOT/RTDC may dispose of any land or property through two stage bidding process on terms and conditions to be determined by the committee, for a lease period of 99 years. Rule 23 provides that when the land/property is disposed of under Rule 22, the purchaser shall, other than the "cost of land" to be paid before the delivery of the possession, pay such urban assessment or "annual lease" as is determined by the committee, constituted under Rule 3. Thus, it is necessary as per Rule 23 that "when any land is disposed of for a lease period of 99 years i.e. by way of sale", purchaser shall have to pay cost of the land. We find that cost of land has not been determined at any point of time by the Department of Tourism or RTDC. Thus, the action of virtually selling away of property by way of lease for 99 years is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee". Section 92(2)(b) is quoted below:- "92. Power to acquire and hold Property.-(2) All property of the nature hereinafter in this section specified and not being specially reserved by the State Government shall vest in and belong to the board, and shall together with all other property of whatsoever nature or kind not being specially reserved by the State Government, which may become vested in the board, be under its direction, management and control, and shall be held and applied by it as trustee subject to the provisions and for the purposes of this Act, that is to say- (b) all public streams, tanks, reservoirs, cisterns, wells, springs, aqueducts, conduits, tunnels, pipes, pumps and water works, and all bridges, buildings, engines, works, materials and things connected therewith or appertaining thereto and also any adjacent land, not being private property, appertaining to any public tank or well. (emphasis added) The property being held by Municipal Corporation in public trust, it was not open to it to hand over to RTDC or to Jal Mahal Resorts Pvt.Ltd. as that is also in contravention of the provisions of the Municipalities Act and the Rajasthan Municipalities (Disposal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed proforma and such proposal shall be examined by a Committee consisting of the following members:- (a) In case of Cities and municipalities at District head Quarters.- 1. Collector of the District Chairman 2. Senior Town Planner Member or Deputy Town Planner having jurisdiction 3. Executive Engineer, Public Member Works Department (Buildings and Roads) having jurisdiction 4. Treasury Officer having Member jurisdiction 5. Administrator/Chairman of Member the Board 6. Executive Officer of the Member- Board Secretary (b) In case of other towns- 1. Sub-Divisional Officer Chairman concerned 2. Assistant Engineer, Public Member Department (Buildings and Roads)having jurisdiction 3. Incharge, State Treasury/ Member Sub-Treasury concerned 4. Administrator/Chairman of Member Board 5. Executive Officer of the Member-Board Secretary 1A. Any three members including the Chairman of the Committee shall constitute the quorum. 1B. In case of a municipality where Sub-Divisional Officer is Administrator, Chairman of the Committee shall be such officer as may be nominated by the Collector not below the rank of Additional Collector. (2). The Committee shall mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said land. (iii) The land allotted to the Tourism Department or the Rajasthan Tourism Development Corporation could be further transferred for a Tourism Unit to a private individual or company corporate under the procedure which has been approved for this purpose by the Department/Corporation. (iv) If the Tourism Department or the Rajasthan Tourism Development Corporation sells the land on a price which is higher than the commercial reserve price, then the entire proceeds after deducting 15% administrative charges would be transferred to the Board within 15 days of the receipt of the purchase price. However if the land is disposed of by the Department of Tourism/Rajasthan Tourism Development Corporation within this period then the balance instalments would be paid at once after receipt of the purchase price. The Tourism Department/Rajasthan Tourism Development Corporation would be liable to assess and recover urban assessment @ 5% of the reserve price from the ultimate allottee and if the area has been developed by the Board then pay the same every year to the Board after deducting administrative charges @ 15%. [Notification No.F.8(Gr.)Rules/DLB/97/802.GSR 144, dated 4th M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the State Government and may use the same for the purposes of this Act and may dispose of the same [by way of allotment, regularization or auction] subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner, as it may, from time to time, prescribe: Provided that the Authority may dispose of any such land- (a) without undertaking or carrying out any development thereon; or (b) after undertaking or carrying out such development as it thinks fit, to such person, in such manner and subject to such covenants and conditions, as it may consider expedient to impose for securing development according to plan. (2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority. (3) If any land vested in the Authority is required at any time by the Nagar Nigam, Jaipur for carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Nagar Nigam, Jaipur or any Department of the State Government on such terms and conditions, as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracting party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands. Article 6(1) provides that contracting parties shall ensure that those responsible at all levels for wetlands management shall be informed of and take into consideration, recommendations of such conferences concerning the conservation, management and wise use of wetlands and their flora and fauna. List of contracting parties to the Ramsar Convention on wetlands has been annexed with Annex.PR/4 in which name of India has also been mentioned. Articles 3, 4 and 6(1) of the Ramsar Convention are quoted below:- "Article 3 1. The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory. 2. Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assistance to the State Governments and Union territory Administration for various conservation activities through approval of the Management Action Plan. 'Wetland' has been defined in Rule 2(1)(g) of the Wetlands Rules, 2010 which reads as follows:- "(g) 'Wetland' means an area or of marsh, fen, peatland or water; natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including area of marine water, the depth of which at law tide does not exceed six meters and inches all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wetland and the zone of direct influence on wetlands that is to say the drainage area or catchment region of the wetlands as determined by the authority but does not include main river channels, paddy fields and the coastal wetland covered under the notification of the Central Government of India in the Ministry of Environment and Forest, S.O.number 114(E) dated the 19th February, 1991 published in the Gazette of India, Extraordinary, Part II, Section 3 Sub-section (ii) of dated the 20th February, 1991" (emphasis added) From the above definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries and expansion of existing industries; (iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vides.O. number 966 (E) dated the 27th November, 1989 or the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/Genetically engineered Organisms or cells notified vide GSR number 1037 (E) dated the 5th December, 1989 or the Hazardous Wastes (Management, Handling and Transboundry Movement) Rules, 2008 notified vide S.O. number 2265 (E), dated the 24th September, 2008; (iv) solid waste dumping; provided that the existing practices, if any, existing before the commencement of these rules shall be phased out within a period not exceeding six months from the date of commencement of these rules; (v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements; provided that the practices, if any, existing before the commencement of these rules shall be phased out within a period not exceeding one year from the date of commencement of these rules; (vi) any construction of a permanent nature except f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ories and non-inclusion in schedule will not take the land out of the category of wetland as per Ramsar Convention to which India is signatory. Wetlands Rules 2010 have been framed and no application has been filed so far by the State Government or Jal Mahal Resorts Pvt.Ltd. to obtain clearance under the Wetlands Rules 2010 as stated by MOEF in its return. Assuming that the lake in question is not included in the schedule, yet the purpose for which the Wetlands Rules have been framed, cannot be ignored by the State Government or any other respondents. Thus, project in question, is in flagrant violation of Rule 4 of the Wetlands Rules. As the project Phase II has not yet been taken up under the lease agreement and whatever has been done is only some part under the appendix-14 with respect to restoration of monument. In terms of Wetlands Rules, 2010, since lake bed has been given including catchment area for permanent construction, such acts are not permissible within 50 meters and project will have the adverse effect on ecology of area, has not been taken into consideration and forbidden activities have been permitted. It is incumbent upon the State Government to identify the wetl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of 1974 and the Rules of 1997, same has not been done. It was also necessary that land should be leased out at the actual cost of the land and annual premium as provided under the Rules of 1974 and 1997. However, without considering the aforesaid Rules, land was leased out to Jal Mahal Resorts Pvt.Ltd. for a period of 99 years at a throw away price. There was no rhyme or reason to make departure from the aforesaid Rules. For the reasons best known to them, pecuniary interest has been completely given go-bye. Such arbitrary and irrational distribution of largesses, which was held by respondents-State, JMC and JDA in public trust, is not permissible. Such valuable property could not have been given frittered away in the manner in which it has been done in the instant case. It is shocking the conscience of the Court how such a project could have been conceived at a throw away price particularly when there is sale of leasehold rights for 99 years. It is virtually a sale of the property as provided under the Rules of 1974 and 1997. Even if in the area in question it was permissible for commercial activities, the transaction in question is wholly void and in contravention of doctrine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaction of Panditji was noted as mentioned at page 126 as under : The British had run India for three centuries with the byword 'Divide and Rule'. They proposed to leave it on a new one; 'Fragment and Quit'. White-faced, shaking with rage, Nehru stalked into the bedroom of the confidant Krishna Menon who'd accompanied him to Simla. With a furious gesture, he hurled the plan on to his bed. It's all over!' he shouted. 17. This Court was not satisfied with the counter-affidavit filed on behalf of the Government of India. Therefore, it gave directions on November 24, 1995 to have the matter reconsidered by the Cabinet Sub-Committee. Accordingly, a counter-affidavit was again failed on January 22, 1996 stating that "in August 1982, the Union Cabinet took a decision that the Indian Institute of Advanced Studies which is housed in the Rashtrapati Nivas building should be shifted to some other building in Shimla". It was further stated that "At a subsequent Cabinet Committee meeting held on 8th May, 1990, it was decided that the entire campus earlier known as Viceregal Lodge may be transferred to the Ministry of Toruism for being developed as a major tourist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Court was informed the around 65 acres was the land near the main building at the observatory hill and 25 acres of the land was situated elsewhere at prospect hill. This Court indicated to the learned senior counsel for the respondents that the appurtenant land which was kept vacant, as was admitted in their counter-affidavit, should be 25 acres surrounding the entire building. The Court directed that if the said land is used for any other public purpose, like establishment of tourist hotels or office buildings, which was originally proposed and resolved by the Cabinet Resolution, the same should be beyond that area and that too without contravention of the Forest Act and other relevant laws. The counsel sought and was granted time for producing tentative plan proposed by them without touching the appurtenant land. When the matter had come up for next hearing on April 3, 1996 counsel was not present and, therefore, the matter was adjourned indicating that in case of non-appearance, appropriate orders would be passed." It is not understandable that even seven star hotel is to be constructed including other commercial venture on annual rental of Rs. 2.52 crores, amount is shoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 25/- per person as entry fee which could be escalated by 10% every year; even for entering in the garden, Jal Mahal Resorts Pvt.Ltd. was authorized to levy an amount of user charges on the public and restrict the visitors failing to pay the specified user charges and such levy of fees and charges on the public after paying just Rs. 1/- per year under lease and license to the State Government is arbitrary, contrary and in violation of the principles of transparency, accountability, public financing and smacks of highhandedness. Illegal grant of contract/waiver of eligiblity condition:- It was a necessary condition of eligibility that lead manager had to be a private/public Ltd. Company. Respondent K.G.K. Enterprises was a partnership firm, it was admittedly not fulfilling the eligibility criteria. Relaxation of eligibility condition of being private/public limited company was also bad in law. It was not open to waive the condition. Once terms and conditions were fixed, eligibility condition is required to be observed. Since KGK Enterprises was a partnership firm, it was not fulfilling the eligibility condition. For the reasons best known to the respondents-State/authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of the time limit for submission of tenders but before opening thereof, it was held by the Apex Court that award of contract to a tenderer who at the time of submission of tender did not satisfy the said condition was rightly set aside by the High Court being arbitrary. Court's interference is called for where government action is arbitrary or discriminatory. In the instant case, deviation from eligibility condition of tender document was made without any rhyme or reason and thereafter, the method and manner in which the land was leased out to respondent no.7 clearly shows arbitrariness on the part of the State and its authorities. In Tata Cellular V/s UOI ( AIR 1996 SC 11), the Apex Court held that principles of judicial review applies to exercise of contractual power by Government bodies in order to prevent arbitrariness or favouritism; there are inherent limitation in exercise of power judicial review; Government is guardian of finances of State; Government is expected to protect financial interest of State; right to refuse lowest or any other tender is always available to Government while accepting or refusing tender; principles laid down in Article 14 to be kept i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be changed, revision in the plan was accepted on 10.9.2009 without requisite clearance and approval from MOEF; respondent no.7 was asked to get requisite clearances; it was incumbent upon the concerned Committee to ensure that what it was approving has statutory clearances of Central Government MOEF; there was no due application of mind to all these aspects while revising project. This shows that the authorities were bent upon to totally ignore the interest of the public and they have grossly violated the public trust doctrine and failed to act in its mandate; even revised plan could not have been cleared without "prior" sanction; action relating to tourism project appears to be on extraneous consideration, favouratism and against the public trust doctrine and violative of Articles 14, 21, 48A, 49 and 51A(g) of the Constitution of India. Sedimentation/settling tank and damage to lake With regard to construction of sedimentation/settling tanks, it was submitted by the petitioners that one third of the lake was converted into a series of sedimentation/settling tanks made in the downstream of the lake by the respondent no.7. It was also submitted that the respondent no.7 also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Mahal Resorts Pvt.Ltd. that the writ petitions are not maintainable in contractual matters. It has been further submitted that the Project was conceived in the year 1999; DPR was approved in 2000; advertisement was issued on 25.4.2003; on 9.2.2004, it was decided that the project be handed over to KGK Enterprises; on 13.9.2004, letter of intent was issued and thereafter, lease agreement and leave and license agreement were executed on 22.11.2005 and the possession of the land in question was handed over on 4.4.2006. No steps were taken by the petitioners to file writ petitions and the writ petitions have been filed belatedly and on ground of delay and laches, the petitions are liable to be dismissed. We are not at all impressed by the submissions of Shri A.K.Sharma, Senior Counsel considering the facts of the case that the project has been given in the area of 100 acres, substantial part of which forms part of the lake; no activity is permissible in the lake, which has also been leased out to Jal Mahal Resorts Pvt.Ltd.; second phase of the project with respect to construction activity has not yet been started; lease has been given for a period of 99 years, period of lease is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restored. The decision in Ramana Dayaram Shetty V/s The International Airport Authority of India and ors. (AIR 1979 SC 1628) does not advance the cause of the respondent no.7 particularly when in the instant case area leased out includes the lake bed and prime and valuable property has been given at a throw away price, which cannot be permitted. Delay has to be considered in the facts and circumstances of each case and the nature of the rights involved/violated. In Delhi Development Authority V/s Rajendra Singh and ors. ((2009) 8 SCC 582) relied upon by the learned counsel for the respondent no.7, the question arose whether Yamuna riverbed was used for the construction of commonwealth games village, it was found by the National Environmental Engineering Research Institute that the site concerned was not a part of river bed, in that context delay was considered and the PIL filed in 2007 to question the notification dated 26.6.1997 was held to be belated one and liable to be dismissed on ground of delay and laches. The facts are totally different in the instant case and considering the nature of the project and the area leased out forms part of the lake bed and the prime and valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance and thus, the aforesaid decision has no application to the facts of the present case. Besides, the same is subject to appeal, which is said to be pending. In any view of the matter, the decision is distinguishable on facts. In R & M Trust V/s Koramangala Residents Vigilance Group and ors. ((2005) 3 SCC 91) where granting of permission for raising of multi storeyed building on the site was not prohibited and in that context, it was held that delay in filing PIL challenging grant of building license to builder for construction of multi storeyed biding was fatal. In the instant case, ecological/environmental aspects are involved; area leased out is part of area of lake bed itself and leasing out the same is wholly unauthorized; there is breach of public trust. Hence, aforesaid decision is of no help to the respondent no.7 as it is distinguishable on fact. In Narmada Bachao Andolan V/s Union of India (2000 (10) SCC 664), the Apex Court has held that any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause PIL Cell of the Supreme Court has not treated the letter of petitioner-Prof.K.P.Sharma as PIL, it cannot be said that he was precluded from filing petition before this Court. It is not a case of dismissal of SLP by the Apex Court. It is a case of non-registration of letter of Prof.K.P.Sharma as PIL by the PIL Cell of the Supreme Court. The petitioner has been taking steps regularly and was not sleeping over the matter. Having failed to obtain requisite clearance so far from Central Government MOEF, it does not lie in the mouth of the respondent no.7 to raise the aforesaid submission. Reliance has also been placed by the respondent no.7 on the decision of the Apex Court on Kalyaneshwari V/s Union of India (2011 (3) SCC 287) in which it has been laid down that one who approaches the court owes a duty to approach the court with clean hands. In the instant case, we find no material on the basis of which it can be said that Prof.K.P.Sharma has not come with clean hands. It also cannot be said that he was not having any interest in protecting the lake and motivated by others for extraneous consideration. The ratio laid down in the aforesaid decision is not attracted to the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impressed by the said submission. It was also submitted by Shri A.K.Sharma that Dr.Brij Gopal is the Secretary of National Institute of Ecology and offered the project to respondent no.7 for catchment treatment along Nagtalai drain. The petitioner was well aware of these facts. There is no impact to maintain the petition in case any project was offered for Nag Talai Drain by Dr.Brij Gopal. Writing of letter Annex.R/7/17 cannot come in the way of the petitioner to maintain the petition. Letter Annex.R/7/17 was written by petitioner Prof.K.P.Sharma to the Commissioner, JDA, Jaipur in which it was mentioned that since the work is funded by the Ministry of Environment and Forest, New Delhi via JDA, Jal Mahal Resorts Pvt.Ltd. may be provided report on the cost basis in consultation with MOEF, New Delhi. The aforesaid letter was written by the petitioner to JDA to provide report to respondent no.7 on the cost basis in consultation with MOEF, New Delhi, no fault can be found in the letter and such communication cannot be said to be a way of extorting money. The respondent no.7 has misconstrued the contents of the letter and made unwarranted allegations of extorting money on the basis of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the writ application on behalf of the petitioner Prof.K.P.Sharma in any manner; other two writ applications were already pending when Writ Petition No.1008/2011 was permitted to be withdrawn. Withdrawal of writ precluded Ram Prasad, not other persons from filing writ application. Reliance has also been placed by Shri A.K.Sharma on the judgment in Shri Krishan Kukkar V/s State of Rajashan (D.B.Civil Writ Petition (PIL) No.6308/2011 decided on 11.5.2011) where this Court considering the averments made in the petition did not find any case so as to direct CBI investigation against the Chief Minster. In the said judgment, this Court has never examined the process of tender as the facts were not mentioned in the said writ application in detail about the grant of lease deed in question and this Court had examined whether it was appropriate to direct CBI investigation into the various allegations leveled against the Chief Minister. Thus, the decision in the case of Shri Krishan Kukkar (supra) is of no avail. The question was open to be decided in other writ applications with respect to legality of the lease deed etc. Such question was never gone into or raised or pondered or cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty held in public trust. As a matter of fact, valuable property has been given to him on lease for 99 years on annual license of Rs. 1/- and annual rentals of Rs. 2.52 crores payable to RTDC with obligations to maintain water, STP, irrigation etc., whereas the market value of the land was about Rs. 3500/- crores. Apart from this, further right has been given to him to alien or sub-lease or mortgage the property. The respondents-State and authorities were aware as to what was the cost, but failed to take care of the value of the property and given the same ignoring public interest and leased out part of lake unauthorizedly and thus, acted in an illegal and arbitrary manner and violated the doctrine of public trust as rightly urged by the petitioners. Apart from this, details of expenditure of 70 crores have not been furnished by the respondent no.7. It is submitted that Rs. 15 crores have been spent voluntarily for restoration of lake and Rs. 10 crores has been spent for diversion of nalahs. However, for diversion of nalahs permission was required to be obtained. Rs. 3 crores have been spent as project development fee and Rs. 2.52 crores have been spent as annual rental fee. In fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) 8 SCC 262) wherein it has been held that mere violation of statutory provisions would not render State's action arbitrary at all. In the peculiar facts and circumstances of the case leasing out the land to a private company without floating tenders or holding public auction was held to be not illegal or arbitrary or mala fide. In the instant case, tender process was adopted, but waiver was made of condition of eligibility and 100 acres of valuable land has been given/sold on lease for 99 years at a paltry sum, which included area of lake, land of gairmumkin talab and submerged area and while leasing out the land, statutory provisions, public interest and pecuniary interest have been given go-bye and thus, action is wholly unsustainable and has no protective umbrella. It was also submitted by Shri A.K.Sharma that the petitioners are not expert in lake management, irrigation and other fields related to environmental protection. As already stated above, no environment clearance has been obtained for the project from MOEF Central Government and though the petitioners are not expert nor the Court can claim expertise, but it is apparent that requisite clearance was necessary to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent no.7. In Federation of Railway Officers Association V/s Union of India (2003(4) SCC 289) relied upon by the learned counsel for the respondent no.7, the Apex Court has held that wholesome rule in regard to judicial interference in administrative decisions is that if the government takes into consideration all relevant factors, eschew from considering irrelevant factors and act reasonably within the parameters of the law, court would keep off the same. The ratio of the aforesaid decision is not attracted in the instant case as the State and authorities have acted in an illegal and arbitrary manner, in breach of public trust doctrine and juxtaposed to ratio of the said decision. Reliance has also been placed on the decision of the Apex Court in Tehri Bandh Virodhi SangharshSamiti V/s State of UP (1992 (Suppl.1) SCC 44), the Apex Court found that the Union of India considered the question of safety of the project in various details more than one and opinion of the expert and thus, it could not be said that Union has not applied its mind or has not considered the relevant aspects of safety of dam. In the instant case, requisite clearances were not obtained prior to final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut only the offending part of the amendment which had the effect of altering the basic structure was struck down. Reliance has also been placed by the respondent no.7 on the decision of Apex Court in LIC of India and anr. V/s Consumer Education & Research Centre & ors. ((1995) 5 SCC 482) wherein only offending clause was held to be unconstitutional. In the instant case, we found the entire transaction to be wholly impermissible and in serious breach of public trust doctrine and hence, the same cannot be severed and permitted to prevail. Reliance has also been placed on the decision of the Apex Court in M.S.M. Sharma V/s Shri Krishna Sinha and ors. (AIR 1959 SC 395) particularly on para 33 where in the matter of freedom of press, it was pleaded that Committee of Privileges was proceeding against the petitioner malafide with a view to victimise and muzzle him as he has through his newspaper unsparingly criticizing the administration in the State of Bihar of which opposite party no.1 was the Chief Minister, it was observed that allegation of bad faith cannot be readily accepted; the case of bias of the Chief Minister has not been made anywhere in the petition and thus, it would not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lop Jalmahal lake; on 30.6.1987 notification under section 39(3) of the JDA Act was issued to develop Jalmahal Project as tourist spot. As a matter of fact, land had been acquired by spending huge amount. Merely by the fact that project has been conceived, lakebed could not have been leased out; prime and valuable land has been leased out at a throw away price without due consideration of ecological effect. The state and its authorities have acted in an illegal and arbitrary manner and in utter disregard of public trust doctrine. Reliance has been placed by respondent no.7 on the decision of the Apex Court in Sachidanand Pandey V/s State of W.B. (1987(2)SCC 295) in which the Apex Court observed that Taj Group Hotels gave all assurances necessary to preserve Zoo and its inmates; they were willing to afford all requisite safeguards in place of a dilapidated hospital, operation theatre; they agreed to build not usual skyscraper hotel, but a garden hotel, height of which would not go beyond 75 feet; this was done to keep free route of flight of birds; they agreed to subdued light in hotel, again in interest of bird; they agreed to keep the surroundings of hotel and flora well maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination or infringes any statute or provisions of the Constitution. The decision rather runs counter to the submission raised on behalf of the respondent no.7 as the action is not only arbitrary, capricious but contrary to the Act and Rules as held by us. Reliance has also been placed on the decision of the Apex Court in State of UP V/s Choudhary Ram Beer Singh (2008(5) SCC 550) in which it has been laid down that in the matter of policy decision, the scope of interference is extremely limited. No doubt about it. In the instant case, policy decision suffers from the vice of arbitrariness and unreasonableness and in breach of doctrine of public trust. A valuable property of several thousand crores has been leased out for a period of 99 years at a paltry annual lease amount ignoring the interest of the public and even right to further sub-lease or alien or mortgage the property has been given and the leased out land also contain area of lake, gairmumkin talab and submerged area. Hence, the above decision is of no help to the respondent no.7. Reliance has also been placed on the decision of the Apex Court in Nagar Nigam V/s Al Faheen Meat Exports (2006(13) SCC 382) wherein it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Act and Rules; they have committed the breach of public trust; they have reached a decision which no reasonable person would have reached; they have abused the powers. Thus, the Court is bound to interfere in such matter as laid down in the case of Tata Cellular (supra). Relying upon the decision of Punjab and Haryana High Court in Raj Kumar & anr. V/s State of Punjab ((2011) 161 PLR 814) (Civil Writ Petition No.15645/2007 decided on 25.11.2010), it was submitted on behalf of the State that private participation for restoration of state level sites of public/historic importance is prevalent in the country and even the Archeological Survey of India has permitted the same. The Punjab and Haryana High Court has referred that the following heritage buildings/Forts have been resurrected/restored/maintained by virtue of private public partnership: (i) Gardens of Emperor Humayun's Tomb (ii) Jal Mahal, Jaipur (iii)Jaisalmer Fort, Rajasthan (iv) Isa Khan's Complex, New Delhi (v) Sunda Chun Monastery, Ladakh (vi) Dalhousie Square, Kolkata (vii)Paradesi Synagogue, Cochin (viii) Bhau Daji Lad Museum In the case of Raj Kumar (supra), the Punjab and Haryana H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under self created compulsions as licensee was required to bear the stamp duty. There was no rhyme or reason to even exempt payment of stamp duty. The decision appears to have been taken in order to benefit the licensee and it is against the provisions of Section 29(c) of the Stamp Act and 55(1)(d) of the Transfer of Property Act. Employment opportunity etc. It was also submitted by the respondent no.7 that implementation of the project would yield employment for 3000 persons. The project when implemented will have a craft bazaar of 200 shops; it will generate revenue for tour operators also and hence it is in public interest. The question is not of providing employment opportunity in the illegal method and manner in which it has been done at the cost of lake and ecology. The land has been given on lease on a paltry sum that too for 99 years ignoring the public interest and ecology. Even the area of lake and gairmumkin wet land has been leased out, which is not permissible. It is definitely a case of illegal siphoning of valuable public property. It was submitted by the respondent no.7 that development of the lake was proposed to be made to ensure availability of funds to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now been created by reducing level of lake water. (5) That from the materials available on record, particularly DPR itself the basis of entire project where it is stated that the current maximum water spread of the lake being 400 acres, there remains no manner of doubt about the fact that the respondent authorities have sold/leased out 25% of lake basin itself for the purpose of preparing 100 acres of land to be used for their so called tourism project which is absolutely illegal and unconstitutional and therefore void ab initio. It was not open to tamper with lake water level to create 100 acre land for lease for hotels etc. (6) That in several cases, Hon'ble Supreme Court and this Court has laid down that no right can be given to use nadi land or other water body; there cannot be any activity which affects water body; nadi cannot be used for construction. In the instant case, the Government has included the land of lake in the project area of 100 acres leased out to Jal Mahal Resorts Pvt.Ltd. and apart from this, submerged 14.15 acres area has been given which is part of lake. Even 13 bigha 17 biswa land recorded as "Gaimumkin Talab" part of lake has been leased out, other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity was competent for the matters falling under Category B and not for the matters falling under category-A project and as the project in question is admittedly within 10 kms from the boundary of Nahargarh Wildlife Sanctuary, which is protected area notified under the Act of 1972, of which notification is on record, therefore, prior permission of Central Government MOEF was necessary for the project in question as mandated in the Notification dated 14.9.2006 and the same has not been obtained and in absence thereof, the entire action taken by the respondent no.7 Jal Mahal Resorts Pvt.Ltd. and other respondents is unauthorized, illegal and void. Permission obtained from SEIAA for the tourism project treating it as category-B as per item 8(a) is illegal and void. The said Authority was not authorized as per para 2 of the Notification of MOEF dated 14th September, 2006 to grant permission for the project in question. (13) That the permission has also been obtained from the Rajasthan Pollution Control Board on the pretext that MOEF has granted clearance to the project and as such, permission granted under Water Act and Air Act by the Rajasthan Pollution Control Board is also of no av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fetched is more it has to be disbursed as per Rule 15(15) of the Rules of 1974 to Municipal Corporation. The Municipal Corporation has failed to act in objective manner. Being custodian of the property, it was not open to the Municipal Corporation to transfer the land in the method and manner which has been done to Department of Tourism or RTDC in violation of Municipalities Act and the Rules of 1974. (16) That in view of the provisions of Section 54 of the JDA Act, it was not open to JDA to fritter away the valuable land without imposing proper terms and conditions. (17) That purpose for which the lease has been given cannot be said to be strictly in accordance with the recreational purpose, but the project has been sanctioned for commercial exploitations, which is the main objective not the development of tourist facilities. The tourist facilities have been rendered secondary. Even if assuming that the commercial activities are permissible, in that event also, it could not have been done, considering the area in question is part of lake and land was given without following the due procedures prescribed under various Acts and Rules and even environment clearance of Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is against the provisions of the Municipalities Act, Rules of 1974, Rules of 1997, JDA Act and in breach of public trust doctrine. (21) That it is a case of illegal siphoning of the valuable property of several thousand crores for paltry sum of annual lease with obligation on lessor to maintain lake etc. (22) That under the agreement, lessee/licensee has been given right to realize amount of Rs. 25/- per person as entry fee which could be escalated by 10% every year; even for entering in the garden, Jal Mahal Resorts Pvt.Ltd. was authorized to levy an amount of user charges on the public and restrict the visitors failing to pay the specified user charges and such levy of fees and charges on the public after paying just Rs. 1/- per year under leave and license agreement, Appendix 14 to lease agreement, to the State Government is arbitrary, contrary and in violation of the principles of transparency, accountability, public financing and smacks of highhandedness. (23) That the State or its tendering authority is bound to give effect to the essential condition of eligibility stated in the tender document and was not entitled to waive such conditions. Since KGK Enterprises was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he licensee. Resultantly, we pass the following orders:- (1) That 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 Private Limited is declared illegal and void; (2) That similarly, Jal Mahal Leave & License Agreement dated 22nd November, 2005, appendix 14 to Mansagar Lake Precinct Lease Agreement is also declared illegal and void. (3) That Jal Mahal Resorts Pvt. Ltd. is 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 to the RTDC who shall in turn give it to Jaipur Development Authority, Jaipur Municipal Corporation and State. (4) That respondents are further directed to immediately remove all sedimentation and settling tanks from the Mansagar Lake basin and to realize costs from Jal Mahal Resorts Pvt.Ltd. and to examine restoring position of Nagtalai and Brahampuri Nalah (Drains) to their original position as realigned by RUIDP under Mansagar Lake Restoration Plan, in consultation with Central Government MOEF. (5) That respondents-authorities ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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