TMI Blog2015 (11) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to 8.65 acres and the balance disputed area claimed to be lake bed comprising 14.15 acres shall be notionally treated as part of the lease deed but the same shall remain a construction free zone where neither the State Government of Rajasthan nor the appellant-lessee/Jal Mahal Resorts Pvt. Ltd. shall have the right to raise any construction on this area as the same shall remain exclusively for the use of public promenade / walkway free of charge. - CIVIL APPEAL NO.4912 OF 2014 (Arising out of SLP (Civil) 17701/2012), CIVIL APPEAL NO.4913 OF 2014 (Arising out of SLP (Civil) 19239/2012) AND CIVIL APPEAL NO.4914 OF 2014 (Arising out of SLP (Civil) 19240/2012) - - - Dated:- 25-4-2014 - MISRA, GYAN SUDHA AND GHOSE, PINAKI CHANDRA, JJ. JUDGEMENT GYAN SUDHA MISRA, J. 1. Leave granted. 2. These appeals by way of special leave have been preferred against the common judgment and final order dated 17.5.2012 passed by the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in three public interest litigation petitions filed by the petitioners K.P. Sharma, Dharohar Bachao Samiti, Rajasthan and Heritage Preservation Society respectively against the State of Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment and order of the High Court. However, at this juncture we refrain from expressing further on its implication and would deal with the same, if necessary, at the appropriate stage. 4. In so far as the appeals preferred by the appellant-M/s. Jal Mahal Resorts Private Limited is concerned, we have noticed that the appeal has been preferred against the common judgment and order of the High Court under challenge herein whereby the writ petitions which were filed by the respondents as public interest litigation bearing DB (CWP) No.6039/2011 entitled Prof. K.P. Sharma vs. State of Rajasthan and Ors as also DB (CWP) PIL No. 5039/2010 entitled Dharohar Bachao Samiti Rajasthan vs. State of Rajasthan and Ors. as also the 3rd writ petition bearing DB (CWP) PIL No. 4860/2010 entitled Heritage Preservation Society Rajasthan and Anr. vs. State of Rajasthan and Ors. have been allowed by the Division Bench of the High Court and resultantly the Mansagar Lake Precincts Lease Agreement dated 22.11.2005 awarding 100 acres of land on lease for a period of 99 years to the respondent No.7/the appellant herein/ M/s. Jal Mahal Resorts Private Limited was declared illegal and void. As a consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and to direct the respondent No.7/appellant herein M/s. Jal Mahal Resorts Private Limited to restore the original position of 100 acres of land by removing the soil filled in by it at its own costs. 6. The appellant M/s. Jal Mahal Resorts Private Limited has assailed the judgment and order of the High Court on several grounds to be related hereinafter. But before doing so it has related the factual and historical background of the matter giving rise to these appeals. In this context, it has been stated that the Mansagar Lake was a man-made lake on the northern fringe of Jaipur city. Within the lake a pleasure pavilion called Jal Mahal was constructed by the erstwhile rulers of Jaipur in the 18th century and this structure is still existing in the midst of the lake. Tracing out the historical background, it has been stated that in 1962, the two main sewerage drains of the walled city of Jaipur Nagtalai and Brahmapuri were diverted to empty into the water body which led to its degeneration, siltation and settled deposits and contaminations to such an extent that it could not support aquatic life nor support flora and fauna in the surrounding areas. The water body was covered wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Mahal monument and there would be consequent development of eco friendly tourism destinations with large open green spaces in the vicinity of the lake which would improve the environment and resultantly, the aesthetics and visual quality of the area. 9. The Government, therefore, adopted the approach of public- private partnership to the restoration and development of the precincts in an environmentally conscious way. For this purpose, project conceptualization was chalked out and the project structure was conceptualized after detailed studies over a number of years. In the year 1999 a Detailed Feasibility Report ( DFR ) was prepared. The DFR covered architectural conservation and reuse of Jal Mahal; Ecological Restoration of the Lake along with Development of surrounding areas for integrated tourism development and recreational facilities. Approval to the DFR was accorded by Jaipur Municipal Corporation in November 2000. 10. As a consequence of the aforesaid conceptualization, process for bidding started which has been described as First Bid Process by the appellant which started after publication of the advertisement. Request for Qualification ( RFQ ) was released in Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be sustainable and bankable as required by MOEF through a Public Private Partnership model. 14. On the basis of commitment of State Government to meet 30% expenditure on restoration of Mansagar Lake, MoEF, Government of India, approved the DPR in October, 2001 under the NLCP with 70% amount as grant in aid. MoEF also conveyed its appreciation on DPR and observed as follows: the project document and structure as developed by PDCOR Limited has served as a benchmark for developing sustainable Lake restoration projects on a Public Private Partnership (PPP) model. You will be pleased to know that we are recommending a similar approach to other states for Lake Conservation projects . 15. This gave rise to the new bidding process which may be termed as Second Bid Process for which decision was taken in its 9th meeting held on 10.1.2002, approved further fiscal concessions necessary for the project and approved a fresh round of bidding. The nodal agency for the project was changed to Jaipur Development Authority ( JDA ) from earlier agency, Jaipur Municipal Corporation. The bid documents were duly approved and an advertisement inviting Expression of Interest ( EoI ) was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jal Mahal were executed. 18. In terms of the project an area of 100 acres of land towards the south of Mansagar Lake was to be leased out for a period of 99 years for development of eco-friendly tourism components as set out in the RFP. The entire development, at the end of 99 years, was to be transferred back to the State Government without any compensation payable to the Private Sector Developer. In terms of the RFP, it was optional for the Private Sector Developer to undertake the restoration and reuse of the Jal Mahal Monument. The Petitioner while making the bid also exercised the option for restoration and reuse of the Jalmahal monument. The Petitioner in terms of the license agreement set out to restore the monument. The RFP estimated the cost of restoration of Jal Mahal at approximately ₹ 1.50 crores. In reality the cost of restoration of Jal Mahal worked out to ₹ 10 crores. The State Government had also constituted an Empowered Committee to oversee the time bound restoration of Mansagar Lake and Jal Mahal Monument. 19. The Petitioner s/appellant s in pursuance to the lease appointed consultants who did extensive research plan which was got approved fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar Lake in Hyderabad. The State Government had also constituted an Empowered Committee to oversee the time bound restoration of Lake. The work involved realignment of the Nagtalai and Brahmpuri drains so that domestic sewage and waste including run-off and detritus during the monsoons no longer emptied into the cleansed waters as also desilting of the water body which were essential components of DPR as approved by MoEF under NLCP. In order to ensure that the ongoing discharge of drainage did not once again pollute the water, Mr. Herald Craft the German Lake Conservation expert prepared a report which suggested preparing temporary sedimentation/settling tanks near the mouth / discharge point of the re-aligned drains. The purpose of constructing of sedimentation tank was to trap the silt and organic content of the storm water so that the quality of water in the whole of water body is not adversely affected. The sedimentation process were also reviewed by a team of experts from MoEF which found the system as a viable and proper solution. It has been further brought to the notice of this Court that the project fell within item 8(a) of Environmental notification dated 14.09.2006 and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 through two main waste water drains namely Brahmapuri and Nagtalai. The most notorious aquatic weed water hyacinth (Eichhornia crassipes) entered into lake in 1975. The petitioner/contesting respondent herein stated that during the studies made by the contesting respondent and his colleagues, 10 zooplankton Species, arthropods, fishes and 92 species of birds were observed at Mansagar Lake and out of 92, 41 are aquatic and 51 were forest dwellers. The water fowl population included 16 resident and 25 migratory species. It is in this context that it was submitted that the Man Sagar Lake and the monument therein were declared protected monuments but they were deleted from the list of protected monument in the year 1971. 25. It was further averred by the PIL petitioner in the High Court/contesting respondent herein that the Ministry of Environment and Forests (for short MoEF ), Government of India prepared National Lake Conservation Plan (for short NLCP ) for restoration, conservation and maintenance of urban lakes. The Government of Rajasthan submitted project for restoration of Man Sagar Lake to the Central Government. The total cost of the project was estimated to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvited in the year 2001-01 without identification of the land to be used and without studies with regard to environment impact assessment. The bid process was scrapped and JDA was made sponsoring department for the lake side development component in the meeting of Board of Infrastructure Development and Investment Promotion (for short the BIDI ) held on 23.8.2002 and 3.9.2002. 27. It was contended on behalf of the petitioner that MoEF granted administrative approval and expenditure sanctioned only for the lake restoration components and there was absolutely no consideration by the MoEF to the lake side development component of the so-called Jal Mahal Tourism Project. It was submitted that as a matter of fact the National Lake Conservation Plan did not contemplate any such commercial venture upon the lakes to be restored under the plan which according to the PDCOR contemplated the following three components as already referred to hereinbefore but for facility of reference it may be reiterated that three components were as follows:- (1) Restoration of Mansagar Lake; (2) Restoration and re-use of Jal Mahal Monument; (3) Development of Tourism/Recreational components at the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also stated that 100 acres of land was part of the lake bed itself, out of which 14.15 acres of land was submerged in the water. The area was sensitive for eco system and thus environment impact assessment was required to be carried out before any such project was prepared but the same was not done. It was still further stated that 100 acres of land beyond the spread of lakebed was not available on the site and it was further submitted that wall of sufficient height has been constructed for setting apart the proposed 100 acres of land from the lakebed and the soil from the lake bed itself was actually used for this purpose. It was alleged by the PIL petitioner that the appellant herein Jal Mahal Resorts Private Limited started constructing high walls of mud and soil in the eastern part of the lake bed near sluice gates and a large area around it for the purpose of preparing sedimentation tanks in the lake bed itself. The project people visit land most frequently disturbing birds on the island and the connection of island with mainland has also led to entry of dogs on the island which feed on the eggs of birds and thus, basic objective of island to provide habit/breeding ground f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was to be put in use by 2010, but the appellant has not done anything except filling and compacting the 100 acres of land in the lake bed itself by excavating the soil from the lake basin. Though only 13% of the land was to be used for construction activities of the private sector developer and would be of restricted entry and rest 87% was to remain in the form of open space, parks, gardens and unrestricted public entry spaces, but in the name of commercial viability and loosely drafted clauses of the bid documents and contracts, complete revision of the plan has been sought by the appellant after declaration as successful bidder. It was further submitted that the committee under the Chairmanship of the Chief Secretary of the Government of Rajasthan considered the Revised Master Plan and rejected the changes on 10.10.2007. However, another representation was submitted by the appellant herein/respondent No.7 in the High Court and on 10.9.2009 sanction was granted by the Committee. 33. The PIL petitioner also raised a grievance that Environment Impact Assessment was not carried out by the finalization of the project or execution of the lease agreement and even environment clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment. 34. In so far as writ petition no. 5039/2010 Dharohar Bachao Samiti vs. State of Rajasthan and Ors. and writ petition No. 4860/2010 Heritage Preservation Society Rajasthan and Anr. vs. State of Rajasthan Ors. are concerned, have also substantially urged the sacrifice of public interest on account of the lease granted in favour of the appellant and as such to establish sacrifice of public interest as per their perspective which have been related in the impugned judgment and order. 35. Contesting the PIL petition before the High Court, the respondent State of Rajasthan and its functionaries/authorities had submitted that Master Development Plan 1976 to 1991 of Jaipur city contained provisions of various facilities on south and west side of Jal Mahal Lake on 200 acres. It was submitted that the erstwhile Urban Improvement Trust Jaipur had proposed a scheme in respect of 520 acres land which was published in the gazette on 31.7.1975. The Jaipur Development Authority Act 1982 (for short JDA Act 1982 ) came into force and Urban Improvement Trust was replaced by the JDA. A notification under Section 39 of the JDA Act was issued by the JDA on 30.6.1987. However, developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o approved the minutes of the Empowered Committee on Infrastructure Development (ECID) and directed to put up the draft lease agreement early. On 9.5.2005 the Collector intimated that 100 acres of land has been mutated in favuor of RTDC. The approval of lease agreement and license agreement and authorizing of Managing Director of RTDC to sign the agreement was granted finally by the Chief Minister on 27.10.2005. On 29.10.2005, the RTDC authorized the Managing Director to sign Jal Mahal Lease Agreement on behalf of Government of Rajasthan with Jal Mahal Resorts Pvt. Ltd. and accordingly lease agreement was executed on 22.11.2005. The Central Government , MoEF recorded its appreciation for the project vide letter dated 13.9.2002 and 1.12.2009. 36. It was further contended on behalf of respondent State that it is incorrect to say that the size of the lake has been reduced on account of leasing out 100 acres of land. It was averred that the action is as per Master Development Plan. The State Government has submitted the project to the Central Government MoEF for restoration of Man Sagar Lake at the estimated cost of ₹ 24.72 crores and the Central Government agreed to provide 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amation Project ands the same was accepted and land award was passed on 17.4.1996. It was further explained that a part of land however falling in the area known as Karbala measuring 46 bigha was decided not to be acquired. On 31.3.1999 BIDI was formed to take decisions to accelerate growth of investment and industrial development in the State of Rajasthan. Thereafter, the decisions were taken details of which have been given in the return. On 10.0.2009, approval of revised layout plan was granted by the Committee chaired by the Chief Secretary. Lease amount had to be enhanced by 10% every time after a period of 3 years. It was therefore submitted that JDA having considering the nature of investment, lease of 99 years was justified. It was also admitted that out of 100 acres of leased area 13 bighas 17 biswas of land is recorded as gairmumkin talab in khasra No.67/317. 38. In so far as the reply of the lessee/respondent No.7 and 8/appellants herein/Jal Mahal Resorts Pvt. Ltd. and KGK Consortium is concerned, it had submitted in their reply to the writ petition before the High Court that the State Government promoted the concept of private public partnership to save the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by him before PIL cell of the Supreme Court, no cognizance was taken and the file was closed. The writ petitions which were filed were barred by res judicata inasmuch as writ petition No. 1008/11 Ram Prasad Sharma vs. State of Rajasthan was dismissed by the High Court as withdrawn by order dated 15.2.2011 without liberty to file a fresh writ petition. It was also submitted that the interference in contractual matter is not permissible specially when Jal Mahal Tourism Project is in larger public interest as it has to undertake restoration of Mansagar Lake. It was still further added that there was encroachment of about 50-60 acres of land, decision had been taken by the expert body, bids were invited by global tender and the appellant having been found the highest bidder was rightly considered, lease agreement and leave and license agreement are valid, possession of the land was rightly handed over to them; nursery has been set up over this land which has numerous varieties of plants and they have also introduced several varieties of aquatic vegetation in the Mansagar Lake to attract migratory birds. Beautification of Jaipur-Amer Road divider has also been taken up and work of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, its leads member M/s. KGK Enterprises was a partnership firm and as the KGK Enterprises met all the requirements in respect of technical, financial , shareholding and lock in periods as given in RPF, deviation from the RPF which mandated that the lead firm must be a public/private company was permitted and KGK Enterprises was allowed to compete so as to ensure adequate competition. Factual details are further added stating that KGK Enterprises acquired 83 marks while the next highest 82 marks were secured by M/s. J.M. Projects Pvt. Ltd. and both were considered eligible for opening of their financial bids, bid of KGK Enterprises being highest was accepted. Under the lease agreement , the Jal Mahal Resorts Pvt. Ltd. has a right of development of 100 acres of project land and no proprietary right over the management has been given. License for the restoration of the Jal Mahal monument does not confer any right on Jal Mahal Resorts Pvt. Ltd. except to ferry passengers for a minor charge and it has not been authorized to use the Jal Mahal monument commercially and the monument remains within the possession and use of the State Government. Out of 100 acres of land, 87% area is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the return filed by the MoEG. It was stated that project for conservation and management of Mansagar Lake in Jaipur was sanctioned as per the mandate of the National Lake Conservation Plan. It was further contended that project for conservation and management of lake in Jaipur was sanctioned in December 2002 at the cost of ₹ 24.72 crores under the NLCP on 70:30 cost sharing basis between Government of India and the State Government of Rajsthan and the sanctioned order was issued which contained break up of cost estimated. The different components which were approved further included realignment of drains , desilting , insitu bioremediation , sewage treatment plant and wetland construction, check dams, aforestation, nesting islands etc. It has been accepted by the MoEF that the JDA was the nodal implementing agency for the project and MoEF Central Government has released entire share of the Central Government amounting to ₹ 17.30 crores. Other details had also been recorded on behalf of the MoEF regarding the cost of upgradation and it was stated that the State Government was committed to bear the additional fund towards the development from its own resource. The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sequence of events related by the contesting parties that the deteriorating condition of the lake and the monument compelled the State Government to find ways and means to restore the monuments to their original glory. We have noted from the averments of contesting parties that over a period of 30 years attempts were made by Government agencies and departments to restore ecological and environment condition of the lake and its adjoining area but none of the attempts yielded any positive result because of paucity of resources to take up and sustain their restoration. The Government of Rajasthan therefore had taken a decision to adopt an incentivized approach to restore the lake and monument and declare the precinct area on a public/private partnership format. In order to improve the condition of the lake the State of Rajasthan in consultation with the experts and after detailed surveys and analysis adopted an approach of development covering three components which are: 1. Restoration of Mansagar Lake; 2. Restoration of Jal Mahal and 3. Development of tourism/recreational components at the lake precincts. While restoration of Mansagar Lake was approved as per the averme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner on 29.04.2010 is void in law. e. That the Project is in violation of Rule 4 of the Wetland Rules of 2010 and the Ramsar Convention. Thus, the lease deed is in contravention of the Wetland Rules and cannot be given effect to. f. That the sedimentation tanks are illegal as they could not be built without clearance from the Ministry of Environment and Forests. g. That the No Objection given by the Rajasthan Pollution Control Board to the petitioner s project is of no avail in the absence of clearance by MOEF under the Environment Protection Act, 1986. h. That the lease has been executed in violation of Rajasthan Tourism Disposal of Land Rules, 1997 (RTDC Rules), Rajasthan Municipalities (Disposal of Urban Land) Rules 1974, The Rajasthan Municipality Act, 1959 and the Jaipur Development Act, 1982 is liable to be cancelled. i. That the State was bound to give effect to the essential conditions of eligibility stated in the tender document and was not entitled to waive such a condition. Thus, action of respondent No.2 was not for bonafide reasons. 47. Learned senior counsel for the appellant Dr. Abhishek M. Singhvi at the outset submitted that the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tmost good faith. It ought to further consider whether by allowing a grossly delayed PIL, the parties who have acted bonafide would be prejudiced and suffer. In the present case, the petitioner/appellant has spent gratuitously on the belief that it had the right to develop 100 acres of land leased and it spent ₹ 10 crores on restoring the Jal Mahal Monument which is now fully restored and ready to be opened for the public. It has paid more than 22 crores on lease rent alone and has built a 1.75 KM long public promenade over its leased land, substantively and the petitioner during this period completed the whole phase -1 under the agreement. In support of this submission, the petitioner/appellant relied upon the ratio of the decision delivered in R.D. Shetty Vs. Airports Authority of India, 1979 (3) SCC 489, where the Court despite holding that the State had violated Article 14 of the Constitution permitted the contract to continue. The Court in its conclusions overlooked the rights and liabilities of the successful party on the one hand and the conduct including delay and motive of the PIL/petitioner on the other and finally upheld the right to continue contract under challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Dr. Brij Gopal had approached the appellant in the year 2007 purporting to offer their services for monetary reward. Since the appellant had already engaged a lead panel of conversationist and environmentalist, the services of the PIL/petitioner were not required. Thereafter, the PIL was filed only as a way to vent his pique and frustration at the SLP petitioner/appellant herein. It was submitted that these vital background facts ought to have been disclosed to the Court at the time of preferring the PIL and since these facts were suppressed and not disclosed, it is apparent that the PIL petition had not been filed bona fide and had been preferred for own vexatious reasons. 51. It was further contended that the High Court vide the impugned order has proceeded on a patently erroneous, illegal and factually incorrect basis when it held that the public trust has been breached because land admeasuring 13 Bighas 7 Biswas forming part of Lakebed which has been leased to the petitioner/appellant vide lease deed dated 22.05.2005 is void in law. It was explained in this regard that 13 Bighas 17 Biswas of land equivalent to 8.65 acres of land from the very inception has been reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ratio of Century Spinning and Manufacturer Company Limited Vs. Nagar Municipal Corporation, 1970 (1) SCC 582. Finally, on this point, it was urged that the High Court at the most could have severed reference to the said 13 Bighas 7 Biswa of land but should have upheld the lease pertaining to the rest of the land as the Lease Agreement expressly permits such severance vide Clause 18.4 of the Lease Deed. 52. Learned Attorney General on behalf of State of Rajasthan had contended that on spot inspection by Jaipur Development Authority( JDA for short) showed that no lake existed in 13 Bighas 17 Biswas of land and that this land was a landmass. The reason for including this area in the lease deed was to maintain the shape of the allotment. It was further argued that Court may direct this area to be kept open as no construction zone and may be kept open excluding the area which has been consumed in public promenade. 53. The High Court however had held that 14.15 acres of land submerged formed part of the Lakebed and could not have been leased out. Assailing this view taken by the High Court, it was contended that this Court would have to adopt an objective test to determine w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above, it was urged that over the years, huge amount of silt had been deposited onto the Lakebed by the Nagtalai and Brahmpuri Nala as a result of which the depth of the land has reduced which resulted in spilling of the water from the lake into adjacent areas including the land adjacent to it. 56. On the premise of the aforesaid facts, it was urged that there is no violation of the public trust doctrine as public trust doctrine cannot be applied to defeat public interest.The Project as approved and when implemented would in fact create an unprecedented Lake water front ambience and would be the only large water body in Jaipur that had been subjected to massive destruction over the years. In fact, the Project would inter alia create approximately 1.5 km long walkway (promenade) along the lake which has been constructed by the petitioner/appellant on the leased land that is open for use by the public. Importantly, another 3.5 km promenade has been built by the JDA along the Lake. A perennially filled Lake admeasuring 310 acres (approx.) with a depth between 3 to 5 metres and a complete renovation and restoration of Jal Mahal Monument with a pleasure pavilion built in the mid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otest by the Ministry of Environment and Forest ( MOEF for short) under the National Lake Conservation Plan (NLCP) Guidelines and in particular the clause dealing with maintenance of water level at 98 m RL which has been considered and approved by the MOEF. In any event, without prejudice to the foregoing, it was submitted that the impugned order is patently erroneous in that it purports to act as a MOEF, Pollution Control Board, State Environment Regulatory Authority, Independent and International Experts and Consultant all rolled into one. It is impermissible under established judicial review parameter to admit the role of second-guess expert body. It is equally impermissible for a Court to substitute its review in respect of highly complex factual technological and scientific issue. The Court cannot sit either an expert or arbitrate or as an appellate body nor can it allow a PIL petition to convert it into a super regulator. To reinforce the submission, reliance was placed on the ratio and observations made in the matter of Tata Cellular Vs. Union of India, 1994 (6) SCC 680. It was submitted that unfortunately the impugned order has committed precisely the aforesaid errors repe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein/appellant was nowhere in the picture categorically gives the landmass area available at each of the three different levels of 100 m RL, 99 m RL and 98 m RL of the lake and then goes on to specifically declare that the best and the only feasible solution to prevent damage to the Jal Mahal Monument is to keep the water level at 98 m RL, neither higher nor lower vide DPR. Consequently, the SLP petitioner herein/appellant had nothing whatsoever to do with a decision to maintain the water level at 98 m RL. It is therefore deliberately misleading for the PIL petitioner / respondent herein to suggest that because the water level is kept at 98 m RL, the SLP petitioner has been given a greater land area. Thus, it is submitted that it is patently false for the simple reason that irrespective of the water level, the land actually given in the RFP is the necessary controlling tender document is no more than 100 acres and even if 99 m RL which is full tank level had been fixed as the lake level even then the land available for the successful bidder would be 100 acres. This underscores the point that 98 m RL level was not the guiding factor while granting 100 acres to the petitioner. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able as except for the revenue entries showing 13 Bigha and 7 Biswa of land as gairmumkin talab no other parcel of land that was leased to the petitioner was part of the Lakebed as per the revenue entries. Only because silt was dumped on the land leased to the petitioner, cannot make land that was not part of the Lakebed, as is evident from the revenue record and is now suddenly being asserted as part of the Lakebed. It is being stated that it is always advisable that Lakeside development should be at higher level than the water level. 66. On a consideration of the rival submissions urged on behalf of the contesting parties, in the light of the factual matrix and the materials which were produced before the High Court, it clearly emerges that the PIL petitioner/ respondent NO.1 herein K.P. Sharma had contended that the lease executed and granted to the appellant for development of 100 acres land was illegal, arbitrary disturbing the natural resource of lake which was fit to be struck down as invalid as the 100 acres land was carved out from the lake area and thus the breadth and height of the lake was reduced. 67. However, on a scrutiny of materials on record which included t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leasehold area to be granted to the petitioner/appellant. 69. The appellant/lessee on his part confronting this submission argued that this Court would have to adopt an objective test to determine which land claimed as Lake Bed and wet land is fit to be accepted and for this purpose placed reliance on the ratio of the decision delivered in the matter of Noida Memorial Complex (2011) SCC 744 paras 24 and 25 which held as follows: 24. In support of the applicants case that there used to be a forest at the project site he relies upon the report of the CCF based on site inspection and the Google image and most heavily on the FSI Report based on satellite imagery and analysed by GSI application. A satellite image may not always reveal the complete story. Let us for a moment come down from the satellite to the earth and see what picture emerges from the government records and how things appear on the ground. In the revenue records, none of the khasras (plots) falling in the project area was ever shown as jungle or forest. According to the settlement year 1359 Fasli (1952 AD) all the khasras are recorded as agricultural land, banjar (uncultivable) or parti (uncultivated). 25. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad caused the depth of the lake to reduce and as a result, the water had spilt out into adjacent land being the concerned 14.15 acres of land. Based on this project report prepared at the instance of PDCOR, it was argued that the said land was never part of the Lake Bed and is not for this reason a Wet Land . It was further added that factually out of the 14.15 acres permitted to be reclaimed by the appellant under the Lease Deed dated 22.11.2005, the appellant has only claimed approximately 11 acres out of which approximately 6-7 acres has been consumed by the appellant for creating a public promenade open to the public. 71. The appellant sought to add additional weight to this argument by placing reliance on the submission of the learned Attorney General on behalf of the State who had argued that this land of 14.15 acres was never part of the Lake Bed as per the revenue records. The counsel further pointed out that the Attorney General had further submitted that the approach of the High Court was completely contradictory in this regard. While on the one hand in respect of the 13 bighas 17 biswas area equivalent to 8.65 acres, the revenue records had been relied upon, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally, scientifically, environmentally or technologically to be factually a wetland, it does not become so legally unless and until the persona designata under the delegated legislation so declares it to be. Admittedly, that persona designata is only the specialized authority appointed under the rules and has chosen not to exercise its power for the Mansagar Lake. 75. It was still further contended on behalf of the appellant that the technique of applying a law by notification to a specific fact situation is an age old parliamentary technique and/or the technique applied by the framers of delegated legislation like the Central Government who framed the Wetland Rules. Even the Apex Court would not consider it legally appropriate to issue a mandamus to notify and bring into force legislation or a delegated legislation until and unless the persona designata under that regime chooses to do so. In support of this proposition of law, learned counsel for the appellant has placed reliance on the following case laws: (1982) 1 SCC 271 at page 308, 310 paras 51 and 59 A.K. Roy vs. Union of India when it recorded as follows: the question which was put in the forefront by Dr. Ghatate, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Wetland Rules 2010 by the previous government. As per the subsequent stand taken by the counsel for the new government, the previous government ought to have identified wetland in the State within one year of the Wetland Rule 2010 being enacted. According to the counsel for the new incumbent government, since the previous government did not undertake the activity of identifying Mansagar Lake as a wetland, the 2010 rules have been violated. Thus, it had been urged by Mr. Gupta that the stand taken by the previous government before the High Court as well as this Hon ble Court is untenable. 77. The appellant, in turn, has submitted that the change in stand by the incumbent government should not be permitted by this Court. It was submitted that reference to the pleading put forward by the State Government on the issue of the wetland before the High Court and this Court has been categoric and specific . It has been expressly pleaded that the Wetland Rules 2010 do not apply to the project and that the said rules are not retrospective so as to affect the project. This stand has been specifically taken in the counter affidavit filed by the State Government in the three Special Leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. In the alternative, it was submitted that even otherwise the 100 acres leased was not part of the Lake Bed and, therefore, the question of identifying the leased 100 acres land as a wetland is out of the ambit and scope of the question involved. 80. In regard to the plea pertaining to the Master Plan of Jaipur, it was submitted that the Master Plan has statutory force and since the Master Plan itself has identified this area to be urbanized , the question of it being declared as a wetland does not arise. In fact, the Master Plan consistently from 1976 onwards has provided that approximately more than 200 acres of land is available for the development of tourism facilities on the southern and western sides of the Mansagar Lake. In view of these aspects, learned counsel for the appellant urged that the Mansagar Lake is not a wetland under the Wetland Rules 2010 and 100 acres leased land was not a part of the Lake Bed and, therefore, the leased land of 100 acres is not a wetland under the Wetland Rules 2010. As already stated hereinbefore, it was urged that the Wetland Rules 2010 are not retrospective in nature since the Lease Deed was executed in the year 2005 and the wetland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood the neighbouring areas that are densely populated since at this level water would be at Amer Road level. Consequently, the Jal Mahal Monument would be nearly wholly submerged. It was added that technically supplying so much quantity of water all the year around was not possible. 83. It was further contended that the water could not be maintained at 99m RL because at this level lake spread and volume is difficult to maintain through out the year this being a technical matter. Consequently, the lower floor of Jal Mahal Monument would be submerged having only terrace and first floor for re-use. Thus the appellant submitted that 98m RL being the next lowest water level after 99m RL was considered ideal for maintaining water level. It was argued that most important thing if water level were to be fixed at 99m RL i.e. full tank level then also there would have been more than 100 acres of land available to lease, yet the appellant was granted only 100 acres. 84. Learned counsel for the appellant further elaborated on this by relying upon Detailed Project Report (DPR) and urged that as a matter of fact the DPR found that the lake at present is an approximately 130 hectares in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... critically polluted areas would be treated as category A and general condition would be applicable to such projects. MoEF in order to clarify OM dated 28.4.2011 issued OM dated 24.5.2011 that expressly provided that the projects falling under Items 8 (a) and/or 8 (b) do not attract general condition even if such projects fell within critically polluted areas. It was urged on behalf of the appellant that it has received environment clearance from SEIAA dated 29.4.2010. This clearance is in terms of EIA 2006 and is, therefore, valid. It was added further that as the general conditions do not apply to the present project, as made clear by MoEF in its affidavit and also by OM dated 24.5.2011, the appellant did not require clearance from MoEF. Therefore, the impugned judgment of the High Court ought to be reversed on this aspect as it failed to appreciate these crucial facts. It was still further submitted on this that even otherwise on an interpretation of EIA 2006, it becomes apparent that MoEF has consciously decided not to stipulate general condition in column 5 against Item 8 (a and 8 (b) because EIA 2006 has issued originally and till date does not stipulate general condition aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment department. In the present case, the Government decision dated 9.2.2004 makes it clear that RTDC shall not have to pay any cost of land to the land owning agencies including Jaipur Municipal Corporation as the whole intent of this allotment in favour of RTDC was to only facilitate the project of the Government. As a matter of fact, Jaipur Municipal Corporation through its General House Meeting dated 28.4.2004 was attended by at least 58 of its members who resolved to allot the said land to RTDC in order to implement the project. Thus, it is more than apparent that the Government had exempted charge of any kind from RTDC for the transfer/allotment of land to which a furthermore RTDC through a transparent and well considered resolution comprising of is members resolved to allot this land to RTDC. Thus the contention of the respondent that the 1974 rules have been violated is wholly unsustainable and finding of the High Court on this aspect therefore needs to be reversed and set aside. 90. It was still further contended that the Jaipur Development Authority Act 1982 was not violated in any manner and the appellant submitted that rule 18 of the Rajasthan Improvement Trust (Disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of the land when land from the JDA is allotted. Exemption by the Government of Rajasthan in favour of RTDC acting on behalf of Department of Tourism as an agent from paying cost of the land is traceable to power vested under Rule 18 read with Government of Rajasthan decision dated 9.2.2004. Hence for all these reasons, non-gazetting under Section 54 (3) was not a requirement. 92. Contesting the argument raised by the PIL petitioner/respondent that the State Government has changed the rules of the tender so as to favour the petitioner company in awarding the contract is not borne out by the record that has been produced before this Court in the form of various collegiate, transparent meetings that have been presided over by the highest functionaries in the State Government, inter -alia including the Chief Secretary, the Principal Secretary and various Head or statutory authorities who participated in these meetings . On a perusal of the pre-qualification evaluation report dated 6.10.2003 which was prepared by the Project Development Corporation of Rajasthan (PDCOR), a joint venture between the Rajasthan State Government and IL FS, it is clear beyond any doubt that the thres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 9.2.2004 headed by the Chief Secretary with other senior government functionaries attending . In the said ECID meeting on perusing the entire tender process decided to award the project to the highest bidder being the KGK Consortium. Thereafter, these recommendations of the ECID were put up for the approval of the then Chief Minister who unreservedly endorsed the decision of the ECID dated 9.2.2004. 96. Thereafter, on 30.9.2004, the Government of Rajasthan issued a letter of intent to KGK Enterprises (lead Member of KGK Consortium) for award of the project. The final decision in the decision making process that culminated in the execution of the lease and license agreement was taken by the Chief Minister on 27.10.2005 whereby it was approved that the execution of the lease and license agreements be entered into by the State Government with the highest bidder M/s. Jal Mahal Resorts Pvt. Ltd. a Special Purpose Vehicle Company of KGK Consortium. 97. It was, therefore, submitted that on a perusal of this detailed decision making process undertaken by the Government of Rajasthan during the regime of successive Chief Minister after which the government contested the PIL petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case, since the project in terms of the RFP had to be executed through a SPV and the appellant being as such SPV, then the vehement insistence by the respondent that the lead member must be a company is not a violation of a substantial condition of the tender. In conclusion therefore it had to be held that there was no mala fide in the decision making process and the finding given by the High Court is perverse and cannot be sustained and deserves to be set aside. 100. On perusal of the background and other materials on record, it could be noticed that the genesis of restoration and conservation of Mansagar Lake goes back to 1984 whereby the efforts of the State from 1984 onwards have been directed towards restoring and developing the largest water body in Jaipur (that was lying disused the sewage, filth, stench and effluent) into an attractive public interest destination with a pleasing environmental ambience for attracting tourists from all over the world. The figures and conclusions in the impugned order itself indicate the enormous difficulty and repetitive failures of the State Government to either implement the restoration itself or to get any private entity to do s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ximately 10.5 out of 14 acres would be utilized for a walk-way around the Lake involving no commercial return. (iv) The successful bidder would pay the State Government/RTDC ₹ 2.52 crores per year which would be escalated by 10% every 3 years, which, if calculated in the 99th year of the lease would amount to ₹ 27 crores approx, and if calculated in the 50th year of the lease would amount to ₹ 12 crores approx. (v) The accommodation/resort could only be constructed within a FAR of 0.1362. Relevantly, the normal FAR permitted is 2 while the FAR permitted for the SLP Petitioner s Project is only 0.1362. (vi) No structure in the entire project could exceed the height of 9 meters and also could not exceed more than a total of two floors viz. ground and first. (vii) Almost 12 acres of land would be devoted to a handicrafts village showcasing the cultural heritage of Rajasthan where the commercial return to the bidder would be only in the form of lease rent, and the sales occurring due to footfalls would accrue to the sub-lessee who sells the craft and not to the SLP Petitioner. (viii) The project has along gestation period not only in terms of restoration and developme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpts at tendering which had failed. While the earlier attempts failed, the present tender open to the whole world, shrunk from 20 parties to9 parties and then to only 4 parties at the time of submission of bids (whereby the SLP petitioner succeeded on merits). If the project value correctly involved 4 and 5 crore figures mentioned in the impugned order, it is inconceivable and inexplicable as to how and why neither the 20 nor the 9 nor the 3 ultimate bidders apart from the SLP Petitioner offered a maximum figure of ₹ 2.52 crores only. The bidding process was open and transparent considering tourism development. 104. We have taken note of the factual submission that the reserve figure of lease rental expected by the State had been fixed at ₹ 1 crore in the RFP [Vol 3/551 @ CL 3.2]. This was not merely an adhoc magical figure plucked out from the air but arrived at after repeated transparent evaluation by expert committees and proclaimed openly to the whole world. There is not even an allegation of surreptitious or ex-parte dealing at the stage of conceiving and designing the tender or stipulating its multiple parameters. This minimum rent had been determined with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servation Plan did not contemplate any commercial venture upon the lake to be restored under the plan. But it cannot be overlooked that the State Government had full authority to carve out a plan for development of lake and the lake area considering the fact that way back in 1962 the lake glory as a pristine water body lasted only until the former rulers had their control over the city and unpleasant history of lake began when the new administration of Jaipur diverted walled city sewage in 1962 through two main waste water drains namely Brahmapuri and Nagtalai. It is borne out from the factual history of the lake that most notorious aquatic weed water hyacinth entered into lake in 1975 and the water fall foul population started affecting the resident and migratory species. It is in this background that the Government of Rajasthan submitted project for restoration of Mansagar Lake to the Central Government. Thereafter, Jal Mahal Tourism Infrastructure was conceived and approved by the Standing Committee on Infrastructure Development in its meeting held on 21.12.1999 and initially Jaipur Municipal Corporation was to own the project. The bids were invited in the year without identific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was awarded to the KGK Consortium including the Jaipur Master Plan of 2011. 109. It may further be noted that the argument advanced by the counsel for the respondent PIL Petitioner that 100 acres land lease to the petitioner was part of the lakebed, does not get supported from the revenue entries placed on record or any other material which makes it clear and establishes that only 13 bighas 17 biswas is classified as gairmumkin talab (lakebed) being khasra No. 67 /317 which would be approximately 8.65 acres. However, the balance land that is 100 acres less 8.65 acres is in fact recorded as Banjar in the revenue record and not lakebed. We find sufficient substance in the plea that this Court in the past have placed reliance on revenue entries to determine the nature of land from which it follows that based on the revenue entries, no other khasra of land forming part of 100 acres of land leased to the petitioner is lakebed. It may further be noted that as per the petitioners/appellants 14.15 acres of land is banjar and not lakebed whereas according to the PIL petitioner it is a lakebed/wetland which is contrary to the revenue record. 110. From the version and counter v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or at any point of time lakebed or wetland. This fact is further proved from the historical background of this litigation as it is the case of the appellant/lessee/ the PIL petitioner which gets reinforced from the record and the detailed project report of the PDCOR indicating that the efforts were being made to develop this land way back from 1984 and in the year 1999 as already noted hereinbefore reflected from the minutes of the third meeting held on 21.12.1999, the Standing Committee on Infrastructure Development (SCID) agreed that the Jaipur Municipal Corporation must own the project to develop this land and the bids were invited in the year 2000-01 with regard to the development of the land. However, the same was scrapped and the JDA was made the sponsoring department for the lake side development component in the meeting of the board of infrastructure development and investment promotion held on 23.8.2002 and 3.9.2002. 114. From the aforesaid history, it gets factually established that this land in any view was available for development atleast way back from 21.12.1999 and no question was ever raised that this was not available for infrastructural development. In fact, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities specially if it based on the opinion of the experts reflected from the project report prepared by the technocrats, accepted by the entire hierarchy of the State administration, acknowledged, accepted and approved by one Government after the other, will have to be given due credence and weightage. In spite of this if the Court chooses to overrule the correctness of such administrative decision and merits of the view of the entire body including the administrative, technical and financial experts by taking note of hair splitting submissions at the instance of a PIL petitioner without any evidence in support thereof, the PIL petitioners shall have to be put to strict proof and cannot be allowed to function as an extraordinary and extra judicial ombudsmen questioning the entire exercise undertaken by an extensive body which include administrators, technocrats and financial experts. In our considered view, this might lead to a friction if not collision among the three organs of the State and would affect the principle of governance ingrained in the theory of separation of powers. In fact, this Court in the matter of M.P. Oil Extraction v. State of M.P., (1997 7 SCC 592 at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PIL Petitioners without factual basis cannot be allowed to prevail over the decision of the entire group of experts which was finally accepted by the State Government through the Project Development Report of a State Agency which got the detailed project report (DPR) prepared and nothing could be brought to the notice of the Court that the DPR was not fit to be relied upon or that it was prepared in a clandestine manner. In our considered view unless the Detailed Project Report, Master Plan of Jaipur, Revenue Record indicating the nature of land that the project was fraught with risk of environmental degradation which could establish with facts figures that the decision is not in public interest, interference by the Court adopting an over all view smelling foul play at every level of administration is bound to make the governance an impossibility. Therefore, the courts although would be justified in questioning a particular decision if illegality or arbitrariness is writ large on a particular venture, excessive probe or restraint on the activity of a State is bound to derail execution of an administrative decision even though the same might be in pursuance of a policy decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder was floated for a period of 60 years which was later extended to 99 years. This in our view could not have been done by the State Government as one can infer even at a glance that the same being contrary to the rules, could not have granted it for a period of 99 years. 122. We, therefore, set aside the period of lease which has been granted in favour of the appellant for a period of 99 years and the same shall stand reduced to a period of 30 years only which could be the maximum period of the lease for the land under the rules which should start ordinarily from the date of its execution so as to expire on or before the period of 30 years. But we are conscious of the fact that much time has lapsed after execution of the lease deed in 2005 due to which only Phase-I of the project could start after which it got stuck and the project is in a state of limbo due to delay on account of the litigation started at the behest of the respondent/PIL petitioners who questioned the validity of the lease deed executed and finally succeeded in getting it set aside. We are, therefore, of the view that the lease deed which could not be made effective in view of the intervening litigation due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the members of the public. Upon issuance of the phase I certificate, the project developer/lessee/appellant shall be allowed to undertake the construction as per the approved plan in terms of the lease deed. 126. We further hold that the area of 8.65 acres equivalent to 13 bighas and 17 biswas shall not form part of the lease hold area as already stated hereinabove and the same shall stand re-transferred to the Government of Rajasthan which shall be recarved and added to the lake area and the same shall be maintained by the competent authorities of the State. However, the area of 14.15 acres equivalent to 22 bighas and 17 biswas although shall be notionally treated as part of the lease deed, the said area shall be treated as a construction free zone which will be allowed to be used as a walkway/ the public promenade free of any charge at the instance of the lessor and the lessee. Remaining portion of the land forming part of the lease deed shall remain intact to be used by the appellant as per the terms and conditions of the lease deed already executed. However by way of abundant caution, we clarify that Mansagar Lake Restoration Project if undertaken by the State or the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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