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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 ..... e. (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 are further directed to monitor, maintain and re-fix boundaries of the Mansagar Lake in its full original length, breadth and depth in consultation with Central Government MOEF and not to reduce normal water level. (6) That all encroachments made in the catchment area of Mansagar Lake be removed immediately; (7) That wall erected by Jal Mahal Resorts Pvt.Ltd. in the lake is ordered to be dismantled and cost be realized from Jal Mahal Resorts Pvt.Ltd. - D. B. Civil Writ (PIL) Petition No. 6039/2011, D.B.Civil Writ Petition (PIL) No.5039/2010, D.B.Civil Writ Petition (PIL) No.4860/2010 - - - Dated:- 17-5-2012 - Hon ble The Chief Justice Mr. Arun Mishra And Hon ble Mr. Justice Mahesh Bhagwati,JJ. For the Petitioner : Mr. Aruneshwar Gupta, Mr. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to their religious places Bhairav Mandir, Mazar etc. situated near Jal Mahal without any obstruction. Facts are being narrated from Writ Petition No.6039/2011 Prof.K.P.Sharma V/s State of Rajasthan ors. It is averred that the petitioner is involved in the research with regard to Mansagar Lake and has published a paper which was read in the 12th World Lake Conference (TAAL 2007) and the same has been filed as Annex.1 to the petition and another research paper Annex.3 has also been filed. It is submitted that Mansagar Lake is a large lake on the northern fringe of Jaipur City. The maximum level of the lake is at 99.0m contour at which volume of water is 3136569.75 MCM. The lake glory as a pristine water body lasted until the former rulers had their control over the city and unpleasant history of lake began when new administration of Jaipur diverted walled city sewage in 1962 through two main waste water drains namely, Brahampuri and Nagtalai. The most notorious aquatic weed water hyacinth (Eichhornia crassipes) entered in the lake in 1975. During studies made by the petitioner and his colleagues, 10 zooplankton species, arthropods, fishes and 92 species of birds were observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 to the petition. The petitioner and his team was working in executing a JDA sponsored project on bank stabilization of the lake since May, 2005. 35 species of tree and 28 of shrubs were planted. Besides improving landscape, the plant species provide shelter and food to the local fauna. Migratory birds may also be benefited. Similar plantation was also done on three islands. It is further averred that Jal Mahal Tourism Infrastructure Project was conceived and approval was given by the Standing Committee on Infrastructure Development (for short SCID ) in its 3rd meeting held on 21.12.1999. Resolution Annex.10 has been filed in which it was stated that Jaipur Municipal Corporation must own the project. The bids were invited in the year 2000-01 without identification of the land to be used and without studies with regard to environment impact assessment. The bid process 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. The petitioner has emphasized that MOEF granted administrative approval and expenditur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at out of 100 acres land, 14.15 acres of land was submerged in water, which has also been leased out. The Mansagar Lake Precincts Lease Agreement dated 22.11.2005 has been filed as Annex.29 to the petition and Jal Mahal Leave and License Agreement dated 22.11.2005 is Appendix-14 of Lease Agreement Annex.29. It is further averred in the petition that master plan of Jaipur-2011 did not permit such activities at the site. 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. There was no 100 acres of land beyond the spread of lake bed itself available on the site. It is further submitted that wall of sufficient height has been constructed for setting apart the proposed 100 acres land from the lake bed and the soil from the lake bed itself was actually used for this purpose. The respondent no.7 Jal Mahal Resorts Pvt.Ltd. has also started preparing high walls of mud and soil in the eastern part of the lake bed near sluice gates and a large area around it f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Due to settling/sedimentation tanks in the lake bed itself, silt/filth, which was to be avoided after restoration of the lake, is willfully invited and drained in the lake itself, which has increased salinity of the water also. The petitioner has further submitted that revision has destroyed the very substratum of the project which was earlier conceived. The whole project after completion was to be put in use by 2010, however, the respondent no.7 has not done anything except filling and compacting the 100 acres 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 spaces, 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 respondent no.7 after declaration as successful bidder. The Committee under the Chairmanship of the Chief Secretary of the Government of Rajasthan considered the revised master plan and rejected the changes on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is a case of siphoning of valuable public property. The value of 100 acres of land is not less than ₹ 3500/- crores. The DLC rates for commercial land in question is ₹ 79,063/- per square mtr. Lease for 99 years amounts to sale and as per rules, it was necessary for the respondents to realize the sale price and additionally, the lessee was required to pay annual lease money also. The market price used to be much higher than DLC rates, especially when location being picturesque and ecologically rich. If such land is sold for five star hotels, resorts, luxury villas etc., such land carries invaluable importance. The value of such land cannot be said to be less than 3500 crores. The State Government has handed over valuable natural resource of water surrounded by natural beauty of hills and forests, full of wildlife and other natural resources maintaining environmental and ecological balance of the city to a private entrepreneur solely for economic exploitation at the cost of public. The revision of the master plan completely converts the tourism project into privately owned township upon 100 acres of land which has been let out for a paltry sum by the Government. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Jal Mahal has been used for holding 'dungals' on 'Makar Sankaranti' i.e. January 14th of every year. On 23.9.1965, Peer Baba Ki Mazaar situated at Jal Mahal was declared as Wakf Property and on 10.3.2004, the Public Works Department granted lease of Peer Baba Ki Mazar to Waqf for 99 years. By developing seven star hotel in 100 acres of land, area of Mansagar Lake would be reduced by almost 1/3rd, which is in contravention of the judgment of this Court dated 2.8.2004 in Abdul Rahman V/s State of Rajasthan (2004 (4) WLC (Raj.) 435) and in violation of the mandate of Articles 48A and 49 of the Constitution. Mansagar Lake would be scarred and defaced by Seven Star hotel etc. The main grounds to assail the transaction in question are non-clearance of the Tourism Project by the MOEF; contravention of notification issued by MOEF; violation of public trust doctrine; action is against public interest; fraud upon Constitution and public; action is violative of Section 16 of the Rajasthan Tenancy Act; 100 acres of land in question is part of bed of Mansagar Lake and it was not transferable; Section 92 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms from the boundary of Nahargarh Wildlife Sanctuary, the same would fall in category-A and thus, the only authority to give environment clearance is Central Government MOEF and no such clearance has been obtained from MOEF; misrepresenting of administrative approval and sanction of expenditure for restoration of Mansagar Lake as environment clearance of MOEF is fraudulent action on the part of the respondents; as per Section 15 of the Act of 1986, the contravention of order is an offence punishable with imprisonment extending to five years; under the Environment Protection Rules, 1986 also, the environment has to be protected considering biological diversity, environmental capability and the proximity of the area to the protected area of sanctuary notified under Wildlife (Protection) Act, 1972 (hereinafter referred to as the Act of 1972 ). The project will have adverse effect on reserve forest, wildlife sanctuary, forest dwelling and migratory wildlife in large number with extensive bio diversity of important animals, birds and fishes including endemic birds. It is also contended that Wetlands Rules cover drainage area or catchment region of the lake within the definition of wet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, transaction is not at all beneficial to the lessor. Construction of Hotel is not permissible in the area in question. Maximum commercial benefit has been permitted of the loosely drafted contract. Revised plan is bad in law as all elements of open public spaces have almost been wiped out. There are Dargah and temples also and thus, area in question could not have been leased out to a private person. The construction will affect holding of dungals on Makar Sankranti on 14th January of every year. Stand of State and authorities In the return filed by the respondents-State and its functionaries/authorities, it was submitted that Master Development Plan 1976-91 of Jaipur City contained provision of various facilities on south and west side of Jal Mahal lake in 200 acres. It was permissible to have five star hotel, tourist bungalows, holiday cottages and other tourist facilities. In the Master Development Plan 2011, similar provision was retained. Erstwhile Urban Improvement Trust, Jaipur proposed a scheme in respect of 520 acres of land which was published in the Gazette on 31.7.1975. The Jaipur Development Authority Act, 1982 came into force and UIT was replaced by JDA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and signing the lease agreement in favour of successful bidder. This was forwarded by Secretary, Tourism to Minister Incharge of Tourism (Chief Minister), who approved the minutes of the Empowered Committee on Infrastructure Development and directed to put up draft lease agreement early. On 9.5.2005, the Collector intimated that 100 acres of land has been mutated in favour of RTDC. The approval of lease agreement and license agreement and authorization of Managing Director of RTDC to sign the agreement was granted finally by the Chief Minister on 27.10.2005. On 29th October, 2005,the RTDC authorized the Managing Director to sign Jal Mahal Lease Agreement on behalf of Government of Rajasthan with Jal Mahal Resorts Private Limited and accordingly, lease agreement was executed on 22nd November, 2005. The Central Government MOEF has appreciated the project vide letters dated 13th September, 2002 and 1st December, 2009. It was further contended in the return that it is incorrect to say that size of the lake has been reduced on account leasing out 100 acres of land. The action is as per Master Development Plan. The State Government has submitted the project to the Central Government MOE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, a part of the land 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 for accelerating growth of investment and industrial development in the State of Rajasthan. Thereafter, decisions were taken, details of which, have been given in the return. On 10.9.2009, approval of revised layout plan was granted by the Committee chaired by Chief Secretary. Lease amount has to be enhanced by 10% every time after a period of three years. Thus, considering the nature of investment, lease of 99 years is justified. It was admitted that out of 100 acres leased area, 13 bigha 17 biswa land is recorded as Gairmumkin Talab in khasra no.67/317. Reply of lessee The respondents no.7 and 8 Jal Mahal Resorts Pvt.Ltd. and KGK Consortium in their return to Writ Petition No.6039/2011 have submitted that the State Government promoted the concept of Private Public Partnership to save the burden on the exchequer; decision has been taken by the expert body at the highest level, which is not amenable to interference by this Court; MOEF has granted approval on 5.9.2002; on 23.12.2002, administrative approval a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cres of land; decision has been taken by the expert body; bids were invited by global tender; they were found highest bidder and their bid was rightly considered; lease agreement and leave and license agreement are valid; possession of the project land was handed over to them; nursery has been set up over leased land which has numerous varieties of plants; they have also introduced several varieties of aquatic vegetation in the Mansagar lake to attract migratory birds; beautification of Jaipur-Amer Road divider has also been taken up and work of phase-I has been completed; allegation of environmental damage is baseless; State Government after environment impact assessment has granted permission and consent has also been granted by the Rajasthan Pollution Control Board in 2009-10; capacity of water in the lake has not been reduced; sedimentation basin has been constructed as per expert advice; they have spent about ₹ 15 crores on lake restoration which was not their responsibility under lease agreement and they have also spent ₹ 10 crores on restoration of Jalmahal monument voluntarily though obligation was limited to ₹ 1.5 crores; there cannot be any interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storation of Jal Mahal monument does not confer any right on Jal Mahal Resorts Pvt.Ltd. except to ferry passengers for a minor charge and it has not been authorized to use the Jal Mahal monument commercially and the monument remains within the possession and use of the State Government. Out of 100 acres of land, 87% area is to be maintained as a green area and in PIL, terms and conditions of the contract cannot be questioned after several years. In restoration of Mansagar lake, ₹ 15 crores have been invested; catchment area is not being disturbed in any manner; report of Prof.K.P.Sharma is merely an opinion based on personal interpretation; there was temporary road constructed by the licensee for easy access for the purpose of restoration of Jal Mahal monument which is situated otherwise in Mansagar Lake surrounded by water and the said road has been dismantled and no material is left to compromise the filing capacity of lake; JDA has approved the detailed building plans for the project on 13.7.2010; Jal Mahal Resorts Pvt.Ltd. diverted the sewage nallahs away from the Mansagar Lake with the approval of the State Government; lake has been cleansed substantially; BOD of the wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waterland for tertiary treatment was amongst the core components sanctioned at the cost of ₹ 4.50 crores. During implementation of the project, the State Government decided to rehabilitate existing 27 MLD capacity STP instead of setting up the proposed new STP of 18 MLD. Later, constructed waterlands were created to provide tertiary treatment to sewage before discharging into the lake. Subsequent to the upgradation of existing STP, the State Government requested the MOEF for approval of deviation in the scope of work and also gave commitment to bear the additional funds from its own resources. On being asked to clarify regarding tackling of all the sewage discharging into the lake, the State Government informed that in addition to the sewerage works under NLCP scheme, other projects were also being taken up under Jawaharlal Nehru National Urban Renewal Mission (JNNURM) Scheme and thereby ensuring that all sewage generated in the lake catchment area is being taken care of. It is further contended that under the Act of 1986 read with Rules of 1986 and in supersession of the Notification dated 27.1.1994, the MOEF had issued Notification No.SO 1533 (E) dated 14.9.2006 (Annex.R-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government MOEF; 99 years lease is by way of sale of lease hold rights; 100 acres of valuable land could not have been given on lease for 99 years and even leave and license could not have been given with respect to other project area including Jal Mahal monument that too at the annual rate of ₹ 1/-; wetland could not have been given for the purpose it has been given to Jal Mahal Resorts Pvt.Ltd.; as per Wetlands Rules, 100 acres of land is part of the lake and even catchment area cannot be given considering the ancient monument Jal Mahal and only Lake Mansagar, which is left in Jaipur after Ramgarh dam has dried up. It was further submitted that KGK Enterprises was not fulfilling the eligibility condition of private/public limited company; considering the various clauses of the agreement, right has been given to the lessee to sub lease or alien or mortgage the property to obtain loan that too for a period of 99 years, transaction is fraud on public exchequer; huge investment has been made by MOEF Central Government for conservation and management of Mansagar lake and it has sanctioned a sum of ₹ 17.30 crores as 70% of its share and rest by JDA; offer has been rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Central Government MOEF is necessary, which has not been obtained. There will be damage to the migratory birds, flora and fauna of the area; ecology of the area will be disturbed; commercial exploitation of the huge area could not have been permitted; wall has been erected on eastern side of the lake; there is violation of the provisions of the Municipalities Act and Rules framed thereunder; lease of 99 years could not have been given without fixing the reserve price on the basis of market value of the property as lease of 99 years amounts to sale; it was necessary to realize reserve price as well as annual rental value which has not been done; such land vests as per Municipalities Act in the Jaipur Municipal Corporation; there is no valid transfer of land by Jaipur Municipal Corporation, JDA and Government to RTDC and thus, execution of lease agreement for 100 acres of land by RTDC as owner is illegal and void; Special Purpose Vehicle has been incorporated after bidding process with ₹ 50 lacs capital; land worth of ₹ 3500 crores could not have been given to Jal Mahal Resorts Pvt.Ltd.; there is violation of Rules of 1974, Rajasthan Tourism, Disposal of lands and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter. It was also submitted that the present matter is barred by res-judicata as D.B.Civil Writ Petition (PIL) No.1008/2011 was dismissed by this Court on 15.2.2011 as withdrawn without liberty to file a fresh petition and same issues have been agitated in the present matter; in contractual matters, interference by this Court is not permissible; contract has been given to highest bidder; allegation of environmental damage is baseless; biological oxygen demand (BOD) of the water in Mansagar has been reduced; Jal Mahal Resorts Pvt.Ltd. will develop only 100 acres with minimal FAR of 0.13 with height restrictions of only ground floor and first floor; a sum of ₹ 15 crores has been spent in the restoration of Mansagar lake though it was not obliged under the lease agreement; Mansagar lake is manmade water body and does not partake the character of natural resource; it is not a gift of the nature; de-silting has been rightly done; project has been awarded by open bidding process by inviting global tender; there is no intention to reduce the lake area; capacity of Mansagar lake has been enhanced; two nallahs discharging into the lake have been realigned and diverted away from the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for and on behalf of the State Government. In fact, 13 bighas of land, though recorded as Gairmumkin Talab, was not forming the part of lake at present; as huge investment has to be made, 99 years lease was justified. No case is made out for interference by this Court in writ jurisdiction. Shri S.S.Hora, learned counsel appearing on behalf of PDCOR while supporting the aforesaid submissions, has also submitted that project was conceptualized in the year 1999 and the SCID approved PPP format for tourism project at Jalmahal on 21.12.1999; on 7.5.2001 NIT was issued and since no bids were received till November, 2001, the entire bidding process was scrapped; in the first round, the period of lease was 30 years with a provision of extension by another 30 years i.e. total 60 years; BIDI headed by Chief Minister approved restructuring and re-bidding of the project in the meeting held on 10.1.2001, MOEF has also approved the project and released the amount. Contract has been rightly awarded to KGK Consortium for a period of 99 years to attract private participation as earlier no bids were received; Minimum annual rent of ₹ 1.0 crore was determined on the basis of providing rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople inhabiting the region. A dam was constructed across the eastern valley between Amer hills and Amagarh hills and the dam was later on converted into a stone masonry structure in 17th century and now the dam is about 300 meters long and 28.5-34.5 meters in width. It is provided with three sluice gates for release of water for irrigation of agricultural land in the down stream area. Since then the dam, lake and palace have undergone several rounds of restoration under various rulers of Rajasthan and final restoration in 18th century is credited to Jai Singh-II of Amer and during that period, Amer Fort, Jaigarh Fort, Nahargarh Fort, Khilangarh Fort, Kanak Vrindavan Valley were also built in the vicinity of the lake. Jal Mahal is an ancient monument is not in dispute. Earlier it was declared to be protected monument, but it was deleted in the year 1971 from protected monument. However, the fact is that it is an ancient monument of international importance attracting large number of tourists to Jaipur. Considering the importance of Mansagar Lake and Jal Mahal Monument, the MOEF Central Government has sanctioned 70% of cost of ₹ 24.72 amounting to ₹ 17.30 crores for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt.Ltd. vide Man Sagar Lake Precinct Lease Agreement dated 22.11.2005 for a period of 99 years. On the same day, another agreement called as Jal Mahal Leave and License Agreement has been entered into for conserving, restoring and reusing the monument for a period co-terminous with the Lease Agreement. The premises have been given to the licensee on the terms and conditions mentioned in the agreement. The Jal Mahal Leave and License Agreement is Appendix-14 to the main lease agreement Man Sagar Lake Precinct Lease Agreement . As already stated above, as mentioned in Appendix-2, the following area was allotted for the project:- 1. Total Project Area 432.8 Acres 2. Mansagar Lake 310 acres 3. Wetland Area 12.0 acres 4. Lake front promenade 10 acres 5. Project Area (for PSD) 100 acres The Mansagar Lake Precinct Lease Agreement was executed on 22nd November, 2005 and on the same day, Jal Mahal Leave and License Agreement (Appendix-14 to the main lease agreement) was executed. As per lease agreement, demised premises means the lands and the rights in relation thereto. Jal Mahal monument means the monument in the mansagar lake more particularly described in Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and such other conditions as may be specified by the lessor in writing. The lessor is bound as per clause (k) of Article 8 Covenant of lessor that it shall complete or cause completion of the restoration of the lake as per the Mansagar Lake Management Plan by December 31, 2005 and maintain or cause the maintenance of the lake by itself or through sub contracting arrangements in terms of the Mansagar Lake Management Plan under the over sight of Lake Monitoring Committee, which shall be institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of land for common facilities. Appendix 8 relates to development fee/annual rentals payment mechanism and it provides that the lessee shall pay an annual lease rentals of ₹ 2.52 crore to RTDC and annual lease rentals would be escalated by 10% after every three year. Jal Mahal Leave and License Agreement, which is Appendix 14 to the lease agreement, was entered into on 22.11.2005 for the purpose of conserving, restoring and reusing the monument for a period co terminous with the lease agreement. Jal Mahal Monument means the monument including two pavilions or structures located in the Mansagar lake, more particularly described in Annexure I. Licensed premises means the Jal Mahal Monument together with full and free right and liberty of way and passage and other rights in relation thereto. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 10.10.2007 was changed and revised master plan was sanctioned in the meeting held on 10.9.2009 and letter was issued to the company on 22.9.2009. It is also not in dispute that seven star hotel and other commercial structure are proposed to be built on 100 acres of land. It is apparent that in the project, commercial exploitations have been permitted on a large area of 100 acres. It was also not disputed in return that as per prevailing DLC rate, value of the land at the relevant time was more than ₹ 2500/- crores. Lessee has been given right to alien or sub-lease or mortgage the property to raise the finances for a period of 99 years. Leave and License Agreement is Appendix 14 to the main lease agreement. Total 432.8 acres project area as mentioned in Appendix 2 to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It has also been observed that public has special interest in public land water etc. It is the duty of the State not to impair such resources. The Apex Court emphasized that there is obligation to use such resources in such 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. The Apex Court in Fomento Resorts and Hotels Limited v. Minguel Martins (supra) has laid down thus:- 53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. The area being ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains. The Apex Court held that the Government of Himachal Pradesh has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. The lease transactions are in patent breach of the trust held by the State Government. Therefore, the Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The Apex Court has laid down thus:- 25.The Public Trust Doctrine primarily rests on the principle tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds 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 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. 35.We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. The resolution of this conflict in any given case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tees 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 international law, gave rise to the principle of state responsibility for pollution emanating within one's own territories [Corfu Channel Case, ICJ Reports (1949) 4]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant Clause of this Declaration in the present context is Paragraph 2, which states: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Thus, there is no doubt about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants 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 for which they are adapted. [...] the state holds the title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State, which does not recognize and is not in execution of this trust is permissible. What this doctrine says therefore is that natural resources, which includes lakes, are held by the State as a trustee of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English Law, it related to specific types of resources. The US Courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 developing it rather than transferring it to a third party for value. 79.Further the principle of Inter-Generational Equity has also been adopted while determining cases involving environmental issues. This Court in the case of A.P. Pollution Control Board v. : Prof. M.V. Nayudu and Ors. [1999]1SCR235 held as under: The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations. Principle 1 - Man has the fundamental right to freedom, equality and adequate conditions of life, in an envir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 possession of the land in question must be handed back to the Gram Panchayat and regularizing such illegalities must not be permitted because it is a gram sabha land which must be kept for the common use of the villagers of the village. Reliance was placed upon the decision in M.I.Builders (P) Ltd. V/s Radhey Shyam Sahu (1999(6) SCC 464) in which Apex Court ordered restoration of a park after demolition of shopping complex constructed at the cost of over ₹ 100 crores. In Friends Colony Development Committee V/s State of Orissa (2004(8) SCC 733), the Apex Court held that even where the law permits compounding of unsanctioned constructions, such compounding shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 pass a similar order in this case. 18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. 19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials and even this money collected from these so called auctions are not used for the common benefit of the villagers, but misappropriated by certain individuals. The time has come when these malpractices must stop. The Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suggested by the NEERI. Reliance has been placed by the learned counsel appearing for the respondent no.7 on the decision of the Apex Court in Susetha V/s State of T.N. ors. (2006(6) SCC 543) in which the Apex Court observed that natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The Apex Court has also observed that the same principle cannot be applied in relation to artificial tanks. In the instant case, as already stated above, even if it is a man made lake, but it has to be treated as gift of nature. Jal Mahal is also an ancie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 rightly admitted by Advocate General that out of 100 acres land leased out to Jal Mahal Resorts Pvt.Ltd., 13 bigha 17 biswa land comprising khasra no.67/317 is part of the lake bed and he has fairly conceded that it was not permissible to lease out the aforesaid area which is recorded as Gairmumkin Talab. Thus, lease deed could not have been executed with respect to the lake bed area. Hence, lease deed is illegal and void. The State and its functionaries have utterly failed to observe the doctrine of public trust reposed in them. The possession report (Annex.26 to petition no.5039/2010) also indicates that much more are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government or RTDC or JDA or JMC to permit reclaiming of the area which was in submergence in lake and it was in fact part of lake. The petitioners have submitted that in fact much more area out of 100 acres land came into lake bed. Whatever that may be, admittedly area of 13 bigha 17 biswa is recorded as Gairmumkin Talab and area of 14.15 acre was in submergence, which was also included in 100 acres of land leased out for 99 years to the company, which was not permissible. There was no authority under the law to alienate the land of lake bed. Whole transaction is based on flagrant violation of principle of publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the project area and thus, the project area is within 10 km. from the protected wildlife sanctuary and hence, project has to be treated in Category-A for which as per General Condition of the Notification dated 14.9.2006, the competent authority to give environment clearance is Central Government MOEF and no such environment clearance has been obtained from MOEF. Relevant portion of the Notification dated 14th September, 2006 is quoted below:- 2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 National Lake Conservation Plan. 20. That so far as the contents of paras 8N to Q of the writ petition are concerned, it is submitted that neither any communication nor any document has been received from the State Government of Rajasthan or the project proponents seeking permission from Central Wetland Regulatory Authority. Thus, it is apparent that the sanction which was granted on 5.9.2002 has nothing to do with the project spreading over 432.8 acres of the land which has been granted to Jal Mahal Resorts Pvt.Ltd. There is misrepresentation made by the various respondents-State/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would be debitable to the Major Head 3435,04,101,05,00,31 Grants-in-Aid National Lake Conservation Plan under Demand No.24 Ministry of Env. Forests for the financial year 2002-03 (Plan). 6. This issue under the powers delegated to the M/o Env. Forests and with the approval of the IFD vide their Dy. No.2487/DIF(F)/02 dated 23.8.02. Yours faithfully -sd- (Asha Makhijani) Under Secretary to the Govt of Of India The revised sanction was issued by MOEF vide letter 23rd December, 2002. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 22.89 crore Centages @ 8% ₹ 1.83 crore Total estimated cost ₹ 24.72 crore Total estimated cost= ₹ 24.72 crore GOI share = ₹ 17.30 crore State share = ₹ 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 it is apparent from the return of the MOEF that no such permission has ever been asked. The permission which has been granted on 29th April, 2010 by the State Level Environment Impact Assessment Authority has no value in the instant case as the said authority was authorized for the matters falling under Category B and not under category-A project and as the project in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Control Board is also of no avail to Jal Mahal Resorts Pvt.Ltd. in the absence of clearance from Central Government MOEF as per notification issued under Environment Protection Act. It was submitted by Shri Rajendra Prasad, learned counsel appearing on behalf of the petitioners that Tourism Component of the lake restoration plan has been conceived, prepared and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 development of tourist activities, would be 26.6 acre, which is not adequate for such facilities. .. . . . . . . . . * Land available for Development 26.6 acre * Water spread of the Lake 400 acres * Capacity of the Lake 4.24 MCM (b) . . . . . . . . 3.2. Scenario: . 3.3 Scenario: Maintaining Water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of lake basin itself. Not only this much the queries raised by the respondent No.8 vide Annexure 20 at page 208 of writ petition on submission of technical bid and presentation it is stated as under:- 1. Issue: Entire lake precinct area of 100 acres filled and compacted shall be made available by lessor to lessee with Jal Mahal monument free from all encumbrances . Thus, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of the lake with the help of map etc. However, respondent-JDA in its reply to Civil Writ Petition (PIL) No.5039/2010 has mentioned that, The actual size of water body i.e.Mansagar Lake was 1842 mtrs. in length in the year 1960 . However at present the length has been reduced; now the area is 0.79 kms as per the information of Executive Engineer, PWD under the RTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral 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 no.7. It has sanctioned 70% of the estimated cost to the tune of ₹ 17.30 crores for restoration of lake, STP etc. as per details given in the communication dated 5.9.2002 and revised sanction dated 23.12.2002 and details of revised estimate sanctioned by it is quoted above. (B) Violation of the Rajasthan Tourism, Disposal of lands and Properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 in contravention of Rules 22 and 23 of the Rules of 1997. Even if the property is put on the disposal of RTDC, it is bound to act in accordance with law and when Rules are in existence, there is nothing to give go bye to the Rules and property could not have been disposed of in contravention of Rule 22 and 23 without working out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 of Urban Land) Rules, 1974. Rule 2(10) provides that sale or disposal of land means transfer of lease hold rights only. Rule 2(10) is quoted below:- 2 Definitions:- (10) Sale or disposal of land means transfer of lease hold rights only. Rule 4 deals with tenure of lease and sale of lease hold rights . Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 meet as and when required to consider the proposals. (3). The Committee may sanction the proposals with or without any modification or may return them to the Board concerned together with such suggestions and modifications which the Committee may deem fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 March, 1997 Published in Raj. Gaz.Ex.Ordi.4(Ga)(I)-Dt.13.3.97 Page 267. (emphasis added) As per mandate of Rule 6 it was necessary to work out the reserve price on the basis of cost of undeveloped land; cost of developed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deemed fit. (4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 passed without delay to the organization or government responsible for the continuing bureau duties specified in Article 8. Article 4 1. Each Contracting Party shall promote th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 definition, it is clear that drainage area or catchment region of the wetland is also included in the wetland. Rule 2(e) provides that 'Ramsar Conventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances 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 for boat jetties within fifty meters from the mean high food level observed in the past ten years calculated f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory 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 wetland under different categories. The project includes submerged land its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was necessary to work out the reserve price as mandated under the Municipalities Act, Rules 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 comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the Congress Party, to Simla. Lord Mountbaten had shown his plan of division of India. The violent 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 campu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as National Monuments by the Archaeological Department, the question that had arisen was what would be the appurtenant land. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit at cost of exchequer and ecology. Yet another aspect of the matter is that under the agreement, lessee/licensee has been given right to realize amount of ₹ 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 ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in breach of public trust doctrine. In Monarch Infrastructure (P) Ltd. V/s Corporation ors. ((2000) 5 SCC 287), where one of the conditions of eligibility was deleted after the 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 financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that without clearance from the Central Government MOEF, the project was given to Jal Mahal Resorts Pvt.Ltd.; inspite of refusal to revise the plan on 10.10.2007 on the ground that Master Plan could 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal act at the cost of lake bed itself, it has damaged the lake and has reduced its area. Maintainability of writ-Delay It was submitted by Shri A.K.Sharma, learned Senior Counsel appearing on behalf of Jal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lders (P) Ltd. V/s Radhey Shyam Sahu (supra) where the Apex Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over ₹ 100 crores. We find that lake is bound to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady stated above, delay has to be considered on the facts of each case and considering the nature of project and the area leased out on a paltry sum for 99 years; revised plan was sanctioned in 2010 without requisite statutory 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground, the PIL was dismissed. In the instant case, we find that there is no concealment of any material fact, on the other hand, the petitioner has himself placed on record letter addressed to the Hon ble Chief Justice of India. Merely because 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngwith Dr.Brij Gopal approached the respondent no.7 in 2007 to offer their services, which were not taken up as the respondent no.7 did not require the services of the petitioner and Dr.Brij Gopal and this petition has been filed. We are not at all 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, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08/2011 Ram Prasad Sharma V/s State was dismissed by this Court as withdrawn vide order dated 15.2.2011 without granting liberty to file fresh writ application. The order passed by this Court in Writ Petition No.1008/2011 cannot come in the way of maintainability 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as lease rent during the term of lease of 99 years. In our opinion, the question is not of spending money. In case the petitioner has voluntarily spent some money without any obligation under the lease and leave license, he cannot claim any right to hold lease of inalienable property 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 ₹ 1/- and annual rentals of ₹ 2.52 crores payable to RTDC with obligations to maintain water, STP, irrigation etc., whereas the market value of the land was about ₹ 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 ₹ 15 crores hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tested by applying Wednesbury principle of reasonableness, it cannot be said that the decision is free from arbitrariness or not affected by bias or not actuated by malafide. The learned counsel for the State has placed reliance on the decision of the Apex Court in Netai Bag and ors. V/s State of W.B. ors.((2000) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acres land was in the submergence which could not have been given on lease, remaining part out of 100 acres given for the purpose of construction activities, has been made available by reducing water level of lake. Besides, there were other glaring illegalities as found by us. Hence, the above decision is of no help to the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Kihoto Hollohan V/s Zachillhu and ors. (1992 Supp (2) SCC 651), where the Apex Court has laid down that the doctrine of severability can be applied in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure. But 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 muzzl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution of India. It was also submitted by Shri A.K.Sharma that tourism activities in Jal Mahal area were contemplated several decades ago; a gazette notification was published by JDA on 31.7.1975 for Jalmahal Reclamation Project; in 1977 UIT decided not to proceed with the project; in 1982 UIT sent letter for acquisition of land to develop 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... macists was admittedly policy decision. The framing of administrative policy is within the exclusive realm of the executive and its freedom to do so is, as a general rule, not interfered with by courts unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached a decision which no reasonable tribunal would have reached or 5.abused its powers. If the facts of the present case are examined in the light of the above, it is very much clear that the authorities have exceeded their powers as they have leased out some part of the area of the lake and some land of gairmumkin talab; they have acted against the statutory 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/maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance should not result in any commercial benefit to such body while in the present case transaction provides commercial benefits to respondent no.7. Point as to stamp duty It was submitted by the petitioners that bidding process was completed without even deciding as to who would pay stamp duty with regard to transfer of land. Ultimately decision was taken to exempt stamp duty on lease agreement 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTDC or JDA or JMC to allow or permit reclaiming of the area which was in submergence in lake and it was in fact part of lake. (3) That it is apparent from para 3.4 of DPR that lake level has been reduced to carve out 100 acres land for lease. (4) That the area of 100 acres leased out was to be raised above the lakebed by filling and compaction and was not otherwise available for the so-called tourism project. It has 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of notifications dated 27.1.1994 and 14.9.2006 issued under the Environment Protection Act, 1986, the respondents were required to carry out environmental impact study and obtain environment clearance from the Central Government MOEF, which they did not do. (12) The permission which has been granted on 29th April, 2010 by the State Level Environment Impact Assessment Authority has no value in the instant case as the said authority 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 il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fix the reserve price as provided under Rule 6. When the Municipal property is being sold away on lease as contemplated under Rule 2(10) for 99 years, it has to be on the cost as provided in Rule 6 and fixing of reserve price was necessary, which has not been done. As per Rule 15(15), Municipal Corporation can transfer the land to Department of Tourism or RTDC but it is as per commercial price for a tourism project and then if an auction price 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Acts and Rules mentioned above and in blatant violation of the public trust doctrine, therefore, to say that this Court cannot interfere in contractual matters or policy decision cannot be accepted. Though there is no delay as requisite sanctions have not been obtained so far for the project, in such cases, even delay and latches does not come in the way of interference by this Court. (20) That grant of lease for 99 years amounts to sale and the 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No.1008/2011 cannot come in the way of maintainability 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. (31) That 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. 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 Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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