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TMI Blog2015 (11) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... etition No.5039/2010 and D.B. Civil Writ (PIL) Petition No.4860 of 2010 whereby the Division Bench of the High Court was pleased to cancel an Environment and Monument Improvement/Preservation and Tourism Development Project at Jaipur by declaring it as illegal which was awarded to the petitioner/appellant Jal Mahal Resorts Private Limited via global tender floated in 2003 and finally granted in 2005 after all requisite approvals as per the petitioner/appellant under the Environmental Law including Environment Impact Assessment under the Environment Protection Act and the Notifications issued thereunder of the Rajasthan Pollution Control Board. However, in view of the cancellation of the project, the High Court has directed immediate dismantling and removal of the entire project and diversion of the two drains which was done to purify waters of a man made artificial water body and detritus. 3. Other three Special Leave Petition bearing SLP (Civil) Nos.22467/2012, 22820/2012 and 24341/2012 had also been preferred by the State of Rajasthan challenging the impugned judgment and order of the High Court referred to hereinbefore. But after the arguments were finally advanced by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tourism Development Corporation ('RTDC' for short) which in turn will hand over the land to Jaipur Development Authority ('JDA' for short), Jaipur Municipal Corporation ( 'JMC' for short) and the State of Rajasthan. The appellant has further been directed to immediately remove all sedimentation and settling tanks from the Mansagar Lake Basin and to realize costs from M/s. Jal Mahal Resorts Private Limited and to examine restoring position of Nagtalai and Brahampuri Nala (drains) to their original position as redesigned by RUIDP under Mansagar Lake Restoration Plan in consultation with the Ministry of Environment and Forests ('MoEF' for short) of the Central Government. The respondent authorities of the State of Rajasthan have been further directed to monitor, maintain and refix boundaries of the Mansagar Lake in its full original length, breadth and depth in consultation with the MoEF of Central Government and not to reduce normal water level. All encroachments made in the attachment area of the Mansagar Lake have been ordered to be removed immediately and the control erected by appellant M/s. Jal Mahal Resorts Private Limited into the lake is ordered to be dismantled and costs hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e catchment area which covered approximately 23.5 Sq.Kms was dense urban population. Towards the south side of the lake, large amounts of unintended developments and encroachments had taken place thereby drastically increasing the quantity of effluents discharged into the lake and also put other pressures by unconditional grazing of cattle and urban development. Jal Mahal had also very substantially deteriorated over a period of time not only because of natural process of degeneration but also because of maintenance. The monument was in a dilapidated state and required massive restoration works. 7. The deteriorating condition of the Lake and the Monument compelled the Government to find ways and means to restore the two components to their original glory. Over a period of 30 years attempts were made by various government agencies and departments to restore the ecological and environment condition of the lake and its adjoining area. However, none of these attempts yielded very positive results because of paucity of resources to take up and sustain the restoration. 8. The Government of Rajasthan, therefore, decided to adopt an incentivized approach to restore the Lake and the Monum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the Government of Rajasthan. Request for proposal was released and Board of Infrastructure Development & Investment (BIDI), a high powered committee of the Government headed by the Chief Minister with an objective to accelerate private investment in industry and related infrastructure, formed a sub-committee to decide on fiscal concessions necessary for the project. The Jaipur Municipal Corporation was made the nodal agency for project purposes. However, the first bid process failed as despite applying for qualification no bidder ultimately participated in the bid. 11. The aforesaid failure led to the appraisal and approval of the project report by the Ministry of Environment and Forests. The Government of Rajasthan, through Department of Urban Development, sent proposals to Ministry of Environment and Forest (MoEF), Government of India, on 17.08.2001 seeking funds for Lake Restoration of the said project under National Lake Conservation Programme ('NLCP"). MoEF responded by requesting that details regarding fund requirement, O&M agency, source of funding for O&M along with Detailed Project Report (DPR) comprising of bankable proposal be submitted. Hence, On 8th & 9th Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merly known as SCID, directed Secretary, UDH to finalize key commercial terms for selection of PSD. During the first round of bidding the proposed lease was 60 years in the aggregate. As that period was considered unviable, in the second round of bidding the period of lease was proposed as 99 years. Moreover, restoration of Jal Mahal by the PSD was made optional and not mandatory. 16. In pursuance to the aforesaid steps, detailed RFP were issued to interested private parties which was approved by JDA and released in July, 2003. The advertisement inviting RFP for selection of Private Sector Developers ("PSD") was published in leading newspapers (Rajasthan Patrika and Economic Times). In addition, PDCOR developed strategy for marketing and wide publicity of the project by apprising potential entrepreneurs across the globe about the features of the project with a view to encourage them to come forward to participate in the bid process. As the tourism project was to generate funds for sustained O&M measures, the Department of Tourism ("DOT") and later Rajasthan Tourism Development Corporation ("RTDC") was made the nodal agency for the project. Four competitive bids including from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mansagar Lake, after obtaining all necessary approvals, had completed Phase-1 of the Project. But the project suffered a grave set back and knee jerk obstruction as by this time i.e. in the year 2010 public interest petitions were filed in the High Court although the petitioner had already started executing the project and had already spent an amount of Rs. 38 crores besides paying more than 14 crores as project development fees and lease rent to RTDC as per the petitioner/appellant's case in terms of the lease deed. In pursuance to the same, the restoration of the Mansagar Lake under the DPR prepared by PDCOR was to be undertaken by the State Government. The O&M work was to be carried out from lease rentals received from Private Sector Developer i.e. the Petitioner. The total amount sanctioned for restoration of the lake by the Central Government and the State Government was Rs. 24.72 crores. This amount proved to be inadequate and the Government due to further resource crunch was not in a position to spend any further amount. Resultantly, the restoration of the lake, which was the cornerstone of the project, was in danger. The Petitioner spent over Rs. 15 crores on restoration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project thereafter was started and the land leased to the Petitioner, according to the appellant, was not a part of the water body in the first Master Plan 1971-1991 for Jaipur and an area of 200 acres around the south side of Jal Mahal was demarcated and reserved for tourist facilities. The land leased to the Petitioner was a part of this land area reserved for tourist facilities. The said land continued to be retained for tourism and recreational activities in the subsequent city master plans including the master plan of 2011 and 2025. 23. The appellant has further stated that the Man Sagar Lake on its western side is bound by Jaipur-Amer road. The level of the road is at a contour level of 100 MRL. The ground floor of the Jal Mahal monument within the lake is at the contour level of 98.2 MRL. PDCOR, based on intensive studies, found this level as the most appropriate level taking into account the fact that the lake was not freshened by natural acquifers but was dependent on surface runoff during the monsoons, and to ensure that ground floor of Jal Mahal was not submerged. 24. However, the contesting respondents herein who were the PIL petitioners before the High Court, averre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which Sewage Treatment Plant (STP) near Brahmapuri has been revamped from which treated water is being diverted to lake for compensating evaporation losses during dry weather. A two step Tertiary Treatment Plant has also been developed and lake has been cleared from hyacinth plants completely by the JDA. The JDA has also invested in development of lake front promenade on Jaipur -Amer Road and constructed road along the lake on northern side which has formed a new water body of about 5 hectares in size for storing hill run off during rainy season for wild life which includes Hanuman langur (Semnopithecus entellus), Black aped Hare (Lepus nigricollos), Indian Porcupines (Hystrix Indica), Blue bull (Boselalphus tragocamelus), Sambhara (Cervus unicolor), Common Mangoose (Herpestes edwardsii), Jackals (Canis aureus), Striped Hyaena (Hyaena hyciena) and panther (Panthera leo). The JDA has also funded Rs. 10 million to the State Forest Department for improving lake catchments area falling in the Nagargarh hill area (Arawali Range) which is the only natural watershed. The lake is surrounded almost from three sides by Arawali Hill Ranges. The hills are either part of Nahargarh Wildlife Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Tourism Development Corporation (for short 'RTDC') vide order dated 6.9.2003. It has been submitted that although biding was started, no survey of the actual site and demarcation of 100 acres area on the lake was made and even environment impact assessment was not carried out before planning the project. It was further submitted that in the advertisement last date for submission of the bid was 5.9.2003 and it was necessary under the terms of the bid that only private limited company or public limited company could have submitted tender. It was necessary that lead Manager should be private or public limited company. The offer was submitted by KGK Enterprises, partnership firm and its HUF Manager. Thus was not fulfilling eligibility qualification provided under the terms notifying tender. 29. However, the petitioner/contesting respondent himself has added and clarified that later on decision was taken to include KGK Enterprises which according to the petitioner /contesting respondent lack eligibility condition and Jal Mahal Resorts Private Ltd. Company has been incorporated on 10.11.2004. The decision was also taken to give exemption of stamp duty etc. 30. The contesting respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake has been converted into a series of small tanks followed by a large tank i.e. lake. This has adversely affected aesthetic value of the Mansagar Lake. Prior to the construction of storm water management plan, lake water also used to be released for irrigation. Now water will be released through sluice gates into down stream directly without flowing through the lake basin and there will be no flushing out of salts from the lake. The build of salts will convert fresh water lake into a saline lake which will alter its flora and fauna. It was further submitted before the High Court that the appellant herein was not at all concerned with the construction of storm water management plant that too in the lake bed itself and it has been carried out without any requisites sanction and study by any of the concerned authority otherwise such a large area of the lake could not have been allowed to be sacrificed for such purpose. As per the monitoring done by the PIL petitioner/contesting respondent, the chloride content in the Mansagar Lake has been increased and salt in water has gone high. The sudden increase in the chloride content of the lake is attributed to direct human interference by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e implementation of the projects mentioned therein. It was further contended that the project cannot be implemented without obtaining environment clearance from the Central Government under the aforesaid notification and no Environment Impact Assessment was carried out nor any environmental clearance has been obtained before finalizing the project & all actions taken by the respondent are absolutely illegal and void. The PIL petitioner further contended that the environment clearance as required under notification dated 14.9.2006 had not been obtained nor any compliance of Wetlands (Conservation and Management ) Rules 2010 had been made so far. The PIL petitioner had raised a grievance that it is a case of siphoning off valuable public property as the value of 100 acres of land is not less than 3,500/- crores. The DLC rates for commercial land in question is Rs. 79,063/- per sq. mtrs. and lease for 99 years amounts to sale, although as per rules it was necessary for the respondent-authorities to realize the sale price and additionally lessee was required to pay annual lease money also. The market price used to be much higher than DLC rates, especially due to location being pictures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfrastructure Development ( for short ' SCID') in December 1999. It was stated that the bids were notified in the year 2000 but no entrepreneur came forward in the bidding process and thus the tender process was scrapped. Thereafter, the JDA was appointed as nodal agency to undertake the bidding process. Global tenders are invited on 25.4.2003 and in pursuance thereof 9 entrepreneur showed interest. It was mentioned in the advertisement that 100 acres of land would be leased out for 99 years. A pre bid meeting was held on 24.8.2003 for removal of doubts. The Department of Tourism on 6.9.2003 transferred the development of Jal Mahal to RTDC vide letter R-1/12. On 15.9.2003, pre-qualification bids were opened in response to which four entrepreneurs submitted bids. Rejection of one bid was recommended on account on inadequate information on evaluation. It was pointed out that the respondent M/s. KGK Enterprises was a partnership concern whereas the criteria for bidder was that it has to be private/public limited company and thus final view of the Government was sought in respect of qualification/disqualification of M/s. KGK Enterprises in the next phase of evaluation bid. Later on, 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the wild life or reserve forest or birds and it is for the respondent No.7 Jal Mahal Resorts Pvt. Ltd./appellant herein to obtain clearance as per requirement of law. The sedimentation tank covers 5% of the area of lake. It was also stated that the Wetland Rules are not applicable and they are made applicable to Sambhar Lake and Keola Deo Lake in Rajasthan. It was still further added that the land leased out does not fall within the definition of Section 2(1) (g) and Section 3. The consent had been given under the Water Act by the Rajasthan Pollution Control Board on 20.5.2010. It was further added that for the last 3 decades , the State Government had been making efforts for restoration of Jal Mahal, Man Sagar Lake and the Area around lake and desilting has not caused any ecological damage. 37. In so far as the stand of Jaipur Development Authority is concerned, on its turn submitted that for development of Jal Mahal Tourism Project land of private unit was acquired, certain land was sawaichak (government land) and land of public works department, land of three villages namely , Vijay Mahal, Bansbadanpura and Kasba Amer was included, 178 bighas 9 biswas was in private tenancy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest and hence the then Chief Minister had approved the decision of giving project to the highest bidder KGK Enterprises on 27.2.2004 and thereafter letter of intent was issued on 30.9.2004 after which lease agreement was executed on 22.11.2005 on which the appellant has already spent amount of Rs. 70 crores while executing part I of the project. 39. The appellant herein had also submitted that the public interest petition was not bona fide rather amounted to abuse of the process of the court and they have been filed with gross delay and laches. 40. Responding to writ petition No. 4860/2010 which PIL was filed by Dr. Ved Prakash Sharma in the High Court also, was contested by the appellant herein and it was submitted that Dr. V.P. Sharma appears to have obtained registration on 19.3.2010 mainly for the purpose of approaching this Court in PIL. It was also urged that Prof. K.P. Sharma in W.P. No. 6039/2011 is not a recognized authority or lake functionaries or expert in lake management, irrigation, environment protection and there has been orchestrated campaign through vernacular newspaper for reasons best known to the correspondent and the newspaper itself. The said newspaper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pent about Rs. 15 crores on lake restoration which was not their responsibilities under lease agreement and they have also spent Rs. 10 crores on restoration of Jal Mahal Monument voluntarily though obligation was limited to Rs. 1.5 crores only. Hence, there cannot be any interference by this Court with the opinion of the expert. 41. It was still further added that Jal Mahal monument is not a place of worship for both Hindu or Muslim or either of them and there is no document showing that it has been permitted to be used as a place of worship. It was stated that Jal Mahal monument was a pleasure pavilion used for hunting ducks and other similar pleasure activities by the kings, opinion of legal consultant of JDA was not correct. Issue of identity of director/owner of the company constituting the consortium is not relevant in any manner whatsoever to the project for restoration of Mansagar Lake. Jal Mahal Monument and Development of precinct area , bid was submitted by KGK Consortium comprising of six private limited companies, one HUF and partnership firm namely, M/s. KGK Enterprises who was lead bidder of the KGK Consortium. It was stated that it is mandatory under the tender doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of restoration of Jal Mahal monument which is situated otherwise in Mansagar Lake surrounded by water and the said road has been dismantled and no material is left to compromise the filling capacity of lake. JDA has approved detailed building plans for the project on 13.7.2010. The Jal Mahal Resorts Pvt. Ltd. diverted the sewage nallahs away from the Mansagar Lake with the approval of the State Govermment , lake has been cleansed substantially, BOD of the water in Mansagar Lake has been reduced substantially after commencement of the work, creation of sedimentation basin has not decreased the water capacity of Mansagar Lake and use of soil of lake itself has not damaged the ecology or environment or the lake. Sedimentation basin is a part of the lake and created only by moving the soil of the lake from one place to another and it is wholly temporary reversible in nature and the soil can be leveled when arrangements are in place to ensure that the storm water drains do not discharge silt and organic load into the lake during monsoon, land in question is not covered under the provision of the tenancy act and the lake is with the State Government , which will continue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased to declare that the Mansagar Lake Precinct Lease Agreement dated 22nd November 2005 giving 100 acres of land on lease for a period of 99 years to respondent No.7 Jal Mahal Resorts Pvt. Ltd. was illegal and void. The appellant Jal Mahal Resorts Pvt. Ltd. was therefore, directed to restore the possession of the land to the RTDC who in turn was directed to give back the land to Jaipur Development Authority, Jaipur Municipal Corporation and the State. As already stated in the introductory paragraph, certain other directions like removal of sedimentation and settling tanks from the Mansagar Lake basin was also issued by the High Court and cost also had to be realised from the appellant. 43. The appellant lessee/Jal Mahal Resorts Pvt. Ltd. felt seriously aggrieved and affected by the impugned judgment and order of the High Court and therefore preferred this appeal along with the other connected appeals which are being heard and decided analogously. 44. In order to test the merits and demerits/strength of the case of the contesting parties , we deem it appropriate to take note of the historical background giving rise to this matter whereby certain factual aspects and the background ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute is essentially confined to the Lease Deed which has been granted in favour of the appellant for development of 100 acres land adjoining the lake area for a period of 99 years. The PIL petitioners although have urged that the land for which lease deed had been executed were wetland, it could not establish from any material on record that except an area of 14.15 acres equivalent to 22 bighas and 10 biswas and another area comprising 8.65 acres equivalent to 13 bighas and 17 biswas are in fact the contentious area on the basis of which PIL petition has been filed engulfing the entire area of the lease deed. In this respect it cannot be overlooked that the project which was visualized and given effect to, was with a view to sustainable conservation and preservation approach stipulated in consultation with the experts in pursuance to which a global tender was floated and implemented under extra supervision with all approvals in place from the concerned authorities. 46. Learned counsel for the petitioner/appellant, Dr. Abhishek Singhvi assailed the impugned judgment and order of the High Court and urged that the High Court has proceeded on a patently erroneous, illegal and factua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents that the Detailed Project Report ('DPR' for short) in regard to the Project was prepared way back in 2001 which was the underlying basis for the Project. The tender process commenced in 2003 and the fish shaped leasehold area comprising 100 acres was part of the Expression of Interest dated 25.04.2003 published in various public media. Notice Inviting Tenders for the Project was published in various public media on 30.07.2003. The pre-qualification bids were opened on 15.07.2003, the technical bids were opened on 21.10.2003 and the financial bids were opened on 03.12.2003. Thereafter, decision making process was undertaken at several stages upto the level of the Chief Minister in order to determine the award of the Project to the respondent-lessee KGK Consortium which are indicated in the order 09.02.2004, 27.02.2004, 30.09.2004 and 27.10.2005. Thereafter, finally on 22.11.2005, the Lease and Licence Agreements were executed between the State Government and the petitioner- appellant. It was submitted that all the above steps were taken in public domain and in fact one of the PIL-petitioner/respondent herein K.P. Sharma was aware of the developments as far back as in February 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s added that in fact the PIL/petitioner in the High Court Mr. K.P. Sharma is guilty of suppression of facts from the High Court as he had sent a complaint letter dated 12.06.2007 to the Supreme Court and the SC Registry was directed to submit a report dealing with all the allegation raised by PIL/petitioner. The SC Registry took the report on record and closed the matter on 20.12.2007. The petitioner K.P. Sharma thereafter did not move forward and suddenly after 4 years in April 2011, filed a writ petition by way of PIL in the High Court without even disclosing that complaint had been enquired by the Registry of the Supreme Court and the matter was closed. However, the PIL/petitioner made a further application to the Supreme Court in the year 2011 but the Additional Registrar of the Supreme Court vide letter dated 11.10.2011 informed the PIL/petitioner that pursuant to GOR Report, the file had been closed and the file was weeded out on 14.04.2011. Thus, the PIL/petitioner was clearly aware of the factual report of the GOR to the effect that the SC Registry had closed the matter based upon that report, yet the PIL/petitioner K.P. Sharma failed to disclose this vital fact to the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L petitioner that the area admeasuring 13 Bighas 17 Biswa bearing Khasra No.67/316 (8.65 acres approx.) is part of the lake area as per revenue record which is recorded as "gairmumkin talab" and therefore could not have been leased to the petitioner. Contesting this plea, it was submitted by the petitioner/appellant that Khasra No.67/317 does not form part of the submerged area and is in fact a part of landmass which is outside water. The survey reports placed on record leave no doubt on this score. It was submitted that the consistent and specific case of respondent No.6/Project Development Corporation of Rajasthan ('PDCOR' for short), this land does not constitute part of submerged land. However, revenue record reflects this land as gairmumkintalab and the State has entrusted the preparation of the Jal Mahal Tourism Project that includes ecological restoration of Mansagar Lake Restoration of the Jal Mahal Monument and the Lakeside Development on the land leased to the petitioner. However, the petitioner/appellant has also added that it has no desire or intention to construct or in any manner commercially utilise this land and should be open to the public. As a matter of fact, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and. It was further elaborated that the PDCOR, the body that prepared the Detailed Project Report had carried out land surveys, prepared topographical surveys, output surveys, water quality tests and received secondary data from Survey of India etc. which has been incorporated in the counter affidavit before this Court and before the High Court explaining the reasons for submergence. PDCOR has stated in its affidavit that the said 14.15 acres of land was submerged due to huge silt deposits that had caused the depth of the lake to reduce and as a result the water had spilt out into adjacent land being the concerned 14.15 acres of land. Thus, the said land was never part of the Lakebed and for this reason, is not a wetland. Factually, out of the 14.15 acres permitted to be reclaimed by the petitioner under the lease deed dated 22.11.2005 the petitioner has only reclaimed approximately 11 acres out of which approximately 6-7 acres has been consumed for creating a public promenade open to the public. 54. In fact, the learned Attorney General on behalf of the State had also argued that this land of 14.15 acres was never part of the Lakebed as per revenue records. The Attorney General a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a heritage resort, a convention and Exhibition center to serve multipurpose functions. It was submitted that these highly pro public elements cannot be negated and destroyed by erroneous contentions raised in the PIL. Indeed, the aforesaid enormous improvement to the environment involving air, water and land, is itself in high public interest and this Hon'ble Court should countenance no dilution in that. 57. It was next submitted that the conclusion in the impugned order that the Lake has been artificially reduced to get more land and lake water level and its spread had been reduced is completely erroneous, unsustainable because it is the petitioner and the State who have together restored 310 acres (approx.) of the Lake that has resulted in ensuring the Lake remains filled with water around the year having the depth of around 3 to 5 meters, whereas earlier it was nothing but a cesspool of filth, sewage and silt etc. 58. The factual context of this issue has been summarized by the petitioner in order to demonstrate the grave and patent error of the impugned order and it has been stated as follows: i The level of Jaipur-Amer road is 100 m RL, and the full tank level of the lake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a manmade lake, the principle source of water during and after the restoration work has been treated sewage/effluence coupled with some replenishment during monsoon. Consequently, in view of the release of post treated sewerage water into the Lake, the regulation of the water level at 98 m RL has always been an intrinsic part of the Government's regulation of the entire area. 61. It was submitted that it is axiomatic in law and in fact that the award of a tender must necessarily be judged by the terms of the tender, subject to permissible variations. It is most significant to note that the RFP on the basis of which everyone was invited to tender prescribes, specifies and stipulates the clear water level at 98 m RL. It is common ground that neither the PIL petitioner nor any bidder or anyone else has challenged the per se stipulation of the water level at 98 m RL. Therefore, the allegation of the PIL petitioner is absolutely baseless. Consequently, it was contended that the respondents contention that the petitioner/appellant is guilty of reducing Lake water level is highly misleading and distorted submission which has been accepted in the impugned order contrary to the factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 130 hectares more than what it purportedly was prior to independence. It was therefore submitted that the High Court's finding on this aspect suffers from lack of application of mind to the material on record and it was submitted that if anything, the size of the lake from independence has only increased. Consequently, it was submitted that the two vital and unchangeable parameters show the falsity of the PIL petitioner contention viz. (a) A decision fixed and taken more than two years before the tender in 2001 to get the lake level at 98 m RL. (b) A decision taken in the RFP to lease out no more than 100 acres, once these two polar points are fixed, assuming everything against the petitioner/appellant herein or the State Government that can be no prejudice or detriment of any kind to public interest. 64. It was next contended that the High Court conclusion on de- silting is patently erroneous and unsustainable because de-silting was a sanctioned activity under NLCP and MOEF had sanctioned funds for the said purpose. The DPR had provided for de-silting as a measure to increase the depth of the lake so as to enhance the water holding capacity thus de- silting had a scientific bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were submerged area of the lake and lakebed respectively which was carved out as land area so as to make it a part of the 100 acre land area. In fact, even on perusal of the impugned judgment and order of the High Court it could not be established even remotely that the entire 100 acres land which comprises the area of lease deed is a part of the lake or lakebed in any manner. In fact, all the contentions which had been raised before the High Court as also before this Court in general terms urged that the lake area has been reduced to 310 acres and 100 acres have been carved out of 400 acres of lake area which was reduced to 310 acres. But in clear, specific or precise terms, it could not go beyond urging that 8.65 acres which was submerged and hence a portion of the Lake area, could not have been made a part of the leased area. In this context, it was further urged that this area being a wet land, could not have been included in the leased portion of the land for which the development was permitted by executing a lease deed. 68. When this plea was scrutinised in the light of the revenue record, it could be noted that this area has been recorded in the revenue record as 'gair mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would appear that though on most of the plots there were properties of one kind or the other, there was not a single tree on any of the plots under acquisition. The records of the land acquisition proceedings, thus, complement the revenue record of 1952 in which the lands were shown as agricultural and not as jungle or forest. There is no reason not to give due credence to these records since they pertain to a time when the impugned project was not even in anyone's imagination and its proponents were nowhere on the scene." Placing reliance on the aforesaid categorical view taken by this Court, it was submitted that a reference to the revenue records with respect to the 100 acres lease shows that even though the land admeasuring 8.65 acres might have been submerged under water, historically and contemporaneously, 14.15 acres has been classified as 'barren land' and not as part of the Lake Bed. It, therefore, must follow as per the submission of the counsel for the appellant placing reliance on the revenue records that the 14.15 acres forming part of 100 acres leased to the appellant is not a part of the Lake Bed and also for that reason is not a Wet Land. 70. It was further urged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acres. It was submitted that from this it ought to follow that this land could not have been held to be forming a part of the Lake Bed under any circumstance. 73. The PIL petitioner/respondent No.1 herein had further argued that the project is illegal because no sanction for this project had been received under the Wet Land Rules 2010 and, therefore, the respondents have sought for a declaration of the Lease Deed being void. 74. Challenging this part of the argument urged on behalf of the PIL petitioner/respondents herein, it was contended on behalf of the appellant that the language of the Wet Land Rules 2010 when referred to in detail makes it clear that these rules can only apply in a situation where the Central WetLand Authority , a Government of India body established under the Wetland Rules 2010 sends its recommendation to the Central Government for notifying a certain area as a wetland. It was urged that in the present case, it is undisputed that when the Lease Deed was executed and environmental clearance (EC) from State Level Environment Impact Assessment Authority (SEIAA for short) was granted on 29.4.2010, the Wetland Rules 2010 were not even enacted. Therefore, the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the court to compel the government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it." Similarly reliance was placed on the judgment and order of this Court reported in (2002) 5 SCC 44 at 49-50 para 7 delivered in the matter of Union of India vs. Shree Gajanan Maharaj Sansthan when it concurred with the view that no mandamus could be issued to the executive directing it to commence the operation of the enactment although non-issuance of such a direction should not be construed as any approval by the Court of the failure on the part of the Central Government for a long period to bring the provisions of the enactment into force; leaving it to the judgment of the Central Government to decide as to when the various provisions of the enactment should be brought into force. 76. Relying on these decisions it was urged that from the ratio of these decisions it follows that since Mansagar Lake it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government in the High Court should not be allowed to be changed before the Supreme Court merely due to change of the Government after new elections were held and it has been strenuously submitted in the pleadings before this Court by the State Government earlier through the Attorney General that the High Court had gravely erred in law in holding that the Wetland Rules 2010 were applicable to the Project. The attempt being made by the State Government shifting its stand which was taken before the High Court and also before this Court when the learned Attorney General had appeared and concluded the arguments, it is clearly a change in stand from the stand taken by it from the High Court right up to this Court. 78. It was submitted that the underlying basis for the incumbent State Government to change its stand has been justified by it based on its understanding of the Wetland Rules 2010. According to the incumbent government and its political philosophy Mansagar Lake ought to be identified as a wetland. According to the incumbent government the fact that the Mansagar lake was not identified as a wetland by the previous government itself was an illegality and was contrary to the W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the north side of the Khilangarh fortress. The purpose of the lake was to create a water body that would cater to the irrigation needs and ground water recharge of the area. It was urged that the Mansagar Lake is a man-made water body and its beauty, therefore, is not a natural one but the creation of man. Elaborating on this part, it was submitted that certain undisputed facts established that 100m RL is the Amer Road level. At 99m RL is the full tank level and this has been admitted by the PIL petitioner K.P. Sharma in his writ petition before the High Court and 98.12m RL is the plinth level of Jal Mahal Monument as enumerated in the Detailed Projects Report (DPR for short). It was submitted that admittedly one of the primary objects of the Project was to restore Jal Mahal Monument. Thus water level had to be maintained at a level that ensured plinth/ground floor of the monument and is not submerged and further weakened. It was submitted that the Master Plan of Jaipur 1976 establishes that approximately 200 acres of land located in Vijay Mahal (including the 100 acres land leased to the appellant) was to be developed for tourism purposes. Thus, obviously, the 100 acres land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DPR. It was submitted that the respondents are bound by the report of the DPR entirely and wholly. 86. The appellant further referred to the arguments advanced by the learned Attorney General on behalf of the State of Rajasthan and submitted that the approach of the High Court was wrong as it proceeded on an erroneous basis that the Lake Bed was manipulated to make the project viable while there was no such manipulation. The Attorney General has further argued that the DPR was correct and the decision to maintain water level at 98m RL was a conscious, well informed and deliberated decision taken to protect the integrity of the monument. The counsel for the appellant, therefore, submitted that since the water level was determined scientifically and much before the appellant came into the picture rather was not even born in regard to this dispute, the question of its tampering with the lake so as to reduce the size of the lake does not arise and, therefore, the finding of the High Court on this aspect is contrary to the DPR and hence deserves to be set aside. 87. In regard to the question pertaining to general conditions in Environment Impact Assessment 2006 (EIA), it was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Item 8 (a) or 8 (b). Further paragraphs 4 (iii) of EIA 2006 provides activities included as category B in the Schedule which require prior environment clearance from SEIAA except those that fulfil general condition stipulated in the Schedule. It was, therefore, submitted that since general condition is not applicable to Item 8 (a) and 8 (b) projects irrespective of the location of such project, therefore, the contention of the PIL petitioners/respondents and the finding of the High Court that since the project is within 10 Km of the Nahargarh Sanctuary ought to be declared as illegal without substance which is liable to be rejected. 88. The learned Attorney General Mr. Vahanvati on behalf of the State of Rajasthan had also argued that the finding of the High Court on this aspect is entirely incorrect as the environment clearance from MoFF is not required for this project as the general conditions specified in EIA 2006 did not apply to this project. Therefore, neither general nor specific conditions apply to Item 8 to the Schedule and hence environment clearance given by SEIAA is legal and valid. 89. The PIL petitioner/respondents had also contended that the Rajasthan Municipal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. Thus, there is no project cost in view of non- gazetting of the decision of the Government under Section 54 (3). Reference to official gazette under Section 54 (3) must be read as directory and not mandatory and the provision has been specifically complied with. 91. It was further submitted on behalf of the appellant that admittedly development of tourism in Jaipur on the southern and western side of Mansagar Lake has been an avowed object of the Jaipur Master Plan 1976, 2011 and 2025. Thus the project is in alignment with the Master Plan. Jaipur Master Plan is a statutory document under Section 21 of the JDA Act 1982. Section 26 mandates that once the Master Plan is in force and JDA must take action for implementing the plan as may be necessary. Thus, it is statutorily incumbent on the JDA to implement the Master Plan inter alia which enables development of tourism in the given area. Undisputedly approximately 43 acres in the 100 acres leased was vested in the JDA and transfer to it for the purpose of developing the tourism project in the area designated in the Master Plan referred to above. Therefore, the land allotted by JDA to RTDC was also for implementation of JDAs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterprises was only threshold preliminary criteria at the pre-qualification evaluation stage. A further perusal of this report makes it apparent that PDCOR has observed that the tender submitted by KGK Consortium through KGK Enterprises, the lead bidder was a partnership firm, therefore, the argument of the respondent that there was concealment with respect to material fact does not stand and is for this reason unsustainable. 93. PDCOR as a part of its evaluation report and other correspondence recommended that apart from the other two bidders who had satisfied the pre-qualification evaluation criteria, even KGK Consortium should be permitted for being considered and the technical evaluation phase as KGK Consortium satisfied the substantive conditions at the pre-qualification evaluation stage. PDCOR in its recommendation further opined that condition of KGK enterprises at the subsequent stage would promote competition amongst the bidders and, therefore, be in public interest. The intent of the RFP according to the PDCOR was never to exclude any bona fide legal entity that may consider putting its bid subject to it satisfying the other threshold criteria as already stated hereinbef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as bona fide approved by the previous and subsequent government of Rajasthan which was bona fide and cannot be called unfair or illegal in any manner. 98. In support of the submission, the learned counsel for the appellant has cited several authorities of this Court inter alia being BSN Joshi & Sons vs. Nair Coal Services Ltd. & Ors. (2006) 11 SCC 548 and the relevant portion at 571 para 66 (v) and (vii) states as follows: "(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint." Similarly reliance was also placed in Poddar Steel Corporation vs. Ganesh Engineering Works & Ors. (1991) 3 SCC 273 wherein this Court held that as a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipants (including corporate names like Oberoi, Taj, Ansal, Neemrama to mention a few) who admittedly attended the pre-bid meeting, no one except the SLP petitioner/appellant and three other ultimately came forward. Obviously, the proposal was ex- facie not an attractive one for potential investors, and the inescapable conclusion is that all attempts to restore the Lake and develop the area as a tourism hub had failed when the SLP Petitioner/appellant was nowhere in the picture. 101. We have further taken note of the reasons for the clear reluctance of potential investors which have been stated as follows: The pre-existing state of the entire area of approx. 310 acres of Lake and more than 100 acres of land seemed physically irreparable which has been demonstrated by the photographs submitted [V/X]. There was no water body; the so called Lake consisted of an empty large hollow filled with sewerage stench, filth and huge sedimentation; two major nallas of the city were emptying all their sewerage and effluents in to the lake; the monument was completely dilapidated, over growth of shrubbery, and not visited by any one for decades; the nearby land was barren, filled with mud and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct by the State Government to restore heritage site and to create a sustainable and pleasing environmental ambience. The lease rent model, increasing as time goes on had always been the consistent approach of the State since 1999 when restoration was first envisaged. It is inconceivable that this model could be created to assist or benefit the bidder like the SLP Petitioner who came in to the picture for the first time only in year 2003. 102. Learned Attorney General had submitted that it is an axiomatic legal principle that revenue maximization cannot and need not be the sole or even the predominant object of a State initiative. Indeed, revenue maximization as the sole object is frequently antithetical to public interest projects involving long gestation periods, a history of disuse and failure, reluctant bidders, certain and unavoidable front ended investments and highly uncertain back ended gains. As a matter of law, also as matter of business reality and commercial efficacy, it is universally recognized that even direct invitation to potential investors/bidders without any bid or auction at all is a fully valid manner of creating infrastructure where non-existed, especially in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision making process and the finding given by the High Court, cannot be sustained and hence deserves to be set aside. 105. On a careful analysis of the submissions of the contesting parties in the light of the materials referred to before the High Court as also this Court, we further cannot overlook the historical background and the sequence of events which led to the culmination of the project for which a lease deed was executed on 22.11.2005 and 5 to 6 years thereafter the respondents herein filed three public interest litigations which clearly fails the test of utmost good faith. It needs to be recollected from the sequence of events and the historical background related herein before that the Jal Mahal Tourism Infrastructure Project was conceived and approval was given by the Standing Committee on Infrastructure Development (for short 'SCID') for the first time in its third meeting held on 21.12.1999. Resolution had been filed in which it was stated that at that point of time Jaipur Municipal Corporation must own the project. Hence bids were initially invited in the year 2000-01 without identification of the land to be used and without studies with regard to Environment Impact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment of Tourism/Recreational components at the lake precincts. 106. Thereafter, in the meeting of BIDI held on 9.08.2003, it was decided that nodal agency for the Jal Mahal Tourism Project will be Tourism Department of Government of Rajasthan instead of JDA. Thereafter, the tourism department assigned the responsibility to the Rajasthan Tourism Development Corporation (for short 'RTDC') vide order dated 6.9.2003. The last date for submission of deed was 5.9.2003. The petitioner on the other hand and also the Attorney General clarified that the need to issue office memorandum dated 24.5.2011 was felt because OM dated 28.4.2011 in broad terms provided that category B projects that fell within 10 KM of notified critically polluted areas would be treated as category A and general condition would be applicable to such projects. MoEF in order to clarify OM dated 28.4.2011 issued OM dated 24.5.2011 that expressly provided that the projects falling under Items 8 (a) and/or 8 (b) do not attract general condition. 107. On an analysis of the aforesaid aspects, it is clear that the project that was conceived, deliberated and given effect to emerged from the status of the land adjoining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further revenue entries classifying 14.15 acres of land recorded as barren land/banjar also should be accepted, adopting the view taken in the matter of Okhla Bird Sanctuary case (Supra) that revenue entries are fit to be relied upon in order to determine the nature and character of the land. 111. However, we are of the view that in order to avoid this controversy in regard to these two chunks of lands as to whether the same form parts of the lakebed or not, it would be just and appropriate to slash this part of the land from the lease hold area as per clause 18.4 of the lease deed itself implying that these two areas shall not form part of the lease hold area so as to be given out on lease to the petitioner/appellant. In view of this 13 bigas and 17 biswas of land equivalent to 8.65 acres which has been classified as 'gairmumkin talab'/ bearing khasra no. 67/317 shall not be treated as a part of the lease hold area and the same shall be within the control and domain of the Government of Rajasthan which will be free to reconvert this area into the lake area. 112. In so far as 14.15 acres of land recorded as barren land/banjar is concerned, we are pleased to hold that this area s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government due to which it had full administrative discretion to take a decision in regard to development of the land and it is not that it was done in a huff or hurry without deliberation or study. In fact the Project Development Corporation (PDCOR) got the detailed project report prepared way back in 2001 and thereafter in 2003, steps for inviting tender were taken by the PIL petitioners. If at all the bonafide of the respondent/PIL petitioners were clear, they ought to have assailed the invitation of tender which finally got executed only in the year 2005. 115. Thus, from the year 2001 when detailed project report was prepared, decision to award tender was taken, 'Expression of Interest' invitation of tender and bid was invited and accepted, the PIL petitioners never ever challenged these activities on the part of the State which was approved, accepted and continued by the successive Governments which were ruling in the State of Rajasthan. Thus, the submission of the counsel for the appellant that the PIL lacks bonafide and good faith cannot be brushed aside totally although the same has neither been a reason with the High Court nor with us to reject the petition as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gross or abusive may be an administrative action or a decision which is writ large on a particular activity at the instance of the State or any other authority connected with it, the Court should remain a passive, inactive and a silent spectator. What is sought to be emphasized is that there has to be a boundary line or the proverbial 'laxman rekha' while examining the correctness of an administrative decision taken by the State or a Central Authority after due deliberation and diligence which do not reflect arbitrariness or illegality in its decision and execution. If such equilibrium in the matter of governance gets disturbed, development is bound to be slowed down and disturbed specially in an age of economic liberalization wherein global players are also involved as per policy decision. 118. In a matter of the instant nature, where the policy decision was taken way back from 1976 followed by Master Plans to develop a particular chunk of land by adopting the mode of private/public partnership method and a global tender was floated, obviously the private players were bound to participate specially in an age when private partnership is not an anathema. In that view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are cases." The learned Chief Justice further observed as follows: "I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a5000 page record addressing the intricacies of public utility operation. It is not the function of a judge to act as a super board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinized by the non-expert judge. It was suggested that the alternative for the court is to desist itself from interference on technical matters, where all the advantages of expertise lie with the agencies. If the court were to review fully the decision of an expert body such as State Board of Medical Examiners, 'it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia'." 120. Bearing the aforesaid aspects in mind, we are prone to infer that the disputed area of the lease deed borne out from the revenue record is clearly confined to14.15 acres plus 8.65 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to what would be the adequate period of lease to be granted in favour of the existing or a new lessee obviously would be determined by the State Government at the relevant time but in so far as the instant lease deed is concerned, the existing period of 99 years shall stand decreased to 30 years to be counted from the date of judgment and order of this Court. 124. Thus the lease deed although was executed for a period of 99 years shall pursuant to this decision, run for a period of 30 years which shall commence from the date of this judgment and order and may be extended by the State Government for such other period as may be considered legally viable based on the rules and regulations at the relevant period. We further add in the interest of justice, that after expiry of 30 years of lease period and in case the lease deed is not renewed in favour of the appellant, the State Government shall compensate the appellants at the market value of the project including compensation for the loss of business and profit. It is clarified that in the event of any dispute arising with respect to quantum of compensation, it may be resolved by availing the remedy of arbitration mechanism provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue record as also the fact that it was available for development way back from 1982 which gets established from the various Master Plans of Jaipur and the historical background referred to hereinbefore, no dispute relating to application of the Wetland Rules 2010 shall be allowed to be raised hereinafter with retrospective effect in regard to the lease hold area of the land which has been granted for development of the project and could not be proved to be wetland barring 22.80 acres equivalent to 35 bighas and 17 biswas. It is further clear by now that the project comprising the lease hold land is not in conflict with the development of lake area or Jal Mahal monument so as to raise issues or concern regarding the lake area or environment degradation as restoration and maintenance of Jal Mahal cannot possibly disturb the monument or lead to environmental degradation. In any view, the dispute being confined to the lease hold area for development of the project which we have now resolved, we direct that the appellant/lessee shall be entitled to re-start the project forthwith subject to what we have recorded hereinbefore. 128. The judgment and order of the High Court thus stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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