Supreme Court of India
JAL MAHAL RESORTS P. LTD.versusK.P. SHARMA & ORS.
- Citation
- 2014 INSC 342
- Decided
- 25 April 2014
- Disposal
- Case Partly allowed
- Bench
- GYAN SUDHA MISRA
Holding
The lease is valid except for the 8.65 acres of lake‑bed to be returned, 14.15 acres to be kept as a construction‑free public promenade, and the lease term is reduced to 30 years from the date of judgment, with compensation if not renewed.
Summary
The Supreme Court examined the validity of a 100‑acre lease granted by the Rajasthan government to Jal Mahal Resorts for 99 years to develop the Mansagar Lake precinct. It held that the lease was not obtained through mala‑fide conduct, that only 8.65 acres classified as lake‑bed must be returned to the government and 14.15 acres is a construction‑free public promenade, while the remaining land can be used by the lessee. The Court found that the lease term of 99 years violated the applicable lease‑rules and reduced it to the maximum permissible 30 years, to be counted from the date of judgment, with compensation payable if not renewed. The Court also ruled that the public‑interest litigations were filed with delay, lacked utmost good faith, and could not overturn the expert‑driven administrative decision. Consequently, the High Court’s order cancelling the lease was set aside in part.
Issues considered
- The legality of granting a 99‑year lease for 100 acres under the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 and the Jaipur Development Authority Act, 1982
- Whether the leased land includes lake‑bed or wetland area subject to the public‑trust doctrine and Wetland (Conservation and Management) Rules, 2010
- Whether the public‑interest litigations were filed bona‑fide and within the limitation period
- Whether the State’s tendering and award process was mala‑fide or arbitrary
- Whether environmental clearance under the Environment Protection Act, 1986 and EIA 2006 was required for the project
- Whether the lease term must be reduced to 30 years and the quantum of compensation for the lessee
Legislation cited
Subjects
public interest litigationleasewetlandenvironmental clearancejudicial reviewseparation of powerspublic trust doctrineRajasthanMansagar LakeJal Mahallease termcompensation
Judgment
• [2014] 11 S.C.R. 765
JAL MAHAL RESORTS P. LTD. A
v.
K.P. SHARMA & ORS.
(Civil Appeal No. 4912 of 2014 ETC.)
APRIL 25, 2014 B
[GYAN SUDHA MISRA AND
PINAKI CHANDRA GHOSE, JJ.]
Public Interest Litigation - Grant of lease of 100 acres of
land for 99 years - By State Government- To private party C
- Around Mansagar Lake in Jaipur - For restoration and
conservation of the lake into an attractive tourist destination
- Grant of lease challenged in PIL in High Court - Petitions
allowed - On appeal, held: The public interest litigations
clearly fail the test of utmost good faith - Sufficient economic D
diligence were used before issuing the Request for Proposal
and subsequently accepting appellant's highest financial bid
- There was no ma/a fide in the decision making process -
Entire 100 acres was not part of the /akebed - As per revenue
entries only 8.65 acres land is classified as 'gairmumkin ta/ab' E
(fakebed) and the balance land that is 100 acres less 8.65
acres is recorded as 'Banjar' - Therefore area of 8. 65 acres
shall stand re-transferred to the Government - Area of 14. 15
acres although shall be notionally treated as part of the lease
deed, it shall be treated as a construction-free zone - F
Remaining portion of the land, forming part of the lease-deed
shall remain intact to be used by the lease-holder as per the
terms and conditions of the lease-deed already executed -
However, grant of lease for 99 years is not permissible under
Rules - The maximum period for the lease-deed as per the G
Rules could not have been more than 30 years - Therefore,
the period of lease reduced to a period of 30 years which
should ordinarily start from the date of its execution - But in
view of the fact that much time has lapsed after execution of
765 H
A
766 SUPREME COURT REPORTS [2014] 11 S.C.R.
the lease deed in 2005 due to delay on account of the
•
litigation, period of 30 years shall be counted from the date
of the instant judgment - After expiry of 30 years of lease
period and in case the lease deed is not renewed in favour
of th~ present /ease-holder, the State to compensate them at
B the market value of the project including compensation for the
loss of business and profit - Jaipur Development Authority
Act 1982 - Rajasthan Improvement Trust (Disposal of Urban
Land) Rules, 1974 - r. 18
JudicifJ/ review - scope of - Held: The power of judicial
C review of the executive and legislative action must be kept
within the bounds of constitutional scheme, in consonance
with the principle of separation of powers - Interference with
the decisions of the State Authorities which are based on the
opinion of the experts, technocrats, and the State
D administrators would lead to a friction among the three organs
of the State and would affect the principle of separation of
powers.
Partly allowing the appeals, the Court
E HELD: 1. The power of judicial review of the
executive and legislative action must be kept within the
bounds of constitutional scheme so that there may not
be any occasion to entertain misgivings about the role
of judiciary in out-stepping its limit by unwarranted
F judicial activism. The democratic, set-up to which polity
is so deeply committed cannot function properly unless
each of three organs appreciate the need for mutual
respect and supremacy in their respective fields.
However, it does not mean that howsoever gross or
G 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. There has to be a boundary line while
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
examining the correctness of an administrative decision
767
A
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 B
disturbed spt<cially in an age of economic liberalization
wherein global players are also- involved as per policy
decision. [Paras 116 and 117] [847-F-H; 848-A-C]
2. Although the Courts are expected very often to
enter into the technical and administrative aspects of the C
matter, it has its own limitations and in consonance with
the theory and principle of separation of powers, reliance
at least to some extent to the decisions of the State
Authorities specially if it is based on the opinion of the
experts reflected from the project report prepared by the D
technocrats, accepted by the entire hierarchy of the State
administration, acknowledged, accepted and approved by
one Government after the other will have to be given due
credence and weightage. In spite of this, if the Court
chooses to overrule the correctness of such administrative E
decision and merits of the view of the entire body including
the administrative, technical and financial experts by taking
note of hair splitting submissions at the instance of a PIL
petitioner without any evidence in support thereof, the PIL
petitioners shall have to be put to strict proof and cannot F
be allowed to function as an extraordinary and extra
judicial ombudsmen questioning the entire exercise
undertaken by an extensive body which include
administrators, technocrats and financial experts. This
might lead to a friction if not collision among the three G
organs of the State and would affect the principle of
governance ingrained in the theory of separation of
powers. [Para 116] [847-A-E]
MP. Oil Extraction v. State of M.P. 1997 (1) Suppl. SCR
671 = 1997 (7) SCC 592 -relied on H
A
768 SUPREME COURT REPORTS [2014] 11 S.C.R.
3. Unless the Detailed Project Report, Master Plan of
•
Jaipur, Revenue Record indicating the nature of land that
the project was fraught with risk of environmental
degradation which could establish with facts & figures
that the decision is not in public interest, interference by
B the ·Court adopting an over all view smelling foul play at
every level of administration is bound to make the
governance an impossibility. Therefore, the courts
although would be justified in questioning a particular
decision if illegality or arbitrariness is writ large on a
c particular venture, excessive probe or restraint on the
activity of a State is bound to derail execution of an
administrative decision even though the same' might be
in pursuance of a policy decision supported by other
cogent materials like survey and ·search by the reliable
Expert Agency of a State after which the State Project or
0
private and public partnership project is sought to be
given effect to. [Para 118] [849-A-C]
4. On perusarof the background and other materials
on record, it could be noticed that the genesis of
E restoration and conservation of Mansagar Lake goes
back to 1984 whereby the efforts of the State have been
directed towards restoring and developing the largest
water body in Jaipur into an attractive public interest
destination for attracting tourists from all over the world.
F The lease rent model 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 appellant
lease-holder, who came in to the picture for the first time
G only in year 2003. Sufficient economic diligence were
used before issuing the Request for Proposal and
subsequently accepting appellant's highest financial bid.
Thus, there was no ma/a fide in the decision making
process. The public interest litigations clearly fail the test
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA 769
of utmost good faith. [Paras 100, 101, 104, 105] [836-H; A
837-A; 839-C-D; 840-G-H; 841-C]
5. The plea that 100 acres land lease to the petitioner
was part of the lakebed, does not get supported from the
revenue entries placed on record or any other material 8
which makes it clear and establishes that only 13 bighas
17 biswas is classified as 'gairmumkin ta/ab' (lakebed)
which would be approximately 8.65 acres. However, the
balance land that is 100 acres less 8.65 acres is in fact
recorded as 'Banjar' in the revenue record and not
lakebed. In order to avoid the controversy, it would be C
just and appropriate to slash 8.65 acres land which has
been classified as 'gairmumkin ta/ab' from 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. In so far as 14.15 D
acres of land recorded as barren land/banjar is
concerned, this area shall be treated as a construction
free zone and neither party i.e. the State of Rajasthan nor
the lessee/appellant herein shall be permitted to raise any
construction thereon. this area shall be used as a public E
promenade (walk way) for the use of the public. In so far
as the balance area of land pertaining to the lease deed
is concerned, the respondents/PIL petitioners have not
been able to lead any iota of evidence or material to prove
that this area was at all or at any point of time lakebed or F
wetland. [Paras 109, 111, 112, 113) [843-F-H; 844-F-H; 845-
A-D]
re: Construction of Park at NO/DA Near Okhla Bird
Sanctuary Anand Arya & Anr. vs U.0.1. & ors. 2010 (15) G
=
SCR 783 2011 (1) SCC 744 - relied on
6. The area of 8.65 acres shall stand re-transferred to
the Government of Rajasthan which shall be recarved
and added to the lake area and the same shall be
H
770 SUPREME COURT REPORTS [2014] 11 S~C.R. •
A maintained by the competent authorities of the State.
However, the area of 14.15 acres although shall be
notionally treated as part of the lease deed, it shall be
treated as a construction free zone. Remaining portion
of the land forming part of the' lease deed shall remiiin
B intact to be used by the appellant as per the terms and
conditions of the lease deed already executed. However,
it is clarified that Mansagar Lake Restoration Project if
undertaken by the State or the Ministry of Environment,
the same shall not get affected by virtue of the lease deed
c in any manner. [Para 126] [852-D-G]
7. Since the land which is a part of the lease hold area
barring 2 chunks viz. 8.65 and 14.15 acres of land, the
Wetland Rules of 2010 shall not apply to the project since
environment clearance had already been issued under
D PIA 2006 prior to commencement of the project. 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
E project and could not be proved to be wetland barring
22.80 acres. [Para 127] [852-H; 853-A, C]
8. The period of the lease deed had been finally fixed
as 99 years which could not have been done by the State
F Government as that clearly converts the lease deed into
a perpetual lease. When the tender was floated for
granting the lease deed, the maximum period for the lease
deed as per the Rule could not have been more than 30
years yet the tender was floated for a period of 60 years
G which was later extended to 99 years. This is contrary to
the rules. Therefore, the period of lease shall stand
reduced to a period of 30 years only which could be the
maximum period of the lease for the land under the rules
which should start ordinarily from the date of its
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
execution so as to expire on or before the period of 30
771
A
years. But in view of the fact that much time has lapsed
after execution of the lease deed in 2005 due to which
· only Phase-I of the project could start after which it got
stuck and the project is in a state of limbo due to delay
on account of the litigation started at the behest of the B
respondent/PIL petitioners who questioned the validity of
the lease deed executed and finally succeeded in getting
it set aside. Therefore, the lease deed which could not be
made effective in view of the intervening litigation due to
which the Project got delayed, it is legally just and c
appropriate to direct that' the period of 30 years of the
lease shall now be counted from the date of this judgment
and order. [Paras 121 and 122] [850-D-H; 851-A-B]
9. The lease may be extended by the State
Government for such o.ther period as may be considered D
legally viable based on the rules and regulations at the
relevant period. 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 E
compensation for the loss of business and profit. [Para
124) [851-F-G]
BSN Joshi & Sons vs. Nair Coal Services Ltd. & Ors.
=
2006 (8) Suppl. SCR 11 (2006) 11 SCC 548; Poddar Steel F
Corporation vs. Ganesh Engineering Works & Ors. 1991 (2)
=
SCR 696 (1991) 3 SCC 273; Natural Resources Allocation
(2012) 10 SCC 1; Sachidanand Pandey vs. State of West
Bengal (1987) 2 SCC 295; M.P. Oil Extraction vs. State of
M.P. (1997) 7 SCC 592; Kasturi Lal Lakshmi Reddy v. State G
of Jammu Kashmir (1980 4 SCC 1 - referred to.
R.D. Shetty vs. Airports Authority of India 1979
=
(3) SCR 1014 1979 (3) SCC 489; State of M.P. vs. Nandlal
Jaiswal 1987 (1) SCR 1= 1986 (4) sec 566; Century
H
A
772 SUPREME COURT REPORTS [2014] 11 S.C.R.
Spinning and Manufacturer Company Limited vs. Nagar
•
Municipal Corporation 1970 (2) SCR 854 =1970 (1) SCC
582; Tata Cellular Vs. Union of India, 2010 (15) SCR 783 =
1994 (6) SCC 680; A.K. Roy vs. Union of India 1982 (2) SCR
272 = 1982 (1) SCC 271 ; Union of India vs. Shree Gajanan
B Maharaj Sansthan 2002 (3) SCR 600 = 2002 (5) SCC 44 -
cited.
Case Law Reference:
1979 (3) SCR 1014 cited para 48
c 1987 (1) SCR 1 cited para 48
1970 (2) SC.R 854 cited para 51
1994 (6) sec 680 cited para 59
D 1994 (6) sec 680 cited para 59
1982 (2) SCR 272 cited para 75
2002 (3) SCR 600 cited para 75
2006 (8) Suppl. SCR 11 referred to para 98
E
1991 (2) SCR 696 referred to para 98
(2012) 10 sec 1 referred to para 102
(1987) 2 sec 295 referred to para 102
F
(1997) 1 sec 592 referred to para 102
(1980 4 sec 1 referred to para 102
2010 (15) SCR 783 relied on para 110
G 1997 (1) Suppl. SCR 671 relied on para 116
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4912 of 2014.
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA 773
From the Judgment and Order dated 17/05/2012 in A
DBCWP No. 6039/2011 of the High Court of Rajasthan at
Jaipur.
WITH
Civil Appeal Nos. 4913 & 4914 of 2014 B
Dr. A. M. Singhvi, Shyam Divan, Kamaldeep Dayal, Ankur
Saigal, Abhinav Agrawal, Arvind Jain, Harsh Kulshrestha, E. C.
Agrawala, Ruchi Kohli for the Appellant.
S. P. Singh, Jaydeep Gupta, P. S. Narsimha, Mohan
c
Prasad Gupta, S. Nagarajan, S. N. Terdal, B. Krishna Prasad,
Aruneshwar Gupta, lrshad Ahmad, K. B. Rohtagi, Mahesh
Kasana, Apama Rohatgi Jain, Avinash Kumar, Mukul Kumar,
Ajay Choudhary, Ankit R. Kothari, Ajay Singh, lshan, Rakesh D
Dahiya, Aditya Jain, Brig. M. L. Khatter for the Respondents.
The Judgment of the Court was delivered by
GYAN SUDHA MISRA, J. 1. Leave granted.
2. These appeals by way of special leave have been E
preferred against the common judgment and final order dated
17.5.2012 passed by the High Court of Judicature for Rajasthan
at Jaipur Bench, Jaipur in three public interest litigation petitions
filed by the petitioners K.P. Sharma, Dharohar Bachao Samiti,
Rajasthan and Heritage Preservation Society respectively F
against the State of Rajasthan and the beneficiary· of the project
who was respondent No.7 in the High Court and is now the
petitioner/appellant in Civil Appeal (arising out of SLP(c)
No.17701/2012. The three petitions were D.B. Civil Writ (PIL)
Petition·No.6039/2011, D.S. Civil Writ (PIL) Petition No.5039/ G
2010 and D.B. Civil Writ (PIL) Petition No.4860 of 2010
whereby the Division E!ench 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/ H
774 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 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
B 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 twodrains which was done
to purify waters of a man made artificial water body and
C 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.
D But after the arguments were finally advanced by the learned
Attorney General and the same also stood concluded,.
permission of this Court was sought by the senior counsel Sri
Jaydeep Gupta to withdraw these special leave petitions filed
by the State of Rajasthan which were permitted by this Court
E vide order dated 05.02.2014. The petitions preferred by the
State of Rajasthan assailing the impugned judgment and order
thus stand dismissed as withdrawn. However, Sri Gupta
submitted that he can still address the Court on merit in the
connected special leave petitions bearing SLP (Civil)
F Nos.17701 of 2012, 19239/2012 and 19240/2012 preferred by
the petitioner/appellant Jal Mahal Resorts Pvt. Ltd. & Ors.
against the PIL petitioners before the High Court since the State
of Rajasthan is still a party· respondent in these matters and
hence it can support or oppose the impugned judgment of the
G High Court in spite of withdrawal of the special leave petition
filed by the State assailing the judgment and order of the High
Court. However, at this juncture we refrain from expressing
further on its implication and-would deal with the same, if
necessary, at the appropriate stage .
.H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
775
4. In so far as the appeals preferred by the appellant-Mis. A
Jal Mahal Resorts Private Limited is concerned, we have
noticed that the appeal has been preferred against the
common judgment and order of the High Court under challenge
herein whereby the writ petitions which were filed by the
respondents as public interest litigation bearing DB (CWP) B
No.6039/2011 entitled Prof. K.P. Sharma vs. State of
Rajasthan and Ors as also DB (CWP) PIL No. 5039/2010
entitled Dharohar Bachao Samiti Rajasthan vs. State of
Rajasthan and Ors. as also the 3rd writ petition bearing DB
(CWP) PIL No. 4860/2010 entitled Heritage Preservation c
Society Rajasthan and Anr. vs. State of Rajasthan and Ors.
have been allowed by the Division Bench of the High Court and
resultantly the Mansagar Lake Precincts Lease Agreement
dated 22.11.2005 awarding 100 acres of land on lease for a
period of 99 years to the respondent No.7/the appellant herein/ 0
M/s. Jal Mahal Resorts Private Limited was declared illegal and
void. As a consequence of the same, the appellant Jal Mahal
Resorts Private Limited has been directed to bear costs to be
incurred in restoration of the original position of 100 acres of
land in removing the soil filled in by it and to restore back the E
possession of land to the Rajasthan Tourism Development
Corporation ('RTDC' for short) which in turn will hand over the
land to Jaipur Development Authority ('JOA' 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 F
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 G
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 H
A
776 SUPREME COURT REPORTS [2014] 11 S.C.R.
Government and not to reduce normal water level. All
•
encroachment.s made in the attachment area of the Mansagar
Lake have be.en ordered to be removed immediately and the
control erected by appellant Mis. Jal Mahal Resorts"Private
Limited into the lake is ordered to be dismantled and costs
B have been ordered to be realized from the appellant Mis. Jal
Mahal Resorts Private Limited. All the three writ petitions were
thus disposed of by the High Court.
5. Before we deal with the respective case and counter
case of the contesting parties, it may be relevant and
C appropriate to state the background of the matter giving rise
to these appeals. The writ petitions which ·have been dealt with
by the High Court had been fileq in public interest to quash Jal
Mahal Tourism Project and cancel Mansagar Lake Precincts
Lease Agreement dated 22.11.2005 giving 100 acres of land
D on lease for a period of 99 years to the respondent No.7.
(appellant herein M/s. Jal Mahal Resorts Private Limited and
Jal Mahal Lease and License Agreement dated 22.11.2005).
In Writ Petition No. 6039/2011 which was filed by Prof. K.P.
Sharma prayer had been made to quash approvals and
E clearances contained in the orders dated 16.9.2009 and
22.9.2009 and to direct the respondent No.7/appellant herein
Mis. Jal Mahal Resorts Private Limited to restore the original
position of 100 acres of land by removing the soil filled in by it
at its own costs.
F
6. The appellant M/s. Jal Mahal Resorts Private Limited
has assailed the judgment and order of the High Court on
several grounds to be related hereinafter. But before doing so
it has related the factual and historical background of the matter
G giving rise to these appeals. In this context, it has been stated
that the Mansagar Lake was a man-made lake on the northern
fringe of Jaipur city. Within the lake a pleasure pavilion called
Jal Mahal was constructed by the erstwhile rulers of Jaipur in
the 18th century and this structure is still existing in the midst
of the lake. Tracing out the historical background, it has been
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
777
stated that in 1962, the two main sewerage drains of the walled A
city of Jaipur Nagtalai and Brahmapuri were diverted to empty
into the water body which led to its degeneration, siltation and
se.ttled deposits and contaminations to such an extent that it
could not support aquatic life nor support flora and fauna in the
surrounding areas. The water body was covered with floating B
hycinth and its aquatic life and there were large scale death of
fish that had earlier survived and led to a drastic reduction in
the fauna including the migratory birds that used to flock in the
vicinity of the lake was on the verge of extinction. About 40%
of the catchment area which covered approximately 23.5 c
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
0
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.
E
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 F
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 G
adopt an incentivized approach to restore the Lake and the
Monument and develop the precinct area on a public private
partnership format. To improve the condition of the lake, the
State of Rajasthan, in consultation with experts and after
H
A
778 SUPREME COURT REPORTS [2014] 11 S.C,R.
detailed surveys and analysis, developed a holistic approach .
•
involving three components namely (i) restoration ofMansagar·.
Lake, (ii) restoration of Jal Mahal and (iii) development of
tourism/recreational components at the lake precincts. Thus, the
third component visualized development of the precincts area
B of the lake which comprised of about 100 acres of land towards
the south on a sustainable development model. It was, therefore,
required that the lake and Jal Mahal be restored and the lake
precinct be developed for limited eco friendly tourism facilities
which would also provide funds for 0 & M of the lake on a
c continuous basis. The benefits of this project was that it would
result in the restoration of the Mansagar Lake and the Jal Mahal
monument and there would be consequent development of eco
friendly tourism destinations with large open green spaces in
the vicinity of the lake which would improve the environment and
D resultantly, the aesthetics and visual quality of the area.
9. The Government, therefore, adopted the approach of
public-private partnership to the restoration and development
of the precincts in an environmentally conscious way. For this
purpose, project conceptualization was chalked out and the
E project structure was conceptualized after detailed studies over
a number of years. In the year 1999 a Detailed Feasibility
Report ("DFR") was prepared. The DFR covered architectural
conservation and reuse of Jal Mahal; Ecological Restoration
of the Lake along with Development of surrounding areas for
F integrated tourism development and recreational facilities.
Approval to the DFR was accorded by Jaipur Municipal
Corporation in November 2000.
10. As a consequence of the aforesaid conceptualization,
process for bidding started which has been described as First
G Bid Process by the appellant which started after publication of
the advertisement. Request for Qualification ("RFQ") was
released in December, 2000. 6 firms responded and made
submissions for qualification. In the meantime, Request for
Proposal ("RFP") document was prepared by the Project
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.)
779
Development Corporation Limited (PDCOR) which is a joint A
venture company of Government of Rajasthan and IL&FS and
approvals were given by the Government of Rajasthan. Request
for proposal was released and Board of Infrastructure
Development & Investment (BIOi), a high powered committee
of' the Government headed by the Chief ·Minister with an B
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 c
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 D
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 E
agency, source of funding for O&M along with Detailed Project
Report (DPR) comprising of bankable proposal be submitted.
Hence, On 8th & 9th December, 2001 and thereafter on 26th
& 27th January, 2002, the Project Site was studied by the
representatives of MoEF. F
12. On 22.1.2002, a letter was written by MoEF wanting
break up of estimated costs as also commitment of State
Government to bear 30% of the cost sharing as well as
identifying agency for carrying out O&M. The State Governm~nt G
was also to ensure that no untreated sewage should be
discharged into Mansagar Lake which could be achieved inter
alia by diverting the two nallahs that discharged waste in the
lake.
13. Based on experts recommendation after complete H
780 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A technical surveys and environmental studies of the lake, the
area for the project was identified and recommended by
renowned consultants LASA (Lea Associates South Asia
Private Limited) as being ecologically viable. The DPR itself
mentioned that the ecological restoration of the lake would be
B carried out on the basis of which it can ·be sustainable and
bankable as required by MOEF through a Public Private
Partnership model.
14. On the basis of commitment of State Government to
C meet 30% expenditure on restoration of Mansagar Lake, MoEF,
Government of India, approved the DPR in October, .2001 under ·
the NLCP with 70% amount as grant in aid. MoEF ~lso
conveyed its appreciation on DPR and observed as follows:
"the project document and structure as developed by
D PDCOR Limited has served as a benchmark for
developing sustainable Lake restoration projects on a
Public Private Partnership (PPP) model. You will be
pleased to know that we are recommending a similar
approach to other states for Lake Conservation projects".
E
15. This gave rise to the new bidding process which may
be termed as 'Second Bid Process' for which decision was
taken in its 9th meeting held on 10.1.2002, approved further
fiscal concessions necessary for the project and approved a
fresh round of bidding. The nodal agency for the project was
F changed to Jaipur Development Authority ("JOA") from earlier
agency, Jaipur Municipal Corporation. The bid documents were
duly approved and an advertisement inviting Expression of
Interest ("Eol") was issued for selection of Private Sector
Developer ("PSD") in April, 2003 after the key commercial
G terms of the project and even the draft of the advertisement was
approved by JOA. The Empowered Committee of Infrastructure
Development ("ECID"), a high powered committee headed by
Chief Secretary, formerly known as SCIO, directed Secretary,
UDH to finalize key commercial terms for selection of PSD.
H During the first round of bidding the proposed lease was 60
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
781
years in the aggregate. As that period was considered unviable, A
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 B
issued to interested private parties which was approved by JOA
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 C
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 D
("RTDC") was made the nodal agency for the project. Four
competitive bids including from the Petitioner were received
which were evaluated and PDCOR submitted its report to
Government of Rajasthan for its approval. The Technical
Evaluation Committee constituted for evaluation of bids E
comprised of eminent experts like Padamashree Dr. B.V.
Doshi, Architect, Mr. Mohd. Shaheer, Landscape Architect and
Mr. Hemant Murdia, Chief Town Planner, Government of
Rajasthan.
F
17. The petitioner/appellant got the highest marks in
technical evaluation of its bid and when financial bids were
opened the Petitioner's bid was found to be the highest.
Consequently, ECID in its meeting held on 9.2.2004 headed
under the Chairmanship of Chief Secretary decided to grant
the project to the Petitioner. The letter of intent was issued to G
the Petitioner on 30.9.2004. On 22.11.2005 after approval from
the Government of Rajasthan the Lease in respect of the project
·1and and the Liel:lnse for restoration and reuse of Jal Mahal
were executed.
H
782 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A 18. In terms of the project an area of 100 acres of land
towards the south of Mansagar Lake was to be leased out for
a period of 99 years for development of eco-friendly tourism
components as set out in the RFP. The entire development, at
the end of 99 years, was to be transferred back to the State
B Government without any compensation payable to the Private
Sector Developer. In terms of the RFP, it was optional for the
Private Sector Developer to undertake the restoration and
reuse of the Jal Mahal Monument. The Petitioner while making
the bid also exercised the option for restoration and reuse of
c the Jalmahal monument. The Petitioner in terms of the license
agreement set out to restore the monument. The RFP
estimated the cost of restoration of Jal Mahal at approximately
Rs.1.50 crores. In reality the cost of restoration of Jal Mahal
worked out to Rs.10 crores. The State Government had also
D constituted an Empowered Committee to oversee the time
bound restoration of Mansagar Lake and Jal Mahal Monument.
19. The Petitioner's/appellant's in pursuance to the lease
appointed consultants who did extensive research plan which
was got approved from the Empowered Committee. Ultimately
E the monument was fully restored under the supervision of
Empowered Committee upon advice of renowned conservation
architect Dr. Kulbhusan Jain and other consultants.
20. The Petitioner/appellant, who had been given the lease
F of 100 acres of land on the southern shore of Mansagar Lake,
after obtaining all necessary approvals, had completed Phase-
1 of the Project. But the project suffered a grave set back and
knee jerk obstruction as by this time i.e. in the year 2010 public
interest petitions were filed in the High Court although the
G petitioner had already started executing the project and had
"'!ready 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
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
783
be undertaken by the State Government. The O&M work was A
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 B
resource crunch was not in a position to spend any further
amount. Resultantly, the restoration of the lake, which was the
cornerstone of the project, was in danger. The Petitioner spent
over Rs.15 crores on restoration of the lake with the approval
of the Empowered Committee. c
21. As a measure of restoration and development of the
project, the entire project implementation had to be done so
as to achieve sustainable eco preservation and development.
The Petitioner, therefore, acted under the advise and on the
recommendation of experts. These activities were further D
monitored by the Government of Rajasthan and its agencies.
The petitioner/appellant stated that for the purpose of
restoration, the Petitioner engaged a number of nationally and
internationally renowned consultants including Mr. Soli J.
Arceivala, Ex. Director of NEER!, Dr. Shyam R. Asolekar from E
llT Mumbai, Dr. G.C. Mishra from llT Roorkee, Mr. Jal R.
Kapadia Environment Consultant, Mumbai and Mr. Herald
Craft, renowned lake expert from Germany. Some of these
experts had also worked for restoration of the Hussain Sagar
Lake in Hyderabad. The State Government had also constituted F
an Empowered Committee to oversee the time bound
restoration of Lake. The work involved realignment of the
Nagtalai and Brahmpuri drains so that domestic sewage and
waste including run-off and detritus during the monsoons no
longer emptied into the cleansed waters as also desilting of the G
water body which were essential components of DPR as
approved by MoEF under NLCP. In order to ensure that the
ongoing discharge of drainage did not once again pollute the
water, Mr. Herald Craft the German Lake Conservation expert
prepared a report which suggested preparing temporary H
784 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A sedimentation/settling tanks near the mouth I discharge point
of the re-aligned drains. The purpose of constructing of
sedimentation tank was to trap the silt and organic content of
the storm water so that the quality of water in the whole of water
body is not adversely affected. The sedimentation process
B were also reviewed by a team of experts from MoEF Which
found the system as a viable and proper solution: It has been
further brought to the notice of this Court that the project fell
within item 8(a) of Environmental notification dated 14.09.2006
and was also confirmed by MoEF in its Affidavit in Reply filed
c to the. writ petition and a detailed Environmental Impact
Assessment ("EIA") was carried out by State Level Environment
Impact Assessment Authority ("SEIAA") constituted by MoEF.
It is, therefore, stated that all requisite environmental approvals
were obtained.
D 22. The project thereafter was started and the land leased
to the Petitioner, according to the appellant, was not a part of
the water body in the first Master Plan 1971-1991 for Jaipur
and an area of 200 acres around the south side of Jal Mahal
was demarcated and reserved for tourist facilities. The land
E 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.
F 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
G 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
H the PIL petitioners befqre the High Court, averred that the PIL
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
785
petitioner Prof. K.P. Sharma is involved in the research with A
regard to Man Sagar Lake and has published a paper which
was read out in the 12th World Lake Forests TAAL 2007. It was
·submitted by learned counsel Mr. Aruneshwar Gupta on behalf
of the PIL petitioner/one of the three contesting respondents
herein that the Man Sagar Lake and the management · B
thereunder were declared protected monuments but were
deleted from the list of protected monuments in the year 1971.
The contesting respondents have also related the history of the
lake glory and have recorded that Man Sagar Lake is a large
lake on the northern fringe of Jaipur city and the glory of the c
lake as a pristine water body lasted until the former rulers had
their control over the city and unpleasant history of lake began
when new administration of Jaipur diverted walled city sewage
in 1962 through two main waste water drains namely
Brahmapuri and Nagtalai. The most notorious aquatic weed
0
water hyacinth {Eichhornia crassipes) entered into lake in 1975.
The petitioner/contesting respondent herein stated that during
the studies made by the contesting respondent and his
colleagues, 10 zooplankton Species, arthropods, fishes and 92
species of birds were observed at Mansagar Lake and out of
92, 41 are aquatic and 51 were forest dwellers. The water fowl E
population included 16 resident and 25 migratory species. It
is in this context that it was submitted that the Man Sagar Lake
and the monument therein were declared protected monuments
but they were deleted from the list of protected monument in
the year 1971. F
25. It was further averred by the PIL petitioner in the High
Court/contesting respondent herein that the Ministry of
Environment and Forests {for short 'MoEF' }, Government of
India prepared National Lake Conservation Plan {for short G
'NLCP') for restoration, conservation and maintenance of urban
lakes. The Government of Rajasthan submitted project for
restoration of Man Sagar Lake to the Central Government. The
total cost of the project was estimated to be Rs.24. 72 crores,
out of which 70% was to be provided by the Government of India H
786 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A while rest was to be borne by the State Government. The
administrative approval and expenditure was granted by the
MoEF vide order dated 5.9.2002 and the order was revised
by the MoEF vide dated 23.12.2002. The JOA implemented
the lake restoration· plan under which Sewage Treatment Plant
B (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 JOA. The JOA has also
c invested in development oflake 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
0
lndica), Blue bull (Boselalphus tragocamelus), Sambhara
(Cervus unicolor), Common Mangoose (Herpestes edwardsii),
Jackals (Canis aureus), Striped Hyaena (Hyaena hyciena) and
panther (Panthera leo). The JOA has also funded Rs. 10 million
to the State Forest Department for improving lake catchments
E area falling in the Nagargarh hill area (Arawali Range) which
is the only natural watershed. The lake is surrounded almost
from three sides by Arawali Hill Ranges. The hills are either part
of Nahargarh Wildlife Sanctuary or Reserved Forest Ranges
known as Amer Block 54 and Amargarh Block 92. The
F petitioner/respondent herein and his team was working in
executing a JOA sponsored project on bank stabilization of the
lake since May, 2005. 35 species of tree and 28 varieties of
shrubs were planted. Besides improving landscape, the plant
species provide shelter and food to the local fauna and
G migratory birds may also be benefited. Similar plantation was
also done on three islands.
26. The PIL petitioner/respondent herein had further
averred that Jal Mahal Tourism Infrastructure Project was
H conceived and approval was given by the Standing Committee
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
787
on Infrastructure Development (for short 'SCIO') in its 3rd A
meeting held on 21.12.1999. Resolution has also been filed in
which it was stated that Jaipur Municipal Corporation must own
the project. The bids were invited in the year 2001-01 without
identification of the land to be used and without studies with
regard to environment impact assessment. The bid process B
was scrapped and JDA was made sponsoring department for
the lake side development component in the meeting of Board
of Infrastructure Development and Investment Promotion (for
short 'the BIDI') held on 23.8.2002 and 3.9.2002.
27. It was contended on behalf of the petitioner that MoEF
c
granted administrative approval and expenditure sanctioned
only for the lake restoration components and there was
absolutely no consideration by the MoEF to the lake side
development component of the so-called Jal Mahal Tourism
Project. It was submitted that as a matter of fact the National D
Lake Conservation Plan did not contemplate any such
commercial venture upon the lakes to be restored under the plan
which according to the PDCOR contemplated the following
three components as already referred to hereinbefore but for
facility of reference it may be reiterated that three components E
were as follows:-
(1) Restoration of Mansagar Lake;
(2) Restoration and re-use of Jal Mahal Monument;
F
(3) Development of Tourism/Recreational components
at the lake precincts.
28. It was further submitted by the petitioner/contesting
respondent herein that in the meeting of BIDI held on 5.8.2003, G
it was decided that nodal agency for the Jal Mahal Tourism
Project will be Tourism Department of Government of Rajasthan
instead of JDA. Thereafter, the tourism department assigned
the responsibility to the Rajasthan. Tourism Development
Corporation (for short 'RTDC') vide order dated 6.9.2003. It H
A
788 SUPREME COURT REPORTS [2014] 11 S.C.R.
has been submitted that although biding was started, no suivey
•
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
B the bid was·S.9.2003 and it was necessary under the.terms of
the bid that only private limited company or public iimited
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
'c 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 I
D 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.
E 30. The contesting respondent No.7 who was the PIL
petitioner has further stated that during the bidding it was made
clear that no commercial activity would be permitted within the
precincts of Jal Mahal Complex, but even before agreements
were executed, the successful bidder not only sought exemption
F from commercial activity within the precincts of Jal Mahal
Complex but also sought revision of the project proposal and
for maintenance of lake, water level at the cost of the
Government vide letter dated 13.7.2004. The contesting
respondent/PIL petitioner had also submitted that out of 100
G acres of land, 14.15 acres of land was submerged in water
which has also been leased out.
31. Mr. Aruneshwar Gupta on behalf of the PIL petitioner/
contesting respondent No.7 further averred that Master Plan of
Jaipur 2011 did not permit such activities at the site. It was also
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
789
stated that 100 acres of land was part of the lake bed itself, A
out of which 14.15 acres of land was submerged in the water.
The area was sensitive for eco system and thus environment
impact assessment was required to be carried out before any
such project was prepared but the same was not done. It was
still further stated that 100 acres of land beyond· the spread of 8
lakebed was not available on the site and it was further
submitted that wall of sufficient height has been constructed for
setting apart the proposed 100 acres of land from the lakebed
and the soil from the lake bed itself was actually used for th is
purpose. It was alleged by the PIL petitioner that the ,appellant C
herein Jal Mahal Resorts Private Limited started constructing
high walls of mud and soil in the eastern part of the lake bed
near sluice gates and a large area around it for the purpose of
preparing sedimentation tanks ·in the lake bed itself. The project
people visit land most frequently disturbing birds on the island
and the connection of island with mainland has also led to entry 0
of dogs on the island which feed on the eggs of birds and thus,
basic objective of island to provide habit/breeding ground for
resident and migratory birds is forfeited.
32. It was further contended by the petitioner before the E
High Court that one third of the lake was converted into a series
of sedimentation tanks made in the down stream of the lake
by respondent No.7 and now all dirt with floating objects enter
into sedimentation tanks made in the lake bed. Thus, the entire
lake has been converted into a series of small tanks followed F
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 G
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
H
A
790 SUPREME COURT REPORTS [2014] 11 S.C.R.
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
8 content"in the Mansagar Lake has been increased and salt in
water has gone high. The sudden increase in the chloride
content of the lake is attributed to direct human interference by
way of altering lake basin character. This increase in salinity
will definitely affect the lake bio diversity and both the native
C and migratory birds and species diversity will significantly be
dropped. The PIL petitioner further submitted that the unique
feature of the area is an endemic species, namely, Plum·
Headed Parakeet found in the protected forest in Arawali and
the project would be dangerous to the species. Due to settling/
sedimentation tanks in the lake bed itself, silt/filth which was to
D be avoided after restoration of the lake, is willfully invited and
drained into the lake itself which has increased salinity of the
water also. The PIL petitioner had further submitted before the
High Court that the revision had destroyed the very substratum
of the project which was earlier conceived . The whole project
E after completion was to be put in use by 2010, but the appellant
has not done anything except filling and compacting the 100
acres of land in the lake bed itself by excavating the soil from
the lake basin. Though only 13% of the land was to be used
for construction activities of the private sector developer and
F would be of restricted entry and rest 87% was to remain in the
form of open space, parks, gardens and unrestricted public
entry spaces, but in the name of commercial viability and
loosely drafted clauses of the bid documents and contracts,
complete revision of the plan has been sought by the appellant
G after declaration as successful bidder. It was further submitted
that the cbmmittee under the Chairmanship of the Chief
Secretary of the Government of Rajasthan considered the
Revised Master Plan and rejected the changes on 10.10.2007.
However, another representation was submitted by the
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
appellant herein/respondent No.7 in the High Court and on
791
A
10.9.2009 sanction was granted by the Committee.
33. The PJL petitioner also raised a grievance that
Environment Impact Assessment was not carried out by the
finalization of the project or execution of the lease agreement 8
and even environment clearance from MoEF , Central
Government was not obtained as required under EIA
Notification dated 27.1.1994. The Central Government had
issued a fresh Notification on 14.9.2006 in exercise of power
conferred under Section 3 of the Environment Protection Act, C
1986 (shortly referred to as 'the act of 1986') and rules framed
thereunder for environment clearance before implementation of
the projects mentioned therein. It was further contended that the
project cannot be implemented without obtaining environment
clearance from the Central Government under the aforesaid
notification and no Environment Impact Assessment was D
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 E
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 F
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 G
location being picturesque and ecologically rich. If such land is
sold for commercial purposes for constructing five star hotels,
resorts, luxury villas etc. such land· carries invaluable
importance. According to the PIL petitioner/contesting
respondent herein the value of such land cannot be said to be H
A
792 SUPREME COURT REPORTS [2014] 11 S.C.R.
less than 3,500/- crores. It was, therefore, submitted that the
•
State Government had handed over valuable natural resources
of water surrounded by natural beauty of hills and forests, full
of wildlife and other natural resources maintaining
environmental and ecological balance of the city to a private
B entrepreneur society for economic exploitation at the cost of the
public. The revision of the Master Plan completely converts the
tourism project into privately owned township upon 100 acres
of land which has been let out for a petty sum by the
Government.
c 34. In so far as writ petition no. 5039/2010 Dharohar
Bachao Samiti vs. State of Rajasthan and Ors. and writ petition
No. 4860/2010 Heritage Preservation Society Rajasthan and
Anr. vs. State of Rajasthan & Ors. are concerned, have also
substantially urged the sacrifice of public interest on account
D of the lease granted in favour of the appellant and as such to
establish sacrifice of public interest as per their perspective
which have been related in the· impugned judgment and order.
35. Contesting the PIL petition before the High Court, the
E respondent State of Rajasthan and its functionaries/authorities ·
had submitted that Master Development Plan 1976 to 1991 of
Jaipur city contained provisions of various facilities on south
and west side of Jal Mahal Lake on 200 acres. It was submitted
that the erstwhile Urban Improvement Trust Jaipur had proposed
F a scheme in respect of 520 acres land which was published in
the gazette on 31.7.1975. The Jaipur Development Authority
Act 1982 (for short 'JOA Act 1982') came into force and Urban
Improvement Trust was replaced by the JOA. A notification
under Section 39 of the JOA Act was issued by the JOA on
30.6.1987. However, development of Jal Mahal area could not
G materialize . The JOA then decided to undertake the exercise
for development of integrated tourism infrastructure
development for Jal Mahal and required Project Development
Company of Rajasthan (PDCOR) to prepare project on
commercial format for private public participation. The
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
793
preliminary approval was given by the Standing Committee on A
Infrastructure Development ( for short ' SCIO') in December
1999. It was stated that the bids were noJified in the year 2000
but no entrepreneur came forward in the bidding process and
thus the tender process was scrapped. Thereafter, the JOA was
appointed as nodal agency to undertake the bidding process. B
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 c
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
0
. 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 Mis. KGK Enterprises in the next
phase of evaluation bid. Later on, 14.11.2004, KGK Enterprises
formed private limited company in the name and style of "Jal E
Mahal Resorts Pvt. Limited". The PDCOR !.uggested retention
of KGK Enterprises as its presence will increase
competitiveness. The State Government permitted the
consideration of bid of KGK Enterprises on 17.10.2003 to
enlarge the scope of competitiveness. Thereafter, the technical F
bid, was opened on 21.10.2003 and financial bid was opened
on 3.12.2003. The RTDC recommended the award of project
to the highest bidder namely KGK Enterprises and accordingly
the Commissioner, Tourism vide noting dated 19.2.2004 put the
matter before the State Government for issuing a letter of intent G
and signing the lease agreement in favour of the successful
bidder. This was forwarded by Secretary, Tourism to Minister
lncharge Tourism (Chief Minister), who approved the minutes
of the Empowered Committee on Infrastructure Development
(ECID) and directed to put up the draft lease agreement early. H
A
794 SUPREME COURT REPORTS [2014) 11 S.C.R.
On 9.5.2005 the Collector intimated that 100 acres of land has
•
been mutated in favuor of RTDC. The approval of lease
agreement and license agreement and authorizing of Managing
Director of RTDC to sign the agreement was granted finally by
the Chief Minister on 27.10.2005. On 29.10.2005, the RTDC
B authorized the Managing Director to sign Jal Mahal Lease
Agreement on behalf of Government of Rajasthan with Jal
Mahal Resorts Pvt. Ltd. and accordingly lease agreement was
executed on 22.11.2005. The Central Government , MoEF
recorded its appreciation for the project vide letter dated
c 13.9.2002 and 1.12.2009.
36. It was further contended on behalf of respondent State
that it is incorrect to say that the size of the lake has been
reduced on account of leasing out' 100 acres of land. It was
averred that the action is as per Master Development Plan. The
D State Government has submitted the project to the Central
Government MoEF for restoration of Man Sagar Lake at the
estimated cost of Rs.24.72 crores and the Central Government
agreed to provide 70% of the cost. PDCOR in the project report
prepared in October 2001 included the following facilities:
E
1. Restaurant;
2. Traditional Technological Park
3. Club Resort
F
4. Amusement Park
5. Heritage Village
6. Light and Sound Show land
G
7. Recreational Centre.
It was further stated by the respondent State of Rajasthan before
the High Court that there will be nci damage to the wild life or
reserve forest or birds and it is for the respondent No. 7 Jal
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
795
Mahal Resorts Pvt. Ltd./appellant herein to obtain clearance as A
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 B
2(1) (g) and Section 3. The consent had been given under the
Water Act by the Rajasthan Pollution Control Board on
20.5.201 O. 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 c
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 D
department, land of three villages namely , Vijay .Mahal,
Bansbadanpura and Kasba Amer was included, 178 bighas 9
biswas was in private tenancy, 475 bighas 9 biswas was
sawaichuk (government land ) , 25 bighas 4 biswas was of
PWD,' 133 bighas 15 biswas was of Municipal Council , 19 E
bighas 10 biswas was of forest department. Thus in total 832
bighas 01 biswas was mentioned in the letter dated 7.6.1982
written by UIT to the Deputy Secretary UDH. When JOA was
formed the area of Jal Mahal Project stood transferred to the
JOA by virtue of JOA Act and the JOA vide letter dated F
5.10.1983 requested the Government to acquire land
admeasuring 832 bighas 4 biswas which was in the tenancy
of private persons. The JOA sent a proposal on 25.2.21988 to
the UDH for publication under Section 4 of the Land Acquisition
Act, the report under Section SA was submitted by the Land G
Acquisition Officer to the Government for acquisition of land for
Jal Mahal Reclamation Project ands the same was accepted
and land award was passed on 17.4.1996. It was further
explained that a part of land however falling in the area known
as Karbala measuring 46 bigha was decided not to be H
796 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A acquired. On 31.3.1999 SIDI was formed to take decisions to
accelerate growth of investment and industrial development in
the State of Rajasthan. Thereafter, the di>cisions were taken
details of which have been given in the return. On 10.0.2009,
approval of revised layout plan was granted by the Committee
B chaired by the Chief Secretary. Lease amount had to be
enhanced by 10% every time after a period of 3 years. It was
therefore submitted that JOA having considering the nature of
investment, lease of 99 years was justified. It was also admitted
that out of 100 acres of leased area 13 bighas 17 biswas of
c land is recorded as 'gairmumkin ta/ab' in khasra No.67/317.
38. In so far as the reply of the lessee/respondent No.7 and
8/appellants herein/Jal Mahal Resorts Pvt. Ltd. and KGK
Consortium is concerned, it had submitted in their reply to the
writ petition before the High Court that the State Government
D promoted the concept of private public partnership to save the
burden on the exchequer and the decision had been taken by
the expert body at the highest level which is not amenable to
interference by this Court. MoEF granted approval of 5.9.2002,
on 23.12.2002 administrative approval and expenditure
E sanction was issued by the Government of India for
conservation and management of Mansagar Lake. The bid
submitted by Mis. KGK Enterprises in 2003 was found to be
the highest and hence the then Chief Minister had approved
the decision of giving project to the highest bidder KGK
F 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.
G
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.
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
40. Responding to writ petition No. 4860/2010 which PIL
797
A
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
19.3.201 O mainly for the purpose of approaching this Court in
PIL. It was also urged that Prof. K.P. Sharma in W.P. No. 6039/ B
2011 is not a recognized authority or lake functionaries or
expert in lake management, irrigation, environment protection
and there has been orchestrated campaign through vernacular
newspaper for reasons best known to the correspondent and
the newspaper itself. The said newspaper runs the Janmangal c
Trust on behalf of the Irrigation Department and the said trust
also carries out commercial activities to generate revenue for
upkeep of the dam. It was further added that in 1992 the
newspaper group wanted to utilizes the Jal Mahal Complex and
the land which is part of Jal Mahal Tourism Project for its own D
benefit and commercial use free of cost/at a paltry sum and
having failed to grab the land , hostile campaign had been
started against the project and more than 200 misleading
articles had been published in the newspaper attempting to
hold a media trial in the matter. The appellant herein further E
stated that the PIL petitioner Prof. K.P. Sharma respondent
No.6 in the appeal has not come up with clean hands and
concealed the material facts that on the complaint filed by him
before PIL cell of the Supreme Court, no cognizance was taken
and the file was closed. The writ petitions which were filed were
barred by res judicata inasmuch as writ petition No. 1008/11 F
Ram Prasad Sharma vs. State of Rajasthan was dismissed by
the High Court as withdrawn by order dated 15.2.2011 without
liberty to file a fresh writ petition. It was also submitted that the
interference in contractual matter is not permissible specially
when Jal Mahal Tourism Project is in larger public interest as it G
has to undertake restoration of Mansagar Lake. It was still
further added that there was encroachment of about 50-60
acres of land, decision had been taken by the expert body, bids
were invited by global tender and the appellant having been
found the highest bidder was rightly considered. lease H
798 SUPREME COURT REPORTS (2014] 11 S.C.R.
•
A agreement and leave and license agreement are valid,
possession of the land was rightly handed over to them; nursery
has been set up over this land which has numerous varieties
of plants and they have also introduced several varieties of
aquatic vegetation in the Mansagar Lake to attract migratory
B birds. Beautification of Jaipur-Amer Road divider has also been
taken up and work of phase I has been completed and
allegation of environment damage is baseless as the State
Government after environment impact assessment granted
permission and consent has also been granted by the
C Rajasthan Pollution Control Board in 2009-10, capacity of water
in the lake has not been reduced; sedimentation basin has
been constructed as per expert advice. The appellant further
had stated that they had spent about Rs. 15 crores on lake
restoration which was not their responsibilities under lease
agreement and they have also spent Rs.10 crores on restoration
0
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
E 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
F of legal consultant of JOA 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
G comprising of six private limited companies, one HUF and
partnership firm namely, Mis. KGK Enterprises who was lead
bidder of the KGK Consortium. It was stated that it is mandatory
under the tender document that in case of consortium bid,
successful bidder has to form special purpose vehicle (limited
H company) and lease would be executed with such SPV, in the .
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
799
pre-qualification round the bidder should have satisfied any two A
of the three eligibility criteria for meeting the financial capability
1. Tangible net worth of not less than Rs.100 million
(US $ 2 million) as per the latest audited financial B
c;tatement;
2. Annual turn over than Rs.300 million (US $ 6 million)
as per the latest audited financial statement.
3. Net cash accruals not less than Rs .50 million (US c
$ 1 million) as per the latest audited financial
statement.
Relying on these credentials, it was stated that M/s. KGK
Consortium satisfied the aforesaid technical financial criteria.
0
However, its leads member M/s. KGK Enterprises was a
partnership firm and as the KGK Enterprises met all the
requirements in respect of technical, financial , shareholding
and lock in periods as given in RPF, deviation from the RPF
which mandated that the lead firm must be a public/private
company was permitted and KGK Enterprises was allowed to E
compete so as to ensure adequate competition. Factual details
are further added stating that KGK Enterprises acquired 83
marks while the next highest 82 marks were secured by M/s.
J.M. Projects Pvt. Ltd. and both were considered eligible for
opening of their financial bids, bid of KGK Enterprises being F
highest was accepted. Under the lease agreement , the Jal
Mahal Resorts Pvt. Ltd. has a right of development of 100 acres
of project land and no proprietary right over the management
has been given. License for the restoration of the Jal Mahal
monument does not confer any right on Jal Mahal Resorts Pvt. G
Ltd. except to ferry passengers for a minor charge and it has
not been authorized to use the Jal Mahal monument
commercially and the monument remains within the possession
and use of the State Government. Out of 100 acres of land,
87% area is to be maintained as green area and in PIL terms H
800 SUPREME COURT REPORTS [2014] 11 S.C.R . •
. A and conditions of the contract cannot be questioned after
several years. The appellant further stated that on restoration
of Mansagar Lake Rs. 15 crores have already been invested,
catchment area is not being disturbed in any manner, report of
Prof. K.P. Sharma is merely an opinion based on personal
B interpretation. There was temporary road constructed by the
licensee for easy access for the purpose of restoration of Jal
Mahal monument which is situated otherwise in Mansagar Lake
surrounded by water and the said road has been dismantled
and no material is left to compromise the filling capacity of lake.
c JOA 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
0
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
E 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 fake is with the State
F Government , which will continue to remain so. It has however
been added the responsibility of lake maintenance is purely of
the JOA and Jal Mahal monument has been denotified in 1971
from the protected monuments under the provisions of the Act
of 1961. Changes in the Jal Mahal monument has been brought
G with the consent of the Empowered Committee, these PIL
petitions were clearly devoid of merit and the appellants herein
had a right to start phase II of the project.
42. In so far as the MoEF , Government of India is
H concerned, it has clarified that it has only sanctioned the project
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
for conservation and management of Mansagar Lake in Jaipur
801
A
in December 2002. Thus, the averment made in the petition
that no sanction for Jal Mahal Tourism Project was obtained
from MoEF is not disputed in the return filed by the MoEG. It
was stated that project for conservation and management of
Mansagar Lake in Jaipur was sanctioned as per the mandate s
of the National Lake Conservation Plan. It was further
contended that project for conservation and management of
lake in Jaipur was sanctioned in December 2002 at the cost
of Rs.24.72 crores under the NLCP on 70:30 cost sharing basis
between Government of India and the State Government of c
Rajsthan and the sanctioned order was issued which contained
break up of cost estimated. The different components which
were approved further included realignment of drains , desilting
, insitu bioremediation , sewage treatment plant and wetland
construction, check dams, aforestation, nesting islands etc. It
0
has been accepted by the MoEF that the JOA was the nodal
implementing agency for the project and MoEF Central
Government has released entire share of the Central
Government amounting to Rs.17.30 crores. Other details had
also been recorded on behalf of the MoEF regarding the cost
of upgradation and it was stated that the State Government was E
committed to bear the additional fund towards the development
from its own resource. The State Government had informed that
in addition to the sewerage work under NLCP scheme , other
projects are also being taken up thereby ensuring that all
sewage generated in the lake catchment area is being taken F
care of. The learned Judges of the Division Bench on a scrutiny
of facts and on hearing the counsel for the contesting parties
however were pleased to hold that the PIL was bona fide and
in public interest. R~sultantly, the High Court was pleased to
declare that the Mansagar Lake Precinct Lease Agreement G
dated 22nd November2005 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 H
A
802 SUPREME COURT REPORTS [2014) 11 S.C.R.
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
s 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
C 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
D whereby certain factual aspects and the background may be
traced out from 1962 when admittedly the two sewerage drains
of the walled city of Jaipur Nagtalai and Brahmapuri were
diverted to empty into the water body which led to its
degeneration, siltation and settled deposits and contamination
E to such an extent that it could not support the aquatic life nor
support flora and fauna in the surrounding areas. It is also an
admitted position that the condition of Mansagar Lake and the
Jal Mahal also started substantially deteriorating over a period
of time not only because of natural process of degeneration but
F also because of ill maintenance and monument reduced to
such a dilapidated state that it required massive restoration
work. It is also borne out from the historical background and
the sequence of events re.lated by the contesting parties that
the deteriorating condition of the lake and the monument
compelled the State Government to find ways and means to
G restore the monuments to their original glory. We have noted
from the averments of contesting parties that over a period of
30 years attempts were made by Government agencies and
departments to restore ecological and environment condition
of the lake and its adjoining area but none of the attempts
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
yielded any positive result because of paucity of resources to
803
A
take up and sustain their restoration. The Government of
Rajasthan therefore had taken a decision to adopt an
incentivized approach to restore the lake and monument and
declare the precinct area on a public/private partnership format.
In order to improve the condition of the lake the State of B
Rajasthan in consultation with the experts and after detailed
surveys and analysis adopted an. approach of development
covering three components which are:
1. Restoration of Mansagar Lake;
c
2. Restoration of Jal Mahal and
3. Development of tourism/recreational componer1ts at
the lake precincts.
While restoration of Mansagar Lake was approved as per the D
averment of the MoEF confined to the development of lake
area, restoration of Jal Mahal which lie within the precinct of
the lake, development of lake and the adjoining area to the lake
fell within the domain of the Government of Rajasthan which
related to development of tourism/recreational components at E
the lake precincts.
45. On a scrutiny of the extensive factual details and the
submissions advanced by the contesting parties , we have
noted that the el)tire dispute is essentially confined to the Lease F
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 G
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 H
804 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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
B 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
c on a patently erroneous, illegal and factually incorrect loasis
when it inter alia held as follows:
a. That-the public-trust doctrine has been breached
because land measuring 13 Bighas 7 Biswas
submerged area of lake 1has been leased to the
D petittoner and resultantly lease deed dated
22.11.2005 is void in law.
' '
b. That 14.15 acres equivalent to 22 Bighas and 10
Biswas of land submerged forming part of the
E Lakebed and could not have been leased out.
c. The State Government has leased 25 percent of the'
Lake basin itself to the petitioner/appellant for
preparing 100 acres of land and the lake level has
been reduced to carve out 100 acres of land for the
F lease.
l . ," •·,;
d. The Environment Clearance given by State Level
Environment Impact Assessment Authority (SEIAA)
to the petitioner on 29.04.201 O is void in law. ,;
G e. That the Project is in violation of Rule 4 of the
Wetland Rules of 2010 and the Rams'ar
Convention. Thus, the lease deed is in
contravention of the Wetland Rules and cannot be
given effect to.
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
f.
[GYAN SUDHA MISRA, J.]
That the sedimentation tanks are illegal as they
805
A
· could not be built without clearance from the Ministry
of Environment and Forests.
g. That the No Objection given by the Rajasthan
Pollution Control Board to the petitioner's project is
8
of no avail in the absence of clearance by MOEF
under the Environment Protection Act, 1986.
·~ ~·. ~ h. That the lease has been executed in violation of
Rajasthan Tourism Disposal of Land Rules, 1997
L (RTDC Rules), Rajasthan Municipalities (Disposal C
of Urban Land) Rules 1974, Th.e Rajasthan
Municipality Act, 1959 and the Jaipur Development
Act, 1982 is liable to be cancelled.
.il' i. That the State was bound to give effect to the D
.•' .. . t. essential conditions of eligibility stated in the tender
document and. was not entitled to waive such a
condition. Thus, action of respondent No.2 was not
for bonafide reasons.
47. Learned senior counsel for the appellant Dr. Abhishek E
M. Singhvi at the outset submitted that the writ petitions before
'!he High Court by way of Public Interest Litigation ought to have
: been held barred by delay . latches as also on the ground that
they were not bonafide and filed with ulterior motive. It was
explained that three purported PIL came to be filed by the writ F
petitioners/respondents herein in 2010 and 2011 after expiry
of 5 years from the date of execution of the lease deed and
licence agreement dated 22.11.2005. In this respect, it was
·"submitted giving out the sequence of events that the Detailed
Project Report ('DPR' for short) in regard to the Project was G
..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 H
806 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 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
s 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
c and the petitioner-appellant. It was submitted that all the above
steps were taken in public domain and in fact one of the PIL-
petitioner/respondent herein K.P. Sharma was aware of the
developments as far back as in February 2005 that the project
was to come up. Yet he chose to sit by and do nothing until 2011
and during these intervening 8 years, the State Government and
0
the petitioner/appellant substantially altered their positions by
spending huge sums of money in implementing the Project. It
was therefore submitted that the motive of respondent No.1/PIL
petitioner is questionable because he has sought to disrupt a
Project much after the public money came to be spent even
E though he could have approached the High Court earlier.
48. Learned counsel for the petitioner further submitted that
one of the factors that the Court should look into before
entertaining a PIL is to ensure whether the PIL has been filed
F promptly and in utmost good faith. It ought to further consider
whether by allowing a grossly delayed PIL, the parties who have
acted bonafide would be prejudiced and suffer. In the present
case, the petitioner/appellant has spent gratuitously on the belief
that it had the right to develop 100 acres of land leased and it
G spent Rs.10 crores on restoring the Jal Mahal Monument which
is now fully restored and ready to be opened for the public. It
has paid more than 22 crores on lease rent alone and has built
a 1. 75 KM long public promenade over its leased land,
substantively and the petitioner during this period completed
H the whole phase -1 under the agreement. In support of this
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.)
807
submission, the petitioner/appellant relied upon the ratio of the A
decision delivered in R.D. Shetty Vs. Airports Authority of
ln~ia, 1979 (3) SCC 489, where the Court despite holding that
the State had violated Article 14 of the Constitution permitted
the contract to continue. The Court in its conclusions overlooked
the rights and liabilities of the successful party on the one hand 8
and the conduct including delay and motive of the PIUpetitioner
on the other and finally upheld the right to continue contract
under challenge as it was of the view that the Court may refuse
relief to the party challenging the award of contract if the equities
are in favour of the party holding the contract. In the instant case, c
it is not even the plea of the PIUPetitioner that he himself has
been deprived of his rights. Even in the case of State of M.P.
Vs. Nandlal Jaiswal, 1986 (4) SCC 566, this Hon'ble Court
took the view that the writ petition suffered from latches and thus
considered it fit to dismiss it. D
49. It was added that in fact the PIUpetitioner in the High
Court Mr. K.P. Sharma is guilty of suppression of facts from
the High Court as he had s.ent 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 E
by PIUpetitioner. 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 F
the Registry of the Supreme Court and the matter was closed.
However, the PIUpetitioner made a further application to the
Supreme Court in the year ~011 but the Additional Registrar
of the Supreme Court vide letter dated 11.10.2011 informed
the PIUpetitioner that pursuant to GOR Report, the file had been G
closed and the file was weeded out on 14.04.2011. Thus, the
PIUpetitioner 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 PIUpetitioner K.P. Sharma failed to
disclose this vital fact to the High Court. Thus, the PIUpetitioner H
808 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A deliberately tried to mislead the Court and has not come to the
Court with clean hands. It was therefore contended that it cannot
be overlooked that tile complaint of the PIUpetitioner to the SC
Registry and its rejection thereafter based upon a factual report ·
submitted by GOR is a vital and material fact that ought to have
B been disclosed to the High Court specially since the allegations
in the complaint and the PIL substantially overlap.
50. It was next contended that the PIL by the petitioner K.P.
Sharma lacks the bonafide to prefer the PIUpetition because
C his conduct is malicious and vindictive. Elaborating on this, it
was stated that PIUpetitioner K.P. Sharma with Dr. Brij GopaL
had approached the appellant in the year 2007 purporting to
offer their services for monetary reward. Since the appellant had·
already engaged a lead panel of conversationist and
environmentalist, the services of the PIUpetitioner were not
D required. Thereafter, the PIL was filed only as a way to vent his
pique and frustration at the SLP petitioner/appellant herein. It
was submitted that these vital background facts ought to have
been disclosed to the Court at the time of preferring the ·PIL
and since these facts were suppressed and not disclosed,. it
E is apparent that the PIL petition had not been filed bona fide
and had been preferred for own vexatious reasons.
51. It was further contended that the High Court vide the
impugned order has proceeded on a patently erroneous, illegal
F and factually incorrect basis when it held that the public trust
has been breached because land admeasuring 13 Bighas 7
Biswas forming part of Lakebed which has been leased to the
petitioner/appellant vide lease deed dated 22.05.2005 is void
in law. It was explained in this regard that 13 Bighas 17 Biswas
G of land equivalent to 8.65 acres of land from the very inception
has been reflected and treated as part of the land that was
proposed to be leased. This land was described in the original
.Detailed Project Report which was prepared much earlier ·in
the year 2001 when this land was formed part of the fish shaped
land. It is highlighted that during the first attempt to initiate the
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
809
Project Jal Mahal and preparation of the Detailed Project A
Report ('DPR' for short), the petitioner/appellant was nowhere
in the picture. In this regard, it had been contended by the
respondent PIL petitioner that the area admeasuring 13 Bighas
17 Biswa bearing Khasra No.67/316 (8.65 acres approx.) is
part of the lake area as per revenue record which is recorded B
as "gairmumkin ta/ab" 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 c
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 D
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 E
land and should be open to the public. As a matter of fact,
respondent No.2/the State of Rajasthar, had specifically
informed the High Court that no construction shall be allowed
to be raised on the said area and hence this can hardly be a
ground for quashing the award of the entire Project. It has been F
submitted that this Court can uphold the award of the Project
despite the alleged illegality by keeping the area open in green
and the same cannot be a reason to entail a consequence of
cancellation of the entire Project resulting into huge loss of
Project to larger public interest. Cancellation of the Lease and G
Licence Agreement in such circumstance would be patently
erroneous and in conflict with settled law. Learned counsel for
the petitioner has relied upon the ratio of Century Spinning
and Manufacturer Company Limited Vs. Nagar Municipal
Corporation, 1970 (1) SCC 582. Finally, on this point, it was H
810 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A urged that the High Court at the most could have severed
reference to the said 13 Bighas 7 Biswa of land but should have
upheld the lease pertaining to the rest of the land as the Lease
Agreement expressly permits such severance vide Clause
18.4 of the Lease Deed.
B
52. Learned Attorney General on behalf of State of
Rajasthan had contended that on spot inspection by Jaipur
Development Authority('JDA' for short) showed that no lake
existed in 13 Bighas 17 Biswas of land and that this land was
a landmass. The reason for including this area in the lease
C deed was to maintain the shape of the allotment. It was further
argued that Court may direct this area to be kept open as no
construction zone and may be kept open excluding the area
which has been consumed in public promenade.
D 53. The High Court however had held that 14.15 acres of
land submerged formed part of the Lakebed and could not have
been leased out. Assailing this view taken by the High Court,
it was contended that this Court would have to adopt an
objective test to determine which land is classified as Lakebed
E and for this purpose reliance has been placed on the ratio of
the decision delivered in the matter of Noida Memorial
Complex Judgment, 2011 (1) SCC 74. It was submitted that
reference to the revenue record with respect to 100 acres lease
shows that even though land admeasuring 14.15 acres is
F submerged in water, historically and contemporaneously this
land has been classified as 'barren' land and not as part of the
Lakebed and also for that reason is not a wetland. It was further
elaborated that the PDCOR, the body that prepared the
Detailed Project Report had carried out land surveys, prepared
G 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
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
811
the depth of the lake to reduce and as a result the water had A
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 B
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
~late had also argued that this land of 14.15 acres was never C
part of the Lakebed as per revenue records. The Attorney
General also stated further that the approach of the High Court
is completely contradictory. While on the one hand, in respect
of the 13 Bighas 17 Biswas area, the revenue records are
relied upon, in respect of the area of 14.15 acres, the revenue D
records which clearly show that this area is not a part of lake,
is disregarded. Based on the revenue records referred and
shown to this Court, the inevitable and indisputable conclusion
that appears is that the entire 100 acres land leased to the
petitioner is not a part of the Lakebed except 13 Bighas 17 E
Biswas bearing Khasra No.67/317 (8.65 acres). If would thus
follow that this land cannot form part of the Lakebed under any
circumstance.
55. Besides the above, it was urged that over the years, F
huge amount of silt had been deposited onto the Lakebed by
the Nagtalai and Brahmpuri Nala as a result of which the depth
of the land has reduced which resulted in spilling of the water
from the lake into adjacent areas including the land adjacent
to it. G
56. On the premise of the aforesaid facts, it was urged that
there is no violation of the public trust doctrine as public trust
doctrine cannot be applied to defeat public interest. The Project
as approved and when implemented would in fact create an
unprecedented Lake water front ambience and would be the H
812 SUPREME COURT REPORTS [2014] 11 S.C.R.
A only large water body in Jaipur that had been subjected to
massive destruction over the years. In fact, the Project would
inter a/ia create approximately 1.5 km long walkway
(promenade) along the lake which has been constructed by the
petitioner/appellant on the leased land that is open for use by
B the public. Importantly, another 3.5 km promenade has been
built by the JOA along the Lake. A perennially filled Lake
admeasuring 310 acres (approx.) with a depth between 3 to 5
metres and a complete renovation and restoration of Jal Mahal
Monument with a pleasure pavilion built in the mid 18th century.,
c the restoration includes artistic paintings depicting Rajasthani
culture. The Project includes access to the restored monument
by the public on paying a nominal charge of Rs.25/- per person
· essentially a cost towards being carried by boat to the
Monument, a crafts village to promote handicrafts and other
world famous heritage products of Rajasthan, an amusement
0
park for the public, a restaurant positioned with adequate
setback from the Lake, for the public to enjoy clean
surroundings, a heritage resort, a convention and Exhibition
center to serve multipurpose functions. It was submitted that
these highly pro public elements cannot be negated and
E 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.
F 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
G 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
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
813
by the petitioner in order to demonstrate the grave and patent A
error of the impugned order and it has been stated as follows:
The level of Jaipur-Amer road is 100 m RL, and the
full tank level of the lake is 99 m RL.
ii The plinth level of the Jal Mahal Monument is B
however only 98.12 RL i.e. almost 2 metres below
the Jaipur-Amer road level.
iii. It is obvious that a water level equal to the Jaipur-
Amer road level would not only create problem for c
surrounding areas but would seriously damage and
· ,., impair the Jal Mahal Monument by entering it and
eroding its structure.
iv. Consequently, from the creation of the DPR in 2001
0
which was not known to the petitioner, the
Government has recognised that the water level of
the lake should not be kept above 98 m RL.
59. II is stated that DPR is not only a final document but in
its final form has been approved without objection or protest E
by the Ministry of Environment and Forest ('MOEF' for short)
under the National Lake Conservation Plan (NLCP) Guidelines
and in particular the clause dealing with maintenance of water
level at 98 m RL which has been considered and approved by
the MOEF. In any event, without prejudice to the foregoing, it F
was submitted that the impugned order is patently erroneous
in that it purports to act as a MOEF, Pollution Control Board,
State Environment Regulatory Authority, Independent and
International Experts and Consultant all rolled into one. It is
impermissible under established judicial review parameter to G
admit the role of second-guess expert body. It is equally
impermissible for a Court to substitute its review in respect of
highly complex factual technological and scientific issue. The
Court cannot sit either an expert or arbitrate or as an appellate
body nor can it allow a PIL petition to convert it into a super H
A
814 SUPREME COURT REPORTS [2014] 11 S.C.R.
regulator. To reinforce the submission, reliance was placed on
•
the ratio and observations made in the matter of Tata Cellular
Vs. Union of India, 1994 (6) SCC 680. It was submitted that
unfortunately the impugned order has commltted precisely the
aforesaid errors repeatedly, inter alia in respect of size of lake
B and water level of the lake.
60. It was pointed out that prior to the petitioner/appellant
taking up the Project, the Lake was virtually empty except with
dirt, sewage and silt. The very use of the word 'reducing of the
water level' is highly misleading and inappropriate. It is the
C petitioner alongwith the State who has ensured the availability
of clean water around the year rather than reducing the level of
the Lake. It was still further added that since Mansagar Lake
is a manmade lake, the principle source of water during and
after the restoration work has been treated .;>ewage/effluence
D 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.
E
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
F 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
G that the petitioner/appellant is guilty of reducil)g Lake water level
is highly misleading and distorted submission which has been
accepted in the impugned order contrary to the factual position.
62. It was further urged that the PIL petitioners'/
H respondents' herein penchant for false, distorted and
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.)
misleading submissions alleging reduction of the size of the
815
A
lake and the spread of the lake alleging that this was dooe by
keeping the water level at 98 m RL thereby giving enhanced
area of land to the petitioner/appellant herein and
correspondingly, diminishing the spread of the lake is equally
fraudulent and deliberately distorted for the following reasons: B
It is vital to note that the Detailed Project Report
(DPR) made in 2001 at least two years before even
the Expression of Interest was issued for the
present Project and the SLP petitioner herein/
appellant was nowhere in the picture categorically C
gives the landmass area available at each .of the
three different levels of 100 m RL, 99 m RL and 98
m RL of the lake and then goes on to specifically
declare that the best and the only feasible solution
to prevent damage to the Jal Mahal Monument is D
to keep the water level at 98 m RL, neither higher
nor lower vide DPR. Consequently, the SLP
petitioner herein/appellant had nothing whatsoever
to do with a decision to maintain the water level at
98 m RL. It is therefore deliberately misleading for E
the PIL petitioner I respondent herein to suggest that
because the water level is kept at 98 m RL, the
SLP petitioner has been given a greater land area.
Thus, it is submitted that it is patently false for the
simple reason that irrespective of the water level, F
the land actually given in the RFP is the necessary
controlling tender document is no more than 100
acres and even if 99 m RL which is full tank level
had been fixed as the lake level even then the land
available for the successful bidder would be 100 G
acres. This underscores the point that 98 m RL level
was not the guiding factor while granting 100 acres
to the petitioner.
63. It was .further contended that the High Court has H
A
816 SUPREME COURT REPORTS [2014] 11 S.C.R.
erroneously relied on a PWD document that states the area of .
•
the lake has reduced to 0. 79 sq. km after independence ·
whereas prior to independence according to the High Court it
was 1.154 sq. km. However, the High Court does not
appreciate and consider that the DPR was prepared in 2001 ·
B after carrying out extensive surveys and preparing topographical '
maps, after doing all such research and based upon all such',
material it was determined by the DPR that the size of the lake
was 130 hectares more than what it purportedly was prior to
independence. It was therefore submitted that the High Court's
c 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
D 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.
E (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 detrim~nt of any kind to public
F 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
G provided for de-silting as a measure to increase the depth of
the lake so as to enhance the water holding capacity thus de-
silting had a scientific basis to it. In fact, in the meeting dated
03.04.2006 which was held to review the lake restoration under
the Chairmanship of Principal Secretary, Urban Development
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
· [GYAN SUDHA MISRA. J.]
817
. and Housing, pennission was granted to the petitioner/appellant A
to de-silt the lake to achieve 2 meters depth at its own cost.
Therefore, the petitioner had valid permission from the State
Government to carry out de-silting and there was nothing illegal
in the manner rather than minutes of the meeting show that it
was a well considered decision of the Committee and was in B
line with the DPR.
65. The petitioner/appellant submitted that the High Court's
finding is patently erroneous and unsustainable as except for
the revenue entries showing 13 Bigha and 7 Biswa of land as C
gairmumkin ta/ab no other parcel of land that was leased to
the petitioner was part of the Lakebed as per the revenue
entries. Only because silt was dumped on the land leased to
the petitioner, cannot make land that was not part of the
Lakebed, as is evident from the revenue record and is now
suddenly being asserted as part of the Lakebed. It is being D
stated that it is always advisable that Lakeside development
should be at higher level than the water level.
· 66. On a consideration of the rival submissions urged on
behalf of the contesting parties, in the light of the factual matrix E
and the materials which were produced before the High Court,
it clearly emerges that the PIL petitioner/ respondent N0.1
1 herein K.P. Sharma had contended that the lease executed
and granted to the appellant for development of 100 acres land
was illegal, arbitrary disturbing the natural resource of lake . F
which was fit to be struck down as invalid as the 100 acres land
was carved out from the lake area and thus the breadth and
height of the lake was reduced.
67. However, on a scrutiny of materials on record which
included the revenue record of the land in question, it is G
sufficiently clear that the man made Mansagar lake comprised
of an area of only 3 hundred acres towards the lake area.
Counsel for the respondents/PIL petitioners, however, at the
outset and as the first and foremost point sought to make good
the submission that the lake area was reduced by 100 acres H
818 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A which was leased out to _the appellant/lessee by reducing the
lake area. But the counsel in spite of his best efforts could not
establish the same except the fact that 8.65 acres and 14.15
acres were submerged area of the lake and lakebed
respectively which was carved out as land area so as to make
B 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
C 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
0
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.
E
68. When this plea was scrutinised in the light of the
revenue record, it could be noted that this area has been
recorded in the revenue record as 'gair mumkin ta/ab'. Based
on this entry, it was submitted by the PIL petitioner/ respondent
F .herein that 'gair mumkin ta/ab' area' could not have been
allowed to be developed by raising construction as that would
be clearly contrary to the Wet Land Rules which was enacted
for the first time in the year 2010. In other words, the contention
of the PIL petitioner/ respondent No.1 herein is that since 8.65
G acres of land which forms part of 100 acres leased area granted
to the appellant is submerged under water which area
according to the PIL petitioner/ respondent would also form part
of the lake, the State Government could not have included this
land in the leasehold area to be granted to the petitioner/
H appellant. '
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
819
69. The appellanUlessee on his part confronting this A
submission argued that this Court would have to adopt an
objective test to determine which land claimed as Lake Bed
and wet land is fit to be accepted and for this purpose placed
reliance on the ratio of the decision delivered in the matter of
Neida Memorial Complex (2011) SCC 744 paras 24 and 25 B
· which held as follows: ·
"24. In support of the applicants' case that there used to
be a forest at the project site he relies upon the report of
the CCF based on site inspection and the Google image C
and most heavily on the FSI Report based on satellite
imagery and analysed by GSI application. A satellite
image may not always reveal the complete story. Let us
for a moment come down from the satellite to the earth and
see what picture emerges from the government records
and how things appear on the ground. In the revenue D
records. none of the khasras (plots) falling in the project
area was ever shown as jungle or forest. According to the
settlement year 1359 Fasli (1952 AD) all the khasras are
recorded as agricultural land. banjar (uncultivable) or parti
(uncultivated). E
25. NOIDA was set up in 1976 and the lands of the project
area were acquired under the Land Acquisition Act mostly
between the years 1980 to 1983 (two or three plots were
notified under Sections 4/6 of the Act in 1979 and one or F
two plots as late as in the year 1991 ). But the possession
of a very large part of the lands under acquisition (that now
form the project site) was taken over in the year 1983.
From the details of the acquisition proceedings furnished
in a tabular form (Annexure 9 to the counter-affidavit on G
behalf of Respondents 2 and 3) it would appear that though
on most of the plots there were properties of one kind or
the other, there was not a single tree on any of the plots
under acquisition. The records of the land acquisition
proceedings. thus. complement the revenue record of 1952
H
A
820 SUPREME COURT REPORTS [2014] 11 S.C.R.
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
B 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
C 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
D to the appellant is not a part of the Lake Bed and also for that
reason is not a Wet Land. ·
70. It was further urged that the Project Development
Corporation (PD COR) of the State of Rajasthan, the body that
E prepared the Detailed Project Report in the year 2001, when
the petitioner/appellant was not in the picture in any manner
carried out land surveys, prepared topographical surveys ,
output surveys, water quality tests and received secondary data
from Survey of India etc. as in the counter affidavit before this·
F Court and before the High Court explained the reasons for
emergence of this area of 14.15 acres of land. It was further
pointed out that the PDCOR has stated in its affidavit that the
said 14.15 acres land emerged due to huge silt deposits that
had caused the depth of the lake to reduce and as a result, the
G · water had spilt out into adjacent land being the concerned 14.15
acres of land. Based on this project report prepared at the
instance of PDCOR, it was argued that the said land was never
part of the Lake Bed and is not for this reason a Wet Land . It
was further added that factually out of the 14.15 acres permitted
H to be reclaimed by the appellant under the: Lease Deed dated
• JAL MAHAL RESORTS P. LTD. it. K.P. SHARMA
[GYAN SUDHA MISRA, J.)
22.11.2005, the appellant has only claimed approximately 11
821
A
acres out of which approximately 6-7 acres has been
consumed by the appellant for creating a public promenade
open to the public.
71. The appellant sought to add. additional weight to this
B
argument by placing reliance on the submission of the learned
Attorney General on behalf of the State who had argued that
this land of 14.15 acres was never part of the Lake Bed as per
the revenue records. The counsel further pointed out that the
Attorney General had further submitted that the approach of the
High Co1,1rt was completely contradictory in this regard. While C
on the one hand in respect of the 13 bighas 17 biswas area
· equivalent to 8.65 acres, the revenue records had been relied
upon; the same was not taken care of and relied upon in
respect of the area of 14.15 acres although, the revenue
records clearly show that this area is not a part of the lake and D
yet it was disregarded by the High Court.
72. On the aforesaid aspect, it was further urged that based
on the revenue records referred and shown to this Hon'ble
Court , the inevitable and indisputable conclusion that appears E
is that the entire 100 acres land leased to the appellant is not
a part of the Lake Bed including 13 big has 17 biswas bearing.
Khasra No.67/317 corresponding to 8.65 acres. It was
submitted that from this it ought to follow that this land could
not have been held to be forming a part of the lake Bed under F
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 G
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 H
A
822 SUPREME COURT REPORTS [2014) 11 S.C.R.
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 serids its recommendation to the Central
Government for notifying a certain area as a wetland. It was
B 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'
(SEIM for short) was granted on 29.4.2010, the Wetland Rules
2010 were not even enacted. Therefore, the question of
c Wetland Rules 2010 applying to the project retrospectively
would not arise. Even otherwise under the Wetland Rules 2010,
there is a detailed procedure specified which has to be
complied with mandatorily before an area can be notified as a
wetland. It was submitted that in the 'present case even after
the Wetland Rules 2010 came into force, no such procedure
D admittedly has been undertaken to identify Mansagar Lake as
a wetland when these Pl Ls were filed. It was further contended
in this regard that such a project is contrary to the specific intent
of the framers which is unequivocal viz even assuming that an
area is zoologically, scientifically, environmentally or
E technologically to be factually a wetland, it does not become
so legally unless and until the persona designata under the
delegated legislation so. declares it to be. Admittedly, that
persona designata is only the specialized authority appointed
under the rules and has chosen not to exercise its power for
F the Mansagar Lake. · ·
75. It was still further contended on behalf of the appellant
that the technique of applying a law by notification to a specific
fact situation is an age old parliamentary technique ·and/or the
G technique applied by the framers of delegated legislation like
the Central Government who framed the Wetland Rules. Even
the Apex Court would not consider it legally appropriate to issue
a mandamus to notify and bring into force .legislation or a
delegated legislation until and unless the persona designata
H under that regime chooses to do. so. In support of this
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
823
proposition of law, learned counsel for the appellant has placed A
reliance on the following case laws: (1982) 1 sec 271 at page
308, 310 paras 51 and 59 A.K. Roy vs. Union of India when
it recorded as follows:
" ...... the question which was put in the forefront by Dr. B
Ghatate, namely, that since the Central Government has
failed to exercise its power within a reasonable time, we
should issue a mandamus calling upon it to discharge its
duty without any further delay. Our decision on this question
should not be construed as putting a seal of approval on C
the delay caused by the Central Government in bringing
the provisions of Section 3 of the 44th Amendment Act into
force ............ But we find ourselves unable to intervene in
a matter of this nature by issuing a mandamus to the
Central Government obligating it to bring the provisions of
Section 3 into force. The Parliament having left to the D
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 E
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 F
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 G
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 H
A
824 SUPREME COURT REPORTS (2014] 11 S.C.R.
ratio of these decisions it follows that since Mansagar Lake·
•
itself is not a Wetland, therefore, the contention of the
respondents that the entire 100 acres land leased to the
appellant is part of the Lake Bed and, therefore, a wetland
ought to be rejected outright and the finding of the High Court
B on .this aspect ought to be reversed. However, Mr. Jaydeep
Gupta, lea~ned senior counsel who was appointed to represent
the St.5Jte ~f Rajasthan after the change of the Government in
2014 in plac'e of the Attorney General Shri G.E. Vahanwati who
· had already concluded his arguments on behalf of the State of
c Rajasthan, submitted that th·e incumbent Government of
Rajasthan cannot accept the interpretation given to the Wetland
Rules 2010 by the previous government. As per the subsequent
stand taken by the counsel for the new government, the previous
government ought to have identified wetland in the 'State within
one year of the Wetland Rule 2010 being enacted. According
0
to the counsel for the new incumbent government, since the
previous government did not undertake the activity of identifying
Mansagar Lake as a wetland, the 2010 rules have been
violated. Thus, it had been urged by Mr. Gupta that the stand
taken by the previous government before the High Court as well
E as this Hon'ble Court is untenable. ·
I
77. The appellant, in turn, has submitted that the change
in stand. by the incumbent government should not be permitted
by this Court. It was submitted that reference to the pleading
F put forward by the State Government on the issue of the wetland
before the High Court and this Court has been categoric and
specific . It has been expressly pleaded that the Wetland Rules
201 O do not apply to the project and that the said rules are not
retrospective so as to affect the project. This stand has been
G specifically taken in the counter affidavit filed by the State
Government in the three Special Leave Petitions preferred by
Jal Mahal Resorts Pvt. Ltd. It was, therefore, submitted that
assuming without admitting that the incumbent State
Government can withdraw its three Special Leave Petitions, the
1-1 appellant strongly disputes this and it does not follow and should
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
not be allowed that the stand taken by the State Government
825
A
in the counter affidavit in the three SLPs filed by the appellant
and the three SLPs filed by the State Government can in any
manner be changed or altered. In addition, it was submitted on
this aspect that the stand of the State Government in the High
Court should not be allowed to be changed before the Supreme B
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 c
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 chang~ in stand from the stand taken by it from the 0
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 E
philosophy Mansagar Lake ought to be identified as a wetland.
According to the incumbent government the fact that the
Mansagar lake was not identified as a wetland by the previous
government itself was an illegality and was contrary to the
Wetland Rules. F
79. Contesting the aforesaid stand taken by the
respondent-State, the appellant strongly urged· that such an
interpretation of the Wetland Rules had been taken by the
. previous Government of Rajasthan as a matter of policy which G
·had decided not to notify Mansagar Lake as a wetland keeping
in mind the Master Plan of Jaipur since 1976. As per the Master
Plan, the Vijay Mahal Area approximately 200 acres (including
the entire 100 acres leased to the appellant) was to be
urbanized and developed for tourism purposes. Therefore, as H
A
826 SUPREME COURT REPORTS [2014] 11 S.C.R.
per the contention of the appellant, this area naturally could not
•
have been identified as wetland. In the alternative, it was
submitted that even otherwise the 100 acres leased was not
part of the Lake Bed and, therefore, the question of identifying
the leased 100 acres land as a wetland is out of the ambit and
B scope of the question involved.
80. Jn regard-to the plea pertaining to the Master Plan of
Jaipur, it was submitted that the Master Plan has statutory force
and since the Master Plan itself h11s identified this area to be
C urbanized , the question of it being declared as a wetland does
not arise. In fact, the Master Plan consistently from 1976
onwards has provided that approximately more than 200 acres
of land is available for the development of tourism facilities on
the southern and western sides of the Mansagar Lake. In view
of these aspects, learned counsel for the appellant urged that
D the Mansagar Lake is not a wetland under the Wetland Rules
2010 and 100 acres leased land was not a part of the Lake
Bed and, therefore, the leased land of 100 acres is not a
wetland under the Wetland Rules 2010. As already stated
hereinbefore, it was urged that the Wetland Rules 2010 are not
E retrospective in nature since the Lease Deed was executed .in
the year 2005 and the wetland rules framed thereunder and
enaCted only five years later in 2010 when implementation of
the Project had already started. ·
F 81. In so far as the plea taken by the PIL petitioner/
respondent herein regarding reduction of the Mansagar Lake
area in order to carve out 100 acres of land is concerned, it
was explained by relying upon the historical background of the
matter that Maharaja Man Singh of Amer who ruled from the
year 1589 to 1614, constructed the Mansagar Dam much .
G earlier than Jaipur was founded. The Mansagar Lake was·
created by damming Darbhawati River on the north side of the
Khilangarh fortress. The purpose of the lake was to create a
water body that would cater to the irrigation needs and ground
water recharge of the area. It was urged that the Mansagar
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
Lake is a man-made water body and its beauty, therefore, is
827
A
not a natural one but the creation of man. Elaborating on this
part, it was submitted that certain undisputed facts established
that 1OOm 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 B
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 c
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 D
acres land leased to the appellant pre-existed the execution of
the Lease Deed dated 22.11.2005 and was available much
before the Project was undertaken.
82. It was further contended on behalf of the appellant that
the hydrological modeling undertaken by the Project E
Development Corporation of Rajasthan (PDCOR) in Detailed
Project Report (DPR) scientifically determined a sustainable
water level. The DPR explored the following water level
scenarios finally chose a water level of 98m RL. The water level
scenarios examined scientifically reported that water could not F
be maintained at 100m RL because at this level in the
monsoons water can flood the neighbouring areas that are
densely populated since at this level water would be at Amer
Road level. Consequently, the Jal Mahal Monument would be
. nearly.wholly submerged. It was added that technically G
supplying so much quantity_of water all the year around was not
possible.
83. It was further contended that the water could not be
maintained at 99m ·RL because at this level lake spread and
H
A
828 SUPREME COURT REPORTS
I
(2014] 11 S.C.R.
volume is difficult to maintain through out the year this being a
•
technical matter. Consequently, the lower floor of Jal Mahal
Monument would be submerged having only terrace and first
floor for re-use. Thus the appellant submitted that 98m RL being
the next lowest water level after 99m RL was considered·ideal
B for maintaining water level. It was argued that most important
thing if water level were to be fixed at 99m RL i.e. full tank level
then also there would have been more than 100 acres of land
available to lease, yet the appellant was granted only 100
acres .
.c 84. Learned counsel for the appellant further elaborated
on this by relying upon Detailed Project Report (DPR) and
urged that as a matter of fact the DPR found that the lake at
present is an approximately 130 hectares in its full spread.
However, "at first, a much smaller natural shallow lagoon
D existed, on the edge of which, the Jal Mana/ structure was
located. Thus, originally the spread 'of the lake was much
smaller than at present. The spread of the lake has increased
and the depth decre.ased in recent times mainly due to the
silt deposits as a result of erosion."
E
85. It was contended that neither the respondents/PIL
petitioners have challenged the correctness of the DPR nor its
scientific basis. Thus it is not open to. them to advance
arguments that indirectly seek to question the DPR. It was
F 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
'G was wro.ng 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 ana the decision to
maintain water level at 98m RL was a conscious, well informed
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
829
and deliberated decision taken to protect the integrity of the A
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 B
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 C
was submitted on behalf of the appellant that even according
to the respondents- Ministry of Environment and Forests
(MoEF) is the appropriate authority with jurisdiction to decide
on the environment impact of the project in the present case.
The MoEF being the author of EIA 2006 has construed its own D
notification (EIA 2006) to mean that general conditions do not
apply to Item 8 (a) and 8 (b) projects. Adding further on this it
was contended that it ought to be clarified that the need to issue
OM dated 24.5.2011 was felt because OM dated 28.4.2011
in broad terms provided that category B projects that fell within E
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 F
condition even if such projects fell within critically polluted areas.
It was urged on behalf of the appellant that it has received
environment clearance from SEIAA dated 29.4.2010. This
clearance is in terms of EIA 2006 and is, therefore, valid. It was
added further that as the general conditions do not apply to the G
present project, as made clear by MoEF in its affidavit and also
by OM dated 24.5.2011, the appellant did not require clearance
from MoEF. Therefore, the impugned judgment of the High
Court ought to be reversed on this aspect as it failed to
appreciate these crucial facts. It was still further submitted on H
830 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A this that even otherwise on an interpretation of EIA 2006, it
becomes apparent that MoEF has consciously decided not to
stipulate general condition in column 5 against Item 8 (a and 8
(b) because EIA 2006 has issued originally and till date does
not stipulate general condition against Item 8 (a) and 8 (b) in
B the Schedule, while it does so with respect to a number of other
iter:ns in the Schedule. It was added that MoEF vide notification
dated 1.12.2009 had carried out wide ranging amendments to
the Schedule in EIA 2006 and in doing so general condition
had been stipulated/inserted for the first time against certain
c items. However, while doing so, the MoEF has not stipulated
the general condition against the Item 8 (a) or 8 (b). It is,
therefore, evident that MoEF consciously as a policy decision
has chosen not to stipulate general conditions against Item 8
(a) or 8 (b). Further paragraphs 4 (iii) of EIA 2006 provides
activities included as category B in the Schedule which require
0
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 S\lCh
E project, therefore, th.e 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
~e~d. ·
F 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 clid not
G 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
H the Rajasthan Municipalities (Disposal of Urban Land) Rules
• JAL MAHAL RESORTS P. LTD. v.
K.P. SHARMA
[GYAN SUDHA MISRA, J.]
831
1974 (for short '1974 rules') have been violated since Jaipur A
Municipal Corporation while allotting land to RTDC has violated
certain norms and that the premium was not charged from
RTDC for the land allotted to it and secondly without any
General House Resolution allotment of land was made to
RTDC. On this aspect it was submitted on behalf of the B
appellant that both the contentions are misplaced for the reason
that under 18 (2) and the proviso to 1974 Rules, the State
Government can exempt the payment of cost of land bein'g
allotted by Jaipur Municipal Corporation to any government
department. In the present case, the Government decision c
dated 9.2.2004 makes it clear that RTDC shall not have to pay
any cost of land to the land owning agencies including Jaipur
Municipal Corporation as the whole intent of this allotment in
favour of RTDC was to only facilitate the project of the
Government. As a matter of fact, Jaipur Municipal Corporation
0
through its General House Meeting dated 28.4.2004 was
attended by at least 58 of its members who resolved to allot
the said land to RTDC in order to implement the project. Thus,
it is more than apparent that the Government had exempted
charge of any kind from RTDC for the transfer/allotment of land
to which a furthermore RTDC through a transparent and well E
considered resolution comprising of is members resolved to
allot this land to RTDC. Thus the contention of the respondent
that the 1974 rules have been violated is wholly unsustainable
and finding of the High Court on this aspect therefore needs to
be reversed and set aside. F
90. It was still further contended that the Jaipur
Development Authority Act 1982 was not violated in any manner
and the appellant submitted that rule 18 of the Rajasthan
Improvement Trust (Disposal of Urban Land) Rules, 1974 G
enabled JOA to allot land without any adding cost of the land if
the State Government exempts any department of the
government from paying cost of the land. In the present case,
the Government of Rajasthan vide its meeting dated 16.9.2003
had noted that the JOA had issued orders for transfer of land H
832 SUPREME COURT REPORTS
I
(2014] 11 S.C.R. •
A to RTDC. The object of a gazette notification under Section 54
(3) is to keep matters in the public domain but not to affect 3rd
party rights since the land is merely being transferred from a
subordinate state instrurnentality to the Sovereign State itself.
Thus, there is no project cost in view of non-gazetting of the
B 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
C 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 JOA Act 1982.
D Section 26 mandates that once the Master Plan is in force and
JOA must take action for implementing the plan as may be
necessary. Thus, it is statutorily incumbent on the JOA to
implement the Master Plan inter alia which enables
development of tourism in the given area. Undisputedly
E approximately 43 acres in the 100 acres leased was vested in
the JOA 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 JOA to RTDC
was also for implementation of JDAs Master Plan. Therefore,
F it ·cannot be disputed that the present project is a tourism
project. Thus, there was ample authority with the JOA to allot
land to RTDC under the JOA Act 1982 particularly section 54
(1) for implementing its master plan. Cumulatively, it was
submitted that the JOA under Section 54 (1) has the power to
G allot land vested in it for the purposes of the JOA 1982 subject
to rules by the Government of Rajasthan. It was submitted that
obviously allotment of land to implement the Master Plan of the
JOA Act 1982, Rule 18 gives Government of Rajasthan power
to exempt State Department from paying east of the land when
H land from the JOA is allotted. Exemption by the Government of
• JAL MAHAL. RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
833
Rajasthan in favour of RTDC acting on behalf of Department A
of Tourism as an agent from paying cost of the land is traceable
to power vested under Rule 18 read with Government of
Rajasthan decision dated 9.2.2004. Hence for all these
reasons, non-gazetting under Section 54 (3) was not a
requirement. B
92. Contesting the argument raised by the PIL petitioner/
respondent that the State Government has changed the rules
of the tender so as to favour the petitioner company in awarding
the contract is not borne out by. the record that has been C
produced before this Court in the form of various collegiate,
transparent meetings that have been presided over by the
highest functionaries in the State Government, inter -alia
including the Chief Secretary, the Pr~ncipal Secretary and
. various Head or statutory authorities who participated in these
meetings . On a perusal of the pre-qualification evaluation report D
dated 6.10.2003 which was prepared by the Project
Development Corporation of Rajasthan (PDCOR), a joint
venture betwe.en the Rajasthan State Govemment and IL & FS,
it is clear beyond any doubt that the threshold qualification
criteria required to be satisfied by the appellant KDG E
Enterprises (the lead Member of KGK Consortium) stood more
than adequately made out when KGK Enterpris.es satisfied the
technical requirement and the financial requirements required
under the request for proposal. It is pertinent to point out that
KGK Enterprises satisfied the substantive provision of the pre- F
qualification violation criteria (namely the technical and financial
capabilities). In other words, the technical and financial bids
were yet to be opened and the criteria that was -satisfied by
KGK Enterprises was only threshold preliminary criteria at the
pre-qualification evaluation stage. A further perusal of this report G
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
H
834 . SUPREME COURT REPORTS [2014]' 11 S.C.R. •
A material fact does not stand and is for this reason
unsustainable.
93. PDCOR as a part of its evaluation [eport and other
correspondence recommended that apart from the other two
bidders who had satisfied the pre-qualification evaluation
8
criteria, even KGK Consortium should be permitted for being ,
considered and the technical evaluation phase as KG!(
Consortium satisfied the substantive conditions at the -pre-
qualification evaluation stage. PDCOR in its recommendation
further opined that condition of KGK enterprises at the
C 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
D hereinbefore.
· 94. It is pertinent to menlion again that the above
recommendations were transparent, !Jona fide and were put for
approval before the Government of Rajasthan for considering
E the recommendations o.f PDCOR. The Government of
Rajasthan after due deliberation permitted KGK Enterprises to
be consider!:td for technical evaluation.
95. Another important feature of the tender process was
F that after the financial bids were opened only KGK Consortium
was found to be the highest bidder by 39%, the matter was
considered by the Empowered Committee on Infrastructure
Development (ECID for short) meeting held on 9.2.2004 ·
headed by' the Chief Secretary with other senior government
functionaries attending . In the said ECID meeting on perusing
G the entire tender process decided to award the project to the
highest bidder being the KGK Consortium. Thereafter, these
recommendations of the ECID were put up for the approval of
the then Chief Minister who unreservedly endorsed the decision
of the ECID dated 9.2.2004.
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
835
96. Thereafter, on 30.9.2004, the Government of Rajasthan A
issued a letter of intent to KGK Enterprises (lead Member of
KGK Consortium) for award of the project. The final decision
in the decision making process that culminated in the execution
of the lease and license agreement was taken by the Chief
Minister on 27.10.2005 whereby it was approved that the B
execution of the lease and license agreements be entered into
by the State Government with the highest bidder M/s. Jal Mahal
Resorts Pvt. Ltd. a Special P.urpose Vehicle Company of KGK
Consortium.
97. It was, therefore, submitted that on a perusal of this C
detailed decision making process undertaken by the·
Government of Rajasthan during the regime of successive Chief
Minister after which the government contested the PIL petitioner
before the High Court as also before this Court through the
Attorney General, there is no doubt that the decision taken to D
approve the project and execution of Lease Deed was a bona
fide decision for the general and overall. betterment of the
project meeting the area around the Jal Mahal and, therefore,
no fault can be found in regard to the decision even if certain
procedural relaxations were granted for approving ihe project. E
In sum and substance, it was submitted that in so far as the
relaxation granted in concerned, the action of the State
Government was bona fide approved by the previous and
subsequent government of Rajasthan which was bona flde and
cannot be called unfair or illegal in any manner. F
98. In s·upport 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 G
(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 H
836 SUPREME COURT REPORTS (2014] 11 S.C.R.
•
A 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
B
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
C proposition it cannot be held that an authority inviting tenders
is bound to give effect to every term mentioned in the notice in
meticulous detail, it is not entitled ,to waive even a technical
irregularity of little or no significance. Thus, it was held that
minor technical irregularity and deviation from non-essential or
D ancillary/subsidiary requirement can be waived and the
Government would be justified in w'aivirig technical compliance
with a tender condition. ,
99. The thrust of the aforesaid case law cited is to
E reinforce the submission that when there is substantial
compliance of the terms of tender·, the government is entitled
to waive any non-essential term in the tender for the bona fide
reasons and in public interest. In any case, since the project in
terms of the RFP had to be executed through ·a SPV and the
appellant being as such SPV, then the vehement insistence by
F the respondent that the lead member must be a company is
not a violation of a substantial condition of the tender. In
conclusion therefore it had to be held that there was no mala
fide in the decision making process and the finding given by
the High Court is perverse and cannot be sustained and
G deserves to be set aside.
100. On perusal of the background and other materials on
record, it could be noticed that the genesis of restoration and
conservation of Mansagar Lake· goes back to 1984 whereby
H the efforts of the State from 1984 onwards have been directed
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
towards restoring and developing the largest water body in
837
A
Jaipur (that was lying disused the sewage, filth, stench and
effluent) into an attractive public interest destination with a
pleasing environmental ambience for attracting tourists from all
over the world.
B
The figures and conclusions in the impugned order itself
indicate the enormous difficulty and repetitive failures of the
State Government to either implement the restoration itself or
to get any private entity to do so over a period of approx. 20
years from 1984 to year 2003. Indeed, the attempts
immediately preceding the present tender from year 2000 to C
2002 have also admittedly failed.
Had the figures found in the impugned order or the
conclusion of the impugned order that the Project proposal
constituted a squandering of State largesse had been correct, D
applicants would have been falling over themselves to bid for
the Project not only in the present tender but also in the
preceding unsuccessful attempts. Even in the present case,
despite the attendance of as many as 20 major participants
(including corporate names like Oberoi, Taj, Ansal, Neemrama E
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 F
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: G
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; H
A
838 SUPREME COURT REPORTS [2014) 11 S.C.R.
the s.o 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
B any one for decades; the nearby land was barren, filled with
mud and dirt and therefore not in i.Jse.
The impugned order further appears to have ignored that
the whole structure of the tender was conceptually different and
had been thus in all previous attempts failed as (i) it sought huge
C investment by the successful bidder to restore the entire area
which, at conservative estimates, would cost approx. Rs. 100
crores (in the year 2003), and now With the gross delay
occasioned by the PIL Petitioner, involves an investment
(approx.) Rs., 500 crores. (ii) No commercial exploitation
D either of the monument or of the lake was involved and indeed
was not permitted. (iii) Approximately 10.5 out of 14 acres would
be utilized for a walk-way around the Lake involving no
commercial return. (iv) The successful bidder would pay the
State Government/RTDC Rs. 2.52 crores per year which would
E be escalated by 10% every 3 years, which, if calculated in the
99th year of the lease would amount to Rs. 27 crores approx,
and if calculated in the 50th year of the lease would amount to
Rs. 12 crores approx. (v) The accommodation/resort could only
be constructed within a FAR of 0.1362. Relevantly, the normal
F FAR permitted is 2 while the FAR permitted for the SLP
Petitioner's Project is only 0.1362. (vi) No structure in the entire
project could exceed ttie height of 9 meters and also could not
exceed more than a total of two floors viz. ground and first. (vii)
Almost 12 acres of land would be devoted to a handicrafts
G village showcasing the cultural heritage of Rajasthan where the
commercial return to the bidder would be only in the form of
lease rent, and the sales occurring due to footfalls would accrue
to the sub-lessee who sells the craft and not to the SLP
Petitioner. (viii) The project has along gestation period not only
H in terms of restoration and development costs but also
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN.SUDHA MISRA, J.]
839
construction of infrastructure, and the footfalls would increase A
only over time after the Project has fully established its
credentials. {ix) In a nutshell, therefore, huge investments-sure,
certain and un-avoidable were front ended; possible returns-
unsure and uncertain were back ended. {x) All the forgoing
admitted points have been completely ignored in the impugned 8
order, or not noticed or cursorily mentioned and not decided,
and in any event not given adequate probative weight. {xi)
Equally ignored has been the very raison-d-etre of the Project
actuated by the fundamental object by the State Government
to restore heritage site and to create a sustainable and C
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 Petitione( who came
in to the picture for the first time only in year 2003. D
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 E
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 F
universally recognized that even direct invitation to potential
investors/bidders without any bid or auction at all is a fully valid
manner of creating infrastructure where non-existed, especially
in nascent areas and new areas projects. In respect of this
submission reliance has been placed on {i) Natural Resources G
Allocation (2012) 10 SCC 1 @87 pr. 119, 120-CLC 1/153-244
@ 206; {ii) Sachidanand Pandey V. State ofWest Bengal
(1987) 2 sec 295@ 314 p. 19,@ 264 pr. 35.,@ 266 pr. 39,
@ 266-67 pr. 40-41, 43; (ii) M.P. Oil Extraction vs. State of M.P.
H
A
840 SUPREME COURT REPORTS (2014] 11 S.C.R.
(1997) 7 sec 592@ 612-613 pr 45- CLC 1/271-285@ 284;
•
(iv) Kasturi Lal Lakshmi Reddy v. State of Jammu Kashmir
(1980 4 sec 1 @ 13 pr. 14 - CLC 11286-300@ 294].
103. In fact, we have noted that there was not one but
repeated attempts at tendering'which had failed. While the
8 earlier attempts failed, the present tender open to the whole
world, shrunk from 20 parties to9 parties and then to only 4
parties at the time of submission of bids (whereby the SLP
petitioner succeeded on merits). If the project value correctly
involved 4 and 5 crore figures mentioned in the impugned
C order, it is inconceivable and inexplicable as to how and why
neither the 20 nor the 9 nor the 3 ultimate bidders apart from
the SLP Petitioner offered a maximum figure of Rs. 2.52 crores
only. The bidding process was open and transparent
considering tourism development.
D
104. We have taken note of the factual submission that the
reserve figure of lease rental expected by the. State had been
fixed at Rs. 1 crore in the RFP (Vol 3/55.1 @ CL 3.2]. This was
not merely an adhoc magical figure plucked out from the air but
E arrived at after repeated transparent evaluation by expert
committees and proclaimed openly to the whole world. There
is not even an allegation of surreptitious or ex-parte dealing at
the stage of conceiving and designing the tender or stipulating
its multiple parameters. This minimum rent had been
F determined with the objective of providing a rate of return of
20-22% per annum from the Project to the private sector
developer. Such a rate of return was considered a reasonable
return for a long term capital asset which at the erid of the lease
would have no terminal value for the developer, as it would
require to be transferred back to RTDC who is acting on behalf
G of R2 [PDCOR-R6 WS in HC(B pr ·6). Thus, it is evident that
sufficient economic diligence were used before issuing the RFP
and subsequently accepting KGK Consortium's highest
financial bid. In conclusion, therefore, it had to be held that there
was no mala fide in the decision making process and the
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
finding given by the High Court, cannot be sustained and hence
841
A
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 B
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 C
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 'SCI D') for the first time in its third meeting held on
21.12.1999. Resolution had been filed in which it was stated D
that at that point of time Jaipur Municipal Corporation must own
the project. Hence bids were initially invited in the year 2000-
01 without identification of the land to be used and without
studies with regard to Environment Impact Assessment. The
bid process were therefore scrapped and JOA was made the E
sponsoring department for the lake side development
component in the meeting of Board of Infrastructural
Development and Investment Promotion (BIOi) held on
23.08.2002 and 3.9.2002. After approval, an expenditure
sanction was granted by the MoEF, for the Lake Restoration F
Component but MoEF had clearly granted approval to the lake
side development component of Mansagar Lake. It is no doubt
urged on behalf of the respondent-PIL petitioner and taken note
of by the High Court that the National Lake Conservation Plan
did not contemplate any commercial venture upon the lake to G
be restored under the plan. But it cannot be overlooked that the
State Government had full authority to carve out a plan for
development of lake and the lake area considering the fact that
way back in 1962 the lake glory as a pristine water body lasted
only until the former rulers ha!l their control over the city and H
A
842 · SUPREME COURT REPORTS [2014] 11 S.C.R.
unpleasant history of lake began when the new administration
•
· of Jaipur diverted walled city sewage in 1962 through two main
waste water drains namely Brahmapuri and Nagtalai. It is borne
out from the factual history of the lake that most notorious
aquatic weed water hyacinth entered into lake in 1975 and the
B water fall foul population started affecting the resident and
migratory species. It is in this background that the Government
of Rajasthan submitted project for restoration of Mansagar
Lake to the Central Government. Thereafter, Jal Mahal Tourism
Infrastructure was conceived and approved by the Standing
c Committee on Infrastructure Development in its meeting held
on 21.12.1999 and initially Jaipur Municipal Corporation was
to own the project. The bids were invited in the year without
identification of the land to be used and without studies with
regard to the Environment Impact Assessment. Hence, the bid
process was scrapped and the Jaipur Development Authority
0
was made sponsoring department for the lake side development
component in the meeting of Board of Infrastructure
Development and Investment Promotion (for short 'BIOi) held
on 23.8.2002 and 3.9.2002. Hence the Project Development
Corporation of Rajasthan (for short 'PDCOR') got a detailed
E project report prepared which contemplated the following
components: 1
(1) Restoration of Mansagar Lake;
F (2) Restoration and re-use of Jal Mahal Monument;
(3) Development of Tourism/Recreational components
at the lake. precincts.
I
106. Thereafter, in the meeting of BIOi held on 9.08.2003,
G it was decided that nodal agency for the Jal Mahal Tourism
Project will be Tourism Department of Government of Rajasthan
instead of JOA. Thereafter, the tourism department assigned
the responsibility to the Rajasthari Tourism. Development
Corporation (for short 'RTDC') vide order dated 6.9.2003. The
H last date for submission of deed was 5.9.2003. The petitioner
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
843
on the other hand and also the Attorney General clarified that A
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 B
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 C
to emerged from the status of the land adjoining the lake area
which had a history behind it and in view of the garbage, filth
stench on the area, decision had been taken to develop the two
project site.
D
108. We have further taken note of the arguments
advanced by the Ld. Attorney General who had submitted that
the High Court has not taken into account the steps that were
taken in the project since 1998 onwards. The Ld. Attorney
General representing the State had relied on a comprehensive E
list of dates beginning from 1984 onwards discussed
hereinbefore to show the step by step decision taken before
the project was awarded to the KGK Consortium including the
Jaipur Master Plan of 2011.
["
109. It may further be noted that the argument advanced
by the counsel for the respondent PIL Petitioner that 100 acres
land lease to the petitioner was part of the lakebed, does not
get supported from the revenue entries placed on record or any
other material which rnakes it clear and establishes that only
13 bighas 17 blswas is classified as 'gairmumkin ta/ab' G
(lakebed) being khasra No. 67 /317 which would be
approximately 8.65 acres. However, the balance land that is 100
acres less 8.65 acres is in fact recorded as .'Banjar' in the
revenue record and not lakebed. We find sufficient substance
in the plea that this Court in the past have placed reliance on H
A
844 SUPREME COURT REPORTS [2014] 11 S.C.R.
revenue entries to determine the nature of land from which it
•
follows that based on the revenue entries; no other khasra of
land forming part of 100 acres of land leased to the petitioner
is lakebed. It may further be noted that as per the petitioners/
appellants 14.15 acres of land is 'banjar' and not lakebed
8 whereas according to the PIL petitioner it is a lakebed/wetland
which is contrary to the revenue record.
110. From the version and counter version of the counsel
for the parties, it is obvious that although the PIL petitioners had
challenged the 100 acre land as lakebed so as to assail that
C the same could not have been a part of the lease area, the fact
remains that the entire emphasis is only in regard to the land
comprising 14.15 acres equivalent to 22 bighas and 10 biswas
and another chunk comprising 8.65 acres equivalent to 13.
bighas and 17 biswas. The counsel for the appellant-lessee
D submi~ted that if the revenue record for 13 bighas 17. biswas
equivalent to 8.65 acres noted as 'gairmumkin ta/ab' lakebed
bearing khasra No. 67/317 is relied upon by the Court, then
further revenue entries classifying 14.15 acres of land recorded
as barren land/banjar also should be accepted, adopting the
E 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
F 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
G view of this 13 bigas and 17 biswas of land equivalent to 8.65
acres which has been classified as 'gairmumkin ta/ab'!
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
H
• JAL MAHAL RESORTS P.. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
845
. domain of the Government of Rajasthan which will be free to A
reconvert this area into the lake area.
112. In so far as 14.15 acres of land recorded as barre·n
land/banjar is concerned, we are pleased to hold that this area
shall be treated as a construction free zone and neither party 8
i.e. the State of Rajasthan nor the lessee/appellant herein shall
be permitted to raise any construction thereon. We are
informed that this area is being used as a public promenade
(walk way) for the use of the public which shall be allowed to
continue.
c
113. In so far as the balance area of land pertaining to the
lease deed is concerned, we are pleased to hold that the
respondents/PIL petitioners have not been able to lead any iota
of evidence or material to prove that this area was at all ·or at
any point of time lakebed or wetland. This fact is further proved D
· from the historical background of this litigation as it is the case
of the appellant/lessee/ the Pl L petitioner which gets reinforced
from the record and the detailed project report of the PDCOR
indicating that the efforts were being made to develop this land
way back from 1984 and in the year 1999 as already noted E
hereinbefore reflected from the minutes of the third meeting
held on 21.12.1999, the Standing Committee on Infrastructure
Development (SCIO) agreed that the Jaipur Municipal
. Corporation must own the project to develop this land and the
bids were invited in the year 2000-01 with regard to the F
development of the land. However, the same was scrapped and
the JDA was made the sponsoring department for the lake side
development component in the meeting of the board of
infrastructure development and investment promotion held on
23.8.2002 and 3.9.2002.
G
114. From the aforesaid history, it gets factually
established that this land in any view was available for
development atleast way back from 21.12.1999 and no question
was ever raised that this was not available for infrastructural
development. In fact, we have further noted that in the three H
846 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A Master Plans of Jaipur, 200 acres of land were shown for .
infrastructural development for tourism purpose and out of that
100 acres was made a part of the lease deed after extensive
research conducted by the Project Development Corporation
of Rajasthan which got detailed project report prepared way
B back in 2001 when the petitioner/appellant was not even in the
picture so as to develop the land. Even if the Ministry of
Environment and Forest of the Central Government did not
accept the position that it had given clearance for this project,
the fact remains that the land was lying within the domain of
c 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
defiberation or study. In fact the -Project Development
Corporation (PDCOR) got the detailed project report prepared
D 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.
E 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,
F 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
G reject the petition as we have ignored the delay and also lack
of bonafide on the part of the PIL petitioners/respondents herein
and have examined the matter on merit taking note of every
meticulous argument and counter argument advanced by the
contesting parties.
H
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
847
116. From this, it is clear that although the Courts are A
expected very often to enter into the technical and administrative
aspects of the matter, it has its own limitations and in
consonance with the theory and principle of separation of
powers, reliance at least to some extent to the decisions of t~e
State Authorities specially if it based on the opinion of the B
experts reflected from the project report prepared by the
technocrats, accepted by the entire hierarchy of the State
administration, acknowledged, accepted and approved by one
Government after the other, will have to be given due credence
and weightage. In spite of this if the Court chooses to overrule c
the correctness of such administrative decision and merits of
the view of the entire body including the administrative,
technical and financial experts by taking note of hair splitting
submissions at the instance of a PIL petitioner without any
evidence in support thereof, the PIL petitioners shall have to
0
be put to strict proof and cannot be allowed to function as an .
. extraordinary and extra judicial ombudsmen questioning the
entire exercise undertaken by an extensive body which include
administrators, technocrats and financial experts. In our
considered view, this might lead to a friction if not collision E
among the three organs of the State and would affect the
principle of governance ingrained in the theory of separation
of powers. In fact, this Court in the matter ofM.P. Oil Extraction
v. State of M.P., (1997 7 SCC 592 at page 592) has
unequivocally observed that the power of judicial review of the
executive and legislative action must be kept within the bounds F
of constitutional scheme so that there may not be any occasion
to entertain misgivings about the role of judiciary in outstepping
its limit by unwarranted judicial activism being very often talked
of in these days. The democratic, set-up to which polity is so
deeply committed cannot function properly unless each of three G
organs appreciate the need for mutual respect and supremacy
in their respective .fields.
117. However, we hasten to add and do not wish to be
misunderstood so as to infer that howsoever gross or abusive H
848 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A 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
B 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 d~cision and execution. If.
such equilibrium in the matter of governance gets disturbed,
c development is bound to be slowed down and disturbed
specially in an age of econon:iic 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
D 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 iii .an age when private partnership is not
an anathema. In that view of the matter when a particular policy
E decision was taken to develop a particular project supported
by extensive research and study by the experts in the field who
prepared the projeCt report relying. upon the three successive
Master Plans of the city of Jaipur.and the global tender was
floated for development of land for tourism adjoining the lake
F area, entertaining PIL petition on the ground that the area in
question is a wet land without substantiating the same in any .
manner, i.e. neither from the revenue record nor any other
material, the pereeption of PIL Petitioners without factual basis
cannot be allowed to prevail over the decision of the entire
G group of experts which was finally accepted by the State
Government through the Project Development Report of a State
Agency which got the detailed project report (DPR) prepared
and nothing could be brought to the notice of the Court that the
DPR was not fit to be relied upon or that it was prepared in a
H clandestine manner. In our considered view unless the Detailed
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
849
Project Report, Master Plan of Jaipur, Revenue Record A
indicating the nature of land that the project was fraught with
risk of environmental degradation which could establish with
facts & figures that the decision is not .in public interest,
interference by the Court adopting an over all view smelling foul
play at every level of administration is bound to make the B
governance an impossibility. Therefore, the courts although
would be justified in questioning a particular decision if illegality
or arbitrariness is writ large on a particular venture, excessive
probe or restraint on the activity of a State is bound to derail
execution of an administrative decision even though the same c
might be in pursuance of a policy decision supported by other
cogent materials like survey and search by the reliable Expert
Agency of a State after which the State Project or private and
public partnership project is sought to be given effect to.
119. At this juncture, we take note of two overriding D
considerations which combined, narrow the scope of review.
The first is that of deference to the views of administrative
experts and the other we take assistance from the words of
Chief Justice Neely who expressed as follows:
E
"I have very few illusions about my own limitations as a
judge and from those limitations I generalise to the inherent
limitations of all appellate courts reviewing rare cases."
The learned Chief Justice further observed as follows:
F .
"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. G
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 H
850 SUPREME COURT REPORTS
I
[2014] 11 S.C.R. •
A 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·
B as State Board of Medical E~aminers, '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
C to infer that the disputed area of the lease deed borne out from ·
the revenue record is clearly confined to14.15 acres plus 8.65
acres and the balance area of the lease deed could not have ·
been interfered with so as to set aside the entire project.
• •
121. However, we have noted that the period of the lease
D deed had been finally fixed as 99 years which in our view could
not have been done by the State Government as that clearly
converts the lease deed into a perpetual lease. In fact we havE;!
noted that when the tender was floated for granting the lease
deed, the maximum period for the lease deed as per the Rule
E could not have been more than 30 years yet the tender was
floated for a period of 60' years which was later extended to
99 years. This in our view could not have been done by the
State Government as one can infer even at a glance that the
same being contrary to the rules, could not have granted it for
F a period of 99 years.
122. We, therefore, set aside the period of lease which
has been granted in favour of the appellant for a period of 99
years and the same shall stand reduced to a period of 30 years
only which could be the maximum period of the lease for the
G land under the rules which should start ordinarily from the date
of its execution so as to expire on or before the period of 30
years. But we are conscious of the fact that much time has
lapsed after execution of the lease deed in 2005 due to which
only Phase-I of the project could start after which it got stuck
H and the project is in a state of limbo due to delay on account
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
851
.of the litigation started at the behest of the respondent/PIL A
petitioners who questioned the validity of the lease deed
executed and finally succeeded in getting it set aside. We are,
therefore, of the view that the lease deed which could not be
made effective in view of the intervening litigation due to which
the Project got delayed, it is legally just and appropriate to direct 8
that the period of 30 years of the lease shall now be counted
from the date of this judgment and order.
123. We are further of the view that on or after expiry of
30 years to be counted from the date of this.judgment and
order, if for any reason whatsoever the lease deed is not C
renewed in favour of the· lessee/appellant or the appellant
chooses not to seek its renewal, the appellant shall be
adequately compensated for the property and structure which
· stands developed at the instance of the appellant during the
period when the lease subsisted in its favour. Subsequently, D
however, as to what would be the adequate period of lease to
be granted in favour of the existing or a new lessee obviously
would be determined by the State Government at the relevant
time but in so far as the instant lease deed is concerned, the
existing period of 99 years shall stand decreased to 30 years E
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
F
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 G
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
H
852 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A remedy of arbitration mechanism provided in the lease deed.
I .
125. We are informed that the first phase of the Project
has been completed since February, 2011. It is therefore
directed that the completion certificate and the lease agreement
for the first phase be issued expeditiously but not later than a
8 period of 30 days from the date' of receipt of this order.
Accordingly, the State Government shall issue the restoration
completion certificate for Phase I to enable the Project
alongwith the Jal Mahal Monument as per the Lease Deed, to
open for entry.and visit of the members of the public. Upon
C issuance of the phase-I certificate, the project developer/lessee/
appellant shall be allowed to undertake the construction as per
the approved plan in terms of the !lease deed.
126. We further hold that the area of 8.65 acres equivalent
D to 13 big has and 17 biswas shall not form part of the lease hold•
area as already stated hereinabove and the same shall! st.and
re-transferred to the Government of Rajasthan which shall be
recarved and added to the lake area and the same shall be
maintained by the competent authorities of the State. However,
E the area of 14.15 acres equivalent to 22 bighas and 17 biswas
althou~h shall be notionally treated as part of the lease deed,
the said area shall be treated as a construction free ione which
will be allowed to be used as a walkway/ the public promenade
free of any charge at the instance of the lessor and the lessee.
Remaining portion of the land forming part of the lease deed
1 F shall remain intact to be used by the appellant as per the terms
and conditions of the lease deed already executed. However
by way of abundant caution, we clarify that Mansagar Lake
Restoration Project if undertaken by the State or the Ministry
of Environment, the same shall not get affected by virtue of the
G lease deed in any manner.
127. It is further held that since the land which is a part of
the lease hold area barring 2 chunks viz. 8.65 acres equivalent
to 13 Bighas 17 Biswas of land and 14.15 acres of land
H approximately 22 Bighas 10 Biswas, in all 35 bighas and 27
• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA
[GYAN SUDHA MISRA, J.]
biswas equivalent to 22.80 acres, the Wetland Rules of 2010
853
A
shall not apply to the project since ·environment clearance had
already been issued u~er PIA 2006 prior to commencement
of the project. In any view the lease hold area barring the land
equivalent to 35 big has and 27 biswas having not been held
as wetland or lakebed as per the revenue record as also the B
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 c
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
0
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 E
development of the project which we have now resolved, we
direct that the appellant/lessee shall be entitled to re-start the
project forthwith subject to what we have recorded hereinbefore.
128. The judgment and order of the High Court thus stands
quashed and set aside to the extent by which the lease deed F
has been cancelled except an area of 13 bighas 17 biswas
equivalent to 8.65 acres and the balance disputed area claimed
~o be lake bed comprising 14.15 acres shall be notionally
treated as part of the lease deed but the same shall remain a
construction free zone where neither the State Government of G
Rajasthan nor the appellant-lessee/Jal Mahal Resorts Pvt. Ltd.
shall have the right to raise any construction on this area as the
same shall remain exclusively for the use of public promenade
I walkway free of charge.
H
A
854 SUPREME COURT REPORTS [2014] 11 S.C.R.
129. In view of the an~lysis made hereinbefore, these
•
appeals stand partly allowed to the extent indicated
hereinabove but in the circumstance, the parties are directed
.to bear their own costs.
B Kalpana K. Tripathy Appeals partly allovied.
'.
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