TaxTMI 
TaxTMI 
2012 (5) TMI 578
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....ondent no.7-Jal Mahal Resorts Private Limited and Jal Mahal Leave & License Agreement dated 22nd November, 2005. In Writ Petition No.6039/2011, prayers have also been made to quash the approvals and clearances contained in the orders dated 16.9.2009 and 22.9.2009 and to direct the respondent no.7-Jal Mahal Resorts Pvt. Ltd. to restore the original position of 100 acres of land by removing the soil filled-in by it at its own cost and to hand over the possession to the Municipal Corporation, Jaipur; to immediately remove all sedimentation and settling tanks from the Mansagar Lake basin at its own costs; to restore position of Nagtalai and Brahampuri Nalah (Drains) to their original position as realigned by RUIDP under Mansagar Lake Restoration Plan. Prayer has also been made to direct the respondents-authorities to monitor and maintain the Mansagar Lake in its full original length, breadth and depth and to take appropriate action against all those responsible for execution of the contract for transfer of 100 acre land in favour of RTDC as well as the respondent no.7-Jal Mahal Resorts Pvt. Ltd. and for permitting the respondent no.7 to excavate the soil of the Mansagar Lake, construct....
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....l 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 while the rest was to be borne by the State Government. The administrative approval and expenditure sanction was granted by the MOEF vide order Annex.5 dated 5.9.2002 and the order was revised by the MOEF vide Annex.6 dated 23.12.2002. The JDA implemented the lake restoration plan under which Sewage Treatment Plant (STP) near Brahampuri has been revamped from which treated water is being diverted to lake for compensating evaporation losses during dry weather. A two step Tertiery Treatment Plant has also been developed. Lake has been cleared from hyacinth plants completely by the JDA. The JDA has also invested in development of lake front promenade on Jaipur-Amer Road and constructed road etc. along the lake on north side which has formed a new water body of about 5 hac. in size for storing hill run off during rainy season for wild life which includes Hanuman langur (Semnopithecus entellus), Black aped Hare (Lepus nigricollos), Indian Porcupines (Hystrix indica), Blue bull (Boselaphus tragocamelus), Sambhar (Cervus unicolor), Common Mangoose (Herpestes edwardsi....
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....8.2003, it was decided that nodel 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 "the RTDC") vide order Annex.14 dated 6.9.2003. Though bidding was started, but no survey of the actual site and demarcation of 100 acres area on the map was made and even environment impact assessment was not carried out before planning the project. In the advertisement, the last date for submission of bid was 5th September, 2003. It was necessary under the terms of the bid that only Private Limited Company or Public Limited Company could have submitted tender. It was necessary that lead Manager should be Private or Public Limited Company. The offer was submitted by KGK Enterprises, partnership firm and its HUF Manager, thus, it was not fulfilling eligibility qualification provided under the terms inviting tender. However, later on decision was taken to include KGK Enterprises though it was lacking eligibility condition. Jal Mahal Resorts Pvt. Ltd. Company has been incorporated on 10th November, 2004. The decision was....
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...., the entire lake has been converted into a series of small tanks followed by a large tank i.e. lake. This has adversely affected aesthetic value of the Mansagar Lake. Prior to construction of storm water management plan, lake water also used to be released for irrigation. Now, water will be released through sluice gates into downstream directly without flowing through the lake basin and there will be no flushing out of salts from the lake. The build of salts will convert fresh water lake into a saline lake which will alter its flora and fauna. It is further submitted by the petitioner that the respondent no.7 was not at all concerned with the construction of storm water management plan that too in the lake bed itself. It has been carried out without any requisite sanction and study by any of the concerned authority otherwise such a large area of the lake could not have been allowed to be sacrificed for such purpose. As per the monitoring done by the petitioner, the chloride content in the Mansagar Lake has been increased and salt in water has gone high, details of which have been given in the petition. The sudden increase in the chloride content of the lake is attributed to direct....
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....6 (hereinafter referred to as "the Act of 1986") and rules framed thereunder for environment clearance before implementation of the projects mentioned therein. The project in question is covered by item 8(a) as well as 8(b) of the said notification and therefore, project cannot be implemented without obtaining environment clearance from the Central Government under the aforesaid notification. Since no environment impact assessment was carried out nor any environment clearance has been obtained before finalizing the project, all actions taken by the respondents are absolutely illegal and void. The petitioner has further submitted that respondents are deliberately and willfully acting in collusion with the private entrepreneur in violation of the provisions of the Water (Prevention and Control of Pollution) Act,1974 (hereinafter referred to as "the Water Act"). The petitioner has come to know that the Pollution Control Board has also been mislead by representing that the Tourism Project has clearance of MOEF though no such clearance was obtained for the said Project from MOEF. The environment clearance as required under notification dated 14.9.2006 has not been obtained nor any co....
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....mises in the form of lease, sub lease, license, right of way or otherwise; tangible assets such as the facilities, foundation, embankments, buildings, structures, pavement and walkways, drainage facilities, sign boards, milestone, electrical works for lighting, telephone and other communication equipment at the demised premises etc. Jal Mahal Resorts Private Limited has also been given right to sub lease, grant license and determine, demand, collect, retain and appropriate the sub lease rentals and license fees. It is further averred that as per the provisions of Section 16 of the Rajasthan Tenancy Act (for short 'the Tenancy Act') Gairmumkin land cannot be transferred to any person. Jal Mahal Resorts Pvt.Ltd. has constructed a wall and almost stopped the flow of water to the lake from one side. No one has a right to obstruct catchment area and supply of water. However, the respondents-authorities have permitted Jal Mahal Resorts Pvt.Ltd. to construct 400 rooms in the hotel in the catchment area and part of the lake. It is further averred that in the year 1968, as per Section 3 of the Rajasthan Monuments, Archaeological Site and Antiquities Act, 1961 (hereinafter referre....
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....velopment Authority Act, 1982 (hereinafter referred to as "the JDA Act") governs the manner of disposal of land vested in JDA and similarly, Sections 80 and 92 of the Municipalities Act govern the disposal of land by Municipalities. The State Government has framed the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (hereinafter referred to as "the Rules of 1974") and the action is in violation of the aforesaid provisions of the Acts and Rules; lease deed has been executed by the Government of Rajasthan on behalf of the Governor of Rajasthan through Rakesh Saini, Director, RTDC under authorization granted vide order dated 14.11.2005, however, in the recital it has been mentioned that the RTDC owns the demised premises and in that case, Government of Rajasthan cannot be party to the lease; 100 acres of land did not belong to the Government of Rajasthan or RTDC; land belonging to Municipal Corporation could not have been divested except in accordance with the provisions of the Municipalities Act and the Rules; there is misrepresentation with regard to size of the lake; the original size of the lake is much more than 432.8 acres and area of Mansagar Lake was never limited....
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....thority. As the Wetlands Rules have already come into operation, the respondent-State and other authorities are under obligation to complete the aforesaid exercise and thereafter, to go with the project. The action is violative of Articles 14, 21, 48A and 51-A(g) of the Constitution of India. Ground has also been raised that it is a case of fraudulent siphoning of valuable public property. The value of the land in question was not less than Rs. 3500 crores and annual lease money at the rate of 5% would come to Rs. 175 crores per annum, but the respondents-authorities have only realized annual lease rentals of Rs. 2.52 crores and thus, the transaction in question is against public interest and public largesses have been frittered away to a private sector developer. Successful bidder had no experience of executing a single such type of project; successful bidder was not even qualified; the company which was created after acceptance of the bid was nothing but fraudulent creation of a limited liability private company of father and son only whose total paid up capital share on the date of its incorporation was Rs.one lac only and total authorized capital of the company itself was merel....
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....s scrapped. Thereafter, JDA was appointed as Nodel Agency to undertake the bidding process. Global tenders were invited on 25.4.2003 and in pursuance thereof, 9 entrepreneurs shown interest. It was mentioned in the advertisement that 100 acres of land would be leased out for 99 years. A pre bid meeting was held on 14.8.2003 for removal of doubts. The Department of Tourism on 6.9.2003 transferred the development of Jal Mahal to RTDC vide letter Annex.R-1/12. On 15.9.2003, pre-qualification bids were opened; 4 entrepreneurs submitted bids; rejection of one bid was recommended on account of inadequate information on evaluation. It was further pointed out that respondent-M/s KGK Enterprises was a partnership concern whereas the criteria for bidder was that it has to be private/public limited company and thus, final view of the Government was sought in respect of qualification/disqualification of M/s KGK Enterprises for the next phase of evaluation. Two other firms were found fit in pre-qualification bid. Later, on 14th November, 2004, KGK Enterprises formed Private Limited Company in the name and style "Jal Mahal Resorts Private Limited". The PDCOR suggested retention of KGK Enterprise....
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.... made applicable to Sambhar Lake and to Keola Deo Lake in Rajasthan. The land leased out does not fall within the definition of Section 2(1)(g) and Section 3. The consent has been given under the Water Act by the Rajasthan Pollution Control Board on 20th May, 2010. For the last three decades, the State Government has been making efforts for restoration of Jal Mahal, Mansagar Lake and the area around lake. Desilting has not caused any ecological damage. Stand of Jaipur Development Authority Jaipur Development Authority in its return has submitted that for development of Jal Mahal Tourism Project, land of private unit was acquired; certain land was sawaichak (government) land and land of Public Works Department; land of three villages, namely, Vijay Mahal, Bansbadanpura and Kasba Amer was included; 178 bigha 9 biswa was in private tenancy; 475 bigha 9 biswa was sawaichak (Government land), 25 bigha 4 biswa was of PWD; 133 bigha 15 biswa was of Municipal Council; 19 bigha 10 biswa was of Forest Department total 832 bigha 01 biswa as mentioned in the letter dated 7.6.1982 written by UIT to the Deputy Secretary, UDH. When JDA was formed, the area of Jal Mahal Project stood transfe....
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.... Prakash Sharma appears to have obtained registration on 19.3.2010 only for the purpose of approaching this Court in PIL; Prof.K.P.Sharma-petitioner in Writ Petition No.6039/2011 is not recognized authority or lake conservationist or expert in lake management, irrigation, environmental protection; there has been orchestrated campaign through vernacular newspaper for reasons best known to the correspondent and the newspaper itself; the said newspaper runs the Janmangal Trust which maintains the Mansagar Dam on behalf of the Irrigation Department and the said Trust also carries out commercial activities to generate revenue for upkeep of the dam; in 1992, the newspaper group wanted to utilize the Jal Mahal complex and the land which is part of Jal Mahal Tourism Project for its own benefit and commercial use at free of cost/paltry sum and having failed to grab the land, hostile campaign has been started against the project and more than 200 misleading articles have been published in the newspaper attempting to hold a media trial in the matter. Petitioner- Prof.K.P.Sharma has not come with clean hand and concealed the material fact that on the complaint filed by him before PIL Cell of t....
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....tnership firm namely M/s KGK Enterprises, who was the lead bidder of the KGK Consortium; it is mandatory under the tender document that in case of consortium bid, successful bidder has to form Special Purpose Vehicle (Limited Company) and lease would be executed with such SPV; in the pre-qualification round, the bidder should have satisfied any two out of following three eligibility criteria for meeting financial capability:- "(i)Tangile net worth of not less than Rs. 100 Million (US $ 2 Million) as per the latest audited financial statement; (ii)Annual turn over s than Rs. 300 Million (US$ 6 Million) as per the latest audited financial statement. (iii)Net Cash Accruals not of less than Rs. 50 Million (US $ 1 Million) as per the latest audited financial statement." M/s KGK Consortium satisfied all the aforesaid technical financial criteria, however its "lead member" M/s KGK Enterprises was a "partnership firm". As the KGK Enterprises met all the requirements in respect of technical, financial, share holding and lock in periods as given in RPF, deviation from the RPF, which mandated that the lead firm must be a public/private company, was permitted and KGK Enterprises wa....
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....bility of lake maintenance is purely of the JDA; Jal Mahal monument has been de-notified in 1971 from the protected monuments under the provisions of the Act of 1961; changes in the Jal Mahal monument have been brought with the consent of the Empowered Committee; petitions have no merit and there is a right to start phase-II of the project. Stand of MOEF The Ministry of Environment and Forests, Government of India in its return has clarified that it has only sanctioned the project for conservation and management of Mansagar lake in Jaipur in December, 2002. Thus, the averment made in the petition that no sanction for Jal Mahal Tourism Project was obtained from MOEF is not disputed in the return filed by MOEF. Project for conservation and management of Mansagar lake in Jaipur was sanctioned as per the mandate of the National Lake Conservation Plan. It is also contended in the return that project for conservation and management of lake in Jaipur was sanctioned in December, 2002 at the cost of Rs. 24.72 crore under the NLCP on 70:30 cost sharing basis between Government of India and the State Government of Rajasthan and the sanction order Annex.R-10/1 to its return was issued wh....
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....hin the wetlands without the prior approval of the State Government. Submissions Mr.Aruneshwar Gupta , Mr.Rajendra Prasad and Mr.A.K.Jain, learned counsel appearing on behalf of the petitioners have submitted that lease agreement for 100 acres of prime and valuable land belonging to the State Government, Municipal Corporation and JDA held by them in public trust for no payment to them and payment of annual license fee of Rs. 1/- per year to the State and Rs. 2.52 crores to RTDC with obligations to maintain lake and various other kinds of obligations, is unreasonable and fraud on economics of the State and public exchequer. The Municipal Board and JDA have got no lease amount for the assets held by them in public trust. The minimum value of the land as per DLC rate is Rs. 2500 crores, which could fetch a minimum return at 6% amounting to Rs. 150 crores per annum. Market price is 3500 crores. They have further submitted that out of 100 acres of land leased out to Jal Mahal Resorts Pvt. Ltd., more than 13 bigha of land is recorded as Gairmumkin Talab, which is in the lakebed itself and as apparent from the possession report, more than 14 acres of land was submerged at the time o....
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....bility, public financing and smacks of highhandedness, corruption and nepotism by people in authority/power and clearly contravenes the doctrine of public trust. Jal Mahal Resorts Pvt.Ltd. was incorporated having no nexus with the activities to be undertaken under the leave and license agreement, which are in the nature of conservation, restoration and reuse of Jal Mahal as a monument and not as a hotel or resort; the license agreement and the work of conservation, restoration and reuse of Jal Mahal has been used as a mere mask for giving on lease 100 acres of wetland in the prime location of the city of Jaipur. The lease agreement and leave and license agreement are in violation of the Ramsar Convention 1982 and Rule 4 of the Wetlands Rules. It was also submitted that PPP model projected by Jal Mahal Resorts Pvt.Ltd. is under a serious cloud because IL and FS with whom RTDC has formed PDCOR has a serious case study against them and are also the consultants of Jal Mahal Resorts Pvt.Ltd.; it is apparent that umpire is acting as advisor in the whole process. There is no delay in filing the writ petitions as plan has been revised in 2009 and some of the clearances have been obtained o....
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....ea was reserved for tourism project on Jal Mahal; JDA has spent Rs. 24 crores for restoration of the lake; Wetlands Rules came into force in 2010, therefore, they are not applicable; decision has been taken by the empowered committee; transaction is proper; no case is made out to interfere in the matter; condition of eligibility was rightly relaxed; this Court can pass order regarding 13 bigha 17 biswa land which is part of lake bed. PPP is now being promoted in such ventures. In contractual matters, Court cannot interfere. Shri A.K.Sharma, learned Senior Counsel appearing on behalf of Jal Mahal Resorts Pvt.Ltd. and KGK Enterprises has submitted that the writ petitions cannot be said to be maintainable having been filed with delay and laches; credential of the petitioners have been doubted; they were not having any interest in the preservation and restoration of Mansagar Lake and Jal Mahal monument; writ petitions are not bonafide, rather amounted to abuse of the process of the court; there is campaign of vernacular newspaper which resulted into filing of the writ petitions; for maintenance of Mansagar Dam, Janmangal Trust was carrying out commercial activities to generate reven....
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....o provide irrigation and recharging the ground water. The entire catchment area of the Mansagar lake is 2350 hectares and construction of seven star hotel on part of 100 acres of land is not going to violate the directions of this Court in Abdul Rehman's case (supra); Jalmahal was never used as Hindu Temple or Peer Baba Ki Mazzar. Jalmahal is not protected monument after entry has been deleted in the year 1971; new pleas based on new facts cannot be permitted to be raised by the petitioners in the rejoinder; the lease rent of Rs. 2.52 crores shall be first used for maintenance of the lake and the remaining, if any, for appropriation by RTDC or JMC or Government of Rajasthan; lease rent is not Rs. 1 as alleged but lease rent is Rs. 2.52 crores per annum with an escalation of 10% in every three years; the auction notice has not been questioned; it was mandatory under tender document that in case of consortium bid, successful bidder has to form Special Purpose Vehicle (Limited Company) and lease will be executed with such SPV, as such, Jal Mahal Resort Pvt.Ltd. was formed and it has incurred Rs. 10 crores in restoration of Jalmahal Monument and further, it has incurred total expenditu....
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.... fringe of Jaipur City. Maharaja Man Singh in 1610 constructed a dam across the Darbhawati River between Khilagarh hills and hilly areas of Nahargah which created lake. Jal Mahal had been constructed in the said Mansagar lake which is the place of international tourism and attracts foreign tourists to Jaipur. Jal Mahal is a pleasure palace which is perched amidst Mansagar lake surrounded by Nahargarh hills and reserve forest area. The Palace is famous for its sophisticated design and grand architecture. The Palace was developed as a pleasure spot and was used for the royal duck shooting parties. A causeway leads to Jal Mahal Palace situated in the middle of Mansagar lake, opposite the cenotaphs. The first four floors of the building is under water, only the top floor remains outside. Wonderful view of the lake and palace is visible from Nahargarh Fort built in 1799. In 18th Century, the palace and the lake around it were renovated by Maharaja Jai Singh II of Amber and the Palace has got an eye-popping make over. There are wooden boats made by traditional boat makers from Vrindavan; drains were diverted; toxic silt was dredged from the bottom; a water treatment system was develop....
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....astern side of the project area is delineated as reserved forest and contain several wildlife species including deer. It is Subsidiary Edaphic type of dry trophical forests. The main predominant floral specie is Dhauk (Anogeissus pendula). Due to thin tree cover, lean foliage, lack of law vegetation cover and steep gradient a substantial amount of eroded material reaches into the lake. On the wester side, beyond the urbanised area, the Nahargarh hills are also bereft of vegetation resulting in decline in moisture retaining capacity. As part of the preliminary survey of biodiversity of Nahargarh Wildlife Sanctuary, Jaipur, conducted by Dr.Satish Kumar Sharma in 1999, Man Sagar Lake area was also covered. The survey results suggest that predominant species in the foothills surrounding the project area are jungle cat, striped hyena, India Fox and India wild boar. Also according to the people residing in the Kanak Vrindavan valley leopards were also seen in the forest area. All the above observations establish that there exists a predominantly significant wildlife in the area and this wildlife in the northern hills visit Man Sagar Lake for drinking water. Man Sagar lake draws a l....
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....pment fee as per the payment schedule set out in Appendix 8 i.e. 2.52 crores as annual lease rentals. The term of the lease is 99 years. The licensee shall be entitled to be in peaceful possession and the use of the demised premises. As per clause (a) of Article 7 covenants of lessee, the licensee shall develop, establish, implement, operate and maintain the project at its cost and expense by itself or through sub contracting arrangements in accordance with the terms and conditions of the agreement and complete the project Phase I within the time period specified therein. As per clause (g), prior to any assignment, mortgage, sub lease or transfer of the demised premises the lessee shall obtain from the lessor or its duly authorized representative in this behalf prior written approval for such assignment, mortgage, sub lease or transfer and to the terms of such assignment etc. and ensure that all such assignees, mortgagees, sub-leases or transferees and their successors and assigns and the successors of the lessee are bound by all the covenants and conditions herein contained and be liable in all respect in this behalf. The lessee shall further ensure that such assignees, mortgagees....
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....the monies which may become payable by the lessee to its lenders. Commercial/Tourism Functions which have been permitted The following commercial/tourism functions have been permitted in project area as mentioned in Appendix 2 to the lease agreement:- (i)Hotel/Resort/Heritage Village (ii)Convention Centre (iii)Sports & Sailing and other Club activities (iv)Boating and Sailing (v)Light & Sound Shows (vi)Art Galleries (vii)Restaurants/Food Court (viii)Limited Shopping Mall (craft bazaar) (ix)Family Entertainment Centre/multiplex (x) Recreation activities on the lake (only non motorized boats would be allowed other than 2 or 3 rescue boats which an be motorized) Tourism & Recreational Total Land area Products in acre 1. Resort 30.0 2. Craft village 5.0 3. Chowki Dhani Type 7.0 4. Restaurant + Bar 1.0 5. Food Court 1.0 6. Ent.Centre 0.5 7. Multiplex 2.0 8. Go Karting 3.0 9. Boat House 2.0 10. Amusement Park 30.0 11. Convention Centre 8.0 Total:- 89.5 Common Facilities 2 Public Garden/ Square 10.5 Fountain ________ Total:- ....
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.... (visit to monument by non-motorised boat). Clause 5.6 is quoted below:- "5.6 The licensee shall levy, demand, collect, retain, appropriate and revise user charges for the reuse of the Monument specified in the Plan (visit to monument by non-motorized boat) by Persons visiting the Monument at the rates set out in Annexure 3, which shall be rounded to the nearest rupee. For the avoidance of doubt, the Licensor acknowledges the right of the licensee to restrict visitors failing to pay the specified user charges from entering the Monument, provided that this condition shall not apply to duly authorised personnel of the licensor and competent authorities visiting the Monument for discharging official duties under the applicable laws." It is also apparent from clause 2.2(c) that the entry fee to the monument will be Rs. 25/- per visitor with escalation 10% per year. This goes to show that leave and license agreement is also for commercial gain given at Rs. 1/- per annum for 99 years. A revised proposal was submitted by Jal Mahal Resorts Pvt.Ltd. on 26th June, 2006 increasing the number of rooms in the hotel from 200 to 435, increase in the built up area under the sub head of re....
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....ral resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. The Government is bound to protect environment, forest, air, water, coastal zones etc. The State Government is bound to act as guardian and trustee in relation to catchment area of the pond, lake or river. People are owner of the natural resources. The Courts in India, considering Article 48, 48A, 51A(g) of the Constitution of India have issued directions from time to time with respect to natural resources, process of distribution to private persons, doctrine of public trust was evolved as part of Indian Jurisprudence, polluter-pay-principle was developed in M.C.Mehta V/s Kamal Nath (1997(1) SCC 388) and has been followed in Jamshed H....
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....and for protecting and managing resources, ecological values or objects held in trust. 55. The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources." In M.C.Mehta Vs. Kamal Nath & Ors, (1997) 1 SCC 388,the Apex Court has laid down that the river is a public property. It cannot be given for private use. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be con....
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....a in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono Lake case to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. v. Mississippi 108 S.C.C. 791, the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological concepts to determine which land can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to i....
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....in its report has recommended delousing of the said area." (emphasis added by us) The case of Kamal Nath (supra) is squarely applicable to the facts of the instant case as it is more or less similar. In Intellectuals Forum, Tirupathi Vs. State of A.P. & Ors.(AIR 2006 SC 1352), the Apex Court has laid down that the government is bound to protect historical tanks qua concept of 'sustainable development' and 'public trust doctrine'. Destruction of local ecological resources is not permissible. Property subject to trust must not only be used for a public purpose, but it must be held available for use by general public. Property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources. Principle of 'Inter-Generational Equity' also to be applied for protecting natural resources has also been taken into consideration by their Lordships of the Apex Court. The Apex Court has held that the "tank is a communal property" and State authorities are "trustees" to hold and manage such properties for benefits of community. State cannot be allowed to commit any act or omission which will infrin....
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....nd thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population. 69. Subsequently the Rio Declaration on Environment and Development, passed during the Earth Summit at 1992, to which also India is a party, adopts the notion of sustainable development. Principle 4 of the declaration states: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. 73. In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. Public Trust Doctrine 74. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This....
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....es not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources, [Joseph L. Sax "The public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol.68 No.3 (Jan.1970) PP 471- 566)]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to imposed by the public trust doctrine [ibid]: 1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; 2. the property may not be sold, even for fair cash equi....
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....of environment and protection of valuable and most cherished fresh water resources. 91.It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body. " (emphasis added) In Akhil Bharatiya Upbhokta Congress v. State of M.P. (2011) 5 SCC 29, the Apex Court examined the legality of the action taken by the Government of Madhya Pradesh to allot 20 acres land to an institute established in the name of Kushabhau Thakre on the basis of an application made by the Trust. One of the grounds on which the Appellant challenged the allotment of land was that the State Government had not adopted any rational method consistent with the doctrine of equality. The High Court negatived the Appellant's challenge. Before the Apex Court, it was argued that the Court cannot exercise the power of judicial review to nullify the policy framed by the State Government to allot Nazul land without advertisement and the Apex Court rejected the said argum....
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....:- "14. In M.L.Builders (P) Ltd. V/s Radhey Shyam Sahu (1999(6) SCC 464) the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores. In Friends Colony Development Committee V/s State of Orissa 2004(8) SCC 733, this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion, this decision will apply with greater force in cases of encroachment of village common land. Ordinarily, compounding in suchcases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers or a dispensary for them. 15. In many States Government orders have been issued by the State Government permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such government orders are illegal and should be ignored. 16. The present is a case of land recorded as a village pond. This Court in Hinch La....
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....most next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated April 20, 1996 indicating the surroundings, geological features, land use and soil types and archaeological significance of the areas surrounding the lakes. According to the report Surajkund lake impounds water from rain and natural springs. Badkhal lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types as explained in the report show that the Badkhal lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 7.The two expert opinions on the record - b....
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....evelopment stating: The harmonization of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs. Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined: The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires." ....
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....cre), 108/326 (0.27 Acre), 70/327 (8.77 Acre) in village Vijay Mahal, Tehsil - Jaipur as per map annexed to lease agreement. Out of this land measuring 14.15 acre is submerged as per map, which the lessee (Jal Mahal Resorts Pvt. Ltd.) is hereby authorized to reclaim at its own expense in presence of the following............. Sd/-" (emphasis added) It was also submitted by respondents that land which was in submergence was not part of the area of lake. As the area of lake had not been ascertained by the concerned authorities with the help of old map etc., it could not be said that the area which was in submergence was not part of area of lake. When possession of the land in question was given, 14.15 acres land was in submergence, therefore, it was part of the area of lake, which could not have been reclaimed by respondent no.7. Such exercise is wholly impermissible. The area of the lake could not have been leased out and by doing so, lake is being damaged by proposing construction in it. The area of lake has been reduced, which is also illegal, arbitrary, without jurisdiction and void. When the possession was handed over, 14.15 acres of land was found in submergence and si....
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....all property specified in that section is vested in the Board and shall be held by it as trustee. All public streams, tanks, reservoir, tanks etc. shall be held by it as trustee as provided in Section 92(2)(b). It is also clear that permission of Central Government MOEF was necessary to be obtained as per the notification dated 14th September, 2006 issued by MOEF in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O.60(E) dated the 27th January, 1994 wherein the Central Government directed that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment A....
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....Pollution Control Board from time to time (iii) Notified Eco-sensitive areas (iv) inter-State boundaries and international boundaries." (emphasis added) The MOEF Central Government in its return has clearly clarified that MOEF had sanctioned 70% of the cost of the project to the tune of Rs. 17.30 crores for conservation and management of Mansagar Lake in Jaipur and with respect to item 8(a) again it is reiterated in the return that any building/ construction project whose built up area is between 20,000-1,50,000 sqm.falls in the category-B and will require prior environment clearance from SEIAA and with respect to item 8(b), it was submitted that neither any communication nor any document was received from the State Government of Rajasthan or the project proponents seeking permission from Central Wetland Regulatory Authority. Thus, it has not been disputed by MOEF that no permission for the project over 100 acres of land or on the other project area has been granted. For what purpose, it has granted the sanction has been clearly specified in the return. Relevant portion of the reply of MOEF is quoted below:- "17. That the contents of para 7 of the petition are replied in t....
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....ented within the sanctioned cost. 2. The details of items sanctioned under the scheme are furnished in general abstract of cost (Annexure-I) 3. The following points should be noted:- (a) 70% cost is to be borne by Govt. of India. Cost of land, if any, shall be borne by state Govt. Cost Escalation if any shall be met by the state Govt. (b) The scheme is to be completed within one and half year of its initiation, which should be strictly followed, and any increase due to time or cost over run or any other reasons shall be borne by the state Govt. (c) Annual operation and maintenance expenses shall be borne by state Govt. fully. (d) Approval is subject to compliance of commitment by the state Govt. with regard to O & M costs. (e) The State Govt. will ensure that no untreated sewage is discharged into the Mansagar Lake after the implementation of the lake conservation project. The Mansagar lake project would be monitored by Ministry of Env. & Forests/Planning Commission. For which necessary local arrangements shall be made by the implementing agency/state Govt. (f) Release of fund for this scheme will be further linked to:- (i) Fulfillment of legal and physic....
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....Govt. as Rs. 7.42 crore. 2. The break-up of the revised project cost is given at Annexure-I. 3. All other conditions as stated in the earlier sanction order shall remain the same. 4. The funds for expenditure on the scheme would be debitable to the Major Head '3435',04,101,05,00,31 -Grants-in-Aid - National Lake Conservation Plan (NLCP) under Demand No.24 - Ministry of Environment & Forests for the financial year 2002-03 (Plan). 5. This issue under the powers delegated to the Ministry of Environment & Forests and with the approval of the IFD vide their Dy. No.2016/JS & FA/2002 dated 20.12.2002. Yours faithfully -sd- (Asha Makhijani) Under Secretary to the Govt of India DETAILS OF BUDGET ESTIMATE FOR MANSAGAR LAKE CONSERVATION PROJECT UNDER NLCP S.No. ACTIVITIES COST ESTIMATE (Rs.IN CRORE) 1. Realignment of Drains 2.54 2. Desilting of Lake 7.01 3. Insitu Bioremediation 3.00 4. STP & Wetland construction 4.50 5. Settling Tank near Amer Road & Pumping Arrangement 0.10 6. Analysis of Water Quality and Sludge/sediment 0.14 7. Aforestation of the Lake 1.00 8. Lake Front Promenade 0.72 9. Water Supply & Sewerage 0.99 10. Electric....
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....ated in Schedule III. No environment clearance as required under the notification dated 27.1.1994 from the Central Government MOEF as project in question was falling in Schedule-I, was obtained. The permission obtained from the State Level Environment Impact Assessment Authority, Rajasthan has no value because that authority was competent to grant sanction only for the matters falling under category B and not for the matters falling under category-A and since the project in question is admittedly within 10 kms. of the boundary of the Nahargarh Wildlife Sanctuary, which is notified reserved forest under the Wildlife Protection Act, 1972, therefore, it was incumbent upon the respondents to have obtained environment clearance from the Central Government MOEF, which has not been obtained. It was also incumbent upon the respondents to have obtained environment clearance of Central Government MOEF in view of notification dated 14th September, 2006 issued under the Environment Protection Act as the project in question was within 10 kms from the boundary of protected area, but no such clearance has been obtained. The Central Government MOEF has only granted sanction for conservation and....
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....300 acres for gaining the project area of 100 acres out of the actual lake spread. The report clearly shows that the area of 100 acres was to be prepared by filling soil received in the process of desiltation of lake basin. At page 12 and 13 of DPR, it is stated as under:- "(b) Outputs of Surveys: (i) It is observed that the lake is at its maximum spread just after the monsoons and shrinks gradually to its least spread just before the monsoon. The contour map shows the water spreads in accordance with various contour levels. It may be noted that the full tank level is the 99.0 contour RL and the level of the Amber - Delhi Road is 100.0 contour RL in comparison". At page 36 of DPR it is stated as under: "2.7. Spread and Volume of lake water: (a) ........ (b) At the higher contour level there is constant threat of the lake waters spilling over on to the Amber Road, surrounding settlements and Projects Area. Hence, there is a need to establish a particular spread and volume of the water that ensures round the year sustenance of the lake." At page 51 to 54 of DPR, it is stated as under:- "3.0 ALTERNATIVE SCENARIOS CONSIDERED FOR DECIDING LEVEL OF LAKE. Whi....
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....2 of DPR it is stated as under: "4.4 ..... . . . (a) Desiltation - Concept (i).........The silt is mainly sandy soil although rich in nutrients and the volume to be removed is 700,000 m3. The desiltation will be above the 96.0m RL and upto the 98.0m RL....................The silt will be used in land formation along the Amer-Jaipur Road, in surface spreading in the southern project areas, in check dam in the Forest Valley, in island formation and in other engineering works to the extent of 700,000 m3. This Will result in a new spread and volume of the lake as follows: Spread: 1.11 sq.Km. (111 ha) Volumetric 2.42 MCM" (b) .. . . . . (vii) Land formation for tourism facilities could be easily achieved through this dredging process. This process could be started immediately on being given the go ahead for the project and could be achieved in a far quicker time frame than through conventional methods of desilting and filling..................." At page 98 of DPR it is mentioned as under: "6.3 Mansagar Lake Precinct (a) Land available for Development The land availability option chosen is based on restoring lake water....
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....able on record, particularly DPR itself the basis of entire project where it is stated that the current maximum water spread of the lake being 400 acres, there remains no manner of doubt about the fact that the respondent authorities have sold/leased out 25% of lake basin itself for the purpose of preparing 100 acres of land to be used for their so called tourism project which is absolutely illegal and unconstitutional and therefore void ab initio. It was not open to tamper with lake water level to create 100 acre land for lease for hotels etc. Desilting and construction of wall was also done in an illegal manner in lakebed. There are allegations made by the petitioners that in the process of drying and excavating the lake bed, most of the trees and shrubs which were planted during the lake restoration plan were completely destroyed. There is substance in the said submission. What had happened to the planted trees and shrubs, if they have not been destroyed during the aforesaid process, is not properly explained by the respondents. Size of Lake It was submitted by the petitioners that originally the lake was much larger in size and spread which was reduced due to severa....
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.... violation of the directions issued by the Division Bench of this Court in the case of Abdul Rehman (supra) and principles enunciated by the Apex Court in various decisions. No transfer of any part of lake bed was permissible, much less construction on it. Property belongs to JDA, Municipal Corporation and part of it held by the State Government in public trust. Violation of statutory provisions (A) Violation of Environment (Protection) Act 1986 As already stated above, the State Government did not carry out any environmental impact study before entering lease and license and no environment clearance has been obtained from the Central Government MOEF as required under the Notifications dated 27.1.1994 and 14.9.2006 issued under the provisions of the Act of 1986. Thus, there is violation of the notification issued under section 3 of the Act of 1986 and the Environment (Protection) Rules framed thereunder which is punishable under section 15 of the Act of 1986 for a term which may extend to five years, as no requisite permission from the Central Government MOEF was obtained, as evident from the reply of the Central Government MOEF. The submission based on letter of Cen....
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....operty vesting with the RTDC." The disposal of the property is through Committee, constitution of which is provided in Rule 3. Rule 14 provides that the committee referred to Rule 3 may decide to dispose of any land or property including nazul properties on lease agreement for a period to be determined by the committee provided that the maximum lease period shall not exceed 30 years. Significantly Rule 15 provides that the Committee will determine the "value of the property" which shall form the basis for determining minimum lump sum down payment and also "minimum annual lease rent" and increase thereon. Rule 14 and 15 of the Rules of 1997 are quoted below:- "14. The committee referred to Rule 3 may decide to dispose off any land or property including nazool properties on lease agreement for a period to be determined by the committee Provided that the maximum lease period shall not exceed 30 years. 15. The Committee will determine the value of the property which shall form the basis for determining minimum lump sum down payment and also minimum annual lease rent and increase thereon." (Emphasis added) Rule 22 of the Rules of 1997 provides that DOT/RTDC may dispose....
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....d as also any government land and so far as is not inconsistent with the provisions and purposes of this Act and the rules made thereunder, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes. Section 92 deals with power to acquire and hold property and as per Section 92 (2)(b), all public streams, tanks, reservoirs, cisterns, wells, springs, aqueducts, conduits, tunnels, pipes, pumps and water works, and all bridges, buildings, engines, works, materials and things connected therewith or appertaining thereto and also any adjacent land, not being private property, appertaining to any public tank or well, shall vest and belong to the Municipal Board and the Municipal Board shall hold them as "trustee". Section 92(2)(b) is quoted below:- "92. Power to acquire and hold Property.-(2) All property of the nature hereinafter in this section specified and not being specially reserved by the State Government shall vest in and belong to the board, and shall together with all other property of whatsoever nature or kind not being specially reserved by the State Government, which may become veste....
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....f undeveloped land; (2) cost of developed land; and (3) 20% of the item No.(2) to cover administrative and establishment charges Subject to the following conditions (a) minimum of Rs. 500 per sq. metre where underground sewerage is provided (b) minimum of Rs. 3.25 per sq.metre in all other cases." Rule 12 of the Rules of 1974 deals with fixing of minimum premium (reserve price or fixed price). Rule 12 is quoted below: "12. Fixing of minimum premium (Reserve price or fixed price) (1). Sanction of Scheme and reserve price by Committee. The scheme approved by Chief Town Planner together with a Statement of development cost etc., determining the reserve price (minimum premium) at which plots of land are proposed to be disposed of shall be submitted by the Board for the sanction of the State Government in the prescribed proforma and such proposal shall be examined by a Committee consisting of the following members:- (a) In case of Cities and municipalities at District head Quarters.- 1. Collector of the District Chairman 2. Senior Town Planner Member or Deputy Town Planner having jurisdiction 3. Executive Engineer, Public Member Works Department (Buil....
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....g to the importance of particular sites, viz. business centres, commercial complexes, industrial areas or locality, Ward or Mohalla wise.] It was also incumbent upon Jaipur Municipal Corporation to follow Rule 15(15) before handing over land to the Department of Tourism/RTDC and to realize commercial reserve price. Rule 15(15) is quoted below:- "15. Allotment and sale of non-residential Land.- (15) The land required by Tourism Department/Rajasthan Tourism Development Corporation for establishment of a Tourism Unit may be allotted to the Department or the said Corporation on following terms and conditions: (i) The Department of Tourism/Rajasthan Tourism Development Corporation shall atleast pay for the land at the commercial reserve price. (ii) This payment shall be made in 10 six monthly instalments provided that the first instalment shall be paid before the transfer of the said land. (iii) The land allotted to the Tourism Department or the Rajasthan Tourism Development Corporation could be further transferred for a Tourism Unit to a private individual or company corporate under the procedure which has been approved for this purpose by the Department/Corporation. ....
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....also in contravention of the Rules of 1974. (D) Violation of Jaipur Development Authority Act, 1982 The property was also held by the JDA and thus, Section 54 of the JDA Act also comes into play, which provides for land to vest in the Authority and its disposal. Section 54 of the JDA Act is quoted below: "54. Land to vest in the Authority and its disposal.(1) Notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No.15 of 1956), the land as defined in section 103 of that Act, excluding land referred to in sub-clause (ii) of clause (a) of the said section and nazul land placed at the disposal of a local authority under section 102A of that Act in Jaipur Region shall, immediately after establishment of the Authority under section 3 of this Act, be deemed to have been placed at the disposal of and vested in the Authority which shall take over such land for and on behalf of the State Government and may use the same for the purposes of this Act and may dispose of the same [by way of allotment, regularization or auction] subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner, as i....
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.... of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters. Article 1 is quoted below:- "Article 1 1. For the purpose of this convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters. 2. For the purpose of this Convention waterfowl are birds ecologically dependent on wetlands." Considering the importance of wetlands, it has been also provided in Article 2 that each contracting party shall designate suitable wetlands within its territory for inclusion in the List of Wetlands of International Importance. Article 4 provides that each contracting party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands. Article 6(1) provides that contracting parties shall ensure that those responsible at all levels for wetlands management shall be in....
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.... and fauna." Wetlands Rules In exercise of the powers conferred by Section 25 read with sub section (1) and clause (v) of sub section (2) and sub section (3) of Section 3 of the Environment (Protection) Act, 1986, the Central Government has made the Wetlands (Conservation ad Management) Rules, 2010 for conservation and management of wetlands. In the objectives, it was mentioned that Wetlands Rules have been framed for conservation and wise use of wetlands, which includes in its ambit a wide variety of habitats, such as rivers and lakes, coastal lagoons, mangroves, peatlands, coral reefs, and numerous man made wetlands such as ponds, farm ponds, irrigated agricultural lands, sacred groves, salt pans, reservoirs, gravel pits, sewage farms and canals; It has also been mentioned in the objectives that whereas the Central government has identified certain wetlands for conservation and management under its conservation programme and provides financial and technical assistance to the State Governments and Union territory Administration for various conservation activities through approval of the Management Action Plan. 'Wetland' has been defined in Rule 2(1)(g) of the Wetl....
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....bove an elevation of two thousand five hundred metes with an area equal to or greater than five hectares; (v) wetlands or wetland complexes below an elevation of two thousand five hundred meters with an area equal to or greater than five hundred hectares. (vi) any other wetland as to identified by the Authority and thereafter notified by the Central Government under the provisions of the Act for the purposes of these rules. (emphasis added) Thus, it is apparent from reading of Rule 3 that submission that these Rules apply only to SambharLake and Keola Deo Lake cannot be accepted. Other wetland as provided and specified in Rule 3(vi) are also wetland to be identified under the Wetlands Rules. There are certain restrictions on activities within wetlands as provided in Rule 4, which reads as follows:- "4. Restrictions on activities within wetlands:- (1) The following activities within the wetlands shall be prohibited, namely:- (i) reclamation of wetlands; (ii) setting up of new industries and expansion of existing industries; (iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Haza....
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....logical character of the wetland; (ix) facilities required for temporary use, such as pontoon bridges, that do not affect the ecological character of the wetland; (x) aquaculture, agriculture and horticulture activities within the wetland; (xi) repair of existing buildings or infrastructure including reconstruction activities; (xii) any other activity to be identified by the Authority." (emphasis added) Under Rule 4(i) of the Wetlands Rules, 2010 reclamation of wetlands is totally prohibited; under rule 4(vi) any construction of a permanent nature except for boat jetties within 50 meters from the mean high flood level observed in the past ten years calculated from the date of commencement of these Rules is prohibited and under Rule 4(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified in writing by the Authority constituted in accordance with these rules, is prohibited. Rule 6 of the Wetlands Rules, 2010 provides process for identification of wetlands under different categories and non-inclusion in schedule will not take the land out of the category of wetland as per Ramsar Convention to which India is signat....
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....ate, its value was Rs. 3500/- crores and such a valuable land has been given to Jal Mahal Resorts Pvt.Ltd. on lease for a period of 99 years on annual license fee of Rs. 1.00 and annual lease rentals of Rs. 2.52 crore to RTDC, who is required to carry out the work of restoration, maintenance, irrigation etc. Such transaction is wholly unreasonable and not in public interest. Out of 100 acres land leased out to Jal Mahal Resorts Pvt.Ltd., the land belonging to State, JDA and Jaipur Municipal Corporation is as follows:- 1. State Government 5.62 acres 2. JDA 41.87 acres 3. JMC 52.51 acres Total::- 100.00 acres Though the land also belonged to the JDA and JMC, but no amount has been paid to them and amount has been made payable to RTDC who is not holder of the land held in public trust and thus, execution of lease and leave and license agreement by RTDC in favour of Jal Mahal Resorts Pvt.Ltd. is without jurisdiction, illegal and void, it was necessary to work out the "reserve price" as mandated under the Municipalities Act, Rules of 1974 and the Rules of 1997, same has not been done. It was also necessary that land should be leased out....
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....after independence. The Indians, because of its connotations, abandoned it as their summer capital. The only thing which remains of the old Simla, 'M.S. Oberoi, owner of the Cecil's Hotel and Chairman of Oberoi's Hotels Ltd., laminated in 1973, 'is the claimate'. The Viceregal Lodge also was used as a part of the Legislative Wing for the summer session of Parliament and it, therefore, has the taste of transacting legislative business with the Indian legislators partly composed with the British Administrators. Lord Mountbaten had finalised the plan in Simla to divided India into three countries, namely, Bengal, composed of East and West Bengal, Pakistan and India, apart from retention of the respective areas had by named rules. A graphic account was given as to how Lord Mountbaten had his plan secretly disclosed, by inviting Pandit Jawaharlal Nehru, the first Prime Minister, who was a very close friend of Lord Mountbaten and an important spokesman on behalf of the Congress Party, to Simla. Lord Mountbaten had shown his plan of division of India. The violent reaction of Panditji was noted as mentioned at page 126 as under : The British had run India for three c....
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....ad not been ruled not. As a consequence, by Order dated February 27, 1996, this Court stated thus : ...the Chief Engineer of the CPWD, In-charge of the maintenance of Vice Regal Lodge has brought to the Court echo logy album of the entire area. It was stated that around the building, as at present, there is not proposal for construction of tourism hotels, as originally proposed, but there is a direction of the Division Bench of the Shimla High Court directing the Secretary, Human Resources Development and Urban Development should decide as to what is the extent of appurtenant land around the building beyond which the CPWD intends to construct quarters and office building for the employees transferred and stationed there or which is part of the property leased out to the Institute of Advance Studies. 18. This Court observed that since the Government of India had admitted in the counter-affidavit that the building part of the appurtenant land would be preserved as National Monuments by the Archaeological Department, the question that had arisen was what would be the appurtenant land. The Court was informed the around 65 acres was the land near the main building at the observato....
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....quired for infrastructure facilities like water, power, transportation etc. for the project area." The annual lease amount reserved may not even be sufficient to carry out aforesaid obligations of lessor. Besides, huge amount has been invested by the Central Government MOEF and JDA of more than Rs. 24.72 crores sanctioned in 2002, benefit of same is also going to be derived by the private sector developer as entire project area to the extent of 432.8 acre has been given. Lessee has been given right to alien or sub-lease or mortgage the property for 99 years on market value. It passes comprehension that when such right has been given to lessee, then what prevented the authorities from auctioning the land on market value as provided in case of grant of lease for 99 years and further with obligation to realize annual rental. However, pecuniary interest and public trust concept have been totally ignored and private sector developer has been given benefit at cost of exchequer and ecology. Yet another aspect of the matter is that under the agreement, lessee/licensee has been given right to realize amount of Rs. 25/- per person as entry fee which could be escalated by 10% every y....
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....t provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view "overriding public interest" and subject to principles of Wednesbury reasonableness." In view of the aforesaid decision, the State and its authorities were not justified in making deviation from condition of tender document. Even some part of the area of lake was leased out, which cannot be permitted. Furthermore, land of 13 bigha 17 biswa recorded as gairmumkin talab was also leased out, which is not permissible. 100 acres of valuable property has been leased out at a throw away price ignoring statutory provisions; public interest; pecuniary interest; damage to ecology etc. Thus, action of State and its authorities suffers from the vice of arbitrariness and is in breach of public trust doctrine. In Monarch Infrastructure (P) Ltd. V/s Corporation & ors. ((2000) 5 SCC 287), where one of the conditions of eligibility was deleted after the expiry of the time limit for submission of tenders but before ....
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....rises was not having experience also of such tourism project which was necessary. There appears to be some force in the submission. Since KGK Enterprises was not fulfilling the condition, it should not have been permitted to participate in the bidding process at the subsequent stages. Thus financial bid could not have been opened, propriety required that in such matter, decision ought to have been taken in a well considered manner. It was also submitted by Shri Rajendra Prasad Sharma, learned counsel appearing on behalf of the petitioners that there was fraudulent creation of Jal Mahal Resorts Pvt.Ltd. of father and son, whose total paid up share capital on the date of its incorporation was s.1.00 lacs only and even the total authorized capital of the company itself was merely Rs. 50.00 lacs only. Thus, such company could not have been given land worth Rs. 3500/- crores. Revision of Project :- It is also shocking and surprising that without clearance from the Central Government MOEF, the project was given to Jal Mahal Resorts Pvt.Ltd.; inspite of refusal to revise the plan on 10.10.2007 on the ground that Master Plan could not be changed, revision in the plan was accepted ....
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....earance was obtained from the competent authority; the decision of the Committee could not be final so as to construct sedimentation/settling tanks. Dr.Brij Gopal objected to the decision and the same was placed before the Committee. Sedimentation tanks could not have been constructed without due clearance. It was wholly impermissible to construct tanks in lake bed. Requisite clearance from Central Government MOEF was required, which has not been obtained. Even if sedimentation tanks are temporary, substantial area of lake could not have been used for construction of sedimentation tanks. As per stand of respondents, 5% of the lake area has been used for creation of temporary sedimentation tanks and 7% of consecutive natural wet lands, which could not have been used at all and particularly without clearance from the competent authority. Thus, we have no hesitation in holding that construction of sedimentation/settling tanks was an illegal act at the cost of lake bed itself, it has damaged the lake and has reduced its area. Maintainability of writ-Delay It was submitted by Shri A.K.Sharma, learned Senior Counsel appearing on behalf of Jal Mahal Resorts Pvt.Ltd. that the writ pe....
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....vernment MOEF in 2002. Thus, requisite clearances for the project in question are not available with Jal Mahal Resorts Pvt.Ltd. The consent, under Environment Protection Act notification issued by MOEF which has been obtained from SEIAA is illegal and unauthorized as the said Authority was not competent to give clearance to the project in question being of category-A as it was within the boundary of 10 kms from the protected area of Nahargarh Wildlife Sanctuary. Thus, it does not lie in the mouth of the respondent no.7 Jal Mahal Resorts Pvt.Ltd. to contend that the petitions have been filed with delay and the same are liable to be dismissed on the ground of delay and laches. There are decisions that if such wrong has been committed and even construction of building has been raised in illegal manner by spending 100 crores, demolition can be ordered by the Court even after completion of project, as laid down by the Apex Court in M.L.Builders (P) Ltd. V/s Radhey Shyam Sahu (supra) where the Apex Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores. We find that lake is bound to be restored. The decision in Ramana ....
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.... and even the requisite clearance of Central Government MOEF was not obtained for the project in question and the material phase of project has not yet been started. Thus, the aforesaid decision is of no avail to the respondent no.7. Reliance has also been placed by the learned counsel for the respondent no.7 on the decision of this Court in Damodar Ropeways and Construction Company Pvt. Ltd. Vs. State of Raj. and Ors. (2007(4) RLW 3261) where the Single Bench of this Court held that petition suffered from serious delay and latches and liable to be dismissed on account of petitioner's submitting wrong facts; petitioner deliberately did not place on record notice issued under Section 9 of the Act of 1966, whereby competent authority published the proposed licence to authorise construction of Ropeway by Respondent No. 3, which was issued about 20 months ago from date of filing of the writ petition. In the instant case, as already stated above, delay has to be considered on the facts of each case and considering the nature of project and the area leased out on a paltry sum for 99 years; revised plan was sanctioned in 2010 without requisite statutory clearance and thus, the afor....
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.... that he is precluded from filing writ petition before this Court. When Prof.K.P.Sharma has filed the writ petition before this Court, other two writ applications were already pending filed in the year 2010, all are being decided by common order. We are not at all impressed by the submission that Prof.K.P.Sharma has concealed the material fact and he has not filed the petition in public interest. It appears that Prof.K.P.Sharma is interested in the protection of lake as he has done yeoman research work on this water body and published a paper which was read in the 12th World Lake Conference (TAAL). Hence, it cannot be said that the petitioner Prof.K.P.Sharma has not come with clean hands. Shri A.K.Sharma, learned Senior Counsel appearing on behalf of the respondent no.7 has also relied upon the decision of the Apex Court in Sanjay Musale V/s State of MP (1998(6) SCC 616) where there was concealment of material fact and on that ground, the PIL was dismissed. In the instant case, we find that there is no concealment of any material fact, on the other hand, the petitioner has himself placed on record letter addressed to the Hon'ble Chief Justice of India. Merely because PIL Cell of....
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....in the way of the petitioner Prof.K.P.sharma to maintain writ petition filed by him in public interest. All petitions are being decided by the common order. Reliance has also been placed by the respondent no.7 on the decision of the Apex Court in K.D.Sharma Vs Steel Authority of India (2008 (12) SCC 481) in which the Apex Court has laid down in the context of fraud or abuse of the process of the court that it is not a case where fraud on the court is being played but fraudulent transaction has been entered into in flagrant violation of law while compromising ecological involvement without requisite clearance of project. The Apex Court further held that on merits also no case was made out. In the instant case, the facts are converse. The aforesaid decision is distinguishable on facts. It was also submitted by Shri A.K.Sharma that the writ petition filed by the petitioner Prof.K.P.Sharma cannot be said to be bonafide as he alongwith Dr.Brij Gopal approached the respondent no.7 in 2007 to offer their services, which were not taken up as the respondent no.7 did not require the services of the petitioner and Dr.Brij Gopal and this petition has been filed. We are not at all impress....
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....ve decision is not attracted to the facts of the present case. Reliance has also been placed on the decision of the Apex Court in Printers (Mysore) Ltd. V/s M.A.Rasheed and ors. ((2004) 4 SCC 540) wherein the Apex Court held that in PIL, the plea of respondent challenging bonafides of writ petitioner is required to be determined by the court. The question of power of the authority being restricted, conditioned or limited in selling or otherwise transferring the property would not arise. Furthermore, since the writ petition was filed after three years of making of the allotment and execution of the sale deed, it should not have been entertained. In the instant case, we have found that the petitioners are bonafide; there is breach of public trust doctrine; property is inalienable. Maintainability of writ petition- It was also submitted by Shri A.K.Sharma that the case is barred by res judicata as similar Writ Petition No.1008/2011 Ram Prasad Sharma V/s State was dismissed by this Court as withdrawn vide order dated 15.2.2011 without granting liberty to file fresh writ application. The order passed by this Court in Writ Petition No.1008/2011 cannot come in the way of maintain....
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....ld that jurisdiction of the the Apex Court in a PIL cannot be pressed into service where matters have already been completely and effectively adjudicated upon not only in individual petitions but even in writ petitions raising the larger question. In the instant case, there is no earlier adjudication of the matters involved in the present petitions. Dismissal of earlier petition filed by someone else as withdrawn without liberty to file a fresh petition could not come in the maintainability of the present petitions. Expenditure by lessee It was also submitted by Shri A.K.Sharma that more than 70 crores have been spent by respondent no.7; 10 crores have been spent voluntarily on restoration of Jal Mahal monument though obligation was limited to Rs. 1.5 crores only; Rs. 15 crores were also spent "voluntarily" for restoration of lake without any obligation to do so; the respondent no.7 will pay over Rs. 1600 crores as lease rent during the term of lease of 99 years. In our opinion, the question is not of spending money. In case the petitioner has voluntarily spent some money without any obligation under the lease and leave license, he cannot claim any right to hold lease of inal....
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....lagrant violation of the provisions of the Various Acts and Rules, they have given area of lake and land of gairmumkin talab on lease to respondent no.7 for 99 years for commercial exploitation/activities, that too for a paltry sum, with further right to sub-lease, alien or mortgage the property for 99 years, therefore, decision of the State and its functionaries was wholly illegal and unjustified. Merely because process of bid was through global tender, it cannot be said that this Court cannot interfere, especially when deviation from the eligibility condition was made to accommodate KGK Enterprises which could not have been waived and so far requisite environment clearance has not been obtained from Central Government MOEF. It cannot be said that the decision was fair or free from unreasonableness and arbitrariness. Such policy decisions are amenable to judicial review. If the decision is tested by applying Wednesbury principle of reasonableness, it cannot be said that the decision is free from arbitrariness or not affected by bias or not actuated by malafide. The learned counsel for the State has placed reliance on the decision of the Apex Court in Netai Bag and ors. V/s Stat....
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....sent case as the lake area itself has been leased out as admitted by Shri G.S.Bapna, Advocate General and substantial area (14.15 acre) was submerged when the possession was handed over to respondent no.7. Other area has been made available by reducing water level of lake in an illegal manner. Reliance has also been placed on the decision of the Apex Court in In DDA V/s Rajendra Singh (2009(8) SCC 582) in which it was observed that for ecological integrity of the river, concept of riverbed, flood plain and river zone were duly considered and the expert bodies like NEERI and CWPRS were duly consulted and based on their expert opinion, the land under pocket III alone was reclassified and Master Plan Delhi , 2001 was also suitably amended. In the instant case, admittedly, the land has not been reclassified and about 13 bigha 17 biswa land was admittedly in the part of the lake bed and 14.15 acres land was in the submergence which could not have been given on lease, remaining part out of 100 acres given for the purpose of construction activities, has been made available by reducing water level of lake. Besides, there were other glaring illegalities as found by us. Hence, the above d....
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....; various statutory provisions of the Acts and Rules have been violated; the action is arbitrary, illegal, without jurisdiction and in violation of public trust doctrine. Hence, the above ratio is of no help to the respondent no.7. Reliance has also been placed on the decision of the Apex Court in Balco Employees' Union (Regd.) V/s Union of India & ors. ((2002) 2 SCC 333) in which it has been laid down in the matter of policy decision/economic decision that unless decision is contrary to any statutory provision or the Constitution, court cannot interfere with it. In the instant case, we have found that decision is arbitrary, illegal, contrary to the various statutory provisions of the Acts and Rules and in breach of public trust. Thus, the above decision rather counters the submission raised on behalf of respondent no.7. Reliance has also been placed on the decision of the Apex Court in Kihoto Hollohan V/s Zachillhu and ors. (1992 Supp (2) SCC 651), where the Apex Court has laid down that the doctrine of severability can be applied in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely,....
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....ing found no extraneous reason in allotment. The above decision is of no help to the respondent no.7 in different set of facts. Reliance has also been placed on the decision of the Apex Court in Association of Registration Plates V/s Union of India & ors. ((2005) 1 SCC 679) wherein it was held that a long term contract if thought viable and feasible, cannot be faulted by the court. If there are two alternatives available, of giving a short term or a long term contract, it is not for the court to suggest that the short term contract should be given. It was further held that Article 14 prohibits the Government from arbitrarily chosing a contractor at its will and pleasure. In the instant case, we have found that the action of the State and its authorities is wholly arbitrary and illegal; condition of eligibility could not have been waived; the action is violative of Article 14 of the Constitution of India. It was also submitted by Shri A.K.Sharma that tourism activities in Jal Mahal area were contemplated several decades ago; a gazette notification was published by JDA on 31.7.1975 for Jalmahal Reclamation Project; in 1977 UIT decided not to proceed with the project; in 1982 UI....
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.... of the Apex Court in Krishnan Kakkanath V/s State of Kerala (1997(9) SCC 495)in which it has been held that to ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. In the instant case, we have found that lease was illegal, without jurisdiction and void and the action is also arbitrary and in violation of the Acts and Rules and doctrine of public trust. We are not embarking upon on charted ocean of public policy. Thus, the above decision is not helpful to the respondent no.7. Reliance has also been decision on the decision of the Apex Court in State of HP V/s Padam Dev (2002 (4) SCC 510) in which it was observed that decision to make a special concession for Gopal Sahayaks in the matter of additional training as Veterinary Pharmacists was admittedly policy decision. The framing of administrative policy is within the exclusive realm of the executive and its freedom to do so is, as a general rule, not interfered with by courts unless the policy decision is demonstrably capricious or arbitrary and not informed by any rea....
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.... there is any power of making any correction to the bid documents after a specified period, the High Court on construing certain clauses of the bid documents came to the conclusion that such a correction was permissible and therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. The Apex Court held that it was not within the permissible limits of interference for a court of law, particularly when there was no allegation of malice or ulterior motive or favouratism in the grant of contract. In that case, reliance was placed on the decision in the case of Tata Cellular (supra) where it was held thus:- "The duty of the court is to confine itself to the question of legality. Its concern should be:- 1.Whether a decision-making authority exceeded its powers 2.Committed an error of law 3.Committed a breach of the rules or natural justice 4.Reached a decision which no reasonable tribunal would have reached or 5.abused its powers." If the facts of the present case are examined in the light of the above, it is very much clear that the authorities have exceeded their powers as they have leased out some part of the area of the lake....
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....e for 99 years at a throw away price; under the garb of restoration, conservation and maintenance, respondent no.7-Jal Mahal Resorts Pvt. Ltd. is given liberty for enjoying commercial benefits; the respondent no.7 is required to pay annual license fee of Rs. 1/- to the State and at the same time, the respondent no.7 was authorized to levy any amount of user charges on the public and restrict the visitors failing to pay the specified user charges and as per clause 2.2(c), the entry fee to the monument would be minimum of Rs. 25/- per visitor at current prices and the entry could be escalated by 10% every year and this goes to show that entire transaction was resulting in commercial benefit to respondent no.7. Hence, the aforesaid decision of the Punjab and Haryana High Court is of no help to the respondent-State especially when in that case it was observed that preservation and maintenance should not result in any commercial benefit to such body while in the present case transaction provides commercial benefits to respondent no.7. Point as to stamp duty It was submitted by the petitioners that bidding process was completed without even deciding as to who would pay stamp duty w....
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....100 acres of land leased out for 99 years to the company, which was not permissible. There was no authority under the law to alienate the land of lake bed. Whole transaction is based on flagrant violation of principle of public trust. The respondents-State and its functionaries were trustees of the land and they were holding it for the benefit of people. Such lake/land is of people and the State, JDA and JMC are merely custodian of the same. It is shocking and surprising that respondents-authorities have failed to act in objective manner and they have violated the principles enshrined in Article 48A, 49 and 51A(g) of the Constitution. (2) That it is shocking and surprising that area which was under submergence of 14.15 acres and obviously formed part of the lake was permitted to be reclaimed by Jal Mahal Resorts Pvt.Ltd. There was no authority with the State Government or RTDC or JDA or JMC to allow or permit reclaiming of the area which was in submergence in lake and it was in fact part of lake. (3) That it is apparent from para 3.4 of DPR that lake level has been reduced to carve out 100 acres land for lease. (4) That the area of 100 acres leased out was to be raised abo....
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.... to the notification, any project or activities specified in category-B be treated as category A if located within 10 kms from boundary of protected area. Admittedly the Nahargarh Wildlife Sanctuary is nearby and within the periphery of 1 km. from the project area and thus, the project area is within 10 km. from the protected Nahargarh Wildlife Sanctuary under the Act of 1972 and hence, project has to be treated in Category-A for which as per General Condition of the Notification dated 14.9.2006, the competent authority to give environment clearance is Central Government MOEF, no such approval much less prior approval which is necessary has been obtained. (10) That the sanction granted by Central Government MOEF vide letter dated 5.9.2002 and 23.12.2002 is for Mansagar Lake Conservation Project under NLCP and it has nothing do with the project in question. (11) That in the light of notifications dated 27.1.1994 and 14.9.2006 issued under the Environment Protection Act, 1986, the respondents were required to carry out environmental impact study and obtain environment clearance from the Central Government MOEF, which they did not do. (12) The permission which has been grante....
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....alue of property to pay such urban assessment or "annual lease" as determined by the Committee constituted under Rule 3. There is no rhyme or reason to make departure from the aforesaid Rules with respect to such a valuable property under the guise of policy decision. Flagrant violation of the Rules cannot be permitted. However, in what manner, the decision was taken giving go-bye to the Rules is not understandable. Thus, the lease deed being in violation of the Rules of 1997 cannot be permitted to subsist and the same is liable to be cancelled. (15) That as per Rule 6 of the Rajasthan Municipalities (Disposal of Urban Land) Rules of 1974, it was necessary to work out the reserve price on the basis of cost of undeveloped land; cost of developed land; and 20% of the developed land to cover administrative and establishment charges. However, no efforts have been made so as to fix the reserve price as provided under Rule 6. When the Municipal property is being sold away on lease as contemplated under Rule 2(10) for 99 years, it has to be on the cost as provided in Rule 6 and fixing of reserve price was necessary, which has not been done. As per Rule 15(15), Municipal Corporation can....
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....meters and project will have the adverse effect on ecology of area, has not been taken into consideration and forbidden activities have been permitted, it is incumbent upon the State Government to identify the wetland under different categories. The project includes submerged land itself to the extent of 14.15 acres and catchment area is also part of the wetland as per rules. Admittedly, part of lakebed in area 13.17 Bighas has been leased out. Other area is also carved out by reducing water lake. Thus, lease is in contravention of Wetlands Rules and project cannot be given effect to being in contravention of the Wetlands Rules and if given effect to, it would violate the provisions of Wetlands Rules, 2010 and Ramsar Convention also. (19) That since the action of the State and authorities is wholly arbitrary, illegal, without jurisdiction, violative of statutory provisions of the Acts and Rules mentioned above and in blatant violation of the public trust doctrine, therefore, to say that this Court cannot interfere in contractual matters or policy decision cannot be accepted. Though there is no delay as requisite sanctions have not been obtained so far for the project, in such ca....
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....reduced its area. Such activity was not permissible without clearance from the Central Government MOEF. (26) That the respondent no.7 Jal Mahal Resorts Pvt.Ltd. has done illegal acts, filling and compaction of 100 acres from soil of lakebed, construction of wall etc., which was wholly impermissible thereby causing damage to the lake, reduced the water level of lake and affected the ecology, flora, fauna etc. (27) That desilting and construction of wall was also done in an illegal manner in lakebed. (28) That the State has not considered that Dargah and temple are situated there and effect on the religious places. (29) That the PIL is bonafide and in public interest. There is no concealment of material facts on the part of the writ petitioners. The petitioners cannot be said to be motivated by newspapers. (30) That the order passed by this Court in Writ Petition No.1008/2011 cannot come in the way of maintainability of the writ application on behalf of the petitioner Prof.K.P.Sharma in any manner; other two writ applications were already pending when Writ Petition No.1008/2011 was permitted to be withdrawn. Withdrawal of writ precluded Ram Prasad, not other persons fr....