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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO.4912 OF 2014 (Arising out of SLP (Civil) 17701/2012)

Jal Mahal Resorts P. Ltd. ..Appellant Versus

K.P. Sharma & Ors.       ..Respondents With

CIVIL APPEAL NO.4913  OF 2014 (Arising out of SLP (Civil) 19239/2012)

AND  

CIVIL APPEAL NO.4914  OF 2014 (Arising out of SLP (Civil) 19240/2012)

J U D G M E N T

GYAN SUDHA MISRA, J.

1.        Leave granted.

2. These appeals by way of special leave have been  

preferred  against  the  common  judgment  and  final  order  

dated 17.5.2012 passed by the High Court of Judicature  for  

Rajasthan  at  Jaipur  Bench,  Jaipur  in  three  public  interest

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litigation  petitions  filed  by  the  petitioners  K.P.  Sharma,  

Dharohar  Bachao  Samiti,  Rajasthan  and  Heritage  

Preservation  Society  respectively  against  the  State  of  

Rajasthan  and  the  beneficiary  of  the  project  who  was  

respondent  No.7  in  the  High  Court  and  is  now  the  

petitioner/appellant  in  Civil  Appeal  (arising  out  of  SLP(c)  

No.17701/2012. The three petitions were D.B. Civil Writ (PIL)  

Petition  No.6039/2011,  D.B.  Civil  Writ  (PIL)  Petition  

No.5039/2010 and D.B.  Civil  Writ (PIL)  Petition No.4860 of  

2010  whereby  the  Division  Bench  of  the  High  Court  was  

pleased  to  cancel  an  Environment  and  Monument  

Improvement/Preservation and Tourism Development Project  

at Jaipur  by declaring it as illegal which was  awarded to  

the  petitioner/appellant   Jal  Mahal  Resorts  Private  Limited  

via global tender floated in 2003 and  finally granted in 2005  

after all  requisite approvals as per the petitioner/appellant  

under the Environmental  Law including Environment Impact  

Assessment under  the  Environment Protection Act and the  

Notifications  issued  thereunder  of  the  Rajasthan  Pollution  

Control Board. However, in view of the cancellation of the  

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project,  the  High  Court  has  directed    immediate  

dismantling   

and removal of the entire project and diversion of the two  

drains which was done to  purify waters of  a man made  

artificial water body and detritus.   

3. Other  three  Special  Leave  Petition  bearing  SLP  

(Civil)  Nos.22467/2012,  22820/2012  and  24341/2012  had  

also been preferred by the State of Rajasthan challenging  

the  impugned  judgment   and  order  of  the  High  Court  

referred  to  hereinbefore.   But  after   the  arguments  were  

finally advanced by the learned Attorney General  and the  

same  also stood concluded,  permission of this Court was  

sought  by the senior counsel Sri Jaydeep Gupta to withdraw  

these special leave petitions filed by the State of Rajasthan  

which  were  permitted  by  this  Court  vide  order  dated  

05.02.2014.   The  petitions  preferred  by  the  State  of  

Rajasthan assailing the impugned judgment and order thus  

stand  dismissed  as  withdrawn.   However,  Sri  Gupta  

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submitted that he can still address the Court on merit in the  

connected  special   leave  petitions  bearing  SLP  (Civil)  

Nos.17701 of 2012, 19239/2012 and 19240/2012 preferred  

by the petitioner/appellant Jal Mahal Resorts Pvt. Ltd. & Ors.  

against the PIL petitioners before the High Court since the  

State  of  Rajasthan  is  still  a  party  respondent  in  these  

matters and hence it can support or oppose the impugned  

judgment  of the High Court in spite of withdrawal of the  

special  leave  petition  filed  by  the  State  assailing  the  

judgment and order of the High Court.    However,  at  this  

juncture   we  refrain  from   expressing   further  on  its  

implication and would deal  with the same,  if necessary,  at  

the appropriate  stage.    

4. In  so  far  as  the  appeals  preferred  by   the  

appellant-M/s.  Jal  Mahal  Resorts  Private  Limited  is  

concerned,   we  have  noticed   that  the  appeal  has  been  

preferred  against the  common judgment and order of the  

High Court under challenge herein whereby the writ petitions  

which  were  filed  by  the  respondents  as  public  interest  

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litigation bearing  DB (CWP) No.6039/2011 entitled Prof. K.P.  

Sharma vs. State of Rajasthan and Ors as also DB (CWP) PIL  

No.  5039/2010 entitled Dharohar  Bachao Samiti  Rajasthan  

vs. State of Rajasthan and Ors.  as also the 3rd  writ petition  

bearing  DB  (CWP)   PIL  No.  4860/2010  entitled  Heritage  

Preservation  Society  Rajasthan  and  Anr.  vs.  State  of  

Rajasthan and Ors.  have been allowed by the Division Bench  

of  the  High  Court  and  resultantly   the  Mansagar  Lake  

Precincts  Lease Agreement dated 22.11.2005 awarding  100  

acres  of  land  on  lease  for  a  period   of  99  years  to  the  

respondent No.7/the appellant herein/ M/s. Jal Mahal Resorts  

Private  Limited  was  declared  illegal  and  void.   As  a  

consequence   of the same, the appellant Jal Mahal  Resorts  

Private Limited  has  been directed  to bear costs  to be  

incurred in restoration of the original position  of 100 acres  

of  land in removing  the soil filled in by it  and to restore  

back  the   possession  of  land  to  the  Rajasthan   Tourism  

Development Corporation (‘RTDC’ for short)   which in turn  

will  hand  over  the  land  to  Jaipur  Development  Authority  

(‘JDA’  for  short),  Jaipur  Municipal  Corporation  (  ‘JMC’  for  

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short)  and the State of Rajasthan.  The appellant has further  

been  directed  to  immediately   remove  all  sedimentation  

and settling tanks  from the Mansagar Lake Basin  and to  

realize  costs  from M/s.  Jal  Mahal Resorts Private Limited  

and  to  examine   restoring   position  of  Nagtalai  and  

Brahampuri   Nala (drains)  to their   original   position   as  

redesigned  by    RUIDP  under  Mansagar  Lake  Restoration  

Plan in consultation with the Ministry  of Environment  and  

Forests (‘MoEF’ for  short) of the Central Government.   The  

respondent authorities of the State of Rajasthan  have been  

further  directed  to monitor, maintain and refix  boundaries  

of the Mansagar Lake in its full original  length, breadth  and  

depth in consultation with the MoEF of Central Government  

and not to reduce  normal water level.  All encroachments  

made in the attachment area of  the  Mansagar Lake have  

been ordered to be removed  immediately and the  control  

erected  by  appellant M/s. Jal Mahal  Resorts Private Limited  

into the lake  is ordered to be dismantled and costs have  

been  ordered to be realized from  the  appellant M/s. Jal  

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Mahal Resorts Private Limited.  All  the three writ  petitions  

were thus disposed of by the High Court.     

5. Before  we  deal  with  the  respective  case  and  

counter case of the contesting parties,  it may  be relevant  

and appropriate   to   state  the  background  of  the  matter  

giving rise to these appeals.  The writ petitions which have  

been  dealt with by the High Court  had been filed in public  

interest  to  quash  Jal  Mahal  Tourism Project   and   cancel  

Mansagar  Lake  Precincts   Lease  Agreement  dated  

22.11.2005 giving 100 acres of land  on lease for  a period of  

99 years to the respondent No.7.  (appellant herein M/s. Jal  

Mahal  Resorts  Private  Limited  and  Jal  Mahal  Lease  and  

License  Agreement dated 22.11.2005).  In  Writ Petition  No.  

6039/2011 which was filed by  Prof.  K.P. Sharma  prayer had  

been made to quash approvals and clearances  contained in  

the orders dated 16.9.2009 and 22.9.2009 and to direct  the  

respondent  No.7/appellant  herein  M/s.  Jal  Mahal  Resorts  

Private Limited to restore  the original position of 100 acres  

of land by removing  the soil   filled  in by it  at its own costs.  

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6. The  appellant   M/s.  Jal  Mahal  Resorts  Private  

Limited  has  assailed the judgment and order of the High  

Court  on several grounds  to be related hereinafter.  But  

before  doing  so  it  has  related  the  factual  and  historical  

background of the matter giving rise to these appeals.  In  

this context, it has been stated that the Mansagar Lake  was  

a  man-made  lake  on  the  northern  fringe  of  Jaipur  city.  

Within the  lake a pleasure  pavilion called Jal  Mahal  was  

constructed  by  the  erstwhile   rulers  of  Jaipur  in  the  18th  

century and this  structure   is still existing  in the midst of  

the lake.  Tracing out the  historical background,  it has been  

stated that in 1962, the two main sewerage drains of the  

walled city of Jaipur  Nagtalai and Brahmapuri were diverted  

to empty into the water body  which led to  its degeneration,  

siltation and settled deposits  and contaminations  to such  

an extent   that it could not support aquatic  life nor support  

flora and fauna  in the  surrounding areas.  The water body  

was covered with floating  hycinth  and its aquatic life and  

there were large scale death of fish  that had earlier survived  

and    led to a drastic  reduction  in the fauna  including  the  

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migratory birds that used to  flock in the vicinity of the lake  

was  on  the   verge  of  extinction.   About   40%  of  the  

catchment  area which covered approximately 23.5 Sq.Kms  

was dense urban population.  Towards the  south side of the  

lake,    large  amounts  of  unintended  developments  and  

encroachments  had  taken  place   thereby  drastically  

increasing  the quantity of effluents discharged into the lake  

and  also  put  other  pressures  by  unconditional  grazing  of  

cattle  and urban  development.   Jal  Mahal  had  also   very  

substantially  deteriorated  over  a  period of  time not  only  

because  of  natural   process  of  degeneration  but  also  

because  of   maintenance.   The  monument  was  in  a  

dilapidated state and required massive restoration works.  

7. The deteriorating condition of the  Lake and the  

Monument   compelled  the  Government  to  find  ways  and  

means to restore the two components to their original glory.  

Over a period of 30 years  attempts were made by various  

government   agencies  and  departments  to  restore  the  

ecological and environment  condition  of the lake and its  

adjoining area.   However,  none of  these attempts yielded  

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very positive results because of paucity of resources to take  

up and  sustain  the restoration.  

8. The Government of Rajasthan, therefore, decided  

to adopt an incentivized approach to restore the Lake and  

the Monument  and develop the precinct  area on a public  

private partnership format.  To improve the condition of the  

lake, the State of Rajasthan, in consultation with experts and  

after  detailed  surveys  and  analysis,  developed  a  holistic  

approach involving three components namely (i)  restoration  

of  Mansagar  Lake,  (ii)   restoration  of  Jal  Mahal  and  (iii)  

development  of  tourism/recreational  components    at  the  

lake  precincts.   Thus,  the  third  component   visualized  

development  of  the  precincts   area  of  the  lake  which  

comprised of about  100 acres of  land towards  the south  

on  a  sustainable   development  model.   It  was,  therefore,  

required that the lake and Jal Mahal be restored and the lake  

precinct  be  developed  for  limited  eco  friendly  tourism  

facilities which would also provide funds for O & M of the  

lake on a continuous basis.  The benefits of this project was  

that it would result in the restoration of the Mansagar Lake  

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and the Jal Mahal monument and there would be consequent  

development of eco friendly tourism destinations with large  

open green spaces in the vicinity of the lake which would  

improve the environment and resultantly, the aesthetics and  

visual quality of the area.

9. The Government, therefore, adopted the approach  

of  public-private  partnership  to  the  restoration  and  

development  of  the  precincts  in  an  environmentally  

conscious  way.   For       this  purpose,  project  

conceptualization  was chalked out and the project structure  

was  conceptualized after detailed studies over a number of  

years.  In the year 1999 a Detailed Feasibility Report (“DFR”)  

was prepared.  The DFR covered architectural conservation  

and reuse of Jal  Mahal;  Ecological Restoration of the Lake  

along with Development of surrounding areas for integrated  

tourism development and recreational facilities.  Approval to  

the  DFR was  accorded  by  Jaipur  Municipal  Corporation  in  

November 2000.

10.      As  a  consequence  of  the aforesaid  

conceptualization, process  for  bidding  started   which  has  

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been described  as First Bid Process by the appellant which  

started after publication of the advertisement.  Request for  

Qualification (“RFQ”)  was released in  December,  2000.   6  

firms responded and made submissions for qualification. In  

the meantime, Request for Proposal (“RFP”) document was  

prepared  by  the  Project  Development  Corporation  Limited  

(PDCOR) which is a joint venture company of Government of  

Rajasthan  and  IL&FS  and  approvals  were  given  by  the  

Government  of  Rajasthan.   Request  for  proposal  was  

released  and  Board  of  Infrastructure  Development  &  

Investment  (BIDI),  a  high  powered  committee  of  the  

Government headed by the Chief Minister with an objective  

to  accelerate  private  investment  in  industry  and  related  

infrastructure, formed a sub-committee to decide on fiscal  

concessions necessary for the project. The Jaipur Municipal  

Corporation  was  made  the  nodal  agency  for  project  

purposes.  However,  the first  bid  process  failed as  despite  

applying for qualification no bidder ultimately participated in  

the bid.

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11. The  aforesaid  failure  led  to  the  appraisal   and  

approval of the project report by the Ministry of Environment  

and  Forests.   The  Government  of  Rajasthan,  through  

Department  of  Urban  Development,  sent  proposals  to  

Ministry of Environment and Forest (MoEF), Government of  

India, on 17.08.2001 seeking funds for Lake Restoration of  

the  said  project  under  National  Lake  Conservation  

Programme (‘NLCP”).   MoEF responded by requesting that  

details regarding fund requirement, O&M agency, source of  

funding for  O&M along with Detailed Project  Report  (DPR)  

comprising of bankable proposal be submitted. Hence, On 8th  

& 9th December, 2001 and thereafter on 26th & 27th January,  

2002, the Project Site was studied by the representatives of  

MoEF.

12. On  22.1.2002,  a  letter  was  written  by  MoEF  

wanting break up of estimated costs as also commitment of  

State Government to bear 30% of the cost sharing as well as  

identifying  agency  for  carrying  out  O&M.   The  State  

Government was also to ensure that no untreated sewage  

should  be  discharged into  Mansagar  Lake which  could  be  

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achieved  inter  alia  by  diverting  the  two  nallahs  that  

discharged waste in the lake.

13. Based on experts recommendation after complete  

technical surveys and environmental studies of the lake, the  

area  for  the  project  was  identified  and  recommended  by  

renowned  consultants  LASA  (Lea  Associates  South  Asia  

Private Limited) as being ecologically viable.  The DPR itself  

mentioned that the ecological restoration of the lake would  

be carried out on the basis of which it can be sustainable  

and bankable as required by MOEF through a Public Private  

Partnership model.

14. On the basis of commitment of State Government  

to meet 30% expenditure on restoration of Mansagar Lake,  

MoEF, Government of India, approved the DPR in October,  

2001  under  the  NLCP  with  70% amount  as  grant  in  aid.  

MoEF also conveyed its appreciation on DPR and observed as  

follows:

“the project document and structure as developed  by PDCOR Limited has served as a benchmark for  developing  sustainable  Lake  restoration  projects  on a Public Private Partnership (PPP) model.  You  

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will be pleased to know that we are recommending  a  similar  approach  to  other  states  for  Lake  Conservation projects”.

15. This gave rise  to the new bidding process which may  

be termed  as  ‘Second Bid Process’ for which decision was  

taken  in its 9th meeting held on 10.1.2002, approved further  

fiscal concessions necessary for the project and approved a  

fresh round of bidding.  The nodal agency for the project was  

changed  to  Jaipur  Development  Authority  (“JDA”)  from  

earlier  agency,  Jaipur  Municipal  Corporation.   The  bid  

documents  were  duly  approved  and  an  advertisement  

inviting  Expression  of  Interest  (“EoI”)  was  issued  for  

selection of Private Sector Developer (“PSD”) in April, 2003  

after the key commercial terms of the project and even the  

draft  of  the  advertisement  was  approved  by  JDA.   The  

Empowered  Committee  of  Infrastructure  Development  

(“ECID”),  a  high  powered  committee  headed  by  Chief  

Secretary, formerly known as SCID, directed Secretary, UDH  

to finalize key commercial terms for selection of PSD.  During  

the first round of bidding the proposed lease was 60 years in  

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the aggregate.  As that period was considered unviable, in  

the  second  round  of  bidding  the  period  of  lease  was  

proposed as 99 years.  Moreover, restoration of Jal Mahal by  

the PSD was made optional and not mandatory.

16. In pursuance to the aforesaid steps, detailed RFP  

were   issued  to  interested  private  parties  which    was  

approved  by  JDA  and  released  in  July,  2003.   The  

advertisement  inviting  RFP  for  selection  of  Private  Sector  

Developers  (“PSD”)  was  published  in  leading  newspapers  

(Rajasthan Patrika and Economic Times).  In addition, PDCOR  

developed strategy for marketing and wide publicity of the  

project by apprising potential entrepreneurs across the globe  

about the features of the project with a view to encourage  

them to come forward to participate in the bid process.  As  

the tourism project was to generate funds for sustained O&M  

measures,  the  Department  of  Tourism  (“DOT”)  and  later  

Rajasthan Tourism Development Corporation (“RTDC”) was  

made the nodal  agency for  the project.   Four competitive  

bids including from the Petitioner were received which were  

evaluated and PDCOR submitted its report to Government of  

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Rajasthan  for  its  approval.   The  Technical  Evaluation  

Committee constituted for evaluation of bids comprised of  

eminent experts like Padamashree Dr. B.V. Doshi, Architect,  

Mr.  Mohd.  Shaheer,  Landscape  Architect  and  Mr.  Hemant  

Murdia, Chief Town Planner, Government of Rajasthan.   

17. The petitioner/appellant  got the highest marks in  

technical evaluation of its bid and when financial bids were  

opened  the  Petitioner’s  bid  was  found  to  be  the  highest.  

Consequently, ECID in its meeting held on 9.2.2004 headed  

under the Chairmanship of Chief Secretary decided to grant  

the project to the Petitioner.  The letter of intent was issued  

to  the  Petitioner  on  30.9.2004.   On  22.11.2005  after  

approval  from the  Government  of  Rajasthan the  Lease  in  

respect of the project land and the License for restoration  

and reuse of Jal Mahal were executed.

18. In terms  of the  project an area of 100 acres of  

land towards the south of Mansagar Lake was to be leased  

out for a period of 99 years for development of eco-friendly  

tourism  components  as  set  out  in  the  RFP.   The  entire  

development, at the end of 99 years, was to be transferred  

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back  to  the  State  Government  without  any  compensation  

payable to  the Private Sector Developer.   In  terms of  the  

RFP,  it  was  optional  for  the  Private  Sector  Developer  to  

undertake  the  restoration  and  reuse  of  the  Jal  Mahal  

Monument.   The  Petitioner  while  making  the  bid  also  

exercised  the  option  for  restoration  and  reuse  of  the  

Jalmahal monument.  The Petitioner in terms of the license  

agreement  set  out  to  restore  the  monument.   The  RFP  

estimated  the  cost  of  restoration  of  Jal  Mahal  at  

approximately  Rs.1.50  crores.    In  reality  the  cost  of  

restoration of  Jal  Mahal  worked out  to  Rs.10 crores.   The  

State  Government  had  also  constituted  an  Empowered  

Committee  to  oversee  the  time  bound  restoration  of  

Mansagar Lake and Jal Mahal Monument.   

19. The  Petitioner’s/appellant’s  in  pursuance  to  the  

lease appointed    consultants who did extensive research  

plan  which  was  got  approved  from  the  Empowered  

Committee.   Ultimately  the  monument  was  fully  restored  

under the supervision of Empowered Committee upon advice  

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of renowned conservation architect Dr. Kulbhusan Jain and  

other consultants.   

20. The Petitioner/appellant, who had been given the  

lease of 100 acres of land on the southern shore of Mansagar  

Lake, after obtaining all necessary approvals, had completed  

Phase-1 of the Project.  But the project  suffered a grave set  

back and knee jerk obstruction as by this time i.e. in the year  

2010 public interest petitions  were filed in the High Court  

although the  petitioner had already started executing the  

project and had already spent  an amount of  Rs.38 crores  

besides  paying   more  than  14  crores   as  project  

development   fees  and  lease  rent  to  RTDC  as  per  the  

petitioner/appellant’s case in  terms of  the lease deed.   In  

pursuance to the same, the restoration of the Mansagar Lake  

under the DPR prepared by PDCOR was to be undertaken by  

the State Government.  The O&M work was to be carried out  

from lease rentals  received from Private Sector Developer  

i.e.  the  Petitioner.   The  total  amount  sanctioned  for  

restoration of the lake by the Central Government and the  

State Government was Rs.24.72 crores.  This amount proved  

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to  be  inadequate  and  the  Government  due  to  further  

resource crunch was not in a position to spend any further  

amount.  Resultantly, the restoration of the lake, which was  

the cornerstone of the project, was in danger.  The Petitioner  

spent over Rs.15 crores on restoration of the lake with the  

approval of the Empowered Committee.

21. As a measure of restoration and development of  

the project,   the entire project implementation  had to be  

done  so  as  to  achieve  sustainable  eco  preservation  and  

development.   The  Petitioner,  therefore,  acted  under  the  

advise  and  on  the  recommendation  of  experts.   These  

activities  were  further  monitored  by  the  Government  of  

Rajasthan and its agencies. The petitioner/appellant stated  

that for the purpose of restoration, the Petitioner engaged a  

number  of  nationally  and  internationally  renowned  

consultants  including  Mr.  Soli  J.  Arceivala,  Ex.  Director  of  

NEERI,  Dr.  Shyam  R.  Asolekar  from  IIT  Mumbai,  Dr.  G.C.  

Mishra  from  IIT  Roorkee,  Mr.  Jal  R.  Kapadia  Environment  

Consultant,  Mumbai  and  Mr.  Herald  Craft,  renowned  lake  

expert  from Germany.    Some of  these  experts  had  also  

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worked  for  restoration  of  the  Hussain  Sagar  Lake  in  

Hyderabad.  The State Government had also constituted an  

Empowered  Committee  to  oversee  the  time  bound  

restoration of Lake.  The work involved realignment of the  

Nagtalai and Brahmpuri drains so that domestic sewage and  

waste including run-off and detritus during the monsoons no  

longer emptied into the cleansed waters as also desilting of  

the water body which were essential components of DPR as  

approved by MoEF under NLCP.  In order to ensure that the  

ongoing discharge of drainage did not once again pollute the  

water,  Mr.  Herald  Craft  the  German  Lake  Conservation  

expert  prepared  a  report  which  suggested  preparing  

temporary  sedimentation/settling  tanks  near  the  mouth  /  

discharge  point  of  the  re-aligned  drains.   The  purpose  of  

constructing of sedimentation tank was to trap the silt and  

organic content  of  the storm water  so that  the quality  of  

water in the whole of water body is not adversely affected.  

The sedimentation process were also reviewed by a team of  

experts from MoEF which found the system as a viable and  

proper solution.  It has been further brought  to the notice of  

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this  Court  that   the   project  fell  within  item  8(a)  of  

Environmental  notification dated 14.09.2006 and was also  

confirmed by MoEF in its Affidavit in Reply filed to the writ  

petition  and  a  detailed  Environmental  Impact  Assessment  

(“EIA”) was carried out by State Level Environment Impact  

Assessment Authority (“SEIAA”) constituted by MoEF.  It is,  

therefore, stated  that  all requisite environmental approvals  

were obtained.

22. The project  thereafter was started and the  land  

leased to the Petitioner, according to the appellant,  was not  

a part of the water body in the first Master Plan 1971-1991  

for Jaipur and an area of 200 acres around the south side of  

Jal Mahal was demarcated and reserved for tourist facilities.  

The land leased to the Petitioner was a part of this land area  

reserved for tourist facilities.  The said land continued to be  

retained  for  tourism  and  recreational  activities  in  the  

subsequent city master plans including the master plan of  

2011 and 2025.

23. The  appellant  has  further  stated  that  the   Man  Sagar Lake on its western side is bound by Jaipur-Amer road.  

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The level of the road is at a contour level of 100 MRL.  The  ground floor of the Jal Mahal monument within the lake is at  the contour level of 98.2 MRL.  PDCOR, based on intensive  studies, found this level as the most appropriate level taking  into  account  the fact  that  the  lake  was not  freshened by  natural  acquifers  but  was  dependent  on  surface  runoff  during the monsoons, and to ensure that ground floor of Jal  Mahal was not submerged.   

24. However, the contesting respondents herein who  

were  the PIL petitioners before the High Court, averred that  

the   PIL  petitioner   Prof.  K.P.  Sharma  is  involved  in  the  

research  with regard to Man Sagar Lake  and has published  

a paper which was  read out in the 12th World Lake  Forests  

TAAL  2007.   It  was  submitted  by  learned  counsel  Mr.  

Aruneshwar Gupta on behalf of the PIL petitioner/one of the  

three  contesting  respondents  herein  that  the  Man  Sagar  

Lake  and  the  management  thereunder  were  declared  

protected monuments   but  were  deleted from the list  of  

protected  monuments  in  the  year   1971.   The contesting  

respondents  have also related the history of the lake  glory  

and have recorded that Man Sagar Lake  is  a large lake on  

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the northern fringe  of Jaipur city and the glory of the lake as  

a pristine  water  body lasted   until the former rulers had  

their control over the city and  unpleasant history of lake  

began when  new administration of Jaipur diverted  walled  

city  sewage in 1962 through two main waste water drains  

namely   Brahmapuri  and  Nagtalai.   The  most   notorious  

aquatic  weed  water   hyacinth   (Eichhornia   crassipes)  

entered  into  lake  in  1975.   The  petitioner/contesting  

respondent  herein stated that during the studies made by  

the  contesting  respondent  and  his  colleagues,  10  

zooplankton Species,  arthropods,  fishes  and  92  species  

of birds were observed  at Mansagar Lake and out of 92, 41  

are aquatic  and 51 were forest dwellers.  The water fowl  

population included 16 resident  and 25 migratory species.  

It  is  in  this   context   that  it  was submitted that  the Man  

Sagar  Lake  and  the  monument  therein  were  declared  

protected monuments but they were deleted from  the list of  

protected monument  in the year 1971.   

25. It was further averred by the PIL petitioner in the  

High Court/contesting respondent herein that the Ministry of  

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Environment and Forests  (for short ‘MoEF’ ),  Government of  

India prepared National Lake Conservation Plan  (for short  

‘NLCP’)  for  restoration,  conservation  and  maintenance   of  

urban  lakes.   The  Government  of  Rajasthan  submitted  

project  for  restoration  of  Man  Sagar  Lake  to  the  Central  

Government.  The total  cost of the project was  estimated to  

be Rs.24.72 crores, out of  which  70% was to be provided by  

the Government of India  while rest was to be borne by the  

State  Government.   The  administrative  approval  and  

expenditure  was granted by the MoEF  vide order  dated  

5.9.2002 and the order was revised by the MoEF  vide dated  

23.12.2002. The  JDA implemented the lake restoration plan  

under  which   Sewage  Treatment  Plant  (STP)   near  

Brahmapuri has been revamped  from which  treated water  

is  being   diverted  to  lake  for   compensating  evaporation  

losses during dry weather.  A two  step Tertiary  Treatment  

Plant   has also been  developed and  lake has been cleared  

from  hyacinth plants  completely by the JDA.  The JDA  has  

also invested in development  of lake  front  promenade on  

Jaipur –Amer Road and constructed road along  the lake on  

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northern side which has formed a new water body of about 5  

hectares in size for storing hill run off during  rainy season  

for wild life which includes Hanuman langur (Semnopithecus  

entellus),  Black  aped  Hare  (Lepus  nigricollos),  Indian  

Porcupines  (Hystrix   Indica),  Blue  bull  (Boselalphus  

tragocamelus),  Sambhara  (Cervus  unicolor),  Common  

Mangoose  (Herpestes  edwardsii),  Jackals  (Canis  aureus),  

Striped  Hyaena  (Hyaena  hyciena)  and  panther  (Panthera  

leo).   The JDA  has also  funded  Rs. 10 million   to the  State  

Forest Department  for improving    lake catchments area  

falling in the Nagargarh hill area (Arawali Range) which is the  

only  natural watershed.  The lake is surrounded almost from  

three sides by Arawali Hill Ranges.  The hills are either part  

of Nahargarh Wildlife  Sanctuary or Reserved Forest Ranges  

known  as  Amer  Block  54  and  Amargarh  Block  92.   The  

petitioner/respondent  herein  and his  team was working in  

executing a JDA sponsored project on bank stabilization of  

the  lake  since  May,  2005.   35  species  of  tree  and  28  

varieties  of  shrubs   were  planted.   Besides  improving  

landscape, the plant species  provide shelter and food to the  

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local  fauna and   migratory  birds  may also  be benefited.  

Similar plantation was also done on three islands.

26. The PIL  petitioner/respondent  herein  had further  

averred  that  Jal Mahal Tourism  Infrastructure Project was  

conceived  and  approval  was  given  by  the  Standing  

Committee on Infrastructure Development  (for short ‘SCID’)  

in its 3rd meeting held on 21.12.1999.  Resolution has also  

been  filed   in   which  it  was  stated  that  Jaipur  Municipal  

Corporation must own the project.   The bids were invited in  

the  year  2001-01  without  identification  of  the  land  to  be  

used and without studies with regard to environment impact  

assessment.  The bid process was scrapped and  JDA was  

made sponsoring  department for the lake side development  

component  in  the  meeting  of  Board  of  Infrastructure  

Development   and  Investment  Promotion  (for  short  ‘the  

BIDI’) held on  23.8.2002 and 3.9.2002.

27. It was contended on behalf  of the petitioner  that  

MoEF   granted  administrative  approval  and  expenditure  

sanctioned  only for the lake  restoration components  and  

there was absolutely no consideration  by the MoEF    to the  

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lake side development  component  of   the so-called  Jal  

Mahal Tourism Project.  It was submitted that as a matter of  

fact   the  National  Lake  Conservation  Plan  did  not  

contemplate  any such commercial venture  upon the lakes  

to  be  restored   under  the  plan  which  according  to  the  

PDCOR  contemplated  the  following  three  components  as  

already  referred  to  hereinbefore   but   for  facility  of  

reference  it may be reiterated  that three components were  

as follows:-

(1) Restoration of Mansagar Lake;

(2) Restoration and re-use of  Jal Mahal  Monument;

(3) Development   of  Tourism/Recreational  components  

at the lake precincts.                    

28. It  was  further  submitted  by  the  

petitioner/contesting respondent  herein that in the  meeting  

of BIDI held on 5.8.2003, it was decided that  nodal agency  

for  the  Jal  Mahal  Tourism  Project  will  be   Tourism  

Department of Government of Rajasthan   instead of JDA.  

Thereafter,  the  tourism  department   assigned  the  

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responsibility  to  the  Rajasthan  Tourism  Development  

Corporation (for short ‘RTDC’) vide order dated 6.9.2003.  It  

has  been  submitted  that  although  biding  was  started,  no  

survey of the actual site  and demarcation  of  100 acres  

area  on the lake was made and even  environment impact  

assessment    was  not  carried  out  before   planning  the  

project.  It was further submitted that in the advertisement  

last date for submission  of the bid was 5.9.2003  and it was  

necessary  under  the  terms  of  the bid that only  private  

limited  company  or  public   limited  company  could  have  

submitted  tender.   It  was  necessary  that   lead  Manager  

should be  private or  public limited company.  The offer was  

submitted by  KGK Enterprises, partnership firm  and  its HUF  

Manager.   Thus   was not fulfilling eligibility  qualification  

provided under the terms notifying tender.  

29. However,   the  petitioner/contesting   respondent  

himself  has added and clarified  that  later on  decision was  

taken  to  include  KGK  Enterprises  which  according  to  the  

petitioner  /contesting respondent   lack  eligibility  condition  

and  Jal  Mahal  Resorts  Private  Ltd.  Company   has  been  

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incorporated  on 10.11.2004.  The decision was also taken to  

give exemption of stamp duty etc.  

30. The contesting respondent No.7 who was the PIL  

petitioner   has further stated that during the  bidding it was  

made clear that no commercial activity would be  permitted  

within the precincts of Jal Mahal Complex, but even before  

agreements  were executed, the successful bidder not only  

sought exemption  from  commercial   activity  within the  

precincts of Jal  Mahal Complex but  also  sought  revision of  

the project proposal  and for maintenance of  lake, water  

level  at  the  cost  of  the  Government  vide  letter  dated  

13.7.2004.  The contesting respondent/PIL petitioner   had  

also submitted   that out of 100 acres of land, 14.15 acres of  

land was  submerged  in water which has also been leased  

out.   

31. Mr.  Aruneshwar  Gupta  on  behalf  of  the  PIL  

petitioner/contesting respondent  No.7 further averred that  

Master Plan of  Jaipur 2011 did not permit such activities at  

the site.   It was also stated that 100 acres  of land was part  

of the lake bed itself, out of which 14.15 acres of  land  was  

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submerged in the water.  The area was sensitive  for  eco  

system and  thus   environment   impact  assessment   was  

required  to  be  carried  out  before  any  such  project  was  

prepared but the same was not done.   It was still  further  

stated that 100 acres  of land  beyond  the spread of lakebed  

was not available  on the site  and  it was further  submitted  

that   wall   of  sufficient  height  has  been constructed   for  

setting apart   the proposed 100 acres of    land from the  

lakebed and the soil from the lake  bed  itself was actually  

used for this purpose.  It was alleged by the PIL petitioner  

that the appellant  herein  Jal Mahal Resorts Private Limited  

started  constructing   high  walls  of  mud  and  soil  in  the  

eastern  part of the lake  bed near sluice gates and a large  

area around it for  the purpose of preparing sedimentation  

tanks in the lake  bed itself.  The project people visit land  

most  frequently  disturbing   birds  on  the  island  and  the  

connection of island with mainland has also led to entry of  

dogs on the island which feed on the eggs of birds and thus,  

basic objective of island to provide habit/breeding ground for  

resident and migratory birds is forfeited.    

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32. It was further contended by the  petitioner before  

the High Court  that  one third of the lake was converted into  

a  series of sedimentation tanks made in the down stream  

of the lake  by respondent No.7 and now all dirt with floating  

objects enter into sedimentation tanks made in the lake bed.  

Thus, the entire lake has been  converted into a series of  

small  tanks followed by a   large  tank i.e.  lake.   This  has  

adversely affected aesthetic  value of the Mansagar Lake.  

Prior to the  construction of  storm water  management plan,  

lake water also used to be released for irrigation.  Now water  

will  be   released  through  sluice  gates  into  down  stream  

directly  without  flowing through the lake basin and there  

will be no  flushing out of salts from the lake.  The build of  

salts will convert  fresh water lake into  a saline lake which  

will  alter  its  flora  and  fauna.   It  was   further  submitted  

before the High Court  that the appellant herein was not at  

all  concerned   with  the  construction  of   storm  water  

management plant  that too in the lake bed itself and it has  

been  carried out without any requisites sanction and study  

by any of the  concerned authority otherwise such a large  

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area  of  the  lake  could  not  have  been   allowed  to  be  

sacrificed  for such purpose.  As per the monitoring done by  

the   PIL  petitioner/contesting  respondent,  the  chloride  

content in the Mansagar Lake has been  increased and  salt  

in  water   has  gone  high.   The  sudden  increase   in  the  

chloride  content of the lake   is attributed  to direct human  

interference by way of   altering lake  basin  character.   This  

increase  in   salinity  will  definitely   affect  the  lake   bio  

diversity   and both  the  native  and migratory  birds   and  

species   diversity will  significantly  be dropped.  The PIL  

petitioner  further submitted that the  unique feature   of the  

area   is  an  endemic   species,   namely,  Plum  Headed  

Parakeet found in the  protected forest in Arawali  and the  

project  would   be  dangerous  to  the  species.    Due  to  

settling/sedimentation  tanks  in the lake bed itself,  silt/filth  

which was to be  avoided  after restoration of the lake,  is  

willfully  invited and drained into the lake itself which has  

increased  salinity of the water  also.  The PIL petitioner  had  

further submitted  before the High Court   that  the revision  

had destroyed the very substratum  of the project which was  

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earlier  conceived .  The whole project after completion was  

to be put  in use by  2010, but the  appellant has not done  

anything  except  filling  and compacting  the 100 acres of  

land in the lake bed itself by  excavating the soil  from the  

lake basin.  Though  only  13% of the land     was to be used  

for construction activities   of the private sector developer  

and  would  be  of   restricted  entry  and  rest  87%  was  to  

remain   in  the  form  of  open  space,  parks,  gardens  and  

unrestricted  public  entry   spaces,  but  in  the  name  of  

commercial viability and  loosely drafted clauses of the bid  

documents and contracts,  complete revision of the plan has  

been sought by the appellant after declaration as successful  

bidder.  It was further submitted that the committee under  

the Chairmanship of  the Chief Secretary of the Government  

of  Rajasthan  considered   the  Revised  Master  Plan   and  

rejected  the  changes  on  10.10.2007.    However,  another  

representation  was  submitted  by  the  appellant  

herein/respondent No.7 in the High Court  and on 10.9.2009  

sanction was granted by the Committee.

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33. The PIL petitioner  also  raised a grievance that  

Environment  Impact Assessment  was not carried out by the  

finalization      of  the project   or  execution of  the lease  

agreement and even  environment clearance from MoEF ,  

Central  Government  was  not  obtained  as  required under  

EIA Notification dated 27.1.1994.   The Central Government  

had issued  a fresh Notification on 14.9.2006 in exercise of  

power   conferred  under  Section  3  of  the  Environment  

Protection Act, 1986 (shortly referred to as ‘the act of 1986’)  

and  rules  framed  thereunder  for  environment   clearance  

before implementation of the projects mentioned therein.   It  

was  further  contended   that  the  project  cannot  be  

implemented   without  obtaining  environment  clearance  

from  the  Central  Government  under  the  aforesaid  

notification  and  no  Environment  Impact  Assessment   was  

carried  out  nor  any   environmental  clearance  has  been  

obtained before finalizing  the project &  all actions taken  by  

the respondent  are absolutely  illegal  and void.   The PIL  

petitioner  further  contended   that  the  environment  

clearance  as required under  notification dated 14.9.2006  

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had not been obtained  nor any compliance  of  Wetlands  

(Conservation   and Management  )  Rules   2010 had been  

made so far.  The  PIL petitioner had raised a grievance that  

it is a case of  siphoning  off valuable  public property as the  

value  of 100 acres  of land is  not less than 3,500/- crores.  

The   DLC  rates  for  commercial  land   in  question   is  

Rs.79,063/- per sq. mtrs. and lease for  99 years amounts to  

sale,  although  as  per  rules   it  was  necessary   for  the  

respondent-authorities   to  realize  the  sale  price   and  

additionally lessee was required to pay annual  lease money  

also.  The market price used to be  much higher   than DLC  

rates,   especially  due  to  location  being  picturesque   and  

ecologically    rich.   If  such  land  is  sold   for  commercial  

purposes for  constructing   five star hotels, resorts, luxury  

villas  etc.   such  land  carries   invaluable  importance.  

According to the PIL petitioner/contesting respondent herein  

the value  of such land cannot  be said  to  be less than  

3,500/- crores.  It was, therefore,  submitted that the State  

Government had  handed over valuable  natural resources of  

water  surrounded  by natural beauty  of  hills and forests,  

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full  of  wildlife   and  other  natural   resources  maintaining  

environmental   and  ecological   balance  of  the  city   to  a  

private  entrepreneur  society   for  economic exploitation  at  

the  cost  of  the  public.   The  revision  of  the  Master  Plan  

completely    converts  the  tourism project  into   privately  

owned township upon 100 acres of land which has been  let  

out for  a  petty sum by  the Government.   

34. In so far as writ petition no.  5039/2010  Dharohar  

Bachao Samiti vs. State of Rajasthan  and Ors.  and  writ  

petition  No.  4860/2010  Heritage  Preservation  Society  

Rajasthan   and  Anr.  vs.   State  of  Rajasthan  &  Ors.  are  

concerned,  have  also substantially urged the sacrifice of  

public  interest on account of the lease  granted in favour of  

the appellant and as such  to establish sacrifice  of  public  

interest as per their  perspective which have been  related in  

the impugned judgment and order.           

35. Contesting the PIL petition before the High Court,  

the  respondent   State  of  Rajasthan  and  its  

functionaries/authorities   had  submitted  that  Master  

Development Plan  1976  to 1991  of Jaipur city  contained  

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provisions of various facilities  on south and west side of  Jal  

Mahal  Lake   on  200  acres.   It  was  submitted  that  the  

erstwhile Urban Improvement Trust  Jaipur  had proposed a  

scheme in respect of 520  acres  land which was published  

in  the  gazette  on  31.7.1975.   The  Jaipur  Development  

Authority Act 1982  (for short ‘JDA Act 1982’) came into force  

and Urban Improvement Trust was replaced by the JDA.  A  

notification under Section 39 of the JDA Act was  issued by  

the JDA on 30.6.1987.  However, development  of Jal Mahal  

area  could  not   materialize  .   The  JDA  then  decided  to  

undertake  the  exercise  for  development   of  integrated  

tourism  infrastructure   development  for  Jal  Mahal  and  

required   Project  Development  Company   of  Rajasthan  

(PDCOR)   to  prepare  project    on  commercial  format  for  

private public participation.  The preliminary approval was  

given  by  the  Standing  Committee     on  Infrastructure  

Development ( for short ‘ SCID’) in December 1999.  It was  

stated that the bids were notified in the year 2000 but no  

entrepreneur   came forward in the bidding process and thus  

the tender process was scrapped.  Thereafter,  the JDA  was  

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appointed as nodal agency to undertake the bidding process.  

Global tenders are invited  on 25.4.2003 and in pursuance  

thereof  9 entrepreneur  showed interest.  It was mentioned  

in the advertisement that 100 acres of land would be leased  

out  for  99  years.      A  pre  bid  meeting  was  held   on  

24.8.2003   for  removal  of  doubts.   The  Department  of  

Tourism   on 6.9.2003 transferred the  development of Jal  

Mahal   to  RTDC vide letter   R-1/12.   On  15.9.2003,  pre-

qualification bids were opened in response to which   four  

entrepreneurs submitted bids.   Rejection   of one bid was  

recommended on account  on inadequate  information   on  

evaluation.  It was pointed out that the respondent M/s. KGK  

Enterprises  was a partnership   concern whereas the criteria  

for  bidder  was  that  it  has  to  be  private/public   limited  

company  and  thus   final  view  of  the  Government   was  

sought in respect of qualification/disqualification  of M/s. KGK  

Enterprises  in the  next phase of evaluation bid.  Later on,  

14.11.2004,  KGK   Enterprises  formed  private  limited  

company  in the name and style of “Jal Mahal Resorts Pvt.  

Limited”.    The  PDCOR   suggested  retention  of  KGK  

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Enterprises  as  its  presence  will  increase  competitiveness.  

The State Government  permitted the consideration of bid of  

KGK  Enterprises  on  17.10.2003  to  enlarge  the  scope  of  

competitiveness.  Thereafter,  the technical  bid was  opened  

on 21.10.2003 and financial bid was opened on 3.12.2003.  

The RTDC recommended the award of project  to the highest  

bidder  namely  KGK  Enterprises  and  accordingly  the  

Commissioner, Tourism vide noting dated 19.2.2004 put the  

matter before the State Government  for issuing  a letter of  

intent  and signing   the  lease  agreement  in  favour  of  the  

successful bidder.  This was forwarded by Secretary, Tourism  

to Minister Incharge  Tourism (Chief Minister), who approved  

the  minutes  of  the   Empowered  Committee    on  

Infrastructure Development (ECID) and directed to  put up  

the draft lease agreement early.  On 9.5.2005  the Collector  

intimated   that   100  acres  of  land  has  been  mutated  in  

favuor  of   RTDC.   The  approval  of  lease  agreement  and  

license agreement  and authorizing  of Managing Director  of  

RTDC to sign the agreement   was granted finally  by the  

Chief  Minister  on 27.10.2005.    On 29.10.2005,  the RTDC  

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authorized  the Managing Director to sign  Jal Mahal  Lease  

Agreement  on behalf of  Government of Rajasthan  with Jal  

Mahal  Resorts Pvt.  Ltd.  and accordingly  lease agreement  

was  executed  on  22.11.2005.   The  Central  Government  ,  

MoEF recorded its  appreciation for  the project vide letter  

dated 13.9.2002 and 1.12.2009.

36. It was further contended  on behalf of respondent  

State that  it is incorrect to say that the  size of the lake has  

been reduced on account of  leasing out 100 acres of land.  

It was averred that the action  is as per  Master Development  

Plan.  The State Government has submitted the project to  

the  Central  Government   MoEF    for  restoration  of   Man  

Sagar Lake  at the estimated cost of    Rs.24.72 crores and  

the Central  Government  agreed   to  provide 70% of  the  

cost.  PDCOR  in the project report prepared in October 2001  

included the following facilities:

1. Restaurant;

2. Traditional Technological Park   

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3. Club Resort

4. Amusement  Park

5. Heritage  Village

6. Light and Sound Show land

7. Recreational Centre.

It was further stated by the respondent State  of Rajasthan  

before the High Court that there will be no damage to the  

wild  life   or  reserve  forest   or   birds  and  it  is  for  the  

respondent No.7 Jal Mahal Resorts Pvt. Ltd./appellant herein  

to   obtain  clearance   as  per  requirement  of  law.   The  

sedimentation tank      covers 5% of the area of lake.  It was  

also stated that the  Wetland Rules are not applicable and  

they are made applicable to  Sambhar Lake and Keola Deo  

Lake in Rajasthan.  It was still further added  that the land  

leased out does not fall within  the definition of Section 2(1)  

(g)  and Section 3.  The consent had been given under the  

Water  Act  by  the  Rajasthan  Pollution  Control  Board  on  

20.5.2010.  It was further added that for the last 3  decades ,  

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the  State  Government  had  been  making  efforts   for  

restoration of Jal Mahal, Man Sagar  Lake  and  the  Area  

around lake  and  desilting  has  not  caused any  ecological  

damage.

37. In  so  far  as  the  stand  of  Jaipur  Development  

Authority  is  concerned,  on  its  turn  submitted  that   for  

development of  Jal Mahal Tourism Project  land of private  

unit was acquired, certain land was sawaichak (government  

land) and land of  public works department,  land of three  

villages namely ,  Vijay Mahal,   Bansbadanpura and Kasba  

Amer   was  included,  178  bighas  9  biswas  was  in  private  

tenancy, 475 bighas 9 biswas was sawaichuk (government  

land )  ,  25 bighas  4 biswas was of  PWD, 133 bighas 15  

biswas was of Municipal Council , 19 bighas 10 biswas  was  

of forest department.   Thus in total 832 bighas   01 biswas  

was mentioned in the letter dated 7.6.1982 written by UIT to  

the Deputy Secretary UDH.   When JDA was formed the area  

of  Jal Mahal Project stood transferred to the JDA by virtue of  

JDA Act and the JDA vide letter dated 5.10.1983 requested  

the Government  to  acquire land admeasuring  832 bighas 4  

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biswas  which was in the tenancy of private persons.  The  

JDA   sent  a   proposal  on  25.2.21988  to  the  UDH  for  

publication under Section 4 of the Land Acquisition Act, the  

report  under  Section  5A  was  submitted  by  the  Land  

Acquisition Officer to the Government  for acquisition of land  

for  Jal  Mahal  Reclamation  Project  ands  the  same  was  

accepted and land award was passed on 17.4.1996.  It was  

further explained that a part of  land however falling in the  

area known as Karbala measuring 46 bigha was  decided  

not to be acquired.  On 31.3.1999 BIDI was formed to take  

decisions to accelerate growth of investment  and industrial  

development   in  the  State  of  Rajasthan.   Thereafter,  the  

decisions were taken details of which  have been given in  

the  return.  On  10.0.2009, approval of revised layout plan  

was  granted  by  the  Committee   chaired  by  the  Chief  

Secretary.  Lease amount had to be enhanced  by 10% every  

time after a period of 3 years.  It was therefore submitted  

that JDA having considering the nature of investment, lease  

of 99 years was justified.  It was also admitted that out of  

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100 acres  of  leased area 13 bighas 17 biswas of land is  

recorded as ‘gairmumkin talab’ in khasra No.67/317.

38. In so far as  the reply of the  lessee/respondent  

No.7 and 8/appellants herein/Jal Mahal Resorts Pvt. Ltd. and  

KGK Consortium is concerned, it had submitted in their reply  

to  the writ  petition before  the High Court  that  the State  

Government   promoted  the  concept   of  private  public  

partnership to save the  burden on the exchequer and the  

decision  had been taken  by the expert body at the highest  

level which is not  amenable  to interference by this Court.  

MoEF  granted  approval  of  5.9.2002,  on  23.12.2002  

administrative  approval  and  expenditure   sanction  was  

issued by  the  Government  of  India  for  conservation   and  

management of  Mansagar Lake.  The bid submitted by M/s.  

KGK Enterprises  in 2003 was found  to be the highest and  

hence the then Chief  Minister  had approved the decision of  

giving project to the  highest bidder   KGK Enterprises on  

27.2.2004 and thereafter   letter  of   intent  was issued on  

30.9.2004 after which  lease agreement  was executed  on  

22.11.2005  on  which  the  appellant  has  already  spent  

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amount   of  Rs.70 crores   while  executing   part  I  of   the  

project.     

39. The appellant herein had also submitted that the  

public interest  petition was not bona fide   rather  amounted  

to  abuse  of the process of  the court  and  they have  been  

filed  with  gross delay and laches.

40. Responding to  writ petition No. 4860/2010 which  

PIL was filed  by Dr. Ved Prakash Sharma in the High Court  

also,  was contested  by the appellant   herein  and it  was  

submitted  that Dr. V.P. Sharma appears to have obtained  

registration  on  19.3.2010  mainly  for  the  purpose   of  

approaching  this Court in PIL.  It was also urged that Prof.  

K.P.  Sharma  in  W.P.  No.  6039/2011  is  not  a  recognized  

authority   or  lake  functionaries   or  expert  in  lake  

management,  irrigation,  environment  protection and there  

has  been   orchestrated  campaign  through   vernacular  

newspaper for reasons  best known to the  correspondent  

and  the  newspaper  itself.   The  said  newspaper  runs  the  

Janmangal Trust on behalf of  the Irrigation Department and  

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the  said  trust  also  carries  out  commercial  activities    to  

generate revenue for  upkeep of  the  dam.   It  was  further  

added that in 1992 the  newspaper group wanted to utilizes  

the  Jal Mahal Complex  and the land which  is part of Jal  

Mahal  Tourism Project for  its own benefit and commercial  

use free of cost/at a paltry  sum and having failed to grab  

the land , hostile campaign had been started  against the  

project and more than 200  misleading articles  had been  

published in the newspaper  attempting to  hold a media trial  

in the matter.  The appellant  herein further  stated that the  

PIL  petitioner  Prof.  K.P.  Sharma  respondent  No.6  in  the  

appeal  has not  come up  with clean hands and concealed  

the material    facts    that  on the complaint  filed by him  

before   PIL cell of the Supreme Court, no cognizance was  

taken  and the file was closed.  The writ petitions which were  

filed were barred by  res judicata  inasmuch as writ petition  

No. 1008/11 Ram Prasad Sharma vs. State of  Rajasthan was  

dismissed by the High Court as withdrawn by order dated  

15.2.2011 without liberty to file a fresh writ petition.   It was  

also submitted that the interference  in contractual matter is  

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not permissible specially when  Jal Mahal Tourism Project is  

in  larger public interest  as it has to undertake  restoration  

of  Mansagar Lake. It was still further added  that  there was  

encroachment of about  50-60 acres of land, decision had  

been taken by the expert body, bids were invited by  global  

tender    and  the appellant having been found  the highest  

bidder was rightly  considered, lease agreement  and leave  

and license agreement  are  valid,  possession of the land  

was rightly handed over to them;  nursery  has been  set up  

over this land which has numerous varieties  of plants  and  

they  have  also  introduced  several  varieties   of  aquatic  

vegetation in the Mansagar Lake to attract migratory birds.  

Beautification  of Jaipur-Amer Road  divider    has also been  

taken  up  and  work  of   phase  I  has  been  completed  and  

allegation of  environment damage is baseless as the State  

Government after environment  impact assessment  granted  

permission  and   consent  has  also  been  granted  by  the  

Rajasthan  Pollution  Control  Board  in  2009-10,  capacity  of  

water  in  the  lake  has  not  been  reduced;  sedimentation  

basin   has  been constructed  as  per  expert   advice.   The  

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appellant  further had stated that they had spent about Rs.  

15  crores  on  lake  restoration   which  was  not  their  

responsibilities under lease agreement  and they have also  

spent Rs.10  crores  on restoration of Jal Mahal  Monument  

voluntarily  though obligation  was limited to Rs. 1.5 crores  

only.   Hence, there cannot be any interference  by this Court  

with the opinion of the expert.   

41. It was still further added that Jal Mahal monument  

is not a place of worship for both Hindu or Muslim or  either  

of them and there is no  document  showing  that it has been  

permitted to be used  as a place of worship.   It was stated  

that  Jal Mahal monument was  a pleasure pavilion  used for  

hunting ducks and other similar  pleasure activities by the  

kings, opinion  of legal  consultant of  JDA  was not correct.  

Issue  of  identity  of   director/owner  of  the  company  

constituting  the consortium  is not relevant  in any manner  

whatsoever to the  project for restoration of  Mansagar Lake.  

Jal Mahal Monument and Development  of  precinct area , bid  

was submitted  by KGK Consortium comprising of six private  

limited companies,  one HUF and partnership  firm namely,  

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M/s.  KGK Enterprises  who was  lead  bidder   of   the  KGK  

Consortium.  It was stated that it is mandatory  under the  

tender document  that in case  of consortium bid, successful  

bidder   has  to  form  special  purpose  vehicle  (limited  

company) and lease would be executed   with such SPV, in  

the  pre-qualification round the bidder should have   satisfied  

any two of the three  eligibility  criteria  for  meeting  the  

financial  capability :

1. Tangible net worth of not less than Rs.100 million (US $  2 million) as per the latest audited financial statement;

2. Annual turn over  than Rs.300 million (US $ 6 million) as  per the latest audited financial statement.

3. Net cash accruals not less than Rs .50 million (US $ 1  million) as per the latest audited financial statement.  

Relying  on  these credentials,  it  was  stated  that  M/s.  KGK  

Consortium satisfied the aforesaid technical financial criteria.  

However,  its  leads  member   M/s.  KGK  Enterprises  was  a  

partnership  firm  and as  the  KGK Enterprises  met  all  the  

requirements in respect  of technical, financial , shareholding  

and lock in periods  as given in  RPF, deviation from the RPF  

which  mandated  that  the   lead    firm  must  be   a  

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public/private company was permitted and KGK Enterprises  

was  allowed  to  compete  so  as  to   ensure  adequate  

competition.  Factual details are  further added stating that  

KGK Enterprises   acquired  83 marks while the next highest  

82 marks   were secured by M/s. J.M. Projects Pvt. Ltd.  and  

both  were considered eligible for opening of their   financial  

bids,  bid of KGK Enterprises  being highest was accepted.  

Under the lease agreement ,  the Jal Mahal Resorts Pvt. Ltd.  

has  a right  of development of 100 acres of project land  and  

no proprietary right over the management has been given.  

License  for the restoration of the Jal Mahal  monument  does  

not  confer any right on Jal Mahal  Resorts Pvt. Ltd.  except  

to ferry  passengers for a minor  charge and it has not been  

authorized to use the Jal Mahal monument commercially and  

the monument  remains within the  possession and use of  

the State Government.  Out of 100 acres of land, 87% area is  

to  be  maintained  as  green  area  and  in  PIL  terms  and  

conditions   of  the  contract  cannot  be  questioned  after  

several  years.    The  appellant   further  stated  that  on  

restoration  of Mansagar Lake Rs. 15 crores  have already  

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been invested,  catchment area  is not being    disturbed in  

any  manner,  report  of   Prof.  K.P.  Sharma  is  merely  an  

opinion  based  on  personal  interpretation.   There   was  

temporary road  constructed by the licensee for easy access  

for   the   purpose   of  restoration  of  Jal  Mahal  monument  

which is situated otherwise in Mansagar Lake  surrounded by  

water and the   said road  has been dismantled  and  no  

material is left  to compromise the filling capacity of lake.  

JDA has approved  detailed  building plans for the project on  

13.7.2010.   The Jal  Mahal  Resorts  Pvt.  Ltd.   diverted  the  

sewage  nallahs  away  from  the   Mansagar  Lake  with  the  

approval of the  State Govermment , lake has been cleansed  

substantially,  BOD  of the water in Mansagar Lake has been  

reduced  substantially  after  commencement  of  the  work,  

creation of   sedimentation basin  has not  decreased  the  

water capacity  of Mansagar Lake and use  of   soil of lake  

itself  has not damaged the ecology  or environment or the  

lake.   Sedimentation  basin  is  a   part   of  the  lake    and  

created  only  by moving the soil  of the lake from one place  

to another and it is wholly temporary reversible  in nature  

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and the soil  can be leveled when arrangements are in place  

to ensure  that the storm  water  drains do not discharge  

silt and organic  load into the lake during monsoon, land in  

question is not covered under the provision of the tenancy  

act and the lake  is with the State Government  ,  which will  

continue to  remain so.   It has  however been added the  

responsibility  of  lake maintenance  is  purely of the JDA and  

Jal Mahal  monument has been denotified  in 1971 from the  

protected monuments under the provisions of the   Act of  

1961.  Changes in the Jal Mahal monument has been brought  

with the consent of the Empowered Committee,  these PIL  

petitions  were clearly  devoid of merit and the  appellants  

herein  had a right to  start phase II of the project.   

42. In so far as the   MoEF , Government of India is  

concerned, it 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  the  MoEG.     It  was  stated   that    project  for  

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conservation and management  of Mansagar Lake in Jaipur  

was sanctioned  as per the mandate   of the National Lake  

Conservation Plan.  It was further  contended  that  project  

for  conservation and  management  of lake  in Jaipur  was  

sanctioned in December 2002 at the cost of Rs.24.72 crores  

under  the  NLCP  on  70:30   cost  sharing   basis  between  

Government of India   and the State Government of Rajsthan  

and the sanctioned order was issued  which  contained break  

up of cost  estimated.   The different components  which  

were  approved   further  included  realignment  of  drains   ,  

desilting ,  insitu bioremediation , sewage treatment plant  

and wetland construction, check dams, aforestation, nesting  

islands etc.   It  has been accepted by  the MoEF that the JDA  

was the  nodal implementing agency  for the project  and  

MoEF  Central Government  has released entire share of the  

Central Government  amounting to Rs.17.30 crores.  Other  

details   had  also  been  recorded  on  behalf  of  the  MoEF  

regarding the cost of  upgradation   and it was  stated that  

the  State  Government    was  committed    to  bear  the  

additional  fund  towards  the  development   from  its  own  

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resource.   The  State  Government  had  informed  that  in  

addition  to the sewerage work  under NLCP   scheme , other  

projects    are also being taken up thereby  ensuring    that  

all  sewage generated in the lake catchment area is  being  

taken care of.   The learned Judges  of the Division Bench on  

a  scrutiny  of  facts  and  on  hearing  the  counsel  for  the  

contesting parties however were pleased to  hold that the  

PIL was bona fide  and in public interest.  Resultantly, the  

High Court was pleased to declare  that the  Mansagar Lake  

Precinct Lease Agreement  dated 22nd November 2005 giving  

100 acres of land  on lease  for a period of  99 years  to  

respondent No.7 Jal Mahal Resorts Pvt. Ltd. was illegal and  

void.   The  appellant  Jal  Mahal   Resorts  Pvt.  Ltd.  was  

therefore, directed to restore the possession of the land to  

the RTDC who in  turn was directed to  give back the land  to  

Jaipur  Development Authority,  Jaipur  Municipal  Corporation  

and  the  State.   As  already  stated  in  the  introductory  

paragraph,  certain   other  directions    like  removal  of  

sedimentation and settling tanks  from the Mansagar Lake  

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basin was also issued by the High Court  and cost also had  

to be realised from  the appellant.          

43. The appellant lessee/Jal Mahal Resorts Pvt. Ltd. felt  

seriously aggrieved and  affected by the impugned judgment  

and order   of the High Court  and therefore preferred this  

appeal along with   the other  connected appeals  which are  

being heard  and decided  analogously.

44. In order to test the   merits and demerits/strength  

of the case of the contesting parties , we deem it appropriate  

to take note  of the historical background giving rise  to this  

matter whereby certain factual aspects and the background  

may be  traced out  from 1962 when admittedly  the two  

sewerage  drains  of the walled city of Jaipur  Nagtalai and  

Brahmapuri  were diverted  to  empty into the  water body  

which led  to its  degeneration, siltation and settled  deposits  

and  contamination   to  such  an  extent   that  it  could  not  

support the  aquatic  life  nor support flora   and fauna  in the  

surrounding  areas.  It  is also an admitted position  that the  

condition of Mansagar Lake   and the Jal Mahal also started  

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substantially deteriorating  over  a period of time   not only  

because  of    natural  process  of  degeneration  but  also  

because of ill  maintenance and monument   reduced to such  

a  dilapidated  state  that  it  required   massive  restoration  

work.  It is also borne out from the historical background and  

the sequence of events   related by the contesting  parties  

that  the  deteriorating  condition  of  the  lake   and  the  

monument  compelled  the  State  Government  to  find  ways  

and  means  to  restore  the    monuments  to  their  original  

glory.    We have noted from the  averments of contesting  

parties that over a period of  30 years attempts were made  

by  Government  agencies  and  departments  to  restore  

ecological  and environment condition of the lake  and its  

adjoining  area  but   none  of  the  attempts   yielded   any  

positive  result because of  paucity of resources  to take up  

and sustain their restoration.  The Government of Rajasthan  

therefore  had taken a decision  to adopt  an incentivized  

approach  to restore the lake and monument  and declare  

the precinct area on a public/private partnership  format.   In  

order  to  improve   the  condition  of  the  lake  the  State  of  

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Rajasthan  in consultation with the experts and after detailed  

surveys  and analysis  adopted an approach of development  

covering three components which are:

1. Restoration of  Mansagar Lake;

2. Restoration of  Jal Mahal and  

3. Development  of  tourism/recreational   components  at  the lake  precincts.   

While  restoration  of Mansagar Lake was approved as per  

the   averment  of the MoEF confined to  the development  of  

lake area,  restoration of   Jal  Mahal   which lie  within  the  

precinct of the lake,  development  of  lake and the adjoining  

area  to the lake fell within the  domain   of the Government  

of  Rajasthan  which  related  to  development  of  

tourism/recreational  components at the lake  precincts.  

45. On a scrutiny of the extensive  factual details and  

the  submissions  advanced  by  the  contesting  parties  ,  we  

have noted that the entire  dispute is essentially confined to  

the Lease Deed    which has been  granted in favour of  the  

appellant for development  of 100 acres land adjoining the  

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lake  area  for  a  period  of  99  years.   The  PIL  petitioners  

although have urged that the land  for which lease deed had  

been executed were wetland, it could not  establish from any  

material  on  record   that  except   an  area  of  14.15  acres  

equivalent to  22 bighas and 10  biswas  and another area  

comprising  8.65  acres  equivalent   to  13  bighas  and  17  

biswas are in  fact the contentious area on the basis of which  

PIL  petition has been filed engulfing the entire area  of the  

lease deed.  In this respect  it cannot  be overlooked  that  

the  project which was visualized and given effect to, was  

with a view  to sustainable conservation and preservation  

approach stipulated in  consultation  with  the experts   in  

pursuance  to  which  a  global  tender  was   floated  and  

implemented under extra supervision with all  approvals in  

place  from the concerned authorities.   

46. Learned  counsel  for  the  petitioner/appellant,  Dr.  

Abhishek Singhvi assailed the impugned judgment and order  

of  the  High  Court  and  urged  that  the  High  Court  has  

proceeded  on  a  patently  erroneous,  illegal  and  factually  

incorrect basis when it inter alia held as follows:

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a. That the public-trust doctrine has been breached  

because  land  measuring  13  Bighas  7  Biswas  

submerged area of  lake has been leased to  the  

petitioner  and  resultantly  lease  deed  dated  

22.11.2005 is void in law.

b. That 14.15 acres equivalent to 22 Bighas and 10  

Biswas  of  land  submerged  forming  part  of  the  

Lakebed and could not have been leased out.

c. The State Government has leased 25 percent of  

the Lake basin itself to the petitioner/appellant for  

preparing 100 acres of land and the lake level has  

been reduced to carve out 100 acres of land for  

the lease.

d. The Environment Clearance given by State Level  

Environment Impact Assessment Authority (SEIAA)  

to the petitioner on 29.04.2010 is void in law.

e. That  the  Project  is  in  violation  of  Rule  4  of  the  

Wetland  Rules  of  2010  and  the  Ramsar  

Convention.   Thus,  the  lease  deed  is  in  

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contravention of the Wetland Rules and cannot be  

given effect to.

f. That  the sedimentation tanks are illegal  as they  

could  not  be  built  without  clearance  from  the  

Ministry of Environment and Forests.

g. That  the  No  Objection  given  by  the  Rajasthan  

Pollution Control Board to the petitioner’s project  

is of no avail in the absence of clearance by MOEF  

under the Environment Protection Act, 1986.

h. That the lease has been executed in violation of  

Rajasthan Tourism Disposal  of  Land Rules,  1997  

(RTDC Rules), Rajasthan Municipalities (Disposal of  

Urban  Land)  Rules  1974,  The  Rajasthan  

Municipality Act, 1959 and the Jaipur Development  

Act, 1982 is liable to be cancelled.

i. That  the  State  was  bound  to  give  effect  to  the  

essential  conditions  of  eligibility  stated  in  the  

tender  document  and was  not  entitled  to  waive  

such a condition.  Thus, action of respondent No.2  

was not for bonafide reasons.

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47. Learned  senior  counsel  for  the  appellant  Dr.  

Abhishek M. Singhvi  at the outset  submitted that the writ  

petitions  before  the  High  Court  by  way  of  Public  Interest  

Litigation ought to have been held barred by delay, latches  

as also on the ground that they were not bonafide and filed  

with ulterior motive.  It was explained that three purported  

PIL  came  to  be  filed  by  the  writ  petitioners/respondents  

herein in 2010 and 2011 after expiry of 5 years from the  

date of execution of the lease deed and licence agreement  

dated 22.11.2005.  In this respect, it was submitted giving  

out the sequence of events that the Detailed Project Report  

(‘DPR’ for short) in regard to the Project was prepared way  

back in 2001 which was the underlying basis for the Project.  

The tender process commenced in 2003 and the fish shaped  

leasehold  area  comprising  100  acres  was  part  of  the  

Expression of Interest dated 25.04.2003 published in various  

public media.   Notice Inviting Tenders for  the Project was  

published in various public media on 30.07.2003.  The pre-

qualification bids were opened on 15.07.2003, the technical  

bids were opened on 21.10.2003 and the financial bids were  

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opened on 03.12.2003.  Thereafter, decision making process  

was undertaken at several stages upto the level of the Chief  

Minister in order to determine the award of the Project to the  

respondent-lessee  KGK  Consortium which  are  indicated  in  

the  order  09.02.2004,  27.02.2004,  30.09.2004  and  

27.10.2005.   Thereafter,  finally  on  22.11.2005,  the  Lease  

and Licence Agreements were executed between the State  

Government and the petitioner-appellant.  It was submitted  

that all the above steps were taken in public domain and in  

fact one of the PIL-petitioner/respondent herein K.P. Sharma  

was aware of the developments as far back as in February  

2005 that the project was to come up.  Yet he chose to sit by  

and do nothing until  2011 and during these intervening 8  

years,  the  State  Government  and  the  petitioner/appellant  

substantially altered their positions by spending huge sums  

of  money  in  implementing  the  Project.   It  was  therefore  

submitted that the motive of respondent No.1/PIL petitioner  

is questionable because he has sought to disrupt a Project  

much after the public money came to be spent even though  

he could have approached the High Court earlier.   

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48. Learned  counsel  for  the  petitioner  further  submitted that one of the factors that the Court should look  into before entertaining a PIL is to ensure whether the PIL  has been filed promptly and in utmost good faith.  It ought to  further consider whether by allowing a grossly delayed PIL,  the parties who have acted bonafide would  be prejudiced  and suffer.  In the present case, the petitioner/appellant has  spent  gratuitously  on  the  belief  that  it  had  the  right  to  develop 100 acres of land leased and it spent Rs.10 crores  on  restoring  the  Jal  Mahal  Monument  which  is  now  fully  restored and ready to be opened for the public.  It has paid  more than 22 crores on lease rent alone and has built a 1.75  KM long public promenade over its leased land, substantively  and the petitioner during this period completed the whole  phase  -1  under  the  agreement.   In  support  of  this  submission, the petitioner/appellant relied upon the ratio of  the  decision  delivered  in  R.D.  Shetty  Vs.  Airports  Authority  of  India,  1979  (3)  SCC  489,  where  the  Court  despite holding that the State had violated Article 14 of the  Constitution permitted the contract to continue.  The Court  in its conclusions overlooked the rights and liabilities of the  successful party on the one hand and the conduct including  delay  and  motive  of  the  PIL/petitioner  on  the  other  and  finally upheld the right to continue contract under challenge  as it was of the view that the Court may refuse relief to the  

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party challenging the award of contract if the equities are in  favour of the party holding the contract. In the instant case,  it is not even the plea of the PIL/Petitioner that he himself  has been deprived of his rights.  Even in the case of  State  of  M.P.  Vs.  Nandlal  Jaiswal,  1986  (4)  SCC  566,  this  Hon’ble Court took the view that the writ petition suffered  from latches and thus considered it fit to dismiss it.   

49. It was added that in fact the PIL/petitioner in the  

High Court Mr. K.P. Sharma is guilty of suppression of facts  

from the High Court as he had sent a complaint letter dated  

12.06.2007 to the Supreme Court and the SC Registry was  

directed to submit  a report dealing with all  the allegation  

raised by PIL/petitioner.  The SC Registry took the report on  

record and closed the matter on 20.12.2007.  The petitioner  

K.P. Sharma thereafter did not move forward and suddenly  

after 4 years in April 2011, filed a writ petition by way of PIL  

in the High Court without even disclosing that complaint had  

been enquired by the Registry of the Supreme Court and the  

matter  was  closed.   However,  the  PIL/petitioner  made  a  

further application to the Supreme Court in the year 2011  

but the Additional Registrar of the Supreme Court vide letter  

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dated 11.10.2011 informed the PIL/petitioner that pursuant  

to  GOR Report,  the file  had been closed and the file  was  

weeded  out  on  14.04.2011.   Thus,  the  PIL/petitioner  was  

clearly aware of the factual report of the GOR to the effect  

that the SC Registry had closed the matter based upon that  

report, yet the PIL/petitioner K.P. Sharma failed to disclose  

this  vital  fact  to  the  High  Court.   Thus,  the  PIL/petitioner  

deliberately tried to mislead the Court and has not come to  

the Court with       clean hands.  It was therefore contended  

that  it  cannot  be  overlooked  that  the  complaint  of  the  

PIL/petitioner to the SC Registry and its rejection thereafter  

based upon a factual report submitted by GOR is a vital and  

material fact that ought to have been disclosed to the High  

Court specially since the allegations in the complaint and the  

PIL substantially overlap.   

50. It  was  next  contended  that  the  PIL  by  the  

petitioner  K.P.  Sharma  lacks  the  bonafide  to  prefer  the  

PIL/petition because his conduct is malicious and vindictive.  

Elaborating  on  this,  it  was  stated  that  PIL/petitioner  K.P.  

Sharma with Dr. Brij Gopal had approached the appellant in  

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the year 2007 purporting to offer their services for monetary  

reward.   Since the appellant  had already engaged a lead  

panel of conversationist and environmentalist, the services  

of the PIL/petitioner were not required.  Thereafter, the PIL  

was filed only as a way to vent his pique and frustration at  

the SLP petitioner/appellant herein.   It  was submitted that  

these vital background facts ought to have been disclosed to  

the Court at the time of preferring the PIL and since these  

facts were suppressed and not disclosed, it is apparent that  

the PIL petition had not been filed bona fide and had been  

preferred for own vexatious reasons.   

51. It was further contended that the High  Court vide  

the impugned order has proceeded on a patently erroneous,  

illegal  and  factually  incorrect  basis  when  it  held  that  the  

public trust has been breached because land admeasuring  

13 Bighas 7 Biswas forming part of Lakebed which has been  

leased  to  the  petitioner/appellant  vide  lease  deed  dated  

22.05.2005 is void in law.  It was explained in this regard  

that 13 Bighas 17 Biswas of land equivalent to 8.65 acres of  

land from the very inception has been reflected and treated  

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as part of the land that was proposed to be leased.  This land  

was described in the original Detailed Project Report which  

was prepared much earlier in the year 2001 when this land  

was formed part of the fish shaped land.  It is highlighted  

that during the first attempt to initiate the Project Jal Mahal  

and  preparation  of  the  Detailed  Project  Report  (‘DPR’  for  

short), the petitioner/appellant was nowhere in the picture.  

In this regard, it had been contended by the respondent PIL  

petitioner  that  the  area  admeasuring 13 Bighas  17 Biswa  

bearing Khasra No.67/316 (8.65 acres approx.) is part of the  

lake  area  as  per   revenue  record  which  is  recorded  as  

“gairmumkin  talab” and  therefore  could  not  have  been  

leased  to  the  petitioner.   Contesting  this  plea,  it  was  

submitted by the petitioner/appellant that Khasra No.67/317  

does not form part of the submerged area and is in fact a  

part of landmass which is outside water.  The survey reports  

placed  on  record  leave  no  doubt  on  this  score.   It  was  

submitted  that  the  consistent  and  specific  case  of  

respondent  No.6/Project  Development  Corporation  of  

Rajasthan (‘PDCOR’ for short), this land does not constitute  

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part of submerged land.  However, revenue record reflects  

this land as  gairmumkintalab and the State has entrusted  

the preparation of the Jal Mahal Tourism Project that includes  

ecological restoration of Mansagar Lake Restoration of the Jal  

Mahal Monument and the Lakeside Development on the land  

leased to the petitioner.  However, the petitioner/appellant  

has also added that it has no desire or intention to construct  

or in any manner commercially utilise this land and should  

be  open  to  the  public.   As  a  matter  of  fact,  respondent  

No.2/the  State  of  Rajasthan  had  specifically  informed  the  

High Court that no construction shall be allowed to be raised  

on the said area and hence this can hardly be a ground for  

quashing  the  award  of  the  entire  Project.   It  has  been  

submitted  that  this  Court  can  uphold  the  award  of  the  

Project  despite  the  alleged  illegality  by  keeping  the  area  

open in green and the same cannot be a reason to entail a  

consequence of cancellation of the entire Project resulting  

into  huge  loss  of  Project  to  larger  public  interest.  

Cancellation of  the Lease and Licence Agreement  in  such  

circumstance  would  be  patently  erroneous  and  in  conflict  

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with  settled  law.   Learned  counsel  for  the  petitioner  has  

relied  upon  the  ratio  of  Century  Spinning  and  

Manufacturer  Company Limited Vs.  Nagar  Municipal  

Corporation,  1970 (1) SCC 582.   Finally,  on this point,  it  

was  urged  that  the  High  Court  at  the  most  could  have  

severed reference to the said 13 Bighas 7 Biswa of land but  

should have upheld the lease pertaining to the rest of the  

land  as  the  Lease  Agreement  expressly  permits  such  

severance vide Clause 18.4 of the Lease Deed.   

52. Learned  Attorney  General  on  behalf  of  State  of  

Rajasthan had contended that on spot inspection by Jaipur  

Development Authority(‘JDA’ for short) showed that no lake  

existed in 13 Bighas 17 Biswas of land and that this land was  

a landmass.  The reason for including this area in the lease  

deed was to maintain the shape of the allotment.   It  was  

further argued that Court may direct this area to be kept  

open  as  no  construction  zone  and  may  be  kept  open  

excluding  the  area  which  has  been  consumed  in  public  

promenade.   

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53. The High Court however had held that 14.15 acres  

of land submerged formed part of the Lakebed and could not  

have been leased out.  Assailing this view taken by the High  

Court, it was contended that this Court would have to adopt  

an  objective  test  to  determine  which  land is  classified  as  

Lakebed and for this purpose reliance has been placed on  

the ratio of the decision delivered in the matter of  Noida  

Memorial Complex Judgment,  2011 (1) SCC 74.  It  was  

submitted that reference to the revenue record with respect  

to  100  acres  lease  shows  that  even  though  land  

admeasuring 14.15 acres is submerged in water, historically  

and  contemporaneously  this  land  has  been  classified  as  

‘barren’ land and not as part of the Lakebed and also for that  

reason is not a wetland.  It was further elaborated that the  

PDCOR, the body that prepared the Detailed Project Report  

had  carried  out  land  surveys,  prepared  topographical  

surveys,  output  surveys,  water  quality  tests  and  received  

secondary data from Survey of  India  etc.  which has been  

incorporated in the counter affidavit before this Court and  

before  the  High  Court  explaining  the  reasons  for  

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submergence.  PDCOR has stated in its affidavit that the said  

14.15 acres of land was submerged due to huge silt deposits  

that had caused the depth of the lake to reduce and as a  

result the water had spilt out into adjacent land being the  

concerned  14.15  acres  of  land.   Thus,  the  said  land  was  

never  part  of  the  Lakebed  and  for  this  reason,  is  not  a  

wetland.  Factually, out of the 14.15 acres permitted to be  

reclaimed  by  the  petitioner  under  the  lease  deed  dated  

22.11.2005 the petitioner has only reclaimed approximately  

11  acres  out  of  which  approximately  6-7  acres  has  been  

consumed  for  creating  a  public  promenade  open  to  the  

public.   

54. In fact, the learned Attorney General on behalf of  

the State had also argued that this land of 14.15 acres was  

never  part  of  the  Lakebed  as  per  revenue  records.   The  

Attorney General also stated further that the approach of the  

High Court is  completely contradictory.   While on the one  

hand,  in  respect  of  the  13  Bighas  17  Biswas  area,  the  

revenue records are relied upon, in respect of the area of  

14.15 acres,  the revenue records  which clearly  show that  

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this area is not a part of lake, is disregarded.  Based on the  

revenue  records  referred  and  shown  to  this  Court,  the  

inevitable and indisputable conclusion that appears is that  

the entire 100 acres land leased to the petitioner is not a  

part  of  the  Lakebed except  13 Bighas  17  Biswas  bearing  

Khasra No.67/317 (8.65 acres). It would thus follow that this  

land  cannot  form  part  of  the  Lakebed  under  any  

circumstance.

55. Besides  the  above,  it  was  urged  that  over  the  

years,  huge  amount  of  silt  had  been  deposited  onto  the  

Lakebed by the Nagtalai and Brahmpuri Nala as a result of  

which the depth of the land has reduced which resulted in  

spilling  of  the  water  from  the  lake  into  adjacent  areas  

including the land adjacent to it.   

56.     On the premise of the aforesaid facts, it was urged  

that there is no violation of the public trust doctrine as public  

trust doctrine cannot be applied to defeat public interest.The  

Project  as approved and when implemented would in  fact  

create  an  unprecedented  Lake  water  front  ambience  and  

would be the only large water body in Jaipur that had been  

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subjected to massive destruction over the years. In fact, the  

Project  would  inter  alia  create approximately  1.5 km long  

walkway  (promenade)  along  the  lake  which  has  been  

constructed by the petitioner/appellant on the leased land  

that is open for use by the public.  Importantly, another 3.5  

km promenade has been built by the JDA along the Lake. A  

perennially filled Lake admeasuring 310 acres (approx.) with  

a depth between 3 to 5 metres and a complete renovation  

and  restoration  of  Jal  Mahal  Monument  with  a  pleasure  

pavilion built in the mid 18th century, the restoration includes  

artistic  paintings  depicting  Rajasthani  culture.  The  Project  

includes access to the restored monument by the public on  

paying a nominal charge of Rs.25/- per person essentially a  

cost  towards  being  carried  by  boat  to  the  Monument,   a  

crafts village to promote handicrafts and other world famous  

heritage products of Rajasthan,  an amusement park for the  

public, a restaurant positioned with adequate setback from  

the  Lake,  for  the  public  to  enjoy  clean  surroundings,  a  

heritage resort, a convention and Exhibition center to serve  

multipurpose functions.  It was submitted that these highly  

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pro public  elements  cannot be negated and destroyed by  

erroneous  contentions  raised  in  the  PIL.   Indeed,  the  

aforesaid  enormous  improvement  to  the  environment  

involving air, water and land, is itself in high public interest  

and  this  Hon’ble  Court  should  countenance  no  dilution  in  

that.

57. It  was next submitted that the conclusion in the  

impugned order that the Lake has been artificially reduced  

to get more land and lake water level and its spread had  

been  reduced  is  completely  erroneous,  unsustainable  

because it is the petitioner and the State who have together  

restored 310 acres (approx.) of the Lake that has resulted in  

ensuring the Lake remains filled with water around the year  

having the depth of around 3 to 5 meters, whereas earlier it  

was nothing but a cesspool of filth, sewage and silt etc.

58. The  factual  context  of  this  issue  has  been  

summarized by the petitioner in order to demonstrate the  

grave and patent  error  of  the impugned order  and it  has  

been stated as follows:

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i The level of Jaipur-Amer road is 100 m RL, and the  

full tank level of the lake is 99 m RL.

ii The  plinth  level  of  the  Jal  Mahal  Monument  is  

however only 98.12 RL i.e. almost 2 metres below  

the Jaipur-Amer road level.

iii. It is obvious that a water level equal to the Jaipur-

Amer road level would not only create problem for  

surrounding  areas  but  would  seriously  damage  

and impair the Jal Mahal Monument by entering it  

and eroding its structure.   

iv. Consequently,  from  the  creation  of  the  DPR  in  

2001 which was not known to the petitioner, the  

Government has recognised that the water level of  

the lake should not be kept above 98 m RL.

59. It is stated that DPR is not only a final document  

but in its final form has been approved without objection or  

protest by the Ministry of Environment and Forest (‘MOEF’  

for short) under the National Lake Conservation Plan (NLCP)  

Guidelines  and  in  particular  the  clause  dealing  with  

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maintenance  of  water  level  at  98  m  RL  which  has  been  

considered  and  approved  by  the  MOEF.   In  any  event,  

without prejudice to the foregoing, it was submitted that the  

impugned order is patently erroneous in that it purports to  

act as a MOEF, Pollution Control Board, State Environment  

Regulatory Authority, Independent and International Experts  

and Consultant all rolled into one.  It is impermissible under  

established judicial  review parameter  to  admit  the role  of  

second-guess expert body.  It is equally impermissible for a  

Court to substitute its review in respect of highly complex  

factual technological and scientific issue.  The Court cannot  

sit either an expert or arbitrate or as an appellate body nor  

can it allow a PIL petition to convert it into a super regulator.  

To reinforce the submission, reliance was placed on the ratio  

and observations made in the matter of  Tata Cellular Vs.  

Union of India, 1994 (6) SCC 680.  It was submitted that  

unfortunately the impugned order has committed precisely  

the aforesaid errors repeatedly, inter alia in respect of size of  

lake and water level of the lake.

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60. It  was  pointed  out  that  prior  to  the  

petitioner/appellant  taking  up  the  Project,  the  Lake  was  

virtually empty except with dirt, sewage and silt.  The very  

use  of  the  word  ‘reducing  of  the  water  level’  is  highly  

misleading and inappropriate.  It is the petitioner alongwith  

the State who has ensured the availability  of  clean water  

around the year rather than reducing the level of the Lake.  

It  was  still  further  added  that  since  Mansagar  Lake  is  a  

manmade  lake,  the  principle  source  of  water  during  and  

after  the  restoration  work  has  been  treated  

sewage/effluence coupled with some replenishment during  

monsoon.   Consequently,  in  view  of  the  release  of  post  

treated sewerage water into the Lake, the regulation of the  

water level at 98 m RL has always been an intrinsic part of  

the Government’s regulation of the entire area.

61. It was submitted that it is axiomatic in law and in  

fact that the award of a tender must necessarily be judged  

by the terms of the tender, subject to permissible variations.  

It  is most significant to note that the RFP on the basis of  

which everyone was invited to tender prescribes, specifies  

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and  stipulates  the  clear  water  level  at  98  m  RL.   It  is  

common  ground  that  neither  the  PIL  petitioner  nor  any  

bidder or anyone else has challenged the per se stipulation  

of the water level at 98 m RL.  Therefore, the allegation of  

the PIL  petitioner is  absolutely baseless.   Consequently,  it  

was  contended  that  the  respondents  contention  that  the  

petitioner/appellant is guilty of reducing Lake water level is  

highly misleading and distorted submission which has been  

accepted  in  the  impugned  order  contrary  to  the  factual  

position.

62. It  was  further  urged  that  the  PIL  petitioners’/  

respondents’  herein  penchant  for  false,  distorted  and  

misleading submissions alleging reduction of the size of the  

lake and the spread of the lake alleging that this was done  

by  keeping  the  water  level  at  98  m  RL  thereby  giving  

enhanced area of land to the petitioner/appellant herein and  

correspondingly,  diminishing  the  spread  of  the  lake  is  

equally  fraudulent  and  deliberately  distorted  for  the  

following reasons:

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i It is vital to note that the Detailed Project Report  

(DPR) made in 2001 at least two years before even  

the  Expression  of  Interest  was  issued  for  the  

present  Project  and  the  SLP  petitioner  

herein/appellant  was  nowhere  in  the  picture  

categorically gives the landmass area available at  

each of the three different levels of 100 m RL, 99  

m RL and 98 m RL of the lake and then goes on to  

specifically  declare  that  the  best  and  the  only  

feasible  solution  to  prevent  damage  to  the  Jal  

Mahal Monument is to keep the water level at 98  

m  RL,  neither  higher  nor  lower  vide  DPR.  

Consequently, the SLP petitioner herein/appellant  

had nothing whatsoever to do with a decision to  

maintain  the  water  level  at  98  m  RL.   It  is  

therefore  deliberately  misleading  for  the  PIL  

petitioner  /  respondent  herein  to  suggest  that  

because the water level is kept at 98 m RL, the  

SLP petitioner has been given a greater land area.  

Thus, it is submitted that it is patently false for the  

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simple reason that irrespective of the water level,  

the land actually given in the RFP is the necessary  

controlling tender document is no more than 100  

acres and even if 99 m RL which is full tank level  

had been fixed as  the  lake  level  even then the  

land available for the successful bidder would be  

100 acres.  This underscores the point that 98 m  

RL level was not the guiding factor while granting  

100 acres to the petitioner.

63. It was further contended that the High Court has  

erroneously relied on a PWD document that states the area  

of the lake has reduced to 0.79 sq. km after independence  

whereas prior to independence according to the High Court it  

was  1.154  sq.  km.   However,  the  High  Court  does  not  

appreciate and consider that the DPR was prepared in 2001  

after  carrying  out  extensive  surveys  and  preparing  

topographical maps, after doing all such research and based  

upon all such material it was determined by the DPR that the  

size  of  the  lake  was  130  hectares  more  than  what  it  

purportedly  was  prior  to  independence.   It  was  therefore  

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submitted that the High Court’s finding on this aspect suffers  

from lack of application of mind to the material on record  

and it was submitted that if anything, the size of the lake  

from  independence  has  only  increased.   Consequently,  it  

was  submitted  that  the  two  vital  and  unchangeable  

parameters show the falsity of the PIL petitioner contention  

viz.  

(a) A decision fixed and taken more than two years  

before the tender in 2001 to get the lake level at  

98 m RL.

(b) A decision taken in the RFP to lease out no more  

than 100 acres, once these two polar points are  

fixed,  assuming  everything  against  the  

petitioner/appellant  herein  or  the  State  

Government that can be no prejudice or detriment  

of any kind to public interest.

64. It  was  next  contended  that  the  High  Court  

conclusion  on  de-silting  is  patently  erroneous  and  

unsustainable because de-silting was a sanctioned activity  

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under  NLCP and MOEF  had  sanctioned  funds  for  the  said  

purpose.  The DPR had provided for de-silting as a measure  

to increase the depth of the lake so as to enhance the water  

holding capacity thus de-silting had a scientific basis to it.  In  

fact,  in  the  meeting  dated 03.04.2006 which was held  to  

review  the  lake  restoration  under  the  Chairmanship  of  

Principal  Secretary,  Urban  Development  and  Housing,  

permission was granted to the petitioner/appellant to de-silt  

the  lake  to  achieve  2  meters  depth  at  its  own  cost.  

Therefore, the petitioner had valid permission from the State  

Government to  carry out  de-silting and there was nothing  

illegal  in  the  manner  rather  than minutes  of  the  meeting  

show that it was a well considered decision of the Committee  

and was in line with the DPR.

65. The petitioner/appellant  submitted  that  the  High  

Court’s finding is  patently erroneous and unsustainable as  

except  for  the  revenue  entries  showing  13  Bigha  and  7  

Biswa of land as  gairmumkin talab  no other parcel of land  

that was leased to the petitioner was part of the Lakebed as  

per the revenue entries.  Only because silt was dumped on  

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the land leased to the petitioner, cannot make land that was  

not  part  of  the  Lakebed,  as  is  evident  from the  revenue  

record and is  now suddenly being asserted as part  of the  

Lakebed.  It is being stated that it is always advisable that  

Lakeside  development  should  be  at  higher  level  than  the  

water level.

66. On a consideration of the rival submissions urged  

on  behalf  of  the    contesting  parties,  in  the  light  of  the  

factual matrix and the materials which were produced before  

the High Court, it clearly  emerges that the PIL petitioner/  

respondent NO.1 herein K.P. Sharma  had contended  that  

the  lease  executed  and  granted  to  the  appellant  for  

development   of   100  acres  land  was  illegal,  arbitrary  

disturbing the natural  resource of lake which was fit to be  

struck down  as invalid  as the 100 acres land  was carved  

out from the lake area and thus the breadth and height of  

the lake was reduced.

67. However,  on  a  scrutiny  of  materials   on  record  

which included  the revenue record of the land in question, it  

is  sufficiently   clear  that   the  man  made  Mansagar  lake  

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comprised of an area of only 3 hundred acres towards the  

lake  area.   Counsel  for  the  respondents/PIL  petitioners,  

however, at the outset  and as the first and foremost point  

sought to make good the submission  that the lake area was  

reduced  by  100  acres  which  was  leased  out  to  the  

appellant/lessee by reducing the lake area.  But the counsel  

in  spite  of  his  best  efforts  could  not  establish  the  same  

except  the  fact  that  8.65  acres  and  14.15  acres  were  

submerged area of the lake and lakebed respectively which  

was carved out as land area so as to make it a part of the  

100  acre  land  area.   In  fact,   even  on  perusal  of  the  

impugned judgment and order of the High Court  it could not  

be established even remotely that the entire 100 acres land  

which comprises the area of lease deed is a part of the lake  

or lakebed in any manner. In fact, all the contentions which  

had been raised before the High Court as also before this  

Court in general terms urged that the lake area has been  

reduced to 310 acres and 100 acres have been carved out of  

400 acres of lake area which was reduced to 310 acres.  But  

in clear,  specific  or  precise terms,  it  could not go beyond  

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urging that 8.65 acres which was submerged and hence a  

portion of the  Lake area, could not have been made a part  

of the leased area.  In this context, it was further urged that  

this area being a wet land, could not have been included in  

the leased portion of  the land for  which the development  

was permitted by executing a lease deed.   

68. When this plea was scrutinised  in the light of  the  

revenue  record,  it  could  be  noted  that  this  area  has  been  

recorded in the revenue record  as ‘gair mumkin talab’ .  Based  

on  this  entry,  it  was  submitted  by  the  PIL  petitioner/  

respondent herein that  ‘gair mumkin talab’   area could not  

have been allowed to be developed by raising construction as  

that would be clearly contrary to the Wet Land Rules  which  

was enacted for the first time in the year 2010.  In other words,  

the contention of the PIL petitioner/ respondent No.1 herein is  

that since 8.65 acres of land which forms  part of 100 acres  

leased area granted to the appellant is submerged under water  

which area according to the PIL petitioner/ respondent would  

also form part of the lake,  the State Government could not  

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have included this land in the leasehold area to be granted to  

the petitioner/appellant.

69. The appellant/lessee on his  part  confronting this  submission argued that this Court  would have to adopt an  objective test to determine which land claimed as  Lake Bed  and wet land is fit to be accepted and for this purpose placed  reliance on the ratio of the decision delivered in the matter  of Noida Memorial Complex (2011) SCC 744 paras 24 and  25 which held as follows:  

“24. In support of the applicants’ case that there  used to be a forest  at  the project  site he relies  upon  the  report  of  the  CCF  based  on  site  inspection and the Google image and most heavily  on the FSI Report based on satellite imagery and  analysed by GSI application. A satellite image may  not always reveal the complete story.  Let us for a  moment come down from the satellite to the earth  and  see  what  picture  emerges  from  the  government records and how things appear on the  ground.   In  the  revenue  records,  none  of  the  khasras (plots) falling in the project area was ever  shown  as  jungle  or  forest.   According  to  the  settlement  year  1359  Fasli  (1952  AD)  all  the  khasras are recorded as agricultural land, banjar  (uncultivable) or parti (uncultivated).  

25.  NOIDA was set up in 1976 and the lands of the  project  area  were  acquired  under  the  Land  Acquisition Act mostly between the years 1980 to  1983  (two  or  three  plots  were  notified  under  Sections 4/6 of the Act  in 1979 and one or two  plots  as  late  as  in  the  year  1991).  But  the  

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possession of a very large part of the lands under  acquisition  (that  now form the  project  site)  was  taken over in the year 1983.  From the details of  the acquisition proceedings furnished in a tabular  form  (Annexure  9  to  the  counter-affidavit  on  behalf  of  Respondents 2 and 3) it  would appear  that  though  on  most  of  the  plots  there  were  properties of one kind or the other, there was not  a single tree on any of the plots under acquisition.  The records  of  the land acquisition proceedings,  thus, complement the revenue record of 1952 in  which the lands were shown as  agricultural  and  not as jungle or forest.  There is no reason not to  give  due  credence  to  these  records  since  they  pertain to a time when the impugned project was  not  even  in  anyone’s  imagination  and  its  proponents were nowhere on the scene.”  

Placing reliance on the aforesaid categorical view taken by  

this Court, it was submitted that a reference to the revenue  

records with respect  to   the 100 acres lease shows  that  

even though the land admeasuring 8.65 acres  might have  

been  submerged  under  water,  historically  and  

contemporaneously,  14.15  acres  has  been   classified  as  

‘barren land’  and not as part of the Lake Bed.   It, therefore,  

must  follow as per the submission of the counsel for the  

appellant placing reliance on the revenue records that the  

14.15  acres  forming  part  of   100  acres  leased  to  the  

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appellant   is not a part of the Lake Bed and also for that  

reason is not a Wet Land.

70. It  was  further   urged  that   the  Project  

Development  Corporation  (PD  COR)  of  the  State  of  

Rajasthan,  the  body  that  prepared  the  Detailed  Project  

Report  in the year 2001, when the petitioner/appellant was  

not in the picture in any manner carried out land surveys,  

prepared   topographical  surveys  ,  output  surveys,  water  

quality tests and received  secondary data from Survey of  

India  etc. as in the counter affidavit  before this Court and  

before the High Court explained the reasons for emergence  

of this area of 14.15 acres of land.  It was further pointed out  

that the PDCOR  has stated in its affidavit   that the said  

14.15 acres  land emerged  due to  huge silt deposits that  

had caused  the depth of the lake to reduce and as a result,  

the  water  had  spilt  out  into   adjacent  land   being  the  

concerned 14.15 acres of land.  Based on this project report  

prepared at the instance of PDCOR, it was argued  that the  

said land  was never part of the Lake Bed and is not for this  

reason a Wet  Land .  It was further  added that  factually out  

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of  the   14.15   acres   permitted  to  be  reclaimed  by  the  

appellant under the  Lease Deed       dated 22.11.2005, the  

appellant  has only claimed approximately 11 acres out  of  

which approximately 6-7 acres has been consumed by the  

appellant   for  creating a public  promenade  open to the  

public.

71. The appellant sought to add additional  weight  to  

this argument  by placing  reliance on the submission of the  

learned Attorney General  on behalf  of  the State  who had  

argued that this land of 14.15 acres was never part of the  

Lake Bed as per the revenue records.   The counsel further  

pointed  out   that  the  Attorney  General   had  further  

submitted  that  the   approach  of  the  High  Court  was  

completely contradictory  in this regard.  While on the one  

hand in respect of the 13 bighas 17 biswas   area equivalent  

to 8.65 acres, the revenue records had been relied upon, the  

same was not taken care of and relied upon in respect of the  

area of 14.15 acres although, the revenue records clearly  

show that this area is not a part of the lake and yet it was  

disregarded by the High Court.

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72. On the aforesaid aspect, it was further  urged that  

based on the revenue  records  referred and shown to this  

Hon’ble Court , the inevitable  and indisputable   conclusion  

that appears is that the entire  100 acres  land leased to the  

appellant is not a part of the Lake Bed including 13 bighas  

17 biswas bearing Khasra No.67/317 corresponding to  8.65  

acres.  It was submitted that from this   it ought to follow  

that this land could not have been held to be forming a part  

of the Lake Bed under any circumstance.

73. The  PIL  petitioner/respondent  No.1  herein   had  

further argued  that the project is illegal because no sanction  

for  this  project  had been received under the Wet Land  

Rules 2010 and, therefore,  the respondents have sought for  

a declaration of the Lease Deed being void.

74. Challenging  this  part  of  the  argument  urged on  

behalf   of  the  PIL  petitioner/respondents  herein,  it  was  

contended  on behalf of  the appellant   that the language of  

the Wet Land Rules 2010 when referred to in detail makes it  

clear  that these rules  can only apply in a situation where  

the Central WetLand Authority , a Government of India body  

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established  under  the  Wetland   Rules  2010  sends  its  

recommendation to the Central Government  for  notifying a  

certain area  as a wetland.   It was urged  that in the present  

case,  it  is  undisputed   that  when  the  Lease  Deed   was  

executed and environmental clearance (EC) from State Level  

Environment  Impact Assessment Authority  (SEIAA for short)  

was granted on  29.4.2010, the Wetland Rules  2010 were  

not  even  enacted.   Therefore,  the  question  of    Wetland  

Rules 2010 applying  to the project retrospectively would not  

arise.  Even otherwise under the Wetland Rules 2010, there  

is a detailed procedure specified which has to be complied  

with  mandatorily  before  an  area  can  be  notified  as  a  

wetland.   It  was submitted that  in  the present  case even  

after  the  Wetland  Rules  2010  came  into  force,  no  such  

procedure  admittedly  has  been  undertaken  to  identify  

Mansagar Lake as a wetland when these PILs were filed.  It  

was further contended in this  regard that such a project is  

contrary  to  the specific  intent  of  the  framers     which is  

unequivocal   viz   even  assuming   that  an  area   is  

zoologically,  scientifically,  environmentally  or  

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technologically  to  be  factually   a  wetland,  it  does  not  

become so legally unless and until the  persona designata  

under  the  delegated  legislation   so  declares  it  to  be.  

Admittedly, that  persona designata  is only the specialized  

authority  appointed under the rules and has chosen not to  

exercise its  power for the Mansagar Lake.

75. It  was  still  further  contended  on  behalf  of  the  appellant  that  the   technique   of  applying  a  law  by  notification  to  a  specific  fact  situation  is  an  age  old  parliamentary  technique and/or   the  technique applied by  the  framers  of   delegated  legislation  like  the  Central  Government   who  framed  the  Wetland  Rules.   Even  the  Apex Court  would  not  consider  it  legally   appropriate   to  issue a mandamus to notify and bring into force legislation  or  a  delegated  legislation  until  and  unless  the   persona  designata under that regime chooses to do so.  In support of  this    proposition  of law, learned counsel for the appellant  has placed reliance on the following case laws:  (1982) 1  SCC 271  at page 308, 310 paras 51 and 59  A.K. Roy vs.  Union of India when it recorded as follows:  

“……the question which was put in the forefront by Dr.  Ghatate, namely, that since the Central Government has  failed to exercise its power within a reasonable time, we  should issue a mandamus calling upon it to discharge its  duty  without  any  further  delay.   Our  decision  on  this  question should not  be construed as putting a seal  of  

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approval on the delay caused by the Central Government  in  bringing  the  provisions  of  Section  3  of  the  44th  Amendment Act into force…………But we find ourselves  unable to intervene in a matter of this nature by issuing  a mandamus to the Central Government obligating it to  bring  the  provisions  of  Section  3  into  force.   The  Parliament having left to the unfettered judgment of the  Central Government the question as regards the time for  bringing the provisions of the 44th Amendment into force,  it is not for the court to compel the government to do  that which, according to the mandate of the Parliament,  lies in its discretion to do when it considers it opportune  to do it.”

Similarly reliance was placed on the judgment and order of  

this Court reported in (2002) 5  SCC 44 at 49-50 para  7  

delivered  in  the  matter  of  Union  of India vs.  Shree  

Gajanan Maharaj  Sansthan when it  concurred  with  the  

view that no mandamus could be issued to the executive  

directing  it  to  commence  the  operation  of  the  enactment  

although  non-issuance  of  such  a  direction  should  not  be  

construed as any  approval by the Court of the failure on the  

part of the Central Government for a long period to bring the  

provisions  of  the  enactment  into  force;  leaving  it  to  the  

judgment of the Central Government to decide as to when  

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the various provisions of the enactment should be brought  

into force.              

76. Relying on these  decisions   it  was urged  that  

from  the  ratio  of  these  decisions  it  follows  that   since  

Mansagar  Lake  itself   is  not  a  Wetland,   therefore,  the  

contention  of  the  respondents  that  the  entire   100  acres  

land leased to the appellant is  part  of the Lake Bed and,  

therefore,   a wetland  ought to be rejected outright and the  

finding  of  the  High  Court   on  this  aspect   ought  to  be  

reversed.    However,  Mr.  Jaydeep  Gupta,  learned  senior  

counsel  who  was  appointed  to  represent  the  State  of  

Rajasthan after the change of the Government in 2014  in  

place of the Attorney General  Shri G.E. Vahanwati who had  

already concluded  his arguments on behalf  of the State of  

Rajasthan,  submitted  that  the  incumbent  Government  of  

Rajasthan  cannot  accept  the  interpretation  given  to  the  

Wetland  Rules   2010  by  the  previous  government.   As  

per  the  subsequent  stand  taken  by  the counsel for the  

new government,  the previous government ought to have  

identified  wetland  in  the  State  within  one  year  of  the  

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Wetland Rule  2010 being enacted.  According to the counsel  

for  the  new  incumbent  government,   since  the  previous  

government  did not undertake  the activity  of identifying  

Mansagar  Lake  as  a  wetland,  the  2010  rules  have  been  

violated.  Thus, it had been  urged by Mr. Gupta that the  

stand taken by the previous government  before the High  

Court as well as  this Hon’ble Court is untenable.  

77. The  appellant,  in  turn,  has  submitted  that  the  

change in stand by the incumbent government should not be  

permitted by this Court.  It was submitted that reference to  

the pleading  put forward by the State Government on the  

issue of the wetland before the High Court and this Court has  

been categoric and specific .  It has been  expressly pleaded  

that the Wetland Rules 2010  do not apply to the project and  

that  the said rules are not retrospective so as to affect the  

project.   This  stand  has  been  specifically  taken  in  the  

counter affidavit filed  by the State Government in the three  

Special Leave Petitions preferred by Jal Mahal  Resorts Pvt.  

Ltd.   It  was,  therefore,  submitted  that  assuming  without  

admitting  that  the  incumbent  State  Government   can  

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withdraw  its three  Special  Leave Petitions, the appellant  

strongly disputes this and it  does not   follow and should not  

be allowed that the stand taken by the State Government  in  

the counter affidavit in the three SLPs filed by the  appellant  

and the three SLPs filed by the State Government can in any  

manner   be  changed  or  altered.   In  addition,  it  was  

submitted   on  this  aspect  that  the  stand   of  the  State  

Government in the High Court should not be allowed to be  

changed before the Supreme Court merely due to change of  

the Government after new elections were  held  and it has  

been  strenuously   submitted  in  the  pleadings  before  this  

Court  by the State Government earlier  through the Attorney  

General that the High Court  had gravely erred in law  in  

holding  that the Wetland Rules  2010  were applicable  to  

the  Project.   The  attempt  being  made  by  the  State  

Government  shifting  its stand which was taken before the  

High  Court  and  also  before  this  Court  when  the  learned  

Attorney  General   had  appeared  and  concluded  the  

arguments,  it  is  clearly a change in stand from the stand  

taken by it from the High Court  right up to  this Court.

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78. It was submitted that the underlying  basis for the  incumbent  State Government to change its stand has been  justified by it  based on its  understanding  of the Wetland  Rules 2010.  According to the incumbent government and its  political philosophy  Mansagar Lake ought to be identified as  a wetland.  According  to the incumbent government   the  fact that the Mansagar lake was not identified  as a wetland  by the previous government   itself was an illegality and was  contrary to the Wetland Rules. 79. Contesting  the  aforesaid  stand  taken  by  the  

respondent-State, the appellant strongly urged that such an  

interpretation of the Wetland Rules had been taken by the  

previous Government of Rajasthan  as a matter  of policy  

which had decided not to notify  Mansagar Lake as a wetland  

keeping in mind the Master Plan of Jaipur since 1976.  As per  

the Master Plan, the Vijay Mahal Area  approximately 200  

acres  (including   the  entire  100  acres  leased  to  the  

appellant) was to be urbanized and developed  for tourism  

purposes.  Therefore, as per the contention of the  appellant,  

this     area  naturally  could  not  have  been  identified   as  

wetland.   In  the  alternative,  it  was  submitted   that  even  

otherwise  the 100 acres leased  was not part    of the Lake  

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Bed and, therefore,  the question of identifying  the leased  

100 acres land as a wetland is out of the ambit and scope of  

the question involved.  

80. In regard to the plea  pertaining to the  Master  

Plan  of  Jaipur,  it  was  submitted  that  the  Master  Plan  has  

statutory  force  and   since  the  Master  Plan  itself  has  

identified   this  area to  be urbanized ,  the question of  it  

being declared as a wetland does not arise.   In fact,  the  

Master Plan consistently  from 1976 onwards has provided  

that approximately more than 200 acres of land  is available  

for the development  of tourism facilities  on the southern  

and western sides of the Mansagar Lake.  In view of these  

aspects,  learned counsel  for  the  appellant  urged that  the  

Mansagar  Lake  is not a wetland under the Wetland Rules  

2010 and  100 acres leased land was  not a part of the  Lake  

Bed and, therefore,  the leased land of 100 acres is not a  

wetland under the  Wetland Rules 2010.   As already stated  

hereinbefore, it was urged that the  Wetland Rules  2010 are  

not  retrospective  in  nature  since  the  Lease  Deed   was  

executed in the year 2005 and the wetland rules  framed  

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thereunder  and enacted  only five years later in 2010 when  

implementation of the Project  had already started.

81. In  so  far  as  the  plea    taken  by  the  PIL  

petitioner/respondent  herein  regarding    reduction  of  the  

Mansagar Lake area in order to carve  out 100 acres of land  

is concerned, it was explained by relying  upon the historical  

background  of the matter that Maharaja Man Singh  of Amer  

who ruled  from the year 1589  to 1614,  constructed the  

Mansagar Dam much earlier  than Jaipur  was founded.  The  

Mansagar Lake was created by  damming  Darbhawati River  

on the north side of the Khilangarh fortress.  The purpose of  

the lake was to create a water body  that would cater to the  

irrigation needs  and ground water   recharge  of  the area.  

It was urged that the Mansagar Lake is a man-made  water  

body and its beauty, therefore, is not a  natural one but the  

creation of man.   Elaborating on this part, it was submitted  

that certain  undisputed  facts established  that 100m RL is  

the Amer Road level.  At 99m RL is  the full tank level and  

this  has been admitted by the PIL petitioner  K.P. Sharma  in  

his writ petition before the High Court and  98.12m RL is the  

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plinth level  of Jal Mahal Monument as enumerated  in the  

Detailed Projects Report (DPR for short).  It was submitted  

that admittedly one of the primary objects of the Project was  

to restore  Jal Mahal Monument.  Thus water level  had to be  

maintained at a level that ensured  plinth/ground floor of the  

monument and is not submerged and further weakened.   It  

was  submitted  that  the  Master   Plan  of  Jaipur  1976  

establishes  that approximately 200 acres of land located in  

Vijay Mahal   (including  the 100 acres land leased to the  

appellant) was to be developed for tourism  purposes.  Thus,  

obviously, the 100 acres land leased to the appellant  pre-

existed  the execution of the Lease Deed dated 22.11.2005  

and was available much before the  Project was undertaken.

82. It  was  further  contended   on  behalf  of  the  

appellant that the  hydrological modeling undertaken by the  

Project  Development  Corporation  of  Rajasthan (PDCOR)  in  

Detailed  Project  Report  (DPR)  scientifically  determined   a  

sustainable  water  level.   The  DPR  explored  the  following  

water level scenarios  finally  chose a water level of  98m RL.  

The water  level  scenarios  examined scientifically  reported  

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that water could not be maintained at 100m RL because at  

this level in the  monsoons water can flood the neighbouring  

areas that are densely populated  since at  this level water  

would be at Amer Road level.  Consequently, the Jal Mahal  

Monument  would   be  nearly  wholly  submerged.    It  was  

added that  technically supplying so much quantity  of water  

all the year around was  not possible.   

83. It was further  contended  that the water could not  

be maintained  at 99m RL because at this level  lake  spread  

and volume is difficult to maintain through out the year this  

being  a technical matter.  Consequently, the lower floor  of  

Jal  Mahal  Monument   would  be  submerged  having  only  

terrace  and  first  floor  for  re-use.    Thus  the  appellant  

submitted that 98m RL being the next  lowest water level  

after 99m RL was considered  ideal  for maintaining water  

level.  It was argued that most important thing if water level  

were to be fixed at 99m RL i.e. full tank level then also there  

would have been more than  100 acres of land  available to  

lease, yet the appellant was granted only 100 acres.

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84. Learned  counsel  for  the  appellant  further  

elaborated on this  by relying upon  Detailed Project Report  

(DPR) and urged that as a matter of fact the DPR found that  

the lake at present  is an approximately 130 hectares in its  

full  spread.   However,   “at  first,  a  much smaller   natural   

shallow lagoon existed, on the edge  of which, the Jal Mahal   

structure was located.  Thus, originally the spread  of the   

lake was much smaller than at present.  The spread of the   

lake has increased and the depth decreased in recent times   

mainly due to the silt deposits as a result of erosion.”  

85. It was contended that neither  the respondents/PIL  petitioners have challenged  the correctness of the DPR nor  its scientific basis.  Thus it is not open to them to advance  arguments that indirectly seek to question the DPR.  It was  submitted that the respondents are bound by the report of  the DPR  entirely and wholly. 86. The appellant  further  referred  to  the  arguments  

advanced by the learned Attorney General on behalf  of the  

State of Rajasthan   and submitted that the approach of the  

High Court was wrong  as it  proceeded  on an erroneous  

basis  that  the  Lake  Bed  was  manipulated   to  make  the  

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project viable while there was no such  manipulation.  The  

Attorney  General  has  further   argued  that  the  DPR  was  

correct and the decision  to maintain  water level at 98m RL  

was a  conscious, well  informed and deliberated  decision  

taken to protect the integrity of the monument.  The counsel  

for the appellant, therefore,  submitted that since  the water  

level   was determined scientifically and much before  the  

appellant came into the picture rather was not even born in  

regard to this dispute, the  question of its tampering   with  

the lake  so as to reduce the size of the lake does not arise  

and, therefore,  the  finding of the High Court  on this aspect  

is contrary to the DPR and hence  deserves to be set aside.   

87. In regard to the question  pertaining  to general  

conditions  in Environment  Impact Assessment 2006 (EIA), it  

was  submitted  on   behalf  of  the  appellant   that  even  

according to the respondents- Ministry of Environment and  

Forests (MoEF) is the appropriate authority   with jurisdiction  

to decide  on the environment  impact of the project in the  

present case.  The MoEF being the author  of  EIA 2006 has  

construed  its  own  notification  (EIA  2006)  to  mean  that  

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general  conditions  do  not  apply  to  Item  8  (a)  and 8 (b)  

projects.    Adding further on this it  was contended that it  

ought   to  be  clarified that  the need to  issue  OM dated  

24.5.2011 was  felt because  OM dated  28.4.2011 in broad  

terms  provided that category  B projects that fell within  10  

KM of notified critically polluted areas  would be treated as  

category A  and general  condition would be applicable to  

such projects.  MoEF in order to clarify  OM dated 28.4.2011  

issued  OM dated 24.5.2011 that expressly provided that the  

projects falling under Items 8 (a) and/or 8 (b)  do not attract  

general condition even if  such projects fell within  critically  

polluted areas.  It was urged on behalf of the appellant that  

it  has  received environment   clearance from SEIAA dated  

29.4.2010.  This clearance  is in terms of   EIA 2006 and is,  

therefore,  valid.  It was added further  that as the general  

conditions do not apply to the present project, as made clear  

by MoEF in its affidavit and also by OM dated 24.5.2011, the  

appellant did not require clearance from MoEF.  Therefore,  

the  impugned  judgment  of  the  High  Court   ought  to  be  

reversed on this aspect as it    failed  to appreciate these  

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crucial  facts.  It was still further submitted on this that even  

otherwise  on  an  interpretation  of  EIA  2006,  it  becomes  

apparent   that  MoEF   has  consciously  decided    not  to  

stipulate general condition in  column 5 against Item 8 (a  

and 8 (b)  because  EIA 2006 has issued  originally and till  

date  does not stipulate general condition against Item 8 (a)  

and 8 (b) in the Schedule, while it does so with respect to a  

number  of other items  in the Schedule. It was  added that  

MoEF vide notification dated 1.12.2009 had carried out  wide  

ranging  amendments  to  the  Schedule  in  EIA  2006  and in  

doing so general condition had been stipulated/inserted for  

the first time against certain items.  However, while doing  

so,  the  MoEF   has  not  stipulated   the  general  condition  

against  the Item 8 (a) or 8 (b).   It is, therefore, evident that  

MoEF  consciously as a policy decision   has chosen not to  

stipulate  general  conditions   against  Item 8  (a)  or  8  (b).  

Further  paragraphs  4  (iii)  of  EIA  2006  provides  activities  

included as category B in the Schedule  which require prior  

environment clearance from SEIAA except those that  fulfil  

general  condition  stipulated  in  the  Schedule.   It  was,  

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therefore, submitted    that since general condition is not  

applicable to Item 8 (a) and 8 (b) projects irrespective of the  

location of  such project, therefore, the contention of the PIL  

petitioners/respondents and  the finding of the High Court  

that since the project  is within 10 Km of the  Nahargarh  

Sanctuary    ought   to  be  declared  as  illegal  without  

substance which is liable to be rejected.    

88. The learned Attorney General  Mr.   Vahanvati  on  behalf  of  the State of Rajasthan had also argued that the  finding of the High Court on this aspect is entirely incorrect  as the  environment clearance from MoFF   is not required  for   this  project as the  general conditions specified in EIA  2006  did  not  apply  to  this  project.    Therefore,  neither  general  nor  specific  conditions  apply   to  Item  8  to  the  Schedule and hence environment clearance  given by SEIAA  is legal and valid.    

89. The PIL petitioner/respondents had also contended  

that the Rajasthan Municipalities  (Disposal  of  Urban Land)  

Rules 1974 (for short ‘1974 rules’) have been violated since  

Jaipur Municipal Corporation while allotting  land   to RTDC  

has violated  certain norms and that the premium was not  

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charged  from RTDC for the land allotted to it and  secondly  

without any General  House Resolution    allotment of land  

was made to  RTDC.   On this  aspect  it  was  submitted  on  

behalf  of  the   appellant  that   both  the  contentions  are  

misplaced for the reason that under    18 (2)  and the proviso  

to   1974  Rules,  the  State  Government   can  exempt  the  

payment  of  cost of land being allotted by  Jaipur Municipal  

Corporation to any government  department.  In the present  

case,  the  Government  decision  dated  9.2.2004  makes  it  

clear that RTDC  shall not have  to pay any cost of land to  

the  land  owning  agencies  including    Jaipur  Municipal  

Corporation as the whole  intent  of  this allotment in favour  

of   RTDC  was  to   only  facilitate  the  project  of   the  

Government.   As  a  matter  of  fact,  Jaipur  Municipal  

Corporation  through  its  General  House  Meeting   dated  

28.4.2004 was attended by at least 58 of its members who  

resolved to allot the said land to RTDC in order to implement  

the project.   Thus,  it  is  more  than apparent  that  the  

Government had exempted charge of any kind from RTDC  

for  the  transfer/allotment  of  land  to  which  a  furthermore  

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RTDC through  a transparent and well considered  resolution  

comprising of  is  members    resolved to  allot  this  land to  

RTDC.  Thus the contention of the respondent that the 1974  

rules have been violated is wholly unsustainable and finding  

of  the High Court   on this  aspect   therefore needs to be  

reversed and set aside.

90. It  was  still  further  contended  that  the  Jaipur  

Development  Authority  Act  1982  was  not  violated  in  any  

manner and the appellant submitted  that  rule 18  of the  

Rajasthan  Improvement  Trust  (Disposal  of  Urban  Land)  

Rules, 1974 enabled  JDA to allot land without any adding  

cost  of  the  land  if  the  State  Government  exempts  any  

department of the government from paying  cost of the land.  

In the present case, the Government of Rajasthan  vide its  

meeting dated 16.9.2003 had noted that the JDA had issued  

orders for transfer of land to RTDC.  The object of a gazette  

notification   under Section  54 (3) is to keep matters  in the  

public domain  but not to affect  3rd party  rights since  the  

land  is  merely being transferred  from a subordinate  state  

instrumentality  to the Sovereign State itself.  Thus, there is  

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no  project cost in view of  non-gazetting of the decision  of  

the   Government  under  Section  54  (3).     Reference  to  

official  gazette   under   Section  54  (3)   must  be  read  as  

directory  and  not  mandatory  and  the  provision  has  been  

specifically complied with.   

91. It was further submitted on behalf  of the appellant  

that  admittedly  development of tourism in Jaipur on the  

southern and western  side of Mansagar Lake has been an  

avowed   object  of the Jaipur  Master Plan 1976, 2011 and  

2025.   Thus the project is in alignment with  the Master  

Plan.   Jaipur  Master  Plan   is  a  statutory  document  under  

Section 21 of the JDA Act 1982.  Section 26 mandates that  

once the Master Plan  is in force and JDA  must take  action  

for implementing  the plan as may be necessary.  Thus, it is  

statutorily incumbent on the JDA to implement the Master  

Plan inter alia which enables development of tourism  in the  

given area.  Undisputedly  approximately 43 acres  in the  

100 acres leased  was  vested in the JDA and transfer to  it  

for the            purpose  of developing the tourism project in   

the area designated in the Master Plan referred to above.  

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Therefore, the land allotted by  JDA  to RTDC was also for  

implementation  of  JDAs Master Plan.  Therefore, it  cannot  

be disputed  that the present project is a tourism project.  

Thus, there was  ample authority with the JDA to allot land to  

RTDC under the  JDA Act 1982 particularly section  54 (1) for  

implementing  its  master  plan.    Cumulatively,  it  was  

submitted that the JDA under Section  54 (1)  has the power  

to allot land   vested in  it for the purposes  of  the JDA 1982  

subject  to  rules by the Government of  Rajasthan.   It  was  

submitted that obviously allotment of land  to implement the  

Master Plan of the JDA Act 1982,  Rule 18 gives Government  

of  Rajasthan  power  to    exempt  State  Department  from  

paying  cost of the land  when land from the JDA is allotted.  

Exemption  by the Government of Rajasthan in favour  of  

RTDC acting on behalf  of  Department  of  Tourism  as an  

agent from paying  cost of the land is traceable  to  power  

vested under Rule 18 read with Government of  Rajasthan  

decision dated 9.2.2004.  Hence for all these reasons, non-

gazetting under Section 54 (3) was  not a requirement.  

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92. Contesting  the  argument  raised  by  the  PIL  

petitioner/respondent  that  the  State  Government   has  

changed   the  rules  of  the  tender  so  as  to  favour   the  

petitioner company in awarding the contract is not  borne  

out by the record that has been produced  before this Court  

in the form of various collegiate,  transparent meetings that  

have been presided  over by the highest functionaries in the  

State Government, inter -alia   including the Chief Secretary,  

the  Principal  Secretary  and  various  Head  or  statutory  

authorities who participated  in  these meetings .    On a  

perusal   of  the pre-qualification  evaluation  report  dated  

6.10.2003 which was prepared by the Project Development  

Corporation of Rajasthan (PDCOR), a joint venture   between  

the Rajasthan State Government  and  IL & FS, it  is clear  

beyond any doubt  that the threshold  qualification  criteria  

required  to  be  satisfied  by  the  appellant  KDG Enterprises  

( the lead  Member of KGK Consortium) stood  more than  

adequately  made out    when  KGK Enterprises  satisfied  the  

technical  requirement    and  the  financial  requirements  

required under the  request for proposal.  It is pertinent to  

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point  out   that  KGK Enterprises  satisfied the  substantive  

provision of the pre-qualification  violation  criteria (namely  

the technical and financial  capabilities).  In other words, the  

technical and financial  bids  were  yet to be  opened and the  

criteria   that  was  satisfied   by  KGK Enterprises  was  only  

threshold    preliminary  criteria   at  the   pre-qualification  

evaluation stage. A further    perusal of this report makes it  

apparent  that  PDCOR    has  observed  that  the  tender  

submitted by KGK Consortium through KGK Enterprises, the  

lead bidder was a partnership firm, therefore, the argument  

of the respondent that there  was  concealment  with respect  

to  material  fact  does  not   stand  and  is  for  this  reason  

unsustainable.

93. PDCOR  as a part  of  its   evaluation report and  other correspondence recommended    that apart from the  other  two bidders   who had satisfied  the  pre-qualification  evaluation  criteria,  even  KGK   Consortium  should  be  permitted  for being considered and the technical evaluation  phase    as  KGK   Consortium  satisfied  the   substantive  conditions  at the pre-qualification evaluation stage.  PDCOR  in its recommendation  further opined that condition of  KGK  enterprises  at  the  subsequent   stage   would  promote  

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competition  amongst  the  bidders  and,  therefore,   be  in  public  interest.   The  intent  of  the  RFP   according  to  the  PDCOR  was never to exclude any   bona fide legal  entity  that may consider  putting its bid   subject to it satisfying  the other threshold criteria as already stated hereinbefore.

94. It is pertinent  to mention again   that the above  recommendations were transparent, bona fide and were put  for    approval   before  the  Government  of  Rajasthan  for  considering   the  recommendations  of  PDCOR.   The  Government of Rajasthan  after due deliberation permitted  KGK Enterprises to be considered for technical evaluation.

95. Another important feature  of the tender process  was  that   after  the  financial  bids  were  opened  only  KGK  Consortium  was  found to be  the highest bidder   by 39%,  the matter was considered by the  Empowered Committee  on  Infrastructure   Development  (ECID for  short)   meeting  held  on  9.2.2004  headed by the Chief Secretary  with other  senior government  functionaries  attending .  In the said  ECID    meeting  on  perusing  the  entire   tender  process  decided to award the project to the highest  bidder being the  KGK Consortium.  Thereafter,   these recommendations  of  the ECID were put up   for the approval  of  the then Chief  Minister who unreservedly   endorsed  the  decision of the  ECID  dated  9.2.2004.

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96. Thereafter,  on  30.9.2004,  the  Government  of  

Rajasthan issued a letter of intent to KGK Enterprises  (lead  

Member of  KGK Consortium) for  award of  the project.  The  

final  decision   in  the  decision  making   process  that  

culminated  in  the  execution  of    the   lease  and  license  

agreement was taken by the Chief Minister on 27.10.2005  

whereby it was approved that the execution of the lease and  

license   agreements  be  entered   into  by  the  State  

Government with the highest  bidder M/s. Jal Mahal Resorts  

Pvt.  Ltd.   a  Special  Purpose  Vehicle  Company  of  KGK  

Consortium.

97. It  was, therefore, submitted that on a perusal of  

this  detailed  decision making process  undertaken by the  

Government  of  Rajasthan     during    the   regime   of  

successive  Chief  Minister   after  which  the  government  

contested the PIL petitioner  before  the High Court as also  

before this Court  through the  Attorney General, there is no  

doubt that the  decision taken to approve the project and  

execution of Lease Deed  was a bona fide decision for the  

general and overall betterment  of the project meeting the  

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area around the Jal Mahal and, therefore,   no fault can be  

found in regard to the decision even if  certain procedural  

relaxations were granted for approving the project.  In  sum  

and substance, it            was submitted that in so far as the  

relaxation                 granted in concerned, the action of the  

State Government                 was    bona fide  approved  by  

the  previous  and  subsequent government   of Rajasthan  

which was bona fide and cannot be called unfair  or illegal in  

any manner.  

98. In support of the submission, the learned counsel  

for the appellant has cited several  authorities  of this Court  

inter alia  being  BSN Joshi & Sons vs. Nair Coal Services  

Ltd. & Ors. (2006) 11 SCC 548 and the relevant portion at  

571 para 66 (v) and (vii) states as follows:

“(v) when  a  decision  is  taken  by  the  appropriate  authority upon due consideration of the tender document  submitted by all the tenderers on their own merits and if  it is ultimately found that successful bidders had in fact  substantially  complied  with  the  purport  and object  for  which essential conditions were laid down, the same may  not ordinarily be interfered with;

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(vii) where a decision has been taken purely on public  interest,  the  court  ordinarily  should  exercise  judicial  restraint.”

Similarly  reliance  was  also  placed  in  Poddar  Steel  Corporation vs.  Ganesh  Engineering Works &  Ors.  (1991) 3 SCC 273  wherein this Court held that  as a matter  of  general  proposition it  cannot be held that  an authority  inviting  tenders  is  bound  to  give  effect  to  every  term  mentioned in the notice in meticulous detail, it is not entitled  to  waive  even  a  technical  irregularity  of  little  or  no  significance.   Thus,  it  was  held  that  minor  technical  irregularity  and  deviation  from  non-essential  or  ancillary/subsidiary  requirement  can  be  waived  and  the  Government  would  be  justified  in  waiving  technical  compliance with a tender condition.  

99. The thrust of the aforesaid case law cited  is to  

reinforce    the  submission  that  when there  is  substantial  

compliance  of  the terms of tender ,  the government  is  

entitled to waive  any non-essential  term in the tender for  

the  bona fide reasons and in public  interest.  In any case,  

since the project in terms of the RFP had to be  executed  

through  a SPV  and the appellant being  as such  SPV, then  

the  vehement  insistence by  the  respondent  that  the  lead  

member   must  be  a  company  is  not   a  violation  of  a  

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substantial  condition  of the tender. In conclusion therefore  

it had to be  held  that there was no mala fide in the decision  

making process and the finding given by the High Court is  

perverse and cannot be sustained and deserves to be set  

aside.     

100. On perusal of the background and other materials  

on record, it could be noticed that the genesis of restoration  

and  conservation  of  Mansagar  Lake  goes  back  to  1984  

whereby the efforts of the State from 1984 onwards have  

been directed towards restoring and developing the largest  

water  body  in  Jaipur  (that  was  lying  disused the  sewage,  

filth, stench and effluent) into an attractive public interest  

destination  with  a  pleasing  environmental  ambience  for  

attracting tourists from all over the world.  

The  figures  and  conclusions  in  the  impugned  order  itself  

indicate the enormous difficulty and repetitive failures of the  

State Government to either implement the restoration itself  

or to get any private entity to do so over a period of approx.  

20  years  from 1984  to  year  2003.   Indeed,  the  attempts  

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immediately preceding the present tender from year 2000 to  

2002 have also admittedly failed.  

Had  the  figures  found  in  the  impugned  order  or  the  

conclusion of the impugned order that the Project proposal  

constituted  a  squandering  of  State  largesse  had  been  

correct, applicants would have been falling over themselves  

to bid for the Project not only in the present tender but also  

in the preceding unsuccessful attempts.  Even in the present  

case,  despite  the  attendance  of  as  many  as  20  major  

participants  (including  corporate  names  like  Oberoi,  Taj,  

Ansal,  Neemrama  to  mention  a  few)  who  admittedly  

attended  the  pre-bid  meeting,  no  one  except  the  SLP  

petitioner/appellant  and  three  other  ultimately  came  

forward.   Obviously,  the  proposal  was  ex-facie  not  an  

attractive one for  potential  investors,  and the inescapable  

conclusion  is  that  all  attempts  to  restore  the  Lake  and  

develop the area as a tourism hub had failed when the SLP  

Petitioner/appellant was nowhere in the picture.   

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101. We have further taken note of the reasons for the  

clear  reluctance  of  potential  investors  which  have  been  

stated as follows:  

The pre-existing state of the entire area of approx. 310  acres of Lake and more than 100 acres of land seemed  physically irreparable which has been demonstrated by  the photographs submitted [V/X].  There was no water  body; the so called Lake consisted of an empty large  hollow  filled  with  sewerage  stench,  filth  and  huge  sedimentation;  two  major  nallas  of  the  city  were  emptying all their sewerage and effluents in to the lake;  the monument was completely dilapidated, over growth  of shrubbery, and not visited by any one for decades;  the nearby land was barren,  filled with mud and dirt  and therefore not in use.  

The impugned order  further  appears to  have ignored  

that  the  whole  structure  of  the  tender  was  conceptually  

different and had been thus in all previous attempts failed as  

(i)  it  sought  huge investment  by the successful  bidder  to  

restore  the  entire  area  which,  at  conservative  estimates,  

would cost approx.  Rs. 100 crores (in the year 2003), and  

now with the gross delay occasioned by the PIL Petitioner,  

involves             an investment (approx.) Rs. 500 crores.  (ii)

No commercial exploitation either of the monument or  

of the lake was involved and indeed was not permitted.  (iii)

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Approximately 10.5 out of 14 acres would be utilized for  

a walk-way around the Lake involving no commercial return.  

(iv)  The  successful  bidder  would  pay  the  State  

Government/RTDC Rs. 2.52 crores per year which would be  

escalated by 10% every 3 years, which, if calculated in the  

99th year of the lease would amount to Rs. 27 crores approx,  

and if calculated in the 50th year of the lease would amount  

to Rs. 12 crores approx.  (v) The  accommodation/resort  

could  only  be  constructed  within  a  FAR  of  0.1362.  

Relevantly,  the  normal  FAR  permitted  is  2  while  the  FAR  

permitted for the SLP Petitioner’s Project is only 0.1362. (vi)  

No structure in the entire project could exceed the height of  

9 meters and also could not exceed more than a total of two  

floors viz. ground and first. (vii) Almost  12 acres  of  land  

would be devoted to  a handicrafts  village showcasing the  

cultural heritage of Rajasthan where the commercial return  

to the bidder would be only in the form of lease rent, and the  

sales  occurring  due  to  footfalls  would  accrue  to  the  sub-

lessee who sells the craft and not to the SLP Petitioner. (viii)

The project has along gestation period not only in terms  

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of restoration and development costs but also construction  

of infrastructure, and the footfalls would increase only over  

time after the Project has fully established its credentials.  

(ix) In a nutshell, therefore, huge investments-sure, certain  

and un-avoidable were front ended; possible returns-unsure  

and uncertain were back ended. (x)All the forgoing admitted  

points have been completely ignored in the impugned order,  

or not noticed or cursorily mentioned and not decided, and in  

any  event  not  given  adequate  probative  weight.  (xi)

Equally ignored has been the very raison-d-etre of the  

Project  actuated  by  the  fundamental  object  by  the  State  

Government  to  restore  heritage  site  and  to  create  a  

sustainable  and  pleasing  environmental  ambience.   The  

lease rent  model,  increasing as  time goes on had always  

been the consistent approach of the State since 1999 when  

restoration was first envisaged.  It is inconceivable that this  

model could be created to assist or benefit the bidder like  

the SLP Petitioner who came in to the picture for the first  

time only in year 2003.  

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102. Learned Attorney General had submitted that it is  

an  axiomatic  legal  principle  that  revenue  maximization  

cannot and need not be the sole or even the predominant  

object of a State initiative. Indeed, revenue maximization as  

the sole  object  is  frequently  antithetical  to  public  interest  

projects involving  long gestation periods, a history of disuse  

and failure, reluctant bidders, certain and unavoidable front  

ended investments and highly uncertain back ended gains.  

As a matter of law, also as matter of business reality and  

commercial  efficacy,  it  is  universally recognized that even  

direct  invitation  to  potential  investors/bidders  without  any  

bid  or  auction  at  all  is  a  fully  valid  manner  of  creating  

infrastructure where non-existed, especially in nascent areas  

and  new  areas  projects.  In  respect  of  this  submission  

reliance has been placed on (i) Natural Resources Allocation  

(2012) 10 SCC 1 @87 pr. 119, 120-CLC 1/153-244 @ 206; (ii)  

Sachidanand Pandey V. State ofWest Bengal (1987) 2 SCC  

295 @ 314 p. 19, @ 264 pr. 35, @ 266 pr. 39, @ 266-67 pr.  

40-41, 43; (ii) M.P. Oil Extraction vs. State of M.P. (1997) 7  

SCC 592 @ 612-613 pr 45- CLC 1/271-285 @ 284; (iv) Kasturi  

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Lal Lakshmi Reddy v. State of Jammu Kashmir (1980 4 SCC 1  

@ 13 pr. 14 – CLC 1/286-300 @ 294].  

103. In fact, we have noted that there was not one but  

repeated attempts at tendering which had failed. While the  

earlier attempts failed, the present tender open to the whole  

world, shrunk from 20 parties to9 parties and then to only 4  

parties  at the time of submission of bids (whereby the SLP  

petitioner  succeeded  on  merits).   If  the  project  value  

correctly  involved 4 and 5 crore figures mentioned in  the  

impugned order,  it  is  inconceivable and inexplicable as to  

how and why neither the 20 nor the 9 nor the 3 ultimate  

bidders  apart  from the SLP Petitioner  offered a  maximum  

figure of Rs. 2.52 crores only.  The bidding process was open  

and transparent considering tourism development.  

104. We have taken note of the factual submission that  

the reserve figure of lease rental expected by the State had  

been fixed at Rs. 1 crore in the RFP [Vol 3/551 @ CL 3.2].  

This  was not merely an adhoc magical  figure plucked out  

from  the  air  but  arrived  at  after  repeated  transparent  

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evaluation by expert committees and proclaimed openly to  

the  whole  world.   There  is  not  even  an  allegation  of  

surreptitious or ex-parte dealing at the stage of conceiving  

and  designing  the  tender  or  stipulating  its  multiple  

parameters.  This minimum rent had been determined with  

the objective  of  providing a rate of  return of  20-22% per  

annum  from  the  Project  to  the  private  sector  developer.  

Such a rate of return was considered a reasonable return for  

a long term capital asset which at the end of the lease would  

have no terminal value for the developer, as it would require  

to be transferred back to RTDC who is acting on behalf of R2  

[PDCOR-R6  WS  in  HC(B  pr  6).  Thus,  it  is  evident  that  

sufficient economic diligence were used before issuing the  

RFP and subsequently accepting KGK Consortium’s highest  

financial bid. In conclusion, therefore, it had to be held that  

there was no mala fide in the decision making process and  

the finding given by the High Court, cannot be sustained and  

hence deserves to be set aside.  

105. On  a  careful  analysis  of  the  submissions  of  the  

contesting parties in the light  of the materials referred to  

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before the High Court as also this Court, we further cannot  

overlook  the  historical  background  and  the  sequence  of  

events which led to the culmination of the project for which a  

lease deed was executed on 22.11.2005 and 5 to 6 years  

thereafter the respondents herein filed three public interest  

litigations which clearly fails the test of utmost good faith. It  

needs to be recollected from the sequence of events and the  

historical  background  related  herein  before  that  the   Jal  

Mahal  Tourism  Infrastructure  Project  was  conceived  and  

approval  was  given  by  the  Standing  Committee  on  

Infrastructure Development  (for  short  ‘SCID’)  for  the first  

time in its third meeting held on 21.12.1999. Resolution had  

been filed in which it was stated that at that point of time  

Jaipur Municipal Corporation must own the project.  Hence  

bids  were  initially  invited  in  the  year  2000-01  without  

identification of the land to be used and without studies with  

regard to Environment Impact Assessment.  The bid process  

were therefore scrapped and JDA was made the sponsoring  

department for the lake side development component in the  

meeting  of  Board  of  Infrastructural  Development  and  

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Investment  Promotion  (BIDI)  held  on  23.08.2002  and  

3.9.2002.   After  approval,  an  expenditure  sanction  was  

granted by the MoEF, for the Lake Restoration Component  

but  MoEF  had  clearly  granted  approval  to  the  lake  side  

development component of Mansagar Lake.  It is no doubt  

urged on behalf of the respondent–PIL petitioner and taken  

note  of  by  the  High  Court  that  the  National  Lake  

Conservation  Plan  did  not  contemplate  any  commercial  

venture upon the lake to be restored under the plan.  But it  

cannot  be overlooked that  the State Government  had full  

authority to carve out a plan for development of lake and the  

lake area considering the fact that way back in 1962 the lake  

glory as a pristine  water  body lasted only until the former  

rulers had their control over the city and  unpleasant history  

of  lake   began  when   the  new  administration  of  Jaipur  

diverted   walled  city   sewage in  1962  through  two  main  

waste water drains namely  Brahmapuri and Nagtalai.  It is  

borne  out  from the  factual  history  of  the  lake  that  most  

notorious aquatic weed water  hyacinth  entered into lake in  

1975 and the water fall foul population started affecting the  

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resident and migratory species.  It is in this background that  

the  Government  of  Rajasthan  submitted  project  for  

restoration  of  Mansagar  Lake  to  the  Central  Government.  

Thereafter, Jal Mahal Tourism Infrastructure was conceived  

and approved by the Standing Committee on Infrastructure  

Development in its meeting held on 21.12.1999 and initially  

Jaipur  Municipal  Corporation was to own the project.   The  

bids  were invited in  the year  without  identification of  the  

land  to  be  used  and  without  studies  with  regard  to  the  

Environment Impact Assessment.   Hence, the bid process  

was  scrapped  and  the  Jaipur  Development  Authority  was  

made sponsoring department for the lake side development  

component  in  the  meeting  of  Board  of  Infrastructure  

Development  and  Investment  Promotion  (for  short  ‘BIDI)  

held  on  23.8.2002  and  3.9.2002.   Hence  the  Project  

Development Corporation of  Rajasthan (for  short ‘PDCOR’)  

got a detailed project report prepared which contemplated  

the following components:

(1) Restoration of Mansagar Lake; (2) Restoration and re-use of  Jal Mahal  Monument;

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(3) Development   of  Tourism/Recreational  components  

at the lake precincts.                    

106. Thereafter,  in  the  meeting  of  BIDI  held  on  

9.08.2003,  it  was  decided  that   nodal  agency  for  the  Jal  

Mahal  Tourism  Project  will  be   Tourism  Department  of  

Government of Rajasthan   instead of JDA.  Thereafter, the  

tourism  department  assigned  the  responsibility  to  the  

Rajasthan  Tourism  Development  Corporation  (for  short  

‘RTDC’)  vide  order  dated  6.9.2003.   The  last  date  for  

submission  of  deed  was  5.9.2003.  The  petitioner  on  the  

other hand and also the Attorney General clarified that the  

need to issue office memorandum dated 24.5.2011 was  felt  

because OM dated  28.4.2011 in broad terms  provided that  

category   B  projects  that  fell  within   10  KM  of  notified  

critically polluted areas  would be treated as category A  and  

general  condition  would  be  applicable  to  such  projects.  

MoEF in order to clarify  OM dated 28.4.2011 issued  OM  

dated 24.5.2011 that  expressly provided that  the projects  

falling under Items 8 (a) and/or 8 (b)  do not attract  general  

condition.   

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107. On an analysis of the aforesaid aspects, it is clear  

that the project that was conceived, deliberated and given  

effect to emerged from the status of the land adjoining the  

lake area which had a history behind it and in view of the  

garbage, filth stench on the area, decision had been taken to  

develop the two project site.  

108. We  have  further  taken  note  of  the  arguments  

advanced by the Ld. Attorney General who had submitted  

that the High Court has not taken into account the steps that  

were taken in   the project  since 1998 onwards.   The Ld.  

Attorney  General  representing  the  State  had  relied  on  a  

comprehensive list  of  dates beginning from 1984 onwards  

discussed hereinbefore to  show the step by step decision  

taken  before  the  project  was  awarded  to  the  KGK  

Consortium including the Jaipur Master Plan of 2011.  

109. It  may  further  be  noted  that  the  argument  

advanced by the counsel for the respondent PIL Petitioner  

that 100 acres land lease to the petitioner was part of the  

lakebed, does not get supported from the revenue entries  

placed on record or any other material which makes it clear  

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and establishes that only 13 bighas 17 biswas is classified as  

‘gairmumkin  talab’  (lakebed)  being  khasra  No.  67  /317  

which  would  be  approximately  8.65  acres.   However,  the  

balance  land  that  is  100  acres  less  8.65  acres  is  in  fact  

recorded as ‘Banjar’ in the revenue record and not lakebed.  

We find sufficient substance in the plea that this Court in the  

past have placed reliance on revenue entries to determine  

the nature of land from which it follows that based on the  

revenue entries, no other khasra of land forming part of 100  

acres of  land leased to  the petitioner  is  lakebed.   It  may  

further be noted that as per the petitioners/appellants 14.15  

acres of land is ‘banjar’ and not lakebed whereas according  

to the PIL petitioner it is a lakebed/wetland which is  contrary  

to the revenue record.   

110. From  the  version  and  counter  version  of  the  

counsel for the parties,  it  is obvious that although the PIL  

petitioners had challenged the 100 acre land as lakebed so  

as to assail that the same could not have been a part of the  

lease area, the fact remains that the entire emphasis is only  

in regard to the land comprising 14.15 acres equivalent to  

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22 bighas and 10 biswas and another chunk comprising 8.65  

acres equivalent to 13 bighas and 17 biswas. The counsel for  

the appellant-lessee submitted that if the revenue record for  

13  bighas  17  biswas  equivalent  to  8.65  acres  noted  as  

‘gairmumkin  talab’  lakebed  bearing  khasra  No.  67/317  is  

relied   upon  by  the  Court,  then  further  revenue  entries  

classifying  14.15  acres  of  land  recorded  as  barren  

land/banjar  also  should  be  accepted,  adopting  the  view  

taken in the matter of Okhla Bird Sanctuary case (Supra)  

that  revenue entries  are fit  to  be relied upon in  order  to  

determine the nature and character of the land.  

111. However, we are of the view that in order to avoid  

this controversy in regard to these two chunks of lands as to  

whether the same form parts of the lakebed or not, it would  

be just and appropriate to slash this part of the land from the  

lease hold area as per clause 18.4 of the lease deed itself  

implying that these two areas shall not form part of the lease  

hold  area  so  as  to  be  given  out  on  lease  to  the  

petitioner/appellant.  In view of this 13 bigas and 17 biswas  

of land equivalent to 8.65 acres which has been classified as  

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‘gairmumkin talab’/ bearing khasra no. 67/317 shall not be  

treated as a part of the lease hold area and the same shall  

be  within  the  control  and  domain  of  the  Government  of  

Rajasthan which will be free to reconvert this area into the  

lake area.   

112. In so far as 14.15 acres of land recorded as barren  

land/banjar is concerned, we are pleased to hold that this  

area shall be treated as a construction free zone and neither  

party  i.e.  the  State  of  Rajasthan  nor  the  lessee/appellant  

herein shall be permitted to raise any construction thereon.  

We are informed that  this  area is  being used as a public  

promenade (walk way) for the use of the public which shall  

be allowed to continue.   

113. In so far as the balance area of land pertaining to  

the lease deed is concerned, we are pleased to hold that the  

respondents/PIL petitioners have not been able to lead any  

iota of evidence or material to prove that this area was at all  

or  at  any  point  of  time lakebed or  wetland.   This  fact  is  

further  proved  from  the  historical  background  of  this  

litigation as  it  is  the case of  the appellant/lessee/  the PIL  

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petitioner  which  gets  reinforced  from  the  record  and  the  

detailed  project  report  of  the  PDCOR  indicating  that  the  

efforts were being made to develop this land way back from  

1984 and in the year 1999 as already noted hereinbefore  

reflected  from  the  minutes  of  the  third  meeting  held  on  

21.12.1999,   the  Standing  Committee  on  Infrastructure  

Development  (SCID)  agreed  that  the  Jaipur  Municipal  

Corporation must own the project to develop this land and  

the bids were invited in the year 2000-01 with regard to the  

development of the land. However, the same was scrapped  

and the JDA was made the sponsoring department for the  

lake  side  development  component  in  the  meeting  of  the  

board  of  infrastructure  development  and  investment  

promotion held on 23.8.2002 and 3.9.2002.   

114. From  the  aforesaid  history,  it  gets  factually  

established  that  this  land  in  any  view  was  available  for  

development  atleast  way  back  from  21.12.1999  and  no  

question  was  ever  raised  that  this  was  not  available  for  

infrastructural development.  In fact, we have further noted  

that in the three Master Plans of Jaipur, 200 acres of land  

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were  shown  for  infrastructural  development  for  tourism  

purpose and out of that 100 acres was made a part of the  

lease  deed  after  extensive  research  conducted  by  the  

Project  Development  Corporation  of  Rajasthan  which  got  

detailed project report prepared way back in 2001 when the  

petitioner/appellant  was  not  even  in  the  picture  so  as  to  

develop the land.  Even if the Ministry of Environment and  

Forest of the Central Government did not accept the position  

that it had given clearance for this project, the fact remains  

that  the  land  was  lying  within  the  domain  of  the  State  

Government due to which it had full administrative discretion  

to take a decision in regard to development of the land and  

it  is  not  that  it  was  done  in  a  huff  or  hurry  without  

deliberation  or  study.   In  fact  the  Project  Development  

Corporation  (PDCOR)  got  the  detailed  project  report  

prepared way back in 2001 and thereafter in 2003, steps for  

inviting tender were taken by the PIL petitioners.  If at all the  

bonafide of the respondent/PIL petitioners were clear, they  

ought to have assailed the invitation of tender which finally  

got executed only in the year 2005.   

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115. Thus,  from the year  2001 when detailed project  

report was prepared, decision to award tender was taken,  

‘Expression  of  Interest’  invitation  of  tender  and  bid  was  

invited  and  accepted,  the  PIL  petitioners  never  ever  

challenged these activities on the part  of  the State which  

was approved,  accepted and continued by  the  successive  

Governments which were ruling in the State of Rajasthan.  

Thus, the submission of the counsel for the appellant that  

the  PIL  lacks  bonafide  and  good  faith  cannot  be  brushed  

aside totally although the same has neither been a reason  

with the High Court nor with us to reject the petition as we  

have ignored the delay and also lack of bonafide on the part  

of the PIL petitioners/respondents herein and have examined  

the  matter  on  merit  taking  note  of  every  meticulous  

argument and counter argument advanced by the contesting  

parties.  

116. From this, it is clear that although the Courts are  

expected  very  often  to  enter  into  the  technical  and  

administrative  aspects  of  the  matter,  it  has  its  own  

limitations and in consonance with the theory and principle  

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of separation of powers, reliance at least to some extent to  

the decisions of the State Authorities specially if it based on  

the opinion of the experts reflected from the project report  

prepared  by  the  technocrats,  accepted  by  the  entire  

hierarchy  of  the  State  administration,  acknowledged,  

accepted and approved by one Government after the other,  

will have to be given due credence and weightage.  In spite  

of this if  the Court chooses to overrule the correctness of  

such administrative decision and merits of the view of the  

entire  body  including  the  administrative,  technical  and  

financial experts by taking note of hair splitting submissions  

at the instance of a PIL petitioner without any evidence in  

support thereof, the PIL petitioners shall have to be put to  

strict  proof  and  cannot  be  allowed  to  function  as  an  

extraordinary and extra judicial ombudsmen questioning the  

entire  exercise  undertaken  by  an  extensive  body  which  

include administrators, technocrats and financial experts.  In  

our  considered  view,  this  might  lead  to  a  friction  if  not  

collision  among the  three  organs  of  the  State  and  would  

affect the principle of governance ingrained in the theory of  

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separation of powers.  In fact, this Court in the matter of M.P.  

Oil Extraction v. State of M.P., (1997 7 SCC 592 at page 592)  

has unequivocally observed that the power of judicial review  

of the executive and legislative action must be kept within  

the bounds of constitutional scheme so that there may not  

be any occasion to entertain misgivings about the role of  

judiciary  in  outstepping  its  limit  by  unwarranted  judicial  

activism  being  very  often  talked  of  in  these  days.  The  

democratic,  set-up to which polity is  so deeply committed  

cannot  function  properly  unless  each  of  three  organs  

appreciate the need for  mutual  respect and supremacy in  

their respective fields.  

117. However, we hasten to add and do not wish to be  

misunderstood  so  as  to  infer  that  howsoever  gross  or  

abusive may be an administrative action or a decision which  

is writ large on a particular activity at the instance of the  

State  or  any  other  authority  connected with  it,  the  Court  

should  remain  a  passive,  inactive  and  a  silent  spectator.  

What is sought to be emphasized is that there has to be a  

boundary  line  or  the  proverbial  ‘laxman  rekha’  while  

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examining  the  correctness  of  an  administrative  decision  

taken  by  the  State  or  a  Central  Authority  after  due  

deliberation and diligence which do not reflect arbitrariness  

or illegality in its decision and execution.  If such equilibrium  

in the matter of governance gets disturbed, development is  

bound to be slowed down and disturbed specially in an age  

of  economic  liberalization  wherein  global  players  are  also  

involved as per policy decision.  

118. In a matter of the instant nature, where the policy  

decision was taken way back from 1976 followed by Master  

Plans to develop a particular chunk of land by adopting the  

mode  of  private/public  partnership  method  and  a  global  

tender was floated, obviously the private players were bound  

to participate specially in an age when private partnership is  

not  an  anathema.   In  that  view  of   the  matter  when  a  

particular policy decision was taken to develop a particular  

project supported by extensive research and study by the  

experts in the field who prepared the project report relying  

upon the three successive Master Plans of the city of Jaipur  

and the global tender was floated for development of land  

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for tourism adjoining the lake area, entertaining PIL petition  

on the ground that the area in question is a wet land without  

substantiating the same in any manner, i.e. neither from the  

revenue record nor any other material, the perception of PIL  

Petitioners without factual basis cannot be allowed to prevail  

over the decision of the entire group of experts which was  

finally  accepted  by  the  State  Government  through  the  

Project Development Report of a State Agency which got the  

detailed project report (DPR) prepared and nothing could be  

brought to the notice of the Court that the DPR was not fit to  

be  relied  upon  or  that  it  was  prepared  in  a  clandestine  

manner.  In our considered view unless the Detailed Project  

Report, Master Plan of Jaipur, Revenue Record indicating the  

nature  of  land  that  the  project  was  fraught  with  risk  of  

environmental degradation which could establish with facts  

&  figures  that  the  decision  is  not  in  public  interest,  

interference by the Court adopting an over all view smelling  

foul play at every level of administration is bound to make  

the  governance  an  impossibility.  Therefore,  the  courts  

although  would  be  justified  in  questioning  a  particular  

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decision  if  illegality  or  arbitrariness  is  writ  large  on  a  

particular  venture,  excessive  probe  or  restraint  on  the  

activity  of  a  State  is  bound  to  derail  execution  of  an  

administrative decision even though the same might be in  

pursuance of  a  policy  decision supported by other  cogent  

materials  like  survey  and  search  by  the  reliable  Expert  

Agency of a State after which the State Project or private  

and public partnership project is sought to be given effect to.  

119. At  this  juncture,  we take note of  two overriding  

considerations which combined, narrow the scope of review.  

The first is that of deference to the views of administrative  

experts and the other we take assistance from the words of  

Chief Justice Neely who expressed as follows:  

“I  have  very  few  illusions  about  my  own  limitations  as  a  judge  and  from  those  limitations  I  generalise  to  the  inherent  limitations  of  all  appellate  courts  reviewing  rare cases.”   

The learned Chief Justice further observed as follows:  

“I  am  not  an  accountant,  electrical  engineer,  financier,  banker,  stock  broker,  or  systems  management  analyst.   It  is  the  height  of  folly  to  expect  judges  intelligently  to  review  a5000  page  

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record  addressing  the  intricacies  of  public  utility  operation.  

It is not the function of a judge to act as a super  board, or with the zeal of a pedantic schoolmaster  substituting  its  judgment  for  that  of  the  administrator.  The result is a theory of review that  limits  the  extent  to  which  the  discretion  of  the  expert may be scrutinized by the non-expert judge.  It was suggested that the alternative for the court is  to  desist  itself  from  interference  on  technical  matters, where all the advantages of expertise lie  with the agencies.  If the court were to review fully  the decision of an expert body such as State Board  of Medical Examiners, ‘it would find itself wandering  amid the maze of therapeutics or boggling at the  mysteries of the pharmacopoeia’.”  

120. Bearing  the  aforesaid  aspects  in  mind,  we  are  

prone to infer that the disputed area of the lease deed borne  

out  from  the  revenue  record  is  clearly  confined  to14.15  

acres plus 8.65 acres and the balance area of the lease deed  

could not have been interfered with so as to set aside the  

entire project.   

121. However,  we have noted that  the  period  of  the  

lease deed had been finally fixed as 99 years which in our  

view could not have been done by the State Government as  

that clearly converts the lease deed into a perpetual lease.  

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In fact we have noted that when the tender was floated for  

granting the lease deed, the maximum period for the lease  

deed as per  the Rule  could not  have been more than 30  

years yet the tender was floated for  a period of 60 years  

which was later extended to 99 years.  This in our view could  

not have been done by the State Government as one can  

infer even at a glance that the same being contrary to the  

rules, could not have granted it for a period of 99 years.   

122. We, therefore, set aside the period of lease which  

has been granted in favour of the appellant for a period of 99  

years and the same shall stand reduced to a period of 30  

years only which could be the maximum period of the lease  

for  the  land under  the  rules  which  should  start  ordinarily  

from the date of its execution so as to expire on or before  

the period of 30 years.  But we are conscious of the fact that  

much time has lapsed after execution of the lease deed in  

2005 due to which only Phase-I  of  the project  could start  

after which it got stuck and the project is in a state of limbo  

due  to  delay  on  account  of  the  litigation  started  at  the  

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behest of the respondent/PIL petitioners who questioned the  

validity of the lease deed executed and finally succeeded in  

getting it set aside.  We are, therefore, of the view that the  

lease deed which could not be made effective in view of the  

intervening litigation due to which the Project got delayed, it  

is legally just and appropriate to direct that the period of 30  

years of the lease shall now be counted from the date of this  

judgment and order.    

123. We are further of the view that on or after expiry  

of 30 years to be counted from the date of this judgment and  

order,  if  for  any reason whatsoever  the lease deed is  not  

renewed in favour of the lessee/appellant or the appellant  

chooses  not  to  seek  its  renewal,  the  appellant  shall  be  

adequately  compensated  for  the  property  and  structure  

which  stands  developed  at  the  instance  of  the  appellant  

during  the  period  when  the  lease  subsisted  in  its  favour.  

Subsequently, however, as to what would be the adequate  

period of lease to be granted in favour of the existing or a  

new  lessee  obviously  would  be  determined  by  the  State  

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Government at the relevant time but in so far as the instant  

lease deed is concerned, the existing period of 99 years shall  

stand decreased to 30 years to be counted from the date of  

judgment and order of this Court.  

124. Thus the lease deed although was executed for a  

period of 99 years shall pursuant to this decision, run for a  

period of 30 years which shall commence from the date of  

this judgment and order and may be extended by the State  

Government  for  such  other  period  as  may  be  considered  

legally  viable  based  on  the  rules  and  regulations  at  the  

relevant period.  We further add in the interest of justice,  

that after expiry of 30 years of lease period and in case the  

lease deed is  not renewed in favour  of the appellant,  the  

State Government  shall  compensate the appellants at  the  

market value of the project including compensation for the  

loss of business and profit.  It is clarified that in the event of  

any  dispute  arising  with  respect  to  quantum  of  

compensation, it may be resolved by availing the remedy of  

arbitration mechanism provided in the lease deed.

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125. We are informed that the first phase of the Project  

has been completed since February, 2011.   It  is therefore  

directed  that  the  completion  certificate  and  the  lease  

agreement for the first phase be issued expeditiously but not  

later than a period of 30 days from the date of receipt of this  

order.   Accordingly,  the  State Government  shall  issue the  

restoration completion certificate for Phase I to enable the  

Project alongwith the Jal Mahal Monument as per the Lease  

Deed,  to  open for  entry  and visit  of  the  members  of  the  

public.  Upon issuance of the phase–I certificate, the project  

developer/lessee/appellant shall be allowed to undertake the  

construction as per the approved plan in terms of the lease  

deed.

126. We  further  hold  that  the  area  of  8.65  acres  

equivalent to 13 bighas and 17 biswas shall not form part of  

the lease hold area as already stated hereinabove and the  

same  shall  stand  re-transferred  to  the  Government  of  

Rajasthan which shall  be recarved and added to  the lake  

area and the same shall  be maintained by the competent  

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authorities of the State.  However, the area of 14.15 acres  

equivalent  to  22  bighas  and  17  biswas  although  shall  be  

notionally treated as part of the lease deed, the said area  

shall  be treated as a construction free zone which will  be  

allowed to be used as a walkway/ the public promenade free  

of any charge at the instance of the lessor and the lessee.  

Remaining portion of the land forming part of the lease deed  

shall remain intact to be used by the appellant as per the  

terms and conditions of  the lease deed already executed.  

However  by  way  of  abundant  caution,  we  clarify  that  

Mansagar  Lake  Restoration  Project  if  undertaken  by  the  

State or the Ministry of Environment, the same shall not get  

affected by virtue of the lease deed in any manner.  

127. It is further held that since the land which is a part  

of  the  lease  hold  area  barring  2  chunks  viz.  8.65  acres  

equivalent to 13 Bighas 17 Biswas of land and 14.15 acres of  

land approximately 22 Bighas 10 Biswas, in all 35 bighas and  

27 biswas equivalent to 22.80 acres, the Wetland Rules of  

2010  shall  not  apply  to  the  project  since  environment  

clearance had already been issued under PIA 2006 prior to  

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commencement of the project.  In any view the lease hold  

area barring the land equivalent to 35 bighas and 27 biswas  

having  not  been  held  as  wetland  or  lakebed  as  per  the  

revenue  record  as  also  the  fact  that  it  was  available  for  

development  way back  from 1982 which  gets  established  

from the various  Master  Plans of  Jaipur  and the historical  

background referred to hereinbefore, no dispute relating to  

application of the Wetland Rules 2010 shall be allowed to be  

raised hereinafter with retrospective effect in regard to the  

lease  hold  area  of  the  land  which  has  been  granted  for  

development of the project and could not be proved to be  

wetland barring 22.80 acres equivalent to 35 bighas and 17  

biswas.  It is further clear by now that the project comprising  

the lease hold land is not in conflict with the development of  

lake area or Jal  Mahal  monument so as to raise issues or  

concern regarding the lake area or environment degradation  

as restoration and maintenance of Jal Mahal cannot possibly  

disturb the monument or lead to environmental degradation.  

In  any view, the dispute being confined to the lease hold  

area  for  development  of  the  project  which  we  have  now  

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resolved, we direct that the appellant/lessee shall be entitled  

to  re-start  the  project  forthwith  subject  to  what  we  have  

recorded hereinbefore.   

128. The judgment  and order  of  the High  Court  thus  

stands quashed and set aside to the extent by which the  

lease deed has been cancelled except an area of 13 bighas  

17 biswas equivalent to 8.65 acres and the balance disputed  

area claimed to be lake bed comprising 14.15 acres shall be  

notionally treated as part of the lease deed but the same  

shall  remain  a  construction  free  zone  where  neither  the  

State Government of Rajasthan nor the appellant-lessee/Jal  

Mahal  Resorts  Pvt.  Ltd.  shall  have  the  right  to  raise  any  

construction  on  this  area  as  the  same  shall  remain  

exclusively for the use of public promenade / walkway free of  

charge.

129. In view of the analysis made hereinbefore, these  

appeals stand  partly   allowed  to  the  extent indicated  

hereinabove  but  in  the  circumstance,  the  parties  are  

directed to bear their own costs.  

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………………………………….J. (GYAN SUDHA MISRA)

………………………………….J. (PINAKI CHANDRA GHOSE)

New Delhi; April 25, 2014    

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