JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA & ORS.

The Judgment of the Court was delivered by

GYAN SUDHA MISRA, J. 1. Leave granted.

2Copy pinpoint2. 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 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.S. Civil Writ (PIL) Petition No.5039/ G 2010 and D.B. Civil Writ (PIL) Petition No.4860 of 2010 whereby the Division E!ench of the High Court was pleased to cancel an Environment and Monument Improvement/ Preservation and Tourism Development Project at Jaipur by declaring it as illegal which was awarded to the petitioner/ H

774 SUPREME COURT REPORTS [2014] 11 S.C.R. • A appellant Jal Mahal Resorts Private Limited via global tender . floated in 2003 and finally granted in 2005 after all requisite approvals as per the petitioner/appellant under the Environmental Law including Environment Impact Assessment under the Environment Protection Act and the Notifications B issued thereunder of the Rajasthan Pollution Control Board. However, in view of the cancellation of the project, the High Court has directed immediate dismantling and removal of the entire project and diversion of the twodrains which was done to purify waters of a man made artificial water body and C detritus.

3Copy pinpoint3. Other three Special Leave Petition bearing SLP (Civil) Nos.22467/2012, 22820/2012 and 24341/2012 had also been preferred by the State of Rajasthan challenging the impugned judgment and order of the High Court referred to hereinbefore. D But after the arguments were finally advanced by the learned Attorney General and the same also stood concluded,. permission of this Court was sought by the senior counsel Sri Jaydeep Gupta to withdraw these special leave petitions filed by the State of Rajasthan which were permitted by this Court E vide order dated 05.02.2014. The petitions preferred by the State of Rajasthan assailing the impugned judgment and order thus stand dismissed as withdrawn. However, Sri Gupta submitted that he can still address the Court on merit in the connected special leave petitions bearing SLP (Civil) F Nos.17701 of 2012, 19239/2012 and 19240/2012 preferred by the petitioner/appellant Jal Mahal Resorts Pvt. Ltd. & Ors. against the PIL petitioners before the High Court since the State of Rajasthan is still a party· respondent in these matters and hence it can support or oppose the impugned judgment of the G High Court in spite of withdrawal of the special leave petition filed by the State assailing the judgment and order of the High Court. However, at this juncture we refrain from expressing further on its implication and-would deal with the same, if necessary, at the appropriate stage . .H

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4Copy pinpoint4. In so far as the appeals preferred by the appellant-Mis. A Jal Mahal Resorts Private Limited is concerned, we have noticed that the appeal has been preferred against the common judgment and order of the High Court under challenge herein whereby the writ petitions which were filed by the respondents as public interest litigation bearing DB (CWP) B No.6039/2011 entitled Prof. K.P. Sharma vs. State of Rajasthan and Ors as also DB (CWP) PIL No. 5039/2010 entitled Dharohar Bachao Samiti Rajasthan vs. State of Rajasthan and Ors. as also the 3rd writ petition bearing DB (CWP) PIL No. 4860/2010 entitled Heritage Preservation c Society Rajasthan and Anr. vs. State of Rajasthan and Ors. have been allowed by the Division Bench of the High Court and resultantly the Mansagar Lake Precincts Lease Agreement dated 22.11.2005 awarding 100 acres of land on lease for a period of 99 years to the respondent No.7/the appellant herein/ 0 M/s. Jal Mahal Resorts Private Limited was declared illegal and void. As a consequence of the same, the appellant Jal Mahal Resorts Private Limited has been directed to bear costs to be incurred in restoration of the original position of 100 acres of land in removing the soil filled in by it and to restore back the possession of land to the Rajasthan Tourism Development Corporation ('RTDC' for short) which in turn will hand over the land to Jaipur Development Authority ('JOA' for short), Jaipur Municipal Corporation ( 'JMC' for short) and the State of Rajasthan. The appellant has further been directed to immediately remove all sedimentation and settling"tanks from the Mansagar Lake Basin and to realize costs from M/s. Jal Mahal Resorts Private Limited and to examine restoring position of Nagtalai and Brahampuri Nala (drains) to their original position as redesigned by RUIDP under Mansagar Lake Restoration Plan in consultation with the Ministry of G Environment and Forests ('MoEF' for short) of the Central Government. The respondent authorities of the State of Rajasthan have been further directed to monitor, maintain and refix boundaries of the Mansagar Lake in its full original length, breadth and depth in consultation with the MoEF of Central H

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Government and not to reduce normal water level. All • encroachment.s made in the attachment area of the Mansagar Lake have be.en ordered to be removed immediately and the control erected by appellant Mis. Jal Mahal Resorts"Private Limited into the lake is ordered to be dismantled and costs have been ordered to be realized from the appellant Mis. Jal Mahal Resorts Private Limited. All the three writ petitions were thus disposed of by the High Court.

5Copy pinpoint5. 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 fileq in public interest to quash Jal Mahal Tourism Project and cancel Mansagar Lake Precincts Lease Agreement dated 22.11.2005 giving 100 acres of land 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 Mis. Jal Mahal Resorts Private Limited to restore the original position of 100 acres of land by removing the soil filled in by it at its own costs. F

6Copy pinpoint6. The appellant M/s. Jal Mahal Resorts Private Limited has assailed the judgment and order of the High Court on several grounds to be related hereinafter. But before doing so it has related the factual and historical background of the matter G giving rise to these appeals. In this context, it has been stated that the Mansagar Lake was a man-made lake on the northern fringe of Jaipur city. Within the lake a pleasure pavilion called Jal Mahal was constructed by the erstwhile rulers of Jaipur in the 18th century and this structure is still existing in the midst of the lake. Tracing out the historical background, it has been H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 777

stated that in 1962, the two main sewerage drains of the walled city of Jaipur Nagtalai and Brahmapuri were diverted to empty into the water body which led to its degeneration, siltation and se.ttled deposits and contaminations to such an extent that it could not support aquatic life nor support flora and fauna in the surrounding areas. The water body was covered with floating hycinth and its aquatic life and there were large scale death of fish that had earlier survived and led to a drastic reduction in the fauna including the migratory birds that used to flock in the vicinity of the lake was on the verge of extinction. About 40% of the catchment area which covered approximately 23.5 c Sq.Kms was dense urban population. Towards the south side of the lake, large amounts of unintended developments and encroachments had taken place thereby drastically increasing the quantity of effluents discharged into the lake and also put other pressures by unconditional grazing of cattle and urban 0 development. Jal Mahal had also very substantially deteriorated over a period of time not only because of natural process of degeneration but also because of maintenance. The monument was in a dilapidated state and required massive restoration works. E

7Copy pinpoint7. The deteriorating condition of the Lake and the Monument compelled the Government to find ways and means to restore the two components to their original glory. Over a period of 30 years attempts were made by various government agencies and departments to restore the ecological and environment condition of the lake and its adjoining area. However, none of these attempts yielded very positive results because of paucity of resources to take up and sustain the .restoration.

8Copy pinpoint8. 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 H

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detailed surveys and analysis, developed a holistic approach . • involving three components namely (i) restoration ofMansagar·. Lake, (ii) restoration of Jal Mahal and (iii) development of tourism/recreational components at the lake precincts. Thus, the third component visualized development of the precincts area B of the lake which comprised of about 100 acres of land towards the south on a sustainable development model. It was, therefore, required that the lake and Jal Mahal be restored and the lake precinct be developed for limited eco friendly tourism facilities which would also provide funds for 0 & M of the lake on a c continuous basis. The benefits of this project was that it would result in the restoration of the Mansagar Lake and the Jal Mahal monument and there would be consequent development of eco friendly tourism destinations with large open green spaces in the vicinity of the lake which would improve the environment and resultantly, the aesthetics and visual quality of the area.

9Copy pinpoint9. 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.

10Copy pinpoint10. As a consequence of the aforesaid conceptualization, process for bidding started which has been described as First G Bid Process by the appellant which started after publication of the advertisement. Request for Qualification ("RFQ") was released in December, 2000. 6 firms responded and made submissions for qualification. In the meantime, Request for Proposal ("RFP") document was prepared by the Project H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.) 779

Development Corporation Limited (PDCOR) which is a joint venture company of Government of Rajasthan and IL&FS and approvals were given by the Government of Rajasthan. Request for proposal was released and Board of Infrastructure Development & Investment (BIOi), a high powered committee of' the Government headed by the Chief ·Minister with an objective to accelerate private investment in industry and related infrastructure, formed a sub-committee to decide on fiscal concessions necessary for" the project. The Jaipur Municipal Corporation was made the nodal agency for project purposes. However, the first bid process failed as despite c applying for qualification no bidder ultimately participated in the bid.

11Copy pinpoint11. The aforesaid failure led to the appraisal and approval of the project report by the Ministry of Environment and Forests. The Government of Rajasthan, through Department of Urban D Development, sent proposals to Ministry of Environment and Forest (MoEF), Government of India, on 17.08.2001 seeking funds for Lake Restoration of the said project under National Lake Conservation Programme ('NLCP"). MoEF responded by requesting that details regarding fund requirement, O&M E agency, source of funding for O&M along with Detailed Project Report (DPR) comprising of bankable proposal be submitted. Hence, On 8th & 9th December, 2001 and thereafter on 26th & 27th January, 2002, the Project Site was studied by the representatives of MoEF. F

12Copy pinpoint12. On 22.1.2002, a letter was written by MoEF wanting break up of estimated costs as also commitment of State Government to bear 30% of the cost sharing as well as identifying agency for carrying out O&M. The State Governm~nt G was also to ensure that no untreated sewage should be discharged into Mansagar Lake which could be achieved inter alia by diverting the two nallahs that discharged waste in the lake.

13Copy pinpoint13. Based on experts recommendation after complete H

780 SUPREME COURT REPORTS [2014) 11 S.C.R. • A technical surveys and environmental studies of the lake, the area for the project was identified and recommended by renowned consultants LASA (Lea Associates South Asia Private Limited) as being ecologically viable. The DPR itself mentioned that the ecological restoration of the lake would be carried out on the basis of which it can ·be sustainable and bankable as required by MOEF through a Public Private Partnership model.

14Copy pinpoint14. 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 ~lso conveyed its appreciation on DPR and observed as follows:

"the project document and structure as developed by D PDCOR Limited has served as a benchmark for developing sustainable Lake restoration projects on a Public Private Partnership (PPP) model. You will be pleased to know that we are recommending a similar approach to other states for Lake Conservation projects". E

15Copy pinpoint15. 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 ("JOA") from earlier agency, Jaipur Municipal Corporation. The bid documents were duly approved and an advertisement inviting Expression of Interest ("Eol") was issued for selection of Private Sector Developer ("PSD") in April, 2003 after the key commercial terms of the project and even the draft of the advertisement was approved by JOA. The Empowered Committee of Infrastructure Development ("ECID"), a high powered committee headed by Chief Secretary, formerly known as SCIO, directed Secretary, UDH to finalize key commercial terms for selection of PSD. H During the first round of bidding the proposed lease was 60

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years in the aggregate. As that period was considered unviable, in the second round of bidding the period of lease was proposed as 99 years: Moreover, restoration of Jal Mahal by the PSD was made optional and not mandatory.

16Copy pinpoint16. In pursuance to the aforesaid steps, detailed RFP were issued to interested private parties which was approved by JOA and released in July, 2003. The advertisement inviting RFP for selection of Private Sector Developers ("PSD") was published in leading newspapers (Rajasthan Patrika and Economic Times). In addition, PDCOR developed strategy for marketing and wide publicity of the project by apprising potential entrepreneurs across the globe about the features of the project with a view to encourage them to come forward to participate in the bid process. As the tourism project was to generate funds for sustained O&M measures, the Department of Tourism ("DOT") and later Rajasthan Tourism Development Corporation D ("RTDC") was made the nodal agency for the project. Four competitive bids including from the Petitioner were received which were evaluated and PDCOR submitted its report to Government of Rajasthan for its approval. The Technical Evaluation Committee constituted for evaluation of bids E comprised of eminent experts like Padamashree Dr. B.V. Doshi, Architect, Mr. Mohd. Shaheer, Landscape Architect and Mr. Hemant Murdia, Chief Town Planner, Government of Rajasthan. F

17Copy pinpoint17. The petitioner/appellant got the highest marks in technical evaluation of its bid and when financial bids were opened the Petitioner's bid was found to be the highest. Consequently, ECID in its meeting held on 9.2.2004 headed under the Chairmanship of Chief Secretary decided to grant the project to the Petitioner. The letter of intent was issued to G the Petitioner on 30.9.2004. On 22.11.2005 after approval from the Government of Rajasthan the Lease in respect of the project ·1and and the Liel:lnse for restoration and reuse of Jal Mahal were executed. H

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18Copy pinpoint18. In terms of the project an area of 100 acres of land towards the south of Mansagar Lake was to be leased out for a period of 99 years for development of eco-friendly tourism components as set out in the RFP. The entire development, at the end of 99 years, was to be transferred back to the State B Government without any compensation payable to the Private Sector Developer. In terms of the RFP, it was optional for the Private Sector Developer to undertake the restoration and reuse of the Jal Mahal Monument. The Petitioner while making the bid also exercised the option for restoration and reuse of c the Jalmahal monument. The Petitioner in terms of the license agreement set out to restore the monument. The RFP estimated the cost of restoration of Jal Mahal at approximately Rs.1.50 crores. In reality the cost of restoration of Jal Mahal worked out to Rs.10 crores. The State Government had also D constituted an Empowered Committee to oversee the time bound restoration of Mansagar Lake and Jal Mahal Monument.

19Copy pinpoint19. The Petitioner's/appellant's in pursuance to the lease appointed consultants who did extensive research plan which was got approved from the Empowered Committee. Ultimately E the monument was fully restored under the supervision of Empowered Committee upon advice of renowned conservation architect Dr. Kulbhusan Jain and other consultants.

20Copy pinpoint20. 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 "'!ready spent an amount of Rs.38 crores besides paying more than 14 crores as project development fees and lease rent to RTDC as per the petitioner/appellant's case in terms of the lease deed. In pursuance to the same, the restoration of the Mansagar Lake under the DPR prepared by PDCOR was to H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 783

be undertaken by the State Government. The O&M work was to be carried out from lease rentals received from Private Sector Developer i.e. the Petitioner. The total amount sanctioned for restoration of the lake by the Central Government and the State Government was Rs.24.72 crores. This amount proved to be inadequate and the Government due to further resource crunch was not in a position to spend any further amount. Resultantly, the restoration of the lake, which was the cornerstone of the project, was in danger. The Petitioner spent over Rs.15 crores on restoration of the lake with the approval of the Empowered Committee. c

21Copy pinpoint21. As a measure of restoration and development of the project, the entire project implementation had to be done so as to achieve sustainable eco preservation and development. The Petitioner, therefore, acted under the advise and on the recommendation of experts. These activities were further D monitored by the Government of Rajasthan and its agencies. The petitioner/appellant stated that for the purpose of restoration, the Petitioner engaged a number of nationally and internationally renowned consultants including Mr. Soli J. Arceivala, Ex. Director of NEER!, Dr. Shyam R. Asolekar from E llT Mumbai, Dr. G.C. Mishra from llT Roorkee, Mr. Jal R. Kapadia Environment Consultant, Mumbai and Mr. Herald Craft, renowned lake expert from Germany. Some of these experts had also worked for restoration of the Hussain Sagar Lake in Hyderabad. The State Government had also constituted 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 H

784 SUPREME COURT REPORTS [2014] 11 S.C.R. • A sedimentation/settling tanks near the mouth I discharge point of the re-aligned drains. The purpose of constructing of sedimentation tank was to trap the silt and organic content of the storm water so that the quality of water in the whole of water body is not adversely affected. The sedimentation process B were also reviewed by a team of experts from MoEF Which found the system as a viable and proper solution: It has been further brought to the notice of this Court that the project fell within item 8(a) of Environmental notification dated 14.09.2006 and was also confirmed by MoEF in its Affidavit in Reply filed c to the. writ petition and a detailed Environmental Impact Assessment ("EIA") was carried out by State Level Environment Impact Assessment Authority ("SEIAA") constituted by MoEF. It is, therefore, stated that all requisite environmental approvals were obtained.

22Copy pinpoint22. The project thereafter was started and the land leased to the Petitioner, according to the appellant, was not a part of the water body in the first Master Plan 1971-1991 for Jaipur and an area of 200 acres around the south side of Jal Mahal was demarcated and reserved for tourist facilities. The land E leased to the Petitioner was a part of this land area reserved for tourist facilities. The said land continued to be retained for tourism and recreational activities in the subsequent city master plans including the master plan of 2011 and 2025.

23Copy pinpoint23. The appellant has further stated that the Man Sagar Lake on its western side is bound by Jaipur-Amer road. The level of the road is at a contour level of 100 MRL. The ground floor of the Jal Mahal monument within the lake is at the contour level of 98.2 MRL. PDCOR, based on intensive studies, found this level as the most appropriate level taking into account the fact that the lake was not freshened by natural acquifers but was dependent on surface runoff during the monsoons, and to ensure that ground floor of Jal Mahal was not submerged.

24Copy pinpoint24. However, the contesting respondents herein who were the PIL petitioners befqre the High Court, averred that the PIL

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 785

petitioner Prof. K.P. Sharma is involved in the research with regard to Man Sagar Lake and has published a paper which was read out in the 12th World Lake Forests TAAL 2007. It was ·submitted by learned counsel Mr. Aruneshwar Gupta on behalf of the PIL petitioner/one of the three contesting respondents herein that the Man Sagar Lake and the management · B thereunder were declared protected monuments but were deleted from the list of protected monuments in the year 1971. The contesting respondents have also related the history of the lake glory and have recorded that Man Sagar Lake is a large lake on the northern fringe of Jaipur city and the glory of the c lake as a pristine water body lasted until the former rulers had their control over the city and unpleasant history of lake began when new administration of Jaipur diverted walled city sewage in 1962 through two main waste water drains namely Brahmapuri and Nagtalai. The most notorious aquatic weed 0 water hyacinth {Eichhornia crassipes) entered into lake in 1975. The petitioner/contesting respondent herein stated that during the studies made by the contesting respondent and his colleagues, 10 zooplankton Species, arthropods, fishes and 92 species of birds were observed at Mansagar Lake and out of 92, 41 are aquatic and 51 were forest dwellers. The water fowl E population included 16 resident and 25 migratory species. It is in this context that it was submitted that the Man Sagar Lake and the monument therein were declared protected monuments but they were deleted from the list of protected monument in the year 1971. F

25Copy pinpoint25. It was further averred by the PIL petitioner in the High Court/contesting respondent herein that the Ministry of Environment and Forests {for short 'MoEF' }, Government of India prepared National Lake Conservation Plan {for short G 'NLCP') for restoration, conservation and maintenance of urban lakes. The Government of Rajasthan submitted project for restoration of Man Sagar Lake to the Central Government. The total cost of the project was estimated to be Rs.24. 72 crores, out of which 70% was to be provided by the Government of India H

786 SUPREME COURT REPORTS [2014] 11 S.C.R. • A while rest was to be borne by the State Government. The administrative approval and expenditure was granted by the MoEF vide order dated 5.9.2002 and the order was revised by the MoEF vide dated 23.12.2002. The JOA implemented the lake restoration· plan under which Sewage Treatment Plant B (STP) near Brahmapuri has been revamped from which treated water is being diverted to lake for compensating evaporation losses during dry weather. A two step Tertiary Treatment Plant has also been developed and lake has been cleared from hyacinth plants completely by the JOA. The JOA has also c invested in development oflake front promenade on Jaipur - Amer Road and constructed road along the lake on northern side which has formed a new water body of about 5 hectares in size for storing hill run off during.rainy season for wild life which includes Hanuman langur (Semnopithecus entellus), Black aped Hare (Lepus nigricollos), Indian Porcupines (Hystrix 0 lndica), Blue bull (Boselalphus tragocamelus), Sambhara (Cervus unicolor), Common Mangoose (Herpestes edwardsii), Jackals (Canis aureus), Striped Hyaena (Hyaena hyciena) and panther (Panthera leo). The JOA has also funded Rs. 10 million to the State Forest Department for improving lake catchments E area falling in the Nagargarh hill area (Arawali Range) which is the only natural watershed. The lake is surrounded almost from three sides by Arawali Hill Ranges. The hills are either part of Nahargarh Wildlife Sanctuary or Reserved Forest Ranges known as Amer Block 54 and Amargarh Block 92. The F petitioner/respondent herein and his team was working in executing a JOA sponsored project on bank stabilization of the lake since May, 2005. 35 species of tree and 28 varieties of shrubs were planted. Besides improving landscape, the plant species provide shelter and food to the local fauna and migratory birds may also be benefited. Similar plantation was also done on three islands.

26Copy pinpoint26. The PIL petitioner/respondent herein had further averred that Jal Mahal Tourism Infrastructure Project was conceived and approval was given by the Standing Committee

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 787

on Infrastructure Development (for short 'SCIO') in its 3rd A meeting held on 21.12.1999. Resolution has also been filed in which it was stated that Jaipur Municipal Corporation must own the project. The bids were invited in the year 2001-01 without identification of the land to be used and without studies with regard to environment impact assessment. The bid process B was scrapped and JDA was made sponsoring department for the lake side development component in the meeting of Board of Infrastructure Development and Investment Promotion (for short 'the BIDI') held on 23.8.2002 and 3.9.2002.

27Copy pinpoint27. It was contended on behalf of the petitioner that MoEF c granted administrative approval and expenditure sanctioned only for the lake restoration components and there was absolutely no consideration by the MoEF to the lake side development component of the so-called Jal Mahal Tourism Project. It was submitted that as a matter of fact the National D Lake Conservation Plan did not contemplate any such commercial venture upon the lakes to be restored under the plan which according to the PDCOR contemplated the following three components as already referred to hereinbefore but for facility of reference it may be reiterated that three components E were as follows:-

(1) Restoration of Mansagar Lake;

(2) Restoration and re-use of Jal Mahal Monument; F (3) Development of Tourism/Recreational components at the lake precincts.

28Copy pinpoint28. It was further submitted by the petitioner/contesting respondent herein that in the meeting of BIDI held on 5.8.2003, G it was decided that nodal agency for the Jal Mahal Tourism Project will be Tourism Department of Government of Rajasthan instead of JDA. Thereafter, the tourism department assigned the responsibility to the Rajasthan. Tourism Development Corporation (for short 'RTDC') vide order dated 6.9.2003. It H

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has been submitted that although biding was started, no suivey • of the actual site and demarcation of 100 acres area on the lake was made and even environment impact assessment was not carried out before planning the project. It was further submitted that in the advertisement last date for submission of B the bid was·S.9.2003 and it was necessary under the.terms of the bid that only private limited company or public iimited company could have submitted tender. It was necessary that lead Manager should be private or public limited company. The offer was submitted by KGK Enterprises, partnership firm and 'c its HUF Manager. Thus was not fulfilling eligibility qualification provided under the terms notifying tender.

29Copy pinpoint29. However, the petitioner/contesting respondent himself has added and clarified that later on decision was taken to include KGK Enterprises which according to the petitioner I D contesting respondent lack eligibility condition and Jal Mahal Resorts Private Ltd. Company has been incorporated on 10.11.2004. The decision was also taken to give exemption of stamp duty etc.

30Copy pinpoint30. The contesting respondent No.7 who was the PIL petitioner has further stated that during the bidding it was made clear that no commercial activity would be permitted within the precincts of Jal Mahal Complex, but even before agreements were executed, the successful bidder not only sought exemption F from commercial activity within the precincts of Jal Mahal Complex but also sought revision of the project proposal and for maintenance of lake, water level at the cost of the Government vide letter dated 13.7.2004. The contesting respondent/PIL petitioner had also submitted that out of 100 G acres of land, 14.15 acres of land was submerged in water which has also been leased out.

31Copy pinpoint31. Mr. Aruneshwar Gupta on behalf of the PIL petitioner/ contesting respondent No.7 further averred that Master Plan of Jaipur 2011 did not permit such activities at the site. It was also H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 789

stated that 100 acres of land was part of the lake bed itself, A out of which 14.15 acres of land was submerged in the water. The area was sensitive for eco system and thus environment impact assessment was required to be carried out before any such project was prepared but the same was not done. It was still further stated that 100 acres of land beyond· the spread of 8 lakebed was not available on the site and it was further submitted that wall of sufficient height has been constructed for setting apart the proposed 100 acres of land from the lakebed and the soil from the lake bed itself was actually used for th is purpose. It was alleged by the PIL petitioner that the ,appellant C herein Jal Mahal Resorts Private Limited started constructing high walls of mud and soil in the eastern part of the lake bed near sluice gates and a large area around it for the purpose of preparing sedimentation tanks ·in the lake bed itself. The project people visit land most frequently disturbing birds on the island and the connection of island with mainland has also led to entry 0 of dogs on the island which feed on the eggs of birds and thus, basic objective of island to provide habit/breeding ground for resident and migratory birds is forfeited.

32Copy pinpoint32. It was further contended by the petitioner before the E High Court that one third of the lake was converted into a series of sedimentation tanks made in the down stream of the lake by respondent No.7 and now all dirt with floating objects enter into sedimentation tanks made in the lake bed. Thus, the entire lake has been converted into a series of small tanks followed 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 H

790 SUPREME COURT REPORTS [2014] 11 S.C.R.

the lake bed itself and it has been carried out without any • requisites sanction and study by any of the concerned authority otherwise such a large area of the lake could not have been allowed to be sacrificed for 'such purpose. As per the monitoring done by the PIL petitioner/contesting respondent, the chloride 8 content"in the Mansagar Lake has been increased and salt in water has gone high. The sudden increase in the chloride content of the lake is attributed to direct human interference by way of altering lake basin character. This increase in salinity will definitely affect the lake bio diversity and both the native 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 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 cbmmittee under the Chairmanship of the Chief Secretary of the Government of Rajasthan considered the Revised Master Plan and rejected the changes on 10.10.2007. However, another representation was submitted by the H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] appellant herein/respondent No.7 in the High Court and on 791

A 10.9.2009 sanction was granted by the Committee.

33Copy pinpoint33. The PJL petitioner also raised a grievance that Environment Impact Assessment was not carried out by the finalization of the project or execution of the lease agreement 8 and even environment clearance from MoEF , Central Government was not obtained as required under EIA Notification dated 27.1.1994. The Central Government had issued a fresh Notification on 14.9.2006 in exercise of power conferred under Section 3 of the Environment Protection Act, C 1986 (shortly referred to as 'the act of 1986') and rules framed thereunder for environment clearance before implementation of the projects mentioned therein. It was further contended that the project cannot be implemented without obtaining environment clearance from the Central Government under the aforesaid notification and no Environment Impact Assessment was carried out nor any environmental clearance has been obtained before finalizing the project & all actions taken by the respondent are absolutely illegal and void. The PIL petitioner further contended that the environment clearance as required under notification dated 14.9.2006 had not been obtained nor any compliance of Wetlands (Conservation and Management ) Rules 2010 had been made so far. The PIL petitioner had raised a grievance that it is a case of siphoning off valuable public property as the value of 100 acres of land is not less than 3,500/- crores. The DLC rates for commercial land in question is Rs.79,063/- per sq. mtrs. and lease for 99 years amounts to sale, although as per rules it was necessary for the respondent- authorities to realize the sale price and additionally lessee was required to pay annual lease money also. The market price used to be much higher than DLC rates, especially due to location being picturesque and ecologically rich. If such land is sold for commercial purposes for constructing five star hotels, resorts, luxury villas etc. such land· carries invaluable importance. According to the PIL petitioner/contesting respondent herein the value of such land cannot be said to be H

792 SUPREME COURT REPORTS [2014] 11 S.C.R.

less than 3,500/- crores. It was, therefore, submitted that the • State Government had handed over valuable natural resources of water surrounded by natural beauty of hills and forests, full of wildlife and other natural resources maintaining environmental and ecological balance of the city to a private B entrepreneur society for economic exploitation at the cost of the public. The revision of the Master Plan completely converts the tourism project into privately owned township upon 100 acres of land which has been let out for a petty sum by the Government. c 34. In so far as writ petition no. 5039/2010 Dharohar Bachao Samiti vs. State of Rajasthan and Ors. and writ petition No. 4860/2010 Heritage Preservation Society Rajasthan and Anr. vs. State of Rajasthan & Ors. are concerned, have also substantially urged the sacrifice of public interest on account 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.

35Copy pinpoint35. 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 provisions of various facilities on south and west side of Jal Mahal Lake on 200 acres. It was submitted that the erstwhile Urban Improvement Trust Jaipur had proposed F a scheme in respect of 520 acres land which was published in the gazette on 31.7.1975. The Jaipur Development Authority Act 1982 (for short 'JOA Act 1982') came into force and Urban Improvement Trust was replaced by the JOA. A notification under Section 39 of the JOA Act was issued by the JOA on 30.6.1987. However, development of Jal Mahal area could not G materialize . The JOA then decided to undertake the exercise for development of integrated tourism infrastructure development for Jal Mahal and required Project Development Company of Rajasthan (PDCOR) to prepare project on commercial format for private public participation. The H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 793

preliminary approval was given by the Standing Committee on A Infrastructure Development ( for short ' SCIO') in December

1999. It was stated that the bids were noJified in the year 2000 but no entrepreneur came forward in the bidding process and thus the tender process was scrapped. Thereafter, the JOA was appointed as nodal agency to undertake the bidding process. B Global tenders are invited on 25.4.2003 and in pursuance thereof 9 entrepreneur showed interest. It was mentioned in the advertisement that 100 acres of land would be leased out for 99 years. A pre bid meeting was held on 24.8.2003 for removal of doubts. The Department of Tourism on 6.9.2003 transferred c the development of Jal Mahal to RTDC vide letter R-1/12. On 15.9.2003, pre-qualification bids were opened in response to which four entrepreneurs submitted bids. Rejection of one bid was recommended on account on inadequate information on evaluation. It was pointed out that the respondent M/s. KGK 0 . Enterprises was a partnership concern whereas the criteria for bidder was that it has to be private/public limited company and thus final view of the Government was sought in respect of qualification/disqualification of Mis. KGK Enterprises in the next phase of evaluation bid. Later on, 14.11.2004, KGK Enterprises formed private limited company in the name and style of "Jal E Mahal Resorts Pvt. Limited". The PDCOR !.uggested retention of KGK Enterprises as its presence will increase competitiveness. The State Government permitted the consideration of bid of KGK Enterprises on 17.10.2003 to enlarge the scope of competitiveness. Thereafter, the technical 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 lncharge Tourism (Chief Minister), who approved the minutes of the Empowered Committee on Infrastructure Development (ECID) and directed to put up the draft lease agreement early. H

794 SUPREME COURT REPORTS [2014) 11 S.C.R.

On 9.5.2005 the Collector intimated that 100 acres of land has • been mutated in favuor of RTDC. The approval of lease agreement and license agreement and authorizing of Managing Director of RTDC to sign the agreement was granted finally by the Chief Minister on 27.10.2005. On 29.10.2005, the RTDC B authorized the Managing Director to sign Jal Mahal Lease Agreement on behalf of Government of Rajasthan with Jal Mahal Resorts Pvt. Ltd. and accordingly lease agreement was executed on 22.11.2005. The Central Government , MoEF recorded its appreciation for the project vide letter dated c 13.9.2002 and 1.12.2009.

36Copy pinpoint36. It was further contended on behalf of respondent State that it is incorrect to say that the size of the lake has been reduced on account of leasing out' 100 acres of land. It was averred that the action is as per Master Development Plan. The D State Government has submitted the project to the Central Government MoEF for restoration of Man Sagar Lake at the estimated cost of Rs.24.72 crores and the Central Government agreed to provide 70% of the cost. PDCOR in the project report prepared in October 2001 included the following facilities: E

1. Restaurant;

2. Traditional Technological Park

3. Club Resort F

4. Amusement Park

5. Heritage Village

6. Light and Sound Show land G

7. Recreational Centre.

It was further stated by the respondent State of Rajasthan before the High Court that there will be nci damage to the wild life or reserve forest or birds and it is for the respondent No. 7 Jal H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 795

Mahal Resorts Pvt. Ltd./appellant herein to obtain clearance as A per requirement of law. The sedimentation tank covers 5% of the area of lake. It was also stated that the Wetland Rules are not applicable and they are made applicable to Sambhar Lake and Keola Deo Lake in Rajasthan. It was still further added that the land leased out does not fall within the definition of Section B 2(1) (g) and Section 3. The consent had been given under the Water Act by the Rajasthan Pollution Control Board on 20.5.201 O. It was further added that for the last 3 decades , the State Government had been making efforts for restoration of Jal Mahal, Man Sagar Lake and the Area around lake and c desilting has not caused any ecological damage.

37Copy pinpoint37. 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 E bighas 10 biswas was of forest department. Thus in total 832 bighas 01 biswas was mentioned in the letter dated 7.6.1982 written by UIT to the Deputy Secretary UDH. When JOA was formed the area of Jal Mahal Project stood transferred to the JOA by virtue of JOA Act and the JOA vide letter dated F 5.10.1983 requested the Government to acquire land admeasuring 832 bighas 4 biswas which was in the tenancy of private persons. The JOA sent a proposal on 25.2.21988 to the UDH for publication under Section 4 of the Land Acquisition Act, the report under Section SA was submitted by the Land G Acquisition Officer to the Government for acquisition of land for Jal Mahal Reclamation Project ands the same was accepted and land award was passed on 17.4.1996. It was further explained that a part of land however falling in the area known as Karbala measuring 46 bigha was decided not to be H

796 SUPREME COURT REPORTS (2014] 11 S.C.R. • A acquired. On 31.3.1999 SIDI was formed to take decisions to accelerate growth of investment and industrial development in the State of Rajasthan. Thereafter, the di>cisions were taken details of which have been given in the return. On 10.0.2009, approval of revised layout plan was granted by the Committee B chaired by the Chief Secretary. Lease amount had to be enhanced by 10% every time after a period of 3 years. It was therefore submitted that JOA having considering the nature of investment, lease of 99 years was justified. It was also admitted that out of 100 acres of leased area 13 bighas 17 biswas of c land is recorded as 'gairmumkin ta/ab' in khasra No.67/317.

38Copy pinpoint38. In so far as the reply of the lessee/respondent No.7 and 8/appellants herein/Jal Mahal Resorts Pvt. Ltd. and KGK Consortium is concerned, it had submitted in their reply to the writ petition before the High Court that the State Government D promoted the concept of private public partnership to save the burden on the exchequer and the decision had been taken by the expert body at the highest level which is not amenable to interference by this Court. MoEF granted approval of 5.9.2002, on 23.12.2002 administrative approval and expenditure sanction was issued by the Government of India for conservation and management of Mansagar Lake. The bid submitted by Mis. KGK Enterprises in 2003 was found to be the highest and hence the then Chief Minister had approved the decision of giving project to the highest bidder KGK F Enterprises on 27.2.2004 and thereafter letter of intent was issued on 30.9.2004 after which lease agreement was executed on 22.11.2005 on which the appellant has already spent amount of Rs.70 crores while executing part I of the project. G

39Copy pinpoint39. 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.

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.]

40Copy pinpoint40. Responding to writ petition No. 4860/2010 which PIL 797

A was filed by Dr. Ved Prakash Sharma in the High Court also, was contested by the appellant herein and it was submitted that Dr. V.P. Sharma appears to have obtained registration on 19.3.201 O mainly for the purpose of approaching this Court in PIL. It was also urged that Prof. K.P. Sharma in W.P. No. 6039/ B 2011 is not a recognized authority or lake functionaries or expert in lake management, irrigation, environment protection and there has been orchestrated campaign through vernacular newspaper for reasons best known to the correspondent and the newspaper itself. The said newspaper runs the Janmangal c Trust on behalf of the Irrigation Department and the said trust also carries out commercial activities to generate revenue for upkeep of the dam. It was further added that in 1992 the newspaper group wanted to utilizes the Jal Mahal Complex and the land which is part of Jal Mahal Tourism Project for its own 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 F Ram Prasad Sharma vs. State of Rajasthan was dismissed by the High Court as withdrawn by order dated 15.2.2011 without liberty to file a fresh writ petition. It was also submitted that the interference in contractual matter is not permissible specially when Jal Mahal Tourism Project is in larger public interest as it G has to undertake restoration of Mansagar Lake. It was still further added that there was encroachment of about 50-60 acres of land, decision had been taken by the expert body, bids were invited by global tender and the appellant having been found the highest bidder was rightly considered. lease H

798 SUPREME COURT REPORTS (2014] 11 S.C.R.

• A agreement and leave and license agreement are valid, possession of the land was rightly handed over to them; nursery has been set up over this land which has numerous varieties of plants and they have also introduced several varieties of aquatic vegetation in the Mansagar Lake to attract migratory B birds. Beautification of Jaipur-Amer Road divider has also been taken up and work of phase I has been completed and allegation of environment damage is baseless as the State Government after environment impact assessment granted permission and consent has also been granted by the C Rajasthan Pollution Control Board in 2009-10, capacity of water in the lake has not been reduced; sedimentation basin has been constructed as per expert advice. The appellant further had stated that they had spent about Rs. 15 crores on lake restoration which was not their responsibilities under lease agreement and they have also spent Rs.10 crores on restoration 0 of Jal Mahal Monument voluntarily though obligation was limited to Rs. 1.5 crores only. Hence, there cannot be any interference by this Court with the opinion of the expert.

41Copy pinpoint41. 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 JOA was not correct. Issue of identity of director/owner of the company constituting the consortium is not relevant in any manner whatsoever to the project for restoration of Mansagar Lake. Jal Mahal Monument and Development of precinct area , bid was submitted by KGK Consortium G comprising of six private limited companies, one HUF and partnership firm namely, Mis. KGK Enterprises who was lead bidder of the KGK Consortium. It was stated that it is mandatory under the tender document that in case of consortium bid, successful bidder has to form special purpose vehicle (limited company) and lease would be executed with such SPV, in the .

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 799

pre-qualification round the bidder should have satisfied any two of the three eligibility criteria for meeting the financial capability

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

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

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

Relying on these credentials, it was stated that M/s. KGK Consortium satisfied the aforesaid technical financial criteria. 0 However, its leads member M/s. KGK Enterprises was a partnership firm and as the KGK Enterprises met all the requirements in respect of technical, financial , shareholding and lock in periods as given in RPF, deviation from the RPF which mandated that the lead firm must be a public/private company was permitted and KGK Enterprises was allowed to 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. G Ltd. except to ferry passengers for a minor charge and it has not been authorized to use the Jal Mahal monument commercially and the monument remains within the possession and use of the State Government. Out of 100 acres of land, 87% area is to be maintained as green area and in PIL terms H

800 SUPREME COURT REPORTS [2014] 11 S.C.R . • . A and conditions of the contract cannot be questioned after several years. The appellant further stated that on restoration of Mansagar Lake Rs. 15 crores have already been invested, catchment area is not being disturbed in any manner, report of Prof. K.P. Sharma is merely an opinion based on personal B interpretation. There was temporary road constructed by the licensee for easy access for the purpose of restoration of Jal Mahal monument which is situated otherwise in Mansagar Lake surrounded by water and the said road has been dismantled and no material is left to compromise the filling capacity of lake. c JOA has approved detailed building plans for the project on 13.7.2010. The Jal Mahal Resorts Pvt. Ltd. diverted the sewage nallahs away from the Mansagar Lake with the approval of the State Govermment , lake has been cleansed substantially, BOD of the water in Mansagar Lake has been reduced substantially after commencement of the work, creation 0 of sedimentation basin has not decreased the water capacity of Mansagar Lake and use of soil of lake itself has not damaged the ecology or environment or the lake. Sedimentation basin is a part of the lake and created only by moving the soil of the lake from one place to another and it is E wholly temporary reversible in nature and the soil can be leveled when arrangements are in place to ensure that the storm water drains do not discharge silt and organic load into the lake during monsoon, land in question is not covered under the provision of the tenancy act and the fake is with the State F Government , which will continue to remain so. It has however been added the responsibility of lake maintenance is purely of the JOA and Jal Mahal monument has been denotified in 1971 from the protected monuments under the provisions of the Act of 1961. Changes in the Jal Mahal monument has been brought 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.

42Copy pinpoint42. In so far as the MoEF , Government of India is concerned, it has clarified that it has only sanctioned the project

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] for conservation and management of Mansagar Lake in Jaipur 801

A in December 2002. Thus, the averment made in the petition that no sanction for Jal Mahal Tourism Project was obtained from MoEF is not disputed in the return filed by the MoEG. It was stated that project for conservation and management of Mansagar Lake in Jaipur was sanctioned as per the mandate s of the National Lake Conservation Plan. It was further contended that project for conservation and management of lake in Jaipur was sanctioned in December 2002 at the cost of Rs.24.72 crores under the NLCP on 70:30 cost sharing basis between Government of India and the State Government of c Rajsthan and the sanctioned order was issued which contained break up of cost estimated. The different components which were approved further included realignment of drains , desilting , insitu bioremediation , sewage treatment plant and wetland construction, check dams, aforestation, nesting islands etc. It 0 has been accepted by the MoEF that the JOA was the nodal implementing agency for the project and MoEF Central Government has released entire share of the Central Government amounting to Rs.¹⁷.30 crores. Other details had also been recorded on behalf of the MoEF regarding the cost of upgradation and it was stated that the State Government was committed to bear the additional fund towards the development from its own resource. The State Government had informed that in addition to the sewerage work under NLCP scheme , other projects are also being taken up thereby ensuring that all sewage generated in the lake catchment area is being taken care of. The learned Judges of the Division Bench on a scrutiny of facts and on hearing the counsel for the contesting parties however were pleased to hold that the PIL was bona fide and in public interest. R~sultantly, the High Court was pleased to declare that the Mansagar Lake Precinct Lease Agreement G dated 22nd November2005 giving 100 acres of land on lease for a period of 99 years to respondent No. 7 Jal Mahal Resorts Pvt. Ltd. was illegal and void. The appellant Jal Mahal Resorts Pvt. Ltd. was therefore, directed to restore the possession of the land to the RTDC who in turn was directed to give back the H

802 SUPREME COURT REPORTS [2014) 11 S.C.R.

land to Jaipur Development Authority, Jaipur Municipal • Corporation and the State. As already stated in the introductory paragraph, certain other directions like removal of sedimentation and settling tanks from the Mansagar Lake basin was also issued by the High Court and cost also had to s be realised from the appellant.

43Copy pinpoint43. 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.

44Copy pinpoint44. 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 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 re.lated by the contesting parties that the deteriorating condition of the lake and the monument compelled the State Government to find ways and means to restore the monuments to their original glory. We have noted from the averments of contesting parties that over a period of 30 years attempts were made by Government agencies and departments to restore ecological and environment condition of the lake and its adjoining area but none of the attempts H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] yielded any positive result because of paucity of resources to 803

A take up and sustain their restoration. The Government of Rajasthan therefore had taken a decision to adopt an incentivized approach to restore the lake and monument and declare the precinct area on a public/private partnership format. In order to improve the condition of the lake the State of B Rajasthan in consultation with the experts and after detailed surveys and analysis adopted an. approach of development covering three components which are:

1. Restoration of Mansagar Lake; c

2. Restoration of Jal Mahal and

3. Development of tourism/recreational componer1ts at the lake precincts.

While restoration of Mansagar Lake was approved as per the 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.

45Copy pinpoint45. On a scrutiny of the extensive factual details and the submissions advanced by the contesting parties , we have noted that the el)tire dispute is essentially confined to the Lease F Deed which has been granted in favour of the appellant for development of 100 acres land adjoining the lake area for a period of 99 years. The PIL petitioners although have urged that the land for which lease deed had been executed were wetland, it could not establish from any material on record that except G an area of 14.15 acres equivalent to 22 bighas and 10 biswas and another area comprising 8.65 acres equivalent to 13 bighas and 17 biswas are in fact the contentious area on the basis of which PIL petition has been filed engulfing the entire area of the lease deed. In this respect it cannot be overlooked H

804 SUPREME COURT REPORTS [2014] 11 S.C.R.

• A that the project which was visualized and given effect to, was with a view to sustainable conservation and preservation approach stipulated in consultation with the experts in pursuance to which a global tender was floated and implemented under extra supervision with all approvals in place B from the concerned authorities. · . '

46Copy pinpoint46. Learned counsel for the petitioner/appellant, Dr. Abhishek Singhvi assailed the impugned judgment and order of the High Court and urged that the High Court has proceeded c on a patently erroneous, illegal and factually incorrect loasis when it inter alia held as follows:

a. That-the public-trust doctrine has been breached because land measuring 13 Bighas 7 Biswas submerged area of lake 1has been leased to the D petittoner and resultantly lease deed dated 22.11.2005 is void in law. ' '

b. That 14.15 acres equivalent to 22 Bighas and 10 Biswas of land submerged forming part of the E Lakebed and could not have been leased out.

c. The State Government has leased 25 percent of the' Lake basin itself to the petitioner/appellant for preparing 100 acres of land and the lake level has been reduced to carve out 100 acres of land for the F lease. l . ," •·,; d. The Environment Clearance given by State Level Environment Impact Assessment Authority (SEIAA) to the petitioner on 29.04.201 O is void in law. ,; G e. That the Project is in violation of Rule 4 of the Wetland Rules of 2010 and the Rams'ar Convention. Thus, the lease deed is in contravention of the Wetland Rules and cannot be given effect to. H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA

f. [GYAN SUDHA MISRA, J.] That the sedimentation tanks are illegal as they 805

A · could not be built without clearance from the Ministry of Environment and Forests.

g. That the No Objection given by the Rajasthan Pollution Control Board to the petitioner's project is 8 of no avail in the absence of clearance by MOEF under the Environment Protection Act, 1986.

·~ ~·. ~ h. That the lease has been executed in violation of Rajasthan Tourism Disposal of Land Rules, 1997 L (RTDC Rules), Rajasthan Municipalities (Disposal C of Urban Land) Rules 1974, Th.e Rajasthan Municipality Act, 1959 and the Jaipur Development Act, 1982 is liable to be cancelled.

.il' i. That the State was bound to give effect to the D .•' .. . t. essential conditions of eligibility stated in the tender document and. was not entitled to waive such a condition. Thus, action of respondent No.2 was not for bonafide reasons.

47Copy pinpoint47. Learned senior counsel for the appellant Dr. Abhishek E M. Singhvi at the outset submitted that the writ petitions before '!he High Court by way of Public Interest Litigation ought to have : been held barred by delay . latches as also on the ground that they were not bonafide and filed with ulterior motive. It was explained that three purported PIL came to be filed by the writ F petitioners/respondents herein in 2010 and 2011 after expiry of 5 years from the date of execution of the lease deed and licence agreement dated 22.11.2005. In this respect, it was ·"submitted giving out the sequence of events that the Detailed Project Report ('DPR' for short) in regard to the Project was G ..prepared way back in 2001 which was the underlying basis for - 'the Project. The tender process commenced in 2003 and the fish shaped leasehold area comprising 100 acres was part of the Expression of Interest dated 25.04.2003 published in various public media. Notice Inviting Tenders for the Project was H

806 SUPREME COURT REPORTS [2014] 11 S.C.R. • A published in various public media on 30.07.2003. The pre- qualification bids were opened on 15.07.2003, the technical bids were opened on 21.10.2003 and the financial bids were opened on 03.12.2003. Thereafter, decision making process was undertaken at several stages upto the level of the Chief s Minister in order to determine the award of the Project to the respondent-lessee KGK Consortium which are indicated in the order 09.02.2004, 27.02.2004, 30.09.2004 and 27.10.2005. Thereafter, finally on 22.11.2005, the Lease and Licence Agreements were executed between the State Government c and the petitioner-appellant. It was submitted that all the above steps were taken in public domain and in fact one of the PIL- petitioner/respondent herein K.P. Sharma was aware of the developments as far back as in February 2005 that the project was to come up. Yet he chose to sit by and do nothing until 2011 and during these intervening 8 years, the State Government and 0 the petitioner/appellant substantially altered their positions by spending huge sums of money in implementing the Project. It was therefore submitted that the motive of respondent No.1/PIL petitioner is questionable because he has sought to disrupt a Project much after the public money came to be spent even though he could have approached the High Court earlier.

48Copy pinpoint48. 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

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.) 807

submission, the petitioner/appellant relied upon the ratio of the decision delivered in R.D. Shetty Vs. Airports Authority of ln~ia, 1979 (3) SCC 489, where the Court despite holding that the State had violated Article 14 of the Constitution permitted the contract to continue. The Court in its conclusions overlooked the rights and liabilities of the successful party on the one hand 8 and the conduct including delay and motive of the PIUpetitioner on the other and finally upheld the right to continue contract under challenge as it was of the view that the Court may refuse relief to the party challenging the award of contract if the equities are in favour of the party holding the contract. In the instant case, c it is not even the plea of the PIUPetitioner that he himself has been deprived of his rights. Even in the case of State of M.P. Vs. Nandlal Jaiswal, 1986 (4) SCC 566, this Hon'ble Court took the view that the writ petition suffered from latches and thus considered it fit to dismiss it. D

49Copy pinpoint49. It was added that in fact the PIUpetitioner in the High Court Mr. K.P. Sharma is guilty of suppression of facts from the High Court as he had s.ent a complaint letter dated 12.06.2007 to the Supreme Court and the SC Registry was directed to submit a report dealing with all the allegation raised by PIUpetitioner. The SC Registry took the report on record and closed the matter on 20.12.2007. The petitioner K.P. Sharma thereafter did not move forward and suddenly after 4 years in April 2011, filed a writ petition by way of PIL in the High Court without even disclosing that complaint had been enquired by the Registry of the Supreme Court and the matter was closed. However, the PIUpetitioner made a further application to the Supreme Court in the year ~011 but the Additional Registrar of the Supreme Court vide letter dated 11.10.2011 informed the PIUpetitioner that pursuant to GOR Report, the file had been closed and the file was weeded out on 14.04.2011. Thus, the PIUpetitioner was clearly aware of the factual report of the GOR to the effect that the SC Registry had closed the matter based upon that report, yet the PIUpetitioner K.P. Sharma failed to disclose this vital fact to the High Court. Thus, the PIUpetitioner H

808 SUPREME COURT REPORTS [2014] 11 S.C.R.

• A deliberately tried to mislead the Court and has not come to the Court with clean hands. It was therefore contended that it cannot be overlooked that tile complaint of the PIUpetitioner to the SC Registry and its rejection thereafter based upon a factual report · submitted by GOR is a vital and material fact that ought to have been disclosed to the High Court specially since the allegations in the complaint and the PIL substantially overlap.

50Copy pinpoint50. It was next contended that the PIL by the petitioner K.P. Sharma lacks the bonafide to prefer the PIUpetition because his conduct is malicious and vindictive. Elaborating on this, it was stated that PIUpetitioner K.P. Sharma with Dr. Brij GopaL had approached the appellant in the year 2007 purporting to offer their services for monetary reward. Since the appellant had· already engaged a lead panel of conversationist and environmentalist, the services of the PIUpetitioner were not 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.

51Copy pinpoint51. 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 G of land equivalent to 8.65 acres of land from the very inception has been reflected and treated as part of the land that was proposed to be leased. This land was described in the original .Detailed Project Report which was prepared much earlier ·in the year 2001 when this land was formed part of the fish shaped land. It is highlighted that during the first attempt to initiate the H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 809

810 SUPREME COURT REPORTS [2014) 11 S.C.R. • A urged that the High Court at the most could have severed reference to the said 13 Bighas 7 Biswa of land but should have upheld the lease pertaining to the rest of the land as the Lease Agreement expressly permits such severance vide Clause 18.4 of the Lease Deed. B

52Copy pinpoint52. Learned Attorney General on behalf of State of Rajasthan had contended that on spot inspection by Jaipur Development Authority('JDA' for short) showed that no lake existed in 13 Bighas 17 Biswas of land and that this land was a landmass. The reason for including this area in the lease C deed was to maintain the shape of the allotment. It was further argued that Court may direct this area to be kept open as no construction zone and may be kept open excluding the area which has been consumed in public promenade.

53Copy pinpoint53. The High Court however had held that 14.15 acres of land submerged formed part of the Lakebed and could not have been leased out. Assailing this view taken by the High Court, it was contended that this Court would have to adopt an objective test to determine which land is classified as Lakebed E and for this purpose reliance has been placed on the ratio of the decision delivered in the matter of Noida Memorial Complex Judgment, 2011 (1) SCC 74. It was submitted that reference to the revenue record with respect to 100 acres lease shows that even though land admeasuring 14.15 acres is 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 submergence. PDCOR has stated in its affidavit that the said 14.15 acres of land was submerged due to huge silt deposits that had caused H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 811

the depth of the lake to reduce and as a result the water had 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.

54Copy pinpoint54. In fact, the learned Attorney General on behalf of the ~late 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 this area is not a part of lake, is disregarded. Based on the revenue records referred and shown to this Court, the inevitable and indisputable conclusion that appears is that the entire 100 acres land leased to the petitioner is not a part of the Lakebed except 13 Bighas 17 E Biswas bearing Khasra No.67/317 (8.65 acres). If would thus follow that this land cannot form part of the Lakebed under any circumstance.

55Copy pinpoint55. Besides the above, it was urged that over the years, F huge amount of silt had been deposited onto the Lakebed by the Nagtalai and Brahmpuri Nala as a result of which the depth of the land has reduced which resulted in spilling of the water from the lake into adjacent areas including the land adjacent to it. G

56Copy pinpoint56. On the premise of the aforesaid facts, it was urged that there is no violation of the public trust doctrine as public trust doctrine cannot be applied to defeat public interest. The Project as approved and when implemented would in fact create an unprecedented Lake water front ambience and would be the H

812 SUPREME COURT REPORTS [2014] 11 S.C.R.

A only large water body in Jaipur that had been subjected to massive destruction over the years. In fact, the Project would inter a/ia create approximately 1.5 km long walkway (promenade) along the lake which has been constructed by the petitioner/appellant on the leased land that is open for use by B the public. Importantly, another 3.5 km promenade has been built by the JOA along the Lake. A perennially filled Lake admeasuring 310 acres (approx.) with a depth between 3 to 5 metres and a complete renovation and restoration of Jal Mahal Monument with a pleasure pavilion built in the mid 18th century., c the restoration includes artistic paintings depicting Rajasthani culture. The Project includes access to the restored monument by the public on paying a nominal charge of Rs.25/- per person · essentially a cost towards being carried by boat to the Monument, a crafts village to promote handicrafts and other world famous heritage products of Rajasthan, an amusement 0 park for the public, a restaurant positioned with adequate setback from the Lake, for the public to enjoy clean surroundings, a heritage resort, a convention and Exhibition center to serve multipurpose functions. It was submitted that these highly pro public elements cannot be negated and E destroyed by erroneous contentions raised in the PIL. Indeed, the aforesaid enormous improvement to the environment involving air, water and land, is itself in high public interest and this Hon'ble Court should countenance no dilution in that.

57Copy pinpoint57. It was next submitted that the conclusion in the impugned order that the Lake has been artificially reduced to get more land and lake water level and its spread had been reduced is completely erroneous, unsustainable because it is the petitioner and the State who have together restored 310 G acres (approx.) of the Lake that has resulted in ensuring the Lake remains filled with water around the year having the depth of around 3 to 5 meters, whereas earlier it was nothing but a cesspool of filth, sewage and silt etc.

58Copy pinpoint58. The factual context of this issue has been summarized H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 813

by the petitioner in order to demonstrate the grave and patent error of the impugned order and it has been stated as follows:

The level of Jaipur-Amer road is 100 m RL, and the full tank level of the lake is 99 m RL.

ii The plinth level of the Jal Mahal Monument is however only 98.12 RL i.e. almost 2 metres below the Jaipur-Amer road level.

iii. It is obvious that a water level equal to the Jaipur- Amer road level would not only create problem for c surrounding areas but would seriously damage and · ,., impair the Jal Mahal Monument by entering it and eroding its structure.

iv. Consequently, from the creation of the DPR in 2001 0 which was not known to the petitioner, the Government has recognised that the water level of the lake should not be kept above 98 m RL.