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

59Copy pinpoint59. II 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 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 H

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

regulator. To reinforce the submission, reliance was placed on • the ratio and observations made in the matter of Tata Cellular Vs. Union of India, 1994 (6) SCC 680. It was submitted that unfortunately the impugned order has commltted precisely the aforesaid errors repeatedly, inter alia in respect of size of lake and water level of the lake.

60Copy pinpoint60. 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 .;>ewage/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. E

61Copy pinpoint61. It was submitted that it is axiomatic in law and in. fact that the award of a tender must necessarily be judged by the terms of the tender, subject to permissible variations. It is most significant to note that the RFP on the basis of which everyone was invited to tender prescribes, specifies and stipulates the clear water level at 98 m RL. It is common ground that neither the PIL petitioner nor any bidder or anyone else has challenged the per se stipulation of .the water level at 98 m RL. Therefore, the allegation of the PIL petitioner is absolutely baseless. Consequently, it was contended that the respondents contention that the petitioner/appellant is guilty of reducil)g Lake water level is highly misleading and distorted submission which has been accepted in the impugned order contrary to the factual position.

62Copy pinpoint62. It was further urged that the PIL petitioners'/ H respondents' herein penchant for false, distorted and

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.) misleading submissions alleging reduction of the size of the 815

A lake and the spread of the lake alleging that this was dooe by keeping the water level at 98 m RL thereby giving enhanced area of land to the petitioner/appellant herein and correspondingly, diminishing the spread of the lake is equally fraudulent and deliberately distorted for the following reasons: B

It is vital to note that the Detailed Project Report (DPR) made in 2001 at least two years before even the Expression of Interest was issued for the present Project and the SLP petitioner herein/ appellant was nowhere in the picture categorically 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 I respondent herein to suggest that because the water level is kept at 98 m RL, the SLP petitioner has been given a greater land area. Thus, it is submitted that it is patently false for the simple reason that irrespective of the water level, the land actually given in the RFP is the necessary controlling tender document is no more than 100 acres and even if 99 m RL which is full tank level had been fixed as the lake level even then the land available for the successful bidder would be 100 G acres. This underscores the point that 98 m RL level was not the guiding factor while granting 100 acres to the petitioner.

63Copy pinpoint63. It was .further contended that the High Court has H

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

erroneously relied on a PWD document that states the area of . • the lake has reduced to 0. 79 sq. km after independence · whereas prior to independence according to the High Court it was 1.154 sq. km. However, the High Court does not appreciate and consider that the DPR was prepared in 2001 · B after carrying out extensive surveys and preparing topographical ' maps, after doing all such research and based upon all such', material it was determined by the DPR that the size of the lake was 130 hectares more than what it purportedly was prior to independence. It was therefore submitted that the High Court's c finding on this aspect suffers from lack of application of mind · to the material on record and it was submitted that if anything, the size of the lake from independence has only increased. Consequently, it was. submitted that the two vital and unchangeable parameters show the falsity of the PIL petitioner D contention viz.

(a) A decision fixed and taken more than two years. before the tender in 2001 to get the lake level at 98 m RL. E (b) A decision taken in the RFP to lease out no more than 100 acres, once these two polar points· are fixed, assuming everything against the petitioner/ appellant herein or the State Government that can, be no prejudice or detrim~nt of any kind to public interest.

64Copy pinpoint64. It was next contended that the High Court conclusion on de-silting is patently erroneous and unsustainable because de-silting was a sanctioned activity under NLCP and MOEF had sanctioned funds for the said purpose. The DPR had provided for de-silting as a measure to increase the depth of the lake so as to enhance the water holding capacity thus de- silting had a scientific basis to it. In fact, in the meeting dated 03.04.2006 which was held to review the lake restoration under the Chairmanship of Principal Secretary, Urban Development H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA · [GYAN SUDHA MISRA. J.] 817

. and Housing, pennission was granted to the petitioner/appellant 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.

65Copy pinpoint65. 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 ta/ab no other parcel of land that was leased to the petitioner was part of the Lakebed as per the revenue entries. Only because silt was dumped on the land leased to the petitioner, cannot make land that was not part of the Lakebed, as is evident from the revenue record and is now suddenly being asserted as part of the Lakebed. It is being 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 N0.1 1 herein K.P. Sharma had contended that the lease executed and granted to the appellant for development of 100 acres land was illegal, arbitrary disturbing the natural resource of lake . F which was fit to be struck down as invalid as the 100 acres land was carved out from the lake area and thus the breadth and height of the lake was reduced.

67Copy pinpoint67. However, on a scrutiny of materials on record which included the revenue record of the land in question, it is G sufficiently clear that the man made Mansagar lake comprised of an area of only 3 hundred acres towards the lake area. Counsel for the respondents/PIL petitioners, however, at the outset and as the first and foremost point sought to make good the submission that the lake area was reduced by 100 acres H

818 SUPREME COURT REPORTS [2014] 11 S.C.R. • A which was leased out to _the appellant/lessee by reducing the lake area. But the counsel in spite of his best efforts could not establish the same except the fact that 8.65 acres and 14.15 acres were submerged area of the lake and lakebed respectively which was carved out as land area so as to make it a part of the 100 acre land area. In fact, even on perusal of the impugned judgment and order of the High Court it could not be established even remotely that the entire 100 acres land which comprises the area of lease deed is a. part of the lake or lakebed in any manner. In fact, all the contentions which had been raised before the High Court as· also before this Court in general terms urged that the lake area has been reduced. to 310 acres and 100 acres have been carved out of 400 acres of lake area which was reduced to 310 acres. But in clear, specific or precise terms, it could not 'go beyond urging that 8.65 acres which was submerged and hence a portion of the 0 Lake area, could not have been made a part of the leased area. In this context, it was further urged that this area being a wet land, could not have been included in the leased portion of the land for which the development was permitted by executing a lease deed. E

68Copy pinpoint68. When this plea was scrutinised in the light of the revenue record, it could be noted that this area has been recorded in the revenue record as 'gair mumkin ta/ab'. Based on this entry, it was submitted by the PIL petitioner/ respondent F .herein that 'gair mumkin ta/ab' area' could not have been allowed to be developed by raising construction as that would be clearly contrary to the Wet Land Rules which was enacted for the first time in the year 2010. In other words, the contention of the PIL petitioner/ respondent No.1 herein is that since 8.65 G acres of land which forms part of 100 acres leased area granted to the appellant is submerged under water which area according to the PIL petitioner/ respondent would also form part of the lake, the State Government could not have included this land in the leasehold area to be granted to the petitioner/ H appellant. '

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 819

69Copy pinpoint69. The appellanUlessee on his part confronting this A submission argued that this Court would have to adopt an objective test to determine which land claimed as Lake Bed and wet land is fit to be accepted and for this purpose placed reliance on the ratio of the decision delivered in the matter of Neida Memorial Complex (2011) SCC 744 paras 24 and 25 B · which held as follows: ·

"24. In support of the applicants' case that there used to be a forest at the project site he relies upon the report of the CCF based on site inspection and the Google image 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). E

25. NOIDA was set up in 1976 and the lands of the project area were acquired under the Land Acquisition Act mostly between the years 1980 to 1983 (two or three plots were notified under Sections 4/6 of the Act in 1979 and one or two plots as late as in the year 1991 ). But the possession of a very large part of the lands under acquisition (that now form the project site) was taken over in the year 1983. From the details of the acquisition proceedings furnished in a tabular form (Annexure 9 to the counter-affidavit on behalf of Respondents 2 and 3) it would appear that though on most of the plots there were properties of one kind or the other, there was not a single tree on any of the plots under acquisition. The records of the land acquisition proceedings. thus. complement the revenue record of 1952 H

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

in which the lands were shown as agricultural and not as • · jungle or forest. There is no reason not to give due credence to these records since. they pertain to a time when the impugned project was not even in anyone's imagination and its proponents were nowhere on the scene."

Placing reliance on the aforesaid categorical view taken by this Court, it was submitted that a reference to the revenue records with respect to the 100 acres lease shows that even though the land admeasuring 8.65 acres might have been submerged under water, historically and contemporaneously, 14.15 acres · has been classified as 'barren land' and not as part of the Lake Bed. It, therefore, must follow as per the· submission of the counsel for the appellant placing reliance on the revenue records that the 14.15 acres forming part of 100 acres leased to the appellant is not a part of the Lake Bed and also for that reason is not a Wet Land. ·

70Copy pinpoint70. 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· F Court and before the High Court explained the reasons for emergence of this area of 14.15 acres of land. It was further pointed out that the PDCOR has stated in its affidavit that the said 14.15 acres land emerged due to huge silt deposits that had caused the depth of the lake to reduce and as a result, the G · water had spilt out into adjacent land being the concerned 14.15 acres of land. Based on this project report prepared at the instance of PDCOR, it was argued that the said land was never part of the Lake Bed and is not for this reason a Wet Land . It was further added that factually out of the 14.15 acres permitted H to be reclaimed by the appellant under the: Lease Deed dated

• JAL MAHAL RESORTS P. LTD. it. K.P. SHARMA [GYAN SUDHA MISRA, J.) 22.11.2005, the appellant has only claimed approximately 11 821

A acres out of which approximately 6-7 acres has been consumed by the appellant for creating a public promenade open to the public.

71Copy pinpoint71. The appellant sought to add. additional weight to this B argument by placing reliance on the submission of the learned Attorney General on behalf of the State who had argued that this land of 14.15 acres was never part of the Lake Bed as per the revenue records. The counsel further pointed out that the Attorney General had further submitted that the approach of the High Co1,1rt was completely contradictory in this regard. While C on the one hand in respect of the 13 bighas 17 biswas area · equivalent to 8.65 acres, the revenue records had been relied upon; the same was not taken care of and relied upon in respect of the area of 14.15 acres although, the revenue records clearly show that this area is not a part of the lake and yet it was disregarded by the High Court.

72Copy pinpoint72. 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 big has 17 biswas bearing. Khasra No.67/317 corresponding to 8.65 acres. It was submitted that from this it ought to follow that this land could not have been held to be forming a part of the lake Bed under any circumstance.

73Copy pinpoint73. The PIL petitioner/respondent No.1 herein had further argued that the project is illegal because no sanction for this project had been received under the Wet Land Rules 2010 and, therefore, the respondents have sought for a declaration of the G Lease Deed being void.

74Copy pinpoint74. Challenging this part of the argument urged on behalf of the PIL petitioner/respondents herein, it was contended on behalf of the appellant that the language of the Wet Land Rules H

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

2010 when referred to in detail makes it clear that these rules • can only apply in a situation where the Central Wetland Authority , a Government of India body established under the Wetland Rules 2010 serids its recommendation to the Central Government for notifying a certain area as a wetland. It was B urged that in the present case, it is undisputed that when the Lease Deed was executed and environmental clearance (EC) from State Level Environment Impact Assessment Authority' (SEIM for short) was granted on 29.4.2010, the Wetland Rules 2010 were not even enacted. Therefore, the question of c Wetland Rules 2010 applying to the project retrospectively would not arise. Even otherwise under the Wetland Rules 2010, there is a detailed procedure specified which has to be complied with mandatorily before an area can be notified as a wetland. It was submitted that in the 'present case even after the Wetland Rules 2010 came into force, no such procedure admittedly has been undertaken to identify Mansagar Lake as a wetland when these Pl Ls were filed. It was further contended in this regard that such a project is contrary to the specific intent of the framers which is unequivocal viz even assuming that an area is zoologically, scientifically, environmentally or 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. · ·

75Copy pinpoint75. 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

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 823

proposition of law, learned counsel for the appellant has placed reliance on the following case laws: (1982) 1 sec 271 at page 308, 310 paras 51 and 59 A.K. Roy vs. Union of India when it recorded as follows:

" ...... the question which was put in the forefront by Dr. B Ghatate, namely, that since the Central Government has failed to exercise its power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal of approval on 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 F Sansthan when it concurred with the view that no mandamus could be issued to the executive directing it to commence the operation of the enactment although non-issuance of such a direction should not be construed as any approval by the Court of the failure on the part of the Central Government for a long G period to bring the. provisions of the enactment into force; leaving it to the judgment of the Central Government to decide as to when the various provisions of the enactment should be brought into force.

76Copy pinpoint76. Relying on these decisions it was urged that from the H

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

ratio of these decisions it follows that since Mansagar Lake· • itself is not a Wetland, therefore, the contention of the respondents that the entire 100 acres land leased to the appellant is part of the Lake Bed and, therefore, a wetland ought to be rejected outright and the finding of the High Court B on .this aspect ought to be reversed. However, Mr. Jaydeep Gupta, lea~ned senior counsel who was appointed to represent the St.5Jte ~f Rajasthan after the change of the Government in 2014 in plac'e of the Attorney General Shri G.E. Vahanwati who · had already concluded his arguments on behalf of the State of c Rajasthan, submitted that th·e incumbent Government of Rajasthan cannot accept the interpretation given to the Wetland Rules 2010 by the previous government. As per the subsequent stand taken by the counsel for the new government, the previous government ought to have identified wetland in the 'State within one year of the Wetland Rule 2010 being enacted. According 0 to the counsel for the new incumbent government, since the previous government did not undertake the activity of identifying Mansagar Lake as a wetland, the 2010 rules have been violated. Thus, it had been urged by Mr. Gupta that the stand taken by the previous government before the High Court as well as this Hon'ble Court is untenable. · I

77Copy pinpoint77. 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 201 O do not apply to the project and that the said rules are not retrospective so as to affect the project. This stand has been specifically taken in the counter affidavit filed by the State Government in the three Special Leave Petitions preferred by Jal Mahal Resorts Pvt. Ltd. It was, therefore, submitted that assuming without admitting that the incumbent State Government can withdraw its three Special Leave Petitions, the 1-1 appellant strongly disputes this and it does not follow and should

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] not be allowed that the stand taken by the State Government 825

A in the counter affidavit in the three SLPs filed by the appellant and the three SLPs filed by the State Government can in any manner be changed or altered. In addition, it was submitted on this aspect that the stand of the State Government in the High Court should not be allowed to be changed before the Supreme B Court merely due to change of the Government after new elections were held and it has been strenuously submitted in the pleadings before this Court by the State Government earlier through the Attorney General that the High Court had gravely erred in law in holding that the Wetland Rules 2010 were c applicable to the Project. The attempt being made by the State Government shifting its stand which was taken before the High Court and also before this Court when the learned Attorney General had appeared and concluded the arguments, it is clearly a chang~ in stand from the stand taken by it from the 0 High Court right up to this Court.

78Copy pinpoint78. It was submitted that the underlying basis for the incumbent State Government to change its stand has been justified by it based on its understanding of the Wetland Rules

2010. According to the incumbent government and its political E philosophy Mansagar Lake ought to be identified as a wetland. According to the incumbent government the fact that the Mansagar lake was not identified as a wetland by the previous government itself was an illegality and was contrary to the Wetland Rules. F

79Copy pinpoint79. Contesting the aforesaid stand taken by the respondent-State, the appellant strongly urged· that such an interpretation of the Wetland Rules had been taken by the . previous Government of Rajasthan as a matter of policy which G ·had decided not to notify Mansagar Lake as a wetland keeping in mind the Master Plan of Jaipur since 1976. As per the Master Plan, the Vijay Mahal Area approximately 200 acres (including the entire 100 acres leased to the appellant) was to be urbanized and developed for tourism purposes. Therefore, as H

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

per the contention of the appellant, this area naturally could not • have been identified as wetland. In the alternative, it was submitted that even otherwise the 100 acres leased was not part of the Lake Bed and, therefore, the question of identifying the leased 100 acres land as a wetland is out of the ambit and scope of the question involved.

80Copy pinpoint80. Jn regard-to the plea pertaining to the Master Plan of Jaipur, it was submitted that the Master Plan has statutory force and since the Master Plan itself h11s identified this area to be 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 thereunder and enaCted only five years later in 2010 when implementation of the Project had already started. ·

81Copy pinpoint81. In so far as the plea taken by the PIL petitioner/ respondent herein regarding reduction of the Mansagar Lake area in order to carve out 100 acres of land is concerned, it was explained by relying upon the historical background of the matter that Maharaja Man Singh of Amer who ruled from the year 1589 to 1614, constructed the Mansagar Dam much . G earlier than Jaipur was founded. The Mansagar Lake was· created by damming Darbhawati River on the north side of the Khilangarh fortress. The purpose of the lake was to create a water body that would cater to the irrigation needs and ground water recharge of the area. It was urged that the Mansagar H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] Lake is a man-made water body and its beauty, therefore, is 827

A not a natural one but the creation of man. Elaborating on this part, it was submitted that certain undisputed facts established that 1OOm RL is the Amer Road level. At 99m RL is the full tank level and this has been admitted by the PIL petitioner K.P. Sharma in his writ petition before the High Court and 98.12m B RL is the plinth level of Jal Mahal Monument as enumerated in the Detailed Projects Report (DPR for short). It was submitted that admittedly one of the primary objects of the Project was to restore Jal Mahal Monument. Thus water level had to be maintained at a level that ensured plinth/ground floor of the c monument and is not submerged and further weakened. It was submitted that the Master Plan of Jaipur 1976 establishes that approximately 200 acres of land located in Vijay Mahal (including the 100 acres land leased to the appellant) was to be developed for tourism purposes. Thus, obviously, the 100 D acres land leased to the appellant pre-existed the execution of the Lease Deed dated 22.11.2005 and was available much before the Project was undertaken.

82Copy pinpoint82. It was further contended on behalf of the appellant that the hydrological modeling undertaken by the Project E Development Corporation of Rajasthan (PDCOR) in Detailed Project Report (DPR) scientifically determined a sustainable water level. The DPR explored the following water level scenarios finally chose a water level of 98m RL. The water level scenarios examined scientifically reported that water could not 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.

83Copy pinpoint83. It was further contended that the water could not be maintained at 99m ·RL because at this level lake spread and H

A 828 SUPREME COURT REPORTS I (2014] 11 S.C.R.

volume is difficult to maintain through out the year this being a • technical matter. Consequently, the lower floor of Jal Mahal Monument would be submerged having only terrace and first floor for re-use. Thus the appellant submitted that 98m RL being the next lowest water level after 99m RL was considered·ideal B for maintaining water level. It was argued that most important thing if water level were to be fixed at 99m RL i.e. full tank level then also there would have been more than 100 acres of land available to lease, yet the appellant was granted only 100 acres . .c 84. Learned counsel for the appellant further elaborated on this by relying upon Detailed Project Report (DPR) and urged that as a matter of fact the DPR found that the lake at present is an approximately 130 hectares in its full spread. However, "at first, a much smaller natural shallow lagoon D existed, on the edge of which, the Jal Mana/ structure was located. Thus, originally the spread 'of the lake was much smaller than at present. The spread of the lake has increased and the depth decre.ased in recent times mainly due to the silt deposits as a result of erosion." E

85Copy pinpoint85. It was contended that neither the respondents/PIL petitioners have challenged the correctness of the DPR nor its scientific basis. Thus it is not open to. them to advance arguments that indirectly seek to question the DPR. It was F submitted that the respondents are bound by the report of the DPR entirely and wholly.

86Copy pinpoint86. The appellant further referred to the arguments advanced by the learned Attorney General on behalf of the State of Rajasthan and submitted that the approach of the High Court 'G was wro.ng as it proceeded on an erroneous basis that the. Lake Bed was manipulated to make the project viable while there was no such manipulation. The Attorney General has further argued that the DPR was correct ana the decision to maintain water level at 98m RL was a conscious, well informed H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 829

and deliberated decision taken to protect the integrity of the 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 ..

87Copy pinpoint87. 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 general conditions do not apply to Item 8 (a) and 8 (b) projects. Adding further on this it was contended that it ought to be clarified that the need to issue OM dated 24.5.2011 was felt because OM dated 28.4.2011 in broad terms provided that category B projects that fell within E 10 KM of notified critically polluted areas would be treated as category A and general condition would be applicable.to such projects. MoEF in order to clarify OM dated 28.4.2011 issued OM dated 24.5.2011 that expressly provided that the projects falling under Items 8 (a) and/or 8 (b) do not attract general 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 crucial facts. It was still further submitted on H

830 SUPREME COURT REPORTS [2014] 11 S.C.R. • A this that even otherwise on an interpretation of EIA 2006, it becomes apparent that MoEF has consciously decided not to stipulate general condition in column 5 against Item 8 (a and 8 (b) because EIA 2006 has issued originally and till date does not stipulate general condition against Item 8 (a) and 8 (b) in B the Schedule, while it does so with respect to a number of other iter:ns in the Schedule. It was added that MoEF vide notification dated 1.12.2009 had carried out wide ranging amendments to the Schedule in EIA 2006 and in doing so general condition had been stipulated/inserted for the first time against certain c items. However, while doing so, the MoEF has not stipulated the general condition against the Item 8 (a) or 8 (b). It is, therefore, evident that MoEF consciously as a policy decision has chosen not to stipulate general conditions against Item 8 (a) or 8 (b). Further paragraphs 4 (iii) of EIA 2006 provides activities included as category B in the Schedule which require 0 prior environment clearance from SEIAA except those that fulfil general condition stipulated in the Schedule. It was, therefore, submitted that since general condition is not applicable to Item 8 (a) and 8 (b) projects irrespective of the location of S\lCh E project, therefore, th.e contention of the PIL petitioners/ respondents and the finding of the High Court that since the project is within 10 Km of the Nahargarh Sanctuary ought to be declared as illegal without·substance which is liable to be ~e~d. ·

88Copy pinpoint88. The learned Attorney General Mr. Vahanvati on behalf of the State of Rajasthan had also argued that the finding of the High Court on this aspect is entirely incorrect as the environment clearance from MoFF is not required for this project as the general conditions specified in EIA 2006 clid not 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.

89Copy pinpoint89. The PIL petitioner/respondents had also contended that the Rajasthan Municipalities (Disposal of Urban Land) Rules

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 831

1974 (for short '1974 rules') have been violated since Jaipur A Municipal Corporation while allotting land to RTDC has violated certain norms and that the premium was not charged from RTDC for the land allotted to it and secondly without any General House Resolution allotment of land was made to RTDC. On this aspect it was submitted on behalf of the B appellant that both the contentions are misplaced for the reason that under 18 (2) and the proviso to 1974 Rules, the State Government can exempt the payment of cost of land bein'g allotted by Jaipur Municipal Corporation to any government department. In the present case, the Government decision c dated 9.2.2004 makes it clear that RTDC shall not have to pay any cost of land to the land owning agencies including Jaipur Municipal Corporation as the whole intent of this allotment in favour of RTDC was to only facilitate the project of the Government. As a matter of fact, Jaipur Municipal Corporation 0 through its General House Meeting dated 28.4.2004 was attended by at least 58 of its members who resolved to allot the said land to RTDC in order to implement the project. Thus, it is more than apparent that the Government had exempted charge of any kind from RTDC for the transfer/allotment of land to which a furthermore RTDC through a transparent and well E considered resolution comprising of is members resolved to allot this land to RTDC. Thus the contention of the respondent that the 1974 rules have been violated is wholly unsustainable and finding of the High Court on this aspect therefore needs to be reversed and set aside. F

90Copy pinpoint90. It was still further contended that the Jaipur Development Authority Act 1982 was not violated in any manner and the appellant submitted that rule 18 of the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 G enabled JOA to allot land without any adding cost of the land if the State Government exempts any department of the government from paying cost of the land. In the present case, the Government of Rajasthan vide its meeting dated 16.9.2003 had noted that the JOA had issued orders for transfer of land H

832 SUPREME COURT REPORTS I (2014] 11 S.C.R. • A to RTDC. The object of a gazette notification under Section 54 (3) is to keep matters in the public domain but not to affect 3rd party rights since the land is merely being transferred from a subordinate state instrurnentality to the Sovereign State itself. Thus, there is no project cost in view of non-gazetting of the 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.

91Copy pinpoint91. 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 JOA Act 1982. D Section 26 mandates that once the Master Plan is in force and JOA must take action for implementing the plan as may be necessary. Thus, it is statutorily incumbent on the JOA to implement the Master Plan inter alia which enables development of tourism in the given area. Undisputedly E approximately 43 acres in the 100 acres leased was vested in the JOA and transfer to it for the purpose of developing the tourism project in the area designated in the Master Plan referred to above. Therefore, the land allotted by JOA to RTDC was also for implementation of JDAs Master Plan. Therefore, F it ·cannot be disputed that the present project is a tourism project. Thus, there was ample authority with the JOA to allot land to RTDC under the JOA Act 1982 particularly section 54 (1) for implementing its master plan. Cumulatively, it was submitted that the JOA under Section 54 (1) has the power to allot land vested in it for the purposes of the JOA 1982 subject to rules by the Government of Rajasthan. It was submitted that obviously allotment of land to implement the Master Plan of the JOA Act 1982, Rule 18 gives Government of Rajasthan power to exempt State Department from paying east of the land when land from the JOA is allotted. Exemption by the Government of

• JAL MAHAL. RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 833

Rajasthan in favour of RTDC acting on behalf of Department A of Tourism as an agent from paying cost of the land is traceable to power vested under Rule 18 read with Government of Rajasthan decision dated 9.2.2004. Hence for all these reasons, non-gazetting under Section 54 (3) was not a requirement. B

92Copy pinpoint92. 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 Pr~ncipal 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 betwe.en the Rajasthan State Govemment and IL & FS, it is clear beyond any doubt that the threshold qualification criteria required to be satisfied by the appellant KDG E Enterprises (the lead Member of KGK Consortium) stood more than adequately made out when KGK Enterpris.es satisfied the technical requirement and the financial requirements required under the request for proposal. It is pertinent to point out that KGK Enterprises satisfied the substantive provision of the pre- F qualification violation criteria (namely the technical and financial capabilities). In other words, the technical and financial bids were yet to be opened and the criteria that was -satisfied by KGK Enterprises was only threshold preliminary criteria at the pre-qualification evaluation stage. A further perusal of this report G makes it apparent that PDCOR has observed that the tender submitted by KGK Consortium through KGK Enterprises, the lead bidder was a partnership firm, therefore, the argument of the respondent that there was concealment with respect to H

834 . SUPREME COURT REPORTS [2014]' 11 S.C.R. • A material fact does not stand and is for this reason unsustainable.

93Copy pinpoint93. PDCOR as a part of its evaluation [eport and other correspondence recommended that apart from the other two bidders who had satisfied the pre-qualification evaluation 8 criteria, even KGK Consortium should be permitted for being , considered and the technical evaluation phase as KG!( Consortium satisfied the substantive conditions at the -pre- qualification evaluation stage. PDCOR in its recommendation further opined that condition of KGK enterprises at the subsequent stage would promote competition amongst the bidders and, therefore, be in public interest. The intent of the RFP according to the PDCOR was never to exclude any bona fide legal entity that may consider putting its bid subject to it satisfying the other threshold criteria as already stated hereinbefore.

· 94. It is pertinent to menlion again that the above recommendations were transparent, !Jona fide and were put for approval before the Government of Rajasthan for considering the recommendations o.f PDCOR. The Government of Rajasthan after due deliberation permitted KGK Enterprises to be consider!:td for technical evaluation.

95Copy pinpoint95. 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. H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 835

96Copy pinpoint96. Thereafter, on 30.9.2004, the Government of Rajasthan A issued a letter of intent to KGK Enterprises (lead Member of KGK Consortium) for award of the project. The final decision in the decision making process that culminated in the execution of the lease and license agreement was taken by the Chief Minister on 27.10.2005 whereby it was approved that the execution of the lease and license agreements be entered into by the State Government with the highest bidder M/s. Jal Mahal Resorts Pvt. Ltd. a Special P.urpose Vehicle Company of KGK Consortium.

97Copy pinpoint97. 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 area around the Jal Mahal and, therefore, no fault can be found in regard to the decision even if certain procedural relaxations were granted for approving ihe project. E In sum and substance, it was submitted that in so far as the relaxation granted in concerned, the action of the State Government was bona fide approved by the previous and subsequent government of Rajasthan which was bona flde and cannot be called unfair or illegal in any manner. F

98Copy pinpoint98. In s·upport of the submission, the learned counsel for the appellant has cited several authorities of this Court inter alia being BSN Joshi & Sons vs. Nair Coal Services Ltd. & Ors. (2006) 11 SCC 548 and the relevant portion at 571 para 66 G (v) and (vii) states as follows:

"(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially H

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

• A complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;

(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial 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 w'aivirig technical compliance with a tender condition. ,

99Copy pinpoint99. 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 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.

100Copy pinpoint100. 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

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] towards restoring and developing the largest water body in 837

A Jaipur (that was lying disused the sewage, filth, stench and effluent) into an attractive public interest destination with a pleasing environmental ambience for attracting tourists from all over the world. B The figures and conclusions in the impugned order itself indicate the enormous difficulty and repetitive failures of the State Government to either implement the restoration itself or to get any private entity to do so over a period of approx. 20 years from 1984 to year 2003. Indeed, the attempts immediately preceding the present tender from year 2000 to C 2002 have also admittedly failed.

Had the figures found in the impugned order or the conclusion of the impugned order that the Project proposal constituted a squandering of State largesse had been correct, D applicants would have been falling over themselves to bid for the Project not only in the present tender but also in the preceding unsuccessful attempts. Even in the present case, despite the attendance of as many as 20 major participants (including corporate names like Oberoi, Taj, Ansal, Neemrama E to mention a few) who admittedly attended the pre-bid meeting, no one except the SLP petitioner/appellant and three other ultimately came forward. Obviously, the proposal was ex-facie not an attractive one for potential investors, and the inescapable conclusion is that all attempts to restore the Lake and develop F the area as a tourism hub had failed when the SLP Petitioner/ appellant was nowhere in the picture.

101Copy pinpoint101. We have further taken note of the reasons for the clear reluctance of potential investors which have been stated as follows: G

The pre-existing state of the entire area of approx. 310 acres of Lake and more than 100 acres of land seemed physically irreparable which has been demonstrated by the photographs submitted [V/X]. There was no water body; H

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

the s.o called Lake consisted of an empty large hollow filled • with sewerage stench, filth and huge sedimentation; two major nallas of the city were emptying all their sewerage and effluents in to the lake; the monument was completely dilapidated, over growth of shrubbery, and not visited by any one for decades; the nearby land was barren, filled with mud and dirt and therefore not in i.Jse.

The impugned order further appears to have ignored that the whole structure of the tender was conceptually different and had been thus in all previous attempts failed as (i) it sought huge 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) 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 F FAR permitted is 2 while the FAR permitted for the SLP Petitioner's Project is only 0.1362. (vi) No structure in the entire project could exceed ttie height of 9 meters and also could not exceed more than a total of two floors viz. ground and first. (vii) Almost 12 acres of land would be devoted to a handicrafts 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 of restoration and development costs but also

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN.SUDHA MISRA, J.] 839

construction of infrastructure, and the footfalls would increase only over time after the Project has fully established its credentials. {ix) In a nutshell, therefore, huge investments-sure, certain and un-avoidable were front ended; possible returns- unsure and uncertain were back ended. {x) All the forgoing admitted points have been completely ignored in the impugned 8 order, or not noticed or cursorily mentioned and not decided, and in any event not given adequate probative weight. {xi) Equally ignored has been the very raison-d-etre of the Project actuated by the fundamental object by the State Government to restore heritage site and to create a sustainable and C pleasing environmental ambience. The lease rent model, increasing as time goes on had always been the consistent approach of the State since 1999 when restoration was first envisaged. It is inconceivable that this model could be created to assist or benefit the bidder like the SLP Petitione( who came in to the picture for the first time only in year 2003. D

102Copy pinpoint102. 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 G Allocation (2012) 10 SCC 1 @87 pr. 119, 120-CLC 1/153-244 @ 206; {ii) Sachidanand Pandey V. State ofWest Bengal (1987) 2 sec 295@ 314 p. 19,@ 264 pr. 35.,@ 266 pr. 39, @ 266-67 pr. 40-41, 43; (ii) M.P. Oil Extraction vs. State of M.P. H

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

(1997) 7 sec 592@ 612-613 pr 45- CLC 1/271-285@ 284; • (iv) Kasturi Lal Lakshmi Reddy v. State of Jammu Kashmir (1980 4 sec 1 @ 13 pr. 14 - CLC 11286-300@ 294].

103Copy pinpoint103. In fact, we have noted that there was not one but repeated attempts at tendering'which had failed. While the 8 earlier attempts failed, the present tender open to the whole world, shrunk from 20 parties to9 parties and then to only 4 parties at the time of submission of bids (whereby the SLP petitioner succeeded on merits). If the project value correctly involved 4 and 5 crore figures mentioned in the impugned C order, it is inconceivable and inexplicable as to how and why neither the 20 nor the 9 nor the 3 ultimate bidders apart from the SLP Petitioner offered a maximum figure of Rs. 2.52 crores only. The bidding process was open and transparent considering tourism development. D

104Copy pinpoint104. We have taken note of the factual submission that the reserve figure of lease rental expected by the. State had been fixed at Rs. 1 crore in the RFP (Vol 3/55.1 @ CL 3.2]. This was not merely an adhoc magical figure plucked out from the air but arrived at after repeated transparent evaluation by expert committees and proclaimed openly to the whole world. There is not even an allegation of surreptitious or ex-parte dealing at the stage of conceiving and designing the tender or stipulating its multiple parameters. This minimum rent had been determined with the objective of providing a rate of return of 20-22% per annum from the Project to the private sector developer. Such a rate of return was considered a reasonable return for a long term capital asset which at the erid of the lease would have no terminal value for the developer, as it would require to be transferred back to RTDC who is acting on behalf of R2 [PDCOR-R6 WS in HC(B pr ·6). Thus, it is evident that sufficient economic diligence were used before issuing the RFP and subsequently accepting KGK Consortium's highest financial bid. In conclusion, therefore, it had to be held that there was no mala fide in the decision making process and the H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] finding given by the High Court, cannot be sustained and hence 841

A deserves to be set aside.

105Copy pinpoint105. On a careful analysis of the submissions of the contesting parties in the light of the materials referred to before the High Court as also this Court, we further cannot overlook the historical background and the sequence of events which led to the culmination of the project for which a lease deed was executed on 22.11.2005 and 5 to 6 years thereafter the respondents herein filed three public interest litigations which clearly fails the test of utmost good faith. It needs to be recollected from the sequence of events and the historical background related herein before that the Jal Mahal Tourism Infrastructure Project was conceived and approval was given by the Standing Committee on Infrastructure Development (for short 'SCI D') 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 JOA was made the sponsoring department for the lake side development component in the meeting of Board of Infrastructural Development and Investment Promotion (BIOi) held on 23.08.2002 and 3.9.2002. After approval, an expenditure sanction was granted by the MoEF, for the Lake Restoration F Component but MoEF had clearly granted approval to the lake side development component of Mansagar Lake. It is no doubt urged on behalf of the respondent-PIL petitioner and taken note of by the High Court that the National Lake Conservation Plan did not contemplate any commercial venture upon the lake to G be restored under the plan. But it cannot be overlooked that the State Government had full authority to carve out a plan for development of lake and the lake area considering the fact that way back in 1962 the lake glory as a pristine water body lasted only until the former rulers ha!l their control over the city and H

A 842 · SUPREME COURT REPORTS [2014] 11 S.C.R.

unpleasant history of lake began when the new administration • · of Jaipur diverted walled city sewage in 1962 through two main waste water drains namely Brahmapuri and Nagtalai. It is borne out from the factual history of the lake that most notorious aquatic weed water hyacinth entered into lake in 1975 and the B water fall foul population started affecting the resident and migratory species. It is in this background that the Government of Rajasthan submitted project for restoration of Mansagar Lake to the Central Government. Thereafter, Jal Mahal Tourism Infrastructure was conceived and approved by the Standing c Committee on Infrastructure Development in its meeting held on 21.12.1999 and initially Jaipur Municipal Corporation was to own the project. The bids were invited in the year without identification of the land to be used and without studies with regard to the Environment Impact Assessment. Hence, the bid process was scrapped and the Jaipur Development Authority 0 was made sponsoring department for the lake side development component in the meeting of Board of Infrastructure Development and Investment Promotion (for short 'BIOi) held on 23.8.2002 and 3.9.2002. Hence the Project Development Corporation of Rajasthan (for short 'PDCOR') got a detailed E project report prepared which contemplated the following components: 1

(1) Restoration of Mansagar Lake;

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

(3) Development of Tourism/Recreational components at the lake. precincts. I

106Copy pinpoint106. Thereafter, in the meeting of BIOi held on 9.08.2003, G it was decided that nodal agency for the Jal Mahal Tourism Project will be Tourism Department of Government of Rajasthan instead of JOA. Thereafter, the tourism department assigned the responsibility to the Rajasthari Tourism. Development Corporation (for short 'RTDC') vide order dated 6.9.2003. The H last date for submission of deed was 5.9.2003. The petitioner

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 843

on the other hand and also the Attorney General clarified that the need to issue office memorandum dated 24.5.2011 was felt because OM dated 28.4.2011 in broad terms provided that category projects that fell within 10 KM of notified critically polluted areas would be treated as category 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.

107Copy pinpoint107. 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. D

108Copy pinpoint108. We have further taken note of the arguments advanced by the Ld. Attorney General who had submitted that the High Court has not taken into account the steps that were taken in the project since 1998 onwards. The Ld. Attorney General representing the State had relied on a comprehensive E list of dates beginning from 1984 onwards discussed hereinbefore to show the step by step decision taken before the project was awarded to the KGK Consortium including the Jaipur Master Plan of 2011. ["

109Copy pinpoint109. It may further be noted that the argument advanced by the counsel for the respondent PIL Petitioner that 100 acres land lease to the petitioner was part of the lakebed, does not get supported from the revenue entries placed on record or any other material which rnakes it clear and establishes that only 13 bighas 17 blswas is classified as 'gairmumkin ta/ab' G (lakebed) being khasra No. 67 /317 which would be approximately 8.65 acres. However, the balance land that is 100 acres less 8.65 acres is in fact recorded as .'Banjar' in the revenue record and not lakebed. We find sufficient substance in the plea that this Court in the past have placed reliance on H

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

revenue entries to determine the nature of land from which it • follows that based on the revenue entries; no other khasra of land forming part of 100 acres of land leased to the petitioner is lakebed. It may further be noted that as per the petitioners/ appellants 14.15 acres of land is 'banjar' and not lakebed 8 whereas according to the PIL petitioner it is a lakebed/wetland which is contrary to the revenue record.

110Copy pinpoint110. 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 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 submi~ted that if the revenue record for 13 bighas 17. biswas equivalent to 8.65 acres noted as 'gairmumkin ta/ab' lakebed bearing khasra No. 67/317 is relied upon by the Court, then further revenue entries classifying 14.15 acres of land recorded as barren land/banjar also should be accepted, adopting the 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.

111Copy pinpoint111. 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 G view of this 13 bigas and 17 biswas of land equivalent to 8.65 acres which has been classified as 'gairmumkin ta/ab'! bearing khasra no. 67/317 shall not be treated as a part of the lease hold area and the same shall be within the control and

• JAL MAHAL RESORTS P.. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 845

. domain of the Government of Rajasthan which will be free to A reconvert this area into the lake area.

112Copy pinpoint112. In so far as 14.15 acres of land recorded as barre·n land/banjar is concerned, we are pleased to hold that this area shall be treated as a construction free zone and neither party 8 i.e. the State of Rajasthan nor the lessee/appellant herein shall be permitted to raise any construction thereon. We are informed that this area is being used as a public promenade (walk way) for the use of the public which shall be allowed to continue. c

113Copy pinpoint113. In so far as the balance area of land pertaining to the lease deed is concerned, we are pleased to hold that the respondents/PIL petitioners have not been able to lead any iota of evidence or material to prove that this area was at all ·or at any point of time lakebed or wetland. This fact is further proved D · from the historical background of this litigation as it is the case of the appellant/lessee/ the Pl L petitioner which gets reinforced from the record and the detailed project report of the PDCOR indicating that the efforts were being made to develop this land way back from 1984 and in the year 1999 as already noted hereinbefore reflected from the minutes of the third meeting held on 21.12.1999, the Standing Committee on Infrastructure Development (SCIO) agreed that the Jaipur Municipal . Corporation must own the project to develop this land and the bids were invited in the year 2000-01 with regard to the development of the land. However, the same was scrapped and the JDA was made the sponsoring department for the lake side development component in the meeting of the board of infrastructure development and investment promotion held on 23.8.2002 and 3.9.2002. G

114Copy pinpoint114. From the aforesaid history, it gets factually established that this land in any view was available for development atleast way back from 21.12.1999 and no question was ever raised that this was not available for infrastructural development. In fact, we have further noted that in the three H

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

• A Master Plans of Jaipur, 200 acres of land were shown for . infrastructural development for tourism purpose and out of that 100 acres was made a part of the lease deed after extensive research conducted by the Project Development Corporation of Rajasthan which got detailed project report prepared way B back in 2001 when the petitioner/appellant was not even in the picture so as to develop the land. Even if the Ministry of Environment and Forest of the Central Government did not accept the position that it had given clearance for this project, the fact remains that the land was lying within the domain of c the State Government due to which it had full administrative discretion to take a decision in regard to development of the land and it is not that it was done in a huff or hurry without defiberation or study. In fact the -Project Development Corporation (PDCOR) got the detailed project report prepared D way back in 2001 and thereafter in 2003, steps for inviting tender were taken by the PIL petitioners. If at all the bonafide . of the respondent/PIL petitioners were clear, they ought to have assailed the invitation of tender which finally got executed only in the year 2005.

115Copy pinpoint115. 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. H

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 847

116Copy pinpoint116. 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 of separation of powers, reliance at least to some extent to the decisions of t~e State Authorities specially if it based on the opinion of the experts reflected from the project report prepared by the technocrats, accepted by the entire hierarchy of the State administration, acknowledged, accepted and approved by one Government after the other, will have to be given due credence and weightage. In spite of this if the Court chooses to overrule c the correctness of such administrative decision and merits of the view of the entire body including the administrative, technical and financial experts by taking note of hair splitting submissions at the instance of a PIL petitioner without any evidence in support thereof, the PIL petitioners shall have to 0 be put to strict proof and cannot be allowed to function as an . . extraordinary and extra judicial ombudsmen questioning the entire exercise undertaken by an extensive body which include administrators, technocrats and financial experts. In our considered view, this might lead to a friction if not collision among the three organs of the State and would affect the principle of governance ingrained in the theory of separation of powers. In fact, this Court in the matter ofM.P. Oil Extraction v. State of M.P., (1997 7 SCC 592 at page 592) has unequivocally observed that the power of judicial review of the executive and legislative action must be kept within the bounds 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.

117Copy pinpoint117. However, we hasten to add and do not wish to be misunderstood so as to infer that howsoever gross or abusive H

848 SUPREME COURT REPORTS [2014) 11 S.C.R. • A may be an administrative action or a decision which is writ large on a particular activity at the instance of the State or any other authority connected with it, the Court should remain a passive, inactive and a silent spectator. What is sought to be emphasized is that there has to be a boundary line or the B proverbial 'laxman rekha' while examining the correctness of an administrative decision taken by the State or a Central Authority after due deliberation and diligence which do not reflect arbitrariness or illegality in its d~cision and execution. If. such equilibrium in the matter of governance gets disturbed, c development is bound to be slowed down and disturbed specially in an age of econon:iic liberalization wherein global players are also involved as per policy decision.

118Copy pinpoint118. In a matter of the instant nature, where the policy decision was taken way back from 1976 followed by Master D Plans to develop a particular chunk of land by adopting the mode of private/public partnership method and a global tender was floated, obviously the private players were bound to participate specially iii .an age when private partnership is not an anathema. In that view of the matter when a particular policy decision was taken to develop a particular project supported by extensive research and study by the experts in the field who prepared the projeCt report relying. upon the three successive Master Plans of the city of Jaipur.and the global tender was floated for development of land for tourism adjoining the lake area, entertaining PIL petition on the ground that the area in question is a wet land without substantiating the same in any . manner, i.e. neither from the revenue record nor any other material, the pereeption of PIL Petitioners without factual basis cannot be allowed to prevail over the decision of the entire group of experts which was finally accepted by the State Government through the Project Development Report of a State Agency which got the detailed project report (DPR) prepared and nothing could be brought to the notice of the Court that the DPR was not fit to be relied upon or that it was prepared in a H clandestine manner. In our considered view unless the Detailed

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 849

Project Report, Master Plan of Jaipur, Revenue Record A indicating the nature of land that the project was fraught with risk of environmental degradation which could establish with facts & figures that the decision is not .in public interest, interference by the Court adopting an over all view smelling foul play at every level of administration is bound to make the B governance an impossibility. Therefore, the courts although would be justified in questioning a particular decision if illegality or arbitrariness is writ large on a particular venture, excessive probe or restraint on the activity of a State is bound to derail execution of an administrative decision even though the same c might be in pursuance of a policy decision supported by other cogent materials like survey and search by the reliable Expert Agency of a State after which the State Project or private and public partnership project is sought to be given effect to.

119Copy pinpoint119. At this juncture, we take note of two overriding D considerations which combined, narrow the scope of review. The first is that of deference to the views of administrative experts and the other we take assistance from the words of Chief Justice Neely who expressed as follows: E "I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rare cases."

The learned Chief Justice further observed as follows: F . "I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a5000 page record addressing the intricacies of public . utility operation. G

It is not the function of a judge to act as a super board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of H

850 SUPREME COURT REPORTS I [2014] 11 S.C.R. • A the expert may be scrutinized by the non-expert judge~. It was suggested that the alternative for the court is to desist itself from interference on technical matters, where all the.: advantages of expertise lie with the agencies. If the court were to review fully the decision of an expert body such· B as State Board of Medical E~aminers, 'it would find itself· wandering amid the maze of therapeutics or boggling at· ' the mysteries of the pharmacopoeia'."

120Copy pinpoint120. 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. • •

121Copy pinpoint121. 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. In fact we havE;! noted that when the tender was floated for granting the lease deed, the maximum period for the lease deed as per the Rule E could not have been more than 30 years yet the tender was floated for a period of 60' years which was later extended to 99 years. This in our view could not have been done by the State Government as one can infer even at a glance that the same being contrary to the rules, could not have granted it for F a period of 99 years.

122Copy pinpoint122. 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

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] 851

.of the litigation started at the behest of the respondent/PIL A petitioners who questioned the validity of the lease deed executed and finally succeeded in getting it set aside. We are, therefore, of the view that the lease deed which could not be made effective in view of the intervening litigation due to which the Project got delayed, it is legally just and appropriate to direct 8 that the period of 30 years of the lease shall now be counted from the date of this judgment and order.

123Copy pinpoint123. We are further of the view that on or after expiry of 30 years to be counted from the date of this.judgment and order, if for any reason whatsoever the lease deed is not C renewed in favour of the· lessee/appellant or the appellant chooses not to seek its renewal, the appellant shall be adequately compensated for the property and structure which · stands developed at the instance of the appellant during the period when the lease subsisted in its favour. Subsequently, D however, as to what would be the adequate period of lease to be granted in favour of the existing or a new lessee obviously would be determined by the State Government at the relevant time but in so far as the instant lease deed is concerned, the existing period of 99 years shall stand decreased to 30 years E to be counted from the date of judgment and order of this Court.

124Copy pinpoint124. Thus the lease deed although was executed for a ·period of 99 years shall pursuant to this decision, run for a period of 30 years which shall commence from the date of this judgment and order and may be extended by the State F Government for such other period as may be considered legally viable based on the rules and regulations at the relevant period. We further add in the interest of justice, that after expiry of 30 years of lease period and in case the lease deed is not renewed G in favour of the appellant, the State Government shall compensate the appellants at the market value of the project including compensation for the loss of business and profit. It is clarified that in the event of any dispute arising with respect to quantum of compensation, it may be resolved by availing the H

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

• A remedy of arbitration mechanism provided in the lease deed. I .

125Copy pinpoint125. We are informed that the first phase of the Project has been completed since February, 2011. It is therefore directed that the completion certificate and the lease agreement for the first phase be issued expeditiously but not later than a 8 period of 30 days from the date' of receipt of this order. Accordingly, the State Government shall issue the restoration completion certificate for Phase I to enable the Project alongwith the Jal Mahal Monument as per the Lease Deed, to open for entry.and visit of the members of the public. Upon C issuance of the phase-I certificate, the project developer/lessee/ appellant shall be allowed to undertake the construction as per the approved plan in terms of the !lease deed.

126Copy pinpoint126. We further hold that the area of 8.65 acres equivalent D to 13 big has and 17 biswas shall not form part of the lease hold• area as already stated hereinabove and the same shall! st.and re-transferred to the Government of Rajasthan which shall be recarved and added to the lake area and the same shall be maintained by the competent authorities of the State. However, E the area of 14.15 acres equivalent to 22 bighas and 17 biswas althou~h shall be notionally treated as part of the lease deed, the said area shall be treated as a construction free ione which will be allowed to be used as a walkway/ the public promenade free of any charge at the instance of the lessor and the lessee. Remaining portion of the land forming part of the lease deed 1 F shall remain intact to be used by the appellant as per the terms and conditions of the lease deed already executed. However by way of abundant caution, we clarify that Mansagar Lake Restoration Project if undertaken by the State or the Ministry of Environment, the same shall not get affected by virtue of the lease deed in any manner.

127Copy pinpoint127. 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

• JAL MAHAL RESORTS P. LTD. v. K.P. SHARMA [GYAN SUDHA MISRA, J.] biswas equivalent to 22.80 acres, the Wetland Rules of 2010 853

A shall not apply to the project since ·environment clearance had already been issued u~er PIA 2006 prior to commencement of the project. In any view the lease hold area barring the land equivalent to 35 big has and 27 biswas having not been held as wetland or lakebed as per the revenue record as also the B fact that it was available for development way back from 1982 which gets established from the various Master Plans of Jaipur and the historical background referred to hereinbefore, no dispute relating to application of the Wetland Rules 2010 shall be allowed to be raised hereinafter with retrospective effect in c regard to the lease hold area of the land which has been granted for development of the project and could not be proved to be wetland barring 22.80 acres equivalent to 35 bighas and 17 biswas. It is further clear by now that the' project comprising the lease hold land is not in conflict with the development of lake 0 area or Jal Mahal monument so as to raise issues or concern regarding the lake area or environment degradation as restoration and maintenance of Jal Mahal cannot possibly disturb the monument or lead to environmental degradation. In any view, the dispute being confined to the lease hold area for development of the project which we have now resolved, we direct that the appellant/lessee shall be entitled to re-start the project forthwith subject to what we have recorded hereinbefore.

128Copy pinpoint128. 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 ~o be lake bed comprising 14.15 acres shall be notionally treated as part of the lease deed but the same shall remain a construction free zone where neither the State Government of G Rajasthan nor the appellant-lessee/Jal Mahal Resorts Pvt. Ltd. shall have the right to raise any construction on this area as the same shall remain exclusively for the use of public promenade I walkway free of charge. H

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

129Copy pinpoint129. In view of the an~lysis made hereinbefore, these • appeals stand partly allowed to the extent indicated hereinabove but in the circumstance, the parties are directed .to bear their own costs.

B Kalpana K. Tripathy Appeals partly allovied.