2014 INSC 0428
                                    SUPREME COURT OF INDIA

                                        Jal Mahal Resorts P. Ltd.

                                                      Vs.

                                            K.P. Sharma & Ors

                                           C.A.No.4912 of 2014

                              (Gyansudha Misra J. Pinaki Chandra Ghose JJ.)

                                                     25.04 2014

                                                    JUDGMENT

Gyan Sudha Misra, J.

1. Leave granted.

2. These appeals by way of special leave have been preferred against the common
judgment and final order dated 17.5.2012 passed by the High Court of Judicature for
Rajasthan at Jaipur Bench, Jaipur in three public interest litigation petitions filed by the
petitioners K.P. Sharma, Dharohar Bachao Samiti, Rajasthan and Heritage Preservation
Society respectively against the State of Rajasthan and the beneficiary of the project
who was respondent No.7 in the High Court and is now the petitioner/appellant in
Civil Appeal (arising out of SLP(c) No.17701/2012. The three petitions were D.B. Civil
Writ (PIL) Petition No.6039/2011, D.B. Civil Writ (PIL) Petition No.5039/2010 and D.B.
Civil Writ (PIL) Petition No.4860 of 2010 whereby the Division Bench of the High Court
was pleased to cancel an Environment and Monument Improvement/Preservation and
Tourism Development Project at Jaipur by declaring it as illegal which was awarded to
the petitioner/appellant Jal Mahal Resorts Private Limited via global tender floated in 2003
and finally granted in 2005 after all requisite approvals as per the petitioner/appellant
under the Environmental Law including Environment Impact Assessment under the
Environment Protection Act and the Notifications issued thereunder of the Rajasthan
Pollution Control Board. However, in view of the cancellation of the project, the High
Court has directed immediate dismantling and removal of the entire project and diversion
of the two drains which was done to purify waters of a man made artificial water body and
detritus.
3. Other three Special Leave Petition bearing SLP (Civil) Nos.22467/2012, 22820/2012
and 24341/2012 had also been preferred by the State of Rajasthan challenging the
impugned judgment and order of the High Court referred to hereinbefore. But after the
arguments were finally advanced by the learned Attorney General and the same also
stood concluded, permission of this Court was sought by the senior counsel SriJaydeep
Gupta to withdraw these special leave petitions filed by the State of Rajasthan which were
permitted by this Court vide order dated05.02.2014. The petitions preferred by the
State of Rajasthan assailingthe impugned judgment and order thus stand dismissed as
withdrawn. However, Sri Gupta submitted that he can still address the Court on meritin the
connected special leave petitions bearing SLP (Civil) Nos.17701 of2012, 19239/2012 and
19240/2012 preferred by the petitioner/appellant JalMahal Resorts Pvt. Ltd. & Ors. against
the PIL petitioners before the HighCourt since the State of Rajasthan is still a party
respondent in thesematters and hence it can support or oppose the impugned judgment of
theHigh Court in spite of withdrawal of the special leave petition filed by the State
assailing the judgment and order of the High Court. However, atthis juncture we refrain
from expressing further on its implication andwould deal with the same, if necessary, at
the appropriate stage.

4. In so far as the appeals preferred by the appellant-M/s. JalMahal Resorts Private Limited
is concerned, we have noticed that theappeal has been preferred against the common
judgment and order of theHigh Court under challenge herein whereby the writ petitions
which werefiled by the respondents as public interest litigation bearing DB
(CWP)No.6039/2011 entitled Prof. K.P. Sharma vs. State of Rajasthan and Ors asalso DB
(CWP) PIL No. 5039/2010 entitled Dharohar Bachao Samiti Rajasthanvs. State of
Rajasthan and Ors. as also the 3rd writ petition bearing DB(CWP) PIL No. 4860/2010
entitled Heritage Preservation Society Rajasthanand Anr. vs. State of Rajasthan and Ors.
have been allowed by the DivisionBench of the High Court and resultantly the Mansagar
Lake Precincts LeaseAgreement dated 22.11.2005 awarding 100 acres of land on lease
for aperiod of 99 years to the respondent No.7/the appellant herein/ M/s. JalMahal
Resorts Private Limited was declared illegal and void. As aconsequence of the same,
the appellant Jal Mahal Resorts Private Limited has been directed to bear costs to be
incurred in restoration of theoriginal position of 100 acres of land in removing the soil
filled in byit and to restore back the possession of land to the Rajasthan
TourismDevelopment Corporation (`RTDC' for short) which in turn will hand overthe
land to Jaipur Development Authority (`JDA' for short), JaipurMunicipal 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 LakeRestoration Plan in consultation with
the Ministry of Environment andForests (`MoEF' for short) of the Central
Government. The respondentauthorities of the State of Rajasthan have been further
directed tomonitor, maintain and refix boundaries of the Mansagar Lake in its fuloriginal
length, breadth and depth in consultation with the MoEF ofCentral Government and
not to reduce normal water level. Allencroachments made in the attachment area of
the Mansagar Lake have beenordered to be removed immediately and the control erected
by appellantM/s. Jal Mahal Resorts Private Limited into the lake is ordered to
bedismantled and costs have been ordered to be realized from the appellantM/s. Jal Mahal
Resorts Private Limited. All the three writ petitions werethus disposed of by the High
Court.

5. Before we deal with the respective case and counter case of thecontesting parties, it may
be relevant and appropriate to state thebackground of the matter giving rise to these
appeals. The writ petitionswhich have been dealt with by the High Court had been filed
in public interest to quash Jal Mahal Tourism Project and cancel Mansagar
LakePrecincts Lease Agreement dated 22.11.2005 giving 100 acres of land onlease for a
period of 99 years to the respondent No.7. (appellant hereinM/s. Jal Mahal Resorts Private
Limited and Jal Mahal Lease and LicenseAgreement dated 22.11.2005). In Writ Petition
 No. 6039/2011 which wasfiled by Prof. K.P. Sharma prayer had been made to quash
approvalsand clearances contained in the orders dated 16.9.2009 and 22.9.2009 andto
direct the respondent No.7/appellant herein M/s. Jal Mahal ResortsPrivate Limited to
restore the original position of 100 acres of land by removing the soil filled in by it at
its own costs.

6. The appellant M/s. Jal Mahal Resorts Private Limited hasassailed the judgment and
order of the High Court on several grounds tobe related hereinafter. But before doing so it
has related the factual andhistorical background of the matter giving rise to these appeals.
In thiscontext, it has been stated that the Mansagar Lake was a man-made lake onthe
northern fringe of Jaipur city. Within the lake a pleasure pavilioncalled Jal Mahal was
constructed by the erstwhile rulers of Jaipur in the18th century and this structure is still
existing in the midst of the lake. Tracing out the historical background, it has been stated
that in 1962, the two main sewerage drains of the walled city of Jaipur Nagtalaiand
Brahmapuri were diverted to empty into the water body which led toits degeneration,
siltation and settled deposits and contaminations to such an extent that it could not
support aquatic life nor support flora and fauna in the surrounding areas. The water
body was covered withfloating hycinth and its aquatic life and there were large scale death

offish that had earlier survived and led to a drastic reduction in thefauna including the

migratory birds that used to flock in the vicinity of the lake was on the verge of extinction.

About 40% of the catchmentarea which covered approximately 23.5 Sq.Kms was dense

urban population.Towards the south side of the lake, large amounts of

unintendeddevelopments and encroachments had taken place  thereby

drasticallyincreasing the quantity of effluents discharged into the lake and also putother

pressures by unconditional grazing of cattle and urban development.Jal Mahal had also

very substantially deteriorated over a period of timenot only because of natural process of

degeneration but also because ofmaintenance. The monument was in a dilapidated state

and required massiverestoration works.

7. The deteriorating condition of the Lake and the Monumentcompelled the
Government to find ways and means to restore the twocomponents to their original
glory. Over a period of 30 years attemptswere made by various government agencies and
departments to restore theecological and environment condition of the lake and its
adjoining area.However, none of these attempts yielded very positive results because
ofpaucity of resources to take up and sustain the restoration.

8. The Government of Rajasthan, therefore, decided to adopt anincentivized approach to
restore the Lake and the Monument and develop theprecinct area on a public private
partnership format. To improve thecondition of the lake, the State of Rajasthan, in
consultation with expertsand after detailed surveys and analysis, developed a holistic
approachinvolving three components namely (i) restoration of Mansagar Lake,
(ii)restoration of Jal Mahal and (iii) development of tourism/recreationalcomponents at
the lake precincts. Thus, the third component visualizeddevelopment of the precincts area
of the lake which comprised of about100 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 facilitieswhich
would also provide funds for O & M of the lake on a continuous basis The benefits of this
project was that it would result in the restorationof the Mansagar Lake and the Jal Mahal
monument and there would beconsequent development of eco friendly tourism
destinations with large opengreen spaces in the vicinity of the lake which would
improve the environment and resultantly, the aesthetics and visual quality of the area.

9. The Government, therefore, adopted the approach of public-private partnership to the
restoration and development of the precincts inan environmentally conscious way. For

  this purpose, projectconceptualization was chalked out and the project structure
wasconceptualized after detailed studies over a number of years. In the year1999 a Detailed
Feasibility Report ("DFR") was prepared. The DFR coveredarchitectural conservation and
reuse of Jal Mahal; Ecological Restorationof the Lake along with Development of
surrounding areas for integrated tourism development and recreational facilities. Approval
to the DFR was accorded by Jaipur Municipal Corporation in November 2000.

10. As a consequence of the aforesaid conceptualization, process forbidding started which
has been described as First Bid Process by theappellant which started after publication
of the advertisement. Requestfor Qualification ("RFQ") was released in December,
2000.6 firms responded and made submissions for qualification. In the meantime,
Requestfor Proposal ("RFP") document was prepared by the Project Development
Corporation Limited (PDCOR) which is a joint venture company of Government of
Rajasthan and IL&FS and approvals were given by the Government of Rajasthan.
Request for proposal was released and Board of InfrastructureDevelopment & Investment
(BIDI), a high powered committee of the Governmentheaded by the Chief Minister with
an objective to accelerate privateinvestment in industry and related infrastructure, formed
a sub-committeeto decide on fiscal concessions necessary for the project. The
JaipurMunicipal Corporation was made the nodal agency for project purposes.However,
the first bid process failed as despite applying for qualificationno bidder ultimately
participated in the bid.

11. The aforesaid failure led to the appraisal and approval of theproject report by the
Ministry of Environment and Forests. The Governmentof Rajasthan, through Department
of Urban Development, sent proposals toMinistry of Environment and Forest (MoEF),
Government of India, on17.08.2001 seeking funds for Lake Restoration of the said
project underNational Lake Conservation Programme (`NLCP"). MoEF responded
byrequesting that details regarding fund requirement, O&M agency, source ofunding for
O&M along with Detailed Project Report (DPR) comprising ofbankable proposal be
submitted. Hence, On 8th & 9th December, 2001 andthereafter on 26th & 27th January,
2002, the Project Site was studied bythe representatives of MoEF.

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

13. Based on experts recommendation after complete technicalsurveys and
environmental studies of the lake, the area for the project wasidentified and recommended by
renowned consultants LASA (Lea AssociatesSouth Asia Private Limited) as being
ecologically viable. The DPR itselfmentioned that the ecological restoration of the lake
would be carried outon the basis of which it can be sustainable and bankable as required
by MOEF through a Public Private Partnership model.

14. On the basis of commitment of State Government to meet 30%expenditure on
restoration of Mansagar Lake, MoEF, Government of India, approved the DPR in
October, 2001 under the NLCP with 70% amount as grantin aid. MoEF also conveyed
its appreciation on DPR and observed as follows:

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

15. This gave rise to the new bidding process which may be termed as `Second Bid
Process' for which decision was taken in its 9th meeting heldon 10.1.2002, approved
further fiscal concessions necessary for the projectand approved a fresh round of bidding.
The nodal agency for the projectwas changed to Jaipur Development Authority ("JDA")
from earlier agency,Jaipur Municipal Corporation. The bid documents were duly approved
and anadvertisement inviting Expression of Interest ("EoI") was issued forselection of
Private Sector Developer ("PSD") in April, 2003 after the keycommercial terms of the
project and even the draft of the advertisement wasapproved by JDA. The Empowered
Committee of Infrastructure Development("ECID"), a high powered committee headed
by Chief Secretary, formerlyknown as SCID, directed Secretary, UDH to finalize key
commercial terms for selection of PSD. During the first round of bidding the proposed lease
was 60 years in 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 notmandatory.

16. In pursuance to the aforesaid steps, detailed RFP were issuedto interested private parties
which was approved by JDA and released inJuly, 2003. The advertisement inviting RFP
for selection of Private SectorDevelopers ("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 tourismproject was to generate funds for sustained
O&M measures, the Department ofTourism ("DOT") and later Rajasthan Tourism
Development Corporation("RTDC") was made the nodal agency for the project. Four
competitive bidsincluding from the Petitioner were received which were evaluated and
PDCORsubmitted its report to Government of Rajasthan for its approval. TheTechnical
Evaluation Committee constituted for evaluation of bids comprisedof eminent experts like
Padamashree Dr. B.V. Doshi, Architect, Mr. Mohd.Shaheer, Landscape Architect and Mr.
Hemant Murdia, Chief Town Planner,Government of Rajasthan.

17. The petitioner/appellant got the highest marks in technicalevaluation of its bid and
when financial bids were opened the Petitioner'sbid was found to be the highest.
Consequently, ECID in its meeting held on9.2.2004 headed under the Chairmanship of Chief
Secretary decided to grantthe project to the Petitioner. The letter of intent was issued to
thePetitioner on 30.9.2004. On 22.11.2005 after approval from the Governmentof
Rajasthan the Lease in respect of the project land and the License forrestoration and reuse
of Jal Mahal were executed.

18. In terms of the project an area of 100 acres of land towardsthe south of Mansagar Lake
was to be leased out for a period of 99 yearsfor 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 backto the State Government without any compensation payable to the
PrivateSector Developer. In terms of the RFP, it was optional for the PrivateSector
Developer to undertake the restoration and reuse of the Jal MahalMonument. The
Petitioner while making the bid also exercised the optionfor restoration and reuse of the
Jalmahal monument. The Petitioner interms of the license agreement set out to restore the
monument. The RFPestimated the cost of restoration of Jal Mahal at approximately
Rs.1.50crores. In reality the cost of restoration of Jal Mahal worked out toRs.10 crores.
The State Government had also constituted an EmpoweredCommittee to oversee the time
bound restoration of Mansagar Lake and Jal Mahal Monument.

19. The Petitioner's/appellant's in pursuance to the leaseappointed consultants who
did extensive research plan which was gotapproved from the Empowered Committee.
Ultimately the monument was fullyrestored under the supervision of Empowered
Committee upon advice ofrenowned conservation architect Dr. Kulbhusan Jain and other
consultants.

20. The Petitioner/appellant, who had been given the lease of 100acres of land on the
southern shore of Mansagar Lake, after obtaining allnecessary approvals, had completed
Phase-1 of the Project. But the projectsuffered 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
Courtalthough the petitioner had already started executing the project and hadalready spent
an amount of Rs.38 crores besides paying more than 14crores as project development
fees and lease rent to RTDC as per thepetitioner/appellant's case in terms of the lease
deed. In pursuance to the same, the restoration of the Mansagar Lake under the DPR
prepared byPDCOR was to be undertaken by the State Government. The O&M work was to
becarried out from lease rentals received from Private Sector Developer i.e.the Petitioner.
The total amount sanctioned for restoration of the lake bythe Central Government and the
State Government was Rs.24.72 crores. Thisamount proved to be inadequate and the
Government due to further resourcecrunch was not in a position to spend any further
amount. Resultantly, therestoration of the lake, which was the cornerstone of the project,
was indanger. The Petitioner spent over Rs.15 crores on restoration of the lake with the
approval of the Empowered Committee.

21. As a measure of restoration and development of the project,the entire project
implementation had to be done so as to achievesustainable eco preservation and
development. The Petitioner, therefore,acted under the advise and on the
recommendation of experts. Theseactivities were further monitored by the Government of
Rajasthan and itsagencies. The petitioner/appellant stated that for the purpose
ofrestoration, the Petitioner engaged a number of nationally andinternationally
renowned consultants including Mr. Soli J. Arceivala, Ex.Director of NEERI, Dr. Shyam
R. Asolekar from IIT Mumbai, Dr. G.C. Mishrafrom IIT Roorkee, Mr. Jal R. Kapadia
Environment Consultant, Mumbai and Mr.Herald Craft, renowned lake expert from
Germany. Some of these expertshad also worked for restoration of the Hussain Sagar
Lake in Hyderabad.The State Government had also constituted an Empowered Committee
to overseethe time bound restoration of Lake. The work involved realignment of
theNagtalai and Brahmpuri drains so that domestic sewage and waste includingrun-off and
detritus during the monsoons no longer emptied into thecleansed waters as also desilting
of the water body which were essentialcomponents of DPR as approved by MoEF under
NLCP. In order to ensure thatthe ongoing discharge of drainage did not once again pollute
the water, Mr.Herald Craft the German Lake Conservation expert prepared a report
whichsuggested preparing temporary sedimentation/settling tanks near the mouth /discharge
point of the re-aligned drains. The purpose of constructing ofsedimentation tank was to
trap the silt and organic content of the stormwater so that the quality of water in the
whole of water body is notadversely affected. The sedimentation process were also
reviewed by a teamof experts from MoEF which found the system as a viable and
proper solution. It has been further brought to the notice of this Court thatthe project fell
within item 8(a) of Environmental notification dated 14.09.2006 and was also confirmed
by MoEF in its Affidavit in Reply filed to the writ petition and a detailed Environmental
Impact Assessment ("EIA") was carried out by State Level Environment Impact
Assessment Authority ("SEIAA") constituted by MoEF. It is, therefore, stated that all
requisite environmental approvals were obtained.

22. The project thereafter was started and the land leased to thePetitioner, according to the
appellant, was not a part of the water bodyin the first Master Plan 1971-1991 for Jaipur
and an area of 200 acresaround the south side of Jal Mahal was demarcated and reserved
for touristfacilities. The land leased to the Petitioner was a part of this land areareserved for
tourist facilities. The said land continued to be retainedfor tourism and recreational
activities in the subsequent city master plansincluding the master plan of 2011 and 2025.

23. The appellant has further stated that the Man Sagar Lake onits western side is bound
by Jaipur-Amer road. The level of the road is ata contour level of 100 MRL. The ground
floor of the Jal Mahal monumentwithin the lake is at the contour level of 98.2 MRL.
PDCOR, based onintensive studies, found this level as the most appropriate level
takinginto account the fact that the lake was not freshened by natural acquifersbut was
dependent on surface runoff during the monsoons, and to ensure thatground floor of Jal
Mahal was not submerged.

24. However, the contesting respondents herein who were the PILpetitioners before the
High Court, averred that the PIL petitioner Prof.K.P. Sharma is involved in the research
with regard to Man Sagar Lake andhas 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 hereinthat the
Man Sagar Lake and the management thereunder were declaredprotected monuments
but were deleted from the list of protected monumentsin the year 1971. The contesting
respondents have also related thehistory 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 lakeas
a pristine water body lasted until the former rulers had theircontrol over the city and
unpleasant history of lake began when newadministration of Jaipur diverted walled city
sewage in 1962 through twomain waste water drains namely Brahmapuri and Nagtalai.
 The mostnotorious aquatic weed water hyacinth (Eichhornia crassipes) enteredinto
lake in 1975. The petitioner/contesting respondent herein statedthat during the studies
made by the contesting respondent and hiscolleagues, 10 zooplankton Species,
arthropods, fishes and 92 speciesof birds were observed at Mansagar Lake and out of 92,
41 are aquaticand 51 were forest dwellers. The water fowl population included 16
resident and 25 migratory species. It is in this context that it wassubmitted that the Man
Sagar Lake and the monument therein were declared protected monuments but they were
deleted from the list of protected monument in the year 1971.

25. It was further averred by the PIL petitioner in the HighCourt/contesting respondent
herein that the Ministry of Environment andForests (for short `MoEF' ), Government of
India prepared National LakeConservation Plan (for short `NLCP') for restoration,
conservation andmaintenance of urban lakes. The Government of Rajasthan submitted
projectfor restoration of Man Sagar Lake to the Central Government. The totalcost of the
project was estimated to be Rs.24.72 crores, out of which70% was to be provided by the
Government of India while rest was to beborne by the State Government. The
administrative approval and expenditurewas granted by the MoEF vide order dated
5.9.2002 and the order wasrevised by the Mo EF vide dated 23.12.2002. The JDA
implemented the lakerestoration plan under which Sewage Treatment Plant (STP)
near Brahmapuri has been revamped from which treated water is being diverted to lake for
compensating evaporation losses during dry weather. A two step Tertiary Treatment
Plant has also been developed and lake hasbeen cleared from hyacinth plants
completely by the JDA. The JDA has also invested in development of lake front
promenade on Jaipur ­AmerRoad and constructed road along the lake on northern side
which has formeda new water body of about 5 hectares in size for storing hill run
offduring rainy season for wild life which includes Hanuman langur(Semnopithecus
entellus), Black aped Hare (Lepus nigricollos), IndianPorcupines (Hystrix Indica),
Blue bull (Boselalphus tragocamelus),Sambhara (Cervus unicolor), Common Mangoose
(Herpestes edwardsii), Jackals(Canis aureus), Striped Hyaena (Hyaena hyciena) and
panther (Pantheraleo). The JDA has also funded Rs. 10 million to the State
ForestDepartment for improving lake catchments area falling in the Nagargarhhill area
(Arawali Range) which is the only natural watershed. The lakeis surrounded almost from
three sides by Arawali Hill Ranges. The hillsare either part of Nahargarh Wildlife
Sanctuary or Reserved Forest Rangesknown as Amer Block 54 and Amargarh Block 92.
The petitioner/respondentherein and his team was working in executing a JDA sponsored
project on bank stabilization of the lake since May, 2005. 35 species of tree and 28varieties
of shrubs were planted. Besides improving landscape, the plantspecies provide shelter and
food to the local fauna and migratory birdsmay also be benefited. Similar plantation was
also done on three islands.

26.The PIL petitioner/respondent herein had further averred thatJal Mahal Tourism
Infrastructure Project was conceived and approval wasgiven by the Standing Committee
on Infrastructure Development (for short`SCID') in its 3rd meeting held on 21.12.1999.
Resolution has also been filed in which it was stated that Jaipur Municipal Corporation
must own the project. The bids were invited in the year 2001-01 without
identification of the land to be used and without studies with regard toenvironment impact
assessment. The bid process was scrapped and JDA wasmade sponsoring department for
the lake side development component in themeeting of Board of Infrastructure
Development and Investment Promotion(for short `the BIDI') held on 23.8.2002 and
3.9.2002.

27. It was contended on behalf of the petitioner that MoEFgranted administrative
approval and expenditure sanctioned only for thelake restoration components and there
was absolutely no consideration bythe 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 Lake Conservation Plan did not contemplate any such commercialventure upon
the lakes to be restored under the plan which according tothe PDCOR contemplated the
following three components as already referredto hereinbefore but for facility of
reference it may be reiterated that three components were as follows:-

    (1) Restoration of Mansagar Lake;

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

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

28. It was further submitted by the petitioner/contestingrespondent herein that in the
meeting of BIDI held on 5.8.2003, it wasdecided that nodal agency for the Jal Mahal
Tourism Project will beTourism 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 has
been submitted that although biding was started, no survey of the actual site and
demarcation of 100 acres area on the lake was made and even environment impact
assessment was not carried out before planning the project. It was further submitted
that in the advertisement last date for submission of the bid was 5.9.2003 and itwas
necessary under the terms of the bid that only private limited company or public
limited company could have submitted tender. It was necessary that lead Manager should
be private or public limited company. The offer was submitted by KGK Enterprises,
partnership firm and itsHUF Manager. Thus was not fulfilling eligibility qualification
provided under the terms notifying tender.

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

30. The contesting respondent No.7 who was the PIL petitioner has further stated that
during the bidding it was made clear that nocommercial activity would be permitted
within the precincts of Jal MahalComplex, but even before agreements were executed, the
successful biddernot only sought exemption from commercial activity within
theprecincts of Jal Mahal Complex but also sought revision of the projectproposal and
for maintenance of lake, water level at the cost of theGovernment vide letter dated
13.7.2004. The contesting respondent/PILpetitioner had also submitted that out of 100
acres of land, 14.15acres of land was submerged in water which has also been leased out.

31. Mr. Aruneshwar Gupta on behalf of the PIL petitioner/contestingrespondent No.7
further averred that Master Plan of Jaipur 2011 did notpermit such activities at the site. It
was also stated that 100 acres ofland was part of the lake bed itself, out of which 14.15
acres of landwas submerged in the water. The area was sensitive for eco system
andthus environment impact assessment was required to be carried out beforany such
project was prepared but the same was not done. It was stillfurther stated that 100 acres
of land beyond the spread of lakebed wasnot available on the site and it was further
submitted that wall ofsufficient height has been constructed for setting apart the
proposed 100acres of land from the lakebed and the soil from the lake bed itselfwas
actually used for this purpose. It was alleged by the PIL petitionerthat the appellant herein
 Jal Mahal Resorts Private Limited startedconstructing high walls of mud and soil in the
eastern part of the lakebed near sluice gates and a large area around it for the purpose
ofpreparing sedimentation tanks in the lake bed itself. The project peoplevisit land most
frequently disturbing birds on the island and theconnection of island with mainland has
also led to entry of dogs on theisland which feed on the eggs of birds and thus, basic
objective of islandto provide habit/breeding ground for resident and migratory birds is
forfeited.

32. It was further contended by the petitioner before the HighCourt that one third of
the lake was converted into a series ofsedimentation tanks made in the down stream of
the lake by respondentNo.7 and now all dirt with floating objects enter into sedimentation
tanksmade in the lake bed. Thus, the entire lake has been converted into aseries of small
tanks followed by a large tank i.e. lake. This hasadversely affected aesthetic value of
the Mansagar Lake. Prior to theconstruction 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 andthere will be
no flushing out of salts from the lake. The build of saltswill convert fresh water lake into
a saline lake which will alter its flora and fauna. It was further submitted before the
High Court that the appellant herein was not at all concerned with the construction of
storm water management plant that too in the lake bed itself and it has been carried out
without any requisites sanction and study by any of the concerned authority otherwise such
a large area of the lake could not have been allowed to be sacrificed for such purpose. As
per the monitoringdone by the PIL petitioner/contesting respondent, the chloride content
inthe Mansagar Lake has been increased and salt in water has gone high.The sudden
increase in the chloride content of the lake is attributedto 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
willsignificantly be dropped. The PIL petitioner further submitted that theunique feature
of the area is an endemic species, namely, Plum HeadedParakeet found in the protected
forest in Arawali and the project wouldbe dangerous to the species. Due to
settling/sedimentation tanks inthe lake bed itself, silt/filth which was to be avoided
 afterrestoration of the lake, is willfully invited and drained into the lakeitself which has
increased salinity of the water also. The PIL petitioner had further submitted before
the High Court that therevision had destroyed the very substratum of the project
which wasearlier conceived . The whole project after completion was to be put inuse by
2010, but the appellant has not done anything except fillingand compacting the 100
acres of land in the lake bed itself by excavatingthe soil from the lake basin. Though only
13% of the land was to beused for construction activities of the private sector
developer andwould be of restricted entry and rest 87% was to remain in the form ofopen
space, parks, gardens and unrestricted public entry spaces, but inthe name of commercial
viability and loosely drafted clauses of the biddocuments and contracts, complete revision
of the plan has been sought bythe appellant after declaration as successful bidder. It was
furthersubmitted that the committee under the Chairmanship of the Chief Secretaryof the
Government of Rajasthan considered the Revised Master Plan andrejected the changes
on 10.10.2007. However, another representation wassubmitted by the appellant
herein/respondent No.7 in the High Court and on10.9.2009 sanction was granted by the
Committee.

33. The PIL petitioner also raised a grievance that Environment Impact Assessment was
not carried out by the finalization of the project or execution of the lease agreement
and even environment clearance from MoEF , Central Government was not obtained as
required under EIA Notification dated 27.1.1994. The Central Government had issued
a fresh Notification on 14.9.2006 in exercise of power conferred under Section 3 of the
Environment Protection Act, 1986 (shortly referred to as `the act of 1986') and rules
framed there under 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 absolutelyillegal and void. The PIL petitioner further
contended that theenvironment clearance as required under notification dated
14.9.2006had not been obtained nor any compliance of Wetlands (Conservation
andManagement ) Rules 2010 had been made so far. The PIL petitioner hadraised a
grievance that it is a case of siphoning off valuable publicproperty 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
perrules it was necessary for the respondent-authorities to realize thesale price and
additionally lessee was required to pay annual lease moneyalso. The market price used
to be much higher than DLC rates,especially due to location being picturesque and
ecologically rich. Ifsuch land is sold for commercial purposes for constructing five
starhotels, resorts, luxury villas etc. such land carries invaluableimportance.
According to the PIL petitioner/contesting respondent hereinthe value of such land cannot
be said to be less than 3,500/- crores.It was, therefore, submitted that the State
Government had handed overvaluable natural resources of water surrounded by natural
beauty ofhills and forests, full of wildlife and other natural resourcesmaintaining
environmental and ecological balance of the city to aprivate entrepreneur society for
economic exploitation at the cost ofthe public. The revision of the Master Plan
completely converts thetourism project into privately owned township upon 100 acres of
land which has been let out for a petty sum by the Government.

34. In so far as writ petition no. 5039/2010 Dharohar BachaoSamiti vs. State of
Rajasthan and Ors. and writ petition No. 4860/2010Heritage Preservation Society
Rajasthan and Anr. vs. State of Rajasthan &Ors. are concerned, have also substantially
urged the sacrifice ofpublic interest on account of the lease granted in favour of
theappellant and as such to establish sacrifice of public interest as pertheir perspective
which have been related in the impugned judgment andorder.

35. Contesting the PIL petition before the High Court, the respondent State of
Rajasthan and its functionaries/authorities hadsubmitted that Master Development Plan
1976 to 1991 of Jaipur citycontained provisions of various facilities on south and west
side of JalMahal Lake on 200 acres. It was submitted that the erstwhile
UrbanImprovement Trust Jaipur had proposed a scheme in respect of 520 acresland
which was published in the gazette on 31.7.1975. The JaipurDevelopment Authority
Act 1982 (for short `JDA Act 1982') came into forceand Urban Improvement Trust was
replaced by the JDA. A notification underSection 39 of the JDA Act was issued by the
JDA on 30.6.1987. However,development of Jal Mahal area could not materialize .
The JDA then decided to undertake the exercise for development of integrated tourism
infrastructure development for Jal Mahal and required Project Development Company of
Rajasthan (PDCOR) to prepare project on commercial format for private public
participation. The preliminary approval was given bythe Standing Committee on
Infrastructure Development ( for short `SCID') in December 1999. It was stated that the
bids were notified in theyear 2000 but no entrepreneur came forward in the bidding
process and thus the tender process was scrapped. Thereafter, the JDA was appointedas
nodal agency to undertake the bidding process. Global tenders areinvited on 25.4.2003
and in pursuance thereof 9 entrepreneur showedinterest. It was mentioned in the
advertisement that 100 acres of landwould be leased out for 99 years. A pre bid
meeting was held on24.8.2003 for removal of doubts. The Department of Tourism on
6.9.2003transferred 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 outthat the respondent M/s. KGK Enterprises
 was a partnership concern whereas the criteria for bidder was that it has to be
private/public limited company and thus final view of the Government was sought in
respect of qualification/disqualification of M/s. KGK Enterprises in thenext phase of
evaluation bid. Later on, 14.11.2004, KGK Enterprisesformed private limited company
in the name and style of "Jal Mahal Resorts Pvt. Limited". The PDCOR suggested
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
on21.10.2003 and financial bid was opened on 3.12.2003. The RTDC recommendedthe
award of project to the highest bidder namely KGK Enterprises andaccordingly the
Commissioner, Tourism vide noting dated 19.2.2004 put thematter before the State
Government for issuing a letter of intent andsigning the lease agreement in favour of the
successful bidder. This wasforwarded by Secretary, Tourism to Minister Incharge
Tourism (ChiefMinister), who approved the minutes of the Empowered Committee
onInfrastructure Development (ECID) and directed to put up the draft leaseagreement
early. On 9.5.2005 the Collector intimated that 100 acres ofland has been mutated in
favuor of RTDC. The approval of lease agreementand license agreement and authorizing
of Managing Director of RTDC tosign the agreement was granted finally by the
Chief Minister on27.10.2005. On 29.10.2005, the RTDC authorized the Managing
Director to sign Jal Mahal Lease Agreement on behalf of Government of
Rajasthanwith Jal Mahal Resorts Pvt. Ltd. and accordingly lease agreement wasexecuted
on 22.11.2005. The Central Government , MoEF recorded itsappreciation for the
project vide letter dated 13.9.2002 and 1.12.2009.

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

1. Restaurant;

2. Traditional Technological Park

3. Club Resort

4. Amusement Park

5. Heritage Village

6. Light and Sound Show land

7. Recreational Centre.

It was further stated by the respondent State of Rajasthan before the High Court that there
will be no damage to the wild life or reserve forest orbirds and it is for the respondent
No.7 Jal Mahal Resorts Pvt.Ltd./appellant herein to obtain clearance as per requirement
of law. Thesedimentation tank covers 5% of the area of lake. It was also statedthat the
Wetland Rules are not applicable and they are made applicable toSambhar Lake and Keola
Deo Lake in Rajasthan. It was still further addedthat the land leased out does not fall
within the definition of Section2(1) (g) and Section 3. The consent had been given under
the Water Act bythe Rajasthan Pollution Control Board on 20.5.2010. It was further
addedthat for the last 3 decades , the State Government had been making efforts for
restoration of Jal Mahal, Man Sagar Lake and the Area around lakeand desilting has not
caused any ecological damage.

37. In so far as the stand of Jaipur Development Authority isconcerned, on its turn
submitted that for development of Jal MahalTourism Project land of private unit was
acquired, certain land wassawaichak (government land) and land of public works
department, land ofthree villages namely , Vijay Mahal, Bansbadanpura and Kasba Amer
 wasincluded, 178 bighas 9 biswas was in private tenancy, 475 bighas 9 biswaswas
sawaichuk (government land ) , 25 bighas 4 biswas was of PWD, 133bighas 15 biswas
was of Municipal Council , 19 bighas 10 biswas was offorest department. Thus in total
832 bighas 01 biswas was mentioned inthe letter dated 7.6.1982 written by UIT to the
Deputy Secretary UDH.When JDA was formed the area of Jal Mahal Project stood
transferred to theJDA by virtue of JDA Act and the JDA vide letter dated 5.10.1983
requested the Government to acquire land admeasuring 832 bighas 4 biswas whichwasin
the tenancy of private persons. The JDA sent a proposal on25.2.21988 to the UDH
for publication under Section 4 of the Land Acquisition Act, the report under Section 5A
was submitted by the Land Acquisition Officer to the Government for acquisition of
land for JalMahal Reclamation Project ands the same was accepted and land award
waspassed on 17.4.1996. It was further explained that a part of landhowever falling in
the area known as Karbala measuring 46 bigha wasdecided not to be acquired. On
31.3.1999 BIDI was formed to takedecisions to accelerate growth of investment and
industrial developmentin the State of Rajasthan. Thereafter, the decisions were taken details
ofwhich have been given in the return. On 10.0.2009, approval of revisedlayout plan was
granted by the Committee chaired by the Chief Secretary.Lease amount had to be enhanced
by 10% every time after a period of 3years. It was therefore submitted that JDA having
considering the natureof investment, lease of 99 years was justified. It was also admitted
thatout of 100 acres of leased area 13 bighas 17 biswas of land is recorded as `gairmumkin
talab' in khasra No.67/317.

38. In so far as the reply of the lessee/respondent No.7 and8/appellants herein/Jal Mahal
Resorts Pvt. Ltd. and KGK Consortium isconcerned, it had submitted in their reply to the
writ petition before theHigh Court that the State Government promoted the concept of
privatepublic 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 ofMansagar Lake. The bid submitted by M/s. KGK Enterprises in 2003
wasfound to be the highest and hence the then Chief Minister had approvedthe decision
of giving project to the highest bidder KGK Enterprises on 27.2.2004 and thereafter letter
of intent was issued on 30.9.2004 afterwhich lease agreement was executed on
22.11.2005 on which the appellanthas already spent amount of Rs.70 crores while
executing part I of the project.

39. The appellant herein had also submitted that the publicinterest petition was not
bona fide rather amounted to abuse of theprocess of the court and they have been filed
 with gross delay and laches.
40. Responding to writ petition No. 4860/2010 which PIL was filedby Dr. Ved Prakash
Sharma in the High Court also, was contested by theappellant herein and it was
submitted that Dr. V.P. Sharma appears tohave obtained registration on 19.3.2010
mainly for the purpose ofapproaching this Court in PIL. It was also urged that Prof.
K.P. Sharmain W.P. No. 6039/2011 is not a recognized authority or lake functionariesor
expert in lake management, irrigation, environment protection and there has been
orchestrated campaign through vernacular newspaper for reasonsbest known to the
correspondent and the newspaper itself. The said newspaper runs the Janmangal Trust
on behalf of the Irrigation Departmentand the said trust also carries out commercial
activities to generaterevenue for upkeep of the dam. It was further added that in 1992
thenewspaper group wanted to utilizes the Jal Mahal Complex and the land bwhich is
part of Jal Mahal Tourism Project for its own benefit andcommercial use free of cost/at
a paltry sum and having failed to grab theland , hostile campaign had been started against
the project and more than200 misleading articles had been published in the newspaper
attemptingto hold a media trial in the matter. The appellant herein further stated that
the PIL petitioner Prof. K.P. Sharma respondent No.6 in theappeal has not come up with
clean hands and concealed the materialfacts that on the complaint filed by him before
PIL cell of the SupremeCourt, no cognizance was taken and the file was closed. The
writpetitions which were filed were barred by res judicata inasmuch as writpetition No.
1008/11 Ram Prasad Sharma vs. State of Rajasthan wasdismissed by the High Court as
withdrawn by order dated 15.2.2011 withoutliberty to file a fresh writ petition. It was
also submitted that theinterference in contractual matter is not permissible specially when
JalMahal Tourism Project is in larger public interest as it has to undertake restoration of
Mansagar Lake. It was still further added that there wasencroachment of about 50-60 acres
of land, decision had been taken by theexpert body, bids were invited by global tender
and the appellanthaving been found the highest bidder was rightly considered,
leaseagreement and leave and license agreement are valid, possession of theland was
rightly handed over to them; nursery has been set up over thisland which has numerous
varieties of plants and they have also introducedseveral varieties of aquatic vegetation in
the Mansagar Lake to attractmigratory 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 environmentimpact
assessment granted permission and consent has also been granted bythe Rajasthan Pollution
Control Board in 2009-10, capacity of water in thelake has not been reduced; sedimentation
basin has been constructed asper expert advice. The appellant further had stated that
they had spentabout Rs. 15 crores on lake restoration which was not
theirresponsibilities under lease agreement and they have also spent Rs.10crores on
restoration of Jal Mahal Monument voluntarily thoughobligation was limited to Rs.
1.5 crores only. Hence, there cannot be any interference by this Court with the opinion
of the expert.

41. It was still further added that Jal Mahal monument is not aplace of worship for both
Hindu or Muslim or either of them and there isno document showing that it has been
permitted to be used as a placeof worship. It was stated that Jal Mahal monument was
 a pleasure pavilion used for hunting ducks and other similar pleasure activities bythe
kings, opinion of legal consultant of JDA was not correct. Issueof identity of
director/owner of the company constituting the consortium is not relevant in any manner
whatsoever to the project for restoration of Mansagar Lake. Jal Mahal Monument and
Development of precinct area , bid was submitted by KGK Consortium comprising of
six private limited companies, one HUF and partnership firm namely, M/s. KGK
Enterprises who was lead bidder of the KGK Consortium. It was stated that it
ismandatory under the tender document that in case of consortium bid,successful bidder
has to form special purpose vehicle (limited company)and lease would be executed with
such SPV, in the pre-qualificationround the bidder should have satisfied any two of the
three eligibility criteria for meeting the financial capability :

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

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

3. Net cash accruals not less than Rs .50 million (US $ 1 million) as per the latest audited
financial statement. Relying on these credentials, it was stated that M/s. KGK
Consortiumsatisfied the aforesaid technical financial criteria. However, its leadsmember
M/s. KGK Enterprises was a partnership firm and as the KGKEnterprises met all the
requirements in respect of technical, financial ,shareholding and lock in periods as given
in RPF, deviation from the RPFwhich mandated that the lead firm must be a
public/private company waspermitted and KGK Enterprises was allowed to compete so
as to ensureadequate competition. Factual details are further added stating that KGK
Enterprises acquired 83 marks while the next highest 82 marks weresecured by M/s.
J.M. Projects Pvt. Ltd. and both were considered eligiblefor opening of their financial
bids, bid of KGK Enterprises beinghighest was accepted. Under the lease agreement ,
the Jal Mahal ResortsPvt. Ltd. has a right of development of 100 acres of project land
andno proprietary right over the management has been given. License for therestoration of
the Jal Mahal monument does not confer any right on JalMahal Resorts Pvt. Ltd. except
to ferry passengers for a minor chargeand it has not been authorized to use the Jal Mahal
monument commerciallyand the monument remains within the possession and use of
the StateGovernment. Out of 100 acres of land, 87% area is to be maintained asgreen
area and in PIL terms and conditions of the contract cannot bequestioned after several
years. The appellant further stated that onrestoration 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 interpretation. Therewas
temporary road constructed by the licensee for easy access for the

purpose of restoration of Jal Mahal monument which is situated otherwisein Mansagar
Lake surrounded by water and the said road has been dismantled and no material is
left to compromise the filling capacity oflake. JDA has approved detailed building plans
for the project on 13.7.2010. The Jal Mahal Resorts Pvt. Ltd. diverted the sewage
nallahsaway from the Mansagar Lake with the approval of the State Govermment ,lake
has been cleansed substantially, BOD of the water in Mansagar Lakehas been reduced
substantially after commencement of the work, creation ofsedimentation basin has not
decreased the water capacity of MansagarLake 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 anotherand it is
wholly temporary reversible in nature and the soil can beleveled when arrangements are
in place to ensure that the storm waterdrains do not discharge silt and organic load
into the lake duringmonsoon, land in question is not covered under the provision of the
tenancyact and the lake is with the State Government , which will continue toremain so.
It has however been added the responsibility of lakemaintenance is purely of the
JDA and Jal Mahal monument has beendenotified in 1971 from the protected
monuments under the provisions ofthe Act of 1961. Changes in the Jal Mahal
monument has been broughtwith the consent of the Empowered Committee, these PIL
petitions were clearly devoid of merit and the appellants herein had a right to start phase
II of the project.

42. In so far as the MoEF , Government of India is concerned, ithas clarified that it has
only sanctioned the project for conservationand management of Mansagar Lake in
Jaipur in December 2002. Thus, theaverment made in the petition that no sanction for
Jal Mahal TourismProject 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 of theNational Lake Conservation
Plan. It was further contended that projectfor conservation and management of lake in
Jaipur was sanctioned inDecember 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
ofRajsthan and the sanctioned order was issued which contained break upof cost
estimated. The different components which were approvedfurther included
realignment of drains , desilting , insitubioremediation , sewage treatment plant
and wetland construction, checkdams, aforestation, nesting islands etc. It has been
accepted by theMoEF that the JDA was the nodal implementing agency for the project
andMoEF Central Government has released entire share of the CentralGovernment
amounting to Rs.17.30 crores. Other details had also beenrecorded on behalf of the
MoEF regarding the cost of upgradation and it was stated that the State Government
was committed to bear theadditional fund towards the development from its own
resource. The StateGovernment had informed that in addition to the sewerage work under
NLCP scheme , other projects are also being taken up thereby ensuringthat all sewage
generated in the lake catchment area is being taken careof. The learned Judges of the
Division Bench on a scrutiny of facts andon hearing the counsel for the contesting parties
however were pleased tohold that the PIL was bona fide and in public interest.
Resultantly, theHigh Court was pleased to declare that the Mansagar Lake Precinct
LeaseAgreement dated 22nd November 2005 giving 100 acres of land on leasefor 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. wastherefore, directed to restore the
possession of the land to the RTDC whoin turn was directed to give back the land to
Jaipur DevelopmentAuthority, Jaipur Municipal Corporation and the State. As already
statedin the introductory paragraph, certain other directions like removal of sedimentation
and settling tanks from the Mansagar Lake basin was alsoissued by the High Court and
cost also had to be realised from the appellant.

43. The appellant lessee/Jal Mahal Resorts Pvt. Ltd. felt seriouslyaggrieved and affected by
the impugned judgment and order of the HighCourt and therefore preferred this
appeal along with the other connected appeals which are being heard and decided
analogously.

44. In order to test the merits and demerits/strength of the caseof the contesting parties , we
deem it appropriate to take note of thehistorical background giving rise to this matter
whereby certain factualaspects and the background may be traced out from 1962 when
admittedly the two sewerage drains of the walled city of Jaipur Nagtalai
andBrahmapuri were diverted to empty into the water body which led toits
degeneration, siltation and settled deposits and contamination tosuch an extent that it
could not support the aquatic life nor supportflora and fauna in the surrounding areas.
It is also an admittedposition that the condition of Mansagar Lake and the Jal Mahal
alsostarted substantially deteriorating over a period of time not onlybecause of natural
process of degeneration but also because of illmaintenance and monument reduced to
such a dilapidated state that itrequired massive restoration work. It is also borne out
from thehistorical background and the sequence of events related by thecontesting
parties that the deteriorating condition of the lake and themonument compelled the State
Government to find ways and means to restorethe monuments to their original glory.
We have noted from theaverments of contesting parties that over a period of 30 years
attemptswere made by Government agencies and departments to restore ecologicaland
environment condition of the lake and its adjoining area but none ofthe attempts yielded
any positive result because of paucity of resources to take up and sustain their
restoration. The Government ofRajasthan 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 thecondition of the lake the
State of Rajasthan in consultation with theexperts and after detailed surveys and analysis
 adopted an approach ofdevelopment covering three components which are:

1. Restoration of Mansagar Lake;

2. Restoration of Jal Mahal and

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

While restoration of Mansagar Lake was approved as per the averment of the MoEF
confined to the development of lake area, restoration of JalMahal which lie within the
precinct of the lake, development of lakeand the adjoining area to the lake fell within
the domain of theGovernment of Rajasthan which related to development
oftourism/recreational components at the lake precincts.

45. On a scrutiny of the extensive factual details and thesubmissions advanced by the
contesting parties , we have noted that theentire dispute is essentially confined to the
Lease Deed which has been granted in favour of the appellant for development of 100
acres landadjoining the lake area for a period of 99 years. The PIL petitionersalthough
have urged that the land for which lease deed had been executedwere wetland, it could not
establish from any material on record thatexcept an area of 14.15 acres equivalent to 22
bighas and 10 biswas andanother area comprising 8.65 acres equivalent to 13 bighas and
17 biswasare in fact the contentious area on the basis of which PIL petition hasbeen filed
engulfing the entire area of the lease deed. In this respectit cannot be overlooked that the
project which was visualized and giveneffect to, was with a view to sustainable
conservation and preservationapproach stipulated in consultation with the experts in
pursuance to which a global tender was floated and implemented under extra supervision
with all approvals in place from the concerned authorities.
46. Learned counsel for the petitioner/appellant, Dr. AbhishekSinghvi assailed the
impugned judgment and order of the High Court andurged that the High Court has
proceeded on a patently erroneous, illegaland factually incorrect basis 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 has been leased to the petitioner and resultantly lease
deed dated 22.11.2005 is void in law.

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

c. The State Government has leased 25 percent of the Lake basin itself to the
petitioner/appellant for preparing 100 acres of land and the lake level has been reduced to
carve out 100 acre of land for the lease

d. The Environment Clearance given by State Level Environment Impact Assessment
Authority (SEIAA) to the petitioner on 29.04.2010 is void in law

e. That the Project is in violation of Rule 4 of the Wetland Rules of 2010 and the Ramsar
Convention. Thus, the lease deed is in contravention of the Wetland Rules and cannot be
given effect to.

f. That the sedimentation tanks are illegal as they could not be built without clearance from
the Ministry of Environment an Fores

g. That the No Objection given by the Rajasthan Pollution Board to the petitioner's project
is of no avail in the absence of clearance by MOEF under the Environment Protection Act,
198

h. That the lease has been executed in violation of Rajasthan Tourism Disposal of Land
Rules, 1997 (RTDC Rules), Rajasthan Municipalities (Disposal of Urban Land) Rules
1974, The Rajasthan Municipality Act, 1959 and the Jaipur Development Act,1982 is liable
to be cancelled. i. That the State was bound to give effect to the essential conditions of
eligibility stated in the tender document and was not entitled to waive such a condition.
Thus, action of respondent No.2 was not for bonafide reasons.

47. Learned senior counsel for the appellant Dr. Abhishek M.Singhvi at the outset
submitted that the writ petitions before the HighCourt by way of Public Interest Litigation
ought to have been held barredby delay, latches as also on the ground that they were not
bonafide andfiled with ulterior motive. It was explained that three purported PIL cameto be
filed by the writ petitioners/respondents herein in 2010 and 2011after expiry of 5 years
from the date of execution of the lease deed andlicence agreement dated 22.11.2005. In
this respect, it was submittedgiving out the sequence of events that the Detailed Project
Report (`DPR'for short) in regard to the Project was prepared way back in 2001 which
wasthe underlying basis for the Project. The tender process commenced in 2003and the fish
shaped leasehold area comprising 100 acres was part of theExpression of Interest dated
25.04.2003 published in various public media.Notice Inviting Tenders for the Project was
published in various publicmedia 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
wereopened on 03.12.2003. Thereafter, decision making process was undertakenat several
stages upto the level of the Chief Minister in order to determine the award of the
Project to the respondent-lessee KGK Consortium

which are indicated in the order 09.02.2004, 27.02.2004, 30.09.2004 and 27.10.2005.
Thereafter, finally on 22.11.2005, the Lease and LicenceAgreements were executed
between the State Government and the petitioner-appellant. It was submitted that all the
above steps were taken in publicdomain and in fact one of the PIL-petitioner/respondent
herein K.P. Sharmawas aware of the developments as far back as in February 2005 that
theproject 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 thepetitioner/appellant substantially
altered their positions by spending hugesums of money in implementing the Project. It was
therefore submitted thatthe motive of respondent No.1/PIL petitioner is questionable because
he hassought to disrupt a Project much after the public money came to be spenteven
though he could have approached the High Court earlier.

48. Learned counsel for the petitioner further submitted that oneof the factors that the Court
should look into before entertaining a PIL isto 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
thepresent case, the petitioner/appellant has spent gratuitously on the beliefthat it had the
right to develop 100 acres of land leased and it spentRs.10 crores on restoring the Jal
Mahal Monument which is now fullyrestored and ready to be opened for the public. It has
paid more than 22crores on lease rent alone and has built a 1.75 KM long public
promenadeover its leased land, substantively and the petitioner during this periodcompleted
the whole phase -1 under the agreement. In support of thissubmission, the
petitioner/appellant relied upon the ratio of the decisiondelivered in R.D. Shetty Vs.
Airports Authority of India, 1979 (3) SCC 489,where the Court despite holding that the State
had violated Article 14 ofthe Constitution permitted the contract to continue. The Court
in its conclusions overlooked the rights and liabilities of the successful partyon the one
hand and the conduct including delay and motive of the PIL/petitioner on the other
and finally upheld the right to continuecontract under challenge as it was of the view that
the Court may refuserelief to the party challenging the award of contract if the equities
arein favour of the party holding the contract. In the instant case, it is noteven the plea of the
PIL/Petitioner that he himself has been deprived ofhis 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 petitionsuffered from latches and thus considered it fit to dismiss it.

49. It was added that in fact the PIL/petitioner in the High CourtMr. K.P. Sharma is guilty
of suppression of facts from the High Court as hehad sent a complaint letter dated
12.06.2007 to the Supreme Court and theSC Registry was directed to submit a report
dealing with all the allegationraised by PIL/petitioner. The SC Registry took the report on
record andclosed 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 thatcomplaint had been enquired by the
Registry of the Supreme Court and thematter was closed. However, the PIL/petitioner
made a further applicationto the Supreme Court in the year 2011 but the Additional
Registrar of theSupreme Court vide letter dated 11.10.2011 informed the PIL/petitioner
thatpursuant to GOR Report, the file had been closed and the file was weeded out on
14.04.2011. Thus, the PIL/petitioner was clearly aware of thefactual report of the GOR
to the effect that the SC Registry had closed thematter based upon that report, yet the
PIL/petitioner K.P. Sharma failed todisclose this vital fact to the High Court. Thus, the
PIL/petitionerdeliberately tried to mislead the Court and has not come to the Court with
clean hands. It was therefore contended that it cannot be overlookedthat the complaint of
the PIL/petitioner to the SC Registry and itsrejection thereafter based upon a factual
report submitted by GOR is avital and material fact that ought to have been disclosed to
the High Courtspecially since the allegations in the complaint and the PIL
substantiallyoverlap.

50. It was next contended that the PIL by the petitioner K.P.Sharma lacks the bonafide to
prefer the PIL/petition because his conduct is malicious and vindictive. Elaborating on
this, it was stated thatPIL/petitioner K.P. Sharma with Dr. Brij Gopal had approached the
appellantin the year 2007 purporting to offer their services for monetary reward. Since the
appellant had already engaged a lead panel of conversationist andenvironmentalist, the
services of the PIL/petitioner were not required.Thereafter, the PIL was filed only as a
way to vent his pique andfrustration at the SLP petitioner/appellant herein. It was
submitted thatthese vital background facts ought to have been disclosed to the Court at
the time of preferring the PIL and since these facts were suppressed andnot disclosed, it
isapparent that the PIL petition had not been filed bona fide and had been preferred for own
vexatious reasons.

51. It was further contended that the High Court vide the impugnedorder has proceeded on
a patently erroneous, illegal and factuallyincorrect basis when it held that the public
trust has been breachedbecause land admeasuring 13 Bighas 7 Biswas forming part of
Lakebed whichhas been leased to the petitioner/appellant vide lease deed
dated22.05.2005 is void in law. It was explained in this regard that 13 Bighas17 Biswas of
land equivalent to 8.65 acres of land from the very inceptionhas been reflected and treated
as part of the land that was proposed to beleased. This land was described in the original
Detailed Project Reportwhich was prepared much earlier in the year 2001 when this land
was formedpart of the fish shaped land. It is highlighted that during the firstattempt to
initiate the Project Jal Mahal and preparation of the DetailedProject Report (`DPR' for
short), the petitioner/appellant was nowhere inthe picture. In this regard, it had been
contended by the respondent PIL petitioner that the area admeasuring 13 Bighas 17
Biswa bearing KhasraNo.67/316 (8.65 acres approx.) is part of the lake area as per
revenuerecord which is recorded as "gairmumkin talab" and therefore could not have been
leased to the petitioner. Contesting this plea, it was submitted bythe petitioner/appellant
that Khasra No.67/317 does not form part of thesubmerged area and is in fact a part of
landmass which is outside water.The survey reports placed on record leave no doubt on
this score. It wassubmitted that the consistent and specific case of respondent
No.6/Project Development Corporation of Rajasthan (`PDCOR' for short), this land does
not constitute part of submerged land. However, revenue record reflects this land as
gairmumkintalab and the State has entrusted the preparation of the Jal Mahal Tourism
Project that includes ecological restoration ofMansagar Lake Restoration of the Jal
Mahal Monument and the LakesideDevelopment on the land leased to the petitioner.
 However, thepetitioner/appellant has also added that it has no desire or intention to
construct or in any manner commercially utilise this land and should beopen to the public.
As a matter of fact, respondent No.2/the State ofRajasthan had specifically informed the
High Court that no constructionshall be allowed to be raised on the said area and hence
this can hardly bea ground for quashing the award of the entire Project. It has
beensubmitted that this Court can uphold the award of the Project despite thealleged
illegality by keeping the area open in green and the same cannot bea reason to entail a
consequence of cancellation of the entire Projectresulting into huge loss of Project to
 larger public interest.Cancellation of the Lease and Licence Agreement in such
circumstance wouldbe patently erroneous and in conflict with settled law. Learned
counselfor the petitioner has relied upon the ratio of Century Spinning andManufacturer
Company Limited Vs. Nagar Municipal Corporation, 1970 (1) SCC582. Finally, on this
point, it was urged that the High Court at the mostcould have severed reference to the said
13 Bighas 7 Biswa of land butshould have upheld the lease pertaining to the rest of the
land as theLease Agreement expressly permits such severance vide Clause 18.4 of the
Lease Deed.

52. Learned Attorney General on behalf of State of Rajasthan hadcontended that on spot
inspection by Jaipur Development Authority(`JDA' forshort) 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 leasedeed 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.

53. The High Court however had held that 14.15 acres of land submerged formed part of
the Lakebed and could not have been leased out.Assailing this view taken by the High
Court, it was contended that thisCourt would have to adopt an objective test to
determine which land isclassified as Lakebed and for this purpose reliance has been placed
on theratio of the decision delivered in the matter of Noida Memorial ComplexJudgment,
2011 (1) SCC 74. It was submitted that reference to the revenuerecord with respect to 100
acres lease shows that even though landadmeasuring 14.15 acres is submerged in
water, historically andcontemporaneously 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 DetailedProject Report had
carried out land surveys, prepared topographicalsurveys, output surveys, water quality
tests and received secondary datafrom Survey of India etc. which has been incorporated
in the counteraffidavit before this Court and before the High Court explaining the
reasons for submergence. PDCOR has stated in its affidavit that the said14.15 acres of land
was submerged due to huge silt deposits that had caused the depth of the lake to reduce and
as a result the water had spilt outinto adjacent land being the concerned 14.15 acres of
land. Thus, the said land was never part of the Lakebed and for this reason, is not a
wetland. Factually, out of the 14.15 acres permitted to be reclaimed by the petitioner
under the lease deed dated 22.11.2005 the petitioner has only reclaimed approximately 11
acres out of which approximately 6-7 acres has been consumed for creating a public
promenade open to the public.

54. In fact, the learned Attorney General on behalf of the Statehad also argued that this
land of 14.15 acres was never part of the Lakebedas per revenue records. The Attorney
General also stated further that theapproach of the High Court is completely contradictory.
While on the onehand, in respect of the 13 Bighas 17 Biswas area, the revenue records
arerelied upon, in respect of the area of 14.15 acres, the revenue recordswhich clearly
show that this area is not a part of lake, is disregarded.Based on the revenue records
referred and shown to this Court, theinevitable and indisputable conclusion that appears is
that the entire 100acres land leased to the petitioner is not a part of the Lakebed except
13Bighas 17 Biswas bearing Khasra No.67/317 (8.65 acres). It would thus follow that
this land cannot form part of the Lakebed under any circumstance.

55. Besides the above, it was urged that over the years, hugeamount of silt had been
deposited onto the Lakebed by the Nagtalai andBrahmpuri Nala as a result of which the
depth of the land has reduced whichresulted in spilling of the water from the lake into
adjacent areas including the land adjacent to it.

56. On the premise of the aforesaid facts, it was urged that there isno violation of the public
trust doctrine as public trust doctrine cannotbe applied to defeat public interest.The
Project as approved and whenimplemented would in fact create an unprecedented Lake
water front ambienceand would be the only large water body in Jaipur that had been
subjected tomassive destruction over the years. In fact, the Project would inter aliacreate
approximately 1.5 km long walkway (promenade) along the lake whichhas been
constructed by the petitioner/appellant on the leased land that isopen for use by the public.
Importantly, another 3.5 km promenade has beenbuilt by the JDA along the Lake. A
perennially filled Lake admeasuring 310acres (approx.) with a depth between 3 to 5
metres and a completerenovation and restoration of Jal Mahal Monument with a pleasure
pavilionbuilt in the mid 18th century, the restoration includes artistic paintingsdepicting
Rajasthani culture. The Project includes access to the restoredmonument by the public on
paying a nominal charge of Rs.25/- per personessentially a cost towards being carried by
boat to the Monument, a craftsvillage to promote handicrafts and other world famous
heritage products ofRajasthan, an amusement park for the public, a restaurant positioned
with adequate setback from the Lake, for the public to enjoy clean surroundings,a heritage
resort, a convention and Exhibition center to serve multipurposefunctions. It was submitted
that these highly pro public elements cannobe negated and destroyed by erroneous
contentions raised in the PIL.Indeed, the aforesaid enormous improvement to the
environment involving Court should countenance no dilution in that.

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

58. The factual context of this issue has been summarized by thepetitioner in order to
demonstrate the grave and patent error of theimpugned order and it has been stated as
follows:

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

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

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

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

59. It is stated that DPR is not only a final document but in itsfinal form has been approved
without objection or protest by the Ministryof Environment and Forest (`MOEF' for
short) under the National LakeConservation Plan (NLCP) Guidelines and in particular the
clause dealingwith maintenance of water level at 98 m RL which has been considered
andapproved by the MOEF. In any event, without prejudice to the foregoing, itwas
submitted that the impugned order is patently erroneous in that itpurports to act as a
MOEF, Pollution Control Board, State EnvironmentRegulatory Authority, Independent
and International Experts and Consultantall rolled into one. It is impermissible under
established judicial reviewparameter 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 siteither an expert or arbitrate
or as an appellate body nor can it allow aPIL petition to convert it into a super
regulator. To reinforce thesubmission, reliance was placed on the ratio and observations
made in thematter of Tata Cellular Vs. Union of India, 1994 (6) SCC 680. It
wassubmitted that unfortunately the impugned order has committed precisely theaforesaid
errors repeatedly, inter alia in respect of size of lake andwater level of the lake.

60. It was pointed out that prior to the petitioner/appellanttaking 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' ishighly misleading and inappropriate. It is the petitioner alongwith the
State who has ensured the availability of clean water around the year
rather than reducing the level of the Lake. It was still further added that since Mansagar
Lake is a manmade lake, the principle source of water during and after the restoration work
has been treated sewage/effluenc coupled with some replenishment during monsoon.
Consequently, in view of the release of post treated sewerage water into the Lake, the
regulation of the water level at 98 m RL has always been an intrinsic part of the
Government's regulation of the entire area.

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

62. It was further urged that the PIL petitioners'/ respondents'herein penchant for false,
distorted and misleading submissions allegingreduction of the size of the lake and the
spread of the lake alleging thatthis was done by keeping the water level at 98 m RL thereby
giving enhancedarea 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:

    i It is vital to note that the Detailed Project Report (DPR) made in 2001 at least two
years before even the Expression of Interest was issued for the present Project and
the SLP petitioner herein/appellant was nowhere in the picture categorically gives the
landmass area available at each of the three different levels of 100 m RL, 99 m RL and 98 m
RL of the lake and then goes on to specifically declare that the best and the only feasible
solution to prevent damage to the Jal Mahal Monument is to keep the water level at 98 m
RL, neither higher nor lower vide DPR. Consequently, the SLP petitioner
herein/appellant had nothing whatsoever to do with a decision to maintain the water level
at 98 m RL. It is therefore deliberately misleading for the PIL petitioner /
respondentherein 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 actuallygiven in the RFP
is the necessary controlling tender document isno 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 landavailable for
the successful bidder would be 100 acres. This underscores the point that 98 m RL level
was not the guiding factor while granting 100 acres to the petitioner.

63. It was further contended that the High Court has erroneously relied on a PWD
document that states the area of the lake has reduced to 0.79 sq. km after independence
whereas prior to independence according to the High Court it was 1.154 sq. km.
However, the High Court does not appreciate and consider that the DPR was prepared in
2001 after carrying out extensive surveys and preparing topographical maps, after doing
all such research and based upon all such material it was determined by the DPR that the size
of the lake was 130 hectares more than what it purportedly was prior to independence. It
was therefore submitted that the High Court's finding on this aspect suffers from lack of
application of mind to the material on record and it was submitted that if anything, the size
of the lake from independence has only increased. Consequently, it was submitted that
the two vital and unchangeable parameters show the falsity of the PIL petitioner contention
viz.

   (a) A decision fixed and taken more than two years before the tender in 2001 to get the
        lake level at 98 m RL.

        (b) A decision taken in the RFP to lease out no more than 100 acres, once these two
        polar points are fixed, assuming everything against the petitioner/appellant herein
        or the State Government that can be no prejudice or detriment of any kind to
        public interest.

64. It was next contended that the High Court conclusion on de-silting is patently
erroneous and unsustainable because de-silting was asanctioned activity under NLCP and
MOEF had sanctioned funds for the saidpurpose. The DPR had provided for de-silting as a
measure to increase thedepth 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 dated03.04.2006 which
was held to review the lake restoration under theChairmanship of Principal Secretary,
Urban Development and Housing,permission was granted to the petitioner/appellant to
de-silt the lake toachieve 2 meters depth at its own cost. Therefore, the petitioner had
valid permission from the State Government to carry out de-silting andthere was nothing
illegal in the manner rather than minutes of the meetingshow that it was a well considered
decision of the Committee and was inline with the DPR.

65. The petitioner/appellant submitted that the High Court'sfinding is patently erroneous
and unsustainable as except for the revenueentries showing 13 Bigha and 7 Biswa of land
as gairmumkin talab no otherparcel of land that was leased to the petitioner was part of the
Lakebed asper the revenue entries. Only because silt was dumped on the land leasedto the
petitioner, cannot make land that was not part of the Lakebed, as isevident from the revenue
record and is now suddenly being asserted as partof the Lakebed. It is being stated that it
is always advisable thatLakeside development should be at higher level than the water
level.

66. On a consideration of the rival submissions urged on behalf ofthe contesting parties, in
the light of the factual matrix and thematerials which were produced before the High
Court, it clearly emergesthat the PIL petitioner/ respondent NO.1 herein K.P. Sharma had
contended that the lease executed and granted to the appellant for development of
100 acres land was illegal, arbitrary disturbing the natural resource of
lake which was fit to be struck down as invalid as the 100 acres land was carved out
from the lake area and thus the breadth and height of the lake was reduced.

67. However, on a scrutiny of materials on record which includedthe revenue record of the
land in question, it is sufficiently clear thatthe man made Mansagar lake comprised of an
area of only 3 hundred acrestowards the lake area. Counsel for the respondents/PIL
petitioners,however, at the outset and as the first and foremost point sought to makegood
the submission that the lake area was reduced by 100 acres which was leased out to the
appellant/lessee by reducing the lake area. But the counsel in spite of his best efforts
could not establish the same except the fact that 8.65 acres and 14.15 acres were submerged
area of the lake and lakebed respectively which was carved out as land area so as to make
it a part of the 100 acre land area. In fact, even on perusal of the impugned judgment
and order of the High Court it could not be established even remotely that the entire 100
acres land which comprises the area of lease deed is a part of the lake or lakebed in any
manner. In fact, all the contentions which had been raised before the High Court as also
before this Court in general terms urged that the lake area has been reduced to 310 acres
and 100 acres have been carved out of 400 acres of lake area which was reduced to 310
acres. But in clear, specific or precise terms, it could not go beyond urging that 8.65
acres which was submerged and hence a portion of the Lake area, could not have been
made a part of the leased area. In this context, it was further urged that this area being a
wet land, could not have been included in the leased portion of the land for
which the development was permitted by executing a lease deed.
68. When this plea was scrutinised in the light of the revenuerecord, it could be noted that
this area has been recorded in the revenuerecord as `gair mumkin talab' . Based on this
entry, it was submitted bythe PIL petitioner/ respondent herein that `gair mumkin talab'
area couldnot have been allowed to be developed by raising construction as that wouldbe
clearly contrary to the Wet Land Rules which was enacted for the firsttime in the year
2010. In other words, the contention of the PILpetitioner/ respondent No.1 herein is that
since 8.65 acres of land whichforms part of 100 acres leased area granted to the appellant
is submergedunder water which area according to the PIL petitioner/ respondent
wouldalso form part of the lake, the State Government could not have included this land in
the leasehold area to be granted to the petitioner/appellant.

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

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

25. NOIDA was set up in 1976 and the lands of the project area were acquired under the
Land Acquisition Act mostly between the years 1980 to 1983 (two or three plots were
notified under Sections 4/6 of the Act in 1979 and one or two plots as late as in the year
1991). But the possession of a very large part of the lands under acquisition (that now form
the project site) was taken over in the year 1983. From the details of the acquisition
proceedings furnished in a tabular form (Annexure 9 to the counter-affidavit on behalf of
Respondents 2 and 3) it would appear that though on most of the plots there were properties
of one kind or the other, there was not a single tree on any of the plots under acquisition.
The records of the land acquisition proceedings, thus, complement the revenue record
of 1952 in which the lands were shown as agricultural and not as jungle or forest. There is
no reason not to give due credence to these records since they pertain to a time when the
impugned project was not even in anyone's imagination and its proponents were nowhere
on the scene." Placing reliance on the aforesaid categorical view taken by this Court, it
was submitted that a reference to the revenue records with respect to the 100 acres lease
shows that even though the land admeasuring 8.65 acres might have been submerged
under water, historically and contemporaneously, 14.15 acres has been classified as `barren
land' and not as part of the Lake Bed. It, therefore, must follow as per the submission
of the counsel for the appellant placing reliance on the revenue records that the 14.15 acres
forming part of 100 acres leased to the appellant is not a part of the Lake Bed and also for
that reason is not a Wet Land.

70. It was further urged that the Project DevelopmentCorporation (PD COR) of the
State of Rajasthan, the body that prepared theDetailed Project Report in the year 2001,
when the petitioner/appellantwas not in the picture in any manner carried out land
surveys, preparedtopographical surveys , output surveys, water quality tests and
receivedsecondary data from Survey of India etc. as in the counter affidavitbefore this
Court and before the High Court explained the reasons foremergence of this area of
14.15 acres of land. It was further pointed outthat the PDCOR has stated in its affidavit
that the said 14.15 acresland emerged due to huge silt deposits that had caused the depth
of thelake to reduce and as a result, the water had spilt out into adjacent landbeing the
concerned 14.15 acres of land. Based on this project reportprepared at the instance of
PDCOR, it was argued that the said land wasnever part of the Lake Bed and is not for this
reason a Wet Land . It wasfurther added that factually out of the 14.15 acres permitted
to bereclaimed by the appellant under the Lease Deed dated 22.11.2005, the appellant
has only claimed approximately 11 acres out of which approximately 6-7 acres has been
consumed by the appellant for creating a public promenade open to the public.

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

72. On the aforesaid aspect, it was further urged that based on the revenue records
referred and shown to this Hon'ble Court , the inevitable and indisputable conclusion
that appears is that the entire 100 acres land leased to the appellant is not a part of the
Lake Bed including 13 bighas 17 biswas bearing Khasra No.67/317 corresponding to
8.65 acres. It was submitted that from this it ought to follow that this land could not have
been held to be forming a part of the Lake Bed under any circumstance.

73. The PIL petitioner/respondent No.1 herein had further argued that the project is illegal
because no sanction for this project had been received under the Wet Land Rules
2010 and, therefore, the respondents have sought for a declaration of the Lease Deed
being void.
74. Challenging this part of the argument urged on behalf of thePIL petitioner/respondents
herein, it was contended on behalf of theappellant that the language of the Wet Land
Rules 2010 when referred toin detail makes it clear that these rules can only apply in a
situationwhere the Central WetLand Authority , a Government of India body
established under the Wetland Rules 2010 sends its recommendation to
theCentralGovernment for notifying a certain area as a wetland. It wasurged that in the
present case, it is undisputed that when the Lease Deed was executed and environmental
clearance (EC) from State Level Environment Impact Assessment Authority (SEIAA for
short) was granted on 29.4.2010,the Wetland Rules 2010 were not even enacted.
Therefore, the question of Wetland Rules 2010 applying to the project retrospectively
would notarise. Even otherwise under the Wetland Rules 2010, there is a
detailedprocedure specified which has to be complied with mandatorily before anarea can
be notified as a wetland. It was submitted that in the presentcase even after the Wetland
Rules 2010 came into force, no such procedureadmittedly has been undertaken to identify
Mansagar Lake as a wetland whenthese PILs were filed. It was further contended in this
regard that sucha project is contrary to the specific intent of the framers which
isunequivocal viz even assuming that an area is zoologically,scientifically,
environmentally or technologically to be factually awetland, it does not become so
legally unless and until the personadesignata under the delegated legislation so
declares it to be.Admittedly, that persona designata is only the specialized
authorityappointed under the rules and has chosen not to exercise its power for
the Mansagar Lake.

75. It was still further contended on behalf of the appellant thatthe technique of applying a
law by notification to a specific factsituation is an age old parliamentary technique
and/or the techniqueapplied by the framers of delegated legislation like the Central
Government who framed the Wetland Rules. Even the Apex Court would notconsider it
legally appropriate to issue a mandamus to notify and bringinto force legislation or a
delegated legislation until and unless thepersona designata under that regime chooses to
do so. In support of this proposition of law, learned counsel for the appellant has placed
reliance on the following case laws: (1982) 1 SCC 271 at page 308, 310 paras 51 and
59 A.K. Roy vs. Union of India when it recorded as follows:

          "......the question which was put in the forefront by Dr. Ghatate, namely, that
        since the Central Government has failed to exercise its power within a reasonable
        time, we should issue a mandamus calling upon it to discharge its duty without
        any further delay. Our decision on this question should not be construed as
        putting a seal of approval on the delay caused by the Central Government in
        bringing the provisions of Section 3 of the 44th Amendment Act into
        force............But we find ourselves unable to intervene in a matter of this nature
        by issuing a mandamus to the Central Government obligating it to bring the
        provisions of Section 3 into force. The Parliament having left to the unfettered
        judgment of the Central Government the question as regards the time for bringing
        the provisions of the 44th Amendment into force, it is not for the court to compel the
government to do that which, according to the mandate of the Parliament, lies in its
discretion to do when it considers it opportune to do it."

Similarly reliance was placed on the judgment and order of this Court reported in (2002)
5 SCC 44 at 49-50 para 7 delivered in the matter of Union of India vs. Shree Gajanan
Maharaj Sansthan when it concurred with the view that no mandamus could be issued to
the executive directing it to commence the operation of the enactment although
non-issuance of such a direction should not be construed as any approval by the Court
of the failure on the part of the Central Government for a long period to bring the
provisions of the enactment into force; leaving it to the judgment of the Central
Government to decide as to when the various provisions of the enactment should be
brought into force.

76. Relying on these decisions it was urged that from the ratioof these decisions it follows

that since Mansagar Lake itself is not aWetland, therefore, the contention of the

respondents that the entire 100acres land leased to the appellant is part of the Lake

Bed and,therefore, a wetland ought to be rejected outright and the finding of the High

Court on this aspect ought to be reversed. However, Mr.Jaydeep Gupta, learnedsenior

counsel who was appointed to represent theState of Rajasthan after the change of the

Government in 2014 in place ofthe Attorney General Shri G.E. Vahanwati who had

already concluded hisarguments on behalf of the State of Rajasthan, submitted that

the incumbent Government of Rajasthan cannot accept the interpretation given tothe

Wetland Rules 2010 by the previous government. As  per thesubsequent stand

taken by the counsel for the new government, the previous government ought to have

identified wetland in the State withi one year of the Wetland Rule 2010 being enacted.

According to the counselfor the new incumbent government, since the previous

government did notundertake the activity of identifying Mansagar Lake as a wetland,

the2010 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 wellas this Hon'ble Court is

untenable.

77. The appellant, in turn, has submitted that the change in standby the incumbent
government should not be permitted by this Court. It wassubmitted that reference to the
pleading put forward by the StateGovernment on the issue of the wetland before the High
Court and this Courthas been categoric and specific . It has been expressly pleaded that
the Wetland Rules 2010 do not apply to the project and that the said rules are
notretrospective so as to affect the project. This stand has beenspecifically taken in the
counter affidavit filed by the State Governmentin the three Special Leave Petitions
preferred by Jal Mahal Resorts Pvt.Ltd. It was, therefore, submitted that assuming
without admitting thatthe incumbent State Government can withdraw its three Special
LeavePetitions, the appellant strongly disputes this and it does not follow and should not
be allowed that the stand taken by the State Government in the counter affidavit in the three
SLPs filed by the appellant and thethree SLPs filed by the State Government can in any
manner be changed oraltered. In addition, it was submitted on this aspect that the stand
ofthe State Government in the High Court should not be allowed to be changedbefore the
Supreme Court merely due to change of the Government after new
elections were held and it has been strenuously submitted in thepleadings before this
Court by the State Government earlier through theAttorney General that the High Court
had gravely erred in law in holdingthat the Wetland Rules 2010 were applicable to the
Project. The attemptbeing made by the State Government shifting its stand which was
takenbefore the High Court and also before this Court when the learned Attorney
General had appeared and concluded the arguments, it is clearly a changein stand from the
stand taken by it from the High Court right up to thisCourt.

78. It was submitted that the underlying basis for the incumbentState Government to
change its stand has been justified by it based on itsunderstanding of the Wetland Rules
2010. According to the incumbentgovernment and its political philosophy Mansagar
Lake ought to beidentified as a wetland. According to the incumbent government the
factthat the Mansagar lake was not identified as a wetland by the previousgovernment
itself was an illegality and was contrary to the Wetland Rules.

79. Contesting the aforesaid stand taken by the respondent-State, the appellant strongly
urged that such an interpretation of the WetlandRules had been taken by the previous
Government of Rajasthan as a matterof policy which had decided not to notify Mansagar
Lake as a wetlandkeeping in mind the Master Plan of Jaipur since 1976. As per the
Master Plan, the Vijay Mahal Area approximately 200 acres (including the entire100 acres
leased to the appellant) was to be urbanized and developed fortourism purposes.
Therefore, as per the contention of the appellant,this area naturally could not have been
identified as wetland. In the alternative, it was submitted that even otherwise the 100
acres leased was not part of the Lake Bed and, therefore, the question of
identifying the leased 100 acres land as a wetland is out of the ambit and scope of the
question involved.

80. In regard to the plea pertaining to the Master Plan of Jaipur, it was submitted that
the Master Plan has statutory force and since the Master Plan itself has identified this
area to be urbanized ,the question of it being declared as a wetland does not arise. In fact
,the Master Plan consistently from 1976 onwards has provided that approximately
more than 200 acres of land is available for the development of tourism facilities on
the southern and western sides of the Mansagar Lake. In view of these aspects, learned
counsel for the appellant urged that the Mansagar Lake is not a wetland under the Wetland
Rules 2010 and 100 acres leased land was not a part of the Lake Bed and ,therefore, the
leased land of 100 acres is not a wetland under theWetland Rules2010. As already
stated hereinbefore, it was urged that theWetland Rules 2010 are not retrospective in nature
since the Lease Deedwas executed in the year 2005 and the wetland rules framed there
under and enacted only five years later in 2010 when implementation of the Project had
already started.

81 In so far as the plea taken by the PIL petitioner/respondentherein regarding reduction
of the Mansagar Lake area in order to carveout 100 acres of land is concerned, it was
explained by relying upon thehistorical background of the matter that Maharaja Man
Singh of Amer whoruled from the year 1589 to 1614, constructed the Mansagar Dam
muchearlier than Jaipur was founded. The Mansagar Lake was created bydamming
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 theirrigation needs and ground water recharge
of the area. It was urgedthat the Mansagar Lake is a man-made water body and its beauty,
therefore,is not a natural one but the creation of man. Elaborating on this part,it was
submitted that certain undisputed facts established that 100m RLis the Amer Road level.
At 99m RL is the full tank level and this hasbeen admitted by the PIL petitioner K.P.
Sharma in his writ petitionbefore the High Court and 98.12m RL is the plinth level of
Jal MahalMonument as enumerated in the Detailed Projects Report (DPR for short).It
was submitted that admittedly one of the primary objects of the Projectwas to restore Jal
Mahal Monument. Thus water level had to be maintainedat a level that ensured
plinth/ground floor of the monument and is notsubmerged and further weakened. It was
submitted that the Master Plan ofJaipur 1976 establishes that approximately 200 acres of
land located inVijay Mahal (including the 100 acres land leased to the appellant) was tobe
developed for tourism purposes. Thus, obviously, the 100 acres land leased to the
appellant pre-existed the execution of the Lease Deed dated 22.11.2005 and was available
much before the Project was undertaken.

82. It was further contended on behalf of the appellant that thehydrological modeling
undertaken by the Project Development Corporation ofRajasthan (PDCOR) in Detailed
Project Report (DPR) scientificallydetermined a sustainable water level. The DPR
explored the followingwater level scenarios finally chose a water level of 98m RL. The
waterlevel scenarios examined scientifically reported that water could not bemaintained at
100m RL because at this level in the monsoons water canflood the neighbouring areas
that are densely populated since at this level water would be at Amer Road level.
Consequently, the Jal MahalMonument would be nearly wholly submerged. It was
added thattechnically supplying so much quantity of water all the year around wasnot
possible.

83. It was further contended that the water could not bemaintained at 99m RL because
at this level lake spread and volume isdifficult to maintain through out the year this being
a technical matter.Consequently, the lower floor of Jal Mahal Monument would be
submergedhaving only terrace and first floor for re-use. Thus the appellantsubmitted
that 98m RL being the next lowest water level after 99m RL wasconsidered ideal for
maintaining water level. It was argued that mostimportant thing if water level were to be
fixed at 99m RL i.e. full tanklevel then also there would have been more than 100
acres of land available to lease, yet the appellant was granted only 100 acres.

84. Learned counsel for the appellant further elaborated on thisby 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 130hectares in its full spread. However, "at first, a much
smaller natural shallow lagoon existed, on the edge of which, the Jal Mahal structure was
located. Thus, originally the spread of the lake was much smaller than atpresent. The
spread of the lake has increased and the depth decreased indecent times mainly due to the
silt deposits as a result of erosion."

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

86. The appellant further referred to the arguments advanced by thelearned Attorney
General on behalf of the State of Rajasthan andsubmitted that the approach of the
High Court was wrong as it proceededon 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 and the decision to
maintainwater level at 98m RL was a conscious, well informed and deliberated decision
taken to protect the integrity of the monument. The counsel for the appellant, therefore,
submitted that since the water level was determined scientifically and much before the
appellant came into the picture rather was not even born in regard to this dispute, the
question of its tampering with the lake so as to reduce the size of the lake does not arise
and, therefore, the finding of the High Court on this aspect is contrary to the DPR and
hence deserves to be set aside.

87. In regard to the question pertaining to general conditionsin Environment Impact
Assessment 2006 (EIA), it was submitted on behalfof the appellant that even according
to the respondents- Ministry ofEnvironment 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 contendedthat it ought to be clarified that the need to issue
OM dated 24.5.2011was felt because OM dated 28.4.2011 in broad terms provided
thatcategory B projects that fell within 10 KM of notified criticallypolluted areas
would be treated as category A and general condition wouldbe 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
generalcondition even if such projects fell within critically polluted areas.It was urged on
behalf of the appellant that it has received environmentclearance from SEIAA dated
29.4.2010. This clearance is in terms of EIA2006 and is, therefore, valid. It was added
further that as the generalconditions do not apply to the present project, as made clear by
MoEF inits affidavit and also by OM dated 24.5.2011, the appellant did not
requireclearance from MoEF. Therefore, the impugned judgment of the High Courtought
to be reversed on this aspect as it failed to appreciate thesecrucial facts. It was still
further submitted on this that even otherwiseon an interpretation of EIA 2006, it becomes
apparent that MoEF hasconsciously decided not to stipulate general condition in
column 5 against Item 8 (a and 8 (b) because EIA 2006 has issued originally andtill date
does not stipulate general condition against Item 8 (a) and 8(b) in the Schedule, while it
does so with respect to a number of otheritems in the Schedule. It was added that MoEF
vide notification dated1.12.2009 had carried out wide ranging amendments to the
Schedule in EIA2006 and in doing so general condition had been stipulated/inserted for
thefirst time against certain items. However, while doing so, the MoEF hasnot stipulated
the general condition against the Item 8 (a) or 8 (b).It is, therefore, evident that MoEF
consciously as a policy decision haschosen not to stipulate general conditions against Item
8 (a) or 8 (b).Further paragraphs 4 (iii) of EIA 2006 provides activities included
ascategory B in the Schedule which require prior environment clearance fromSEIAA
except those that fulfil general condition stipulated in theSchedule. It was, therefore,
submitted that since general condition isnot applicable to Item 8 (a) and 8 (b) projects
irrespective of thelocation of such project, therefore, the contention of the
PILpetitioners/respondents and the finding of the High Court that since theproject is
within 10 Km of the Nahargarh Sanctuary ought to bedeclared as illegal without
substance which is liable to be rejected.

88. The learned Attorney General Mr. Vahanvati on behalf of theState of Rajasthan had
also argued that the finding of the High Court onthis aspect is entirely incorrect as the
environment clearance from MoFFis not required for this project as the general
conditions specified inEIA 2006 did not apply to this project. Therefore, neither general
norspecific conditions apply to Item 8 to the Schedule and hence environment clearance
given by SEIAA is legal and valid.
89. The PIL petitioner/respondents had also contended that theRajasthan Municipalities
(Disposal of Urban Land) Rules 1974 (for short `1974 rules') have been violated since
Jaipur Municipal Corporation whileallotting land to RTDC has violated certain norms
and that the premiumwas not charged from RTDC for the land allotted to it and
secondlywithout any General House Resolution allotment of land was made toRTDC.
On this aspect it was submitted on behalf of the appellant thatboth the contentions are
misplaced for the reason that under 18 (2) andthe proviso to 1974 Rules, the State
Government can exempt the payment of cost of land being allotted by Jaipur Municipal
Corporation to any government department. In the present case, the Government decision
dated 9.2.2004 makes it clear that RTDC shall not have to pay any cost of landto the land
owning agencies including Jaipur Municipal Corporation as thewhole intent of this
allotment in favour of RTDC was to onlyfacilitate the project of the Government. As
a matter of fact, JaipurMunicipal Corporation through its General House Meeting dated
28.4.2004was attended by at least 58 of its members who resolved to allot the saidland to
RTDC in order to implement the project. Thus, it is more thanapparent that the
Government had exempted charge of any kind from RTDCfor the transfer/allotment of
land to which a furthermore RTDC through atransparent and well considered resolution
comprising of is membersresolved to allot this land to RTDC. Thus the contention of the
respondent that the 1974 rules have been violated is wholly unsustainable and findingof the
High Court on this aspect therefore needs to be reversed and set aside.

90. It was still further contended that the Jaipur DevelopmentAuthority Act 1982 was
not violated in any manner and the appellantsubmitted that rule 18 of the Rajasthan
Improvement Trust (Disposal ofUrban Land) Rules, 1974 enabled JDA to allot land
without any adding cost of the land if the State Government exempts any department
of the government from paying cost of the land. In the present case, the Government
of Rajasthan vide its meeting dated 16.9.2003 had noted that the JDA had issued orders
for transfer of land to RTDC. The object of agazette notification under Section 54 (3) is
to keep matters in thepublic domain but not to affect 3rd party rights since the land
is merely being transferred from a subordinate state instrumentality to theSovereign 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.

91. It was further submitted on behalf of the appellant thatadmittedly development of
tourism in Jaipur on the southern and westernside of Mansagar Lake has been an avowed
object of the Jaipur MastePlan 1976, 2011 and 2025. Thus the project is in alignment
with theMaster Plan. Jaipur Master Plan is a statutory document under Section 21of the
JDA Act 1982. Section 26 mandates that once the Master Plan is inforce and JDA must

take action for implementing the plan as may benecessary. Thus, it is statutorily

incumbent on the JDA to implement theMaster Plan inter alia which enables development

of tourism in the givenarea. Undisputedly approximately 43 acres in the 100 acres

leased wasvested in the JDA and transfer to it for the     purpose ofdeveloping the

tourism project in the area designated in the Master Planreferred to above. Therefore, the

land allotted by JDA to RTDC was alsofor implementation of JDAs Master Plan.

Therefore, it cannot bedisputed that the present project is a tourism project. Thus, there

wasample authority with the JDA to allot land to RTDC under the JDA Act

1982particularly section 54 (1) for implementing its master plan. Cumulatively, it

was submitted that the JDA under Section 54 (1) has thepower to allot land vested in it

for the purposes of the JDA 1982subject to rules by the Government of Rajasthan. It

was submitted that obviously allotment of land to implement the Master Plan of the JDA

Act 1982, Rule 18 gives Government of Rajasthan power to exempt StateDepartment

from paying cost of the land when land from the JDA isallotted. Exemption by the

Government of Rajasthan in favour of RTDCacting on behalf of Department of Tourism

as an agent from paying costof the land is traceable to power vested under Rule 18

read withGovernment of Rajasthan decision dated 9.2.2004. Hence for all thesereasons,

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

92. Contesting the argument raised by the PIL petitioner/respondent that the State
Government has changed the rules of the tender so as to favour the petitioner company in
awarding the contract is not borne out by the record that has been produced before this
Court in the form of various collegiate, transparent meetings that have been presided
over by the highest functionaries in the State Government, inter -alia including the Chief
Secretary, the Principal Secretary and various Head or statutory authorities who participated
in these meetings . On a perusal of the pre-qualification evaluation report dated
6.10.2003 which was prepared by the Project Development Corporation of Rajasthan
(PDCOR), a joint venture between the Rajasthan State Government and IL & FS, it is
clear beyond any doubt that the threshold qualification criteria required to be satisfied
by the appellant KDG Enterprises ( the lead Member of KGK Consortium) stood more
than adequately made out when KGK Enterprises satisfied the technical requirement
and the financial requirements required under the request for proposal. It is pertinent to
point out that KGK Enterprises satisfied the substantive provision of the pre-
qualification violation criteria (namely the technical and financial capabilities). In other
words, the technical and financial bids were yet to be opened and the criteria that was
satisfied by KGK Enterprises was only threshold preliminary criteria at the
pre-qualification evaluation stage. A further perusal of this report makes it apparent that
PDCOR has observed that the tender submitted by KGK Consortium through KGK
Enterprises, the lead bidder was a partnership firm, therefore, the argument of the respondent
that there was concealment with respect to material fact does not stand and is for this
reason unsustainable.

93. PDCOR as a part of its evaluation report and other correspondence recommended
  that apart from the other two bidders whohad satisfied the pre-qualification

evaluation criteria, even KGKConsortium should be permitted for being considered
and the technicalevaluation phase as KGK Consortium satisfied the
substantiveconditions at the pre-qualification evaluation stage. PDCOR in
itsrecommendation further opined that condition of KGK enterprises at thesubsequent
stage would promote competition amongst the bidders and,therefore, be in public
interest. The intent of the RFP according to thePDCOR was never to exclude any bona
fide legal entity that mayconsider putting its bid subject to it satisfying the other
threshold criteria as already stated hereinbefore.

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

95. Another important feature of the tender process was thatafter the financial bids were
opened only KGK Consortium was found to bethe highest bidder by 39%, the matter was
considered by the EmpoweredCommittee 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 ECIDwere put up for the approval of the
then Chief Minister whounreservedly endorsed the decision of the ECID dated
9.2.2004.

96. Thereafter, on 30.9.2004, the Government of Rajasthan issued a letter of intent to KGK
Enterprises (lead Member of KGK Consortium) for award of the project. The final
decision in the decision making processthat culminated in the execution of the lease and
license agreementwas taken by the Chief Minister on 27.10.2005 whereby it was approved
thatthe execution of the lease and license agreements be entered into by theState
Government with the highest bidder M/s. Jal Mahal Resorts Pvt. Ltd.a Special Purpose
Vehicle Company of KGK Consortium.
97. It was, therefore, submitted that on a perusal of thisdetailed decision making
process undertaken by the Government of Rajasthan during the regime of successive
Chief Minister after which thegovernment contested the PIL petitioner before the High
Court as alsobefore this Court through the Attorney General, there is no doubt thatthe
decision taken to approve the project and execution of Lease Deed wasa bona fide decision
for the general and overall betterment of the projectmeeting the area around the Jal Mahal
and, therefore, no fault can befound in regard to the decision even if certain
procedural relaxationswere granted for approving the project. In sum and substance,
it was submitted that in so far as the relaxation granted inconcerned, the action of the State
Government was bonafide approved by the previous and subsequent government

   of Rajasthan which was bona fide and cannot be called unfair or illegal in any manner.

98. In support of the submission, the learned counsel for theappellant has cited several
authorities of this Court inter alia beingBSN Joshi & Sons vs. Nair Coal Services Ltd. &
Ors. (2006) 11 SCC 548 and the relevant portion at 571 para 66 (v) and (vii) states as
follows:

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

        (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. GaneshEngineering
Works & Ors. (1991) 3 SCC 273 wherein this Court held that asa matter of general
proposition it cannot be held that an authorityinviting tenders is bound to give effect to
every term mentioned in thenotice in meticulous detail, it is not entitled to waive even a
technical irregularity of little or no significance. Thus, it was held that minortechnical
irregularity and deviation from non-essential orancillary/subsidiary requirement can
be waived and the Government would be justified in waiving technical compliance with a
tender condition.

99. The thrust of the aforesaid case law cited is to reinforcethe submission that when
there is substantial compliance of the termsof tender , the government is entitled to
waive any non-essential term in the tender for the bona fide reasons and in public
interest. In anycase, since the project in terms of the RFP had to be executed through
aSPV and the appellant being as such SPV, then the vehement insistence bythe respondent
that the lead member must be a company is not a violationof a substantial condition of the
tender. In conclusion therefore it hadto be held that there was no mala fide in the decision
making process and the finding given by the High Court is perverse and cannot be sustained
and deserves to be set aside.

100. On perusal of the background and other materials on record, itcould be noticed that
the genesis of restoration and conservation ofMansagar Lake goes back to 1984 whereby
the efforts of the State from 1984onwards have been directed towards restoring and
developing the largestwater body in Jaipur (that was lying disused the sewage, filth, stench
andeffluent) into an attractive public interest destination with a pleasingenvironmental
ambience for attracting tourists from all over the world. The figures and conclusions in the
impugned order itself indicate theenormous difficulty and repetitive failures of the State
Government toeither implement the restoration itself or to get any private entity to doso
over a period of approx. 20 years from 1984 to year 2003. Indeed, theattempts immediately
preceding the present tender from year 2000 to 2002 have also admittedly failed. Had the
figures found in the impugned order or the conclusion of theimpugned order that the
Project proposal constituted a squandering of Statelargesse had been correct, applicants
would have been falling overthemselves to bid for the Project not only in the present
tender but alsoin the preceding unsuccessful attempts. Even in the present case, despitethe
attendance of as many as 20 major participants (including corporatenames like Oberoi,
Taj, Ansal, Neemrama to mention a few) who admittedlyattended the pre-bid meeting, no
one except the SLP petitioner/appellantand three other ultimately came forward.
Obviously, the proposal was ex-facie not an attractive one for potential investors, and the
inescapableconclusion is that all attempts to restore the Lake and develop the area as a
tourism hub had failed when the SLP Petitioner/appellant was nowhere in the picture.

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

The pre-existing state of the entire area of approx. 310 acres of Lake and more than 100
acres of land seemed physically irreparable which has been demonstrated by the
photographs submitted [V/X]. There was no water body; the so called Lake consisted of an
empty large hollow filled with sewerage stench, filth and huge sedimentation; two major
nallas of the city were emptying all their sewerage and effluents into the lake; the monument
was completely dilapidated, over growth of shrubbery, and not visited by any one for
decades; the nearby land was barren, filled with mud and dirt and therefore not in use. The
impugned order further appears to have ignored that the whole structure of the tender was
conceptually different and had been thus in all previous attempts failed as (i) it sought huge
investment by the successful bidder to restore the entire area which, at conservative
estimates, would cost approx. Rs. 100 crores (in the year 2003), and now with the gross

delay occasioned by the PIL Petitioner, involves an investment (approx.) Rs. 500 crores.

(ii) No commercial exploitation either of the monument or of the lake was involved and

indeed was not permitted. (iii) 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 the50th year of the lease would

amount to Rs. 12 crores approx. (v) The accommodation/resort could only be

constructed within a FAR of 0.1362.Relevantly, the normal FAR permitted is 2 while the

FAR permitted for the SLP Petitioner's Project is only 0.1362. (vi) No structure in the

entire project could exceed the height of 9 meters and also could not exceed morethan a

total of two floors viz. ground and first. (vii) Almost 12 acres ofland would be devoted to a

handicrafts village showcasing the culturalheritage of Rajasthan where the commercial

return to the bidder would beonly in the form of lease rent, and the sales occurring due to

footfallswould accrue to the sub-lessee who sells the craft and not to the SLPPetitioner.

(viii) The project has along gestation period not only interms of restoration and

development costs but also construction ofinfrastructure, and the footfalls would increase

only over time after theProject has fully established its credentials. (ix)  In a

nutshell,therefore, huge investments-sure, certain and un-avoidable were frontended;

possible returns-unsure and uncertain were back ended. (x) All theforgoing admitted points

have been completely ignored in the impugnedorder, or not noticed or cursorily

mentioned and not decided, and in anyevent 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 sustainableand

pleasing environmental ambience. The lease rent model, increasing astime goes on had

always been the consistent approach of the State since1999 when restoration was first

envisaged. It is inconceivable that this model could be created to assist or benefit the

bidder like the SLP Petitioner who came in to the picture for the first time only in year

2003.

102. Learned Attorney General had submitted that it is an axiomatic legal principle that
revenue maximization cannot and need not be the soleor 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
disuseand failure, reluctant bidders, certain and unavoidable front endedinvestments
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 potentialinvestors/bidders without any bid or auction at all is a fully valid
mannerof creating infrastructure where non-existed, especially in nascent areasand new
areas projects. In respect of this submission reliance has beenplaced on (i) Natural
Resources Allocation (2012) 10 SCC 1 @87 pr. 119, 120- CLC 1/153-244 @ 206; (ii)
Sachidanand Pandey V. State ofWest Bengal (1987)2 SCC 295 @ 314 p. 19, @ 264 pr. 35,
@ 266 pr. 39, @ 266-67 pr. 40-41, 43;(ii) M.P. Oil Extraction vs. State of M.P. (1997) 7
SCC 592 @ 612-613 pr 45- CLC 1/271-285 @ 284; (iv) Kasturi Lal Lakshmi Reddy v.
State of Jammu Kashmir (1980 4 SCC 1 @ 13 pr. 14 ­ CLC 1/286-300 @ 294].

103. In fact, we have noted that there was not one but repeatedattempts at tendering
which had failed. While the earlier attempts failed,the present tender open to the whole
world, shrunk from 20 parties to9parties and then to only 4 parties at the time of
submission of bids(whereby the SLP petitioner succeeded on merits). If the project
value correctly involved 4 and 5 crore figures mentioned in the impugned order, it is
inconceivable and inexplicable as to how and why neither the 20 northe 9 nor the 3 ultimate
bidders apart from the SLP Petitioner offered amaximum figure of Rs. 2.52 crores only.
The bidding process was open andtransparent considering tourism development.

104. We have taken note of the factual submission that the reservefigure of lease rental
expected by the State had been fixed at Rs. 1 crorein the RFP [Vol 3/551 @ CL 3.2]. This
was not merely an adhoc magicalfigure plucked out from the air but arrived at after
repeated transparentevaluation by expert committees and proclaimed openly to the whole
world.There is not even an allegation of surreptitious or ex-parte dealing at thestage of
conceiving and designing the tender or stipulating its multipleparameters. This minimum
rent had been determined with the objective ofproviding a rate of return of 20-22% per
annum from the Project to theprivate sector developer. Such a rate of return was
considered a reasonablereturn for a long term capital asset which at the end of the lease
wouldhave no terminal value for the developer, as it would require to betransferred
back to RTDC who is acting on behalf of R2 [PDCOR-R6 WS in HC(Bpr 6). Thus, it is
evident that sufficient economic diligence were usedbefore issuing the RFP and
subsequently accepting KGK Consortium's highestfinancial bid. In conclusion, therefore, it
had to be held that there was no mala fide in the decision making process and the finding
given by the High Court, cannot be sustained and hence deserves to be set aside.

105. On a careful analysis of the submissions of the contestingparties in the light of the
materials referred to before the High Court asalso this Court, we further cannot overlook the
historical background andthe 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 there afterthe
respondents herein filed three public interest litigations whichclearly fails the test of
utmost good faith. It needs to be recollectedfrom the sequence of events and the historical
background related hereinbefore that the Jal Mahal Tourism Infrastructure Project was
conceived andapproval was given by the Standing Committee on Infrastructure
Development(for short `SCID') for the first time in its third meeting held
on21.12.1999. Resolution had been filed in which it was stated that at thatpoint of time
Jaipur Municipal Corporation must own the project. Hencebids were initially invited in
the year 2000-01 without identification ofthe land to be used and without studies with
regard to Environment ImpactAssessment. The bid process were therefore scrapped and
JDA was made thesponsoring department for the lake side development component in
the meeting of Board of Infrastructural Development and Investment Promotion(BIDI)
held on 23.08.2002 and 3.9.2002. After approval, an expendituresanction was granted by
the MoEF, for the Lake Restoration Component butMoEF had clearly granted approval to
the lake side development component ofMansagar Lake. It is no doubt urged on behalf
of the respondent­PIL petitioner and taken note of by the High Court that the National
Lake Conservation Plan did not contemplate any commercial venture upon the laketo be
restored under the plan. But it cannot be overlooked that the StateGovernment had full
authority to carve out a plan for development of lakeand the lake area considering the fact
that way back in 1962 the lake gloryas a pristine water body lasted only until the former
rulers had their control over the city and unpleasant history of lake began when the
newadministration of Jaipur diverted walled city sewage in 1962 through twomain waste
water drains namely Brahmapuri and Nagtalai. It is borne outfrom the factual history of
the lake that most notorious aquatic weed water hyacinth entered into lake in 1975 and the
water fall foul populationstarted affecting the resident and migratory species. It is in
thisbackground that the Government of Rajasthan submitted project forrestoration of
Mansagar Lake to the Central Government. Thereafter, JalMahal Tourism Infrastructure
was conceived and approved by the StandingCommittee on Infrastructure Development
in its meeting held on 21.12.1999and initially Jaipur Municipal Corporation was to own
the project. The bids were invited in the year without identification of the land to be
usedand without studies with regard to the Environment Impact Assessment.Hence, the
bid process was scrapped and the Jaipur Development Authoritywas made sponsoring
department for the lake side development component inthe meeting of Board of
Infrastructure Development and Investment Promotion(for short `BIDI) held on 23.8.2002
and 3.9.2002. Hence the ProjectDevelopment Corporation of Rajasthan (for short
`PDCOR') got a detailed project report prepared which contemplated the following
components:

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

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

106. Thereafter, in the meeting of BIDI held on 9.08.2003, it was decided that nodal
agency for the Jal Mahal Tourism Project will be Tourism Department of Government
of Rajasthan instead of JDA. Thereafter, the tourism department assigned the
responsibility to the Rajasthan Tourism Development Corporation (for short `RTDC')
vide orderdated 6.9.2003. The last date for submission of deed was 5.9.2003.
Thepetitioner on the other hand and also the Attorney General clarified thatthe need to
issue office memorandum dated 24.5.2011 was felt because OMdated 28.4.2011 in broad
terms provided that category B projects thatfell within 10 KM of notified critically
polluted areas would be treatedas category A and general condition would be applicable to
such projects.MoEF in order to clarify OM dated 28.4.2011 issued OM dated
24.5.2011that expressly provided that the projects falling under Items 8 (a) and/or 8 (b) do
not attract general condition.

107. On an analysis of the aforesaid aspects, it is clear that theproject that was conceived,
deliberated and given effect to emerged fromthe status of the land adjoining the lake area
which had a history behindit and in view of the garbage, filth stench on the area, decision
had been taken to develop the two project site.

108. We have further taken note of the arguments advanced by the Ld.Attorney General
who had submitted that the High Court has not taken intoaccount the steps that were taken
in the project since 1998 onwards. The Ldt. Attorney General representing the State had
relied on a comprehensivelist of dates beginning from 1984 onwards discussed
hereinbefore to showthe step by step decision taken before the project was awarded to the
KGK Consortium including the Jaipur Master Plan of 2011.

109. It may further be noted that the argument advanced by thecounsel for the
respondent PIL Petitioner that 100 acres land lease to thepetitioner was part of the lakebed,
does not get supported from the revenueentries placed on record or any other material which
makes it clear andestablishes that only 13 bighas 17 biswas is classified as `gairmumkin
talab' (lakebed) being khasra No. 67 /317 which would be approximately8.65 acres.
However, the balance land that is 100 acres less 8.65 acres isin fact recorded as `Banjar' in
the revenue record and not lakebed. We findsufficient substance in the plea that this Court in
the past have placedreliance on revenue entries to determine the nature of land from
which it follows that based on the revenue entries, no other khasra of land forming part of
100 acres of land leased to the petitioner is lakebed. It may further be noted that as per
the petitioners/appellants 14.15 acres of land is `banjar' and not lakebed whereas according
to the PIL petitioner it is a lakebed/wetland which is contrary to the revenue record.

110. From the version and counter version of the counsel for the parties, it is obvious that
although the PIL petitioners had challenged the100 acre land as lakebed so as to assail that
the same could not have beena 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
and10 biswas and another chunk comprising 8.65 acres equivalent to 13 bighasand 17
biswas. The counsel for the appellant-lessee submitted that if therevenue record for 13
bighas 17 biswas equivalent to 8.65 acres noted as`gairmumkin talab' lakebed bearing
khasra No. 67/317 is relied upon by theCourt, then further revenue entries classifying
14.15 acres of landrecorded as barren land/banjar also should be accepted, adopting the
viewtaken in the matter of Okhla Bird Sanctuary case (Supra) that revenueentries are fit
to be relied upon in order to determine the nature and character of the land.

111. However, we are of the view that in order to avoid thiscontroversy in regard to
these two chunks of lands as to whether the sameform 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 thelease
hold area so as to be given out on lease to the petitioner/appellant.In view of this 13 bigas
and 17 biswas of land equivalent to 8.65 acres which has been classified as `gairmumkin
talab'/ bearing khasra no. 67/317shall not be treated as a part of the lease hold area and the
same shall bewithin the control and domain of the Government of Rajasthan which will be
free to reconvert this area into the lake area.

112. In so far as 14.15 acres of land recorded as barren land/banjaris concerned, we are
pleased to hold that this area shall be treated as aconstruction free zone and neither party
i.e. the State of Rajasthan northe lessee/appellant herein shall be permitted to raise any
constructionthereon. We are informed that this area is being used as a
publicpromenade (walk way) for the use of the public which shall be allowed to continue.

113. In so far as the balance area of land pertaining to the lease deed is concerned, we
are pleased to hold that the respondents/PIL petitioners have not been able to lead any
iota of evidence or material to prove that this area was at all or at any point of time lakebed
or wetland. This fact is further proved from the historical background of this litigation
as it is the case of the appellant/lessee/ the PIL 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 landway 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,
theStanding Committee on Infrastructure Development (SCID) agreed that theJaipur
Municipal Corporation must own the project to develop this land andthe bids were invited
in the year 2000-01 with regard to the development ofthe land. However, the same was
scrapped and the JDA was made thesponsoring department for the lake side
development component in themeeting of the board of infrastructure development and
investment promotion held on 23.8.2002 and 3.9.2002.

114. From the aforesaid history, it gets factually established thatthis land in any view was
available for development atleast way back from21.12.1999 and no question was ever
raised that this was not available forinfrastructural development. In fact, we have further
noted that in the three Master Plans of Jaipur, 200 acres of land were shown for
infrastructural development for tourism purpose and out of that 100 acreswas made a part
of the lease deed after extensive research conducted by theProject Development Corporation
of Rajasthan which got detailed projectreport prepared way back in 2001 when the
petitioner/appellant was not evenin the picture so as to develop the land. Even if the
Ministry ofEnvironment and Forest of the Central Government did not accept
theposition that it had given clearance for this project, the fact remainsthat the land was
lying within the domain of the State Government due towhich it had full administrative
discretion to take a decision in regard todevelopment of the land and it is not that it was done
in a huff or hurrywithout deliberation or study. In fact the Project Development
Corporation(PDCOR) got the detailed project report prepared way back in 2001
andthereafter in 2003, steps for inviting tender were taken by the PILpetitioners. If at
all the bonafide of the respondent/PIL petitioners wereclear, they ought to have assailed the
invitation of tender which finally got executed only in the year 2005.

115. Thus, from the year 2001 when detailed project report wasprepared, decision to
award tender was taken, `Expression of Interest'invitation of tender and bid was invited
and accepted, the PIL petitionersnever ever challenged these activities on the part of the
State which wasapproved, accepted and continued by the successive Governments which
wereruling in the State of Rajasthan. Thus, the submission of the counsel forthe appellant
that the PIL lacks bonafide and good faith cannot be brushedaside totally although the same
has neither been a reason with the HighCourt nor with us to reject the petition as we have
ignored the delay andalso lack of bonafide on the part of the PIL petitioners/respondents
hereinand have examined the matter on merit taking note of every meticulous argument
and counter argument advanced by the contesting parties.

116. From this, it is clear that although the Courts are expected very often to enter into the
technical and administrative aspects of the matter, it has its own limitations and in
consonance with the theory and principle of separation of powers, reliance at least to some
extent to the decisions of the State Authorities specially if it based on the opinion of the
experts reflected from the project report prepared by the technocrats, accepted by the entire
hierarchy of the State administration, acknowledged, accepted and approved by one
Government after the other, will have to begiven due credence and weightage. In spite of
this if the Court chooses tooverrule 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, thePIL petitioners shall have to be put to
strict proof and cannot be allowed to function as an extraordinary and extra judicial
ombudsmen questioning the entire exercise undertaken by an extensive body which
include administrators, technocrats and financial experts. In our considered view,this might
lead to a friction if not collision among the three organs ofthe State and would affect the
principle of governance ingrained in thetheory of separation of powers. In fact, this Court
in the matter of M.P.Oil Extraction v. State of M.P., (1997 7 SCC 592 at page 592)
has unequivocally observed that the power of judicial review of the executiveand
legislative action must be kept within the bounds of constitutionalscheme so that there
may not be any occasion to entertain misgivings aboutthe role of judiciary in outstepping
its limit by unwarranted judicialactivism being very often talked of in these days. The
democratic, set-upto which polity is so deeply committed cannot function properly unless
eachof three organs appreciate the need for mutual respect and supremacy in their
respective fields.

117. However, we hasten to add and do not wish to be misunderstoodso as to infer that
howsoever gross or abusive may be an administrativeaction or a decision which is writ
large on a particular activity at theinstance of the State or any other authority connected
with it, the Courtshould remain a passive, inactive and a silent spectator. What is
soughtto be emphasized is that there has to be a boundary line or the proverbial`laxman
rekha' while examining the correctness of an administrativedecision taken by the State
or a Central Authority after due deliberation and diligence which do not reflect
arbitrariness or illegality in itsdecision and execution. If such equilibrium in the matter
of governancegets disturbed, development is bound to be slowed down and
disturbedspecially in an age of economic liberalization wherein global players are also
involved as per policy decision.

118. In a matter of the instant nature, where the policy decisionwas taken way back from
1976 followed by Master Plans to develop aparticular chunk of land by adopting the
mode of private/public partnershipmethod and a global tender was floated, obviously the
private players werebound to participate specially in an age when private partnership is not
ananathema. In that view of the matter when a particular policy decisionwas taken to
develop a particular project supported by extensive researchand study by the experts in the
field who prepared the project reportrelying 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 inquestion is
a wet land without substantiating the same in any manner, i.e.neither from the
revenuerecord nor any other material, the perception of PIL Petitioners without factual
basis cannot be allowed to prevail over thedecision of the entire group of experts which was
finally accepted by theState Government through the Project Development Report of a
State Agencywhich got the detailed project report (DPR) prepared and nothing could
bebrought to the notice of the Court that the DPR was not fit to be reliedupon or that it was
prepared in a clandestine manner. In our consideredview unless the Detailed Project
Report, Master Plan of Jaipur, RevenueRecord indicating the nature of land that the
project was fraught with riskof environmental degradation which could establish with facts
& figures that the decision is not in public interest, interference by the Courtadopting an
over all view smelling foul play at every level of administration is bound to make the
governance an impossibility. Therefore, the courts although would be justified in
questioning a particular decisionif illegality or arbitrariness is writ large on a particular
venture,excessive probe or restraint on the activity of a State is bound to derailexecution of
an administrative decision even though the same might be inpursuance of a policy decision
supported by other cogent materials likesurvey and search by the reliable Expert Agency
of a State after which theState Project or private and public partnership project is sought
to be given effect to.

119.At this juncture, we take note of two overriding considerationswhich combined, narrow
the scope of review. The first is that of deferenceto the views of administrative experts and
the other we take assistancefrom the words of Chief Justice Neely who expressed as
follows:

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

The learned Chief Justice further observed as follows:

         "I am not an accountant, electrical engineer, financier, banker, stock broker, or
        systems management analyst. It is the height of folly to expect judges intelligently
        to review a5000 page record addressing the intricacies of public utility operation. It
        is not the function of a judge to act as a super board, or with the zeal of a pedantic
        schoolmaster substituting its judgment for that of the administrator. The result is a
        theory of review that limits the extent to which the discretion of the expert may be
        scrutinized by the non-expert judge. It was suggested that the alternative for the
        court is to desist itself from interference on technical matters, where all the
        advantages of expertise lie with the agencies. If the court wereto review fully the
        decision of an expert body such as State Board of Medical Examiners, `it would find
        itself wandering amid the maze of therapeutics or boggling at the mysteries of the
        pharmacopoeia'."

120. Bearing the aforesaid aspects in mind, we are prone to infer that the disputed area of
the lease deed borne out from the revenue recordis clearly confined to14.15 acres plus 8.65
acres and the balance area of the lease deed could not have been interfered with so as to set
aside the entire project.

121. However, we have noted that the period of the lease deed had been finally fixed as
99 years which in our view could not have been done by the State Government as that
clearly converts the lease deed into 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 could not have been more than 30 years yet the tender was floatedfor a period
of 60 years which was later extended to 99 years. This in ourview could not have been done
by the State Government as one can infer evenat a glance that the same being contrary to
the rules, could not have granted it for a period of 99 years.

122. We, therefore, set aside the period of lease which has beengranted in favour of the
appellant for a period of 99 years and the sameshall stand reduced to a period of 30 years
only which could be the maximumperiod 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 theperiod
of 30 years. But we are conscious of the fact that much time haslapsed after execution of
the lease deed in 2005 due to which only Phase-Iof the project could start after which it got
stuck and the project is in astate of limbo due to delay on account of the litigation started
at the behest of the respondent/PIL petitioners who questioned the validity of thelease deed
executed and finally succeeded in getting it set aside. We are,therefore, of the view that
the lease deed which could not be madeeffective in view of the intervening litigation due
to which the Projectgot delayed, it is legally just and appropriate to direct that the period
of 30 years of the lease shall now be counted from the date of this judgment and order.

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

124. Thus the lease deed although was executed for a period of 99years shall pursuant to
this decision, run for a period of 30 years which shall commence from the date of this
judgment and order and may be extended by the State Government for such other period as
may be considered legally viable based on the rules and regulations at the relevant
period. We further add in the interest of justice, that after expiry of 30 years of lease
period and in case the lease deed is not renewed in favor of theappellant, the State
Government shall compensate the appellants at themarket value of the project including
compensation for the loss of businessand profit. It is clarified that in the event of any dispute
arising withrespect to quantum of compensation, it may be resolved by availing the
remedy of arbitration mechanism provided in the lease deed.

125. We are informed that the first phase of the Project has beencompleted since
February, 2011. It is therefore directed that thecompletion certificate and the lease
agreement for the first phase beissued expeditiously but not later than a period of 30 days
from the date of receipt of this order. Accordingly, the State Government shall issuethe
restoration completion certificate for Phase I to enable the Projectalongwith the Jal Mahal
Monument as per the Lease Deed, to open for entryand visit of the members of the public.
Upon issuance of the phase­I certificate, the project developer/lessee/appellant shall be
allowed to under take the construction as per the approved plan in terms of the lease deed.

126. We further hold that the area of 8.65 acres equivalent to 13bighas and 17 biswas shall
not form part of the lease hold area as alreadystated hereinabove and the same shall
stand re-transferred to theGovernment of Rajasthan which shall be recarved and added to
the lake areaand the same shall be maintained by the competent authorities of the
State.However, the area of 14.15 acres equivalent to 22 bighas and 17 biswasalthough
shall be notionally treated as part of the lease deed, the saidarea shall be treated as a
construction free zone which will be allowed tobe used as a walkway/ the public
promenade free of any charge at theinstance of the lessor and the lessee. Remaining
portion of the landforming part of the lease deed shall remain intact to be used by
theappellant as per the terms and conditions of the lease deed alreadyexecuted.
However by way of abundant caution, we clarify that MansagarLake Restoration Project if
undertaken by the State or the Ministry ofEnvironment, the same shall not get affected by
virtue of the lease deed in any manner.

127. It is further held that since the land which is a part of thelease hold area barring 2
chunks viz. 8.65 acres equivalent to 13 Bighas 17Biswas of land and 14.15 acres of land
approximately 22 Bighas 10 Biswas,in all 35 bighas and 27 biswas equivalent to 22.80
acres, the Wetland Rulesof 2010 shall not apply to the project since environment
clearance hadalready been issued under PIA 2006 prior to commencement of the project. In
any view the lease hold area barring the land equivalent to 35 bighas and 27 biswas having
not been held as wetland or lakebed as per the revenue record as also the fact that it was
available for development way back from 1982 which gets established from the various
Master Plans of Jaipur and thehistorical background referred to hereinbefore, no dispute
relating toapplication of the Wetland Rules 2010 shall be allowed to be
raisedhereinafter with retrospective effect in regard to the lease hold area ofthe land which
has been granted for development of the project and couldnot be proved to be wetland
barring 22.80 acres equivalent to 35 bighas and17 biswas. It is further clear by now that
the project comprising thelease hold land is not in conflict with the development of lake
area or JalMahal monument so as to raise issues or concern regarding the lake area
orenvironment degradation as restoration and maintenance of Jal Mahal cannotpossibly
disturb the monument or lead to environmental degradation. In anyview, the dispute being
confined to the lease hold area for development ofthe project which we have now resolved,
we direct that the appellant/lesseeshall be entitled to re-start the project forthwith subject to
what we have recorded hereinbefore.

128. The judgment and order of the High Court thus stands quashedand set aside to the
extent by which the lease deed has been cancelledexcept an area of 13 bighas 17 biswas
equivalent to 8.65 acres and thebalance disputed area claimed to be lake bed comprising
14.15 acres shall be notionally treated as part of the lease deed but the same shall remain a
construction free zone where neither the State Government of Rajasthan northe
appellant-lessee/Jal Mahal Resorts Pvt. Ltd. shall have the right toraise any construction on
this area as the same shall remain exclusively for the use of public promenade / walkway
free of charge.

129. In view of the analysis made hereinbefore, these appeals standpartly allowed to
the extent indicated hereinabove but in the circumstance, the parties are directed to bear
their own costs.