K. P. Sharma vs State of Rajasthan - 2012 Supreme(Raj) 672

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Raj) 672

[Citation : RLW 2012(1) RJ 596 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
K.P. Sharma (Prof.) Vs. State of Rajasthan & Ors. (Mishra, CJ.)
HON'BLE ARUN MISHRA, CJ.
HON'BLE MAHESH BHAGWATI, J.
K.P. Sharma (Prof.)
Versus
State of Rajasthan & Ors.
D.B. Civil Writ (PIL) Petition Nos. 6039 of 2011 AND 5039 & 4860 of 2010,
decided on 17.05.2012

Advocates Appeared
Aruneshwar Gupta, Rajendra Prasad & A.K.Jain, for Petitioners;
G.S.Bapna, Sr.Adv., Advocate General with S. Jain; R.N.Mathur, Sr.Adv. with Sanchit Tamra; K.K. Sharma, Sr.Advocate with Ms. Alankrita Sharma; A.K.Sharma, Sr.Advocate with Anurag Sharma; S.N. Kumawat, Addl.Advocate General, Akhil Simlote and S.S.Hora, for Respondents

Headnote:(a) Rajasthan Tenancy Act, 1955, Sec. 16 — Transfer of "Gairmumkin" land — Some part of land recorded as Gairmumkin Talab Area some part of it is in submergence — Held — It can not be alienated — It is violation of principles of public trust. (Para 82)
       ¼d½ jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 16 & ^^xSj eqefdu** Hkwfe dk vUrj.k & Hkwfe dk dqN fgLlk xSj eqefdu rkykc {ks= ds :i esa] dqN fgLlk Mwc {ks= ¼tyeXu½ ds :i esa ntZ Fkk & vfHkfu/kkZfjr &bls vU; ladkUr ugha fd;k tk ldrk gS & ;g yksd U;kl ds fl)kUrksa dk mYya?ku gSA ¼in la-82½
       (b) Rajasthan Tourism Disposal of Lands and Properties by DOT/RTDC, Rules 1997, Rule 23 — Disposal of land for a lease period of 99 years — It was essential to charge the land's cost when it was to be disposed of for a lease period of 99 years — Held — Land's cost was not determined — It was just selling away of property by way of lease for 99 years — It is in contravention of Rules. (Para 88)
       ¼[k½ jktLFkku i;ZVu Mh-vks-Vh-@vkj-Vh-Mh-lh- }kjk Hkwfwe ,oa lEifr dk fuLrkj.k fu;e] 1997] fu;e 23 & 99 o"kZ dh yht vof/k rd Hkwfe dk fuLrkj.k & tc Hkwfe 99 o"kZ dh yht vof/k ds fy, fuLrkfjr djuh Fkh rks Hkwfe dh dher olwyuk vko';d Fkk & vfHkfu/kkZfjr & Hkwfe dh dher vo/kkfjr ugha dh xbZ & ;g rks 99 o"kZ ds fy, yht ds tfj;s lEifr dk foØ; djuk Fkk & ;g fu;eksa ds mYya?ku esa gSA ¼in la- 88½
       (c) Environment Protection Act, 1986, Sec. 3 — Environmental impact clearance from Central Government — Authority was competent for matter falling under category-B and not for the matter falling under category-A — Held — Prior permission of Central Government MOEF was necessary for the project. (Para 84 & 85)
       ¼x½ i;kZoj.k laj{k.k vf/kfu;e] 1986] /kkjk 3 & dsUnz ljdkj dh rjQ ls i;kZoj.k lEcU/kh lek/kkr fudklh izek.k-i= & izkf/kdkjh Js.kh ^[k* ds rgr vkus okys ekeyksa gsrq l{ke Fks u fd Js.kh ^d* ds rgr vkus okys ekeyksa gsrq & vfHkfu/kkZfjr & bl ifj;kstukFkZ dsUnz ljdkj] ,e-vks-b-,Q- dh iwoZ vuqefr vko';d FkhA ¼in la- 84 o 85½
       (d) Wetland Rules, 2010, Rule 4 — Lake bed has been given including catchment area for permanent construction — Such acts are not permissible within 50 meters — Held — Lease is in contravention — of Wetland Rules — Violative of provisions of Wetland Rules, 2010 and Ramasar convention also. (Paras 109 & 110)
       ¼?k½ rj Hkwfe fu;e] 2010] fu;e 4 & LFkk;h fuekZ.k gsrq vkokg {ks= lfgr >hy ds isVs dh Hkwfe nh xbZ & ,sls d`R; 50 ehVj dh ifjf/k esa vuqKs; ugha & vfHkfu/kkZfjr & ;g yht rj Hkwfe fu;eksa ds izko/kkuksa ds mYya?ku esa gS & rj Hkwfe fu;e] 2010 ds izko/kkuksa dk mYya?kudkjh gS lkFk gh jkelj vfHkle; dk Hkh mYya?ku gSA ¼in la- 109 o 110½
       (e) Rajasthan Municipalities (Disposal of Urban land) Rules, 1974, Rule 6 read with Rule 2 (10) — Properties sold away on lease for 99 years — It has to be on the cost of reserved price — Municipal Corporation can transfer the land to Department of Tourism or RTDC but it should be as per commercial price for a tourism project — Held — Municipal Corporation has failed to act in objective manner — Transfer of land to Department of Tourism or RTDC is in violation of Municipalities Act and Rules of 1974.
        (Paras 89, 93 & 94)
       ¼M+½ jktLFkku uxj ikfydk ¼'kgjh Hkwfe dk fuLrkj.k½ fu;e] 1974] fu;e 6 lifBr fu;e 2¼10½ & 99 o"kZ ds fy, yht ij lEifr foØ; dh & ;g vkjf{kr ewY; dh dher ij gh gksuh pkfg;s & uxj fuxe i;ZVu foHkkx ;k vkj-Vh-Mh-lh- dks Hkwfe vUrfjr dj ldrk gS ysfdu ;g i;ZVu ifj;kstuk gsrq O;kolkf;d nj ds vuqlkj gksuh pkfg;s & vfHkfu/kkZfjr & uxj fuxe oLrqfu"B <ax ls dk;Zokgh djus esa foQy jgk & i;ZVu foHkkx ;k vkj-Vh-Mh-lh- dks Hkwfe dk vUrj.k uxj ikfydk vf/kfu;e ,oa 1974 ds fu;eksa ds mYya?ku esa gSA ¼in la[;k 89] 93 o 94½

       ;kfpdk fuLrkfjr dhA

Hon'ble MISHRA, CJ.—The writ petitions have been filed in the public interest to quash Jal Mahal Tourism Project and cancel Mansagar Lake Precinct Lease Agreement dated 22nd November, 2005 giving 100 acres of land on lease for a period of 99 years to respondent no.7-Jal Mahal Resorts Private Limited and Jal Mahal Leave & License Agreement dated 22nd November, 2005. In Writ Petition No.6039/2011, prayers have also been made to quash the approvals and clearances contained in the orders dated 16.9.2009 and 22.9.2009 and to direct the respondent no.7-Jal Mahal Resorts Pvt. Ltd. to restore the original position of 100 acres of land by removing the soil filled-in by it at its own cost and to hand over the possession to the Municipal Corporation, Jaipur; to immediately remove all sedimentation and settling tanks from the Mansagar Lake basin at its own costs; to restore position of Nagtalai and Brahampuri Nalah (Drains) to their original position as realigned by RUIDP under Mansagar Lake Restoration Plan. Prayer has also been made to direct the respondents-authorities to monitor and maintain the Mansagar Lake in its full original length, breadth and depth and to take appropriate action against all those responsible for execution of the contract for transfer of 100 acre land in favour of RTDC as well as the respondent no.7-Jal Mahal Resorts Pvt. Ltd. and for permitting the respondent no.7 to excavate the soil of the Mansagar Lake, construct sedimentation and settling tanks in the lake basin and filling in and compacting of 100 acres land area of the lake basin and realignment of the drainage of Nagtalai and Brahampuri Nalah. Prayer has also been made that compensatory fine as determined by this Court may be imposed for causing damage to the Mansagar Lake area and environment. In Writ Petition No.5039/2010, prayers have also been made to remove all encroachments made in the catchment area of Mansagar Lake; discharge of sewage in the Mansagar Lake be stopped; people be allowed to go to their religious places Bhairav Mandir, Mazar etc. situated near Jal Mahal without any obstruction.

2. Facts are being narrated from Writ Petition No.6039/2011 Prof. K.P. Sharma vs. State of Rajasthan & ors. It is averred that the petitioner is involved in the research with regard to Mansagar Lake and has published a paper which was read in the 12th World Lake Conference (TAAL 2007) and the same has been filed as Annex.1 to the petition and another research paper Annex.3 has also been filed. It is submitted that Mansagar Lake is a large lake on the northern fringe of Jaipur City. The maximum level of the lake is at 99.0m contour at which volume of water is 3136569.75 MCM. The lake glory as a pristine water body lasted until the former rulers had their control over the city and unpleasant history of lake began when new administration of Jaipur diverted walled city sewage in 1962 through two main waste water drains namely, Brahampuri and Nagtalai. The most notorious aquatic weed water hyacinth (Eichhornia crassipes) entered in the lake in 1975. During studies made by the petitioner and his colleagues, 10 zooplankton species, arthropods, fishes and 92 species of birds were observed at Mansagar Lake and out of 92, 41 are aquatic and 51 were forest dwellers. The water fowl population included 16 resident and 25 migratory species. The Mansagar lake and the monument therein were declared protected monuments, however, they were deleted from protected monuments in the year 1971.

3. It is further averred that the Ministry of Environment and Forest (for short "the MOEF"), Government of India prepared National Lake Conservation Plan (for short "NLCP") for restoration, conservation and maintenance of urban lakes. The Government of Rajasthan has submitted project for restoration of Mansagar lake to the Central Government. The total cost of the project was estimated to be Rs.24.72 crores, out of which, 70% was to be provided by the Government of India while the rest was to

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2012 Supreme(Raj) 672

Cases Referred (35)