The court established that compliance with apex court orders and eco-sensitive regulations is paramount in land use decisions, particularly concerning tourism development.

JUDGMENT :

PRAVEER BHATNAGAR, J.

1. The writ-petitioner before the Single Bench (hereinafter referred to as ‘the appellant’) and the respondent to the writ petition, the State Government (hereinafter referred to as ‘the respondent’), have assailed the order dated 11.11.2019 of the learned Single Bench by filing two separate appeals.

2. The writ court vide impugned judgment dated 11.11.2019 partly allowed the writ petition of the appellant and passed the following order:

“10. In light of the above discussion, this court directs as below:

(i) The impugned order passed by the Revenue Department, Government of Rajasthan and the Collector, Jaipur (Respondents 2 and 3 herein) whereby the Respondents revoked/cancelled the order dated 10.08.2001 vide which the land in dispute was set-apart for establishment of a hotel/tourism unit and the unilateral cancellation of Lease-Deed are here by quashed and set-aside. Further, the show-cause notices dated 23.04.2012, 10.05.2012 and29.06.2012 and all the proceedings initiated and conducted against the Petitioner by the Respondents in pursuance of the aforementioned notices are also hereby quashed and set-aside. However, the Respondents are given liberty to approach a competent court, for seeking cancellation of the Lease-Deed dated 06.11.2001 and the allotment letter dated 20.08.2001, if so advised.

(ii) The Petitioner is hereby directed to not use the approach road to its hotel/resort since part of the same allegedly falls within Forest area. However, the Petitioner is given a liberty to invoke the jurisdiction of a competent court of law, to determine as to whether it has a right to use the road or not and whether or not, the road falls within forest area.”

3. In the present appeal, the appellant has assailed the second part of the order on the grounds that the pathway is already in existence and this fact is recorded in the order dated 10.08.2001 passed by the District Collector, Jaipur. The writ court did not consider the above document in the impugned order. It is also averred in the appeal that the condition of constructing 60 feet-wide road was impossible to execute as permission for building a road on the customary pathway was impermissible. The Tourism Department executed the lease deed under the tourism policy formulated by the State Government consciously omitted the condition of constructing a 60 feet wide road while executing the lease deed in favour of the appellant, and the doctrine of the blue pen is applicable.

4. In the cross-appeal [D.B. Special Appeal (Writ) No. 329/2020], the State Government (from now on referred to as ‘the Respondent’) has assailed the impugned Judgment on the grounds that the Writ Court failed to consider that the disputed land vests in Eco-Sensitive Zone and that the appellant did not seek permission from the forest department.

5. Learned Senior counsel appearing on behalf of the appellant has vehemently argued that the revocation of setting-aside order was wrong. It is argued that right to way is admitted as the path way is being used and this fact has been mentioned in the order dated 21.08.1998 passed by District Collector, Jaipur. It is also argued that under the Rajasthan Forest Act and Wild Life Protection Act, the path ways have been protected and this fact also gets mentioned in order dated 21.08.1998 passed by the District Collector, Jaipur.

6. Learned Senior Counsel has also contended that in the draft notification dated 12.09.2017, the Eco-tourism activity within the Eco Sensitive Zone is permissible. It is also argued that as per the draft notification dated 12.09.2017, establishment of hotel & resorts are regulated activities and bar contained in the said notification only limits the construction of new commercial hotels and resorts within one kilometer of boundary of protected area, thus, the establishment of appellant’s resort in the disputed