Arun Mishra - (1.) 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 V/s 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. 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 be borne by the State Government. The administrative approval and expenditure sanction was granted by the MOEF vide order Annex.5 dated 5.9.2002 and the order was revised by the MOEF vide Annex.6 dated 23.12.2002. The JDA implemented the lake restoration plan under which Sewage Treatment Plant (STP) near Brahampuri has been revamped from which treated water is being diverted to lake for compensating evaporation losses during dry weather. A two step Tertiery Treatment Plant has also been developed. Lake has been cleared from hyacinth plants completely by the JDA. The JDA has also invested in development of lake front promenade on Jaipur-Amer Road and constructed road etc. along the lake on north side which has formed a new water body of about 5 hac. in size for storing hill run off during rainy season for wild life which includes Hanuman langur (Semnopithecus entellus), Black aped Hare (Lepus nigricollos), Indian Porcupines (Hystrix indica), Blue bull (Boselaphus tragocamelus), Sambhar (Cervus unicolor), Common Mangoose (Herpestes edwardsii), Jackals (Canis aureus), Striped Hyaena (Hyaena hyciena) and panther (Panthera leo). The JDA has also funded Rs.10 million to the State Forest Department for improving lake catchments area falling in the Nahargarh hill area (Arawali Range) which is the only natural watershed. The lake is surrounded almost from three sides by Arawali Hill Ranges. The hills are either part of Nahargarh Wildlife Sanctuary or Reserved Forest Ranges known as Amer Block 54 and Amargarh Block 92. Map of Nahargarh Wildlife Sanctuary has been filed as Annex.7 to the petition. The petitioner 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 28 of shrubs were planted. Besides improving landscape, the plant species provide shelter and food to the local fauna. Migratory birds may also be benefited. Similar plantation was also done on three islands. It is further averred that Jal Mahal Tourism Infrastructure Project was conceived and approval was given by the Standing Committee on Infrastructure Development (for short "SCID") in its 3rd meeting held on 21.12.1999. Resolution Annex.10 has been filed in which it was stated that Jaipur Municipal Corporation must own the project. The bids were invited in the year 2000-01 without identification of the land to be used and without studies with regard to environment impact assessment. The bid process was scrapped and JDA was made sponsoring department for the lake side development component in the meeting of Board of Infrastructure Development and Investment Promotion (for short "the BIDI") held on 23.8.2002 and 3.9.2002. The petitioner has emphasized that MOEF granted administrative approval and expenditure sanction only for the lake restoration components and there was absolutely no consideration by the MOEF to the lake side development component of the so called Jal Mahal Tourism Project. As a matter of fact, the National Lake Conservation Plan did not contemplate any such commercial venture upon the lakes to be restored under the plan, which according to PDCOR contemplated the following components:- Task 1 Restoration of Mansagar Lake. Task 2 Restoration and Reuse of Jal Mahal Monument. Task 3 Development of Tourism/Recreational components at the lake precincts. The petitioner has further submitted that in the meeting of BIDI held on 5.8.2003, it was decided that nodel 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 "the RTDC") vide order Annex.14 dated 6.9.2003. Though bidding was started, but no survey of the actual site and demarcation of 100 acres area on the map was made and even environment impact assessment was not carried out before planning the project. In the advertisement, the last date for submission of bid was 5th September, 2003. It was 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 its HUF Manager, thus, it was not fulfilling eligibility qualification provided under the terms inviting tender. However, later on decision was taken to include KGK Enterprises though it was lacking eligibility condition. Jal Mahal Resorts Pvt. Ltd. Company has been incorporated on 10th November, 2004. The decision was also taken to give exemption of stamp duty etc. During the bidding, it was made clear that no commercial activity would be permitted within the precincts of Jal Mahal Complex, but even before agreements were executed, the successful bidder not only sought exemption for commercial activity within the precincts of Jal Mahal Complex but also sought revision of the project proposal and for maintenance of lake water level at the cost of the Government vide letter dated 13.7.2004 Annex.25 to the petition. The petitioner has also submitted that out of 100 acres land, 14.15 acres of land was submerged in water, which has also been leased out. The Mansagar Lake Precincts Lease Agreement dated 22.11.2005 has been filed as Annex.29 to the petition and Jal Mahal Leave and License Agreement dated 22.11.2005 is Appendix-14 of Lease Agreement Annex.29.
(3.) IT is further averred in the petition that master plan of Jaipur-2011 did not permit such activities at the site. 100 acres of land was part of the lake bed itself, out of which 14.15 acres of land was submerged in the water. The area was sensitive for eco system and thus, environment impact assessment was required to be carried out before any such project was prepared, but the same was not done. There was no 100 acres of land beyond the spread of lake bed itself available on the site. IT is further submitted that wall of sufficient height has been constructed for setting apart the proposed 100 acres land from the lake bed and the soil from the lake bed itself was actually used for this purpose. The respondent no.7 Jal Mahal Resorts Pvt.Ltd. has also started preparing high walls of mud and soil in the eastern part of the lake bed near sluice gates and a large area around it for the purpose of preparing sedimentation tanks in the lake bed itself. The project people visit land most frequently disturbing birds on the island and the connection of island with mainland has also led to entry of dogs on the island which feed on the eggs of birds and thus, basic objective of island to provide habitat/breeding ground for resident and migratory birds is forfeited. It is further submitted by the petitioner that one third of the lake was converted into a series of sedimentation tanks made in the down stream of the lake by respondent no.7. Now all dirt with floating objects enters into sedimentation tanks made in the lake bed. Thus, the entire lake has been converted into a series of small tanks followed by a large tank i.e. lake. This has adversely affected aesthetic value of the Mansagar Lake. Prior to construction of storm water management plan, lake water also used to be released for irrigation. Now, water will be released through sluice gates into downstream directly without flowing through the lake basin and there will be no flushing out of salts from the lake. The build of salts will convert fresh water lake into a saline lake which will alter its flora and fauna. It is further submitted by the petitioner that the respondent no.7 was not at all concerned with the construction of storm water management plan that too in the lake bed itself. It has been carried out without any requisite sanction and study by any of the concerned authority otherwise such a large area of the lake could not have been allowed to be sacrificed for such purpose. As per the monitoring done by the petitioner, the chloride content in the Mansagar Lake has been increased and salt in water has gone high, details of which have been given in the petition. The sudden increase in the chloride content of the lake is attributed to direct human interference by way of altering lake basin character. This increase in salinity will definitely affect the lake bio diversity and both the native and migratory birds and species diversity will significantly be dropped. The report of actual reduction in number of birds has been published in Dainik Bhaskar dated 2.2.2010, which has been filed as Annex.34 to the petition. The unique to the area is an endemic species, namely, Plum Headed Parakeet found in the protected forest in Arawali. The project would be dangerous to the species. Due to settling/sedimentation tanks in the lake bed itself, silt/filth, which was to be avoided after restoration of the lake, is willfully invited and drained in the lake itself, which has increased salinity of the water also. The petitioner has further submitted that revision has destroyed the very substratum of the project which was earlier conceived. The whole project after completion was to be put in use by 2010, however, the respondent no.7 has not done anything except filling and compacting the 100 acres land in the lake bed itself by excavating the soil from the lake basin. Though only 13% of the land was to be used for construction activities of the private sector developer and would be of restricted entry and rest 87% was to remain in the form of open spaces, parks, gardens and unrestricted public entry spaces, but in the name of commercial viability and loosely drafted clauses of the bid documents and contracts, complete revision of the plan has been sought by the respondent no.7 after declaration as successful bidder. The Committee under the Chairmanship of the Chief Secretary of the Government of Rajasthan considered the revised master plan and rejected the changes on 10.10.2007. However, another representation was submitted by the respondent no.7 and on 10.9.2009 sanction was granted by the Committee as is evident from Annex.44 to the petition. The petitioner has submitted that Environment Impact Assessment (EIA) was not carried out before 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 has issued a fresh notification (Annex.46 to the petition) on 14.9.2006 in exercise of power conferred under section 3 of the Environment (Protection) Act, 1986 (hereinafter referred to as "the Act of 1986") and rules framed thereunder for environment clearance before implementation of the projects mentioned therein. The project in question is covered by item 8(a) as well as 8(b) of the said notification and therefore, project cannot be implemented without obtaining environment clearance from the Central Government under the aforesaid notification. Since no environment impact assessment was carried out nor any environment clearance has been obtained before finalizing the project, all actions taken by the respondents are absolutely illegal and void. ;