Rajendra Kumar Razdan vs Mr. T. Srinivasan & Ors

THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

1. D.B.Civil Misc.Contempt Petition No.90/2010 Rajendra Kumar Razdan V/s Mr.T.Srinivasan & ors.

2. D.B.Civil Writ Petition No.12652/2011

Municipal Council Udaipur V/s Smt.Saraswati Devi Singhal & ors.

Date of Order::- 27.9.2012

PRESENT

HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR.JUSTICE SANGEET LODHA Reportable Mr.Rajendra Kumar Razdan petitioner present in person.

Dr.P.S.Bhati ) Mr.Sanjeev Johari )-Amicus Curiae

Mr.Jagdeep Dhankar, Senior Counsel with Mr.Rajesh Joshi for the applicant-M/s Vardha Enterprises.

Mr.M.S.Singhvi, Senior Counsel with Mr.Mohd.Aslam, Mr.Akhilesh Rajpurohit & Mr.Rajat Dave for the applicants-Smt.Saraswati Singhal, Shri Sanjaya Singhal and the Lake Palace Hotels & Motels Pvt.Ltd.

Mr.Anand Purohit, Senior Counsel & Additional Advocate General with Mr.Pradhuman Singh for the State of Rajasthan.

Mr.N.M.Lodha, Senior Counsel with Mr.Deelip Kawadia for the Urban Improvement Trust.

Mr.B.S.Charan for Municipal Council.

Mr.Dinesh Mehta, Court Commissioner.

Mr.Manish Shishodia for Rajasthan State Pollution Control Board.

Mr.Ravi Bhansali for respondent no.7

ORDER

Per Hon'ble Arun Mishra, CJ

D.B.Civil Misc.Contempt Petition No.90/2010 Rajendra Kumar Razdan V/s Mr.T.Srinivasan & ors. 2

The contempt petition no.90/2010 arises out of

non-compliance of the order passed by the Division

Bench of this Court in Public Interest Litigation

relating to saving of most majestic and splendid

Udaipur city of lakes which is attracting tourists from

various countries to Udaipur. Lakes are situated amidst

the historic relics of Mewar founded in 1559 AD.

Udaipur Lake system is very old and well known in the

country for its scenic beauty. There are many lakes in

Udaipur City and they are life-line of the inhabitants

of City of Udaipur. These lakes are feeding, storing

and collecting fresh rain water from respective

catchment area and they are directly or indirectly

connected with each other. The main lakes are Pichhola

lake, Swaroop Sagar lake, Fateh Sagar Lake, Badi lake,

Udai Sagar Lake etc.

People of Udaipur District are making use of

water of lakes for drinking as well as for irrigation

and industrial purposes. However, these major water

resources have gone degraded by sewage disposal,

bathing, washing and other activities including

domestic waste.

The heritage of Udaipur lakes and their catchment

have been confronting number of challenges to their

very existence and from time to time, this Court had

issued various directions in the writ applications with

respect to conservation of lakes, prohibition of

construction activities in and around lakes as well as

in 'No Construction Zone' declared by the State

Government.

The State Government in exercise of the power

under section 171 of the Rajasthan Municipalities Act, 3

1959 (hereinafter referred to as "the Act of 1959")

issued Notification dated 17.1.1997 declaring areas of

'No Construction Zone' in and around Fateh Sagar Lake

and Pichhola Lake. The said Notification was modified

vide Notification dated 10th December, 1999 further

specifying "Prohibited Areas" and 'Restricted

Construction Zone' near lakes and other places of

Udaipur City. Thereafter, the Notification dated

10.12.1999 was partially modified vide Notification

dated 16th March, 2000 to the effect that permission for

"repair and plaster" shall be granted by the Urban

Improvement Trust, Udaipur (for short "the UIT") and

Municipal Council, Udaipur in the 'No Construction

Zone' & 'Prohibited Areas' falling in their respective

area, but permission for addition, alteration and

construction shall be granted only after

approval/sanction of the State Government.

Considering the Notifications issued by the State

Government as well as for conservation of lakes system,

the Division Bench of this Court in Rajendra Kumar

Razdan V/s State of Rajasthan (D.B.Civil Writ Petition

No.4271/1999), passed final order on 6th February, 2007

discussing various lakes and their importance and it

was observed that the present day Society has a

responsibility towards the posterity for their proper

growth and development so as to allow the posterity to

breathe normally and live in a cleaner environment and

have a consequent fuller development; there is

constitutional obligation to ensure that there is no

degradation of environment. Considering the decision of

this Court in Abdul Rehman V/s State of Rajasthan

(2004(4) WLC (Raj.) 435) and other decisions of the 4

Hon'ble Supreme Court, the Division Bench of this Court

in the case of Rajendra Kumar Razdan (supra) issued

requisite directions with respect to sewerage system,

de-silting, hyacinth, solid waste management, removal

of encroachment from catchment area, no construction

zone and also appreciated the efforts made by

petitioners-Rajendra Kumar Razdan and Dr.Tej Razdan for

the noble cause taken by them with great ability and

sincerity. The Division Bench of this Court directed

the State Government to consider establishment of Lakes

Development Authority under the Statute; take effective

steps so as not to permit any sort of construction

within the 'No Construction Zone'; desilting of lakes

was ordered; conversion and construction permission in

and around the lakes and in their respective catchment

areas was completely banned except the rarest of rare

exceptional case; catchment areas of the lakes were

ordered to be earmarked; submerged peta land of the

lakes was also directed to be earmarked and it must be

ensured that no human activities are carried on in the

said area.

The petitioner-Rajendra Kumar Razdan in the

contempt petition has alleged that various directions

have been issued by this Court vide order dated

6.2.2007, but compliance of the same has not been

effected by the respondents-authorities in true letter

and spirit; undertakings, affidavits, paper work etc.

remain on the paper and the same trend is being

continued.

It is further alleged by the petitioner that lakes

of Udaipur and their catchment areas are also sole

life-line for drinking water; being heritage lakes of 5

India, they are placed on the world/domestic tourist

map; all these lakes and their catchment areas have

also been selected under National Lakes Conservation

Plan of Central Government and admittedly first

instalment of financial aid under the said Scheme was

received against the sanctioned amount of about Rs.85

crore.

It is further averred in the contempt petition

that catchment areas of lakes are being destroyed; even

in the "No Construction Zone", constructions are being

permitted to be raised and also in and around the lakes

in illegal manner; lakes are being contaminated and

polluted due to pouring of sewage, intoxicated waste,

garbage, domestic waste etc.

The petitioner has submitted that following jobs,

which were entrusted, have not been done by the

respondents:-

"(a) Formation of Lakes Development Authority for

Udaipur Division Lakes under Statute has not taken

place for effective management in conservation of

Udaipur lakes.

(b) Permissions are being granted in No

Construction Zones as notified by State Gazette

Notification dated 17.1.1997 despite of Court's

restrain orders.

(c) Permissions are also being issued for

commercial conversion and construction in and

around lakes and their respective catchment areas.

(d) Sewage discharge of the city is falling in

these lakes with the result the lakes have become

Cess-pool despite the fact that on sewage project

in past few years almost above 70 to 80 lacs of 6

rupees have been spent by the Government agencies

but net result is gross failure. Constructional

waste material as well as solid waste is being

dumped around lakes which in turn is causing

shrinkage of lake periphery.

(e) National Highway Authority of India & UIT

Udaipur have blocked the natural rain water

feeding canals of the catchment areas of these

lakes.

(f) As yet revenue marking of the lakes and

their respective HFL marking has not been done by

the Administration even submerged Peta- kashth has

also not been localized as such huge encroachments

and unauthorized commercial construction and human

activities are freely going on.

(g) Despite stay order of this Court on

constructions, the permissions are being issued

for Jetties and Boating even in the cases where

the commercial establishment has got good

alternate mode of road connections."

It has been specifically averred in the contempt

petition that despite the directions of this Court,

Lakes Development Authority has not been constituted as

yet; in "No Construction Zone", constructions are being

allowed to be raised; permissions are being granted for

commercial conversion and construction in and around

lakes and their respective catchment areas and thus,

the State Government as well as the Municipal

authorities and UIT, Udaipur are violating the mandate

of this Court. Hence, prayer has been made to take

action under Article 215 of the Constitution of India 7

as well as under the provisions of the Contempt of

Courts Act, 1971 and compliance of the order of this

Court dated 6th February, 2007 be ensured and

directions be issued that all commercial and other

construction activities in 'No Construction Zone' in

and around lakes and their catchment areas in violation

of order of this Court, be stopped.

In the reply filed by respondent no.3- Shri

G.S.Sandhu, Principal Secretary, Local Self Government,

Jaipur, it is submitted that Notification, which was

issued by the State Government on 17.1.1997 in exercise

of the power under section 171 of the Act of 1959

declaring 'No Construction Zone' in and around lakes of

Fateh Sagar & Pichhola, was modified vide Notification

dated 10.12.1999 by which certain areas were also

excluded and notified as "Prohibited Areas" and "Restricted Construction Zone" in and around lakes and

other places of Udaipur City; the UIT, Udaipur has also

framed Bye-laws called "The Urban Improvement Trust,

Udaipur (Restricted Construction Area) Byelaws, 2000

(hereinafter referred to as "the Byelaws of 2000"); in

compliance of the order of this Court dated 6.2.2007, a

Committee was constituted headed by the District

Collector, Udaipur with the Senior Town Planner,

Secretary, UIT, Udaipur and Commissioner, Municipal

Council as Members and the said Committee is complying

with the directions issued by this Court; de-silting is

taking place; lake development works, hydraulic

improvement of feeders, sewerage interception and

diversion, water quality monitoring, IEC activities,

afforestation and Aeration etc. are being looked into.

In the reply filed by the respondent no.4 8

Mrs.Arpana Arora, Divisional Commissioner, Udaipur, it

is mentioned that no construction is being allowed in

the submerged area and in case any such construction is

found, emergent steps will be taken by the Water

Resources Department to negate the same for which

necessary resources would be made available by the

Municipal Council and UIT and police force will also be

made available by the concerned police department while

ensuring that directions issued by this Court are duly

complied with.

In the reply filed by the respondent no.5-Shri

Anand Kumar, Collector, Udaipur, it is submitted that

on 18.1.2010, a meeting was headed by answering

respondent no.5 in which decision was taken to ensure

compliance of the directives issued by this Court vide

order dated 6.2.2007. Every endeavour was made to

ensure that no construction is permitted in the 'No

Construction zone'.

In the reply filed by Dr.R.Dalwani, Director,

National River Conservation, Directorate, Ministry of

Environment and Forests (respondent no.7), it is

submitted that the State Government approached the

Ministry of Environment and Forests for constitution of

Udaipur Lakes Development Authority under the

provisions of the Environment (Protection) Act, 1986

(hereinafter referred to as "the Act of 1986") and the

Ministry of Environment and Forests vide letter dated

3rd February, 2010 observed that in compliance of the

directions of this Court, the State Government may

constitute a Lakes Development Authority for Udaipur.

In the reply filed by respondent no.8

Mr.R.P.Sharma, Secretary, Urban Improvement Trust, in 9

addition, it is contended inter-alia that in case

compliance of the order of this Court has not been made

comprehensively, action is always bonafide and in good

faith without any wilful breach of the order; certain

confusion was created by issuance of Notification dated

10.12.1999, however, there was no wilful or deliberate

violation of order of this Court on the part of the

answering respondent no.8; project of sewerage line is

being undertaken; Sewerage Treatment Plant is proposed

to be set up in village Manva Khera; and under the

National Lakes Conservation Plan, budget of about

Rs.42 and Rs.82 crores is proposed to be spent for

Fateh Sagar and Pichhola lake system.

In the reply filed by respondent no.10-Shri

Balmukand Asawa, Commissioner, Municipal Council,

Udaipur, it is submitted that under the National Lake

Conservation Project, desilting of Pichhola lake work

was allotted to Municipal Council, Udaipur and about

Rs.553.71 lacs were sanctioned for that purposes and in

May and June, 2010 when water was not in the lakes,

work of desilting was done and presently, that work is

not possible as the lakes are filled with water. For

conservation of lakes under the National Lake

Conservation Project, Rs.84.75 crores have been

sanctioned and Rs.41.86 crores have been sanctioned by

the Central Environment and Forest Ministry. Whatever

permissions were granted in 'No Construction Zone' in

violation of the Notifications dated 17.1.1997 and

10.12.1999, the same were granted by the Local Self

Government, Rajasthan, Jaipur and the answering

respondent no.10 was not responsible for the same.

Under the National Lake Conservation Project, budget of 10

Rs.35 crores was provided for development of sewerage

line for surrounding areas of the lakes.

This Court in the contempt proceedings passed

order on 12.10.2011 observing that constructions

activities were going on in full swing and fresh

construction permissions are granted in the 'No

Construction Zone' areas of Swaroop Sagar and Udai

Sagar lakes, which are heritage lakes and covered under

the National Lakes Conservation Project of Central

Government and this Court directed that construction

activities, which are going on in 'No Construction

Zone' be stopped forthwith particularly in the area of

Swaroop Sagar and Udai Sagar lakes.

Pursuant to the aforesaid order of this Court

dated 12.10.2011, a compliance report was filed on

20.10.2011 by the Additional Advocate General

alongwith affidavits of Collector, Udaipur and

Secretary, UIT, Udaipur and other documents to show

that construction activities in 'No Construction Zone'

have been completely stopped. It has been specifically

mentioned in the letter of Collector, Udaipur dated

17.10.2011 that 47 constructions were stopped and out

of 47, 41 constructions were going on without due

permission and sanction; construction of M/s Vardha

Enterprises was also stopped though it was having some

administrative sanction.

Submissions were filed on behalf of the

respondents no.1, 3, 4, 5 and 8 by the learned

Addl.Advocate General on 29.11.2011 pointing out that

in view of the Notifications issued by the State

Government on 17.1.1997, which was modified on

10.12.1999, some practical problems arose and this 11

Court was apprised about the same and upon this, vide

order dated 5.9.2000, this Court modified the order

dated 8.5.2000. However, it was emphasized by this

Court that there will be complete stay on the fresh

construction in the 'No Construction Zone' as declared

under the Notification dated 17.1.1997 excluding the

area of Raoji Ka Hatta, Bhatioyani Chouhatta, Clock

Tower Area and Hathipur etc. which were excluded later

on in the year 1999. It was also pointed out that M/s

Vardha Enterprises Pvt.Ltd. was not falling in "No

Construction Zone". However, the fact remains that M/s

Vardha Enterprises is constructing a five star hotel on

island situated in the lake of Udai Sagar.

As the construction activities of M/s Vardha

Enterprises were stopped pursuant to the directions

issued by this Court on 12.10.2011 in the contempt proceedings, M/s Vardha Enterprises has filed

application (IA No.17795/11) on 17.10.2011 for

recalling/clarification of the order dated 12.10.2011

passed by this Court in contempt petition restraining

construction activities in "No Construction Zone";

another application (IA No.17796/11) was filed by M/s

Vardha Enterprises on 17.10.2011 for intervention in

the contempt petition; a further application (IA

No.18059/11) was also filed by M/s Vardha Enterprises

on 18.10.2011 for vacating the interim order dated

12.10.2011.

It was submitted by M/s Vardha Enterprises that

construction work has been wrongly stopped by the

authorities as the order of this Court was only

confined to 'No Construction Zone'; the construction

activities are being undertaken in Udai Sagar Lake on 12

island after bonafide purchasing the land in 2007-08

much after passing of the final order in the main

petition; it was further submitted that M/s Vardha

Enterprises applied for conversion of 8.15 hectare of

land for construction of Resort with FAR to the tune of

16,300 square meter post conversion; the State

Government has issued a circular on 25.8.2010 with a

view to encourage and promote the hotel industry in the

State in the private sector for upliftment of tourism;

conversion permission for changing use of land was

granted to the applicant and thereafter, UIT has

granted permission for raising the construction after

grant of permission by the State Government for

conversion; Section 90B of the Rajasthan Land Revenue

Act was invoked which culminated into order dated

4.12.2009 whereby the land was finally entered in the

name of the applicant for construction of hotel

project. Permission for construction was granted by UIT

on 31.12.2009 and by-partite agreement was entered

into between the applicant and UIT, Udaipur; orders and

permissions for construction as well as for conversion

have been placed on record alongwith the application.

It was further submitted that the applicant has taken a

loan of Rs.50 crores to complete the Project and it has

already invested more than Rs. 15 crores in the

Project; because of the interim order passed by this

Court, heavy loss of Rs.2 lacs per day is being

suffered by the applicant, as such, prayer has been

made in the application to vacate the interim order

passed by this Court on 12.10.2011 and permit it to

raise the construction.

13

Another application has been filed by the

applicant-M/s Vardha Enterprises for intervention in

the contempt petition in which similar averments have

been made. It was further submitted that permission

has also been granted by the Rajasthan State Pollution

Control Board on 28.8.2008.

Application for recalling/clarification of the

order passed by this Court on 12.10.2011 has also been

filed by M/s Vardha Enterprises more or less on similar

averments.

Application (IA No.18403/2011) has also been

filed by the Lake Palace Hotels and Motels Pvt.Ltd. for

intervention in the contempt petition as its

construction activities were also stopped in compliance

of the order passed by this Court in the contempt

petition. It was submitted that construction permission

has been granted by the Municipal Council and thus, its

construction activities cannot be said to be in

violation of the order passed by this Court.

Application (IA No.18431/11) has also been filed

by Smt.Saraswati Singhal and Sanjaya Singhal

(hereinafter referred to as "the Singhals") for

intervention as pursuant to the interim order passed

by this Court in the contempt proceedings, their

construction activities were also stopped and premises

were seized by the Municipal Council, but on appeal,

the appellate authority (Additional Director, Local

Self Department, Government of Rajasthan, Jaipur) vide

order dated 26.9.2011 set aside the notices and seizure

ordered by the Municipal Council and permitted the

applicants-Singhals to raise construction. Thus,

construction activities cannot be said to be illegal 14

or in contravention of order passed by this Court.

Considering the importance of the matter, this

Court vide order dated 19.4.2012 appointed Shri Dinesh

Mehta, Advocate as Court Commissioner to inspect the

various spots, sites and areas which are of importance

and to submit a report to this Court. After visiting

the sites and considering & examining entire aspects, a

detailed report was submitted by the Court Commissioner

on 11.5.2012 after putting a great labour, which is

appreciated by all. The report has been submitted about

M/a Vardha Enterprises construction at Lake Udai Sagar,

Ayad river, Marble slurry dumping and plantation yard,

Singhal House construction, Fateh Prakash Palace and

Lake Palace Hotels, Lake Pichhola, Lake Fateh Sagar, No

Construction Zone of Udaipur City lakes, Interior City,

Haridasji Ki Magri and OTC area, Catchment Area and

some suggestions have been made. The relevant portion

of the report would be dealt with and considered while

discussing the various aspects.

The Commissioner, Municipal Council, Udaipur-

respondent no.10 has also filed report in compliance of

the order of this Court dated 13.7.2012 and various

permissions have been placed on record. It was

submitted that 100 permissions were granted in the

municipal area. Statement showing details of

permissions granted in the No Construction Zone from

8th May 2000 to September, 2011 has been placed on

record as Annex.A/1..

The Secretary, UIT, Udaipur-respondent no.8 has

also filed affidavit in compliance of the order of this

Court dated 13.7.2012 pointing out various permissions

which have been granted. It was submitted that 125 15

permissions have been granted from 8.5.2000 to 6.2.2007

and statement containing details of permissions has

been placed on record as Annexure-C.

Supplementary compliance report has also been

submitted by the Commissioner, Municipal Council,

Udaipur pointing out permissions which have been

granted for addition, alteration and renovation to

various incumbents.

Submissions have also been filed Shri R.P.Sharma,

Secretary UIT making certain clarifications on 22th

September, 2012 with respect to various other

permissions which have been granted.

D.B.Civil Writ Petition No.12652/2011 Municipal Council Udaipur V/s Smt.Saraswati Devi Singhal & ors.

The writ petition no.12652/11 has been preferred

by the Municipal Council challenging the order dated

26.9.2011 passed by the Appellate Authority (Additional

Director, Local Self Department, Government of

Rajasthan, Jaipur) in appeal no.1/2011 whereby the

appellate authority has set aside the notices and

seizure of property ordered by the Municipal Council

and permitted the applicants-respondents no.1 and 2-

Singhals to raise construction.

We have heard the learned counsel appearing for

the parties.

Shri Rajendra Kumar Razdan-petitioner present in

person, Dr.P.S. Bhati & Shri Sanjeev Johari, Amicus

Curiae appointed by this Court and Shri Dinesh Mehta,

learned Court Commissioner have raised concern by

taking us to the various documents and orders passed by

this Court from time to time pointing out how orders of 16

this Court are being flouted by the State and other

authorities deliberately and willfully; it was pointed

out by Shri Dinesh Mehta, learned Court Commissioner

that situation is more pathetic; on the one hand, have

nots are not being permitted even to repair their

houses or plastering or to remove the cracks etc., on

the other hand, high-ups are being permitted in blatant

violation of the orders passed by this Court to carry

out the construction activities; our attention was

drawn to the communications of the Collector and

Municipal Council, Udaipur wherein it was mentioned

that out of 47 constructions which were being raised,

41 constructions were without any kind of permission

and sanction; it was also submitted that construction

raised by M/s Vardha Enterprises was also impermissible

for various reasons to be discussed later on while

dealing with its case; it was also pointed out that

Singhals are also raising construction in the No

Construction Zone and they have not obtained any kind

of permission and thus, their construction activities

are illegal and in violation of the orders issued by

this Court; no permission could be granted to them to

raise construction in the No Construction Zone much

less deemed permission and thus, their premises were

rightly seized by the Municipal Council as their

construction activities are wholly illegal and in

violation of the orders of this Court; since no

permission was obtained by Singhals for raising

construction, the order passed by the Appellate

Authority in appeal as to deemed permission was also

illegal and the Municipal Council was right in

questioning the decision of the Appellate Authority. It 17

was further submitted that the Lake Palace Hotels and

Motels Pvt.Ltd. is also raising new construction which

is not permissible in terms of the orders passed by

this Court in the main petition; no new construction

can be raised in the No Construction Zone and under the

guise of addition and alteration, new construction is

being raised and the same has been rightly stopped in

compliance of the orders passed by this Court.

It was further submitted by the petitioner,

learned Amicus Curiae and learned Court Commissioner

that large number of sewage, garbage, intoxicated

waste, domestic waste, plastic bags, bottles etc. are

directly poured into the various lakes, which causes

pollution and contamination of water of lakes; the

action is wholly impermissible and illegal.

We place on record the fairness of the learned

Senior Counsel Shri Anand Purohit, Additional Advocate

General. He has also stated that approximately 50%

sewage water is being directly poured into the various

rivers and lakes causing great hazard and the act is

wholly impermissible.

Shri B.S.Charan, learned counsel appearing on

behalf of Municipal Council, Udaipur has also

submitted that construction which is being raised by

Singhals is not permissible and contrary to the law;

they could not be permitted to raise construction in

the No Construction Zone and therefore, their premises

were rightly seized by the Municipal Council as no

permission had been obtained for raising construction;

there could not have been deemed permission in no

construction zone under the provisions of Section 194

(4)(b) of the Act of 2009; the Appellate Authority 18

has passed the order dated 26.9.2011 in an illegal and

arbitrary manner and ignoring the orders passed by

this Court and thus, the same cannot be sustained.

Hence, it was prayed that the writ petition filed by

the Municipal Council be allowed and the order passed

by the Appellate Authority in appeal no.1/11 be

quashed and set aside, the same is also in violation

of the order passed by this Court in the case of

Rajendra Kumar Razdan(supra).

It was submitted by learned Senior Counsel Shri

Anand Purohit, AAG and Shri N.M.Lodha, learned Senior

Counsel appearing on behalf of the UIT that necessary

steps are being taken to ensure the compliance of the

orders issued by this Court from time to time;

wherever it is found that the constructions are being

raised illegally without any permission or sanction, they have been stopped; requisite steps are being

taken in compliance of the orders passed by this Court

and the permissions granted by them were permissible.

The work of establishment of STP is under way and it

is going to be completed within six months. It will

take care of 50% sewage water and other affluent which

are directly poured in the rivers and lakes of Udaipur

City. They are ready to abide the directions issued

by this Court and they are doing the needful; no

contemptuous act has been done by them; they are

also going to establish Lakes Development Authority

within a period of one month from today and that will

take care of directions issued by this Court under

various orders.

It was frankly conceded by learned Senior Counsel

Shri Anand Purohit, AAG that the final order passed in 19

the case of Rajendra Kumar Razdan (supra) has not been

taken into consideration while granting permissions

etc.by the State Government and various local bodies

and they took into consideration only the order dated

6th February, 2001 passed in E.I.H. Limited V/s The

State of Rajasthan & ors. (D.B.Civil Writ Petition

No.4816/2000).

Shri Jagdeep Dhankar, learned Senior Counsel with

Shri Rajesh Joshi appearing on behalf of the

applicant-M/s Vardha Enterprises, Shri M.S.Singhvi,

learned Senior Counsel with Mr.Mohd.Aslam,

Mr.Akhilesh Rajpurohit and Shri Rajat Dave appearing

for the applicants-Singhals and the Lake Palace Hotels

& Motels Pvt.Ltd. have supported the constructions

being raised by the said applicants. They have made

various submissions which will be referred while discussing their respective case.

Before we advert to the individual cases of M/s

Vardha Enterprises, Singhals and the Lake Palace

Hotels and Motels Pvt.Ltd., we deem it appropriate to

note various Notifications issued by the State

Government with respect to No Construction Zone.

In exercise of the power conferred under section

171 of the Act of 1959, a Notification was issued by

the State Government on 17.1.1997 declaring 'No

Construction Zone' in and around Fateh Sagar and

Pichhola Lakes. Thereafter, the said Notification was

modified vide Notification dated 10th December, 1999

issued in exercise of power under section 299 read

with Section 171 of the Act of 1959 and in order to

prevent increasing pollution of lakes and to ensure

healthy environment, certain areas were also declared 20

and notified as "Prohibited Areas" and "Restricted

Construction Zone" in and around lakes and other

places of Udaipur City.

On 16th March, 2000, a further Notification was

issued by the State Government in exercise of the

power under sections 171 and 297 (sic 299) of the Act

of 1959 by which Notification dated 10.12.1999 was

partially modified and it was specified that in the

"prohibited areas", the Municipal Council and UIT,

Udaipur shall be competent to give permission for

repair and plaster; the Municipal Council and UIT

shall give permission for "repair and plaster" only in

their respective areas, whereas for "addition,

alteration and construction" in the "Prohibited

Areas", permission of the State Government shall be

necessary. Accordingly, the authorities shall exercise power under the provisions contained in

Section 171(4) of the Act of 1959 within the areas

falling in their respective jurisdiction.

Before we dilate on the various submissions and

non-compliance of the orders of this Court, we also

deem it appropriate to refer to the various orders

which have been passed by this Court from time to time

time.

In the case of Rajendra Kumar Razdan (supra), the

Division Bench of this Court in the final order dated

6.2.2007 of which violation has been alleged gave the

following directions:-

"28. Consequently, we dispose of the writ petition

with the following directions:-

i. We direct the State Government to consider for 21

establishing the Lakes Development Authority under a

Statute for effective management in conservation of

the City Lakes of Udaipur. The authority should be

made responsible and accountable for ecological,

hydrological and limnological balance of the lakes

concerned;

ii) Effective steps should be taken so as not to

permit any sort of construction within the No

Construction Zone;

iii) Desiltation of lakes should be taken as a

continuous programme;

iv) The conversion and construction permission in

and around the lakes and in their respective

catchment areas is completely banned except the

rarest of rare exceptional case keeping in view the

earlier orders of this Court;

v) The catchment areas of the lakes as specified by

the Committee be earmarked;

vi) Submerged peta land of the lakes be earmarked by

the Revenue Department and it must be further ensured

that no human activities are carried on in the said

area;

vii) All the directions given by this Court in the

instant petition are made absolute and they shall be

complied with positively, faithfully and religiously;

&

viii)Petitioners Rajendra Kumar Razdan and Dr.Tej

Razdan will be inducted as permanent members of the

Jheel Sanrakshan Samiti. The Committee will also seek

support and advice from the senior citizens of the

City of Udaipur. We would particularly refer to Shri

Jagat Mehta, Former Foreign Secretary, the Government

of India."

It is also appropriate to mention here that vide 22

common order dated 8th May, 2000 passed in Praveen

Khandelwal V/s the State of Rajasthan (D.B.Civil Writ

Petition No.3687/97) and Rajendra Kumar V/s The State

of Rajasthan (supra), the Division Bench of this Court

has emphasized that there shall not be any construction

in the 'no construction zone' including plantation in

the catchment areas of lakes etc.; these are only

illustrative; desilting of lakes, sewerage diversions,

disposal and treatment, solid waste management, safety

of Pichhola and Fateh Sagar Lakes etc. were also

directed; it was also directed that no construction of

any type shall be permitted now in the "No

Construction Zone"; Collector Udaipur was directed to

remove all encroachments in or around the lakes. The

directions contained in para 23 of the said order dated

8.5.2000 passed by the Division Bench of this Court in

the case of Praveen Khandelwal and Rajendra Kumar

Razdan (supra) are quoted below:-

"23. In view of the aforesaid, it is considered just and appropriate to give interim directions and we directed that-

i. The Executive Committee of the Jheel Vikas Society shall immediately prepare a time bound action plan to overcome the crisis of the various problems referred to above of the lakes of Udaipur City within two weeks from today. While doing so, the suggestions of the persons interested in the matter including the suggestions presented before this Court by the respective parties shall be given a due consideration. The action plan shall be submitted to this Court on or before 24.5.2000.

ii) For proper and expeditious execution of the action plan, task forces be constituted. Each entrusted with the job like desilting of lakes, sewerage diversions, disposal and treatment, solid 23

waste management, safety of Pichhola and Fateh Sagar Lakes, Jalkumbhi Problem (hyacinth), prevention of construction in No Construction Zone including plantation in the catchment area of the lakes etc. These are only illustrative. There may be more or less task forces.

iii) While constituting task forces, the chairman or the executive committee of the Society will ensure participation of citizens and NGOs;

iv) The excavation work shall be undertaken on war footing. Extra machines should be inducted for the work. They can be procured from whatever available sources including Hindustan Zinc Ltd. RSMM etc.

v) The Society will not give membership to any person, organization or institution against whom there is even slightest allegation of polluting the environment in whatever way.

vi) The petitioners viz. Rajendra Kumar Rajdan, Dr.Tejrajdan, Praveen Khandelwal and Dinesh Gupta shall be invited in the meeting of the Executive Committee, as a special guest for the limited purpose of taking their views on preparation of action plan.

Vii) Keeping in view the decision of the Apex Court in M.C. Mehta V. Union of India, reported in (1997) 3 SCC 715, whereby the "precautionary Principle" and the "Polluter Pays Principle" have been accepted as essential features of "sustainable development" as part of the environmental law of the country, we direct that no construction of any type shall be permitted now under "No Construction Zone" under the Notification dt.17.1.1997 except in a case where the plots have already been sold/allotted prior to 17.1.1997, if the construction extended/re-

construction of the house is for the personal use, and further has an approval under the relevant building Bye Laws/Rules. Any building/house/commercial premises already under construction on the basis of express sanctioned plan shall not be effected by this order. However, all such construction shall be subject to the clearance of the Pollution Board before the occupation certificate is issued in respect of the building by 24

the authorities concerned.

Viii). The Municipal Council, Udaipur shall consider the feasibility of putting big wagon type containers at the collection points of waste material as referred in para 8 of their reply and submit the report to this Court within eight weeks.

ix) The Pollution Board shall give the list of prosecution pending in courts for violation of Pollution Laws in any of the lakes in the City of Udaipur. They will also give a list of such cases in which the notices have been given and will also indicate action taken.

x) The Malaria Department is also directed to act in a manner so that mosquitoes may be eradicated completely from the affected areas around the lakes in the city of Udaipur. It is further directed that Social Preventive Medicine Department of Medical College, Udaipur, shall also work alongwith the Malaria Department for carrying out the aforesaid directions. The Department will submit compliance report within eight weeks to this Court.

xi) We appoint the following as Board of Commissioners to oversee the implementation of the action plan and the directions of this Court:-

1. Managing Director, RSMM Corporation;

social worker;

2. Dr.Arvind Bhatnagar, the Scientist of National Fame and Social Worker: and

3. Shri Ramesn Nandwana, President, Bar Association, Udaipur.

The Board of Commissioners, who are the Court Commissioners, shall submit their report to this Court from time to time. The Registrar General, Rajasthan High Court shall send a letter of request to the aforesaid persons appointed as Court Commissioners.

Xii) The Board of Commissioners shall be invited in all the meetings of the Executive Committee and the Society.

Xiii)The Collector, Udaipur is directed to remove all 25

encroachments in or around the subject lakes on verification from the revenue records within a period of eight weeks and report to this court.

Xiv) There shall be complete stay on construction of Ghats for whatever purpose on the shore or inside the subject Lakes, without permission of this Court.

xv) The Chairman or the Executive Committee of the Society will have full authority to issue such directions to the officials of the Govt. Departments, Govt. Undertakings, Public or Private Companies or any individual, which is considered essential for implementation of the Action Plan in the public interest. A person or authority aggrieved of offending decision will have liberty to approach this Court, on having failed to satisfy the Chairman or the Executive Committee.

Xvi) The State Govt. will submit the status report within eight weeks with respect to the scheme of Mansi, Vakal, Devas and Borana connecting with the Pichhola lake, in order to save the water regime of lakes system of Udaipur and provide clean, healthy drinking water to them. The Chief Secretary, Government of Rajasthan will ensure the compliance of this direction."

With respect to Notifications dated 17.1.1997,

10.12.1999 and 16.3.2000, following directions were

issued by this Court vide order dated 5.9.2000 passed

in the cases of Rajendra Kumar & Praveen Khandelwal

(supra):-

"29. It is not a dispute that Udaipur lakes are facing environmental problems, siltation and also shrinkage in its area, as such, State Government with a view to protect the air in the city of Udaipur from further pollution, issued a notification dated 17.1.1997 declaring No Construction Zone around the lakes. Later-on certain difficulties were felt and, as such, a decision was taken to frame the Building Construction Bye-laws in the said restricted zone.

26 Accordingly, superseding the earlier notification dated 17.1.1997, new Bye laws under the notification dated 10.12.1999 have been issued. It is further submitted that some of the areas like Raoji Ka Hatta, Bhatioyani Chouhatta, Clock Tower Area and Hathipur etc. which are neither attached nor related to the lake system have been wrongly included in the said notification. It is also submitted that sewage of these areas are not going into the lake system as these areas are on the out skirts of the lake. It is prayed that said area may be excluded from the notification. It is also prayed that in sub-para

(vii), instead of notification dated 10.1.1997, reference be made to only notification dated 10.12.1999. Per contra, it is submitted by Mr.Razdan that inspite of the directions of this court that declaration of "No Construction Zone", day in and day out the constructions are being raised in No Construction Zone. It is also submitted that in the garb of the bye-laws of 1999, UIT has permitted or deliberately ignored raising of construction in the No Construction Zone. It need be re-emphasized that Udaipur lake system is one of the National Lakes Conservation Plans as declared by the Ministry of Environment and Forests, Government of India. The Central Government has ambicicous plan for such National Lakes. However, Central Government has made it clear that a pre-condition to take up Udaipur lakes under the said plan is that the State Government should give free environmental status of area within 200 mt. of the high flood level of the lakes, so a further deterioration does not take place. It has been emphasized that 200 mt. zone around the lake may be declared as "No Construction Zone:.

As far as area referred to above is concerned, to exclude from No Construction Zone, that cannot be any objection. However, we feel that if the construction in the area is not strictly controlled, efforts made in this writ petition will become futile.

30. Direction:

Thus, considering all the facts and circumstances of the case, we modify the order dated 8.5.2000 so far as para 23 (vii) is concerned and direct that there will be a complete stay on the 27

fresh construction in the No Construction Zone as declared under the notification dated 17.1.1997 excluding the area of Raoji Ka Hatta, Bhatiyani Chouhatta, Clock Tower and Hathipur etc. It will be the responsibility of the UIT, Udaipur as also Municipal Council, Udaipur in their respective zone to ensure that no fresh construction is raised in the "No Construction Zone"."

In E.I.H. Limited V/s the State of Rajasthan and

ors. (supra), the Division Bench of this Court vide

order dated 6.2.2001 has held that the case of that

petitioner falls within the exception carved in para 23

(vii) of the order dated 8.5.2000; permission was

granted before 1997 and considering the sustainable

development as part of environmental law, the refusal

made by UIT was quashed and it was directed to pass a

fresh order on the application filed by the petitioner

for extension of time for completion of second phase of

Hotel Trident.

Yet another decision has been pointed out by

learned Senior Counsel Shri M.S.Singhvi which was

rendered by the Division Bench of this Court in

Chitrini Kala Sansthan V/s State of Rajasthan & Ors.

(D.B.Civil Writ Petition NO.3922/2001 decided on

16.4.2002) and the facts of that case also indicate

that UIT allotted land measuring 9,900 sq.ft. outside

Brahmpole vide letter dated 29.8.1996 and the Division

Bench of this Court in the case of Praveen Khandelwal

(supra) vide order dated 8.5.2000 has fixed 17.1.1997

as cut off date on which "no construction zone" was

declared; construction can be raised after due

permission. However, while dealing with the case of

Chitrini Kala Sansthan (supra), the Division Bench of 28

this Court has clearly observed in para 4 of the order

that allotment was made in favour of the said

Institution prior to the cut off date and thus,

permission can be granted for raising construction

subject to conditions including that premises shall not

be used for any other purpose than for which

established at the time of allotment; construction in

height shall not go beyond first floor; the premises

shall not be used for commercial purposes. Para 4 of

the order dated 16.4.2002 passed by this Court in the

case of Chitrini Kala Sansthan (supra) is quoted

below:-

"4. Considering all the facts and circumstances of the case, we feel that since the allotment was made to the petitioner institution prior to the cut off date, the permission can be granted for raising construction subject to reasonable conditions including:-

(i) the premises shall not be used for any other purpose than for which established at the time of allotment.

(ii) construction in height shall not go beyond first floor.

(iii) the premises shall not be used for commercial purposes.

Other conditions may be imposed keeping in view the spirit behind declaring the "No Construction Zone"."

The order passed by the Division Bench of this

Court in Mrs.Vaishali Gandhi and anr. V/s State of

Rajasthan and anr. (D.B.Civil Writ Petition No.456/2002

decided on 16.4.2002) has also been referred to by the

learned Senior Counsel Shri M.S.Singhvi. In para 4 of

the said order, this Court noted that subject plot was

allotted in the year 1991 and permission to raise the 29

construction was granted in the year 1995 for

residential purposes only before cut off date. This

Court again added the rider that construction shall not

be raised beyond first floor. Para 4 of the said order

dated 16.4.2002 passed in the case of Mrs.Vaishali

Gandhi (supra) is quoted below:-

"4. In the instant case, the subject plot was allotted in the year 1991 and the permission to raise the construction was granted in the year 1995. It appears from the Annexure-3 dated 2.12.1995 that permission has been obtained only for residential purposes. In addition to usual 18 conditions, three more conditions have been added as follows:-

19. जल मल न क स क व वस प सव करग !

20. झ ल म ककस पक र क पदषण ह करग !

21. भतल + एक म!जजल क सव कनत ह द ह# "

Thereafter, final order was passed by the Division

Bench of this Court in the case of Rajendra Kumar Razdan (supra) on 6.2.2007 culminating into directions

issued in para 28, which has been quoted above.

Necessity to protect lakes, water resources, ecology, environment etc. from pollution; "sustainable Development"; "Precautionary Principle"; "Polluter- Pays Principle"; "Public Trust Doctrine" and "Inter- Generational Equity" etc.

Before proceeding further, it is worthwhile to

mention here that lakes of Udaipur are to be treated as

gift of nature and there is a need of the hour to keep

the environment clean and protect earth, rivers, lakes,

forests, trees, flora and fauna etc. The main motto of

social life is to live in harmony with nature. It is a

sacred duty of everyone to protect them. Preservation

of ecology, flora and fauna is necessary for human

existence. The scale of injustice occurring in Indian

soil is catastrophic. In this scenario, in a large 30

number of cases, the Apex Court intervened in the

matter and issued directions from time to time in

public interest to protect and preserve water

resources, ecology, environment, wildlife etc. from

pollution which we have referred in Prof.K.P.Sharma V/s

State of Rajasthan & ors.(D.B.Civil Writ (PIL) Petition

No.6039/2011 decided on 17.5.2012 alongwith two other

connected matters)& other cases in following manner:

In M.C.Mehta (Badhkhal and Surajkund Lakes

Matter) Vs. Union of India & Ors., (1997) 3 SCC 715,

the Apex Court has laid down that it is the duty of the

State to protect and improve the environment and to

safeguard the forests and wild life of the country. It

is the duty of every citizen to protect and improve

natural environment including forests, lakes, rivers

and wildlife. The 'Precautionary Principle' makes it mandatory for the State to anticipate, prevent and

attack the causes of environment degradation. In order

to protect two lakes i.e.Badhkal and Surajkund, the

Apex Court ordered that it was necessary to limit the

construction activity in the close vicinity of the

lakes. The Apex Court has laid down thus:-

"6.......The functioning of eco-systems and the status of environment cannot be the same in the country. Preventive measures have to be taken keeping in view the carrying capacity of the eco- systems operating in the environmental surroundings under consideration. Badkhal and Surajkund Lakes are popular tourist resorts almost next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated April 20, 1996 indicating the surroundings, geological features, land use and soil types and archaeological 31

significance of the areas surrounding the lakes. According to the report Surajkund lake impounds water from rain and natural springs. Badkhal lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types as explained in the report show that the Badkhal lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed.

7.The two expert opinions on the record - by the Central Pollution Control Board and by the NEERI - leave no doubt on our mind that the large scale construction activity in the close vicinity of the two lakes is bound to cause adverse impact on the local ecology. NEERI has recommended greenbelt at one KM radius all around the two lakes. Annexures A and B, however, show that the area within the greenbelt is much lesser than one KM radius as suggested by the NEERI."

In M.C.Mehta Vs. Kamal Nath & Ors, (1997(1) SCC

388), the Apex Court has laid down that the river is a

public property. It cannot be given for private use.

Public at large is the beneficiary of the sea-shore,

running waters, airs, forests and ecologically fragile

lands. The State as a trustee is under a legal duty to

protect the natural resources. These resources meant

for public use cannot be converted into private

ownership. The public trust doctrine is a part of law

at present. Even in absence of legislation, the 32

executive acting under the doctrine of public trust

cannot abdicate the natural resources and convert them

into private ownership or for commercial use. Large

area of the bank of River Beas which is part of

protected forest has been given on a lease purely for

commercial purposes to the Motels. The area being

ecologically fragile and full of scenic beauty should

not have been permitted to be converted into private

ownership and for commercial gains. The Apex Court held

that the Government of Himachal Pradesh has committed

patent breach of public trust by leasing the

ecologically fragile land to the Motel management. The

lease transactions are in patent breach of the trust

held by the State Government. Therefore, the Motel

shall pay compensation by way of cost for the

restitution of the environment and ecology of the area.

The Apex Court has laid down thus:-

"25.The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature. They should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit then- use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority.

Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even 33

for a fair cash equivalent; and third, the property must be maintained for particular types of uses.

33.It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono Lake case to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. v. Mississippi 108 S.C.C. 791, the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological concepts to determine which land can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.

34.Our legal system-based on English Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is beneficiary of the sea-shore, running waters, 34

airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

35.We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in- violate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislature the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The esthetic use and the prestine glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary in good faith, for the public good and in public interest to encroach upon the said resources.

36.Coming to the facts of the present case, large area of the bank of river Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. Both the lease - transactions are in patent breach of the trust held by the 35

State Government. The second lease granted in the year 1994 was virtually of the land which is a part of river-bed. Even the board in its report has recommended delousing of the said area."

In M.C.Mehta V/s Kamal Nath and ors. ((2000) 6

SCC 213), the Apex Court held that pollution is a

civil wrong and by its nature, it is a tort committed

against the community as a whole and thus, a person

causing pollution can be asked to pay damages

(compensation) for restoration of the environment and

ecology and he can also be asked to pay damages to

those who have suffered loss on account of the act of

the offender. Considering Articles 48A and 51-A(g) of

the Constitution in the light of Article 21 of the

Constitution, the Apex Court held that any disturbance

of the basic element of the environment, namely, air, water and soil, which are necessary for 'life', would

be hazardous to 'life' within the meaning of Article

21. In the matter of rights under Article 21 the Apex

Court besides enforcing the provisions of the Acts has

also given effect to the fundamental rights under

Articles 14 and 21 and held that if those rights are

violated by disturbing the environment, it can award

damages not only for the restoration of the ecological

balance, but also for the victims, who have suffered

due to that disturbance. In order to protect "life",

"environment" and "air, water and soil" from pollution,

the Apex Court has given effect to the rights

available to the citizens and persons alike under

Article 21 and has awarded damages against those who

have been responsible for disturbing the ecological

balance either by running industries or any other 36

activity which has the effect of causing pollution in

the environment. The Apex Court while awarding damages

also enforces the "polluter-pays principle", which is

widely accepted as "means of paying for the cost of

pollution and its control". To put it in other words,

the wrong doer, the polluter is under an obligation to

make good the damage caused to the environment. In

Indian Council for Enviro Legal Action V/s Union of

India (AIR 1996 SC 1446), the Apex Court considering

the "Polluter pays principle" held that once the

activity carried on was hazardous or inherently

dangerous, the person carrying on that activity was

liable to make good the loss caused to any other person

by that activity. This principal was also followed In

Vallore Citizens' Welfare Forum V/s Union of India

(AIR 1996 SC 2715).

In T.N. Godavarman Thirumulpad Vs. Union of India

& Ors., ((2002) 10 SCC 606), the Apex Court has

observed that at global level, the right to live is now

recognized as a fundamental right to an environment

adequate for health and well being of human. There is

increase in awareness of the compelling need to

restore the serious ecological imbalances introduced

by the degradations inflicted on nature by man. There

may be boundless progress scientifically which may

ultimately lead to destruction of man's valued position

in life. The Constitution has laid the foundation of

Articles 48A and 51A for a jurisprudence of

environmental protection. Today, the State and the

citizen are under a fundamental obligation to protect

and improve the environment including forests, lakes,

rivers, wildlife and to have compassion for living 37

creatures. Duty is cast upon the Government under

Article 21 to protect the environment and the two

salutary principles which govern the law of environment

are :(i) the principles of sustainable development, and

(ii) the precautionary principle.

In Intellectuals Forum, Tirupathi Vs. State of

A.P. & Ors.(AIR 2006 SC 1350), the Apex Court has laid

down that the government is bound to protect historical

tanks qua concept of 'sustainable development' and

'public trust doctrine'. Destruction of local

ecological resources is not permissible. Property

subject to trust must not only be used for a public

purpose, but it must be made available for use by

general public. Property must be maintained for

particular types of use (i) either traditional uses, or

(ii) some uses particular to that form of resources. Principle of 'Inter-Generational Equity' also to be

applied for protecting natural resources has also been

taken into consideration by their Lordships of the Apex

Court. The Apex Court has held that the "tank is a

communal property" and State authorities are "trustees"

to hold and manage such properties for benefits of

community. State cannot be allowed to commit any act or

omission which will infringe right of community and

alienate property to any other person or body. Fact

that the party has spent money on developing land is

immaterial. The Apex Court has laid down thus:-

"67. The responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating within one's own territories [Corfu Channel Case, ICJ Reports (1949) 4]. This responsibility is 38

clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant Clause of this Declaration in the present context is Paragraph 2, which states:

The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area. Sustainable Development

68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development". This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". Returning to the Stockholm Convention, a support of such a notion can be found in Paragraph 13, which states:

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an 39

integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.

69. Subsequently the Rio Declaration on Environment and Development, passed during the Earth Summit at 1992, to which also India is a party, adopts the notion of sustainable development. Principle 4 of the declaration states:

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

73. In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege.

Public Trust Doctrine

74. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Company v. People of the State of Illinois (1892) 146 US 537 where the Court held:

The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses for which they are adapted.

[...] the state holds the title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State, which does not recognize and is not in execution of this trust is permissible.

What this doctrine says therefore is that natural resources, which includes lakes, are held by the 40

State as a "trustee" of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English Law, it related to specific types of resources. The US Courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of the environment.

75.The doctrine, in its present form, was incorporated as a part of Indian law by this Court in the case of M.C. Mehta v. Kamal Nath (supra) and also in M.I. Builders v. :Radhey Shyam Sahu [1999]3SCR1066 . In M.C. Mehta, Kuldip Singh J., writing for the majority held:

[our legal system] includes the public trust doctrine as part of its jurisprudence. The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. [...] The state as a trustee is under the legal duty to protect the natural resources.

76. The Supreme Court of California, in the case of National Audubon Society v. Superior Court of Alpine Country 33 Cal.419 also known as the Mono Lake case summed up the substance of the doctrine.

The Court said:

"Thus the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands., surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust."

This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Government, no matter how 41

consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources, [Joseph L. Sax "The public Trust Doctrine in Natural Resource Law:

Effective Judicial Intervention", Michigan Law Review, Vol.68 No.3 (Jan.1970) PP 471- 566)]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to imposed by the public trust doctrine [ibid]:

1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;

2. the property may not be sold, even for fair cash equivalent

3. the property must be maintained for particular types of use. (i) either traditional uses, or (ii) some uses particular to that form of resources.

77. In the instant case, it seems, that the Government Orders, as they stand now, are violative of principles 1 and 3, even if we overlook principle 2 on the basis of the fact that the Government is itself developing it rather than transferring it to a third party for value.

79.Further the principle of "Inter-Generational Equity" has also been adopted while determining cases involving environmental issues. This Court in the case of A.P. Pollution Control Board v. :

Prof. M.V. Nayudu and Ors. [1999]1SCR235 held as under:

The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.

42 Principle 1 - Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations....

Principle 2 - The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.

89.The set of facts in the present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadevaraya, The Great, 1500 A.D., where the cry of socially spirited citizens calling for judicial remedy was not considered in the right perspective by the Division bench of the High Court of Andhra Pradesh despite there being overwhelming evidence of the tanks being in existence and were being put to use not only for irrigation purpose but also as lakes which were furthering percolation to improve the ground water table, thus serving the needs of the people in and around these tanks. The Division Bench of the High Court, in the impugned order, has given precedence to the economic growth by completely ignoring the importance and primacy attached to the protection of environment and protection of valuable and most cherished fresh water resources.

91.It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body. "

In T.N. Godavarman Thirumulpad (104) Vs. Union of 43

India & Ors., ((2008) 2 SCC 222), the Apex Court held

that adherence to the principle of sustainable

development is now a constitutional requirement. It is

the duty of the State under the Constitution to devise

and implement a coherent and coordinated programme to

meet its obligation of sustainable development based on

inter-generational equity.

In Centre for Public Interest Litigation and ors.

V/s Union of India & ors. (JT 2012 (2) SC 154), the

Apex Court observed that there is no universally

accepted definition of natural resources, they are

generally understood as elements having intrinsic

utility to mankind. Natural resources belong to the

people but the State legally owns them on behalf of its

people and from that point of view natural resources

are considered as national assets, more so because the State benefits immensely from their value. The State is

empowered to distribute natural resources. However, as

they constitute public property/national asset, while

distributing natural resources, the State is bound to

act in consonance with the principles of equality and

public trust and ensure that no action is taken which

may be detrimental to public interest. The Government

is bound to protect environment, forest, air, water,

coastal zones etc. The State Government is bound to

act as guardian and trustee in relation to catchment

area of the pond, lake or river. People are owner of

the natural resources. The Courts in India, considering

Article 48, 48A, 51A(g) of the Constitution of India

have issued directions from time to time with respect

to natural resources, process of distribution to

private persons, doctrine of public trust was evolved 44

as part of Indian Jurisprudence, polluter-pay-principle

was developed in M.C.Mehta V/s Kamal Nath (1997(1) SCC

388) and has been followed in Jamshed Hormusji Wadia

V/s Board of Trustee (2002(3) SCC 214). The Apex court

in the case of Centre for Public Interest Litigation

(supra) referred to the decision in Fomento Resorts

and Hotels Limited v. Minguel Martins (2009) 3 SCC 571

and has laid down that the public trust doctrine

enjoins upon the Government to protect the resources

for the enjoyment of the general public rather than to

permit their use for private ownership or commercial

purposes. It has also been observed that public has

special interest in public land water etc. It is the

duty of the State not to impair such resources. The

Apex Court emphasized that there is obligation to use

such resources in such a manner as not to impair or

diminish the people's rights and the people's long-term

interest in that property or resource, including down

slope lands, waters and resources. The Apex Court in

Fomento Resorts and Hotels Limited v. Minguel Martins

(supra) has laid down thus:-

"53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.

54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all 45

the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.

55. The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources."

Keeping in view the aforesaid principles, we now

proceed to examine the present cases.

Lakes Development Authority

Coming to the question of formation of Lakes 46

Development Authority under the Statute, the State

Government has approached the Ministry of Environment

and Forests for constitution of Udaipur Lakes

Development Authority under the provisions of the Act

of 1986 and the Ministry of Environment and Forests

vide letter dated 3rd February, 2010 observed that in

compliance of the directions of this Court, the State

Government may constitute a Lakes Development Authority

for Udaipur.

It is assured by the learned Senior Counsel Shri

Anand Purohit, Additional Advocate General that the

State Government is going to constitute the Lakes

Development Authority within a period of one month by

taking appropriate steps. Accordingly, let the Lakes

Development Authority be constituted.

Sewage discharge etc..

The petitioner has rightly shown concern about

sewage discharge in the heritage lakes and Ayad river;

lakes and catchment areas are sole life line for

drinking water and also one of the main pillars of

economic stability of India; these lakes have been

placed in the world and domestic tourist maps

attracting huge number of foreign and domestic

tourists; it is regrettable that more than a decade

has passed since requisite directions were issued by

this Court with respect to conservation of lakes,

needful has not been done so far; dumping of highly

intoxicated waste, garbage, sewage water, domestic

waste etc. is taking place not only in the river, lakes

but also in the catchment areas causing pollution and

contamination of water; mushroom growth of buildings,

hotels and other constructions etc. is adding to the 47

deteriorating condition of lakes.

It is rightly admitted by the learned Senior

Counsel Shri Anand Purohit, AAG appearing on behalf of

the State that sewage water and other affluent etc. are

being poured in river Ayad and the lakes which is not

permissible. It is stated that a budget of Rs.35

crores has been sanctioned for development of sewerage

line for surrounding areas of the lakes and 50% work

for establishment of STP has already been completed

and the remaining work is likely to take approximately

six months.

Shri Dinesh Mehta, learned Court Commissioner in

his report has pointed out with respect to Lake

Pichhola that piles of plastic and other organic

remains abound on the exposed lake bed and he has found

that there is hyacinths in the lake and the lake is

witnessing advanced stages of 'eutrophication'. He

has further pointed out that Municipal Council and

other concerned agencies have undertaken efforts only

to partly address the aesthetics and cleanliness of the

lake and not the health and eco-system of the water

body.

With respect to Fateh Sagar Lake, the learned

Court Commissioner in his report has observed that the

exposed lake bed of the lake appeared littered with

plastic bags, plastic bottles and other garbage. There

is small market known as "Bambaiya Bazar" providing

drinks, eatables and snacks to the visitors to the

lake. According to him, since water of the lake is

deep near the said bazar, the garbage sinks down

instead of showing on the exposed lake bed surface. He

has pointed out that there is need of extensive daily 48

cleaning and looking after of the lake with dedicated

agency developed for this purpose with latest

equipments including small boats.

With respect to Ayad river, the learned Court

Commissioner has pointed out in his report that the

condition of Ayad river is pathetic; same is main

source of water for other lake Udai Sagar; river has

been converted into a drain through which untreated

city sewage comes to Udai Sagar Lake; some voluntary

organizations have tried to treat the sewage through

'Project Eco Technology', but that is hardly effective.

The learned Court Commissioner has observed that one

can find untreated excreta leading to filth and

obnoxious smell all around this point; the river itself

at this juncture (Sukha Naka) and even in the city at

Pula area is full of dirt, garbage, filth and weeds.

According to him, immediate steps are required for

cleaning Ayad river and establishment of Sewage

Treatment Plant of zero discharge to preserve and

conserve the ecological and hydrological character of

the lake which is spinal cord of the Udaipur Lake

System. The suggestions made by the learned Court

Commissioner in this regard in paras 13(viii), (ix) (x)

(xi) (xii), (xv), (xvi) and (xvii) are quoted below:-

"13. Suggestions

(viii) The up-keeping and cleanliness of the lakes

is crucial to the tourism and hospitality business.

Accordingly, if need be, each hotel on the banks of

the lakes be directed to share the fiscal as well as

supervisory responsibility. The quantum of the burden

may be ascertained on the basis of area abutting the

lake. A committee of 5 persons from these hotels may 49

be formed to periodically verify the work done by the

contractor appointed for cleaning the road.

Contractor's payments should be made on the basis of

such clearances/verifications.

(ix) Contracts for boating in the lake and cleaning

of the lake should be awarded to separate persons.

The cleaning contract should specify requisite number

of persons and boats etc. to be deployed on a regular

basis for achieving the identified benchmark in terms

of cleanliness.

(x) At 'Bambaiya Bazar' area, it should be ensured

that no commodity be sold in plastic carrying bags or

plastic packaging. The vicinity of Fateh Sagar,

Pichhola Lake should be declared 'No Plastic Zone",

all items at "Bambaiya Bazar' should be sold in

biodegradable or reusable packaging.

(xi) The Irrigation, fisheries Authorities and

Municipal Council etc. may be asked to breed variety

of fishes such as Grass Carp, which consume the filth

etc. and thus help in maintenance of ecological

balance of the lake.

(xii)Bathing, washing of clothes, throwing or

immersing left overs in the lakes be strictly

prohibited. However, District Collector may be

empowered to relax the terms of prohibitions keeping

in view the local traditions etc. On particular

days/festivals, the idols of Lord Ganesh, Durga or

Tazias be allowed to be immersed in the lake only if

their composition and colour is organic and non toxic.

(xv) State authorities be directed to take proactive 50

and pre-emptive measures for preserving and conserving

the Udai Sagar Lake which now falls in the urban limit

of Udaipur as per the latest master plan.

(xvi)Udaipur does not presently have a STP, however

setting up of one STP is in the pipeline. The

establishment of the proposed STP be expedited on

priority basis. The idea of setting up mini STPs for

localities near the lakes may also be evaluated.

(xvii) Immediate steps are required to be taken to

clean Ayad River. Necessary steps may be taken to

ensure untreated city sewage does not reach Udai Sagar

via Ayad River."

Considering the report of the learned Court

Commissioner, importance of lakes and the principles

enunciated by the Apex Court from time to time, as

stated above, since pouring of sewage water, garbage,

intoxicated waste, domestic waste etc. is causing

contamination of water and pollution affecting human

lives, we find directions issued earlier have been

violated; we direct that the remaining work for

establishment of STP be completed on war-footing

preferably within a period of three months from today.

However, at the same time, we also direct the

respondents including Chief Secretary, Divisional

Commissioner, Collector, Rajasthan State Pollution

Control Board, Secretary, UIT and Commissioner,

Municipal Council to ensure cleanliness of the lakes

and Ayad river and no sewage water, garbage,

intoxicated waste, domestic waste, plastic bags etc.

are directly poured in the lakes and Ayad river and 51

compliance of the directions of this Court be ensured

and wherever necessary, the concerned persons be asked

for construction of septic tanks. In case, any person

is found pouring directly in the lakes or river any

waste material, garbage, sewage or other affluent or

intoxicated material etc. from factory or hotels or

residential houses, requisite steps be taken to stop

such pouring forthwith including initiation of criminal

prosecution against such incumbent in accordance with

law. Compliance of the directions be reported within 30

days from today.

The suggestions made by the learned Court

Commissioner in his report shall be considered by the

respondents-District Administration, UIT and Municipal

Council, Udaipur. However, as order of this Court is

being violated, we direct that responsibility be fixed on the hotels/persons and it be ensured that no pouring

of any waste material, plastic bags, bottles, garbage,

sewage or other affluent in any of the lakes and Ayad

river is made and in case they are found doing so,

requisite action be taken against them including

launching of criminal prosecution in accordance with

law, as agreed to by the learned counsel appearing for

the State, UIT and Municipal Council.

With respect to suggestion no.(ix) of the learned

Court Commissioner, the same shall be considered by the

respondents-authorities as assured by the learned

counsel appearing on their behalf.

With respect to plastic carrying bags or plastic

packaging, there is already restriction, we direct as

step in aid to orders of this Court that in 'Bambaiya

Bazar" area, no commodity be sold in plastic carrying 52

bags or plastic packaging. We also direct the

respondents-authorities to declare the vicinity of

Fateh Sagar & Pichhola Lake as "No Plastic Zone". In

the area of "Bambaiya Bazar", all items be sold in

biodegradable or reusable packaging and compliance be

ensured within 30 days. Even otherwise we are informed

by counsel for parties that plastic carrying bags or

plastic packaging is restricted and could not be used.

It is also assured by the learned counsel

appearing on behalf of the respondents-State, UIT and

Municipal Council that they shall take steps to breed

variety of fishes such as grass carp etc. which

consume the filth etc. which will help in maintenance

of ecological balance of the lake. As assured, let

appropriate steps be taken in this regard within three

months.

With respect to washing, throwing or immersing

left overs in the lakes, we direct that let it be

prohibited forthwith and compliance be reported within

30 days from today.

Marble slurry dumping and planation yard

With respect to marble slurry dumping and

plantation yard, the learned Court Commissioner has

stated in his report that the site is located at

Chitrakut Nagar on Pratap Nagar-Bhuvan Bye-pass and

managed by Udaipur Marble Association and as per

communication dated 24.2.2006 of Dy.Secretary, Urban

Development Department and order dated 6.10.2006 of the

Secretary, UIT, though no allotment has been made in

favour of Udaipur Marble Association, yet the said

Association and its members have been permitted to dump

marble slurry on the aforesaid place. The learned Court 53

Commissioner has also pointed out that the dumping

yard is hilly and the slurry is being dumped in the

space between the hills, thus, levelling the entire

terrain, which otherwise serves as catchment to lakes,

particularly Roop Sagar. According to him, there are

about 250 marble processing units in Sukher Industrial

area and they are dumping about 70 tonnes of slurry

daily using tankers, as a result of which, about

700x500 meters area of the valley has been ruined. The

learned Court Commissioner has further observed in the

report that marble slurry is a mixture of calcium

carbonate, water and other chemicals, dumping of which

is not only ruining the ecology of the area, but also

affecting the catchment area of Ayad River and Roop

Sagar and Udai Sagar Lakes. Though Marble Association

was required to plant trees, but unfortunately

plantation has not been done. Even pre-existing

plantation suffered existential threat as the entire

area has been heavily polluted by slurry and dry slurry

powder. Because of marble slurry, entire area is full

of white dust and SPM Level (Suspended Particulate

Matter) of the area is bound to be more than

permissible limits; there are various cracks on the

surface of the slurry dams, which indicate that slurry

does not lead to strong rock formation, rather in case

of heavy downpour, there is every likelihood that the

dumped slurry flow may breach the embankment and wreck

havoc in the down hill areas; dumping is also

jeopardizing the entire valley in Chitrakut Nagar.

The learned Court Commissioner has further

mentioned in his report that the Water Resources

Department, Udaipur vide letter dated 19.7.2011 54

cautioned the District Collector about the threat on

account of slurry dumping and further vide letter dated

24.10.2011 addressed to Addl. District Collector, the

Executive Engineer of Water Resources Division pointed

out the technical flaws of the said dumping yard; the

UIT, Udaipur in the meeting dated 20.1.2012

(Annex.4/VII to the report) has decided to cancel the

order dated 6.10.2006.

The learned Court Commissioner with a view to

assess impact of the slurry dumping on the area in

question, has taken google earth images using its

'historical images' application and he has filed the

images alongwith the report as Annexures 4/VIII to

4/XI, which indicates that valley has suffered and

witnessed rapid dumping of marble slurry over the

period; even before 25.2.2006, slurry was being

illegally dumped in the area in question.

It was also pointed out by the learned Court

Commissioner that the slurry being dumped in the area

in question is posing threat to life, flora and fauna

of the valley. It has also been pointed out that slurry

should not be further dumped in the yard in question

and instead, the abandoned marble mines situated around

the city or even between Udaipur and Rajsamand may be

used for dumping the slurry and it will not only be

environmental friendly exercise but will also ensure

reclamation of pits on account of excavation of marble.

Apart from this, it will further help in levelling the

abandoned marble mines, which in turn may make the

area habitable as well as would save water from seeping

and collecting in unreachable wasted pits. 55

With regard to marble slurry dumping yard, it has

been pointed out in the submissions filed by

respondents no.1, 3, 4, 5 and 8 on 13.7.2012 that

there are about 250 marble processing units in

operation at Sukher Industrial area; the marble slurry

discharged from the industrial units used to be dumped

anywhere at the vacant areas and road sides and in

order to meet this situation, an area situated in

khasra no.2691 and 2693 of village Bhuvana comprising

18 hectares land, which was in the form of pit, was

earmarked for the purpose of dumping of the marble

slurry and the said dumping area is neither the part of

the catchment area of Fateh Sagar Lake nor of Pichhola

Lake and the area also does not fall under No

Construction Zone as per notification dated 17.1.1997.

However, the District Collector, Udaipur vide letter

dated 24.11.2011, directed to cancel the reservation of

the said land for the purpose of dumping marble slurry

and in compliance thereof, the matter was taken up by

the UIT, Udaipur in the meeting held on 20.1.2012 and

reservation of the said land for the purpose of dumping

marble slurry has been cancelled and District Collector

Udaipur has been requested to set apart and make

available alternate site for the said purpose and the

matter is being examined and processed at the level of

District Collector Udaipur so as to find out the

appropriate alternate site for the purpose.

Let marble slurry dumping and plantation yard be

shifted to unobjectionable alternate place within a

period of four weeks from today. The State Government,

UIT and Municipal Council to do the needful in this

regard. We appreciate the suggestion given by the 56

learned Court Commissioner and study done by him in

this regard.

Interior City

The learned Court Commissioner in his report has

pointed out that he has visited Parkota of Pichhola

Lake and down stream areas like Jagdish Chowk, Moti

Chohhata, Baffna Ki Seri, Singhatwariyon Ki Seri. He

has also pointed out a dismantled house completely in

Bafna ki Seri and it was informed that the house

belonged to one Raju Bafna, who left the site and

shifted somewhere else; four constructions required

immediate renovation as they were in dilapidated

conditions. The learned Court Commissioner opined that

such houses should be given permission for

repairs/renovations. The learned Court Commissioner

has also submitted that there are several constructions, which are going on in illegal manner and

they be stopped; on the one hand, necessary repairs are

not being permitted and on the other hand, the

respondents-authorities are permitting to the persons

of their choice to raise new construction in No

Construction Zone also.

Considering the entire facts and circumstances of

the case and the facts mentioned in the report of the

learned Court Commissioner, we direct the respondents-

authorities to consider the cases wherever repairs are

absolutely necessary.

It is also apparent from the communications of the

Collector and Municipal Council, Udaipur that large

number of constructions were unauthorized and out of

47, 41 constructions were going on without any proper 57

sanction/permission.

Thus, we direct the respondents-authorities to

take immediate steps to dismantle the constructions,

which are unauthorized and raised without any proper

sanction/permission of the competent authority, within

a period of one month from today and none of the

structures which has been raised without due permission

shall be allowed to exist and steps be taken in

accordance with law. Compliance report in this regard

be filed within a period of one month from today.

No Construction Zone

Coming to the constructions being raised in "No

Construction Zone", we first take up the case of the

applicants-Smt.Saraswati Singhal and Shri Sanjaya

Singhal.

Smt.Saraswati Singhal and Shri Sanjaya Singhal.

Smt.Saraswati Singhal and Shri Sanjaya Singhal

have filed application (IA No.18431/11) for

intervention in the contempt proceedings as pursuant

to the interim order passed by this Court, their

construction activities were stopped and premises were

seized by the Municipal Council, but on appeal, the

appellate authority (Additional Director, Local Self

Department, Government of Rajasthan, Jaipur) vide order

dated 26.9.2011 set aside the notices and seizure of

property ordered by the Municipal Council and permitted

the applicants-Singhals to raise construction.

The Municipal Council has also questioned the

legality of the said order of the Appellate Authority

by way of filing writ petition no.12652/2011 58

contending inter-alia that site of Singhals was

inspected and new construction of two floors was found

and plaster and furnishing works were in progress. It

was also found that construction was being made without

any permission. Since unauthorized construction was

being made by Singhals in no construction zone, notice

was given to them and after considering their reply and

other aspects including that construction was being

raised without valid permission in no construction zone

and it was illegal, the premises of Singhals were

ordered to be seized vide order dated 10.3.2011. The

said order was challenged by Singhals before the

Appellate Authority (Addl.Director) and the Appellate

Authority vide order dated 26.9.2011 allowed the appeal

and set aside the notices and seizure order and

directed that if any bye-laws have been violated by

Singhals while making construction, the same may be

compounded by the Municipal Council in accordance with

law on filing proper application by Singhals and if any

fee is required to be deposited by Singhals, the

Municipal Council is free to recover from them.

Aggrieved by the said order of Appellate Authority, the

Municipal Council has preferred the writ application.

It was submitted that the order of appellate authority

is wholly illegal and the same has been passed without

due application of mind to the facts that the

construction was being raised by Singhals without

obtaining permission in no construction zone and

without considering the fact that this Court has put

ban against raising of new construction in no

construction zone.

The case of Singhals in the contempt petition and 59

writ application is that property in question was

granted by Maharana Mewar to his Deewan Shri Dharam

Narayan Ji in the year 1940; thereafter, the applicants

have purchased the property in question alongwith

family members; at that time, it was occupied by the

Department of Agriculture, Government of Rajasthan as

it was given to it on lease by the predecessor-in-title

of the applicants; thereafter, the property was vacated

and it was let out to Wolkem India for running its

office; the property in question was divided amongst

the applicants and other co-owners of their family vide

sub division plan which was approved by the UIT vide

letter dated 1.6.2000; after getting the property

vacated from Wolkem India, it was felt necessary that

the bungalow needs to be renovated for the purposes of

living and some addition & alteration of the Bungalow

were also felt necessary for living and thus, the

applicants-Singhals applied to the Municipal Council,

Udaipur for obtaining the permission for renovation,

re-construction, addition, alteration and repairs on

18.12.2009. The construction on the first floor of the

building near the lake of Swaroop Sagar was proposed to

be demolished and extension of existing building of

Bungalow was proposed by Singhals. The existing

construction of the property in question was 16274

sq.ft. and proposed construction comes to approx.16100

sq.ft. It was further submitted by Singhals that no

action was taken by the Municipal Council on their

application despite regular follow ups and thus, on

15.3.2010 notice was sent by the Singhals under

section 194(4)(b) of the Rajasthan Municipalities Act,

2009 (hereinafter referred to as "the Act of 2009") to 60

the Municipal Council, Udaipur requesting to take

appropriate action on their application seeking

permission for raising construction and communicate

the decision thereof within a period of one month;

since no response was given by the Municipal Council to

the communication/notice of the applicants dated

15.3.2010, by virtue of deeming provisions contained in

Section 194(4)(b) of the Act of 2009, permission

stood granted to them to raise construction and to do

renovation etc. In May 2010 after the expiry of period

mentioned in the notice dated 15.3.2010, the Singhals

started the work of renovation, repairs, constructions

etc. as per the plan submitted by them and most of the

construction was completed and thereafter, when

finishing work was to be performed, on 9.3.2011

Municipal Council, Udaipur issued a notice under

section 194 of the Act of 2009 stating inter-alia that

the constructions raised by Singhals are illegal and

they were asked to submit explanation on the next day

i.e. on 10.3.2011 at 11.00 AM. On 10.3.2011, time was

sought on behalf of the applicants and a preliminary

reply was filed; since Shri Sanjaya Singhal was out

of country, time was prayed on 10.3.2011 to file reply,

however, on 10.3.2011 itself, the Municipal Council,

Udaipur ordered seizure of the property in question. It

is pertinent to mention here that the Municipal

Council, Udaipur has taken the action before the appeal

was filed before the Authorized Officer of the State

Government (Additional Director Local Self Department,

Government of Rajasthan, Jaipur) and while acting as

Appellate Authority, the Authorized Officer allowed the

appeal of Singhals vide judgment dated 26.9.2011 61

holding inter-alia that the notices and order of

seizure of property issued under section 194(7)(f) of

the Act of 2009 were invalid on the ground that no

period of seizure has been mentioned; as per decision

of this Court in the case of Praveen Khandelwal

(supra), the case comes within exception and it

appears to be fit a case for grant of permission for

renovation/construction by the Municipal Council; no

action has been taken by the Municipal Council, Udaipur

on the application of Singhals, seeking permission to

make renovation/construction/repairs and after giving

requisite notice and as per deemed permission under

section 194(4)(b) of the Act of 2009 as no action was

taken by the Municipal Council within the stipulated

period, the Singhals started the work of

construction/renovation/repairs over the property in

question as per maps. It was further observed by the

Authorized Officer that submission of the applicants-

Singhals that Section 171 of the Act of 1959 authorizes

to issue notification declaring No Construction Zone

and the Act of 1959 has been repealed by the Act of

2009 and in the Act of 2009, there is no such

corresponding provision as contained in Section 171 of

the Act of 1959, the notifications issued under section

171 of the Act of 1959 cease to be operative, appears

to be prima facie sound; at the same time, it was

observed by the Authorized Officer that in case any bye

laws have been violated by the applicants while raising

construction, the Municipal Council shall be free to

compound it by receiving appropriate application and if

any fee is required to be deposited before the

Municipal Council, the applicants shall be free to 62

deposit the same.

It has been submitted by learned Senior Counsel

Shri M.S.Singhvi appearing on behalf of Singhals that

writ petition filed by Municipal Council is not

maintainable as Municipal Council, Udaipur has not

decided to challenge the validity of order dated

26.9.2011 passed by the appellate authority and apart

from this, the writ petition has been filed by the

Deputy Town Planner. The construction over the

property in question raised by the Singhals is not

prohibited altogether; as per Bye-laws of 2000,

construction permission can be granted even in the area

falling within No Construction Zone. It was also

submitted by the learned Senior Counsel Shri

M.S.Singhvi that there will be no adverse effect on the

Swaroop Sagar Lake by the construction being raised by the Singhals over the property in question; old

bungalow is situated away from the lake; constructed

built up area has been shifted away from the lake;

construction now is confined to 16100 sq.feet which was

earlier 16274 sq.feet; the area has been reduced;

Rajasthan State Pollution Control Board has also

granted consent/NOC on 4.11.2011; property is being

used at present for residential purposes; earlier it

was for commercial purposes; the case falls within

rarest of rare case under the orders of this Court;

relying upon the decisions of this Court dated

8.5.2000 and 6.2.2001 passed in the cases of Praveen

Khandelwal (supra) and EIH Limited (supra), it was

submitted that such construction was permissible; it

was further submitted that Notifications dated

17.1.1997, 10.12.1999 and 16.3.2000 issued in exercise 63

of power under section 171 of the Act of 1959 cease to

be operative as the Act of 1959 has been repealed by

the Act of 2009 and in the Act of 2009, there is no

such corresponding provisions as contained in Section

171 of the Act of 1959.

It has been further submitted by the learned

Senior Counsel Shri M.S.Singhvi that the learned Court

Commissioner in his report has wrongly observed that

the Singhals have extended construction to about 150 ft

x 50 ft. as against the earlier construction spreading

to 78 ft. x 50 ft.; the findings recorded by the

learned Court Commissioner on the basis of Google Earth

images appear to be incorrect; the observations made by

the learned Court Commissioner that enormous fresh

constructions are being carried on under the guise of

renovation are also factually wrong and incorrect;

permission is deemed to have been granted under section

194(4)(b) of the Act of 2009; the action of the

Municipal Council in asking Singhals to demolish the

constructions is illegal.

It has been further submitted by the learned

Senior Counsel Shri M.S.Singhvi that the contempt

proceedings being quasi criminal in nature, standard of

proof required is similar to that of a criminal case;

there is no wilful disobedience on the part of

Singhals; reliance has been placed on the decisions of

the Apex Court in Midnapore Peoples' Coop.Bank Ltd. &

ors. V/s Chunilal Nanda and ors. ((2006) 5 SCC 399),

Muthu Karuppan, Commissioner of Police Chennai V/s

Parithi Ilamvazhuthi & anr. (2011(5) SCC 496), R.S.

Sujatha V/s State of Karnataka (2011(5) SCC 689),

Sahdeo Alias Sahdeo Singh V/s State of UP & ors. (2010 64

(3) SCC 705) and Kanwar Singh Saini V/s Delhi High

Court (2012(4) SCC 307). Reliance has also been placed

on the decision of this Court in University of

Rajasthan V/s Dr.S.C.Gupta and ors. (RLW 2008(1)

Raj.412)

The stand of Municipal Council is that no

construction permission has been granted by it to the

Singhals; the decision of the Appellate Authority dated

26.9.2011 is illegal and bad in law; the order passed

by this Court in the case of Rajendra Kumar Razdan

(supra) has not been taken into consideration by the

Appellate Authority; the premises in question of

Singhals fall within No Construction Zone and thus,

construction is prohibited as per notifications issued

by the competent authority under the provisions of

Section 171 of the Act of 1959 and they are operative; deemed permission cannot be extended in the No

Construction Zone where construction is not permissible

at all and any kind of construction in No Construction

Zone is banned and thus, deeming provisions were not at

all attracted; thus, the decision of the Appellate

Authority is wholly illegal and in violation of the

directions issued by this Court in the case of Rajendra

Kumar Razdan (supra) and the same is liable to be set

aside.

With respect of Singhals' House construction, the

learned Court Commissioner in his report has opined to

the following effect:-

"5. SINGHAL HOUSE CONSTRUCTION

5.1 Subsequent thereto, upon my enquiry with Mr.Rajat Dave, Advocate, about his lis in the present 65

contempt matter, I was informed that his clients Smt.Saraswati Singhal and Sanjay Singhal have filed an application in this Hon'ble Court seeking permission to carry on construction on the land belonging to them situated immediately on the shore of Swaroop Sagar Lake. Accordingly, I proceeded to visit the said site.

5.2 After intimation to the party through officers of Municipal Council, I visited the said site in presence of Shri Sanjay Singhal and their legal advisor Mr.Pandwal along with Shri Rajendra Razdan. The applicant Shri Sanjay Singhal and his counsel stated that the structure present on the site was an old one and by virtue of the present construction they are only renovating the existing structure. I further noted that Mr.Rajendra Razdan was not only in agreement with the statement tendered by Mr.Singhal and his legal advisor but also endeavoured to justify that only renovation work was being carried out at the site. Demographically, the under construction structure is spread over three different buildings on the given plot of land. The contentious construction on the open space prima facie appeared to be an old construction on which renovation was underway, until I looked closely and carefully when I found enormous fresh construction being carried on under the guise of renovation. The Singhal family has extended construction to about 150 ft. * 70 ft. as against the earlier construction spreading to 78 ft * 50 ft. which is clear from the Google Earth images as on 17.3.2007 (Annexure 5/I), 01/03/2010 (Annexure 5/II) & 30/03/2012 (Annexure 5/III).

5.3 It may be pertinent to submit that initially an effort was made on the part of the Singhals to portray that only repairs and renovation was going on. Upon being asked about the 'permission' to commence such construction activity, Mr.Pandwal provided photocopies of various documents and informed that they had applied for permission and since the permission was not refused; they commenced work under 'Deemed Permission" clause. He also informed that they have received 'consent to establish' their own STP (Sewage Treatment Plant) and a site map thereof has been given while seeking construction permission.

5.4 It may be noticed that the land in question is 66

just adjacent to Swaroop Sagar Lake and the construction in question is almost on the bank of the lake. The Officers of Municipal Council further confirmed and admitted that the area in question falls in "No Construction Zone" as notified by Notification dated 17/1/1997.

5.5 I was informed that earlier the property in question was used for office purposes and now the same place is being converted into a residential house. Upon my questioning the modus operandi of sewage discharge by the earlier user/occupier, I was informed that there was a septic tank in the backyard of the tenement. It is relevant to point out that the owners could show me only the place where the septic tank allegedly existed. Further,it is also relevant to mention that the owners had only shown the 'consent to establish' STP and neither the STP itself nor the corresponding purchase bill/purchase order.

5.6 My visit to the said site unravels that enormous fresh construction has been raised under the guise of "Deemed Permission". It may be noted that construction in the area is restricted and impermissible in light of Notification dated 17/01/97. Hence provision of Section 170(8) of Municipalities Act, 1959 cannot be invoked. There appears to be a tacit consent of the officers of the Municipal Council, who inspite of application seeking permission have failed to refuse the same despite being aware that the area in question falls in "No Construction Zone". I also felt concerned about the indifferent attitude of the petitioner Mr.R.K.Razdan and sensed conflict of interest as on the one hand he is striving hard to check construction in the "No Construction Zone" and on the other hand he was justifying present construction in a residential area situated right on the banks of Swaroop Sagar Lake, admittedly a declared "No Construction Zone". He has also not provided any copy of counter affidavit in support or opposing the said application.

It is apparent from the report submitted by the

learned Court Commissioner as well as from other 67

documents available on record that enormous fresh

construction has been carried on under the guise of

renovation. We find force in the conclusion reached by

the learned Court Commissioner that Singhals have

extended construction to about 150 ft x 70 ft. as

against the earlier construction spreading to 78 ft. x

50 ft.; it includes the demolition of construction and

structures in the new place also. It was also not

disputed that the area in question falls within the "No

Construction Zone" as per Notification dated 17.1.1997,

which was subsequently modified vide Notification

10.12.1999 and Notification dated 16.3.2000.

Before we dilate upon the merits of the case, it

is necessary to deal with the legal question raised by

the learned Senior Counsel Shri M.S.Singhvi appearing

on behalf of Singhals to the effect that due to repeal

of the Act of 1959 by the Act of 2009, the

Notifications issued by the State Government under

section 171 of the Act of 1959 on 17.1.1997 declaring

"No Construction Zone", on 10.12.1998 further declaring

'prohibited areas' and 'restricted construction zone'

and on 16.3.2000 partially modifying notification dated

10.12.1999, cease to be operative.

When we consider Section 171 of the Act of 1959,

the Government was conferred with the power to prohibit

the construction of building in certain areas without

permission. Section 171 of the Act of 1959 read thus:

"171. Power of Government to prohibit the construction of building in certain areas without permission.(1) Notwithstanding anything contained in section 70, the State Government or any authority authorized by the State government may, in the public interest and after consulting the board prohibit, by 68

notification published in the Official Gazettee the construction of any building within a specified area in a municipality except with permission granted by the State government in this behalf:

Provided that such permission shall not be refused in the case of land which has been set apart as a building site by the State Government or the board prior to the publication of such notification. (2) The grant of any permission under sub-section (1) shall be subject to such conditions as may be fixed by the State Government in each case or prescribed generally.

(3) Whoever erects any building contrary to the provisions of sub-section (1) or the conditions imposed under sub-section (2) shall, on conviction before a magistrate, be punished with fine which may extend to two hundred rupees.

(4) The State Government may demolish any building erected contrary to the provisions of sub-section (1) or the conditions imposed under sub-section (2)."

It is apparent from bare reading of Section 171 of the Act of 1959 that the State Government or any

authority authorized by the State government may, in

the public interest and after consulting the board

prohibit, by notification published in the Official

Gazettee the construction of any building within a

specified area in a municipality except with permission

granted by the State Government in this behalf.

Accordingly, the Notification dated 17.1.1997 was

issued by the State Government declaring "No

Construction Zone" in and around Fateh Sagar Lake and

Pichhola Lake and thereafter, the said Notification was

modified by another Notification dated 10.12.1999

issued by the State Government under section 171 of the

Act of 1959 by which with a view to prevent pollution

in the lakes of Udaipur City and to ensure healthy

environment, "Prohibited Areas" and "Restricted 69

Construction Zone" were declared in and around lakes of

Udaipur City; a further Notification under section 171

of the Act of 1959 read with section 297 (sic 299) was

issued by the State Government on 16.3.2000 by which

partial modification was made in the Notification dated

10.12.1999 and the State Government has taken away from

the Municipal Council and UIT the power to grant

permission to make addition, alteration, construction,

renovation etc. in the "prohibited areas" and "no

construction zone" and the same has been reserved with

the State Government. The UIT and Municipal Council

were left with the power to only grant permission with

respect to repair and plaster and not beyond that.

When we come to the Notifications dated

17.1.1997, 10.12.1999 and 16.3.2000 issued by the State

Government in exercise of power under section 171 of the Act of 1959, we are of the considered opinion that

the said Notifications in view of repeal of the Act of

1959 by the Act of 2009 have not come to an end as per

provisions contained in Section 344 of the Act of 2009

which deals with the repeal and savings. Repeal is

without prejudice to the provisions of the Rajasthan

General Clauses Act, 1955 (hereinafter referred to as

"the Act of 1955") as provided in Section 344(2). It

is further provided in Section 344(2)(a) that such

repeal of the Act of 1959 shall not affect the

validity or invalidity of anything already done or

suffered or any action already taken under the repealed

enactment or the rules, regulations and bye laws made

thereunder. It is further provided in Section 344(2)(b)

that all Municipal Corporations, Councils, Boards or

other municipal authorities established under the Act 70

of 1959 shall, notwithstanding such repeal, be deemed

to have been established under the Act of 2009 and all

Municipalities constituted, members nominated,

appointed or elected, committees formed, limits

defined, appointments, rules, orders and bye-laws made,

notifications and notices issued, taxes imposed,

contracts entered into and suits and other proceedings

instituted under the repealed enactment shall so far as

they are not inconsistent with the provisions of this

Act, be deemed to have been respectively constituted,

nominated, appointed or elected, formed, defined, made

issued, imposed, entered into and instituted under the

Act of 2009. Section 344 of the Act of 2009 is quoted

below:-

"344. Repeal and Savings.-(1) On and from the commencement of this Act, the Rajasthan Municipalities Act, 1959 (Act No.38 of 1959) shall stand repealed.

(2) Without prejudice to the provisions of the Rajasthan General Clauses Act, 1955 (Act No.8 of 1955);

(a) such repeal of the Act of 1959 shall not affect the validity or invalidity of anything already done or suffered or any action already taken under the repealed enactment or the rules, regulations and bye laws made thereunder; and

(b) all Municipal Corporations, Councils, Boards or other municipal authorities established under the Rajasthan Municipalities Act, 1959, (Act No.38 of 1959") shall, notwithstanding such repeal, be deemed to have been established under this Act and all Municipalities constituted, members nominated, appointed or elected, committees formed, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into and suits and other proceedings instituted under the repealed enactment shall so far 71

as they are not inconsistent with the provisions of this Act, be deemed to have been respectively constituted, nominated, appointed or elected, formed, defined, made issued, imposed, entered into and instituted under this Act."

In view of the specific language used in Section

344(2)(a) and (b) of the Act of 2009, we are of the

considered opinion that the earlier Notifications

issued by the State Government under section 171 of

the Act of 1959 on 17.1.1997, 10.12.1999 and 16.3.2000

declaring and notifying 'No Construction Zone" and

"Prohibited Areas" in and around lakes and other places

of Udaipur City and specifying power to grant

permission to raise construction/ renovation/

repairs/plaster etc. in No Construction Zone and

Prohibited Areas still survive and no inconsistent

provisions to Section 171 have been enacted in the Act

of 2009. Merely because no such enabling provision has

been inserted, it cannot be said that the said

Notifications become inconsistent with the provisions

of the Act of 2009. Furthermore, when we consider the

provisions of Section 6 of the Rajasthan General

Clauses Act of 1955, Section 6 deals with effect of

repeal and the effect of clauses has been specifically

saved in the repealing Section 344 of the Act of 2009.

In view of the provisions contained in Section 6 of the

Act of 1955, we find that the Notifications dated

17.1.1997, 10.12.199 and 16.3.2000 issued by the State

Government under section 171 of the Act of 1959 are

still operative.

Apart from that, we find that besides statutory

provisions, there is independent power with the Court 72

under the various constitutional provisions with

respect to protection of environment, flora and fauna,

conservation of water resources and lakes etc. as

stated above, and with a view to ensure protection and

conservation of lakes of Udaipur City from pollution

and contamination, this Court has issued directions

from time to time which have been made absolute vide

final order dated 6.2.2007 passed in the case of

Rajendra Kumar Razdan (supra). Thus, it is apparent

that for preservation of lakes, the notifications

issued under section 171 of the Act of 1959 continue

and directions issued by this Court in the various

decisions referred to above are operative and have not

come to an end. This Court in the case of Rajendra

Kumar Razdan (supra) has clearly directed that no

construction shall be permitted in the no construction

zone. There was no exception carved out with respect to

no construction zone. At the cost of repetition, we

reiterate the directions "Effective steps should be

taken so as not to permit any sort of construction

within the No Construction Zone". The exception of

rarest of rare is with respect to conversion and

construction permission in and around the lakes and in

their respective catchment areas. The exception is not

with respect to "No Construction Zone". Since the

premises of Singhals admittedly fall in the area of no

construction zone, the construction raised by them was

illegal and in clear violation of the directions of

this Court.

Competency

Coming to the question of deemed permission

alleged to have been granted to Singhals under the 73

deeming provisions of Section 194(4)(b) of the Act of

2009, in our opinion, "No Construction Zone" notified

and declared vide notifications issued in 1997, 1999

and 2000 under section 171 of the Act of 1959 are still

operative; there was no power left with the Municipal

Council or UIT, Udaipur to grant permission for

addition, alteration, construction, renovation etc. in

the no construction zone or prohibited areas and the

same was reserved with the State Government; they were

only having power to grant permission with respect to

repairs/plaster and not beyond that. The purpose for

which permission was applied for was in fact for

raising fresh construction after dismantling earlier

construction; it was de novo construction which was

contemplated and it was not even alteration of the

structures; the learned Court Commissioner has found on

assessment and measurement that area of construction

has been enhanced by Singhals from 78 ft. x 50 ft. to

150 ft. x 70 ft. and in coming to that conclusion he

has placed reliance on Google Earth images Annexures

5/I to 5/III; there is absolutely nothing to doubt the

meticulous findings recorded by the Court Commissioner.

Thus, we have no hesitation to accept the findings

recorded by the Court Commissioner and hold that

Singhals have extended the construction to 150 ft. x 70

ft., earlier it was lesser in area 78 ft. x 50 ft.

Permission to raise such fresh construction could not

have been granted by the Municipal Council or UIT or

State Government in the area in question which is

falling within the no construction zone as per

direction issued by this Court. The deeming provisions

contained in Section 194(4)(b) of the Act of 2009, 74

which have been pressed into service, are not attracted

at all as construction was sought to be raised in no

construction zone. Section 194 (1) of the Act of 2009

provides that any person intending to erect a new

building or to re-erect or to make a material addition

in a building or erect or re-erect any projecting

position of a building within the limits of

municipality, is required to submit application in

the prescribed form to the Municipality alongwith the

documents and Section 194(4)(b) provides that the

Municipality shall decide the application and convey

its written orders within a period of two months from

the date of receipt of application and in cases where

the Municipality fails to convey its decision with two

months, the applicant may undertake the construction

after giving one month's clear notice to that effect to

the Municipality, considering it as a case of deemed

permission. Since power of the Municipal Council to

grant permission for construction in the no

construction zone and prohibited area has been taken

away by the State Government by notification dated

16.3.2000 issued under section 171 of the Act of 2009

and such power has been reserved with the State

Government, application could not have been filed

before the Municipality to erect a new building or to

re-erect or to make a material addition in a building

or to erect or re-erect any projecting portion of a

building etc.; the application should have been

preferred before the State Government as the

Notification dated 16.3.2000 still survives and was in

force with respect to no construction zone and

prohibited areas; thus, deemed permission by virtue of 75 Section 194(4)(b) of the Act of 2009 does not come into

play as the application itself before the Municipality

for raising construction in the no construction zone

and prohibited areas, was not maintainable. Moreover,

when this Court has prohibited any construction

activity in no construction zone, no permission or

deemed permission could have been granted or deemed to

have been granted.

It shocks the conscience of the Court that the

Appellate Authority has ordered that in case there is

any violation of bye-laws, it is open to compound it;

how such kind of orders could have been passed by the

appellate authority; appellate authority was enjoined

upon the duty to ensure that no construction is raised

in the no construction zone and prohibited areas in

violation of the orders passed by this Court, but at

the same time, the appellate authority went to the

extent that requisite fee be deposited with the

Municipal Council for compounding violation; such

impermissible exercise was not warranted at all;

interpretation that notifications issued by the State

Government under section 171 of the Act of 1959 cease

to be operative is also incorrect.

It was submitted by Shri Singhvi, learned Senior

Counsel appearing on behalf of Singhals that Chief

Municipal Officer, Municipal Council took the decision

to file writ petition questioning the order passed by

the Appellate Authority; he was not competent to do so;

entire Municipal Council should have considered the

question and should have passed the Resolution so as to

file writ application. Apart from this, writ

application has been filed on behalf of Municipal 76

Council through Commissioner under the signatures of

Deputy Town Planner; it cannot be said to be

maintainable.

The learned Senior Counsel was unable to show any

provision under the Act of 2009 requiring passing of

Resolution by elected body for filing writ application;

on the other hand, the Chief Municipal Officer has

power to direct any prosecution for any public

nuisance whatsoever or violation of any order or

directions issued under the Act of 2009 and may order

proceedings to be taken for the recovery of any

penalties and for the punishment of any persons

violating the provisions of the Act of 2009 or of any

rule or bye-laws thereunder, as provided under section

298 of the Act of 2009. No doubt the said provision is

with respect to prosecution before any Magistrate, but

the executive heads of Municipal Corporation or Council

are Commissioner or Chief Municipal Officer, as the

case may be. Thus, with respect to writ petition, it is

apparent that decision could have been taken by the

Chief Municipal Officer. The writ petition has been

filed on behalf of Municipal Council through

Commissioner under the signatures of Deputy Town

Planner, who was authorized to file it. Thus, we find

no ground to entertain the submission raised by Shri

Singhvi, learned Senior Counsel appearing on behalf of

Singhals.

In Midnapore Peoples' Coop.Bank Ltd. & ors. V/s

Chunilal Nanda and ors. (supra) relied upon by shri

Singhvi, learned Senior Counsel, the Apex Court has

held that High Court can in contempt proceedings decide

whether any contempt of court was committed, if yes, 77

the quantum of punishment and matters incidental

thereto. However, in such proceedings, it is not

appropriate to adjudicate or decide any issue relating

to the merits of the dispute between the parties.

In Sahdeo Alias Sahdeo Singh V/s State of Uttar

Pradesh and ors. (supra), relied upon by Shri Singhvi,

learned Senior Counsel, the Apex Court laid down that

the proceedings of contempt are quasi-criminal in

nature. In a case where the order passed by the court

is not complied with by mistake, inadvertence or by

misunderstanding of the meaning and purport of the

order, unless it is intentional, no charge of contempt

can be brought home. There may possibly be a case where

disobedience is accidental. If that is so, there would

be no contempt. The Apex Court laid down thus:

"27. In view of the above, the law can be summarized that the High Court has a power to initiate the contempt proceedings suo motu for ensuring the compliance with the orders passed by the Court. However, contempt proceedings being quasi-criminal in nature, the same standard of proof is required in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. There must be a clear cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The allegec contemnor is to be informed as to what is the charge, eh has to meet. Thus, specific charge has to be framed in precision. The alleged contemnor may ask the Court to permit him to cross-examine the witnesses i.e. the deponents of affidavits, who have deposed against him. In spite of the fact that contempt proceedings are quasi criminal in nature, provisions of the Code of Criminal Procedure, 1973 (hereinafter called 78

"Cr.PC") and the Evidence Act are not attracted for the reason that proceedings have to be concluded expeditiously. Thus, the trial has to be concluded as early as possible. The case should not rest only on surmises and conjectures. There must be clear and reliable evidence to substantiate the allegations against the alleged contemnor. The proceedings must be concluded giving strict adherence to the statutory rules framed for the purpose."

In R.S.Sujatha V/s State of Karnataka and ors.

(supra) relied upon by Shri Singhvi, learned Senior

Counsel, the Apex Court laid down that criminal

contempt proceedings being quasi criminal in nature,

the burden and standard of proof required is the same

as in criminal cases. The charges have to be framed as

per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the

alleged contemn or is entitled to the benefit of doubt.

In contempt proceedings, punishment cannot be imposed

without any foundation on mere probabilities or

conjectures and surmises. The Apex Court laid down

thus:-

"18. Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have 79

been committed.

21. The proceedings being quasi-criminal in nature, burden and standard of proof required is the same as required in criminal cases. The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities. The court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises (See Sahdeo v. State of UP (2010) 3 SCC 705). Needless to say, the contempt proceedings being quasi-criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings. In L.P.Misra (Dr.) v. State of U.P. (1998) 7 SCC 379) this Court while dealing with the issue of observance of the statutory rules held as under: (SCC p.382 para 12) "12.... we are of the opinion that the Court while passing the impugned order had not followed the procedure prescribed by law. It is true that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law.

In Muthu Karuppan, Commissioner of Police Chennai

V/s Parithi Ilamvazhuthi and anr. (supra) relied

upon by Shri Singhvi, learned Senior Counsel, the Apex

Court reiterated that contempt proceeding being quasi

criminal in nature requires strict adherence to

procedure prescribed under applicable rules. It was

further held that jurisdiction to initiate proceedings

for contempt as also the jurisdiction to punish for

contempt are discretionary with the court. Contempt 80

generally and criminal contempt certainly is a matter

between the court and the alleged contemnor. No one can

compel or demand as of right initiation of proceedings

for contempt. The person filing an application or

petition before the Court does not become a complainant

or petitioner in the proceedings. He is just an

informer or relator. His duty ends with the facts being

brought to the notice of the court. It is, thereafter,

for the court to act on such information or not.

In Kanwar Singh Saini V/s High Court of Delhi

(supra) relied upon by Shri Singhvi, learned Senior

Counsel, the Apex Court has held that contempt

proceedings being quasi criminal in nature, standard of

proof required is the same as in other criminal cases.

Alleged contemnor is entitled to protection of all

safeguards/rights provided in criminal jurisprudence, including benefit of doubt. There must be clear cut

case of obstruction of administration of justice by a

party intentionally to bring the matter within the

ambit of contempt. Cases should not rest only on

surmises and conjectures. It was further held that as

the application under Order 39 Rule 2-A CPC itself was

not maintainable all subsequent proceedings remained

inconsequential and the legal maxim sublato fundamento

cadit opus which means foundation being removed

structure falls, is attracted.

In University of Rajasthan V/s Dr.S.C.Gupta and

ors. (supra) relied upon by learned Senior Counsel

Shri Singhvi, the Division Bench of this Court observed

that the scope of the contempt jurisdiction is to

implement the direction alone and not to pass further

directions which were not ever subject matter of the 81

writ petition.

There is no dispute with respect to the

proposition laid down by the Hon'ble Supreme Court in

the aforesaid cases. In the instant case, directions

issued by this Court in the case of Rajendra Kumar

Razdan (supra) have been violated in pith and substance

and beyond periphery of doubt. It is not a case where

contempt is not intentional; it is not only

intentional, but contumacious also, as on the one hand,

authorities are not giving permission for making

repairs and on the other hand, permissions are being

given to raise construction in the 'no construction

zone', which is not permissible, as well as in and

around lakes without considering the decision of this

Court in the case of Rajendra Kumar Razdan (supra);

they are referring the decision in the case of EIH Ltd. (supra) only and not the decision in the case of

Rajendra Kumar Razdan (supra) which is subsequent in

point of time, of which violation has been alleged. The

action on the part of the authorities indicates that

contempt is wilful and intentional and decision in the

case of Rajendra Kumar Razdan (supra) is not being

referred while granting permissions/sanctions as it is

not possible for the authorities to grant

permissions/sanctions in view of the decision rendered

by this Court in the case of Rajendra Kumar Razdan

(supra). The disobedience in the instant case cannot

be said to be accidental.

Thus, we have no hesitation to set aside the order

passed by the Appellate Authority on 26.9.2011 which

has been impugned in Writ Petition No.12652/2011. The

Municipal Council was right in stopping the 82

construction, seizing property in question and

directing demolition of construction made by Singhals.

However, at the same time, since earlier construction

was existing on 78 ft. x 50 ft., with respect to it on

proper application being filed, may permit the

construction to stand to the extent which was earlier

existing at the place where it was, since certain

construction was existing at the place in question

which was being earlier occupied by Government

Department and later on by WolKem India and for that,

the State Government as well as the Municipal Council

to ensure that directions of this Court are not

violated in any manner whatsoever; the construction

which has been made illegally at the place which was

not existing, obviously cannot be sustained, it has to

be demolished. The order passed by the appellate

authority cannot be treated to be order of permission

granted by the State Government to renovate the

building. The construction, which is unauthorizedly

raised by the Singhals, be demolished as early as

possible. However, as prayed, we grant two months' time

to Singhals as prayed by the learned Senior Counsel

Shri M.S.Singhvi to approach Hon'ble Supreme Court or

to demolish construction. In case construction is not

removed within two months, it shall be demolished by

the State Government and Municipal Council within one

month thereafter. However, no further construction

activities shall be undertaken.

The Lake Palace Hotels & Motels Pvt.Ltd.

Coming to the case of the Lake Palace Hotels and 83

Motels Pvt.Ltd., it has filed application (IA

No.18403/11) for intervention in the contempt petition

as its construction was also stopped pursuant to the

interim order passed by this Court in contempt

proceedings. It has been mentioned in the application

that permission was granted by the State Government on

2.11.2006 and the same has been placed on record as

Annex.A/1; permission has also been granted by the

Municipal Council on 10.4.2008 and the same has also

been placed on record as Annex.A/2 and thus,

constructions raised by the applicant cannot be said to

be illegal or in violation of the directions issued by

this Court.

While granting permission to the applicant-Lake

Palace Hotels and Motels Pvt.Ltd., the Municipal

Council has clearly mentioned in condition no.12 that this permission is for addition and alteration only and

no fresh construction shall be carried out. Condition

no.12 imposed by the Municipal Council while granting

permission to the applicant on 10.4.2008 is quoted

below:-

"12. ह सव कनत ससफ# एड'श एल*श क ह# अत ककस भ

पक र क न म ,ण ह कर।"

It is apparent that raising of fresh construction

in the no construction zone and prohibited areas is

totally banned and restricted as per orders passed by

this Court.

It was submitted by the learned Senior Counsel

Shri M.S.Singhvi that since the State Government has

granted construction permission and Municipal Council

has also granted permission on 10.4.2008 and sanctioned 84

map for construction of 30 rooms, constructions raised

by the Lake Palace Hotels & Motels Pvt.Ltd. was in

accordance with law having been made after due

permission and there is no violation of the orders of

this Court on the part of the applicant.

The learned Senior Counsel has also submitted that

notifications issued under section 171 of the Act of

1959 ceased to be in force in view of repealing of the

Act of 1959 by Act of 2009 and thus, construction

raised could not also be said to be violative of

Notifications issued under section 171 of the Act of

1959 on 17.1.1997, 10.12.1999 and 16.3.2000. The

submission raised is dealt with and repelled while

dealing with Singhals' construction case (supra).

As per final order dated 6.2.2007 passed by this

Court in the case of Rajendra Kumar Razdan (supra),

there shall be no construction within the area of No

Construction Zone and we find from the condition no.12

imposed by the Municipal Council while granting

permission on 10.4.2008 that permission was granted

for addition and alteration only and not for fresh

construction. Thus, permission has not been granted for

raising new/fresh construction as is apparent from

condition no.12 of the permission dated 10.4.2008.

Hence, it was not permissible to raise new construction

of 30 rooms under the guise of aforesaid permission as

new/fresh construction in no construction zone was

strictly prohibited and banned by this Court. In the

map permission to raise new construction of 30 rooms

was violative of order of this Court.

Thus, we have no hesitation to hold that the

construction of new 30 rooms by the applicant-the Lake 85

Palace Hotels & Motels Pvt.Ltd. under the permission

dated 10.4.2008 is in contravention of the orders

passed by this Court. Even assuming that plan was

sanctioned, but from the words used in condition no.12

of the permission, it is apparent that the authorities

could not have adopted circuitous method of violation

of the directions issued by this Court by couching the

condition no.12 to the aforesaid effect and then

granted permission to raise construction in the map;

condition no.12 that no fresh construction to be raised

has to prevail as that is in accordance with the

directions issued by this Court. It appears that the

authorities of Municipal Council have acted malafidely

and with ulterior motive; they could not have

sanctioned the map differently in view of condition

no.12; their act amounts to contempt of Court's order

as they were very well aware about the directions of

this Court that no new or fresh construction can be

raised within no construction zone and even the power

to grant such permission has been reserved by the State

Government. New construction of 30 rooms could not

have been permitted under the guise of addition or

alteration. Thus, whole exercise undertaken by the

Municipal Council and the State Government permitting

construction of new 30 rooms is held to be in violation

of the directions issued by this Court in the case of

Rajendra Kumar Razdan (supra); construction of new 30

rooms by the applicant-the Lake Palace Hotels and

Motels Pvt.Ltd. is de novo and it could not be said to

be permissible.

Hence, construction of new 30 rooms by the Lake

Palace Hotels and Motels Pvt.Ltd. is held to be in 86

violation of the notifications issued by the State

Government under section 171 of the Act of 1959 and

also in contravention of mandatory order passed by this

Court and we direct demolition of construction of 30

rooms. We grant two months' time to the Lake Palace

Hotels & Motels Private Limited as prayed by the

learned Senior Counsel Shri M.S.Singhvi to approach

Hon'ble Supreme Court. The construction of 30 rooms be

removed within two months failing which, it shall be

demolished by the State Government and Municipal

Council within one month thereafter.

M/s Vardha Enterprises

Since the construction activities of Hotel being

raised by M/s Vardha Enterprises were also stopped

pursuant to the directions issued by this Court in

contempt proceedings, it has filed application (IA

No.17795/11) on 17.10.2011 for recalling/clarification

of the order dated 12.10.2011 passed by this Court in

contempt petition restraining construction activities

in "no construction zone"; another application (IA

No.17796/11) was filed by M/s Vardha Enterprises on

17.10.2011 for intervention in the contempt petition;

and application (IA No.18059/11) was also filed by M/s

Vardha Enterprises on 18.10.2011 for vacating the

interim order dated 12.10.2011.

It was submitted by M/s Vardha Enterprises that

construction work has been wrongly stopped by the

authorities as the interim order of this Court was only

confined to 'no construction zone'; the construction

activities are being undertaken in Udai Sagar Lake on 87

island after bonafide purchasing the land in 2007-08

much after passing of the order by this Court in the

main petition; it was further submitted that M/s

Vardha Enterprises applied for conversion of 8.15

hectare of land for construction of Resort with FAR to

the tune of 16,300 square meter post conversion; the

State Government has issued a circular on 25.8.2010

with a view to encourage and promote the hotel industry

in the State in the private sector for upliftment of

tourism; conversion permission was granted to the

applicant and thereafter, UIT has granted permission

for raising the construction after grant of permission

by the State Government for conversion; Section 90B of

the Rajasthan Land Revenue Act was invoked which

culminated into order dated 4.12.2009 whereby the land

was finally entered in the name of the applicant for

construction of hotel project. Permission for

construction was granted by UIT on 31.12.2009 and

by-partite agreement was entered into between the

applicant and UIT, Udaipur. It was further submitted

that the applicant has taken a loan of Rs.50 crores to

complete the Project and it has already invested more

than Rs. 15 crores in the Project; because of the

interim order passed by this Court, heavy loss of Rs.2

lacs per day is being caused to the applicant, as such,

prayer has been made in the application to vacate the

interim order passed by this Court on 12.10.2011 and

permit it to raise the construction of hotel.

Another application has been filed by the

applicant-M/s Vardha Enterprises for impleadment in the

contempt petition in which similar averments have been

made. It was further submitted that permission has 88

also been granted by the Rajasthan State Pollution

Control Board on 28.8.2008.

Application for recalling/clarification of the

order passed by this Court on 12.10.2011 has also been

filed by M/s Vardha Enterprises more or less on similar

averments.

This Court vide order dated 16.5.2012 passed in

contempt petition asked Mr.Jagdeep Dhankar, learned

Senior Counsel appearing on behalf of applicant M/s

Vardha Enterprises whether there was any permission

obtained from the Ministry of Environment and Forests

(for short "MOEF") and the State Environment Impact

Assessment Authority (for short "the SEIAA") pursuant

to the Notification issued by the Central Government

MOEF in 2006 for raising construction of the Hotel in

question and M/s Vardha Enterprises was also directed

to clarify whether any permission has been obtained by it under the Wetlands (Conservation and Management)

Rules, 2010 (hereinafter referred to as "the Wetlands

Rules").

Thereafter, on 19.5.2012 an additional affidavit

has been filed by M/s Vardha Enterprises in which it

was pointed out that land measuring 8.15 hectares was

purchased in the year 2008 by various sale deeds for a

sum of Rs.1,14,34,220/-; change of land was not

objected on objections being invited by UIT; out of

8.15 hectares of land, area of only 2.0350 hectares was

above High Flood Level (for short "HFL"); the State

Government has granted allotment order and lease/patta

granted has been duly registered; village panchayat has

issued no objection certificate. In sum and substance,

the submission raised is that construction of Hotel is 89

in accordance with law. It is also submitted with

respect to the report of the learned Court Commissioner

that in the report, adverse inference has been drawn as

regards construction of 290-300 meters long and 10-15

meter wide road from abadi of village Tila Kheda to the

island while encroaching upon the government land and

the observations made by the learned Court Commissioner

that encroachment has not only reduced the size of the

lake but has also divided the lake into two parts

resulting into changing the basic character of the

island, are not correct. The kachha road was earlier in

existence; there was pagdandi (pathway) earlier which

was used to reach the island in question; when the lake

is full, the kachha road submerges in the lake and the

land takes shape of an island. The Project in question

does not require any clearance in terms of Central

Government MOUF Notification of 2006 and the same is

not applicable as the built up area is less than 20,000

sq.mtrs. The Wetlands Rules of 2010 are also not

applicable as permission for construction was accorded

before the said Wetlands Rules of 2010 came into force.

Thus, the construction raised by the applicant-M/s

Vardha Enterprises is in accordance with law and does

not tantamount to violation of the directions issued by

this Court in the main petition.

It was submitted by learned senior counsel on

behalf of M/s.Vardha Enterprises that they are bonafide

purchasers; the notification dated 14.9.2006 under

Environment(Protection) Act is not applicable as

construction is below 20,000 sq.mtrs. Moreover, it was

not to the knowledge and came to the notice by the

decision of this Court in Prof.K.P.Sharma(supra). The 90

due and requisite permissions have been obtained;

kaccha road was in existence to approach the island, it

had been repaired only, this Court has not totally

stopped the construction in and around lakes, this

Court cannot sit over experts opinion when permissions

have been granted. In view of the establishment of the

National Green Tribunal and decision of the Apex Court

in Bhopal Gas Peedith Mahila Udyog Sangathan &

Ors.Vs.Union of India & Ors., (2012 STPL(Web) 424 SC),

Wetlands Rules are not applicable as they came in force

subsequently. It cannot be said that there is violation

of order of this Court; the construction is in

accordance with law.

The learned Court Commissioner after inspecting

the site and assessing measurement has opined that M/s

Vardha Enterprises has constructed a 290-300 meters long and 10-15 meters wide road from abadi of village

Tila Kheda to the island while encroaching upon the

government land. He has further opined that laying of

that road has not only reduced the size of the lake but

has also divided the lake into two parts resulting into

changing the basic character of the island. The

observations made by the learned Court Commissioner in

his report with regard to M/s Vardha Enterprises are

quoted below:-

"2.VARDHA ENTERPRISES CONSTRUCTION AT LAKE UDAI SAGAR

2.1 Mr.Rajesh Joshi Advocate, Counsel for Vardha Enterprises requested me to visit the Hotel construction site at Udai Sagar Lake. Accordingly, we visited the site in presence of Mr.Rajesh Joshi,Advocate, Dr.R.P.Sharma, Secretary, UIT and other Officers of the State Government. I found a boundary wall of about 6ft to 8 ft constructed on the 91

periphery of the island and RCC structure on a part of the island. Mr.Joshi and the representative of the hotel informed me that prior to stopping of the construction, the construction activity continued for about 1-1/2 years on 2.035 hectares out of the total area of 8.1500 hectares purchased by the company.

2.2 It is pertinent to submit that we could reach the island in our vehicle only after driving on a kachcha road connecting Tila Kheda Village on the main land to the island. Mr.Joshi handed me over photocopies of various documents including sale deeds relating to purchase of the land and a copy of the communication dated 18/9/2008 issued by the Secretary, UIT, Udaipur (Annexure 2/I) and another report furnished by the Secretary, UIT showing that a kachha road having length of 300 meter and width of 7 meter is there on the site (Annexure 2/II), which goes to आर ज 517 and 666 of Revenue Village Tila Kheda. I requested Secretary UIT to give a Revenue Map of the area, which was made available to me (Annexure 2/III). On perusal of the Revenue Map, I failed to trace the road therein connecting the mainland village and the island. On being questioned about the said fact, the Secretary informed that there was a Pagdandi (Pathway) used earlier by the local inhabitants and agriculturists to reach the subject island. It will be relevant to refer to report dated 8/9/2008 (Annexure 2/IV) of the Senior Town Planner, which shows that the area in question falls in the urban area of Master Plan. Subject land admeasuring 8.1500 hectares is an island and when the lake is full the kachcha road submerges in the lake and the land takes shape of an island. According to him only 2.350 hectares of land is above the High Flood Level (HFL) marks, on which construction can be permitted. The Officers of the Revenue Department informed that an order U/s 90/90A of Rajasthan Land Revenue Act has been passed on 26/12/2011 (Annexure 2/V) imposing penalty of Rs.500/- on Vardha Enterprises for trespassing on the subject land in आर ज no.517 and 666 by way of laying the connecting road. Against the said order, the company has preferred an Appeal under section 75 of Rajasthan Land Revenue Act, 1956, which is pending consideration before the Collector, Udaipur. The revenue authorities informed me that there is no interim order by 92

Collector or any higher authority against the order of trespass.

2.3 Apart from the above fact, a bare look of the road shows that the road has been laid down lately by Vardha Enterprises by way of dumping boulders and soil with a view to connect the island with the main land. The view is ratified by surveying the documents relating to allotment of land and construction permission, as the same clearly mentions that land purchased by the Vardha Enterprises is only an island and the construction permission etc. have been given treating the same to be an island. It is pertinent to note that even in the construction permission dated 31/12/2009 (Annexure 2/VI), it was made clear that the company will use boat to reach the island. The undersigned invites attention of this Hon'ble Court towards para no.14 of the construction permission, which clearly shows that the subject land is an island and the company was required to establish a jetty for reaching the island.

2.4 I have taken help of 'Google Earth'; a web application developed by Google, which captures Ariel photographs of entire globe at various zoom levels. I have further used the 'Historical Imagery' feature of the web application, which enables a viewer to see and compare geographical images captured at various points of time. A perusal of the images of the site as on 28/04/2006 (Annexure 2/VII), 4/12/2010 (Annexure 2/VIII), 07/12/2012 (Annexure 2/IX) & 30/3/2012 (Annexure 2/X) clearly reveals that there existed no road connecting Village Tila Kheda and the subject island.

2.5 I have taken measurement of the width of the road at two places with the help of patwari, which was 15 meter (45 ft) and 10 meter (34 ft).

2.6 I am therefore of a firm view that the company Vardha Enterprises has constructed a 290-300 meters long and 10-15 meters wide road, from abadi of Village Tila Kheda to the island while encroaching upon the government land. It may also be noted that laying of this road has not only reduced the size of the lake but has also divided the lake into two parts resulting into changing the basic character of the island."

93 It is apparent from the report submitted by the

learned Court Commissioner and permission to raise the

construction, it was granted on the condition that

subject land is an island and the Company was required

to establish a jetty for reaching the island.

The learned Court Commissioner in his report has

also observed that by laying road to reach to the

island, construction of hotel has been proposed; the

road which has been laid not only reduced the size of

the lake but has also divided the lake into two parts

resulting into changing the character of the island.

The learned Court Commissioner has also measured the

width of the road at two place and at one place it was

15 meter (45 ft) and on other place, it was 10 meter

(34 ft). The learned Court Commissioner has also

annexed with the report Google maps of various dates

i.e. 28/04/2006 (Annexure 2/VII), 4/12/2010 (Annexure

2/VIII), 07/12/2012 (Annexure 2/IX) & 30/3/2012

(Annexure 2/X) which show that there existed no road

connecting village Tila Kheda and the island in

question. We have also gone through these maps and

found that earlier no such road was existing. Apart

from this, we find that the State Government itself has

found that the construction which has been raised of

the road for reaching to the island to be an

encroachment made by M/s Vardha Enterprises and order

passed in proceedings under section 91/90A of the

Rajasthan Land Revenue Act for removal of encroachment

has been placed on record as Annex.2/V with the report

in which demolition of the construction of road has

been ordered and M/s Vardha Enterprises has been fined; 94

appeal preferred by M/s Vardha Enterprises against the

said order has been dismissed as stated by the learned

Additional Advocate General Shri Anand Purohit. Thus,

it is apparent that for carrying out the venture of

proposed five star hotel by M/s Vardha Enterprises on

the island of Udai Sagar Lake, encroachment has been

made and on it, road has been illegally constructed and

whether the construction of hotel on island in Udai

Sagar Lake is permissible or not, we will discuss this

aspect later.

There is clear cut directions of this Court

contained in the order dated 6.2.2007 passed in the

case of Rajendra Kumar Razdan (supra) that the

conversion and construction permission in and around

the lakes and in their respective catchment areas is

completely banned; directions were also issued to

earmark submerged peta land of the lakes and to ensure

that no human activities are carried on in the said

area. At the cost of repetition, we again reiterate

the directions contained in para 28(iv) and (vi) of the

order passed in the case of Rajendra Kumar Razdan

(supra) as follows:-

"iv) The conversion and construction permission in

and around the lakes and in their respective

catchment areas is completely banned except the

rarest of rate exceptional case keeping in view the

earlier orders of this Court;

vi) Submerged peta land of the lakes be earmarked by

the Revenue Department and it must be further ensured

that no human activities are carried on in the said

area;"

95 Thus, it is evident that conversion and

construction permission in and around the lakes and in

their respective catchment areas is completely banned

and it is rightly conceded by the learned Additional

Advocate General Shri Anand Purohit that the State

Government and authorities while granting permission of

construction to M/s Vardha Enterprises did not consider

the order dated 6.2.2007 passed by this Court in the

case of Rajendra Kumar Razdan (supra) and only

considered the order dated 6.2.2001 passed by this

Court in EIH Ltd. (supra) whereas final order dated

6.2.2007 passed by this Court in the case of Rajendra

Kumar Razdan (supra) was required to be considered.

The State authorities, Municipal Council and UIT have

completely ignored the order passed by this Court in

the case of Rajendra Kumar Razdan (supra) while

granting various permissions and it was obviously done

with a view that the said order was not convenient for

them to refer as they could not have granted permission

for conversion and construction in and around the

lakes and in their respective catchment areas. It was

incumbent upon the authorities concerned to consider

the order dated 6.2.2007 passed by this Court in the

case of Rajendra Kumar Razdan (supra) while considering

application of M/s Vardha Enterprises for construction

of hotel on the island in question in Udai Sagar Lake

and since the said order was not taken into

consideration, rather ignored, permission granted to

M/s Vardha Enterprises for construction of hotel on

island in the Udai Sagar Lake becomes illegal, void and

inoperative being in contravention of the directions

issued by this Court vide order dated 6.2.2007 in the 96

case of Rajendra Kumar Razdan (supra). The area on

which road has been constructed was submerged peta land

of the lakes; it becomes submergent as mentioned in

condition no.14 of the agreement itself; permission was

granted to M/s Vardha Enterprises for construction on

island and it was made clear to reach island to use

boat; no permission to use bed of Udai Sagar Lake for

purpose of road was granted but still M/s Vardha

Enterprises has got constructed road so as to reach

island which has created the situation resulting into

diversion and dividing of lake and water in two parts,

as rightly observed by the Court Commissioner. Such

diversion of water is not permissible, as observed by

the Apex Court in the case of M.C.Mehta V/s Kamal Nath

and ors. (supra). Thus, whole exercise was

impermissible and the permission and agreement

entered into between M/s Vardha Enterprises and UIT are

liable to be quashed on this ground alone.

Apart from this, we find that what was submitted

on fact that construction permission has been granted

for less than 20,000 sq.mt., is incorrect statement of

fact, however, when we see the permission order dated

31.12.2009 passed by the UIT, Udaipur, it appears that

permission was granted for the area of 2,18,966 sq.ft.

(20,342 sq.mtrs).

It is not disputed that permission has been

accorded by the State Government for conversion of land

for commercial purposes vide order dated 24.7.2009 with

respect to survey no.523, 531, 532, 534 to 537, 572 to

575, 588,590, 591, 592, 598, 599, 600 total area 8.1500

hectares; earlier it was khatedari land, it was

converted for commercial purposes vide order dated 97

24.7.2009; permission to raise construction has been

applied for the area of 2,18,966 sq.ft. as clearly

mentioned in Annex.A/12 filed by M/s Vardha

Enterprises; permission has been accorded by the UIT,

Udaipur vide order dated 31.12.2009 for raising

construction in the area of 2.18,966 sq.ft.; apart from

this, bipartite agreement has also been entered into

for construction of hotel between the UIT and M/s

Vardha Enterprises and in the agreement and permission,

order passed by this Court on 6.2.2007 in the case of

Rajendra Kumar Razdan (supra) has not been considered

and only the order passed by this Court earlier on

6.2.2001 in the case of EIH Ltd. (supra) has been taken

into consideration. It has also been mentioned that

before starting construction of hotel, it would be

necessary to obtain permission from the Rajasthan State

Pollution Control Board and NOC from other bodies as

may be necessary. It was also mentioned in condition

no.14 of the agreement that boat facility will have to

be provided by M/s Vardha Enterprises so as to reach

the hotel. It was specifically mentioned in the

agreement & permission applied for construction is in

area of 2,18,966 sq.ft. which comes to 20,342 sq.mtrs.

Thus, it was wrongly submitted that construction area

of the hotel is less than 20,000 sq.mtrs.

Since the area of construction of hotel is more

than 20,000 sq.mt., permission of the Regulatory Body

as per Central Government MOEF Notification dated 14th

September, 2006 was necessary. In exercise of the

powers conferred by sub-section (1) and clause (v) of

sub-section (2) of section 3 of the Environment

(Protection) Act, 1986 read with clause (d) of sub-rule 98

(3) of Rule 5 of the Environment (Protection) Rules,

1986 and in supersession of the notification number

S.O.60(E) dated the 27th January, 1994, the Central

Government directed that on and from the date of its

publication the required construction of new projects

or activities or the expansion or modernization of

existing projects or activities listed in the schedule

to this notification entailing capacity addition with

change in process and or technology shall be undertaken

in any part of India only after the prior environmental

clearance from the Central Government or as the case

may be, by the State Level Environment Impact

Assessment Authority, duly constituted by the Central

Government under sub-section (3) of section 3 of the

said Act, in accordance with the procedure specified

in the notification. Paras 2, 3 and 4 of the said

statutory Notification dated 14th September, 2006 are

quoted below:-

"2. Requirement of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority,which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the 99

limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

(iii) Any change in product- mix in an existing manufacturing unit included in Schedule beyond the specified range.

3. State Level Environment Impact Assessment Authority.(1) A State Level Environment Impact Assessment Authority hereinafter referred to as the SEIAA shall be constituted by the Central Government under sub section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of three Members including a Chairman and a Member- Secretary to be nominated by the State Government or the Union territory Administration concerned.

(2) The Member-Secretary shall be a serving officer of the concerned State Government or Union territory administration familiar with environmental laws.

(3) The other two Members shall be either a professional or expert fulfilling the eligibility criteria given in Appendix VI to this notification.

(4) One of the specified Members in sub-paragraph (3) above who is an expert in the Environmental Impact Assessment process shall be the Chairman of the SEIAA.

(5) The State Government or Union territory Administration shall forward the names of the Members and the Chairman referred in sub-paragraph 3 to 4 above to the Central Government and the Central Government shall constitute the SEIAA as an authority for the purposes of this notification within thirty days of the date of receipt of the names.

(6) The non-official member and the Chairman shall have a fixed term of three years (from the date of the publication of the notification by the Central Government constituting the authority).

(7) All decisions of the SEIAA shall be unanimous 100

and taken in a meeting.

4. Categorization of projects and activities:-

(i) All projects and activities are broadly

categorized in to two categories- Category A and

Category B, based on the spatial extent of potential

impacts and potential impacts on human health and

natural and man made resources.

(ii) All projects or activities included as Category

'A' in the Schedule, including expansion and

modernization of existing projects or activities and

change in product mix shall require prior

environmental clearance from the Central Government

in the Ministry of Environment and Forests (MoEF) on

the recommendations of an Expert Appraisal Committee

(EAC) to be constituted by the Central Government for

the purposes of this notification;

(iii) All projects or activities included as

Category 'B' in the Schedule, including expansion and

modernization of existing projects or activities as

specified in sub paragraph (ii) of paragraph 2 or

change in product mix as specified in sub paragraph

(iii) of paragraph 2, but excluding those which

fulfill the General Conditions (GC) stipulated in the

Schedule, will require prior environmental clearance

from the State/Union territory Environment Impact

Assessment Authority (SEIAA). The SEIAA shall base

its decision on the recommendations of a State or

Union territory level Expert Appraisal Committee

(SEAC) as to be constituted for in this notification.

In the absence of a duly constituted SEIAA or SEAC, a

Category 'B' project shall be treated as a Category

'A' Project."

101

Para 7 of the said Notification dated 14th

September, 2006 deals with the stages in the prior

environmental Clearance (EC) process for new projects.

Para 7(i) is quoted below:-

"7. Stages in the Prior Environmental Clearance (EC)

Process for New Projects:-

7(i) The environmental clearance process for new projects will comprise of a maximum of four stages, all of which may not apply to particular cases as set forth below in this notification. These four stages in sequential order are:-

* Stage (1) Screening (Only for Category 'B' projects and activities) * Stage (2) Scoping * Stage (3) Public Consultation * Stage (4) Appraisal..."

As per para 8(a) of the Schedule appended to the

said Notification dated 14th September, 2006 with

respect to building and construction projects, any

project above 20,000 sq.mtrs. and less than 1,50,000

sq.mtrs. of built up area shall fall in category 'B'

and as per note appended to schedule, any project or

activity specified in category 'B' will be treated as

Category 'A' if located in whole or in part within 10

km from the boundary of protected areas and

permission/environmental clearance of the Central

Government or SEIAA constituted by the Central

Government would be necessary. The relevant para 8(a)

of the Schedule appended to the said Notification is

quoted below:-

"Schedule

(See paragraph 2 and 7) 102

LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLERANCE ______________________________________________________ Project or Category with Conditions Activity threshold limit if any A B _______________________________________________________

8. Building/Construction project/Area Development projects and Townships

8(a) Building and >20000 sq.mtrs. and #(built up area construction <1,50,000 sq.mtrs. for covered projects. Of built up area # construction; in the case of facilities open to the sky, it will be the activity area)

Note:-

General Condition (GC)

Any project or activity specified in Category 'B' will be treated as Category A, if located in whole or in part within 10 km from the boundary of (i) Protected Areas notified under the Wild Life (Protection) Act, 1972 (ii) Critically Polluted area as notified by the Central Pollution Control Board from time to time (iii) Notified Eco-sensitive areas

(iv) inter-State boundaries and international boundaries."

It is not disputed that permission/environmental

clearance of the concerned Regulatory Body either of

the Central Government or SEIAA as per Central

Government MOEF Notification dated 14th September, 2006

has not been obtained by M/s Vardha Enterprises. As the

project runs into more than 20,000 sq.mtrs.,

permission/environmental clearance of the concerned

regulatory body constituted by the Central Government

was necessary, which has not been obtained. Thus,

construction which has been initiated by M/s Vardha

Enterprises is illegal and void; no such construction

activities could have been even legally contemplated

much less started without proper clearance by the 103

concerned Regulatory Body; apart from this, the

construction which has been raised is per se in

violation of the directions issued by this Court vide

order dated 6.2.2007 in the case of Rajendra Kumar

Razdan (supra) as permission could be granted only in

rarest of rare exceptional case; here requisite

permission/clearance has not been granted by the

authority competent to grant permission/clearance;

permissions so granted by the State Government & UIT

for conversion as well as for raising the construction

to M/s Vardha Enterprises were also illegal and in

derogation to the directions passed by this Court and

there was total non application of mind to the decision

rendered by this Court in the case of Rajendra Kumar

Razdan (supra) and even that decision was not referred

to. We find that the State authorities as well as UIT

have failed to discharge their duty to preserve the

lakes, flora and fauna and environment; on the one

hand, as pointed out by Court Commissioner, they are

not giving permission even to make repairs of the

houses which are in a dilapidated condition to have

nots, but on the other hand, they are permitting

persons of their choice to raise construction in no

construction zone and in and around lakes in a reckless

manner for the reasons best known to them and

obviously with ulterior motive and purpose, they are

granting permissions ignoring the orders of this Court

for raising construction which are not permissible;

considering the facts and circumstances of the case, it

is not borne out that the case M/s Vardha Enterprises

falls within the rarest of rare exceptional case and

thus, State authorities and UIT were not justified in 104

granting permission, rather acted in violation of the

order passed by this Court in the case of Rajendra

Kumar Razdan (supra);there is total apathy and lack of

consideration on the part of the authorities concerned

not only provisions of statutory notification issued

under Environment (Protection) Act but of order of this

Court also; the authorities have failed to act in

objective manner and they have violated the principles

enshrined in Article 48A and 51A(g) of the

Constitution, they provide:

"48A. Protection and improvement of environment and safeguarding of forests and wild life.- The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

51A(g). Fundamental duties.-It shall be the duty of every citizen of India-

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures."

The learned Senior Counsel Shri Jagdeep Dhankar

appearing with Shri Rajesh Joshi on behalf of M/s

Vardha Enterprises has submitted that some FAR area is

left out and construction is being raised over less

than 20,000 sq.mtrs. areas. Merely because some area

has been left out, when permission has been sought for

construction of project/hotel in more than 20,000 sq.

mtrs. and permission has also been granted by the State

Government & UIT for construction of more than 20,000

sq.mtrs., permission/EC of the concerned Regulatory

Body pursuant to MOEF Notification dated 14th

September, 2006 was necessary, which has not been 105

obtained. The submission raised on behalf of M/s Vardha

Enterprises that its project is for less than 20,000

sq.mtrs. is factually incorrect and falsified

considering the agreement and permission to raise

construction granted by the State Government and UIT,

which have been placed on record by M/s Vardha

Enterprises itself. We find that obviously there was no

way to reach the island in question and it also falls

within the catchment area. The catchment area has been

discussed by the Apex Court in N.D.Jayal and anr. V/s

Union of India and ors. (JT 2003(Suppl.2) SC 1). Since

the area in question was obviously in and around lake

and catchment area, its conversion was not permissible

under the provisions of the Rajathan Land Revenue Act

for commercial purposes; such permission could not have

been granted even if area in question does not fall

within catchment area and permissions granted for

conversion as well as for construction are illegal and

void being in blatant violation of the directions

issued by this Court vide order dated 6.2.2007 passed

in the case of Rajendra Kumar Razdan (supra).

It is worthwhile to mention here about Ramsar

Convention and Wetlands Rules, 2010. India is signatory

to Ramsar Convention. The aim and objective is to

protect area in and around lake.

Ramsar Convention

Article 1 of the Ramsar Convention provides that

for the purpose of convention wetlands are areas of

marsh, fen, peatland or water, whether natural or

artificial, permanent or temporary, with water that is

static or flowing, fresh, brackish or salt, including 106

areas of marine water the depth of which at low tide

does not exceed six meters. Article 1 is quoted

below:-

"Article 1

1. For the purpose of this convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters.

2. For the purpose of this Convention waterfowl are birds ecologically dependent on wetlands."

Considering the importance of wetlands, it has

been also provided in Article 2 that each contracting

party shall designate suitable wetlands within its

territory for inclusion in the List of Wetlands of

International Importance. Article 4 provides that each

contracting party shall promote the conservation of

wetlands and waterfowl by establishing nature reserves

on wetlands. Article 6(3) provides that contracting

parties shall ensure that those responsible at all

levels for wetlands management shall be informed of and

take into consideration, recommendations of such

conferences concerning the conservation, management and

wise use of wetlands and their flora and fauna.

Articles 3, 4 and 6(3) of the Ramsar Convention are

quoted below:-

"Article 3

1. The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory.

2. Each Contracting Party shall arrange to be 107

informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organization or government responsible for the continuing bureau duties specified in Article

8.

Article 4

1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not, and provide adequately for their wardening.

2. Where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat.

3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands and their flora and fauna.

4. The Contracting Parties shall endeavour through management to increase waterfowl populations on appropriate wetlands.

5. The Contracting Parties shall promote the training of personnel competent in the fields of wetland research, management and wardening.

Article 6

3. The Contracting Parties shall ensure that those responsible at all levels for wetlands management shall be informed of, and take into consideration, recommendations of such Conferences concerning the conservation, management and wise use of wetlands and their flora and fauna."

108 Wetlands Rules

In exercise of the powers conferred by Section

25 read with sub section (1) and clause (v) of sub

section (2) and sub section (3) of Section 3 of the

Environment (Protection) Act, 1986, the Central

Government has made the Wetlands (Conservation ad

Management) Rules, 2010 for conservation and management

of wetlands. In the objectives, it was mentioned that

Wetlands Rules have been framed for conservation and

wise use of wetlands, which includes in its ambit a

wide variety of habitats, such as rivers and lakes,

coastal lagoons, mangroves, peatlands, coral reefs, and

numerous man made wetlands such as ponds, farm ponds,

irrigated agricultural lands, sacred groves, salt pans,

reservoirs, gravel pits, sewage farms and canals; It

has also been mentioned in the objectives that whereas

the Central government has identified certain wetlands

for conservation and management under its conservation

programme and provides financial and technical

assistance to the State Governments and Union territory

Administration for various conservation activities

through approval of the Management Action Plan.

'Wetland' has been defined in Rule 2(1)(g) of the

Wetlands Rules, 2010 which reads as follows:-

"(g) 'Wetland' means an area or of marsh, fen, peatland or water; natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including area of marine water, the depth of which at law tide does not exceed six meters and inches all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade 109

wetland and the zone of direct influence on wetlands that is to say the drainage area or catchment region of the wetlands as determined by the authority but does not include main river channels, paddy fields and the coastal wetland covered under the notification of the Central Government of India in the Ministry of Environment and Forest, S.O.number 114(E) dated the 19th February, 1991 published in the Gazette of India, Extraordinary, Part II, Section 3 Sub-

section (ii) of dated the 20 th February, 1991"

From the above definition, it is clear that

drainage area or catchment region of the wetland is

also included in the wetland.

Rule 2(e) provides that 'Ramsar Convention' means

the Convention on Wetlands signed at Ramsar, Iran in

1971.

Protected wetlands are defined in Rule 3 and the

same is based on the significance of the functions

performed by the wetlands for overall well being of

the people. Rule 3(i) provides that wetlands

categorized as Ramsar Wetlands of International

Importance under the Ramsar Convention as specified in

the schedule. Rule 3 is quoted below:-

"3. Protected Wetlands:-

Based on the significance of the functions performed by the wetlands for overall well being of the people and for determining the extent and level of regulation, the following wetlands shall be regulated under these rules, namely:-

(i) wetlands categorized as Ramsar Wetlands of International Importance under the Ramsar Convention as specified in the Schedule.

(ii) wetlands in areas that are ecologically sensitive and important, such as, national parks, 110

marine parks, sanctuaries, reserved forests, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage areas and the areas rich in genetic diversity;

(iii)wetlands recognized as or lying within a UNISCO World Heritage Site;

(iv) high altitude wetlands or high altitude wetland complexes at or above an elevation of two thousand five hundred metes with an area equal to or greater than five hectares;

(v) wetlands or wetland complexes below an elevation of two thousand five hundred meters with an area equal to or greater than five hundred hectares.

(vi) any other wetland as to identified by the Authority and thereafter notified by the Central Government under the provisions of the Act for the purposes of these rules."

There are certain restrictions on activities

within wetlands as provided in Rule 4, which reads as

follows:-

"4. Restrictions on activities within wetlands:-

(1) The following activities within the wetlands shall be prohibited, namely:-

(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of existing industries;

(iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vide S.O. number 966 (E) dated the 27th November, 1989 or the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-

organisms/Genetically engineered Organisms or cells notified vide GSR number 1037 (E) dated the 5th December, 1989 or the Hazardous Wastes (Management, Handling and Transboundry Movement) Rules, 2008 notified vide S.O. number 2265 (E), dated the 24th September, 2008;

(iv) solid waste dumping; provided that the existing practices, if any, existing before the 111

commencement of these rules shall be phased out within a period not exceeding six months from the date of commencement of these rules;

(v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements; provided that the practices, if any, existing before the commencement of these rules shall be phased out within a period not exceeding one year from the date of commencement of these rules;

(vi) any construction of a permanent nature except for boat jetties within fifty meters from the mean high food level observed in the past ten years calculated from the date of commencement of these rules.

(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified in writing by the Authority constituted in accordance with these rules.

(2) The following activities shall not be undertaken without the prior approval of the State Government within the wetlands, namely:-

(i) withdrawal of water or the impoundment, diversion or interruption of water sources within the local catchment area of the wetland ecosystem;

(ii) harvesting of living and non living resources;

(iii)grazing to the level that the basic nature and character of the biotic community is not adversely affected;

(iv) treated effluent discharges from industries, cities or towns, human settlements and agricultural fields falling within the limits laid down by the Central Pollution Control Board or the State Pollution Control Committee, as the case may be;

(v) playing of motorized boat, if it is not detrimental to the nature and character of the biotic community;

112 (vi)dredging, only if the wetland is impacted by siltation;

(vii) construction of boat jetties;

(viii)activities within the zone of influence, as per the definition of wetlands, that may directly affect the ecological character of the wetland;

(ix) facilities required for temporary use, such as pontoon bridges, that do not affect the ecological character of the wetland;

(x) aquaculture, agriculture and horticulture activities within the wetland;

(xi) repair of existing buildings or infrastructure including reconstruction activities;

(xii) any other activity to be identified by the Authority."

Under Rule 4(i) of the Wetlands Rules, 2010 reclamation of wetlands is totally prohibited; under

rule 4(vi) any construction of a permanent nature

except for boat jetties within 50 meters from the mean

high flood level observed in the past ten years

calculated from the date of commencement of these

Rules is prohibited and under Rule 4(vii) any other

activity likely to have an adverse impact on the

ecosystem of the wetland to be specified in writing by

the Authority constituted in accordance with these

rules, is prohibited.

Rule 6 of the Wetlands Rules, 2010 provides

process for identification of wetlands under different

categories and non-inclusion in schedule will not take

the land out of the category of wetland as per Ramsar

Convention to which India is signatory. 113

Considering the aforesaid provisions of the

Wetlands Rules of 2010, it was not permissible to

raise construction within 50 meters of catchment area.

Since the area in question falls within catchment area,

it was not permissible to raise construction over the

land in question. The boundary wall constructed on

outer periphery of land is also impermissible. As no

proper permission/EC has been granted by the

concerned Regulatory Authority under the Central

Government MOEF Notification dated 14th September, 2006,

permissions which have been granted by the State

Government and UIT for raising construction were

invalid and impermissible. Thus, the submission raised

by the learned Senior Counsel Shri Jagdeep Dhankar that

since permission has been granted before coming into

force of the Wetlands Rules, 2010, they are not

applicable, has no legs to stand as project could not

have been started without proper permission/EC of the

Regulatory Body under the Central Government MOEF

Notification dated 14th September, 2006 and when such

permission/EC has not been obtained, there is reason

why the Wetlands Rules of 2010 which came into force in

the meanwhile, are not pressed into service. It is

incumbent to obtain requisite clearance under the

Wetlands Rules of 2010.

The Ramsar Convention and the Wetlands Rules

have been taken into consideration by the Division

Bench of this Court at Jaipur Bench in Prof.K.P.Sharma

V/s State of Rajasthan & ors. (D.B.Civil Writ (PIL)

Petition No.6039/2011 decided on 17.5.2012 alongwith

two other connected matters) where this Court observed

that it was incumbent upon the State Government to 114

identify the wetland under different categories; thus,

lease is in contravention of Wetlands Rules and

project, cannot be given effect to being in

contravention of the Rules and if given effect to, it

would violate the provisions of Wetlands Rules, 2010

and Ramsar Convention also.

In the instant case, since there is no valid

permissions for raising construction as per

notification under the Environment (Protection) Act and

Wetlands Rules of 2010 have come into force, it was

incumbent to obtain necessary permission/consent in

terms of the Wetlands Rules of 2010 also; without the

same, no project can be envisaged. The permissions

which were granted by the State Government and UIT for

conversion and construction are illegal and void and

cannot be said to be operative as no requisite permission/environmental clearance from the Regulatory

Body in terms of Central Government MOUF Notification

dated 14th September, 2006 has been obtained and apart

from this, such permissions granted by the State

Government and UIT are in contravention of the

directions issued by this Court vide order dated

6.2.2007 passed in the case of Rajendra Kumar Razdan

(supra) and they have been granted in a casual manner

without due application of mind to the said directions

and without examining the environmental aspects and

impacts on preservation of lakes; intendment of India

being signatory to Ramser Convention has also not been

taken into consideration by the authorities. This Court

permitted construction in rare & exceptional case. In

this case, there is no permission by regulatory

authority under statutory notification dated 14.9.2006 115

and permissions obtained from other State bodies are of

no consequence and are in violation of order of this

Court. Thus, we have no hesitation to quash the

permissions so granted by the State Government and UIT

to M/s Vardha Enterprises for conversion and

construction on the island in question.

Apart from this, it is apparent from the documents

placed on record that M/s Vardha Enterprises has made

encroachment by laying road and the State Government

vide order dated 26.12.2011 has taken action under

section 91/90A of the Rajasthan Land Revenue Act and

imposed fine against M/s Vardha Enterprises and appeal

against the said order has also been dismissed. The

photographs filed, correctness of which was not

disputed at bar, show that boundary wall has been

raised by M/s Vardha Enterprises and though construction/conversion is in area of 2.035 hectares

and the project is confined to 218966 sq.ft. but

boundary wall has been raised on the outer periphery of

8.1500 hectares trenching into water. Such act was

wholly impermissible and under what kind of permission

it has been done, it is not clear and such permission

could not have been granted. The whole purpose of grant

of permission in 2.035 and provision of construction at

50 meters distance from mean High Flood Level of 10

years has been frustrated. Construction is illegal and

impermissible. Even the requisite permissions within

2.035 hectare have not been obtained. Thus,

construction is in violation of this Court order as

without permissions, no construction could have been

raised and present one was not rarest of rare or

exceptional case.

116

Shri Jagdeep Dhankar, learned Senior Counsel

appearing with Shri Rajesh Joshi on behalf of M/s

Vardha Enterprises has submitted that M/s Vardha

Enterprises is a bonafide purchaser and after obtaining

conversion permission and construction permission, the

construction of hotel was made; NOC has been obtained

from Pollution Board; M/s Vardha Enterprises has made

huge investment and because of interim order of this

Court, it is suffering loss of Rs.2 lacs per day. The

learned Senior Counsel has further submitted that after

coming into force of the National Green Tribunal Act,

2010 (hereinafter referred to as "the Act of 2010") on

18.10.2010, the environmental issues and matters should

have been agitated before the National Green Tribunal

(for short "the Tribunal") established under section 3

of the Act of 2010. Section 14 empowers the Tribunal to

settle disputes relating to environment including

enforcement of any legal right relating to environment

and such question arises out of the implementation of

the enactments specified in Schedule-I. Section 29 puts

bar of jurisdiction. Section 29(1) provides that with

effect from the date of establishment of the Tribunal

under the Act of 2010, no civil court shall have

jurisdiction to entertain any appeal in respect of any

matter, which the Tribunal is empowered to determine

under its appellate jurisdiction. Section 29(2)

provides that no civil court shall have jurisdiction to

settle dispute or entertain any question relating to

any claim for granting any relief or compensation or

restitution of property damaged or environment damaged

which may be adjudicated upon by the Tribunal. Reliance

was placed on Section 38(5) of the Act of 2010, which 117

provides that all cases pending before the National

Environment Appellate Authority established under sub

section (1) of Section 3 of the National Environment

Appellate Authority Act, 1997 (22 of 1997) on or before

the establishment of the National Green Tribunal under

the National Green Tribunal Act, 2010, shall, on such

establishment, stand transferred to the said National

Green Tribunal and the National Green Tribunal shall

dispose of such cases as if they were cases filed under

that Act. In this respect, the learned Senior Counsel

has relied upon the decision of the Apex Court in

Bhopal Gas Peedith Mahila Udyog Sangathan & ors. V/s

Union of India & ors. (2012 STPL (Web) 424 SC) wherein

the Apex Court has observed:

"38. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the "NGT Act') particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule-I should be instituted and litigated before the National Green Tribunal (for short "NGT"). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and the National Green Tribunal. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule-I to the NGT Act shall stand transferred and can be instituted only before the NGT. This will help in rendering expeditious and specialized justice in the field of environment to all concerned.

39. We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule-I of the NGT Act, should also be dealt with by the 118

specialized tribunal, that is the NGT, created under the provisions of the NGT Act. The Courts may be well advised to direct transfer of such cases to the NGT in its discretion, as it will be in the fitness of administration of justice.

In the instant case, the matter pertains to non-

compliance of the directions issued by this Court in

public interest litigation and permissions/sanctions

have been granted ignoring the decision rendered by

this Court in the case of Rajendra Kumar Razdan

(supra). Thus, the submission that matter should have

been agitated before the National Green Tribunal is not

tenable.

The learned Senior Counsel Shri Dhankar has

further submitted that the modern trend points to

judicial restrain in administrative action. The Court

does not sit as a court of appeal but merely reviews

the manner in which the decision was made. The court

does not have the expertise to correct the

administrative decision. If a review of the

administrative decision is permitted, it will be

substituting its own decision without the necessary

expertise which itself may be fallible. The Government

must have freedom of contract. In this respect, the

learned Senior Counsel has relied upon the decision in

Master Marine Services (P) Ltd. V/s Metcalfe &

Hodgkinson (P) Ltd. and anr. ((2005) 6 SCC 138), where

it has been laid down thus:-

"12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does 119

not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the Report, SCC para 94.)"

The learned Senior Counsel has also placed

reliance on the decision of the Apex court in Heinz

India (P) Ltd. & anr. V/s State of Uttar Pradesh &

ors. ((2012) 5 SCC 443) where it has been laid down

thus:-

"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land ( See Union of India V. S.B. Vohra (2004) 2 SCC 15), Shri Sitaram Sugar Co.Ltd. V/s Union of India (1990) 3 SCC 223 and Than Singh Nathmal V/s Supdt.of Taxes AIR 1964 SC 1419).

120 67. In Dharangadhra Chemical Works Ltd. V/s State of Saurashtra AIR 1957 SC 264 this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Than Singh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed.

68. We may while parting with the decision on the legal dimensions of judicial review refer to the following passage from Reid v. Secy. Of State for Scotland (1999) 2 AC 512 which succinctly sums up the legal proposition that judicial review does not allow the court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case (AC pp.541 F-H and 542 A)

"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do.

It may have abused or misused the authority which it had. It may have departed from the procedure which either by statute or at common law as a matter of fairness it ought to have observed as regards the decisions itself it may be found to be perverse, or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence or of sufficient evidence, to support it, or through account being taken of 121

irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."

Reliance was also placed by the learned Senior

Counsel Shri Dhankar on the decision of the Apex Court

in Union of India and anr. V/s K.G.Soni ((2006) 6 SCC

794) where it was laid down that court should not

interfere with the administrator's decision unless it

was illogical or suffers from procedural impropriety or

was shocking to the conscience of the court, in the sense that it was in defiance of logical or moral

standards. In view of what has been stated in

Wednesbury case (1947) 2 ALL ER 680 (CA) the court

would not go into the correctness of the choice made by

the administrator open to him and the court should not

substitute its decision to that of the administrator.

The scope of judicial review is limited to the

deficiency in the decision making process and not the

decision.

The learned Senior Counsel has also relied upon

the decision of the Apex Court in Uttamrao Shivdas

Jankar V/s Ranjitsinh Vijaysinh Mohite Patil ((2009)

13 SCC 131) wherein it was observed:

"32. Indisputably, there exists a distinction between a decision making process adopted by a 122

statutory authority and the merit of the decision. Whereas in the former, the court would apply the standard of judicial review, in the latter, it may enter into the merit of the matter. Even in applying the standard of judicial review, we are of the opinion that the scope thereof having been expanded in recent times viz. Other than (i) illegality, (ii) irrationality, and (iii) procedural impropriety, an error of fact touching the merit of the decision vis-a-vis the decision making process would also come within the purview of the power of judicial review."

In Secretary and Curator Victoria Memorial Hall

V/s Howrah Ganatanktrik Nagrik Samity and ors.

((2010) 3 SCC 732), the Apex Court has laid down that

it would normally be wise and safe for the courts to

leave the decision to experts who are more familiar

with the problems they face than the courts generally can be.

In the instant case, the authorities have acted in

blatant violation of the directions issued by this

Court. The violation is not only intentional, but

wilful also, as on the one hand, authorities are not

permitting have nots to make repairs, while on the

other hand, they are permitting persons of their choice

to raise construction in and around lakes and even they

have not considered the decision of this Court in the

case of Rajendra Kumar Razdan (supra); they are

referring the decision in the case of EIH Ltd. (supra)

only and not the decision in the case of Rajendra

Kumar Razdan (supra) which is subsequent in point of

time and stringent in nature, of which violation has

been alleged. The action on the part of the authorities

suffers from the vice of arbitrariness and malafides. 123

Even the applicant M/s Vardha Enterprises has made

encroachment for laying road. Thus, the above

decisions are of no help to the applicant.

M/s Vardha Enterprises had absolutely no right to

raise construction, as a matter of fact, permission

from regulatory bodies as per MOEF Notification dated

14th September, 2006 has not been obtained and the

permissions obtained from other State bodies are of no

consequence. When the construction itself was illegal

and there was no valid permissions obtained from

competent authority and permissions have been granted

by the State authorities in violation of the order of

this Court passed in the case of Rajendra Kumar Razdan

(supra), road was illegally got constructed by M/s

Vardha Enterprises so as to reach island which has

created the situation resulting into diversion and dividing of lake and water in two parts, it is of no

significance that M/s Vardha Enterprises has made some

investment.

Thus, the construction raised by M/s Vardha

Enterprises on the island in question being wholly

illegal cannot be sustained and liable to be

dismantled. As the learned Senior Counsel Shri Jagdeep

Dhankar appearing with Shri Rajesh Joshi prayed that

M/s Vardha Enterprises wanted to file petition before

Hon'ble Supreme Court, we grant two months' time from

today to M/s Vardha Enterprises to dismantle the entire

structures and take away the debris. In case M/s Vardha

Enterprises fails to remove the structures within two

months' from today, then within 15 days thereafter, the

entire structures including boundary wall etc. shall be

dismantled by the State authorities, UIT and Municipal 124

Council, Udaipur and cost shall be recovered from M/s

Vardha Enterprises.

From the report of the learned Court Commissioner,

it is also apparent that M/s Vardha Enterprises has

also constructed 290-300 meters long and 10-15 meters

wide road, which has not only reduced the size of the

lake, but also divided the lake into two parts

resulting into changing the basic character of the

island. Since lake has been diverted and obstructed by

constructing road by M/s Vardha Enterprises so as to

reach the land in question, it deserves to be

dismantled forthwith. Let entire road illegally

constructed by M/s Vardha Enterprises be dismantled

within four weeks, as prayed by learned Senior Counsel

appearing for the State authorities, UIT and Municipal

Council and area be restored to its original position and cost be recovered from M/s Vardha Enterprises.

Compliance report in this regard be filed before this

Court within four weeks. In case there is any remiss,

we make it clear that officers responsible for that

shall be hauled up for serious action for violating

the order of this Court for which they will have to

face the consequences.

Since wrong has been committed by M/s Vardha

Enterprises by illegally laying down road, raising

construction of boundary wall and other construction on

island adversely affecting environment and ecology,

considering the "polluter-pays principle" enunciated by

Apex Court in M.C.Mehta V/s Kamal Nath and ors.

(supra), we direct that a sum of Rs.one crore shall be

paid by M/s Vardha Enterprises as compensation for

restoration of the environment and ecology and that 125

amount shall be used for conservation of Udai Sagar

Lake. We grant two months' time from today to M/s

Vardha Enterprises to pay the amount of compensation.

Natural rain water feeding canals of the catchment

areas of lakes

Coming to the question of natural rain water

feeding canals of the catchment areas of lakes, we

direct UIT Udaipur to examine this aspect with the help

of experts and find out the ways and devices whether it

is possible to provide such channels which may ensure

without disturbing constructions of roads by National

Highway Authority etc. that natural rain water, feeding

canals of the catchment areas comes to the lakes. Let

proposal as prayed be submitted before this Court

within three months from today.

Thus, we summarize the directions to comply with

main order passed in Rajendra Kumar Razdan's case

(supra) and issued in Writ Petition No.12652/2011 in

the following manner:-

(1) That as assured by the learned Senior

Counsel Shri Anand Purohit, Additional Advocate

General, let the Lakes Development Authority be

constituted within a period of one month.

(2) That the remaining work for establishment of

STP be completed on war-footing preferably within

a period of three months from today. However, at

the same time, we also direct the respondents

including Chief Secretary, Divisional

Commissioner, Collector, Rajasthan State 126

Pollution Control Board, Secretary, UIT and

Commissioner, Municipal Council to ensure

cleanliness of the lakes and Ayad river and no

sewage water, garbage, intoxicated waste,

domestic waste, plastic bags etc. are directly

poured in the lakes and Ayad river and compliance

of the directions of this Court be ensured and

wherever necessary, the concerned persons be

asked for construction of septic tanks.

In case, any person is found pouring

directly in the lakes or river any waste

material, garbage, sewage or other affluent or

intoxicated material etc. from factory or hotels

or residential houses, requisite steps be taken

to stop such pouring forthwith including

initiation of criminal prosecution against such incumbent in accordance with law. Compliance of

the directions be reported within 30 days from

today.

(3) That the suggestions made by the Court

Commissioner in his report shall be considered by

the respondents-District Administration, UIT and

Municipal Council, Udaipur. However, we direct

that responsibility be fixed on the

hotels/persons not to pour any waste material,

plastic bags, bottles, garbage, sewage or other

affluent in any of the lakes and Ayad river and

in case they are found doing so, requisite action

be taken against them including launching of

criminal prosecution in accordance with law, as

agreed to by the learned counsel appearing for 127

the State, UIT and Municipal Council.

(4) That suggestion no.(ix) of the Court

Commissioner shall be considered by the

respondents-authorities as assured by the

learned counsel appearing on their behalf.

(5) That with respect to plastic carrying bags

or plastic packaging, we direct that in 'Bambaiya

Bazar" area, no commodity be sold in plastic

carrying bags or plastic packaging. We also

direct the respondents-authorities to declare

the vicinity of Fateh Sagar & Pichhola Lake as

"No Plastic Zone". In the area of "Bambaiya

Bazar", all items be sold in biodegradable or

reusable packaging and compliance be ensured

within 30 days. Even otherwise we are informed

that plastic carrying bags or plastic packaging

is restricted and could not be used.

(6) That as assured by the learned counsel

appearing on behalf of the respondents-State,

UIT and Municipal Council, let appropriate

steps be taken within three months to breed

variety of fishes such as grass carp etc. which

consume the filth etc. which will help in

maintenance of ecological balance of the lake.

(7) That with respect to washing, throwing or

immersing left overs in the lakes, we direct

that let it be prohibited forthwith and

compliance be reported within 30 days from today.

128 (8) That let marble slurry dumping and

plantation yard be shifted to unobjectionable

alternate place within a period of four weeks

from today. The State Government, UIT and

Municipal Council to do the needful in this

regard.

(9) That respondents-authorities shall consider

the cases wherever repairs are absolutely

necessary as pointed out in the report of the

Court Commissioner.

(10) That we direct the respondents-authorities

to take immediate steps to dismantle the

constructions, which are unauthorized and raised

without any proper sanction/permission of the competent authority, within a period of one month

from today and none of the structures which has

been raised without due permission shall be

allowed to exist and steps be taken in accordance

with law. Compliance report in this regard be

filed within a period of one month from today.

(11) That the order passed by the Appellate

Authority on 26.9.2011 which has been impugned in

Writ Petition No.12652/2011 is set aside, writ

petition is allowed and the Municipal Council

was right in stopping the construction, seizing

property in question and directing demolition of

construction made by Smt.Sarawasti Singhal and

Sanjay Singhal. However, at the same time, since 129

earlier construction was existing, with respect

to it on proper application being filed, may

permit the construction to stand to the extent

which was earlier existing at the place where it

was, since certain construction was existing at

the place in question which was earlier occupied

by Government Department and later on by Wolkem

India and for that, the State Government as well

as the Municipal Council to ensure that

directions of this Court are not violated in any

manner whatsoever; the construction which has

been made illegally at the place which was not

existing, obviously cannot be sustained, it has

to be demolished. The order passed by the

appellate authority cannot be treated to be order

of permission granted by the State Government to

renovate the building. The construction, which is

unauthorizedly raised by the Singhals, be

demolished as early as possible. However, as

prayed, we grant two months' time to take

recourse to proceedings before Hon'ble Supreme

Court and to demolish construction. In case

construction is not removed within two months,

it shall be demolished by the State Government

and Municipal Council within one month

thereafter. However, no further construction

activities shall be undertaken.

(12) That construction of new 30 rooms by the

Lake Palace Hotels and Motels Pvt.Ltd. is held to

be in violation of the notifications issued by

the State Government under section 171 of the Act 130

of 1959 and also in contravention of mandatory

order passed by this Court and we direct

demolition of construction of 30 rooms. As

prayed, we grant two months' time to question

order before Hon'ble Supreme Court and to

demolish construction of 30 rooms. In case

construction of 30 rooms is not removed within

two months, it shall be demolished by the State

Government and Municipal Council within one month

thereafter.

(13) That the permissions granted by the State

Government and UIT to M/s Vardha Enterprises for

conversion and construction on the island in

question are quashed.

(14) That the construction raised by M/s Vardha Enterprises on the island in question being

wholly illegal cannot be sustained and liable to

be dismantled. M/s Vardha Enterprises wanted to

question order before Hon'ble Supreme Court. As

prayed, we grant two months' time from today to

M/s Vardha Enterprises to dismantle the entire

structures and take away the debris. In case M/s

Vardha Enterprises fails to remove the structures

within two months' from today, then within 15

days thereafter, the entire structures including

boundary wall etc. shall be dismantled by the

State authorities, UIT and Municipal Council,

Udaipur and cost shall be recovered from M/s

Vardha Enterprises.

131 (15) That let entire road illegally constructed

by M/s Vardha Enterprises be dismantled within

four weeks, as prayed by learned Senior Counsel

appearing for the State authorities, UIT and

Municipal Council and area be restored to its

original position and cost be recovered from M/s

Vardha Enterprises. Compliance report in this

regard be filed before this Court within four

weeks. In case there is any remiss, we make it

clear that officers responsible for that shall be

hauled up for serious action for violating the

order of this Court for which they will have to

face the consequences.

(16) That since wrong has been committed by M/s

Vardha Enterprises by illegally laying down road, boundary wall and other structures adversely

affecting environment and ecology, considering

the "polluter-pays principle" enunciated by Apex

Court in M.C.Mehta V/s Kamal Nath and ors.

(supra), we direct that a sum of Rs.one crore

shall be paid by M/s Vardha Enterprises as

compensation for restoration of the environment

and ecology and that amount shall be used for

conservation of Udai Sagar Lake. We grant two

months' time from today to M/s Vardha Enterprises

to pay the amount of compensation.

(17) That so far as the question of natural rain

water feeding canals of the catchment areas of

lakes is concerned, we direct UIT Udaipur to

examine this aspect with the help of experts and 132

find out the ways and devices whether it is

possible to provide such channels which may

ensure without disturbing constructions of roads

by National Highway Authority etc. that natural

rain water, feeding canals of the catchment areas

comes to the lakes. As prayed, let proposal be

submitted before this Court within three months

from today.

This disposes off the applications filed by

M/s Vardha Enterprises, Smt.Saraswati Singhal and

Sanjaya Singhal and the Lake Palace Hotels and Motels

Pvt.Ltd. The writ petition No.12652/2011 filed by

Municipal Council stands allowed.

List the contempt petition after four weeks.

(SANGEET LODHA),J. (ARUN MISHRA),C.J.

Parmar