Case: Jal Mahal Resorts P.Ltd Vs. K.P.Sharma


Decision:
1[ds]107. On an analysis of the aforesaid aspects, it is clear that the project that was conceived, deliberated and given effect to emerged from the status of the land adjoining the lake area which had a history behind it and in view of the garbage, filth stench on the area, decision had been taken to develop the two project site108. We have further taken note of the arguments advanced by the Ld. Attorney General who had submitted that the High Court has not taken into account the steps that were taken in the project since 1998 onwards. The Ld. Attorney General representing the State had relied on a comprehensive list of dates beginning from 1984 onwards discussed hereinbefore to show the step by step decision taken before the project was awarded to the KGK Consortium including the Jaipur Master Plan of 2011109. It may further be noted that the argument advanced by the counsel for the respondent PIL Petitioner that 100 acres land lease to the petitioner was part of the lakebed, does not get supported from the revenue entries placed on record or any other material which makes it clear and establishes that only 13 bighas 17 biswas is classified as gairmumkin talab (lakebed) being khasra No. 67 /317 which would be approximately 8.65 acres. However, the balance land that is 100 acres less 8.65 acres is in fact recorded as Banjar in the revenue record and not lakebed. We find sufficient substance in the plea that this Court in the past have placed reliance on revenue entries to determine the nature of land from which it follows that based on the revenue entries, no other khasra of land forming part of 100 acres of land leased to the petitioner is lakebed. It may further be noted that as per the petitioners/appellants 14.15 acres of land is banjar and not lakebed whereas according to the PIL petitioner it is a lakebed/wetland which is contrary to the revenue record110. From the version and counter version of the counsel for the parties, it is obvious that although the PIL petitioners had challenged the 100 acre land as lakebed so as to assail that the same could not have been a part of the lease area, the fact remains that the entire emphasis is only in regard to the land comprising 14.15 acres equivalent to 22 bighas and 10 biswas and another chunk comprising 8.65 acres equivalent to 13 bighas and 17 biswas. The counsel for the appellant-lessee submitted that if the revenue record for 13 bighas 17 biswas equivalent to 8.65 acres noted as gairmumkin talab lakebed bearing khasra No. 67/317 is relied upon by the Court, then further revenue entries classifying 14.15 acres of land recorded as barren land/banjar also should be accepted, adopting the view taken in the matter of Okhla Bird Sanctuary case (Supra) that revenue entries are fit to be relied upon in order to determine the nature and character of the land111. However, we are of the view that in order to avoid this controversy in regard to these two chunks of lands as to whether the same form parts of the lakebed or not, it would be just and appropriate to slash this part of the land from the lease hold area as per clause 18.4 of the lease deed itself implying that these two areas shall not form part of the lease hold area so as to be given out on lease to the petitioner/appellant. In view of this 13 bigas and 17 biswas of land equivalent to 8.65 acres which has been classified as gairmumkin talab/ bearing khasra no. 67/317 shall not be treated as a part of the lease hold area and the same shall be within the control and domain of the Government of Rajasthan which will be free to reconvert this area into the lake area112. In so far as 14.15 acres of land recorded as barren land/banjar is concerned, we are pleased to hold that this area shall be treated as a construction free zone and neither party i.e. the State of Rajasthan nor the lessee/appellant herein shall be permitted to raise any construction thereon. We are informed that this area is being used as a public promenade (walk way) for the use of the public which shall be allowed to continue113. In so far as the balance area of land pertaining to the lease deed is concerned, we are pleased to hold that the respondents/PIL petitioners have not been able to lead any iota of evidence or material to prove that this area was at all or at any point of time lakebed or wetlandThis fact is further proved from the historical background of this litigation as it is the case of the appellant/lessee/ the PIL petitioner which gets reinforced from the record and the detailed project report of the PDCOR indicating that the efforts were being made to develop this land way back from 1984 and in the year 1999 as already noted hereinbefore reflected from the minutes of the third meeting held on 21.12.1999, the Standing Committee on Infrastructure Development (SCID) agreed that the Jaipur Municipal Corporation must own the project to develop this land and the bids were invited in the year 2000-01 with regard to the development of the land. However, the same was scrapped and the JDA was made the sponsoring department for the lake side development component in the meeting of the board of infrastructure development and investment promotion held on 23.8.2002 and 3.9.2002114. From the aforesaid history, it gets factually established that this land in any view was available for development atleast way back from 21.12.1999 and no question was ever raised that this was not available for infrastructural development. In fact, we have further noted that in the three Master Plans of Jaipur, 200 acres of land were shown for infrastructural development for tourism purpose and out of that 100 acres was made a part of the lease deed after extensive research conducted by the Project Development Corporation of Rajasthan which got detailed project report prepared way back in 2001 when the petitioner/appellant was not even in the picture so as to develop the land. Even if the Ministry of Environment and Forest of the Central Government did not accept the position that it had given clearance for this project, the fact remains that the land was lying within the domain of the State Government due to which it had full administrative discretion to take a decision in regard to development of the land and it is not that it was done in a huff or hurry without deliberation or study. In fact the Project Development Corporation (PDCOR) got the detailed project report prepared way back in 2001 and thereafter in 2003, steps for inviting tender were taken by the PIL petitioners. If at all the bonafide of the respondent/PIL petitioners were clear, they ought to have assailed the invitation of tender which finally got executed only in the year 2005115. Thus, from the year 2001 when detailed project report was prepared, decision to award tender was taken, Expression of Interest invitation of tender and bid was invited and accepted, the PIL petitioners never ever challenged these activities on the part of the State which was approved, accepted and continued by the successive Governments which were ruling in the State of Rajasthan. Thus, the submission of the counsel for the appellant that the PIL lacks bonafide and good faith cannot be brushed aside totally although the same has neither been a reason with the High Court nor with us to reject the petition as we have ignored the delay and also lack of bonafide on the part of the PIL petitioners/respondents herein and have examined the matter on merit taking note of every meticulous argument and counter argument advanced by the contesting parties.116. From this, it is clear that although the Courts are expected very often to enter into the technical and administrative aspects of the matter, it has its own limitations and in consonance with the theory and principle of separation of powers, reliance at least to some extent to the decisions of the State Authorities specially if it based on the opinion of the experts reflected from the project report prepared by the technocrats, accepted by the entire hierarchy of the State administration, acknowledged, accepted and approved by one Government after the other, will have to be given due credence and weightage. In spite of this if the Court chooses to overrule the correctness of such administrative decision and merits of the view of the entire body including the administrative, technical and financial experts by taking note of hair splitting submissions at the instance of a PIL petitioner without any evidence in support thereof, the PIL petitioners shall have to be put to strict proof and cannot be allowed to function as an extraordinary and extra judicial ombudsmen questioning the entire exercise undertaken by an extensive body which include administrators, technocrats and financial experts. In our considered view, this might lead to a friction if not collision among the three organs of the State and would affect the principle of governance ingrained in the theory of separation of powers. In fact, this Court in the matter of M.P. Oil Extraction v. State of M.P., (1997 7 SCC 592  at page 592) has unequivocally observed that the power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic, set-up to which polity is so deeply committed cannot function properly unless each of three organs appreciate the need for mutual respect and supremacy in their respective fields117. However, we hasten to add and do not wish to be misunderstood so as to infer that howsoever gross or abusive may be an administrative action or a decision which is writ large on a particular activity at the instance of the State or any other authority connected with it, the Court should remain a passive, inactive and a silent spectator. What is sought to be emphasized is that there has to be a boundary line or the proverbial laxman rekha while examining the correctness of an administrative decision taken by the State or a Central Authority after due deliberation and diligence which do not reflect arbitrariness or illegality in its decision and execution. If such equilibrium in the matter of governance gets disturbed, development is bound to be slowed down and disturbed specially in an age of economic liberalization wherein global players are also involved as per policy decision118. In a matter of the instant nature, where the policy decision was taken way back from 1976 followed by Master Plans to develop a particular chunk of land by adopting the mode of private/public partnership method and a global tender was floated, obviously the private players were bound to participate specially in an age when private partnership is not an anathema. In that view of the matter when a particular policy decision was taken to develop a particular project supported by extensive research and study by the experts in the field who prepared the project report relying upon the three successive Master Plans of the city of Jaipur and the global tender was floated for development of land for tourism adjoining the lake area, entertaining PIL petition on the ground that the area in question is a wet land without substantiating the same in any manner, i.e. neither from the revenue record nor any other material, the perception of PIL Petitioners without factual basis cannot be allowed to prevail over the decision of the entire group of experts which was finally accepted by the State Government through the Project Development Report of a State Agency which got the detailed project report (DPR) prepared and nothing could be brought to the notice of the Court that the DPR was not fit to be relied upon or that it was prepared in a clandestine manner. In our considered view unless the Detailed Project Report, Master Plan of Jaipur, Revenue Record indicating the nature of land that the project was fraught with risk of environmental degradation which could establish with facts & figures that the decision is not in public interest, interference by the Court adopting an over all view smelling foul play at every level of administration is bound to make the governance an impossibility. Therefore, the courts although would be justified in questioning a particular decision if illegality or arbitrariness is writ large on a particular venture, excessive probe or restraint on the activity of a State is bound to derail execution of an administrative decision even though the same might be in pursuance of a policy decision supported by other cogent materials like survey and search by the reliable Expert Agency of a State after which the State Project or private and public partnership project is sought to be given effect to119. At this juncture, we take note of two overriding considerations which combined, narrow the scope of review. The first is that of deference to the views of administrative experts and the other we take assistance from the words of Chief Justice Neely who expressed as follows:I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rare casesThe learned Chief Justice further observed as follows:I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a5000 page record addressing the intricacies of public utility operationIt is not the function of a judge to act as a super board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinized by the non-expert judge. It was suggested that the alternative for the court is to desist itself from interference on technical matters, where all the advantages of expertise lie with the agencies. If the court were to review fully the decision of an expert body such as State Board of Medical Examiners, it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia120. Bearing the aforesaid aspects in mind, we are prone to infer that the disputed area of the lease deed borne out from the revenue record is clearly confined to14.15 acres plus 8.65 acres and the balance area of the lease deed could not have been interfered with so as to set aside the entire project121. However, we have noted that the period of the lease deed had been finally fixed as 99 years which in our view could not have been done by the State Government as that clearly converts the lease deed into a perpetual lease. In fact we have noted that when the tender was floated for granting the lease deed, the maximum period for the lease deed as per the Rule could not have been more than 30 years yet the tender was floated for a period of 60 years which was later extended to 99 years. This in our view could not have been done by the State Government as one can infer even at a glance that the same being contrary to the rules, could not have granted it for a period of 99 years