DBCWP NO.3849/08. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T D.B. CIVIL WRIT PETITION (PIL) NO.3849/2008. Mohan Lal Sharma Vs. Union of India & Ors. Date of Judgment:- 9 September 2008. PRESENT HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Mr. G.S. Bapna for the petitioner. Mr. Vimal Choudhary, } Mr. Anil Mehta, } Dr. M.S. Kachhawaha & } Mr. Jinesh Jain } for the Interveners. Mr. Parag Tripathi and Mr. Vikas Singh, Additional Solicitor Generals & Senior Advocates with Mr . A.K. Gupta, Mr. Rinesh Gupta, Ms. Amrita Narayan & Ms. Arti Gupta for the Jaipur Development Authority. Mr. C.A. Sundaram, Sr.Advocate with Mr. Aruneshwar Gupta, Mr. A.K. Sharma Mr. Ravi Sikri & Mr. Abhishek Gupta for respondent No.5. Mr. Bharat Vyas, Additional Advocate General with Mr. Samit Bishnoi for the State. Mr. K.K. Sharma, Assistant Solicitor General for Union of India. ***** BY THE COURT :- (Per Mr.Mohammad Rafiq, J.) REPORTABLE This writ petition filed by way of public interest litigation seeks to challenge the allotment of 300 acres of land by Jaipur Development Authority to the International Amusement & Infrastructure Pvt.Ltd., Noida (respondent No.5). 2) According to the petitioner, allotment of the aforesaid land to the respondent No.5 by Jaipur Development Authority (for short, the “JDA”) has DBCWP NO.3849/08. 2 been made in violation of Section 2 of the Forest Conservation Act, 1980 (for short, “FC Act”), Section 29 of the Wild Life (Protection) Act, 1972 (for short, “Wild Life Act”), Sections 54 and 90 of the Jaipur Development Authority Act, 1982 (for short, “JDA Act”), Sections 92, 93, 102A and 103 of Rajasthan Land Revenue Act, 1956 (for short, “Land Revenue Act”), Sections 26 and 33 of the Rajasthan Forest Act, 1953 (for short, “State Forest Act”), Section 5(28) of the Rajasthan Tenancy Act, 1955 (for short, “Tenancy Act”), Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 (for short “Rules of 1955”), Rule 15B of the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 (for short, “Rules of 1974”) and Articles 14, 19, 48A and 51A of the Constitution of India. The petitioner contends that this land costs not less than Rs.600 crores, which has been allotted to respondent No.5 at a throw away price of Rs.48 crores. The petitioner has therefore approached this Court by filing the present writ petition challenging the letter of allotment dated 23/1/2008 as also the decision of the Board of Infrastructure Development & Investment Promotion (for short, “BIDI”) dated 10/8/2007 directing the JDA to make such allotment with an additional prayer that the letter dated 8/2/2008 handing over possession of the land in question to respondent No.5 be quashed and set- aside and possession of the said land be restored to Forest Department of the State. BACKGROUND FACTS :- 3) The State Government by issuing notification under Section 2(8) of the JDA Act notified the area of “Jaipur Region” wherein, 153 revenue villages were included in the first instance. Village Daulatpura, which is where the disputed land is situate, was included at Sr.No.17 of the said notification. DBCWP NO.3849/08. 3 It is common ground between the parties that Delhi-Ajmer bye-pass, which connects the National Highway No.8 through outskirts of Jaipur City passes through the land in question. Respondent No.5 submitted an application to the Commissioner, Investment and NRI, Government of Rajasthan, Jaipur for allotment of 400 acres of the land for developing Mega Tourism City and then submitted a detailed application on 25/5/2006 spelling out its profile with other accomplished projects and overview of Mega Tourism City indicating that initial cost of this project would be approximately Rs.300 crores. The Commissioner, Bureau of Investment Promotion (for short “BIP”) vide his letter dated 6/6/2006 requested the Department of Urban Development & Housing, Government of Rajasthan to convey their views about the allotment. Separately, the Commissioner also wrote to the Secretary, Department of Forest vide letter dated 17/18.7.06 to send the views of his department on allotment of the said land. According to the respondents, a team of the State Government visited the site of another project of respondent No.5, which is located at Noida, on 4/10/2006. The matter was then considered by 15th Pre-BIDI and 39th State Level Empowered Committee (for short, “SLEC”) in a meeting chaired by the Chief Secretary of the State. J DA wrote to the Deputy Conservator of Forest (for short, “DCF”) a letter dated 27/11/2006 to enquire about the status of the land as the adjoining area was forest land and land in question was recorded as pasture land (charagah land) in the revenue records. Separately, Commissioner BIP wrote to the Commissioner JDA on 7/12/2006 to ascertain whether the land lies in the ecological zone and that the JDA should provide revenue maps to the Divisional Forest Officer (DFO) along with khasra numbers of the land so that it can be determined whether the land was forest land or not. He advised the JDA to negotiate the rate with DBCWP NO.3849/08. 4 promoters so that the matter could be considered in the next Pre-BIDI meeting. The JDA vide its letter dated 28/10/2006 informed the Commissioner BIP that the reserve price for commercial land was Rs.5000/- per square meter and for residential land, it was Rs.2500/- per square meter and DLC rate for agricultural land was Rs.4.5 lacs per bigha. It also indicated that though the project report submitted by respondent No.5 was for 400 acres of land but the land available at site was only 371.46 acres. It may be noted that DLC rate referred to above is the rate fixed by District Level Committee under the Rajasthan Stamp Act for registration of the conveyance deeds. FOREST ANGLE:- 4) The Government of Rajasthan issued a notification under Section 20 of the State Forest Act, 1953 on 21/11/1961 thereby declaring, apart from lands of other adjoining revenue villages, a large chunk of land measuring 1197.25 acres situated in revenue village Daulatpura as 'reserve forest'. It was thereafter that the Government of Rajasthan issued another notification on 22/9/1980 under Section 18 of the Wild Life Act constituting Nahargarh Wild Life Sanctuary (for short, “Sanctuary ”). In the said notification, the boundaries of the Sanctuary in terms of Section 18(2) of the Act of 1972 have been specified. Forest area of village Kukas upto the northern limits of village Surad, and lands of Khasra Nos.1090 & 1091 of village Daulatpura and Northern parts of Khasra Nos.4, 5, 6 & 8 of village Kukas were specified as northern boundary. On Western side also, apart from indicating other mile stones, boundaries were indicated by the forest land adjoining village Taleda and lands of Khasra Nos.1092 & 1093 of village Daulatpura. 5) When JDA inquired from the forest department, the matter was eventually referred to the DCF Jaipur (East) who vide his letter dated DBCWP NO.3849/08. 5 22/2/2007 informed the Chief Conservator of Forest (for short the “CCF”) that 139.3 hectares out of the land proposed to be allotted, though entered in the name of JDA in the revenue records, has dense forest developed therein by plantation trees of Shisham, Desi Babool, Tortils, Churail, Ronge etc. density of which is .4 to .8. DCF further stated that according to G.T. Sheet (prepared in 1973 by Surveyor General of India), this area falls within the forest limits whereas, as per the revenue maps, it is outside. It was stated that 550 trees per hectare are available in this area and that this land is adjoining the land of the Sanctuary and is regularly visited by the wild animals. The land is used for grazing of cattles of the adjoining villages and in the event of setting up Mega Tourism City, it would create immense pressure of cattles for grazing in the Sanctuary and therefore, it would be appropriate that project is set-up at some other place. 6) Upon survey of the land, DCF Jaipur (Central) vide letter dated 17/3/2007 informed the CCF Jaipur that a joint survey of the site was undertaken by the representatives of the JDA and the forest department on 7/3/2007 and 8/3/2007 and it was decided to demarcate the boundaries of the forest land by constructing the pillars. He therefore advised that before any final decision is taken, views and consent of the State Wild Life Advisory Board should be obtained. Though, this is not a forest land but this is adjoining the reserve forest of Forest Division Amer-54. It was informed that dense forest has been developed by undertaking continuous plantation in about 200 hectare of this land between 1990 and 1998. This land is contiguous to the land of the Sanctuary and due to development of dense forest therein, it has become natural habitat and roaming area and breeding ground of the wild animals such as; Leopard, Baghera, Jackal, Fox, Lion, Neel gay, Bear etc. The DBCWP NO.3849/08. 6 plantation was undertaken under the scheme sponsored by the Government of India which was funded by the Government of Japan. It was also informed that besides being natural habitat of the wild life, there is flow of water of nullahs from the Wild Life Sanctuary into this land. 7) Principal Chief Conservator of Forest (PCCF) vide his letter dated 29/3/2007 while forwarding the matter to the Secretary, Department of Forest, referred to the contents of the letters of CCF and DCF and stated that since the land does not fall within the Sanctuary, it would not be necessary to ascertain and obtain the views and permission of the State Wild Life Advisory Board. He however advised that the government should create a zone around Sanctuary in terms of the instructions issued by the Government of India and Supreme Court. PCCF therefore left the matter to be decided at the appropriate level in the government. FURTHER DEVELOPMENTS :- 8) Meeting of the 18th Pre-BIDI (42nd SLEC), headed by the Chief Secretary of the State was convened on 22/2/2007 and attended by Secretaries of the concerned departments of the government, recommended for allotment of the land to respondent No.5 and also that it would have to pay compensation for loss of trees to the forest department. It was around this time that Gram Panchayat Daulatpura through its Sarpanch conveyed by resolution dated 9/4/2007 that the Gram Panchayat would have no objection if the subject land is allotted to respondent No.5. The matter was thereafter again considered in 19th Pre-BIDI (43rd SLEC) chaired by Chief Secretary on 13/4/2007 which again recommended for allotment of the land. Respondent No.5 vide its letter dated 22/5/2007 conveyed to the Commissioner, BIP that it shall abide by the environmental norms as laid down in the government DBCWP NO.3849/08. 7 circular dated 2/9/2006 and the guidelines issued by the Department of Forest from time to time. It was after so much of exercise that the matter was finally placed before the BIDI on 10/8/2007 which decided to allot 300 acres of land to respondent No.5 on DLC rate subject to the condition that it shall make investment of atleast 400 crores and generate employment for 1500 persons and further that promoter company would continue to hold at least 51% equity in the project and there shall be no change in the nature of project activities. Respondent No.5 was accordingly informed vide letter dated 5/10/2007 of the aforesaid terms & conditions which it accepted vide letter dated 6/10/2007. As a follow up action, JDA in its 42nd meeting of Land Project Committee (LPC) held on 16/10/2007 decided to allot 300 acres of land consisting of Khasra Nos.4143/1503, 1280, 1281, 1287/1507, 1287/1508, 1291, 1292, 1300, 1301, 1302, 1303, 1318, 1319, 1331, 1332, 1340, 1347, 1348, 1350, 1352, 1389/1416, 1391, 1392, 1394 and 1395 in revenue village Daulatpura, Tehsil Amer. The JDA accordingly issued demand notice to the respondent No.5 on 7/11/2005 demanding Rs.49.20 crores as cost of land which was deposited by respondent No.5. 9) A memorandum of understanding was thereafter signed between the parent company of respondent No.5 and respondent No.5 on 1/11/2007 whereupon, a separate memorandum of understanding was signed between the Government of Rajasthan and respondent No.5 for setting up Mega Tourism City on the allotted land. The JDA then demanded from respondent No.5 Rs.1,21,43,178/- toward cost of plantation on 202 acres of land against felling of trees on 101 hectares of land as also cost of fire wood and building wood, which respondent No.5 deposited on 2/2/2008. The JDA issued formal letter of allotment to respondent No.5 on 23/1/2008 incorporating the DBCWP NO.3849/08. 8 conditions referred to above, including condition for maintaining 500 meters wide eco-sensitive zone around the Sanctuary. JDA then issued letter of possession to respondent No.5 on 8/2/2008 and thereafter executed lease deed in its favour on 31/3/2008. Rajasthan State Pollution Control Board also accorded its consent to the respondent No.5 vide letter dated 22/4/2008 to establish Mega Tourism City. CONSTITUTION OF BIDI :- 10) Before we proceed to notice the rival submissions, a brief mention of the constitution and composition of BIDI would be apposite. Rule 55(1) of the Rajasthan Rules of Business framed under the authority of Article 166 of the Constitution of India, was amended by the Governor of the State of Rajasthan w.e.f. 10/1/1999 so as to provide for setting up an Empowered Committee to take major policy decisions for approval of estimates, sanction of expenditure, grant of concessions and incentives to achieve the object and fulfill the purposes for which committee was set-up. The Governor vide order dated 26/10/1999 thereafter constituted such committee headed by the Chief Minister, which was christianed as Board of Infrastructure Development & Investment Promotion (BIDI). The BIDI was then re-constituted vide order of the Governor of the State dated 15/1/2005 with the Chief Minister as its Chairman, Industry Minister as Vice Chairman and Ministers of the Departments of Finance, Energy and Urban Development as members and Chief Secretary of the State as its Member-Secretary. According to the order dated 15/1/2005, BIDI is authorized to consider and review schemes and provide directions for accelerating investment into the State, to make amendments in investment policies and systems to accelerate economic development of the State, to decide the policy matters bearing direct/indirect DBCWP NO.3849/08. 9 impact on investment promotion, to clear projects pertaining to investment involving Rs.25 crores and above, to approve customized package of incentives for generating employment and encouraging further investment in the State. Pre-BIDI is a committee headed by the Chief Secretary of the State with Secretaries from the concerned departments. It is also known as State Level Empowered Committee (SLEC). Bureau of Investment Promotion (BIP) works as the secretariat of the BIDI. Pre-BIDI examines the proposals at the threshhold and submits them with its recommendations for approval by the BIDI. 11) We have heard learned counsel for the parties and the intervenors at length. ARGUMENTS OF THE PETITIONER :- 12) Shri G.S. Bapna, learned counsel for the petitioner has argued that substantial part of the disputed land is reserve forest notified under Section 20 of the State Forest Act. The DCF in his letter dated 22/2/2007 has clearly stated that this land, which is now a dense forest, is in fact part of the reserve forest as shown in G.T. Sheet. It is further argued that even the JDA was not clear whether the land was a reserve forest and sought clarification from the forest department. The exercise of demarcating boundaries of the forest land was undertaken in a perfunctory manner and as is evident from the letter of DCF, no actual demarcation from pillar to pillar as per notification dated 21/11/1961 has so far taken place. Letter merely indicates that a decision was taken to construct the boundary pillars as per the demarcation. Shri G.S. Bapna, learned counsel for the petitioner has relied on the judgments of the Supreme Court in Vellore Citizens' Welfare Forum Vs. Union of India and others : 1996(5) SCC 647, M.C. Mehta Vs. Kamal Nath and others : 1997 (1) 388 and A.P. Pollution control Board Vs. Prof. M.V. Nayudu (Retd.) and DBCWP NO.3849/08. 10 others : 1999(2) SCC 718 to argue that even if there is any dispute about the rigidness of boundaries, the respondents ought to have invoked precautionary principle as it was better to err on the side of protecting trees rather than destroying them. It is submitted that evidence clearly proves existence of 550 trees per hectare in this entire area. Once the respondent No.5 is permitted to go ahead with the construction of Mega Tourism Project, all these trees would have to be uprooted and such a lush green forest would be completely ruined. Extensive plantation in and around the land was undertaken by the forest department of the State under the scheme sponsored by the Central Government which was funded by the Government of Japan. Even if this is not considered as a reserve forest, it will nevertheless be a forest as per the law enunciated by the Hon'ble Supreme Court in T.N. Godavarman Vs. Union of India (1997) 2 SCC 267, wherein the Supreme Court held that Forest Conservation Act, 1980 must apply to all forests, regardless of classification and that the word “forest” must be understood in its ordinary dictionary meaning, whether designated as reserved, protected or otherwise, irrespective of ownership. Shri Bapna also relied on the judgment of Supreme Court in Supreme Court Monitoring Committee Vs. Mussoorie Dehradun Development Authority and ors. : (1997) 11 SCC 605 and argued that Supreme Court in that case also held that term 'forest land' has to be understood including a land covered with trees, shrubs, vegetation and undergrowth, sometimes intermingled with trees and pasture. According to Section 2 of the FC Act, therefore, it was mandatory for the State Government to seek prior approval of the Central Government before allowing the use of this forest land for non-forest purpose. DBCWP NO.3849/08. 11 13) Contesting the claim of the respondents that plantation undertaken on a non-forest land, cannot make the land as such forest for the purpose of Section 2 of the FC Act, learned counsel argued that this issue has been settled long back by judgment of the Supreme Court in Samatha Vs. State of A.P. and others : (1997) 8 SCC 191. Reference was made to paras 120 to 127 and 197 & 233 of the report to argue that the forest as referred to in Section 2 of the FC Act would have extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth intermingled with trees and pastures, be it of natural growth or man-made forestation. The issue whether the man-made forest or plantation under the scheme sponsored by the Central Government and funded by the European Communities fell for consideration of the Supreme Court in M.C. Mehta Vs. Union of India and others : (2004) 12 SCC 118. Reference was made to paras 56 to 81 of the report and it was argued that Supreme Court in that case categorically held that large scale afforestation which was undertaken by the forest department of State of Haryana from 1990 to 1999 would be forest for the purpose of Section 2 of the FC Act. 14) Shri G.S. Bapna, learned counsel for the petitioner further argued that the expert committee set up by the State Government in terms of directions of the Supreme Court in T.N. Godavarman dated 12/12/1996 exceeded its brief when it maintained that plantation on non-forest land are not to be treated as forest. Supreme Court in para 5 of the judgment directing the State Government to constitute expert committee merely required such committees to: identify areas which are “forests”, identify areas which were earlier forests but stand degraded, denuded or cleared; and identify areas covered by plantation trees belonging to the Government and those belonging to private DBCWP NO.3849/08. 12 persons. The expert committee was thus asked to only identify the areas covered by plantation trees but the expert committee appointed by the State of Rajasthan has acted wholly without jurisdiction in holding that the plantation on non-forest land is not to be treated as forest. The committee, in this regard, according to Shri Bapna misunderstood and misapplied the specific exemptions granted by the Supreme Court to the States of Himachal Pradesh, U.P., West Bengal and Jammu & Kashmir. This issue in any case was clarified by the Supreme Court itself in subsequent judgments of Samatha and M.C. Mehta. Report of the expert committee to the extent it is inconsistent with these judgments of Supreme Court is illegal and void. 15) Inviting our attention to the National Forest Policy 1988, Shri G.S. Bapna, learned counsel for the petitioner has argued that this policy has got statutory force as held by Supreme Court in M.C. Mehta supra and T.N. Godavarman Thirumulpad Vs. Union of India and others : (2006) 1 SCC 1 (87). It was argued that the Supreme Court held that Forest Policy, 1988, which has a statutory flavour, dictates that derivation of economic benefits must be subordinated to ensuring environmental stability and maintenance of ecological balance and non-fulfillment of this principle would be violative of Articles 14 and 21 of the Constitution of India. Learned counsel argued that Section 18(2) of the Wild Life Act provides that the notification issued sub-section (1) thereof shall specify, as nearly as possible, situation and limits of Wild Life Sanctuary and this has to be done by indicating intelligible boundaries. In the present case, the lands of Khasra Nos.1090 & 1091 of village Daulatpura have been indicated as outer limit of the northern boundary of the Sanctuary whereas, Khasra Nos.1092 & 1093 of the same village Daulatpura, were indicated as the limits of the western boundary. It was therefore necessary for the respondents that DBCWP NO.3849/08. 13 prior to making allotment, even if the respondent No.5 would be required to maintain eco-sensitive zone around the Sanctuary, the boundary marks are established as required by Section 27(3) of the Wild Life Act. Boundaries of not only the Sanctuary but also reserve forest have not been demarcated in any acceptable or satisfactory manner. 16) Shri G.S. Bapna further argued that it is amply proved from three letters written by the DCF, CCF and PCCF that apart from the fact that the disputed land has become dense forest having 550 trees per hectare, this area is contiguous to the notified Wild Life Sanctuary and has since become natural habitat and visiting and breeding area of wild animals such as Leopard, Baghera, Jackal, Fox, Lion, Neel Gay, Bear etc. It has been opined that the entire area has been recorded as pasture land in the revenue records where thousands of the cattles of adjoining villages come for grazing and this was purposely developed to produce the fodder for grazing, which, if now diverted to any other purpose, will disturb the ecological balance of the area and the cattles would then enter the adjoining Sanctuary and reserve forest for grazing. Allotment of land thus would also be violative of Section 29 of the Act of 1972 which prohibits that no person shall destroy, damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the Sanctuary, except under and in accordance with a permit granted by the Chief Wild Life Warden and no such permit shall be granted unless the State Government is satisfied in consultation with the Board that such removal of wild life from the Sanctuary or the change in the flow of water into or outside the Sanctuary, is necessary for the improvement and better management of wild life therein. It was argued that in the present case, even though the DCF suggested for approaching the State Wild Life Advisory DBCWP NO.3849/08. 14 Board but this suggestion was illegally over ruled with a view to favouring the respondent No.5. Shri G.S.