1. The instant Writ Petition under Article 226 of the Constitution of India has been preferred by the Petitioner, assailing the orders dated 10.05.2018 passed by the Revenue Department, Government of Rajasthan and the Collector, Jaipur (Respondents 2 and 3 herein) whereby the Respondents revoked/cancelled the order dated 10.08.2001 vide which the land in dispute was set-apart for establishment of a hotel/tourism unit. Under challenge are also the notices dated 23.04.2012, 10.05.2012 and 29.06.2012 and all the proceedings initiated and conducted against the Petitioner by the Respondents in pursuance of the aforementioned notices. A further challenge has been made to the order dated 14.05.2018 passed by Respondent No. 5 whereby the road to the Petitioner's resort/hotel has been ordered to be closed and the order dated 12.06.2018 passed by the JDA vide which the JDA, acting on the order dated 10.05.2018 reserved the land-use for the disputed land as "Agriculture". The petitioner has also assailed the order dated 13.06.2018 passed by the Jaipur Municipal Corporation whereby the Municipal Corporation has cancelled the various licenses/approvals given to the Petitioner. A further prayer has been made before the Court to hold that the Lease Deed dated 06.11.2001 be not set-aside without following due process of law.
2. Succinctly put, the factual matrix of the case is as follows:
(i) That the Petitioner is a private limited company and is engaged in hospitality business. The Petitioner was formerly known as Heritage Palaces and Sarais Limited, with its registered office at 3rd Floor, UCO Bank Building, Parliament Street, New Delhi but later, the name of the Petitioner-Company was changed to Boutique Hotels India Limited.
(ii) That pursuant to the State Government's initiatives to promote tourism in and around the city of Jaipur, the Petitioner along with four of its associate companies purchased several parcels of land including Khasra Nos. 802 admeasuring 2 Bighas, 3 Biswas and Khasra No. 811/1 admeasuring 13 Bighas and 18 Biswas situated at Village Amer, Tehsil Amer, District Jaipur from individual Khatedars. The aforesaid Khasra numbers were later renumbered as Khasra Nos. 846-848, 856, 859 to 863, 868, 869, 855/9722, 849/9723 and 850/9724 (hereinafter " the disputed land"). The sale deeds with respect to these lands were brought on record as Annexure 4 (Colly).
(iii) After having purchased the disputed land, the petitioner approached the state and its regulatory authorities, for seeking the requisite permissions to set-up and operate a hotel/resort on the land.
(iv) The Jaipur Development Authority ("JDA") issued a No-Objection Certificate to the Petitioner for setting-up a tourismunit/resort on the disputed land on 06.06.2000. The Petitioner averred that the said NOC was issued to it in pursuance of the letter dated 01.05.2000 written by the Deputy Secretary, Urban Development Department.
(v) The Petitioner further averred that the Department of Tourism, Art and Culture, Government of Rajasthan also gave its approval for setting-up a resort to the Petitioner vide communication dated 15.11.2000. Further, the Department also recommended for conversion of the disputed land to Hotel Land.
(vi) Acting on the communication dated 15.11.2000, the District Collector, Jaipur vide communication/letter number 4264 dated 26.05.2001 directed the Petitioner and its sister companies to surrender their Khatedari rights in disputed land in favour of the state, so that the revenues could be mutated and the land could be set-apart for establishment of a Hotel/Resort.
(vii) In compliance with the order dated 15.11.2000 written by the District Collector, the petitioner and all its affiliate companies executed a surrender letter dated 08.06.2001 in favour of the State Government, acting through the Tehsildar.
(viii) The Petitioner then averred that acting on the directions given by the District Collector vide communication dated 26.05.2001, the Petitioner approached the District Collector and requested that the disputed land be set-apart/kept reserved as Hotel Land.
(ix) The District Collector, vide his order dated 10.08.2001 acceded to the request of the Petitioner and set-apart the disputed land as Hotel Land, exercising his powers under Section 91 of the Rajasthan Land Revenue Act, 1956 read with Rule 2 of the Rajasthan Land Revenue (Industrial Areas Allotment) Rules, 1959.
(x) The Department of Tourism thereafter allotted the land to the Petitioner vide its order dated 20.08.2001 for a period of 99 years. Further, in pursuance of the said allotment order dated 20.08.2001, a Lease Deed came to be executed between the Petitioner and the Department of Tourism and the said Lease Deed was registered on 20.04.2002 and duly recorded at serial number 1512 in Book No. I, Volume No. 219 at page number 112.
(xi) As per the terms and conditions of the Lease Deed, the Petitioner was required to establish a hotel and start the operations within 2 years. However, the Petitioner was granted extensions from time to time. Finally, the Hotel was constructed in 2009 and the petitioner has been operating it ever since. Further, the Hotel /Resort initially known as RAAS Resort and now called as Lebua, was opened for tourists in 2010.
(xii) The Petitioner then averred that though the Petitioner had obtained all permissions and approvals as was required by the extant laws, rules and regulations, it was served a show-cause notice on 23.04.2012 by the Commissioner, Tourism Department, Government of Rajasthan. It was averred by the petitioner that the said show cause notice dated 23.04.2012 was apparently issued to it in pursuance of the directions given by the Hon'ble Apex Court in Writ Petition (Civil) No. 202/1995 titled as T.N. Godavarman v. Union of India and Others, in which an Interim Application No. 2066- had been filed by one Mohan Lal Sharma. It was inter alia prayed in the said I.A. Number 2066/2007 that the disputed land be not permitted to be diverted out for commercial activities.
(xiii) The petitioner submitted a detailed reply to the show-cause notice 23.04.2012 on 07.05.2012. It was further averred by the Petitioner that no reply was ever received by the Petitioner from the Respondents. It was further averred that in utter disregard to the reply submitted by the Petitioner, the Department of Tourism again wrote a letter dated 10.05.2012, asking the Petitioner to clarify the issues raised by the Forest Department vide its letter dated 02.05.2012.
(xiv) The Petitioner further averred that despite having submitted a detailed reply on 11.05.2012, the Petitioner was served with another show-cause notice on 29.06.2012 by the Department of Tourism, to which the Petitioner submitted yet another reply on 05.07.2012.
(xv) The petitioner then averred that from 2012 till as late as 2018, the Respondents did not take any action or steps, being fully content and satisfied by the reply to the show-cause notices submitted by the Petitioner. However, in 2018 some officials from the JDA visited the Petitioner's resort and enquired about the permissions and approvals taken by the Petitioner. Further, the Petitioner was also informed about the observations made by the Hon'ble Apex Court in I.A. Number 2066/2007.
(xvi) That though the Petitioner appeared before the Hon'ble Apex Court on the next date of hearing in I.A. 2066/2007 i.e. 11.05.2018 and apprised the Hon'ble Court of the entire factual matrix, a news item was published in a vernacular newspaper, wherein it was mentioned that the allotment letter, lease deed and the order vide which the disputed land had been set-apart had been revoked/cancelled.
(xvii) The Petitioner got to know that vide order dated 10.05.2018 passed by the Revenue Department, the allotment later dated 20.08.2001 issued by the Department of Tourism was revoked. Further, the Petitioner also averred that the said order was neither sent nor communicated to it. Further, vide the aforesaid order dated 10.05.2018, the Lease Deed executed between the Petitioner and the State was also revoked/cancelled. Furthermore, the Collector was also directed to initiate action for revoking the order vide which the disputed land was set-apart/kept reserved as Hotel Land were also declared to be void.
(xix) The petitioner has also averred that while the Petitioner's Writ Petition was pending, in the earlier round of litigation, orders dated 14.05.2018 and 12.06.2018 were passed by Respondent No. 5 and 6 whereby the road to the Petitioner's resort/hotel has been ordered to be closed and the JDA, acting on the order dated 10.05.2018 reserved the land-use for the disputed land as "Agriculture". The petitioner has also averred that another dated 13.06.2018 was passed by the Jaipur Municipal Corporation whereby the Municipal Corporation has cancelled the various licenses/approvals given to the Petitioner
(xx) The Petitioner next averred that the said order dated 10.05.2018 was allegedly issued pursuant to the recommendations of a High-Level Committee chaired by the Chief Secretary, Government of Rajasthan. The High-Level Committee was of the opinion that the petitioner had intentionally violated the condition of constructing a 60 Feet road in front of its resort, as contained in the NOC issued by the JDA on 06.06.2000. Further, the Petitioner was also held to have violated the Forest (Conservation) Act, 1980.
(xxi) Being aggrieved of the order dated 10.05.2018 and the show-cause notices dated 23.04.2012, 10.05.2012 and 29.06.2012 as also the orders dated 14.05.2018, 12.06.2018 and 13.06.2018, the Petitioner has preferred the instant Writ Petition.
ARGUMENTS BY THE COUNSELS
3. Mr Kamlakar Sharma, learned Senior Counsel appearing on behalf of the Petitioner, while reiterating the facts and averments made in the Writ Petition, has challenged the impugned order dated 10.05.2018 and the aforementioned show-cause notices on various grounds. Mr Sharma first contended that the impugned order dated 10.05.2018 and the show-cause notices and all the proceedings initiated in pursuance of the same were not only arbitrary but against the Principles of Natural Justice. It was contended by the learned senior counsel that revoking the lease deed dated 06.11.2001 executed by the petitioner with the respondents as also the allotment letter dated 20.08.2001 without following due process of law and also without affording any hearing to the petitioner was violative of the Petitioner's rights under Article 14 and 19 of the Constitution. The learned senior counsel contended that for revoking/cancelling the lease deed dated 06.11.2011 and the allotment letter dated 20.08.2001, the respondents ought to have filed a civil suit. Cancelling the Lease Deed and the Allotment Letter unilaterally, after a lapse of almost 17 years speaks volume about the capricious and arbitrary action on part of the respondents. To support his contention, the learned senior counsel relied on the judgments passed by the Hon'ble Supreme Court in Andhra Pradesh Industrial Infrastructure Corporation Ltd. and Others V. S.N. Raj Kumar and Another,2016 6 SCC 410 and the judgment dated 2.04.2010 passed by a Division Bench of this Court in JDA v. Anukampa Vyas, D.B. Special Appeal (Writ) No. 254/2012. Mr Sharma next contended that the doctrine of Estoppel should also be invoked against the Respondents. It was argued that after the issuance of the allotment letter dated 20.08.2001 and the Lease Deed dated 06.11.2001, the Petitioner has been granted all the requisite license/approvals like Ground Water Permission, NOC from Fire Department, permissions from the State Pollution Control Board etc. time to time. Thus, revoking the lease-deed, that too unilaterally and without affording any personal hearing to the petitioner was highly unreasonable and arbitrary. Mr Kamlakar also contended that the affidavit filed by the State of Rajasthan in Contempt Petition No. 133/2007 and I.A. Number 2066/2007 before the Central Empowered Committee (CEC) also in contradiction to the allotment letter dated 20.08.2001 and the Lease Deed dated 06.11.2011. It was vehemently contended that despite the setting-apart order issued by the District Collector and the Lease Deed dated 06.11.2001, the Respondents had submitted before the CEC that no permission had been granted by the Forest Department. Mr Sharma also drew the attention of the Court to the reply (Annexure 17) submitted by the Petitioner to the notice dated 23.02.2012 . It was unequivocally stated by the Petitioner in its reply that the disputed land did not fall within forest land. In fact, the state government had sent a proposal to the Central Government for including the an area of 100 meters around the Nahargarh sanctuary as an "Eco-Sensitive Zone" and the Central Government was yet to take a decision in that regard. It was also stated in the reply to the show-cause notice that even the Principal Chief Conservator of Forests, Rajasthan vide his letter dated 31.08.2004 had clarified that Khasra No. 802 to 811 were not "forest" land. Further, Mr Sharma also contended that the Petitioner did not need any permission from the Forest Department because Clause 1.5 of the proposal sent by the State Government dated 31.03.2011 permitted existing hotels/resorts to continue their business, provided they treated their effluents through a Sewage Treatment Plant (STP). It was also contended by Mr Sharma that even the Bye-Laws of the JDA i.e. the Jaipur Development Authority (Jaipur Region Building) Bye-Laws, 2000 permitted resorts/motels/hotels to operate in ecological sensitive zones.
4. On the other hand, Major R.P. Singh, learned senior counsel appearing on behalf of the State of Rajasthan has vehemently opposed the submissions made by Mr Sharma. While drawing the attention of the court to the orders passed by the Hon'ble Apex Court in I.A. No. 2066/2007 and Contempt Petition No. 133/2007, Mr Singh contended that when the aforementioned Contempt Petition taken up for consideration before the Hon'ble Apex Court on 14.09.2007 and notices were issued, the Central Empowered Committee (CEC) was directed to file a report within 4 weeks. In compliance of the order dated 14.09.2007, the state government had filed an affidavit on 28.02.2012. It was inter alia stated in the said affidavit that no permission had been granted to the Petitioner by the Forest Department and further, there was no intention to grant any such permission/NOC by the Forest Department. Mr Singh next took the attention of the court to order dated 19.03.2012 passed by the Hon'ble Apex Court. Vide the said order, the Hon'ble Court had directed the state of Rajasthan to take action in accordance with law, since the land in question was required by the Forest Department. It was contended by Mr Singh that in compliance of the aforesaid order dated 19.03.2012, a committee had been constituted by the state government under the chairmanship of the then Chief Secretary, Government of Rajasthan, the minutes of which dated 18.05.2012 were also brought on record as Annexure R/2. It was decided in the said meeting that since the land in dispute was surrounded by Nahargarh Wildlife Sanctuary on three sides and the land in front of the property belongs to the Forest Department and the conditions regarding the construction of a 60 Feet wide Road could not be fulfilled as the road passes through Forest Land, no commercial activities could be allowed as the same would be a violation of the Forest (Conversation) Act, 1980. Further, it was also decided that the lease deed and the allotment letter issued in favour of the Petitioner should be revoked/cancelled in accordance with law. Mr Singh next stated that after the state government filed the affidavit before the CEC, the CEC examined the matter and recommended that the state government may consider cancelling the allotment/lease deed. Thereafter, another meeting was held on 30.09.2013 under the chairmanship of the Chief Secretary and in the said meeting, it was decided that a committee should be constituted comprising of the Principal Chief Conservator of Forests (Wildlife), Jaipur; Secretary, Jaipur Development Authority, Jaipur' Additional Director Tourism, Jaipur; and Additional Collector, Jaipur and this committee was examine the case, keeping in view the prevailing laws. It was then stated by Mr Singh that the said committee submitted its report on 12.12.2013 and recommended that the Lease Deed executed in favour of the petitioner be cancelled as the condition regarding construction of 60 Feet wide road was not fulfilled and could not be fulfilled as the road fell within forest area. Mr Singh thus contended that the Lease Deed executed in favour of the Petitioner as also the allotment letter were revoked/cancelled strictly in accordance with the law and in compliance of the orders of the Hon'ble Court. Mr Singh vehemently argued that since there is no estoppel against law, the Petitioner could not raise any grievance as the condition regarding concerning a 60 Feet wide road could not be fulfilled as the road would pass through forest area, hinder the free movement of wildlife and be a cause of annoyance for various species of birds and animals refuging in the area. To support his submissions, Mr Singh relied on the judgments passed in following cases:
1. State of Bihar and others Versus Project Uchcha Vidya, Sikshak Sangh and others, (2006) 2 SCC 545
2. Maharshi Dayanand University Versus Surjeet Kaur, (2010) 11 SCC 159
3. A.V. Papayya Sastry and others Versus Govt. of A.P. and others, (2007) 4 SCC 221
4. District Primary School Council, West Bengal Versus Mritunjoy Das and Others, (2011) 15 SCC 111
5. Chairman, All India Railway Recruitment Board and Another Versus K. Shyam Kumar and Others, (2010) 6 SCC 614
6. PRP Exports and Others Versus Chief Secretary, Government of Tamil Nadu and others, (2014) 13 SCC 692
7. Union of India and Another Versus Ashok Kumar Aggarwal, (2013) 16 SCC 147
8. Mohammad Swalleh and others Versus Third Addl. District Judge, Meerut and another,1998 1 SCC 40
9. Gadde Venkateswara Rao Versus Government of Andhra Pradesh and others, (1966) 2 SCR 172 : AIR 1966 SC 828
10. Chandgiarh Administration and another Versus Jagjit Singh and Another, (1995) 1 SCC 745
11. Gursharan Singh and Others Versus New Delhi Municipal Committee and another, (1996) 2 SCC 459
12. Jagan Singh Versus State Transport Appellate Tribunal, Rajasthan and another, (1980) AIR Raj. 1
13. Jagdish and 2 Others Versus The Addl. District MagistrateII & Ors.,2003 1 WLC(Raj) 296
5. Refuting the arguments made by Mr Singh, Mr Kamlakar in his rebuttal arguments contended that the impugned orders passed by the respondents was nothing but an oblique attempt on their part to save themselves from the wrath of the Hon'ble Supreme Court in Contempt Petition No. 133/2007. It was contended that the Petitioner was scapegoated by the respondents and the impugned orders passed without affording any opportunity of hearing are absolutely bad in the eyes of law. Mr Kamlakar also contended that the way which has been alleged to be part of forest area in fact does not fall within forest area as the same has been used by locals and the petitioners for quite a long time. Further, reliance was also placed on the reply dated 25.07.2018 given by the Tehsilar to the RTI application filed by the petitioner, inquiring about the road to the Petitioner's resort/hotel. Reliance was also placed by the learned senior counsel on the map provided by the Tehsilar (Annexure 41).
6. I have heard the learned counsels appearing of both the sides and perused the material available on record. The two issues which require adjudication by this court are:
(I) Whether or not the respondents could unilaterally revoke/cancel the allotment order dated 10.08.2001 and LeaseDeed dated 06.11.2001?
(II) Whether or not the road to the petitioner's resort falls within forest area and having not taken any NOC from the Forest Department, can the petitioner be allowed to carry out commercial activities on its resort/hotel by using the access road?
7. In re ISSUE NO. I
A careful perusal of the impugned order dated 10.05.2018 as well as the materials placed on record, reveals that the Lease Deed dated 06.11.2001 and the order dated 10.08.2001 vide which the land in question was set apart by the then Collector and the allotment order dated 20.08.2001 were revoked/cancelled by the Respondents for three reasons. First, the land in question is surrounded on three sides by Nahargarh Wildlife Sanctuary and the state government has taken a decision to declare an area of 100 metres as an Eco-Sensitive Zone. Since, the location of the land is in the form of a "nozzle" and it is surrounded by the sanctuary on three sides, it hinders the movement of wildlife in the area and has become a cause of annoyance for the animals and birds refuging in the sanctuary. Thus, in compliance of the various orders passed by the Hon'ble Apex Court in Contempt Petition No. 133/2007 and I.A. No. 2066/2007, it became imperative to cancel/revoke the allotment order as also the Lease-Deed. Second, the approach road to the Petitioner's resort/hotel falls under forest area and the Petitioner had not obtained any NOC from the Forest Department. Further, the condition regarding construction of a 60 Feet Road cannot be fulfilled as it violates the Forest (Conservation) Act, 1980 and other environment protection laws. After perusal the materials placed on record, this court finds that it would not be appropriate for this court to examine as to whether the reasons given by the Respondents in the impugned orders are cogent and justified. However, the point of concern for the court is the manner in which the Lease-Deed dated 06.11.2001 and the allotment order dated 20.08.2001 and the setting apart order dated 10.08.2001 have been cancelled/revoked by the respondents. It is well-settled that Rule of Law is one of the basis features of the Indian Constitution. Having adopted the concept of Rule of Law from Britain, Rule of Law has roots in political theories enunciated by both Plato and Aristotle. However, the concept was succinctly described by Wade and Forstyh as:
"(i) Everything must be done according to law, that is, every act of government power i.e. every act which affects the legal rights, duties or liberties of any person, must be shown to have a legal pedigree.
(ii) Governance should be conducted within a framework of recognized rules and principles which restrict discretionary powers.
(iii) Disputes as to the legality of acts of government are to be decided by judges who are independent of the executive.
(iv) Law should be even handed between government and citizens, but since government must necessarily have many special powers, the principle simply means that government should not enjoy unnecessary privileges or exemptions from ordinary law.
(v) Nobody should be punished except for some legally defined crimes.
(vi) Right should not be infringed by retrospective legislation.
(vii) Access to justice should not be unduly slow and expensive"
Speaking for the bench, Justice Subbarao C.J (as his Lordship then was) in L.C. Golaknath v. State of Punjab, (1967) AIR SC 1643 observed as thus:
"The rule of law under the Constitution has a glorious content. It embodies the modem concept of law evolved over the centuries. It empowers the Legislatures to make laws in respect of matters enumerated in the 3 Lists annexed to Schedule VII. In Part IV of the Constitution, the Directive Principles of State Policy are laid down. It enjoins it to bring about a social order in which justice, social. economic and political-shall inform all the institutions of national life. It directs it to work for an egalitarian society where there is no concentration of wealth, where there is plenty, where there is equal opportunity for all, to education, to work, to livelihood'. and where there is social justice. But, having regard to the past history of our country, it could not implicitly believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian State. It, therefore, preserves the natural rights against the State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel between the rights, subject to social control. In short, the fundamental rights, subject to social control, have been incorporated in the rule of law. That is brought about by an interesting process."
Applying the principle of Rule of Law to the facts of the instant case, this court has no hesitation in holding that the manner in which the Lease-Deed and the allotment order have been cancelled reeks of arbitrariness, with little regard to due process of law. In the considered opinion of this court, if the respondents were of the opinion that the Lease-Deed dated 06.11.2001 and the allotment order dated 20.08.2001 were void ab initio or were liable to be cancelled/revoked, it was imperative upon the respondents to do so after following the due process of law. It is not expected from the state and its instrumentalities to take law in their own hands and act arbitrarily. In the instant case, the Lease-Deed dated 06.11.2001 and the allotment order dated 20.08.2001 could be revoked only by a competent court of law, after affording opportunity to both the sides to adduce evidence and after conducting a full-blown trial. The position of law in this regard is no more res integra as rightly contended by Mr Sharma, learned senior counsel appearing on behalf of the Petitioner. In Andhra Pradesh Industrial Infrastructure Corporation Limited (Supra), the Hon'ble Apex Court while examining the action on part of the Appellant-Corporation in unilaterally cancelling the sale-deed executed in favor of the respondents, for not complying with the terms and conditions as contained in the allotment order/letter therein observed thus:
"17. Section 55 of the Act deals with the rights and liabilities of buyers and sellers. As per this provision, when the buyer discharges obligations and seller passes/conveys the ownership of the property, the contract is concluded. Thereafter, the liabilities, obligations and rights, if any between the buyer and seller would be governed by the other provisions of the Contract Act and the Specific Relief Act, on the execution of the sale-deed. The seller cannot unilaterally cancel the conveyance or sale."
Applying the ratio of the aforementioned case, this court is of the opinion that if the respondents thought that the conditions of the letter of allotment dated 20.08.2001 or the Lease-Deed dated 06.11.2001 had been violated or it was not desirable to let the Petitioner continue commercial activities on the land in question, the respondents ought to have invoked the jurisdiction of a competent court of law and proceeded with the matter strictly in accordance with law.
8. In re ISSUE NO. II
However, a matter of concern still remains before this Court. It has been vehemently argued by Mr Singh that a part of the road to the Petitioner's resort/hotel falls within forest area and the petitioner had not taken any NOC from the Forest Department as required under the prevailing laws, the petitioner cannot be allowed to access the road/way since it not only hinders the movement of wildlife but might also jeopardize the safety of animals living in and around the sanctuary. Though, in the Rejoinder to the Reply filed on behalf of the respondents, the petitioner has disputed that the access road falls within forest area by relying on the Reply dated 25.07.2018 given to the RTI application filed by the petitioner by the Tehsildar concerned and the petitioner has also contended that the locals have been using this road for the past 50-60 years, this court is of the opinion that the question as to whether the access road falls forest area or not is a disputed question of fact, which can be determined better by a competent civil court after a full blown trial. However, till the time this question is not decided by a competent court of law, after affording an opportunity to both sides to adduce evidence, the Public Trust Doctrine casts a duty on this court to not let the Petitioner use this road for commercial activities. The Public Trust Doctrine enjoins a duty on both the government and constitutional courts to ensure that natural resources as well as natural heritage of the country is protected and natural resources are not given recklessly for private ownership or commercial purposes. Explaining the doctrine, the Hon'ble Apex Court in Fomento Resorts and Hotels Limited v. Minguel Martins,2009 1 SCC 571 observed as thus:
"31. Once it is held that there existed public access to the beach through survey No.803 (new 32. The matter deserves to be considered from another angle. The public trust doctrine which has been invoked by Ms. Indira Jaising in support of her argument that the beach in question is a public beach and the appellants cannot privatize the same by blocking/obstructing traditional access available through survey No.803 (new No.246/2) is implicitly engrafted by the State Government in Clause 4(ix) of the agreement. That 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. These resources are gift of nature, therefore, they should be freely available to everyone irrespective of one's status in life. 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. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all 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. 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."
Further, the Hon'ble Supreme Court in Lafarge Union Mining Pvt. Limited v. Union of India, (2011) 7 SCC 338 while considering the provisions of Forest (Conservation Act), 1980 observed thus:
"88. At the outset, one needs to take note of Section 2 of the 1980 Act which stipulates prior approval. That Section refers to restriction on the dereservation of forests or use of forest land for non-forest purpose. It begins with nonobstante clause. It states that:
"2. Restriction on the dereservation of forests or use of forest land for non-forest purpose:-Notwithstanding anything contained in any other law for the time being in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing
(ii) that any forest land or any portion thereof may be used for any non-forest purpose".
This is how the concept of prior approval by the Central Government comes into picture. Thus, prior determination of what constitutes "forest land" is required to be done.
89. By an order dated 12.12.1996 by a Division Bench of this Court in Writ Petition (C) No. 202 of 1995 with another in case of T.N. Godavarman Thirumulpad v. Union of India, this Court directed each State Government 75 to constitute within a specific period an Expert Committee to identify areas which are forests irrespective of whether they are so notified, recognized or classified under any law and also identify areas which were earlier forests but stand degraded, denuded or cleared. The Committee was to be headed by the Principal Chief Conservator of Forests. This order dated 12.12.1996, thus, clarified that every State Government seeking prior approval under Section 2 of the 1980 Act shall first examine the question relating to existence of forests before sending its proposal to the Central Government in terms of the form prescribed under the Forest (Conservation) Rules, 1981 (see Rule 4). Thus, the requirement of submitting the proposal for forest diversion under the 1980 Act is exclusively the obligation of the State Government.
90. This position was spelt out initially in the guidelines dated 25.10.1992. However, later on, the Government of India amended the guidelines in respect of diversion vide letter dated 25.11.1994 and by the said letter the concept of "User Agency" stood introduced. On 10.1.2003, Rule 4 of the 1981 Rules stood reframed which inter alia provided that every 76 "User Agency" who wants to use any forest land for non-forest purpose shall make its proposal in the specified form appended to the Rules to the concerned Nodal Officer along with the requisite information before undertaking any nonforest activity on the forest land and after receiving the said proposal and if the State Government is satisfied that the proposal required prior approval under Section 2, the State Government had to send the said proposal to the Central Government in the
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appropriate form within the specified period of 90 days from the receipt of the proposal from the "User Agency". Further the Hon'ble Apex Court also explained the scope of judicial review in matters relating to forests and environment as follows: "119. The time has come for us to apply the constitutional "doctrine of proportionality" to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilisation of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilisation of natural resources have to be tested on the anvil of the well-recognized principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play. Our above view is further strengthened by the decision of the Court of Appeal in R. v. Chester City Council reported in All ER paras 14 to 16." 9. Further, this court finds much substance in the argument of Mr Singh that there is no estoppel against law. Even if a condition was wrongly included in the letter of allotment dated 20.08.2001 and the NOC issued by the JDA to construct a 60-Feet road, that would not create any right in favour of the petitioner to use the road if it indeed falls within forest area. 10. In light of the above discussion, this court directs as below: (i) The impugned order passed by the Revenue Department, Government of Rajasthan and the Collector, Jaipur (Respondents 2 and 3 herein) whereby the Respondents revoked/cancelled the order dated 10.08.2001 vide which the land in dispute was set-apart for establishment of a hotel/tourism unit and the unilateral cancellation of Lease-Deed are hereby quashed and set-aside. Further, the show-cause notices dated 23.04.2012, 10.05.2012 and 29.06.2012 and all the proceedings initiated and conducted against the Petitioner by the Respondents in pursuance of the aforementioned notices are also hereby quashed and set-aside. However, the Respondents are given liberty to approach a competent court, for seeking cancellation of the Lease-Deed dated 06.11.2001 and the allotment letter dated 20.08.2001, if so advised. (ii) The Petitioner is hereby directed to not use the approach road to its hotel/resort since part of the same allegedly falls within Forest area. However, the Petitioner is given a liberty to invoke the jurisdiction of a competent court of law, to determine as to whether it has a right to use the road or not and whether or not, the road falls within forest area. (iii) If the Petitioner or/and the Respondents approach any competent court of law subordinate to this Court, it is directed that the court will proceed strictly in accordance with law and determine the issues within a period of one year from the filing of any suit/application. (iv) There shall be no order as to costs. The Writ Petition accordingly stands disposed of. All pending applications also accordingly stand disposed of.