I.A. No(s).6 of 2014,Civil Appeal No.5010 of 2014

29th October, 2014.

Petitioner Counsel: Mr. GURU KRISHNA KUMAR, Mr. SHYAM DIVAN, Mr. B. ADHINARAYANA RAO, Mr. RAVINDRA KESHAVRAO ADSURE
Respondent Counsel: Ms. ARUNA GUPTA, Ms. SWATI SINGH, Mr. ATUL Y. CHITALE, Ms. VAISHNAVI RAO, Ms. S.K. BAJWA, Mr. SHREEKANT N. TERDAL, Mr. S.S. SHAMSHERY, Mr. AMIT SHARMA, Mr. SANDEEP SINGH, Ms. RUCHI KOHLI, Ms. PRAGATI NEEKHRA, Mr. K.B. ROHATGI, Mr. MAHESH KASANA, Ms. APARNA ROHATGI, Mr. SHIVAJI M. JADHAV, Mr. VENKATESWARA RAO ANUMOLU

JUDGMENT

JUDGMENT :- The application has been filed with the prayer as follows:-

(a) clarify that para 11 of this Hon'ble Court's judgment dated 1.5.2014 in Civil Appeal No. 5010 of 2014 would only operate if and only if certain provisions of law/rule/regulations were violated, and in absence of such violation, construction of petitioner is permissible in accordance with law;

(b) consequently quash & set aside rejection letter No. F.7(1)B-Plan/Misc/2009/318 dated 19.6.2014 issued by Secretary, Urban Improvement Trust, Udaipur which uses para 11 of this Hon'ble Court's Judgment dated 1.5.2014 in Civil Appeal No. 5010 of 2014;

(c) direct Secretary, UIT, Udaipur to grant/issue renewal of construction permission to petitioner forthwith in the interest of justice"

2. A Public Interest Litigation was moved before the High Court of Rajasthan in Civil Writ Petition No. 4271 of 1999 praying that construction in and around the lakes specified in the notification by State of Rajasthan dated 17.1.1997 be stopped and necessary directions be given to the State Government agencies to stop the recurrence of such 'harmful and dangerous activities'. The said notification was issued under Section 171 of the Rajasthan Municipalities Act. It pertained to two lakes known as Fatehsagar and Pichola Lake in Udaipur. By the said notification, it was declared that certain specified areas around the above-mentioned two lakes as no construction zone. The said notification was subsequently amended, the details of which may not be necessary for our purpose.

3. The Writ Petition was allowed by an order dated 6.2.2007 substantially granting the prayers of the applicant. Subsequently, a contempt petition came to be filed complaining that the authorities who were respondents in the above-mentioned writ petition were not implementing the decision of the High Court dated 6.2.2007. In the said contempt petition, an application came to be filed by the writ petitioner/contempt petitioner. The substance of the said application is that the applicant herein is making certain commercial construction at Tila Kheda Village in District Udaipur contrary to the directions issued by the High Court by its order dated 6.2.2007. It appears from the record that the applicant herein has obtained various permissions (we are informed 13 in number) from various authorities for the construction of a five-star hotel in a piece of land purchased by them ad-measuring 8.2 hectares which is located at a distance of approximately some 20 kilometers from the two lakes i.e. Fatehsagar Lake and Pichola Lake.

4. In the contempt petition No. 90 of 2010, in view of the application filed by the petitioner therein, the High Court by its interim order dated 12.10.2011 directed in substance that the construction of the Hotel by the applicant herein be stopped. By the order of the High Court dated 27.9.2012 the said interim order was made the final order.

5. Aggrieved by the same, applicant earlier approached this Court in Civil Appeal No. 5010 of 2014 which was disposed of by this Court by an order dated 1.5.2014. The relevant portion of the said order is as under:-

"In view of above, the contempt order dated 27.9.2012 to the extent it affects the appellant is set aside. However, we make it clear that in case any statutory authority finds that the appellant has raised any construction in violation of any statutory requirement including the wet land rules and regulations, if any, this order shall not restrain the said authority to proceed against the appellant in accordance with law."

6. It is obvious from the above extracted portion of the order that this Court clearly set aside the directions given by the High Court, but made an observation that it is open to the law enforcing agencies to take action against the applicant herein if it is found that the applicant has made any construction in violation of any law.

7. Pursuant to the said judgment of this Court, the applicant herein made an application dated 23.5.2014 to the ninth respondent, (namely, Ram Niwas Mehta) herein praying that the construction permission granted in favour of the applicant herein on 31.12.2009 by the Urban Improvement Trust, Udaipur under which the applicant was obliged to complete the construction within a period of three years be renewed as the applicant could not complete the construction within the stipulated period of three years in view of the various developments including the interim directions issued by the High Court during the pendency of the contempt petition.

8. The said application was rejected by the proceedings of the ninth respondent dated 19.6.2014. According to the said communication, a Committee constituted under the provisions of the Wetlands (Conservation and Management) Rules, 2010 (hereinafter referred to as "RULES").

"...has identified Udaisagar lake of Udaipur District as Protected Wetland under Rule no. 3(II)(V) of above referred Wetland Rules 2010. The district collector has accordingly sent proposal to the state government also in this respect vide letter No. P.12/3( ) Raj./Misc/14/2990 dated 12.06.2014.

Raising of any type of construction of permanent nature is prohibited, under rule 4(VI), in the areas identified as protected wetlands vide Rule 3 of the Wetlands, (Management & Conservation) Rules, 2010. Hon'ble Supreme Court has also passed orders dated 01.05.2014 in para 11 as below.

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Under these circumstances it is not possible to grant renewal of the construction permission for hotel project in Udaisagar lake in plot no. 01, area 218966 Sq. Ft in survey no. 523, 531, 532, 534, 535 to 537, 572 to 575, 588, 590, 591, 592, 598, 599, 600 of revenue village Tilakheda."

9. Hence this application.

10. Heard Mr. Guru Krishna Kumar, learned senior counsel for the applicant. He submitted :

(1) that the RULES were framed subsequent to the date of the original permission for the construction of the applicant's project. Therefore, such rules cannot be made applicable to defeat the rights vested in the applicant by virtue of the statutory permission granted on 31.12.2009;

(2) secondly, the RULES are applicable only to identified wet lands. The area in which the construction of the applicant is going on has not yet been identified as a wet land for the purpose of above-mentioned rules;

(3) Even otherwise, according to the applicant, the construction of the applicant is not within the prohibited distance contemplated under Rule 4(1)(vi) that is a "distance of 50 meters from the mean high flood level observed in the past 10 years calculated from the date of commencement of these rules" of the Udaisagar Lake.

11. Therefore, the learned senior counsel Mr. Guru Krishna Kumar argued that the proceeding dated 19.6.2014 by which the 9th respondent, namely, Ram Niwas Mehta declined to grant the renewal is wholly untenable on a total misunderstanding of law and there is nothing in the order of this Court dated 1.5.2014 which warrants the 9th respondent to take a view such as the one taken in the proceedings dated 19.6.2014.

12. Heard Ms. Aruna Gupta, learned counsel for respondent nos. 9 and 11.

13. Learned counsel submitted that the 9th respondent understood the liberty granted by this Court at para 11(extracted earlier) of its order as enabling him to decline the renewal of the permission for construction as there is a proposal pending for identifying the Udaisagar Lake area as protected wet land for the purpose of the RULES.

14. For deciding the correctness or otherwise of the order of the 9th respondent dated 19.6.2014, a brief survey of the RULES is necessary.

15. The RULES are made by the Govt. of India [Now, therefore, 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 (29 of 1986), the Central Government hereby makes the following rules for conservation and management of wetlands.] They came into force w.e.f. 4.12.2010.

Under the Rules, wetlands is defined as under:-

"wetlands" means an area or march, fen, peatland or water, natural or artificial, permanent or termporary, 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 and includes all inland waters such as lakes, reservoirs, tanks, backwaters, lagoons, creeks, estuaries and manmade wetland and the zone of direct influence on wetlands a 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 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, Extra Ordinary Part II, Section 3, Sub Section (ii) of dated the 20th February, 1991."

16. Under Rule 3 various categories (6 in number) of wetlands are specified.

17. Rule 4(1) specifies the various activities mentioned therein to be prohibited activities "within the wetlands" and Rule 4(2) specifies the various activities which cannot be undertaken without the prior approval of the State government within the wetlands. Rule 4(1)(vi) is relevant for us and reads as under:-

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

18. Rule 6 prescribes an elaborate procedure for the identification of wet lands.

"6. Process for identification of wetlands under different categories:-

(1) Wetlands covered under item (i) of rule 3 specified under Schedule shall be the wetland to be regulated under these rules.

(2) The States Government shall prepare, within a period of one year from the commencement of these rules, 'Brief Document'. Identifying and classifying the wetlands within their respective territories in accordance with the criteria specified under Rule 3 and submit the same to Authority.

(3) The 'Brief Document' of each wetland for identification shall comprise of following information, namely:-

(i) broad geographic delineation of the wetland;

(ii) its zone of influence along with a map (accurate and to scale);

(iii) the size of the wetland;

(iv) account of pre-existing rights and privileges, consistent or not consistent with the ecological health of the wetland.

(4) The Authority, shall on receipt of the 'Brief document' under sub-rule (2), if consider it necessary refer in consultation with the State Government to a research institute or university having relevant multi-disciplinary expertise related to wetlands, to conduct a comprehensive survey of the wetland within a period of thirty days: provided that the institute or university to which the matter has been referred under sub-rule(4) shall submit a report within next ninety days from the date of such reference to Authority, which shall contain information with respect to the criteria specified under rule 3.

(5) The Authority shall, thereafter, arrive at a decision in consultation with the State Government, on the proposal, within a period of ninety days from the date of receipt of the report under sub-rule (4).

(6) The Central Government shall on the receipt of the recommendation f the Authority notify the area of wetlands as recommended by the Authority for public information inviting objections and suggestions from the general public likely to be affected to make representation to the Central Government within a period of sixty days;

(7) The Authority shall consider all the representations which the Central Government may receive under sub-rule(6) and submit its recommendation on the such representations to Central Government within a period of sixty days for final notification.

(8) The Central Government shall on receipt of the recommendations of the Authority under sub-rule (7) issue a final notification notifying therein the area of the wetland its category or classification to be regulated under these rules and display the said notification in public in English and vernacular languages."

19. It can be seen from the above that except for the category of wetlands covered under Rule 3(1), the other categories of wetlands specified under Rule 3 are required to be identified after an elaborate enquiry under Rule 6 and finally notified by the Government of India.

20. On an examination of the scheme of the Rules, we are of the opinion that the applicant is right in his first two submissions. First of all, the area where the applicant's construction is going on has not yet been legally notified as a wet land under the RULES. In the absence of any legal embargo as on today, the applicant's right to carry on the construction according to the existing law and various permissions granted under it cannot be frustrated by executive action in anticipation of some embargo which is likely to be created in future.

21. By virtue of the factum of the ownership of the land the applicant has a legal right to make any construction on the land; subject of course to the reasonable restrictions imposed by law. It is the undisputed case that the applicant was granted all the necessary permissions under the existing law in the year 2009 enabling the applicant to undertake the construction in question. Such a vested right cannot be defeated by an executive order. The prohibition contemplated under Rule 4(1)(vi) can operate only on the identification of a wet land in accordance with the procedure prescribed under Rule 6. Such an identification w.r.t. the applicant's land is not yet made. Even if such identification were to be made tomorrow, the vested rights of the applicant cannot be defeated by executive action of denying the renewal sought by the applicant.

22. Coming to the third submission, we do not propose to examine the same as it involves a question of fact and such inquiry at that stage is not required in the absence of identification of the area as wet land under the RULES.

23. The opinion of the 9th respondent that the applicant is not entitled for renewal for the permission of construction is not only illegal but wholly perverse and the same is required to be set aside. The 9th respondent, is therefore, directed to grant renewal if application for renewal is otherwise in order.

24. IA is allowed with costs quantified at Rs. 1 lakhs to be paid by the 9th respondent Ram Niwas Mehta. Costs to be paid within a period of four weeks from today.

Ordered accordingly.