Rajasthan High Court - Jaipur
E.I.H. Limited vs State Of Rajasthan And Others on 6 February, 2001
Equivalent citations: AIR2001RAJ236, 2001(4)WLN99
Author: N.N. Mathur
Bench: N.N. Mathur
ORDER Mathur, J.
1. This wril petition under Article 226 of the Constitution of India by E.I.H. Limited is offshoot of the two pending writ petitions known as "Udaipur Lakes System", challenging the order dated 8/9.12.2000 (Annex. 12) passed by the Collector, Udaipur, directing the peiitioner Company to stop construction work with immediate effect of Phase Second of "Hotel Trident."
(2). The City of Udaipur is known for its lakes system and for ils scenic beauty. However, a concern was expressed by the citizens about increasing .number of hotels around the Pichhola Lake polluting Ihe water. The lakes which are lifeline of all the inhabitants of Udaipur have rapidly turned into a death trap on account of pollution in water, heavy siltalion and encroachments. The writ petition in Ihe public interest was filed before this courl as back as in the year 1982. The State Government realising that Udaipur lakes are facing environmental problems, siltation and also shrinkage in its area, with a view to protect the water of the lakes from further pollution, in exercise of powers under section 299 read with section 171 of the Rajaslhan Municipalises Act issued a notification dated 17.1.1997 declaring a prohibited area known as "No Construction Zone" around the lakes. The construction in the area specified in the notification was completely banned. Latef-on, in view of certain difficulties faced because of the notification dated 17.1.97, a decision was taken to frame Ihe building construction bye laws in the said restricted zone. Accordingly, superseding the notification dated 17.1.1997, another notification dt. 10.12.1999 was issued whereby some of the areas which are neither allached nor related to Lakes System, have been excluded. However, a complaint was made that inspite of governmenl notification, the constructions are being raised in the "No Construction Zone." It was also pointed out that in Ihe garb of the Byelaws of 1999, the U.l.T. has permitted or deliberately ignored raising of construction in the "No Construction Zone". It was also brought to the notice of the Court that Udaipur Lakes System has been recognised and included in the "National Conservation Plans" of the Ministry of Environment and Pollution, Govl. of India. It was pointed out that the Central Government has ambitious plans for conservation and developmenl of National Lakes. However, the pre- condition lo take up the Udaipur Lakes System under the said plan is that the State Government should give free environmenlal status of the area within 200 metres of the high flood level of the lakes so lhat further deterioration does not take place. It was emphasized thai 200 metres zone around the lakes may be declared as "No Construction Zone". It was realised lhat if the construction in the "No Construction Zone" is not slriclly prohibited, efforts made in the public interest litigation pertaining to Ihe Udaipur Lakes System would be a futile exercise. Thus, this Court directed the Slate Government and other local authorities to prepare a time bound programme. The time bound programme has been submitted by the authorities and this court is monitoring the same. In this background, first directions were given by interim order dated 8th May, 2000. In the instant writ petition, we are concerned with Ihe directions contained in sub para (vii) of para 23 of the interim order dt. 8th May, 2000, which reads as under:
"23. (vii) Keeping in view the decision of the Apex Court in M.C. Mehta vs. Union of India, reported in (1997) 3 SCC 715, whereby the "Precautionary Principle" and the "Pollute Pays" principle have been accepted as essential features of "sustainable development as part of the environmental law of the Country. We direct thai no construction of any type shall be permitted now under "No Construction Zone" under the Notification dt. 17.1.97 except in a case where the plots have already been sold/allotted prior to 17.1.1997, if the construction extended/re-construction of the house is for the personal use and further has an approval under the relevant building Bye Laws/ Rules. Any building/house/commercial premises already under construction on the basis of express sanctioned plan shall not be effected by this order. However, all such constructions shall be subject to the clearance of the Pollution Board before the occupation certificate is issued in respect of the building by the authorities concerned."
(3). When the matter came up before us on 5.9.2000 for reporting compliance of the order dated 8.5.2000, i! was brought !o the notice by the Court Commissioner that they have noticed massive construction activity at the Tridcnl Hotel on the bank of Pichhola Lake. According to the Court Commissioners, the construction activity was within the "No Construction Zone" stipulated by (he notification dt. 17.1.1997. It was suggested that an enquiry into the matter covering the title of the land, legality of the approvals for construction and deviations in the actual construction from the approved plans may be ordered to bring out irregularities, if any, at any level. In view of this, this Court in sub para (ii) of para 23 of the order dated 5.9.2000 directed as follows:
"23. Directions:
(ii) As regards the offending construction raised by Trident Hotel, the Collector, Udaipur, shall file an affidavit as to whether he has verified that construction is within "No Construction Zone" or not. In case Trident Hotel is raising construction within "No Construction Zone", he is expected to take appropriate action. The non-action shall be entirely on his (Collector) risk. The Collector, Udaipur is duty bound to punctually, faithfully and religiously comply with the orders of this Court dated 8.5.2000 and issued from time to lime."
(4). Shri Prem Singh Mehra, Collector and District Magistrate, Udaipur, in his affidavit, has stated that the land on which construction of Trident Hotel is going-on, comprised of Khasra No. 148 and the same has been recorded in the name of Palace Households. The Lake Palace Hotels & Motels Private Limited Company transferred 75 acres of land in favour of East India Hotel Ltd. vide a registered lease deed dt. 7.12.92. The life of the lease deed is of 72 years. The East India Hotel Ltd. applied for grant of permission for construction of a hotel on the said land. The permission was granted for construction of a hotel as per plan vide order dt. 24.11.95. The permission remained valid for a period of one year i.e. upto 23.11.96. It was further extended for a further period of three years vide order dated 12.5.97. Prior to the said order, the Stale Govt. issued a notification dated 17.1.97 declaring the areas around the lake to be "No Construction Zone". Pursuant to the said notification, the U.I.T., Udaipur stopped the second phase construction of the said hotel vide order dt. 12.8.97. However, the State Government by order dated 17.9.99 clarified that as the permission was granted to the East India Hotel Ltd. prior to notification dated 17.1.97 prohibiting the construction within the "No Construction Zone," the said notification shall not have retrospective effect. In view of this, the Collector has staled in his affidavit that-
"It is a fact that the land where the East India Hotel Ltd. is making construction of a hotel, comes within the "No Construction Zone". But according to the clarification made by the State Government vide order dt. 17.9.97, the notification issued on 17.1.97 shall not operate retrospectively. However, the directions given by this Hon'ble Court vide order dated 8.5.2000 vide para 7 were carefully considered."
He has further stated that-
"According to the answering respondent's humble submission the construction of the Hotel in questions falls within the exception as pointed-out by this Hon'ble Court. It is clear from the directions, given by this Hon'ble Court that any building/house/commercial premises already under construction on the basis of express sanctioned plan shall not be effected by this order and all such constructions shall be subject to the clearance of the Pollution Board before Ihe occupation cerlificale is issued in respect of the building by the authorities concerned. The construction of the Hotel in question was commenced just after the order dated 24.11.1995 was passed and the construction of the building continued for years together. The East India Hotel Ltd. obtained extension of period for continuing the construction and the same was extended upto 11.5.2000. The area was declared as "No Construction Zone" vide notification dated 17.1.1997 and at that time, the construction of the Hotel was going on and was also in progress. In view of those dates the answering respondent bonafidely and with all sincerity formed an opinion that the continu-ation of the construction of the said Hotel as per sanctioned plans shall not be effected by the order of this Hon'ble Court and, therefore, no action was required to be taken againsl Ihe Hotel owner.
That so far as the 1st phase of the said Hotel building is concerned, the Pollution Control Board has already granted a permission vide its letter dated 15.4.1997 which was valid upto 30.9.2000 and thereafter, the case for renewal is pending with RDCB, Jaipur. That besides, the Pollution Control Board has also granted permission to the said Hotel owner for second phase construction upto 31.3.2001. Therefore, the second part of the order passed by this Hon'ble Court also stands complied with by the owner of the Hotel.
That in order to know the exact position of construction as to whether the same is going on in accordance with the permission granted lo Ihe owner of Ihe Hotel, a Commitlee was constituted by Ihe District Collector, Udaipur and said Committee was directed to submit its report immediately. The Chairman of the Committee was (he Officer on Special Duty, U.I.T., Udaipur as many as 5 other members were included in the said Committee. The said Committee submitted its report before the District Collector, Udaipur on 9.11.2000. A photostat copy of Ihe report is submitted herewith for the kind perusal of this Hon'ble Court and marked as Ex.R./C.3. As the permission for construction was valid upto 11.5.2000 and it has not been further renewed by U.I.T., the Hotel authorities have been asked to stop the construction immediately marked as Ex.R./C.4."
(5). It is contended by Dr. A.M. Singhvi, learned Senior Advocate for the petitioner, thai the impugned order dated 8/9.12,2000 (Annex.12) passed by the Collector, Udaipur, is illegal being based on misconstruction or the perverse misreading of the orders of this court dated 8.5.2000 and 5.9.2000. It is submitted that the case of the petitioner clearly falls under the exception carved out by the court in para 23 (vii) of the order dt. 8.5.2000. Learned counsel after reading the directions contained in para 23 (vii) has submitted that this court has saved the construction which has been approved under the relevant building bye laws or Ihe rules or any building/house/com-mercial premises already under construction on the basis of express sanctioned plan prior to 17.1.1997. Learned counsel has further submitted that by the subsequent order dt. 5.9.2000, the Court only asked the Collector, Udaipur to file an affidavit as to whether the offending construction raised by Ihe Trident Hotel falls within the "No Construction Zone" or not. It is also submitted lhat the pelitioner Company is not raising construction within the "No Construction Zone." It is pointed out that the subject construction is on the area known as Hardasji Ki Magri. This area has been excluded in the subsequent notification dt. 10.12.1999. It is also submitted that the first phase of the Hotel is comptele and has started functioning. The second phase of the project is estimated to cost around Rs. one hundred crore. The petitioner has already spent more than forty crores for second project. It is pointed out that the construclion has been raised in conformity wilh the conditions mentioned in the permission letter and the bye-laws. It is poinled out Ihat Ihe petitioner Company has inslalled imporled biological treatment plant for re- cycling waste water and for olher related activities at the cost of Rs. 50 lacs. The petilioner Company has left a buffer strip of land of 65 metres width between the Pichhola Lake and the Hotel. It is submitted that at the first instance, as the petitioner Company has commenced the conslruction within the stipulated period and, as such, (here is no requirement of the renewal of permission and secondly, even if it is so, in the facts of the case, the doc trine of legilimate expectation is attracted and the petitioner Company is entitled to such extension of time. Learned counsel has placed reliance on two decisions of the Apex Court in M.P. Oil Extraction vs. State of M.P. (I) and Navjyoti Coop. Group Housing Society vs. Union of India (2). Learned counsel has also referred-to decisions of Ihe Apex Court in Century Spinning and Manufacturing Company Ltd. vs. The Ulhasnagar Municipal Council (3), and M/s Vij Resins Pvt. Ltd. vs. Slate of Jammu and, Kashmir (4), for the proposition that the theory of promissory estoppel is attracted in the facts of the case.
(6). On the other hand, it is submitted by Mr. R.L. Jangid, learned Additional Advocate General, that the construclion of the Trident Hotel is going-on in KhaSra No. 1-18, which finds place in the subsequeni notification dated 10.12.99 (Annex.11) and, as such, it is wrong to contend that the subject area does not fall within the "No Construction Zone". It is further submitted that Clause 15 of the permission letter dt. 24.11.95 clearly stipulates that permission is valid for a period of one year from (he date of issue. However, it was further extended for a period of three years by order dated 12.5.97, which expired on 11.5.2000. The application for extension was filed on 8.5.2000 i.e. prior to 11.5.2000 but in the facts and circumslances of Ihe case, it was considered appropriate not to give further extension more parlicularly in view of directions of this court.
(7). Mr. Rajendra Rajdan, who has been permitted to intervene in the matter, submitted that ihis petition is not maintainable for the reason that after Ihe impugned order dt. 8/9.12.2000 the U.I.T., Udaipur has passed an order dated 20th Oct., 2000, whereby (he application submitted by the petilioner Company for extension of lime has been rejected and the said order has not yet been challenged and, as such, this pelition is not maintainable.
(8). We have considered Ihe rival contentions. At the outset, we may say that there does not appear to be serious dispute on the poinl that the subject construction i.e. second phase of .the Hotel Trident falls within the "No Construction Zone." It is of-course true that the area known as Haridasji Ki Magri does not find place in Ihe subsequent nolification dt. 10.12.99 but there is a reference of Khasra No. 118. Even according to the pelitioner, the conslruction is being raised on Khasra No. 148.
(9). It is also nol in dispute that this court while prohibiting Ihe construclion within the "No Construction Zone", has carved out an exception by making the order non-effective for the construction on the premises on the basis of express sanctioned plan prior to 17.1.1997. It is also not in dispute that Ihe petilioner Company was granted permission to construct a hotel on Ihe subject land. This permission has continued upto 20.5.2000. Therefore, Ihe only question which survives for consideration is whether in the facts of the case, the petitioner Company can be permitted to continue the construction of the hotel even after the expiry of the extended period granted by the respondent- U.I.T.?
(10). Sub Section (2) of Section 72 of the Urban Improvement Act imposes restrictions on use of land or building otherwise than in conformity with the master plan or scheme in operation or genera! approval of the Trust. For these activities, permission from the Trust has to be obtained. Section 73 deals with Ihe application for such permission and its procedure. Sub Seciion (3) of Section 73 provides that on receipt of an application for permission under sub-section (1), the officer or authority competent under Section 72 to grant Ihe permission after making such inquiry as may be considered necessary in relation to any matter, shall, by order in writing, either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission. There is no provision for renewal of permission in the event the life of permission is restricted to certain period. A letter of grant of permission under Section 72 of the Rajasthan Urban Improvement Trust Act is a statutory document. While granting the permission, the authority may provide a reasonable period for completion of the work. It is expected from the permission holder to commence the erection of building and complete the same within Ihe stipulated period. However, there may be delay in construction for various reasons, if, for good reason, the period originally fixed has expired, it does not mean that the plan has become a dead document. In our opinion, it merely lies dormant and is re-activated with Ihe grant of extension. It is of-course true that there is no provision for extension of time but such power is inherent in the authority granting permission. We do not mean to say that an application for extension of period can be made at any time after the original period has expired but it must be made within a reasonable period and as to whal would be a'reasonable period, would depend upon the facts and circumstances of each case. A learned Single Judge of this Court while considering the identical provisions of Section 170(9) of the Rajaslhan Municipalities Act, 1959 in Durga Shanker vs. State of Rajasthan (5), has observed that if the work is not commenced within the stipulated period then the fresh permission would be necessary but if the work has already commenced within the prescribed period then it is not necessary to complete the construction within the said period.
(11). Once it is held that the U.I.T. has power to renew permission of construction, the case of the petitioner falls within Ihe exceplion carved in para 23 (vii) of our order. While directing ban in "No Construction Zone", we kept in view the "sustainable development as part of the environmental law" as is evident from the opening part of the relevant directions. Thus, there is apparent misreading or misconstruction of our order, leading a faulty impugned order. .
(12). We are to take a reasonable and balanced view of the entire situation. It is necessary to accommodate all the essential components for a healthy and developing Society. We can not retract our steps from industrialisation to simplistic nature. Proper planning with a will to improving the environment is the basic need to control pollution. On the world map, Udaipur is one of the choicest Tourist destination. For the development of the Tourism Industry, Udaipur needs atleast some hotels providing accommodation of international standard to foreign and local guests, but not at the cost of polluting the lakes. They must bear in mind that by polluting the lakes, they will not survive. Lakes are to be respected and worshipped. Even slightest disturbance polluting the lakes sh'all nol be tolerated, howsoever high or mightly one may be, he/she shall be dealt with in an exemplary manner. It musl be ensured that sufficient technical and preventive measures' are taken. The problem calls for popular vigil. All Ihese aspects are required to be kept in view by Ihe authority concerned, while considering the application for renewal of permission.
(13). Consequently, this writ petition is allowed. The order of the Collector, Udaipur dt. 8/9.12.2000 (Annex.12) and the order dt. 20th Dec. 2000 are quashed and set aside. The U.I.T. Udaipur is directed to pass a fresh order on the application filed by Ihe petitioner for extension of lime for completion of second phase of Hotel Trident. The application shall be decided within a period of one month from today after giving an opportunity of hearing to the petitioner. Cost easy.