611 - 177 : Justice Khanna dissents.

BY - Areeb Uddin Ahmed

Case: Rajeev Suri v. Delhi Development Authority and Ors

Operative part: The Supreme Court upheld the redevelopment of New Delhi's Central Vista area (Central Vista Project). It rejected the batch of petitions challenging the scheme for alleged violation of land use and environmental norms.

Opinion(s): Ratio was - 2:1

J. Khanwilkar and J. Maheshwari: Majority - "Selection and appointment of environmental consultant in the case is held to be just and proper. Modifications regarding change in land use stand confirmed,"

Justice Khanna: Dissenting - "However, on the question of grant of change of land use, I have a different opinion. I have held that the same was bad in law. There was no prior approval of Heritage Conservation Committee and thus matter is remitted back for public hearing. On the environmental clearance aspect, it was a non speaking order."

The Parliament House is the birth-place of our Constitution and the sanctum sanctorum where the elected representatives of people discuss, deliberate and enact laws. The North and the South Blocks house offices where the higher echelons of government and civil service take policy decisions and govern the largest democracy in the world.

It was the famous Kesavananda Bharti case, where Justice Khanna's opinion made all the difference, and today it's the Central Vista case, where another J. Khanna dissented, but today it won't change anything other than fact that 2021 started with a strong dissenting opinion. The Supreme Court upheld the ongoing construction for the new 'Parliament' and rejected the contentions of the Petitioners, which were based on lack of public consultation, defect in the approval procedure and Environmental concerns. With a ratio of 2:1, the court gave a nod to the ongoing project, and while concluding their part, J. Khanwilkar and J. Maheshwari observed:

The role of Court is limited to examining the constitutionality including legality of the policy and Government actions. The right to development, as discussed above, is a basic human right and no organ of the State is expected to become an impediment in the process of development as long as the government proceeds in accordance with law.

-J. Khanwilkar and J. Maheshwari

Justice Khanna and his 'partial dissent'

The main issue before the bench was to determine the validity of the process which has been followed for the approval from various Committees formulated by the government. Justice Khanna dissented with the opinion laid down by the other two Judges and penned down a separate opinion on the aspects of 'public participation' and the failure to take prior approval from the Heritage Conversation Committee and various order passed by EAC (Expert Appraisal Committee)

The Delhi Act was legislated with an intent to provide a monitoring body for Delhi, which can lay down different zonal-district plans and get them approved accordingly. Section 7 and 8 imposes a duty to get a zonal level draft plan which is divided into various section/parts in which the development can be structured down. The crux of the Act is Section 10 which reads out that:

Section 10: "Before preparing any plan finally and submitting it to the Central Government for approval, the Authority shall prepare a plan in draft and publish it by making a copy thereof available for inspection and publishing a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice. The Authority shall also give reasonable opportunities to every local authority within whose local limits any land touched by the plan is situated, to make any representation with respect to the plan."

On, 2nd September 2019: The notice for inviting tenders for the Central Vista Project was issued by the CPWD. Then furthermore, on 4th December, 2019 the Land and Development Office (L&DO), in the Ministry of Housing and Urban Affairs (MoHUA) forwarded an application with an intention to make some changes in the plot area. On the very second day, the concerned meeting was scheduled and the issue was 'discussed'. Surprisingly, the very next day (5th December), the committee approved all the concerned changes in Plot 1 and stated:

"After detailed deliberation, the proposal as contained in Para 4.0 of the agenda with the above modification in land use for Plot No. 1 was recommended by the Technical Committee for further processing under Section 11A of DD Act, 1957. With the following conditions: (i) The clearance from the PMO, Heritage Conservation Committee and Central Vista Committee shall be taken by L&DO. (ii) The heritage buildings shall be dealt as per the relevant heritage provisions."

Then, on 21st December, 2019, a Public notice was issued to invite objections and suggestions from the public in terms of sub-section 3 to Section 11-A of the Act which obliges the authority to invite for suggestions and objections. Lately, in 2020 the Committee further approved the concerned changes that without even considering any expert opinions. During the course of hearing, Senior Advocate Sanjay Hegde rightly observed:

"On March 20th, the land use change was allowed. On 24th, a Nation wide lock down was announced. Even after that, the CPWD placed a proposal for a new Parliament building before the CVC. Despite numerous representations to the CVC, it held a meeting on April 23rd, when many experts, senior citizens were not able to join the same. On the other side, the meeting was held online and 'NOC' was granted in one go."

Which makes it quite clear that the process was not regulated in a detailed manner, because the concept of 'public-consultation' promotes intervention and 'suggestions, it does not fastens up the process in the haste to grant or approve any project irrespective of the fact that whosoever is the concerned party. It is pertinent to note when the iconic 'Notre Dam Cathedral' was burnt down by the incident, the government structured a digital access to get feedback and suggestions from the public to restore the 'heritage' of the concerned monument.

"The Commission has opened a public consultation on the opportunities offered by digital technologies for the cultural heritage sector. Stakeholders and all interested people are invited to provide feedback on the Recommendation... on digitising cultural material and digital preservation. The aim is to propose a more appropriate policy instrument to support the digital transformation of cultural heritage."

The opinion

Justice Khanna analyzed the prior approval process by the Heritage Committee which was not regulated in a legal manner, because approval was not listed itself. The judicial interference was not totally based on merits of the issue but on account of procedural illegalities and failure to abide the statutory provisions and mandate. The main issue was about the jurisdiction and the 'expert opinion' which was not obtained prior to the Construction. Further, it was observed:

"We have referred to the contentions of the petitioners and respondents in some detail but would not comment on merits. These are complex and esoteric issues which have to be at first stage considered and decided by the specialized authorities like the Heritage Conservation Committee. If we consider and examine the merits of the pleas, we would be directly encroaching their jurisdiction and exceeding the power of judicial review. It is the reasoning and discussion in the orders by the statutory/quasijudicial that are subjected to judicial scrutiny and review. "

In view of the aforesaid discussion, while setting aside and quashing the final notification of modification/change of the land use the following issues were touched and directions has been issued accordingly:

Information in public domain

The Central Government/Authority has been directed to upload/display and to put on public domain, intelligible and adequate information connected with the concerned plots (Plot 2-8) along with drawings, layout plans, with explanatory memorandum etc. within a period of 7 days.

Advertisement in Public

In pursuance of the concerned regulation, the authorities have been directed for a Public Advertisement on the website of the Authority and the Central Government along with appropriate publication in the print media, which would increase the domain of the concerned circulation, the same should be done and executed within 7 days.

Filing concerns

Upheld the norms of public participation, the court also ruled that anyone who is desirous and wants to file any suggestions/objections, can do so within 4 weeks from the date of publication. For sending the concerned objections, email can used or the postal address which would be indicated/mentioned in the public notice.

Public Hearing

It was also observed that the public notice would also notify the date, time and place of the public hearing, which would be given by the Heritage Conservation Committee to the persons desirous of appearing before the said Committee and no adjournment or request for postponement would be entertained. However, the Heritage Conservation Committee was given relaxation on fixing any additional date for hearing accordingly.

The Heritage Committee

Justice Khanna, dealt exhaustively on the issue of prior approval of the Committee and ultimately quashed the notification and directed for a re-structured approval. It was directed that the objections/suggestions received by the Authority along with the records of BoEH and other records would be sent to the Heritage Conservation Committee. These objections etc. would also be taken into consideration while deciding the question of approval/permission. Also, the Heritage Conservation Committee, while deciding all contentions, would take in account (with strict compliance) the Unified Building Bye Laws and the Master Plan of Delhi.

Setting aside the order of the EAC

In the end, the court discarded the aforesaid order by the EAC dated 22nd April,2020 and observed that Heritage Conservation Committee would be at liberty to also undertaken the public participation exercise if it feels appropriate and necessary in terms of paragraph 1.3 or other paragraphs of the Unified Building Bye Laws for consultation, hearing etc. It would also examine the dispute regarding the boundaries of the Central Vista Precincts at Rajpath.

Furthermore, the order concluded with:

"The report of the Heritage Conservation Committee would be then along with the records sent to the Central Government, which would then pass an order in accordance with law and in terms of Section 11A of the Development Act and applicable Development Rules, read with the Unified Building Bye-laws. Heritage Conservation Committee would also simultaneously examine the issue of grant of prior permission/approval in respect of building/permit of new parliament on Plot No. 118. However, its final decision or outcome will be communicated to the local body viz., NDMC, after and only if, the modifications in the master plan were notified.

Heritage Conservation Committee would pass a speaking order setting out reasons for the conclusions. We set aside the order of the EAC dated 22nd April,2020 and the environment clearance by the Ministry of Environment and Forest dated 17th June,2020, and would pass an order of remit to the EAC with a request that they may decide the question on environment clearance within a period of 30 days from the date copy of this order received, without awaiting the decision on the question of change/modification of land use."

Even a partial dissent, matters

There was a time in the 80s, when there were strong dissenting opinions which have re-structured some important doctrines. For instance, the basic structure doctrine was the outcome of 7:6 where the operative part was structure by Justice Khanna. Today, when we read the 611 paged judgement, there are some remarks which have been made by J. Khanna on 'Administrative procedure and public consultation' which has paved a path for administrative reforms following the 'equity doctrine':

1. Public Participation

" Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements. Thus, mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure."

2. Doctrine of 'Legitimate expectation'

"This condition also flows from the common law general duty of procedural fairness. Doctrine of procedural legitimate expectation as explained below would be attracted. Intelligible and adequate disclosure of information in the context of the Development Act and the Development Rules means and refers to the degree to which information should be available to public to enable them to have an informed voice in the deliberative decision making legislative exercise before a final decision is taken on the proposals."

3. The fault in our 'procedure'

"Central Government could not have notified the modified the land use changes, without following the procedure and without prior approval/permission from the Heritage Conservation Committee. Further, the local body is expressly interdicted from issuing building permits in respect of the listed heritage buildings/precincts. The local body i.e. NDMC should have approached the Heritage Conservation Committee for clarification/confirmation and proceed on their advice.",

4. Environmental clearance and non application of mind

There must be application of mind which is reflected when reasons justifying the conclusion are recorded. Mere reproduction of the contesting stands is not sufficient. On the contrary it would reflect mechanical grant without application of mind. Further, it is not for the court/appellate forum to assume what weighed, whether the conclusion relies on material which is relevant, irrelevant or partly relevant, or whether the decision is partly based on surmises and conjectures and partly on evidence"