RAJEEV SURI versus DELHI DEVELOPMENT AUTHORITY & ORS

[2021] 15 S.C.R. 283

RAJEEV SURI

DELHI DEVELOPMENT AUTHORITY & ORS

(Transferred Case (Civil) No. 229 of 2020)

JANUARY 05, 2021

[A.M. KHANWILKAR, DINESH MAHESHWARI ANDSANJIV KHANNA, JJ.]

Judicial Review – Scope and amplitude of – Central VistaProject of the Government of India – Judicial scrutiny regardingits’ permissibility – Government’s duty to consult – Scope and ambitof the citizen’s right to participate in quasi legislative exercise –Issues concerning decisions taken by the statutory Authoritiesincluding regarding the change in land use, grant of statutory andother permissions, environmental as well as heritage clearancesetc. – Challenge to change in land use of six plots in the CentralVista under the Delhi Development Act, 1957, and the permissions/approvals granted by the Central Vista Committee, the Delhi UrbanArts Commission under the Delhi Urban Arts Commission Act, 1973and clearance/no-objection for construction of new ParliamentHouse under the Environment Protection Act, 1986 – Failure totake prior permission/approval of the Heritage ConservationCommittee as per Annexure II of the Unified Building Bye-Laws,alleged – Plea of absence of sufficient public participation in theentire process – Held (per majority) (per A.M. Khanwilkar, J. [forhimself and Dinesh Maheshwari, J.]): There is no infirmity in thegrant of “No Objection” by the Central Vista Committee (CVC);“Approval” by the Delhi Urban Art Commission (DUAC) as per theDUAC Act, 1973; and “Prior approval” by the HeritageConservation Committee (HCC) under clause 1.12 of the BuildingByelaws for Delhi, 2016 – Further, exercise of power by the CentralGovernment u/s.11A(2) of the DDA Act, 1957 is just and properand thus modifications regarding change in land use of plot Nos. 2to 8 in the Master Plan of Delhi, 2021/Zonal Development Plan forZone-D and Zone-C vide impugned notification dated 20.3.2020,confirmed – Recommendation of Environmental Clearance (EC) byExpert Appraisal Committee (EAC) and grant thereof by Ministry

Aof Environment and Forest (MoEF) is just, proper and in accordancewith law including the 2006 Notification – Project proponent mayset up smog tower(s) of adequate capacity, as being integral partof the new Parliament building project; and additionally, use smogguns at the construction site throughout the construction phase isin progress on the site – The stage of prior permission under clauseB1.3 of the Building Bye Laws of the Heritage Conservation Committee(HCC), is the stage of actual development/ redevelopment etc. workis to commence and not the incipient stage of planning andformalisation of the Project – Accordingly, respondents to obtainprior permission of the designated Authority before actually startingCany development /redevelopment work on the stated plots/structures/precincts governed by the heritage laws including on plot No. 118,if already not obtained – Held (per Sanjiv Khanna, J.) (partlydissenting) (Minority judgment): The dissent is only on aspects ofpublic participation on interpretation of the statutory provisions,failure to take prior approval of the Heritage ConservationDCommittee (HCC) and order passed by the Expert AppraisalCommittee (EAC) – However on aspects of Notice inviting Bid, awardof consultancy and the order of the Urban Arts Commission, as astandalone and independent order, there is no disagreement – Finalnotification of modification /change of the land use dated 28th MarchE2020 in respect of the 6 plots in the Central Vista quashed and setaside, with directions – Order of EAC dated 22nd April, 2020 andenvironment clearance by Ministry of Environment and Forest dated17th June, 2020 set aside, and an order of remit to the EAC passedwith request that they may decide the question on environmentclearance, without awaiting the decision on the question of change/Fmodification of land use – Delhi Development Act, 1957 – s.11A(2)– Delhi Urban Arts Commission Act, 1973 – Environment ProtectionAct, 1986 – Building Byelaws for Delhi, 2016 – Master Plan ofDelhi, 2021.

Doctrines / Principles – Principle of Rule of Law – Held: TheGprinciple of Rule of Law runs as common thread through thesubstantive as well as procedural laws – democratic polity requiresall organs of the state to attach equal importance to substance oflaw as well as to the procedure delineated to perform suchsubstantive functions – That must be the constant endeavour to touchHboth ends as well as means.

Judiciary and Rule of Law – The duty enjoined upon thejudiciary is to ensure checks and balances; and to place itselfbetween the Government and citizens when they come face to facein Court of law – The judicial organ is not meant to impose thecitizens’ or even its own version of good governance upon theGovernment in the name of Rule of Law in exercise of its power ofjudicial review.

Government Policy – Interference with – Judicial Review –Scope – Held: The Courts do not sit in appeal over the decisions ofthe Government to do merit review of the subjective decision assuch – The Government may examine advantages or disadvantagesof policy at its own end, it may or may not achieve the desiredobjective – The Government is entitled to commit errors or achievesuccesses in policy matters as long as constitutional principles arenot violated in the process – It is not the Court’s concern to enquireinto the priorities of an elected Government – Judicial review isnever meant to venture into the mind of the Government and therebyexamine validity of decision.Judicial Review – Principled judicial review – “Constitutionaldue process” – Held: In principled judicial review “check” ismaintainable without tilting the “balance” – An elected Governmentis the repository of public faith in matters of development –Dispensation of judicial review cannot be resorted to by theaggrieved /dissenting section for vindication of their point of viewuntil and unless it is demonstrated that the proposed action is inbreach of procedure established by law or in given case, colourableexercise of powers of the Government – Therefore, it is importantfor the Courts to remain alive to all the attending circumstancesand not interfere merely because another option as in the perceptionof the aggrieved/dissenting section of public would have been abetter option.

Doctrines / Principles – Constitutionalism – Held:Constitutionalism is relative concept which envisages aconstitutional order wherein powers and limits on the exercise ofthose powers are duly acknowledged – It is tool which is used toreach upto the ultimate goal of constitutionalization of governancebut it cannot be deployed to present an alternative model ofgovernance – Principle of constitutionalism is work in progress

Awhich is meant to infuse life and blood into an existing schemewhich has stood the test of constitutional validity and not to nudgewith the scheme itself – It may only be deployed to evolve minimumstandards of procedures prescribed by law – It is not to undermineor supplant the elaborate statutory regulatory schemes.

BConstitution of India – Role of – Held: Constitution in oursystem plays twin role – First, Constitution as the guardian offundamental rights and second, Constitution as the structure ofgovernance.

Democracy – Principle of participatory democracy – ElementsC– Scope of public involvement in Government processes – Held:The principle of participatory democracy has two integral elements– first, public participation in decision making and second, placinginformation regarding Government actions in public domain – Thescope of public involvement in Government processes is however amatter dependent on legal framework of country and the CourtDshould be loath to venture into that area in the guise of eminence ofthe project under consideration – In democratic setup where thecitizen has entrusted abundant governance to the Government, it isbounden obligation of the Government to keep the citizens wellinformed about its actions, as prudent trustee would.EPolicy and Development – Role of the Courts – Held: Courtsoperate within the boundaries defined by the Constitution, andcannot be called upon to govern, for, they have no wherewithal orprowess and expertise in that regard – The political issues includingregarding development policies of the Government of the day mustFbe debated in the Parliament, to which it is accountable – The roleof Court is limited to examining the constitutionality includinglegality of the policy and Government actions – The right todevelopment is basic human right and no organ of the State isexpected to become an impediment in the process of developmentas long as the government proceeds in accordance with law –GJudiciary.

In the instant matters, this Court was called upon by thepetitioners to undertake comprehensive and heightened judicialscrutiny regarding the permissibility of the Central Vista Projectof the Government of India. As per the policy documents, theH

need for the development of the Central Vista Project is rootedin the creation of larger working space for efficient functioningof the highest legislative wing of the country and for integratedadministrative block for Ministries/ Departments presently spreadout at different locations including on rental basis. The CentralVista lies in the heart of the national capital, and within the“Lutyens’ Bungalow Zone” (LBZ), and is described by the IndianNational Trust for Art and Cultural Heritage (INTACH) as the“ensemble with main axis Rajpath...the Rashtrapati Bhawan atRaisina Hills, flanked by the Secretariat (North and SouthBlocks)...the Parliament House...the hexagonal round-about thathas the India Gate and the Canopy...”

Diverse issues concerning the decisions taken by thestatutory Authorities including regarding the change in land use,grant of statutory and other permissions, environmental as wellas heritage clearances etc., were raised in the proceedings. Thechallenge was premised on high principles of democratic valuesas applicable in India and not limited to mere infringement ofstatutory provisions of the governing enactments. That is onaccount of the nature of project – being of high political significanceand eminence for our democratic republic; and for upholding the“Rule of Law”, which is on higher pedestal than the governanceby “Rule by Law”. An argument was also advanced as regardsthe absence of sufficient public participation in the entire process.Advancing the argument regarding direct public consultation, thepetitioners stated that the concept of participatory democracydemands that project of this nature must involve the commonpublic as they are the real stakeholders of national heritage andmust be consulted at every stage of the project including prior todrawing outline of the project, releasing consultancy tender,modifying the Master Plan and finalisation of the design andmaking changes therein.

The dispute relating to the modification and redevelopmentof the Central Vista has different facets. First, is the legalchallenge to change in the land use of six plots in the CentralVista under the Delhi Development Act, 1957, and thepermissions/approvals granted by the Central Vista Committee,the Delhi Urban Arts Commission under the Delhi Urban Arts

ACommission Act, 1973 and the clearance/no-objection forconstruction of new Parliament House under the EnvironmentProtection Act, 1986. Failure to take prior permission/approvalof the Heritage Conservation Committee as per Annexure II ofthe Unified Building Bye-Laws is alleged. In Writ Petition (Civil)No. 853/2020, the Notice inviting Bid and award of consultancyBto the ninth respondent therein has been challenged. At deeperand conceptual level the question relates to the government’sduty to consult and the scope and ambit of the citizen’s right toparticipate in the quasi legislative exercise. Connected with thetwo issues is the third question of scope and amplitude of theCpower of judicial review.

Disposing of the matters, the Court

Per A.M. Khanwilkar, J. [for himself and for DineshMaheshwari, J.] (Majority judgment)

DHELD:1.1. The Rule of Law requires law in existence; suchlaw must qualify as law within the meaning of the Constitutionand must satisfy the standards laid therein and legally applicablemeaning of Rule of Law in India can be best understood as ademocratic rule within the four corners of the Constitution, asoriginally envisaged and as is interpreted from time to time. TheEexistence of democracy per se does not guarantee adherence toRule of Law, but abidance of Rule of Law by one and all is thehallmark of real thriving democracy. [Para 133][386-B-D]1.2. The fact that all power flows from law and must beexercised in accordance with such law is easy to be theorized inFa constitutional discourse, but difficult to be sustained in theaftermath of ever-expanding potpourri of the law itself. It is forthis very reason the statement – ‘Rule of Law’ must encompassa dynamic concept albeit rooted in four corners of theConstitution. It provides constant trigger to any state-citizenGintercourse and calls upon this Court to strike just balancebetween two entities, both equally bound by the same principleof superiority of law. just and time-tested methodology to strikethis balance lies in the end product of furthering the avowed goalof democracy premised upon Rule of Law and not dragging itbackwards. [Para 134][386-D-F]H

1.3. The principle of Rule of Law runs as common threadthrough the substantive as well as procedural laws. democraticpolity requires all organs of the state to attach equal importanceto substance of law as well as to the procedure delineated toperform such substantive functions. That must be the constantendeavour to touch both ends as well as means. [Para 135][386-F-G]

2.1. The trajectory of our jurisprudence in review of mattersinvolving personal liberties has been one of strict approaches. Itis, however, misnomer to propagate that we have graduallytransformed from chosen “procedure established by law” intoonce consciously rejected “due process of law”. The petitioners,despite their best of efforts, have not been able to demonstrate acase of deprivation of life or personal liberty of any individual onaccount of any of the impugned executive action. Whereas, it isessential for the petitioners to demonstrate real and directimpact or restriction on their core fundamental rights due to theimpugned executive action to invoke the due process argument.A cause-effect relationship is essential. Only then the burdenwould shift on the State to either show the absence of restrictionsor justification of restrictions within the permissible exceptionsof Part-III. [Para 144][394-E-G]

2.2. judicial review is an exercise in reference to someexisting rights and the reliefs and remedies prayed for. The Ruleof Law, as accepted and settled in India, with regard to judicialinterference in administrative and executive or policy matters isno more res integra. The duty enjoined upon the judiciary is toensure checks and balances; and to place itself between theGovernment and citizens when they come face to face in Courtof law. It is meant to act as an equaliser and ensure that the flowof decisions from executive to citizens is overseen through theprism of well-established principles, as and when called upon todo so. The judicial organ is not meant to impose the citizens’ oreven its own version of good governance upon the Governmentin the name of Rule of Law in exercise of its power of judicialreview. [Para 145][394-H; 395-A-C]

2.3. In India, what prevails is the “constitutional dueprocess” i.e., the process which is due under the constitutionalscheme. And what is due, is principled judicial review wherein

Aa “check” is maintainable without tilting the “balance”. For, allorgans of the state are constitutionally committed to and beholdenby the common goal of giving effect to processes and procedureestablished by law, ideals, expectations, rights and duties dueunder the Constitution and no deviation can be permittedtherefrom. [Para 158][405-A-C]B

3. In democracy, the electors repose their faith in theelected Government which is accountable to the legislature andexpect it to adopt the best possible course of action in publicinterest. Thus, an elected Government is the repository of publicfaith in matters of development. Some section of the public/Ccitizens may have another view point if not complete disagreementwith the course of action perceived by the elected Government,but then, the dispensation of judicial review cannot be resortedto by the aggrieved/dissenting section for vindication of their pointof view until and unless it is demonstrated that the proposedDaction is in breach of procedure established by law or in givencase, colourable exercise of powers of the Government.Therefore, it is important for the Courts to remain alive to all theattending circumstances and not interfere merely because anotheroption as in the perception of the aggrieved/dissenting sectionof public would have been better option. [Para 163][406-H; 407-

4.1. The Courts do not sit in appeal over the decisions ofthe Government to do merit review of the subjective decision assuch. The Government may examine advantages or disadvantagesof policy at its own end, it may or may not achieve the desiredFobjective. The Government is entitled to commit errors orachieve successes in policy matters as long as constitutionalprinciples are not violated in the process. It is not the Court’sconcern to enquire into the priorities of an elected Government.Judicial review is never meant to venture into the mind of theGGovernment and thereby examine validity of decision. [Paras164 and 165][407-C; 408-B-C]

4.2. Judicial review primarily involves review of Stateaction – legislative, executive, administrative and policy. Theprimary examination in review of legislative action is theHexistence of power with the legislature to legislate on particular

subject matter. For this purpose, doctrines of pith and substance,harmonious construction, territorial nexus etc. are often resortedto. Once the existence of power is not in dispute, it is essentiallyan enquiry under Article 13 of the Constitution which enjoins theState to not violate any of the provisions of Part-III in lawmakingfunction. The review of executive action would depend upon theprecise nature of the action. For, the domain of executive is wideand is generally understood to take within its sweep all residuaryfunctions of the State. Thus, the precise scope of review woulddepend on the decision and the subject matter. For instance, anaction taken under statute must be in accordance with the statuteand would be checked on the anvil of ultra vires the statutory orconstitutional parameters. The enquiry must also ensure that theexecutive action is within the scope of executive powersearmarked for State Governments and Union Governmentrespectively in the constitutional scheme. The scope of reviewof pure administrative action is well settled. Since generallyindividuals are directly involved in such action, the Court concernsitself with the sacred principles of natural justice – audi altrempartem, speaking orders, absence of bias etc. The enquiry is alsoinformed by the Wednesbury principles of unreasonableness. Thereview of policy decision entails limited enquiry. Secondguessing by the Court or substitution of judicial opinion on whatwould constitute better policy is strictly excluded from thepurview of this enquiry. Under the constitutional scheme, thegovernment/executive is vested with the resources to undertakenecessary research, studies, dialogue and expert consultationand accordingly, pure policy decision is not interfered with inan ordinary manner. The burden is heavy to demonstrate amanifest illegality or arbitrariness or procedural lapses in theculmination of the policy decision. However, the underlying featureof protection of fundamental rights guaranteed by the Constitutionmust inform all enquiries of State action by the constitutional Court.[Para 167][410-D-H; 411-A-B]

5.1. Constitutionalism is relative concept which envisagesa constitutional order wherein powers and limits on the exerciseof those powers are duly acknowledged. It is tool which is usedto reach upto the ultimate goal of constitutionalization of

Agovernance and it cannot be deployed to present an alternativemodel of governance. It would not only be absurd but also fraughtwith dangers of overreach and ambiguity if subjective principlesof interpretation are applied by detaching them from the textualscheme of the Constitution, particularly when the textual schemelays down an elaborate structure of administration. For, to do soBwould be to drag duly elected Government on the edges as itwould be under constant fear of being adjudged wrong on thebasis of undefined principles which appeal to “three gentlemenor five gentlemen sitting as Court”. And what will suffer is publicinterest in the form of public exchequer including sovereignty ofCthe nation. [Para 170][412-C-F]

5.2. The principle of constitutionalism is work in progresswhich is meant to infuse life and blood into an existing schemewhich has stood the test of constitutional validity and not to nudgewith the scheme itself. It may only be deployed to evolve minimumDstandards of procedures prescribed by law. It is not to undermineor supplant the elaborate statutory regulatory schemes. [Para172][413-A-B]

6.1. holistic understanding of the dispensation envisagedunder our Constitution would reveal that we are representativeEdemocracy with strong elements of participatory democracyembedded in it. The element of participation, however, isregulated not only by statutes but also by the Constitution. TheConstitution, if it would have envisaged every important decisionto be flowing from the public in the manner proposed by thepetitioners, would have clearly provided for that dispensation. ItFhas not. Understood thus, the Constitution in our system playstwin role – first, Constitution as the guardian of fundamental rightsand second, Constitution as the structure of governance. [Para183][421-C-D]

6.2. The principle of participatory democracy has twoGintegral elements – first, public participation in decision makingand second, placing information regarding Government actionsin public domain. The first element, no matter how desirable, iscarefully circumscribed by the state of Rule of Law or procedureestablished by law, as present, and fine balance has been struckHbetween need for public participation and effective functioning of

administration. The legislature has expressly provided for suchpublic participation and the extent thereof in the governingenactments.[Para 184][421-E-F]

6.3. The participation itself involves three features – thestage, the extent and the nature of participation. The extent andquality of permissible participation is dependent upon multitudeof factors including, but not limited to, the stage of procedure,nature of subject matter, number of affected persons, localconditions, geography, strategic importance of project, budgetaryallocations for the project etc. The subject matter of adevelopment project having no direct bearing on lives andlivelihoods cannot be equated with project which has directimpact upon their lives and livelihoods. [Para 185][421-F-G]

6.4. Pertinently, this exercise cannot be undertaken inabstractness merely because participation is one of the facets ofa democratic structure. Rather, it involves delicate analysis of acomplex web of factors. Whether in given case personal oralhearing is to be provisioned for or mere representations beinvited or public discussion is called for, is matter for thelegislature to make law in that regard. [Para 186][422-B]

6.5. One may very well have our own notion of participationand it could be radically different from the prescribed one. It maybe possible that some people feel unheard in direct manner,however, democracy, in an ultimate analysis, is about prevalenceof collective wisdom of citizens, which may or may not commendto individual wisdom of few. The citizens are completely free toadvocate any notion along the Government policy or the mannerof making it in their free exercise of right to speech andexpression, but enforcement of such notion cannot be fructifiedby resorting to judicial review. The idea of public involvement inadministrative matters is based upon the stage and extent ofrepresentation prescribed by the legislature. No country with asizeable population like ours can give promise of directparticipation to every individual in the decision-making process(of the Government) in administrative matters unless the law soprescribes. [Paras 187 and 188][422-C-F]

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A6.6. However, it must be borne in mind that such publicparticipation is not to supplant the discretion of the Governmentor to retard the development work. It is only for invitingconstructive suggestions/objections from all stakeholders foreffective implementation of the policy of the Government, tosubserve public interest. [Para 189][422-F-G]B

6.7. The prosaic, bland, inapplicable metaphysical principlesof constitutional theory, imported from foreign jurisdictions,cannot create an extra-constitutional standard of judicial reviewor to extend involvement of public at every level of governanceabsent any statutory regime in that regard. Thus, the scope ofCpublic involvement in Government processes is matterdependent on legal framework of country and the Court shouldbe loath to venture into that area in the guise of eminence of theproject under consideration. [Para 191][426-A-B]

6.8. The other facet of participatory democracy is disclosureDof information in public domain about the actions of Government.The petitioners’ argument is that for effective participation, thecitizens must know what they are participating in and why. Thismerits consideration. For, unless complete and relevantinformation about Government decision is placed in publicEdomain, the public would be ill-equipped to engage with theGovernment in meaningful manner. In democracy, disclosureof full information is empowerment and acts as an enabler formeaningful participation. Granting open access to information alsosecures the goal of transparency to which all public institutionsare wedded. It is right to say that the Right to Information Act,F2005 has empowered the citizen to obtain information from theGovernment but it would be absolutely untenable to say that thereis no duty on the Government to be open. In democratic setupwhere the citizen has entrusted abundant governance to theGovernment, it is bounden obligation of the Government to keepGthe citizens well informed about its actions, as prudent trusteewould. [Paras 193 and 194][428-C-D; 431-C]

6.9. The idea of political justice is not constrained to anorthodox understanding of democratic form of Government.We are in an information age and political justice would be

incomplete without informational justice which essentiallyrequires the decision makers to consider the subjects of theirdecisions as rightful recipients of all information that may havean impact on their lives. Furthermore, open availability ofinformation would also advance the objective of education andempowerment. Article 51(h) provides for the fundamental duty“to develop the scientific temper, humanism and the spirit ofinquiry and reform”. The furtherance of spirit of inquiry andreform is largely dependent on the availability of information. Itis nothing but duty which enjoins the citizens to participate ingood governance. Notably, the respondents in the present casehave recognised the importance of openness and have placedelaborate data to demonstrate how all steps of the project includingall permissions, orders, invitations, approvals etc. were madeavailable for direct public access online from time to time at theearliest available opportunity. [Paras 196 and 197][431-H; 432-A-D]

7. In the present case, the petitioners enthusiastically calledupon this Court to venture into territories that are way beyondthe contemplated powers of constitutional court. No doubt, theCourts are repositories of immense public trust and the fact thatsome public interest actions have generated commendable resultsis noteworthy, but it is equally important to realise that Courtsoperate within the boundaries defined by the Constitution. TheCourt cannot be called upon to govern. For, the court has nowherewithal or prowess and expertise in that regard. [Para420][595-E; 595-G-H; 596-A]8. The constitutionally envisaged system of “checks andbalances” has been completely misconstrued and misapplied inthis case. The principle of “checks and balances” posits twoconcepts - “check” and “balance”. Whereas the former finds amanifestation in the concept of judicial review, the latter is derivedfrom the well enshrined principle of separation of powers. Thepolitical issues including regarding development policies of theGovernment of the day must be debated in the Parliament, towhich it is accountable. The role of Court is limited to examiningthe constitutionality including legality of the policy andGovernment actions. The right to development is basic humanright and no organ of the State is expected to become an

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Aimpediment in the process of development as long as thegovernment proceeds in accordance with law. [Para 421][596-B-D]

9. In conclusion, it is declared and directed as follows:

(i) There is no infirmity in the grant of: (a) “No Objection”Bby the Central Vista Committee (CVC); (b) “Approval” by theDelhi Urban Art Commission (DUAC) as per the DUAC Act, 1973;and (c) “Prior approval” by the Heritage Conservation Committee(HCC) under clause 1.12 of the Building Byelaws for Delhi, 2016.

(ii) Further, the exercise of power by the CentralCGovernment under Section 11A(2) of the DDA Act, 1957 is justand proper and thus the modifications regarding change in landuse of plot Nos. 2 to 8 in the Master Plan of Delhi, 2021/ZonalDevelopment Plan for Zone-D and Zone-C vide impugnednotification dated 20.3.2020 stands confirmed.

D(iii) The recommendation of Environmental Clearance (EC)by Expert Appraisal Committee (EAC) and grant thereof by MoEFis just, proper and in accordance with law including the 2006Notification. The same along with appropriate directions thereinare upheld to ensure that the highlighted mitigating measuresare followed by the project proponent in their letter and spirit.

(iv) The project proponent may set up smog tower(s) ofadequate capacity, as being integral part of the new Parliamentbuilding project; and additionally, use smog guns at theconstruction site throughout the construction phase is in progresson the site.F

(v) The respondent MoEF to consider issuing similargeneral directions regarding installation of adequate capacity ofsmog tower(s) as integral part in all future major developmentprojects whilst granting development permissions, particularlyin cities with bad track record of air quality - be it relating toGGovernment buildings, townships or other private projects ofsimilar scale and magnitude, including to use smog guns duringthe construction activity of the Project is in progress.

(vi) The stage of prior permission under clause 1.3 of theBuilding Bye Laws of the Heritage Conservation CommitteeH(HCC), is the stage of actual development/redevelopment etc.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY &ORS.

work is to commence and not the incipient stage of planning andformalisation of the Project.

Accordingly, the respondents shall obtain aforementionedprior permission of the designated Authority before actuallystarting any development/redevelopment work on the statedplots/structures/precincts governed by the heritage laws includingon plot No. 118, if already not obtained.

(vii) The selection/appointment of Consultant, in light ofthe limited examination warranted in this case, is held to be justand proper. [Para 423][596-F-H; 597-A-H; 598-A]

Lal Bahadur v. State of Uttar Pradesh & Ors. (2018)15 SCC 407; Bangalore Medical Trust v. B.S.Muddappa & Ors. (1991) 4 SCC 54 : [1991] 3 SCR 102 ; R.K. Mittal & Ors. v. State of Uttar Pradesh &Ors. (2012) 2 SCC 232 : [2011] 15 SCR 877; MunicipalCorporation of Greater Mumbai & Ors. v. HiramanSitaram Deorukhar & Ors. (2019) 14 SCC 411; GoelGanga Developers India Private Limited v. Union ofIndia Through Secretary, Ministry of Environment andForests & Ors. (2018) 18 SCC 257; Union of India &Anr. v. Cynamide India Ltd. & Anr. (1987) 2 SCC 720;Shri Sitaram Sugar Company Limited & Anr. v. Unionof India & Ors. (1990) 3 SCC 223 : [1990] 1 SCR 909;State of Punjab v. Tehal Singh & Ors. (2002) 2 SCC 7:[2002] 1 SCR 27; Pune Municipal Corporation & Anr.v. Promoters and Builders Association & Anr. (2004)10 SCC 796 : [2004] 2 Suppl. SCR 207; TransmissionCorporation of Andhra Pradesh Limited & Anr. v. SaiRenewable Power Private Limited & Ors. (2011) 11 SCC34 : [2010] 8 SCR 636; Tulsipur Sugar Co. Ltd. v. theNotified Area Committee, Tulsipur (1980) 2 SCC 295 :[1980] 2 SCR 1111; Sundarjas Kanyalal Bhatija & Ors.v. Collector, Thane, Maharahstra & Ors. (1989) 3 SCC396 : [1989] 3 SCR 405 ; Bangalore DevelopmentAuthority v. Aircraft Employees’ Cooperative SocietyLimited & Ors. (2012) 3 SCC 442 : [2012] 4 SCR 881;Chairman, Indore Vikas Pradhikaran v. Pure IndustrialCoke & Chemicals Ltd. & Ors. (2007) 8 SCC 705 :

[2007] 6 SCR 799; M.C. Mehta v. Union of India &Ors.(2019) 12 SCC 720;Automotive TyreManufacturers Association v. Designated Authority &Ors. (2011) 2 SCC 258 : [2011] 1 SCR 198; State ofU.P. & Ors. v. Maharaja Dharmander Prasad Singh &Ors. (1989) 2 SCC 505 : [1989] 1 SCR 176; ArunaRoy & Ors. v. Union of India & Ors. (2002) 7 SCC368: [2002] 2 Suppl. SCR 266; Travancore Rayon Ltd.v. Union of India (1969) 3 SCC 868 : [1970] 3 SCR 40;Hanuman Laxman Aroskar v. Union of India (2019) 15SCC 401 : [2019] 5 SCR 916; Rajendra ShankarShukla & Ors. v. State of Chhattisgarh & Ors. (2015)10 SCC 400 : [2015] 11 SCR 723; S.N. Chandrashekar& Anr. v. State of Karnataka & Ors. (2006) 3 SCC 208: [2006] 1 SCR 1039; Virender Gaur & Ors. v. State ofHaryana & Ors. (1995) 2 SCC 577 : [1994] 6 Suppl. SCR 78; Inderpreet Singh Kahlon & Ors. v. State ofPunjab & Ors. (2006) 11 SCC 356: [2006] 1 Suppl.SCR 772;Bahadursinh Lakhubhai Gohil v.Jagdishbhai M. Kamalia & Ors. (2004) 2 SCC 65 :[2003] 6 Suppl. SCR 1023; National BuildingsConstruction Corporation v. S. Raghunathan & Ors.(1998) 7 SCC 66: [1998] 1 Suppl. SCR 156; R.S. Gargv. State of U.P. & Ors. (2006) 6 SCC 430 : [2006] 4Suppl. SCR 120; Council of Architecture v. MukeshGoyal & Ors. 2020 SCC Online SC 329; MaharashtraState Board of Secondary and Higher SecondaryEducation v. K.S. Gandhi & Ors. (1991) 2 SCC 716 :[1991] 1 SCR 772 ; Alaknanda Hydropower CompanyLimited v. Anuj Joshi & Ors. (2014) 1 SCC 769 : [2013]11 SCR 784; Vellore Citizens’ Welfare Forum v. Unionof India & Ors. (1996) 5 SCC 647: [1996] 5 Suppl.SCR 241; A.P. Pollution Control Board II v. Prof. M.V.Nayudu (Retd.) & Ors. (2001) 2 SCC 62 : [2000] 5Suppl. SCR 249 ; Lafarge Umiam Mining PrivateLimited v. Union of India (UOI) & Ors. (2011) 7 SCC338: [2011] 7 SCR 954; Keystone Realtors PrivateLimited v. Anil V. Tharthare & Ors. (2020) 2 SCC 66 :[2019] 17 SCR 539; Bengaluru Development Authorityv. Sudhakar Hegde & Ors. 2020 SCC Online SC 328;Intellectuals Forum, Tirupathi v. State of A.P. & Ors.(2006) 3 SCC 549 : [2006] 2 SCR 419; Common Causev. Union of India & Ors. (2017) 9 SCC 499 : [2017] 13SCR 361; State of Madhya Pradesh & Anr. v. ThakurBharat Singh AIR 1967 SC 1170 : [1967] 2 SCR 454;K.S. Puttaswamy (Retired) & Anr. (II) v. Union of India& Anr. (2019) 1 SCC 1 : [2018] 8 SCR 1; Internet andMobile Association of India v. Reserve Bank of India(2020) 10 SCC 274 : [2020] 2 SCR 297; CellularOperators Association of India & Ors. v. TelecomRegulatory Authority of India & Ors. (2016) 7 SCC703 : [2016] 9 SCR 1; K.S. Puttaswamy & Anr. (I) v.Union of India & Ors. (2017) 10 SCC 1 : [2017] 10SCR 569; State of U.P. v. Raj Narain & Ors. (1975) 4SCC 428: [1975] 3 SCR 333; Reliance PetrochemicalsLtd. v. Proprietors of Indian Express Newspapers,Bombay Pvt. Ltd. and Ors. (1988) 4 SCC 592 : [1988]3 Suppl. SCR 212; M.C. Mehta v. Kamal Nath & Ors.(1997) 1 SCC 388 : [1996] 10 Suppl. SCR 12; I.R.Coelho (Dead) by LRs v. State of T.N. (2007) 2 SCC 1: [2007] 1 SCR 706 ; Government (NCT of Delhi) v.Union of India & Anr. (2018) 8 SCC 501 : [2018] 7SCR 1; Lok Prahari Through its General Secretary v.State of Uttar Pradesh & Ors. (2018) 6 SCC 1 : [2018]6 SCR 1076 ; Rajeev Mankotia v. Secretary to thePresident of India & Ors. (1997) 10 SCC 441 : [1997]3 SCR 421; Sushanta Tagore & Ors. v. Union of India& Ors. (2005) 3 SCC 16 : [2005] 2 SCR 502; K.Guruprasad Rao v. State of Karnataka & Ors. (2013)8 SCC 418 : [2013] 11 SCR 581; Manohar Joshi v.State of Maharashtra & Ors. (2012) 3 SCC 619; PublicInterest Foundation & Ors. v. Union of India & Anr.(2019) 3 SCC 224; Brajendra Singh Yambem v. Unionof India & Anr. (2016) 9 SCC 20 : [2016] 6 SCR 333;Hindustan Construction Company Limited & Anr. v.Union of India & Ors. 2019 SCC Online SC 1520;State of Punjab & Anr. v. Khan Chand (1974) 1 SCC549 : [1974] 2 SCR 768; Shayara Bano v. Union of

India & Ors. (2017) 9 SCC 1: [2017] 9 SCR 797;Natural Resources Allocation, In re, Special ReferenceNo. 1 of 2012 (2012) 10 SCC 1 : [2012] 9 SCR 311;Manoj Narula v. Union of India (2014) 9 SCC 1 :[2014] 9 SCR 965; Global Energy Limited & Anr. v.Central Electricity Regulatory Commission (2009) 15SCC 570: [2009] 9 SCR 22; Sakal Papers (P) Ltd. &Ors. v. Union of India AIR 1962 SC 305 : [1962] 3SCR 842; Bennett Coleman & Co. & Ors. v. Union ofIndia & Ors. (1972) 2 SCC 788 : [1973] 2 SCR 757;Union of India & Ors. v. Motion Picture Association &Ors. (1999) 6 SCC 150: [1999] 3 SCR 875; LifeInsurance Corporation of India v. Prof. Manubhai D.Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; Secretary,Ministry of Information & Broadcasting, Govt. of India& Ors. v. Cricket Association of Bengal & Ors. (1995)2 SCC 161: [1995] 1 SCR 1036 ; ChandramouleshwarPrasad v. Patna High Court & Ors. (1969) 3 SCC 56 :[1970] 2 SCR 666; Orissa Mining Corporation Limitedv. Ministry of Environment & Forests & Ors. (2013) 6SCC 476 : [2013] 6 SCR 881; Archaeological Surveyof India v. Narender Anand & Ors. (2012) 2 SCC 562: [2012] 1 SCR 260; Nagar Nigam, Meerut v. Al FaheemMeat Exports Pvt. Ltd. & Ors. (2006) 13 SCC 382 :[2006] 10 Suppl. SCR 354; Dutta Associates Pvt. Ltd.v. Indo Merchantiles Pvt. Ltd. & Ors. (1997) 1 SCC 53: [1996] 8 Suppl. SCR 710; Meerut DevelopmentAuthority v. Association of Management Studies & Anr.(2009) 6 SCC 171 : [2009] 6 SCR 663; Manohar LalSharma v. Principal Secretary & Ors. (2014) 9 SCC516 : [2014] 8 SCR 446; Radha Krishna Agarwal &Ors. v. State of Bihar & Ors. (1977) 3 SCC 457 : [1977]3 SCR 249 ; Uttar Pradesh Avas Evam Vikas Parishad& Ors. v. Om Prakash Sharma (2013) 5 SCC 182:[2013] 6 SCR 199; Akhil Bhartiya Upbhokta Congressv. State of Madhya Pradesh & Ors. (2011) 5 SCC 29 :[2011] 5 SCR 77; Harminder Singh Arora v. Union ofIndia & Ors. (1986) 3 SCC 247 : [1986] 3 SCR 63;Jagdish Mandal v. State of Orissa & Ors. (2007) 14SCC 517 : [2006] 10 Suppl. SCR 606; RamanaDayaram Shetty v. International Airport Authority ofIndia & Ors. (1979) 3 SCC 489 : [1979] 3 SCR 1014;Sunil Batra v. Delhi Administration (1978) 4 SCC 494: [1979] 1 SCR 392; Rajbala & Ors. v. State of Haryana& Ors.(2016) 1 SCC 463 : [2015] 9 SCR 113;Keshavan Madhava Menon v. State of Bombay AIR1951 SC 128 : [1951] 0 SCR 228; Narmada BachaoAndolan v. Union of India & Ors. (2000) 10 SCC 664: [2000] 4 Suppl. SCR 94; Shimnit Utsch India PrivateLimited & Anr. v. West Bengal Transport InfrastructureDevelopment Corporation Limited & Ors. (2010) 6 SCC303 : [2010] 6 SCR 1110; State of Madhya Pradesh v.Narmada Bachao Andolan & Anr. (2011) 7 SCC 639 :[2011] 6 SCR 443; Directorate of Film Festivals & Ors.v. Gaurav Ashwin Jain & Ors. (2007) 4 SCC 737 :[2007] 5 SCR 7; State of Kerala v. Joseph Antony (1994)1 SCC 301 : [1993] 3 Suppl. SCR 531; G. Sundarrajanv. Union of India & Ors. (2013) 6 SCC 620 : [2013] 8SCR 631; University of Mysore v. C.D. Govinda Rao& Anr. [1964] 4 SCR 575; Tata Iron & Steel Co. Ltd. v.Union of India & Anr. (1996) 9 SCC 709 : [1996] 3Suppl. SCR 808; Federation of Railway OfficersAssociation & Ors. v. Union of India (2003) 4 SCC289 : [2003] 2 SCR 1085; Avishek Goenka v. Union ofIndia & Anr. (2012) 5 SCC 275 : [2012] 5 SCR 547;Dental Council of India v. Subharti K.K.B. CharitableTrust & Anr. (2001) 5 SCC 486 : [2001] 3 SCR 149;Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors. (2010) 8SCC 372 : [2010] 9 SCR 227; K.T. Plantation PrivateLimited & Anr. v. State of Karntaka (2011) 9 SCC 1 :[2011]13 SCR 636; Rohit Dhupar & Ors. v. Lt.Governor & Ors. (2009) SCC Online Del 487; CanaraBank v. V.K. Awasthy (2005) 6 SCC 321 : [2005] 3SCR 81; Haryana Financial Corporation & Anr. v.Kailash Chandra Ahuja (2008) 9 SCC 31 : [2008] 10SCR 222; Punjab National Bank & Ors. v. ManjeetSingh & Anr. (2006) 8 SCC 647 : [2006] 6 Suppl.SCR 825; Karnataka State Road Transport Corporation

& Anr. v. S.G. Kotturappa & Anr. (2005) 3 SCC 409 :[2005] 2 SCR 520; Viveka Nand Sethi v. Chairman,J&K Bank Ltd. & Ors. (2005) 5 SCC 337 : [2005] 3SCR 1095; Ranjan Kumar Mitra v. Andrew Yule & Co.Ltd. & Ors. (1997) 10 SCC 386; Jagjit Singh v. State ofHaryana & Ors. (2006) 11 SCC 1 : [2006] 10 Suppl.SCR 521; Chairman, Board of Mining Examination andChief Inspector of Mines v. Ramjee (1977) 2 SCC 256: [1977] 2 SCR 904; Sohan Lal Gupta (Dead) throughLRs. & Ors. v. Asha Devi Gupta & Ors. (2003) 7 SCC492 : [2003] 3 Suppl. SCR 249; Major G.S. Sodhi v.Union of India (1991) 2 SCC 382; Bhim Sen & Ors. v.State of Punjab AIR 1951 SC 481: [1952] SCR 18;Barium Chemicals Ltd. & Anr. v. Company Law Board& Ors. AIR 1967 SC 295: [1966] Suppl. SCR 311;Rohtas Industries v. S.D. Agarwal & Ors. (1969) 1 SCC325 : [1969] 3 SCR 108; M. Jhangir Bhatusha & Ors.v. Union of India & Ors. (1989) 2 Suppl. SCC 201 :[1989] 3 SCR 356; Haryana Financial Corporation &Anr. v. Jagdamba Oil Mills & Anr. (2002) 3 SCC 496 :[2002] 1 SCR 621; Puranlal Lakhanpal v. President ofIndia & Ors. AIR 1961 SC 1519 : [1962] 1 SCR 688;Union of India & Ors. v. E.G. Nambudiri AIR 1991 SC1216 : [1991] 2 SCR 451; Mahabir Jute Mills Ltd.,Gorakhpore v. Shibban Lal Saxena & Ors. (1975) 2SCC 818 : [1976] 1 SCR 168; Sarat Kumar Dash andOrs. v. Biswajit Patnaik and Ors. (1995) 1 Suppl. SCC434 : [1994] 5 Suppl. SCR 223; Dr. Ashwani Kumar v.Union of India & Anr. 2019 SCC Online SC 1144; R.K.Garg v. Union of India & Ors. (1981) 4 SCC 675 :[1982] 1 SCR 947; Premium Granites & Anr. v. State ofT.N. & Ors. (1994) 2 SCC 691 : [1994] 1 SCR 579;Delhi Science Forum v. Union of India (1996) 2 SC405 : [1996] 2 SCR 767 ; BALCO Employees’ Union(Regd.) v. Union of India & Ors. (2002) 2 SCC 333 :[2001] 5 Suppl. SCR 511; G.B. Mahajan & Ors. v.Jalgaon Municipal Council & Ors. (1991) 3 SCC 91 :[1990] 3 Suppl. SCR 20; Indira Nehru Gandhi v. RajNarain (1975) 1 Suppl. SCC : [1975] Suppl. SCC 1;State of Karnataka v. Union of India & Anr. (1977) 4SCC 608 : [1978] 2 SCR 1; Kuldip Nayar & Ors. v.Union of India & Ors. (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Ashoka Kumar Thakur v. Union of India &Ors. (2008) 6 SCC 1 : [2008] 4 SCR 1; Supreme CourtAdvocates-on-Record Association & Anr. v. Union ofIndia (2016) 5 SCC 1 : [2015] 13 SCR 1; IndianRailway Construction Company Ltd. v. Ajay Kumar(2003) 4 SCC 579 : [2003] 2 SCR 387; AsiaFoundation & Construction Ltd. v. Trafalgar HouseConstruction (I) Ltd. and Others (1997) 1 SCC 738 :[1996] 10 Suppl. SCR 209; Reliance Airport Developers(P) Ltd. v. Airports Authority of India & Ors. (2006) 10SCC 1: [2006] 8 Suppl. SCR 398; Himachal PradeshHousing and Urban Development Authority v.Universal Estate & Anr. (2010) 14 SCC 253; VillianurIyarkkai Padukappu Maiyam v. Union of India & Ors.(2009) 7 SCC 561: [2009] 9 SCR 225; Centre forPublic Interest Litigation & Anr. v. Union of India &Ors. (2000) 8 SCC 606; Sterlite Industries (India)Limited & Ors. v. Union of India & Ors. (2013) 4 SCC575 : [2013] 6 SCR 573; Municipal Corporation,Ujjain & Anr. v. BVG India Limited & Ors. (2018) 5SCC 462 : [2018] 6 SCR 861; N.D. Jayal & Anr. v.Union of India & Ors. (2004) 9 SCC 362 : [2003] 3Suppl. SCR 152; Kharak Singh v. State of U.P. & Ors.AIR 1963 SC 1295 : [1964] 1 SCR 332; Satwant SinghSawhney v. D. Ramarathnam, Assistant Passport Officer,New Delhi & Ors. AIR 1967 SC 1836: [1967] 2SCR 525; Rustom Cavasjee Cooper v. Union of India(1970) 1 SCC 248 : [1970] 3 SCR 530; ManekaGandhi v. Union of India & Anr. AIR 1978 SC 597 :[1978] 2 SCR 621; Bachan Singh v. State of Punjab(1980) 2 SCC 684 : [1996] 3 SCR 721; State of A.P. &Ors. v. McDowell & Company & Ors. (1996) 3 SCC709; Mohd. Arif alias Ashfaq v. Registrar, SupremeCourt of India & Ors. (2014) 9 SCC 737: [2014] 11SCR 1009; Swiss Ribbons Private Limited & Anr. v.Union of India & Ors. (2019) 4 SCC 17 : [2019] 3

SCR 535; Kesavananda Bharati Sripadagalvaru v.State of Kerala & Anr. (1973) 4 SCC 225 : [1973] Suppl.SCR 1; Peerless General Finance and Investment Co.Limited & Anr. v. Reserve Bank of India (1992) 2 SCC343 : [1992] 1 SCR 406; Daroga Singh & Ors. v. B.K.Pandey (2004) 5 SCC 26 : [2004] 1 Suppl. SCR 113;Syed Hasan Rasul Numa & Ors. v. Union of India &Ors. (1991) 1 SCC 401 : [1990] 3 Suppl. SCR 165;Mackinonn Mackenzie & Company Limited v.Mackinnon Mackenzie Employees Union (2015) 4 SCC544 : [2015] 4 SCR 45; Babu Verghese & Ors. v. BarCouncil of Kerala & Ors. (1999) 3 SCC 422 : [1999] 1SCR 1121; State of Uttar Pradesh v. Singhara Singh &Ors. AIR 1964 SC 358; Kedar Nath Yadav v. State ofWest Bengal & Ors. (2017) 11 SCC 601 : [2016] 11SCR 263; Khub Chand & Ors. v. State of Rajasthan &Ors. AIR 1967 SC 1074 : [1967] 1 SCR 120; Mithu v.State of Punjab (1983) 2 SCC 277 : [1983] 2 SCR 690; Rajbala and Ors. v. State of Haryana and Ors.(2016) 2 SCC 445 : [2015] 12 SCR 1106; Tata Cellularv. Union of India (1994) 6 SCC 651: [1994] 2 Suppl. SCR 122; Bhanumati and Ors. v. State of Uttar Pradesh& Ors. (2010) 12 SCC 1 : [2010] 7 SCR 585; K.Krishna Murthy and Ors. v. Union of India (UOI) andAnr. (2010) 7 SCC 202 : [2010] 6 SCR 972; MohinderSingh Gill and Anr. v. Chief Election Commissioner, NewDelhi and Ors. (1978) 1 SCC 405 : [1978] 2 SCR 272;Janhit Manch and Anr. v. The State of Maharashtraand Ors. (2019) 2 SCC 505 : [2018] 14 SCR 860; S.P.Gupta & Ors. v. President of India & Ors. AIR 1982SC 149 : [1982] 2 SCR 365; R.K. Jain v. Union of India(1993) 4 SCC 119 : [1993] 3 SCR 802; Central PublicInformation Officer, Supreme Court of India v. SubhashChandra Agarwal (2020) 5 SCC 481 : [2019] 16SCR 424; T.S.R. Subramanian and Ors. v. Union ofIndia and Ors. (2013) 15 SCC 732 : [2013] 11SCR 991; Anjali Bhardwaj and Ors. v. Union of Indiaand Ors. 2019 (3) SCALE 447; RaghunathraoGanpatrao v. Union of India AIR 1993 SC 1267: [1993]1 SCR 480; Machavarapu Srinivasa Rao & Anr. v.Vijayawada, Guntur, Tenali, Mangalagiri UrbanDevelopment Authority & Ors. (2011) 12 SCC 154 :[2011] 12 SCR 639; Prabhakar v. Joint Director,Sericulture Department and Anr. (2015) 15 SCC 1 :[2015] 9 SCR 890; Superintendent and Remembrancerof Legal Affairs, West Bengal v. Corporation of CalcuttaAIR 1967 SC 997 : [1967] 2 SCR 170; State Bank ofPatiala & Ors. v. S.K. Sharma (1996) 3 SCC 364 :[1996] 3 SCR 972; Secretary, Andhra Pradesh SocialWelfare Residential Educational Institutions v. PindigaSridhar & Ors. (2007) 13 SCC 352 : [2007] 4 SCR 145;Lachmi Narain and Ors. v. Union of India & Ors. (1976)2 SCC 953: [1976] 2 SCR785; Ganesh Bank ofKurundwad Ltd. & Ors. v. Union of India & Ors. (2006)10 SCC 645 : [2006] 5 Suppl. SCR 437; PunjabCommunications Ltd. v. Union of India & Ors. (1999) 4SCC 727 : [1999] 2 SCR 1033; Union of India & Ors.v. Hindustan Development Corporation & Ors. (1993)3 SCC 499 : [1993] 3 SCR 128; Ram Pravesh Singh& Ors. v. State of Bihar & Ors. (2006) 8 SCC 381 :[2006] 6 Suppl. SCR 512; Col. A.S. Sangwan v. Unionof India & Ors. 1980 Supp. SCC 559; Secretary,Ministry of Chemicals and Fertilizers, Government ofIndia v. Cipla Ltd. & Ors. (2003) 7 SCC 1 : [2003] 2Suppl. SCR 177; Sooraram Pratap Reddy & Ors. v.District Collector, Ranga Reddy Distt. & Ors. (2008) 9SCC 552 : [2008] 13 SCR 126; Michigan Rubber(India) Limited v. State of Karnataka and Ors. (2012) 8SCC 216 : [2012] 8 SCR 128 and Kalpana Mehta &Ors. v. Union of India & Ors (2018) 7 SCC 1 : [2018]4 SCR 1 – referred to.

Utkarsh Mandal v. Union of India 2009 SCC OnlineDel 3836; T. Muruganandam v. Ministry of Environment& Forests Manu/GT/0135/2014 (NGT decision dated10.11.2014 in Appeal No. 50/2012); Sunil Kumar Chugh& Ors. v. Secretary, Environment Department,Government of Maharashtra & Ors. MANU/GT/0153/

2015 [Appeal No. 66 of 2014 decided on 3.9.2015;Samata & Anr. v. Union of India & Ors. 2013 SCCOnline NGT 101; Sarpanch, Grampanchayat, Tiroda,Tal. Sawantwadi, District Sindhudurg, Maharashtra &Ors. v. Ministry of Environment & Forests & Ors. 2011SCC Online NGT 10; M/s. Lithoferro & Ors. v. Ministryof Environment and Forests (2013) SCC OnlineNGT 40; S. Rama Rao & Ors. v. Jawaharlal NehruTechnological University, Hyderabad & Anr. 1977 SCCOnline AP 27; Aircel Cellular Ltd. v. Union of India2016 SCC Online Mad 8463; Friends of RajouriGarden Environment & Anr. v. South Delhi MunicipalCorporation 2020 SCC Online Del 458 – referred to.

Illinois Central Railroad Co. v. People of the State ofIllinois [146 US 387 : 36 L Ed 1018 (1892)] DemocraticAlliance & Anr. v. Masondo NO & Anr. 2003 (2) BCLR128 (CC); Matatiele Municipality & Ors. v. Presidentof the Republic of South Africa & Ors. 2007 (1) BCLR47 (CC); South African Veterinary Association v.Speaker of the National Assembly & Ors. 2019 (2)BCLR 273 (CC); Law Society Case of Kenya v. AttorneyGeneral & Ors. [Decision of Court of Appeal, Kenyain Civil Appeal No. 96 of 2014 decided on 27.9.2019];Council of Civil Service Unions v. Minister for the CivilService 1984 (3) All ER 935; Associated ProvincialPicture Houses Ltd. v. Wednesbury Corporation (1947)2 All ER 680; R v. Secretary of State for the HomeDepartment, Ex Parte Daly [2001] 3 All ER 433; Regina(Mahmood) v. Secretary of State for the HomeDepartment [2001] 1 WLR 840; Huang & Ors. v.Secretary of State for the Home Department [2005] 3All ER 435; Lochner v. New York 198 U.S. 45 (1905);New State Ice Co. v. Liebmann 285 U.S. 262; West CoastHotel Co. v. Parrish 300 U.S. 379 (1937); United Statesv. Carolene Products Co. 304 U.S. 144 (1938); AmericanFederation of Labor Et. Al. v. American Sash & DoorCo. 335 U.S. 538 (1949); Ferguson, Attorney Generalof Kansas, Et. Al. v. Skrupa 372 U.S. 726 (1963); Wolfv. Colorado 338 U.S. 25 (1949); Legg & Ors. v. InnerLondon Education Authority [1972] 1 WLR 1245;Bishop v. Wood 426 U.S. 341 (1976); Arnett, Director,Office of Economic Opportunity, Et. Al. v. Kennedy Et.Al. 416 U.S. 134 (1974); Board of Regents of StateColleges Et. Al. v. Roth 408 U.S. 564 (1972); ChiefConstable of the North Wales Police v. Evans [1982] 1WLR 1155; Morey, Auditor of Public Accounts ofIllinois Et. Al. v. Doud Et. Al. 354 US 457 (1957); King& Ors. v. Attorneys Fidelity Fund Board of Control &Anr. 2006 (4) BCLR 462; Ethyl Corporation v. EPA426 U.S. 941 (1977) : 541 F.2d 1 (1977); Doctors forLife International v. Speaker of the National Assembly& Ors. 2006 (12) BCLR 1399; Kiambu CountyGovernment & Ors. v. Robert N. Gakuru & Ors[Decision of Court of Appeal, Kenya in Civil AppealNo. 200 of 2014 decided on 30.6.2017]; Lonrho Plc v.Secretary of State for Trade and Industry & Anr. [1989]2 All ER 609 and R. v. Ministry of Defence, Ex p. Murray[1998] COD 134 (QBD) – referred to.

Constituent Assembly Debates Vol. I, VIII, IX and XI;T.R.S. Allan, Constitutional Justice, Oxford UniversityPress (Edn. 2001) pg. 1; Duke Law Journal, Vol. 1977,No. 2, Eighth Annual Administrative Law Issue (May,1977), pp. 453-488; The Nature of the Judicial Process,Benjamin Cardozo, New Haven: Yale University Press,13th Edn. 1946 pg. 141; Administrative Law, 5th Edn.,Thomson Sweet and Maxwell, pg. 440; Dictionary ofEnvironment & Ecology Dictionary of Environment &Ecology, Bloomsbury, P.H. Collin, 5th Edn., page 116;“Implementing the Right to Development InternationalLaw and Sustainable Development – Principles andPractice, Edn. 2004, pg. 354; Professor Schotland D.C.Circuit Judicial Conference, Environmental Protection:Law and Policy, 2nd Edn., pg. 122; LandscapeArchitecture Magazine, Frederick SteinerandJohnRoberts Prospect: Public Trust Doctrine, LandscapeArchitecture Magazine, May/June, 1986, Vol. 76, pg.

A132 and “Charting the Boundaries of Hawaii’sExtensive Public Trust Doctrine Post Waiâhole DitchCharting the Boundaries of Hawaii’s Extensive PublicTrust Doctrine Post-Waiâhole Ditch, Ana Ching, Page2 – referred to.

BPer Sanjiv Khanna, J. (partly dissenting) (Minorityjudgment)

HELD:1. This separate dissenting judgment is on accountof difference with the opinion expressed by A.M. Khanwilkar, J.on the aspects of public participation on interpretation of theCstatutory provisions, failure to take prior approval of the HeritageConservation Committee and the order passed by the ExpertAppraisal Committee. However on the aspects of Notice invitingBid, award of consultancy and the order of the Urban ArtsCommission, as standalone and independent order, there is nodisagreement with the final conclusions in the judgment authoredDby A.M. Khanwilkar, J. [Para 3][599-D-E]

2.1. Gunning principles, first established in 1985, can becrystallised as under: (a) consultation must occur when theproposals are still at formative stage; (b) the proponent mustgive sufficient reasons for the proposal that permit intelligentEconsideration and response; (c) adequate time must be given forconsideration and response; and (d) the product of consultationmust be conscientiously taken into account in finalising anystatutory proposals. These principles reflect the basicrequirements essential if the public consultation process is to beFsensible and meaningful. They would normally form the basis andfoundation for proper application of the duty to consult and rightto be consulted. Nevertheless, these principles should not beput in strait-jacket and the degree of application would dependupon the factual matrix and is situation specific. [Para 25][639-D-G]G2.2. Sections 7 to 11-A of the Delhi Development Act, 1957decree detailed procedure for preparation of Master Plan andthe Zonal Development Plan(s) including direction that theAuthority shall prepare draft and make copy available forinspection to general public and invite objections and suggestionsH

from any person. Gunning principles can be substantially read asresonating in Sections 10, 11 and 11-A of the Development Actand Rules 4, 8, 9 and 10 of the Delhi Development (Master Planand Zonal Development Plan) Rules, 1959. To ignore their salutarymandate as to the manner and nature of consultation in theparticipatory exercise, would be defeat the benefic objective ofexercise of deliberation. Public participation to be fruitful andconstructive is not to be mechanical exercise or formality, itmust comply with the least and basic requirements. Thus, mereuploading of the gazette notification giving the present and theproposed land use with plot numbers was not sufficientcompliance, but rather an exercise violating the express as wellas implied stipulations, that is, necessity and requirement to makeadequate and intelligible disclosure. This condition also flowsfrom the common law general duty of procedural fairness.Doctrine of procedural legitimate expectation as explained belowwould be attracted. Intelligible and adequate disclosure ofinformation in the context of the Development Act and theDevelopment Rules means and refers to the degree to whichinformation should be available to public to enable them to havean informed voice in the deliberative decision making legislativeexercise before final decision is taken on the proposals. In thepresent matter this lapse and failure was acknowledged andaccepted by the Board of Enquiry and Hearing (BoEH), whichhad recommended disclosure and furnishing of details. Intelligibleand adequate disclosure was critical given the nature of theproposals which would affect the iconic and historical CentralVista. The citizenry clearly had the right to know intelligible detailsexplaining the proposal to participate and express themselves,give suggestions and submit objections. The proposed changes,unlike policy decisions, would be largely irreversible. Physicalconstruction or demolition once done, cannot be undone orcorrected for future by repeal, amendment or modification as incase of most policies or even enactments. They have far morepermanent consequences. It was therefore necessary for therespondents to inform and put in public domain theredevelopment plan, layouts, etc. with justification and explanatorymemorandum relating to the need and necessity, with studiesand reports. Of particular importance is whether by the changes,

Athe access of the common people to the green and other areas inthe Central Vista would be curtailed/restricted and the visual andintegrity impact, and proposed change in use of the iconic andheritage buildings. [Paras 27, 28][641-A-B; 642-A-H]

3. In the context of the present case, given the nature andBimportance the statutory provisions which emphasise on fairparticipation of the public in the deliberations, and the importanceand significance of Central Vista, it would not be appropriate andcorrect to ignore failure on the part of the respondents to ascribeto the principle of intelligible and adequate disclosure to fulfilthe requirement of public participation. Right to make objectionsCand suggestions in the true sense, would include right tointelligible and adequate information regarding the proposal.Formative and constructive participation forms the very fulcrumof the legislative scheme prescribed by the Development Actand the Development Rules. Every effort must be made toDeffectuate and actualise the participatory rights to the maximumextent, rather than read them down as mere irregularity or dilutethem as unnecessary or not mandated. [Para 37][649-F-H; 650-A-B]4. The Central Government has not placed on record evenEa single document or minutes to show that the objections andsuggestions were considered by the Central Government. [Para51][662-D-E]

5. The core issue in the present case is whether or not therespondents have performed their duty to consult the public,Ffollowed the prescribed procedure and the authority competenthad acted to modify/amend, in terms of the Delhi DevelopmentAct, 1957 and the Delhi Development (Master Plan and ZonalDevelopment Plan) Rules, 1959. Merits of the public policy isnot per se dispute being decided by the Court. [Para 55][671-E; 672-C]G

6. It is well-settled proposition that where power is givento do certain thing in certain way, then the thing must be donein that way or not at all. Other methods of performance arenecessarily forbidden. When the statute prescribes particularact must be done by following particular procedure, the act mustHbe done in that manner or not at all. The Technical Committee of

the Authority in its meeting held on 5th December, 2019 whileexamining the proposal had, inter alia, stated that steps would betaken to seek approval of the Heritage Conservation Committee.However Heritage Conservation Committee was never movedto secure approval/permission. No approval/permission has beentaken. [Paras 71, 72][688-F; 689-A-B]

7. Respondents raised two other defences. First, theconstruction of the new Parliament being on vacant plot adjacentto the existing Parliament building does not require approval/noobjection from the Heritage Conservation Committee. Thiscontention according to the petitioners is fallacious as it iscontrary to the statutory Master Plan of Delhi and the UnifiedBuilding Bye-Laws. They rely on the definition assigned to theterm ‘heritage building’, which ‘includes such portion of landadjoining such building and part thereof as may be required forfencing or covering or in any manner preserving the historicaland/or architectural and/or aesthetic and/or cultural value of suchbuilding’. However, the respondents should have moved andasked for clarification from the Heritage ConservationCommittee. Further, if the interpretation as put forward by therespondents, including the NDMC, is to be accepted, then as asequitur it follows that construction or development can takeplace in vacant plot adjacent to or adjoining the Grade-I building.This interpretation appears unacceptable as it is contrary to theexpress stipulations in the Master Plan and the Unified BuildingBye-Laws. It would also lead to unintended consequences andwould be incompatible with the purpose and objective of thesetwo legislations, relevant principle when one interpretsprovisions in case of doubt or ambiguity. This is tentative view,as it is for the Heritage Conservation Committee to opine on‘includes such portion of land adjoining such building and partthereof as may be required for fencing or covering or in anymanner preserving the historical and/or architectural and/oraesthetic and/or cultural value of such building’. [Para 74][689-H; 690-A-E]

8. Central Government could not have notified the modifiedthe land use changes, without following the procedure and withoutprior approval/permission from the Heritage Conservation

ACommittee. Further, the local body is expressly interdicted fromissuing building permits in respect of the listed heritage buildings/precincts. The local body i.e. NDMC should have approachedthe Heritage Conservation Committee for clarification/confirmation and proceed on their advice. [Para 75][690-G-H;691-A]B

9. The Expert Appraisal Committee (EAC) [which carriedout the entire decision making process in the build-up to theissuance of the Environmental Clearance] proceeded to imposeas many as fifteen conditions including those relating to otherclearances which would be required, like clearance from DelhiCPollution Control Committee under the Air and Water PollutionAct, provision for adequate fire safety measures, etc. What is ofconcern is lack of discussion, reasons or even the conclusion orfinding on the aspect of slicing or inclusion. Proceedings beforethe EAC are not adversarial in nature. EAC acts both as fairDinvestigator and an independent objective adjudicator whendeciding whether or not to grant environmental clearance. Theremust be application of mind which is reflected when reasonsjustifying the conclusion are recorded. Mere reproduction of thecontesting stands is not sufficient. On the contrary it would reflectmechanical grant without application of mind. Further, it is notEfor the court/appellate forum to assume what weighed, whetherthe conclusion relies on material which is relevant, irrelevant orpartly relevant, or whether the decision is partly based onsurmises and conjectures and partly on evidence. [Paras 89,90][703-F-G; 704-C-E]F10. It was argued that the relevant clause of the

F10. It was argued that the relevant clause of theEnvironmental Impact Assessment (EIA) Notification of 2006does not require giving of reasons when environment clearanceis granted. However, the apprising body, which includes EAC aswell as the Ministry, has to make categorical recommendationsto the regulatory authority either for grant of clearance orGrejection, together with reasons for the same. Further, the orderspassed by the EAC are appealable before the National GreenTribunal. Appellate forum would not be able to decipher andadjudicate unless reasons are set out and stated in the orderunder challenge. The whole purpose of outsourcing the task toHEAC, comprised of experts and specialists, is to have proper

evaluation on the basis of some objective criteria. EAC is bodythat has to apply its collective mind and not to record conclusions.It must justify and give basis for its conclusions. [Para 92][706-D-E; 707-C-D]

11. There are complex and esoteric issues which have tobe at first stage considered and decided by the specialisedauthorities like the Heritage Conservation Committee. If themerits of the pleas is considered and examined, it would be adirect encroachment on their jurisdiction and exceeding the powerof judicial review. It is the reasoning and discussion in the ordersby the statutory /quasi-judicial that are subjected to judicialscrutiny and review. Further, matters pertaining to heritage,architectural, functionality etc are for the experts and specialistsin the field like Architects, town planers, historians, urbanists,engineers etc. to examine and guide. The respondents withoutdoubt do verily believe that redevelopment of Central Vista andnew Parliament building is an imperative necessity. Central Vistarequires makeover. The hutments and some of the non-heritagebuildings like Shashtri Bhawan, Nirman Bhawan, Udyog Bhawanetc. which it is stated occupy more than 90 acres of land requirere-development. Similarly, if new parliament building is requiredand being must, it should be constructed. Several former andthe present Speaker have expressed the need for constructionof new Parliament. Some of the petitioners do not oppose partialand regulated redevelopment for functionality, while maintainingand preserving the heritage, ethos and visual look. Central Vistaand Parliament House is an heritage and belongs to the Nationand the people. Their primary grievance is lack of informationand details. They submit that experts and specialists can provideacceptable solutions to conserve and make historical buildingsfunctional, as it has happened elsewhere. The issues raised bythe petitioners along with the stand of the respondents have tobe taken into consideration by the statutory authorities in termsof and as per the statutory mandate. Ultimately, the issue has tobe decided as per law after ascertain details by professionalexperts. [Para 96][711-D-H; 712-A-C]

12. While setting aside and quashing the final notificationof modification/change of the land use dated 28th March 2020 inrespect of the 6 plots in the Central Vista, it is directed as under:

AA) The Central Government/Authority would put on publicdomain on the web, intelligible and adequate informationalong with drawings, layout plans, with explanatorymemorandum etc. within period of 7 days.

B) Public Advertisement on the website of the AuthorityBand the Central Government along with appropriatepublication in the print media would be made within 7 days.

C) Anyone desirous of filing suggestions/objections maydo so within 4 weeks from the date of publication.Objections/ suggestions can be sent by email or to the postalCaddress which would be indicated/mentioned in the publicnotice.

D) The public notice would also notify the date, time andplace when public hearing, which would be given by theHeritage Conservation Committee to the persons desirousDof appearing before the said Committee. No adjournmentor request for postponement would be entertained.However, the Heritage Conservation Committee may ifrequired fix additional date for hearing.

E) Objections/suggestions received by the Authority alongwith the records of BoEH and other records would be sentEto the Heritage Conservation Committee. These objectionsetc. would also be taken into consideration while decidingthe question of approval/permission.

F) Heritage Conservation Committee would decide allFcontentions in accordance with the Unified Building ByeLaws and the Master Plan of Delhi.

G) Heritage Conservation Committee would be at libertyto also undertake the public participation exercise if it feelsappropriate and necessary in terms of paragraph 1.3 orother paragraphs of the Unified Building Bye Laws forGconsultation, hearing etc. It would also examine the disputeregarding the boundaries of the Central Vista Precincts atRajpath.

H) The report of the Heritage Conservation Committeewould be then along with the records sent to the CentralH

Government, which would then pass an order in accordancewith law and in terms of Section 11A of the DevelopmentAct and applicable Development Rules, read with theUnified Building Bye-laws.

I) Heritage Conservation Committee would alsosimultaneously examine the issue of grant of priorpermission/approval in respect of building/permit of newparliament on Plot No. 118. However, its final decision oroutcome will be communicated to the local body viz.,NDMC, after and only if, the modifications in the masterplan were notified.

J) Heritage Conservation Committee would pass aspeaking order setting out reasons for the conclusions.[Para 97][712-C-H; 713-A-G]

13. The order of the EAC dated 22nd April, 2020 and theenvironment clearance by the Ministry of Environment and Forestdated 17th June, 2020 are set aside, and an order of remit to theEAC passed with request that they may decide the question onenvironment clearance within period of 30 days from the datecopy of this order received, without awaiting the decision on thequestion of change/modification of land use. [Para 98][713-G-H;714-A]

All India Recruitment Board and Another v. K. ShyamKumar and Others (2010) 6 SCC 614 : [2010] 6SCR 291; Anuradha Bhasin v. Union of India (2020) 3SCC 637; Modern Dental College and Research Centrev. State of Madhya Pradesh and Others (2016) 7 SCC353 : [2016] 3 SCR 579; K.S. Puttaswamy (Aadhaar-5J) (2019) 1 SCC 1 : [2018] 8 SCR 1; Gwalior RayonSilk Mfg. Co. Ltd. v. Assistant Commissioner of SaleTax (1974) 4 SCC 98 : [1974] 2 SCR 879; In Re.: TheDelhi Laws Act. AIR 1951 SC 332: [1951] SCR 747;Indian Express Newspapers v. Union of India (1985) 1SCC 641 : [1985] 2 SCR 287; Kerala Samsthana ChetuThozhilali Union v. State of Kerala & Ors. (2006) 4SCC 327 : [2006] 3 SCR 420; Ispat Industries Limitedv. Commissioner of Customs (2006) 12 SCC 583: [2006] 6 Suppl. SCR 733;Union of India

v. Cynamide India Ltd., (1987) 2 SCC 720 : [1987] 2SCR 841; Pune Municipal Corporation v. Promotersand Builders’ Association (2004) 10 SC 796 : [2004] 2Suppl. SCR 207; State of U.P. and Others v. RenusagarPower Co. and Others (1988) 4 SCC 59; [1988] 1 Suppl. SCR 627; Cellular Operators Association of India andOthers v. Telecom Regulatory Authority of India andOthers (2016) 7 SCC 703 : [ 2016] 9 SCR 1; State ofU.P. v. Raj Narain (1975) 4 SCC 428 : [1975]3 SCR 333; Secretary, Ministry of Information &Broadcasting v. Cricket Association of Bengal (1995)2 SCC 161 : [1995] 1 SCR 1036;ReliancePetrochemicals Ltd. v. Proprietors of Indian ExpressNewspapers, Bombay Pvt. Ltd. (1988) 4 SCC 592;People’s Union for Civil Liberties v. Union of India(2004) 2 SCC 476: [2004] 1 SCR 232; Central Boardof Secondary Education v. Aditya Bandopadhyay(2011) 8 SCC 497 : [2011] 11 SCR 1028; Raza BulandSugar Co. Ltd. v. Municipal Board, Rampur AIR 1965SC 895; [1965] SCR 970 ; Lachmi Narain v. Unionof India (1976) SCC 2 953 : [1979] 1 SCR 845;Harvinder Singh and Others v. State of Punjab (1979)1 SCC 137 : [1979] 1 SCR 845; Rajasthan State RoadTransport Corporation v. Bal Mukund Bairwa (2009)4 SCC 299 : [2009] 2 SCR 161; Annamalai Universityv. Secretary to Government, Information and TourismDepartment (2009) 4 SCC 590 : [2009] 3 SCR 355;M.C. Mehta v. Union of India (2019) 12 SCC 720; R.K.Mittal v. State of Uttar Pradesh (2012) 2 SCC 232: [2011] 15 SCR 877; Rajendra Shankar Shukla v. Stateof Chhattisgarh (2015) 10 SCC 400 : [2015] 11SCR 723; Indore Development Authority v. Madan Lal(1990) 2 SCC 334; Syed Hasan Rasul Numa v. Unionof India (1991) 1 SCC 401: [1990] 3 Suppl. SCR 165; State of U.P. v. Manbodhan Lal Srivastava AIR1957 SC 912: [1958] SCR 533; State of U.P. v. BabuRam Upadhyay AIR 1961 SC 751: [1961] SCR 679 ;Superintendent and Legal Remembrancer, State of WestBengal v. Corporation of Calcutta AIR 1967 SC 997 :

[1967] SCR 170; Kamla Prasad Khetan v. Union ofIndia AIR 1957 SC 676 : [1957] SCR 1052; ScheduledCaste and Weaker Sections Welfare Association v. Stateof Karnataka (1991) 2 SCC 604 : [1991] 1 SCR 974;State of Jharkhand v. Brahmputra Metallics Limited 2020 (12) JT 78; Parinder Singh v. Union of India(2016) 9 SCC 20 : [2016] 6 SCR 333; Public InterestFoundation v. Union of India (2019) 3 SCC 224; DhaniSugar and Chemicals Ltd. v. Union of India (2019) 5SCC 480 : [2019] 6 SCR 307; Bengaluru DevelopmentAuthority v. Sudhakar Hegde (2019) 15 SCC 401 :[2019] 5 SCR 916; Dheeraj Lal and Girdhari Lal v.Commissioner of Income Tax AIR 1955 SC 271; S.N.Mukharji v. Union of India AIR 1990 SC 1984: [1990]1 Suppl. SCR 44;Siemens Engineering &Manufacturing Co. of India Ltd. v. Union of India andAnother (1976) 2 SCC 981: [1976] Suppl. SCR 489;Chairman, Disciplinary Authority, Rani Lakshmi BaiKshetriya Gramin Bank v. Jagdish Chand Varshney(2009) 4 SCC 240: [2009] 5 SCR 326; Commissionerof Income Tax v.Walchand and Co. Pvt. Ltd. AIR 1967SC 1435 :[1967] SCR 214; State of Punjab v. BhagSingh (2004) 1 SCC 547 : [ 2003] 6 Suppl. SCR 904;India Hanuman Laxman Aroskar v. Union of India(2019) 15 SCC 401 : [2019] 5 SCR 916 and LokPrahari v. State of U.P. (2018) 6 SCC 1:[2018] 6SCR 1076 – referred to.

Bhausaheb Tavanappa Mahajan v. State ofMaharashtra AIR 1982 Bom 284 and Gau RaxaHitraxak Manch v. Union of India (2013) SCC OnlineNGT 85 – referred to.

Montral Street Railway Company v. Normandin AIR1917 PC 142 and Nazeer Ahmed v. King Emperor AIR1936 PC 253 – referred to.

Associated Provincial Picture Houses v. WednesburyCorporation 1947 (2) All ER 680 (CA); R. Oakes 19861 SCR 103 [Decision of Canadian Supreme Court];Mixnam’s Properties Ltd. v. Chertsey Urban District

318SUPREME COURT REPORTS

ACouncil (1632) 2 All ER 787; Kruse v. Johnson 1898,Divisional Court; R (Moseley) v. London Borough ofHaringey (2014) UKSC 56; R v. Brent London BoroughCouncil, ex parte Gunning (1985) 84 LGR 168; StephenViera v. London Borough of Camden (2012) EWHC287; R. v. North and East Devon Health Authority, ex pBCoughlan 2001 QB 213 : (2000) 2 WLR 622 (CA);Regina v. Secretary of State for Social Services 1986WLR Vol. 1 pg. 1; Doctors for Life International v.Speaker of the National Assembly 2006 (12) BCLR1399 [Decision of Constitutional Court of SouthCAfrica]; R (Bhatt Murphy) and Others v. IndependentAssessor (2008) EWCA Civ 755; R (Majid) v. LondonBorough of Camden 2009 EWC Civ 1029; R (Kelly) v.London Borough of Hounston 2010 EWHC Civ 1256;R (on the application of Vieira) v. London Borough ofCamden 2012 EWHC 287 – referred to.D

Case Law Reference

In the judgment of A.M. Khanwilkar, J.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY &ORS.

320SUPREME COURT REPORTS

[2021] 15 S.C.R.

322SUPREME COURT REPORTS

[2021] 15 S.C.R.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY &ORS.

324SUPREME COURT REPORTS

[2021] 15 S.C.R.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY &ORS.

[1985] 2 SCR 287 [2006] 3 SCR 420 [2006] 6 Suppl. SCR 733 [1987] 2 SCR 841 [2004] 2 Suppl. SCR 207 [1988] 1 Suppl. SCR 627 [2016] 9 SCR 1 [1975] 3 SCR 333 [1995] 1 SCR 1036(1988) 4 SCC 592[2004] 1 SCR 232 [2011] 11 SCR 1028 [1965] SCR 970 [1979] 1 SCR 845 [1979] 1 SCR 845 [2009] 2 SCR 161 [2009] 3 SCR 355(2019) 12 SCC 720[2011] 15 SCR 877 [2015] 11 SCR 723 (1990) 2 SCC 334[1990] 3 Suppl. SCR 165 [1958] SCR 533 [1961] SCR 679 [1967] SCR 170 [1957] SCR 1052 [1991] 1 SCR 974 2020 (12) JT 78

referred to

Para 11

referred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred toreferred to

Para 11

Para 13

Para 14Para 14Para 15Para 17Para 18Para 18Para 18Para 18Para 19Para 20Para 21Para 23Para 27Para 27Para 30Para 31Para 32Para 33Para 34Para 35Para 35Para 53(b)Para 53(c)Para 53(c)Para 53(e)

DCIVIL ORIGINAL JURISDICTION : Transferred Case (Civil)No. 229 of 2020.From the Judgment and Order dated 28.02.2020 of the High Courtof Delhi at New Delhi in LPA No. 119 of 2020.

WithE

Transferred Case (Civil) No. 230 Of 2020, Civil Appeal No. 12Of 2021, Writ Petition (Civil) No. 510, 638, 681, 845, 853, 922 And 1041of 2020.

Mr. Tushar Mehta, SG , Sanjay R. Hegde, Shyam Divan, RajivBansal, Harish N. Salve, Sr. Advs., Shikhil Suri, Shiv Kumar Suri, Ms.FMadhu Suri, Ms. Shilpa Saini, Ms. Shweta Saini, Ms. Nikita Thapar, Ms.Vinishma Kaul, Ankit Yadav, Anshuman Srivastava, Rohan Pratap Talwar,Ms. Sugandha Yadav, Ms. Ria Singh Sawhney, Ms. Sanam Tripathi,Bhav Ratan, Ms. Vrinda Bhandari, Gautam Bhatia, Ms. Sanam Tripathi,Shadan Farasat, Bharat Gupta, Gurmeet Singh Makker, Kanu Agarwal,GAshok Panigrahi, Ms. Garima Prasad, G.S. Oberoi, Rajat Nair, KanuAgarwal, Raj Bahadur Yadav, Yoginder Handoo, Ms. Ruby Singh Ahuja,Ms. Deepti Sarin, Ms. Tahira Karanjawala, Anupm Prakash, M/s.Karanjawala & Co., Saurabh Mishra, Onkar Singh, Arun Verma, Ms.Neha Tripathi, Chirag M. Shroff, Ms. Sanjana Nangia, Ms. AbhilashaBharti, Anshuman Srivastava, Advs. for the appearing parties.H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY &ORS.

The Judgments of the Court were delivered byA. M. KHANWILKAR, J.

*Ed. Note: Pagination is as per the original judgment.

AINTRODUCTION

1. By these petition(s)/appeal(s)/case(s), we are called upon bythe petitioners to undertake comprehensive and heightened judicialscrutiny regarding the permissibility of the Central Vista Project[1] of theGovernment of India. Diverse issues concerning the decisions taken byBthe statutory Authorities including regarding the change in land use, grantof statutory and other permissions, environmental as well as heritageclearances etc., have been raised in these proceedings. The challengeis premised on high principles of democratic values as applicable in Indiaand not limited to mere infringement of statutory provisions of thegoverning enactments. That is on account of the nature of project –Cbeing of high political significance and eminence for our democraticrepublic; and for upholding the “Rule of Law”, which is on higherpedestal than the governance by “Rule by Law”.

OBJECTIVES OF THE PROJECT

2. As per the policy documents, the need for the development ofthe Project is rooted in the creation of larger working space for efficientfunctioning of the highest legislative wing of the country and for integratedadministrative block for Ministries/Departments presently spread out atdifferent locations including on rental basis.

E3. The Parliament House building, Grade-I heritage structure,was commissioned in 1927 and stands as 93 years old structure today.The structure has been subjected to various modifications in the post-independence period so as to maintain its functionality as per changingrequirements. Post 1971 census wherein the total population of Indiawas recorded as 548,159,6521, the number of seats for the House ofFPeople was fixed at 545. Today, the population has spiralled exponentiallyand is stated to have crossed the 130-crore mark. The next delimitationexercise, proposed to take place in 2026, is bound to result in substantialincrease in the total number of seats in both the Houses. Accordingly,enhanced and commensurate spatial requirements ought to be in place.

4. The present Central Hall has seating capacity of only 440persons. That already falls short of the present need to accommodatemembers of both Houses together during joint session. Presently, thereis no scope to expand the existing Central Hall. Resultantly, the JointSessions of both the Houses of Parliament are conducted by way of

H1 For short, “the Project”

makeshift arrangement in the Central Hall causing inconvenience to themembers attending official functions thereat, apart from underminingtheir dignity. Furthermore, the structure falls short of fire, water andelectrical safety norms and poses grave security risk for the legislatorsand secretariat staff.

5. In order to address the concerns stated above, the CentralGovernment decided to construct new Parliament building with afuturistic approach and the House of People being 3 times the size of thepresent chamber. That along with the present Parliament building andAnnexe attached therewith, would be referred to as the ParliamentComplex. It is further proposed that all the 51 Ministries of the CentralGovernment be housed in 10 buildings within an integrated complexmarked with underground transit connectivity and structural identity.Expressing the need for urgent completion of the project, it has beenstated that the new Parliament shall symbolize the 75[th] IndependenceDay of the country in 2022 as well as the Global G-20 Summit to behosted by India in the same year. The objectives, as stated in the writtensubmissions of the respondents, succinctly read thus:

“(i)A new Parliament Building with space and technology tomeet the present and emerging needs of vibrant Indiandemocracy.

(ii)Common Central Secretariat with all Ministries in singlelocation for efficiency and synergy in functioning.

(iii)Central Vista to be redeveloped as world class publicspace and venue for national and international events.”

6. Similar structural defects, along with acute shortage of officespaces, have been pointed out in the offices of various Ministriespresently spread across 47 buildings in the Central Vista region and inparticular, Central Secretariat block. It is stated that various buildingshousing the Ministries, including North Block and South Block, are ill-equipped to meet even the basic fire and earthquake safety norms andrequire regular upgradations involving recurring expenses to the tune ofRs.50 crores annually. As per Non-Availability Certificates (NACs)issued by Directorate of Estate, shortage of 3.8 lakh sq.m. of officespace has been flagged. To add to this state of affairs, the CentralGovernment is spending an amount equivalent to about Rs.1,000 croreson rental spaces to accommodate the offices of various Ministriesannually. The proposal states thus:

A“Most of the buildings in the Central Vista area are more than 40-50 years old and have either outlived or approaching their structurallives. Further buildings constructed over 100 years ago such asNorth and South Block are not earthquake safe. There is shortageof working spaces, parking amenities and services. The spread ofCentral Government Ministries and Departments in differentBlocations leads to inefficiencies and difficulty in coordination.”7. Upon examination of other documents associated with theProject, the objectives for redeveloping/constructing the existing CentralSecretariat have been broadly summed up thus:

C(i)Even after 73 years of independence, the nation does nothave common secretariat building. Some Ministries arehoused in Central Vista complex while some Ministries arehoused in other parts of Delhi;

(ii)Various Ministries, due to lack of available space, have hiredDpremises on rent and till date most of the rent paid for andon behalf of the Central Government for using its Ministriesin Delhi runs into thousands of crores;

(iii)Except North Block and South Block and one or two otherbuildings, rest of the buildings are not heritage buildings andEare constructed in the near vicinity based upon the need;

(iv)Most of the existing buildings have outlived its structurallife and are not earthquake resistant;

(v)As there is no common Central Secretariat and Ministriesare spread over different locations, the resultant effect isFadministrative inefficiency and difficulty in inter-departmental coordination;

(vi)This also leads to travelling, resulting into traffic congestionand pollution;

(vii)Existing secretariat buildings spread all over haphazardly,Gsuffering from poor servicing, inefficient use of land,inadequate facilities and outdated infrastructure;

(viii) There are six plots on Central Vista, which houses temporarybarracks or stable building during 2[nd] World War occupying90 acres of land, which has remained underutilised;H

(ix)To utilise the underutilised spaces in the Central Vista region;(x)Integrated functioning of all offices of the CentralGovernment;

(xi)Modernisation of Government work spaces for enhancedproductivity and efficient management of human resources;

(xi)To promote the concept of green buildings commensuratewith scientific standards and sustainable with the needs offuture generations; and

(xiii) To connect all the ministerial offices through an undergroundshuttle transportation system for smooth performance ofroutine administrative functions.

8. As regards the decision to supplement the existing Parliamentbuilding (on plot No. 116 admeasuring 10.75 acres having built-up area44940 sq. mts.) with utilities constructed on plot No. 118 admeasuring10.5 acres having built-up area of 5200 sq. mts. which is not heritagebuilding/site; has been felt necessary because:

(i)The existing Parliament House was constructed during 1921-1927;

(ii)The building was constructed prior to independence to housethe Imperial Legislative Council and was never intended tohouse bicameral national legislature;

(iii)2 floors were added to this structure in 1956 as per thedemand for more space;

(iv)Periodically ad-hoc additions have taken place in this buildingas per the requirement of the day, which has added to anadditional stress on the heritage structure;

(v)The building is not designed as per the fire norms;

(vi)Water supply lines and sewer lines are installed in ahaphazard manner, leading to seepage and destroying theheritage nature of the building;

(vii)These systems like audio-video system, A/c system etc.are later additions and were installed in various stages onan ad-hoc basis;

332SUPREME COURT REPORTS

A(viii) By 2026, the number of seats in Lok Sabha would increasefrom 545. Both Lok Sabha and Rajya Sabha are packedand would have no capacity for addition of seats when thenumber of seats would increase;

(ix)To prepare the Houses of Parliament for emerging spatialBrequirements in light of the impending delimitation exercise.

(x)In the Central Hall of the Parliament, the seating capacityis only for 440 persons. Whenever constitutional jointsessions are held, large number of temporary seats areplaced in the aisles, undermining the dignity of this greatdemocratic institutions;C

(xi)The cramped seating arrangement both for members ofthe House and the staff posed serious security risk incase of either any fire hazard or any external attack requiringquick evacuation. The existing Parliament is not built fromthe earthquake resistant point of view;D

(xii)Concerns about these factors have been raised periodicallyby the Speaker of the Lok Sabha and Chairman of the RajyaSabha in past.

(xiii) To ensure modern and technologically advanced spacefor single and joint sittings of the Houses of ParliamentEcommensurate with modern safety norms; and

(xiv) To preserve the built heritage by not undertaking aggressivereconstruction activity on graded heritage structures onwhich only minimum renovation measures are permissiblein law.F

9. Before we begin the discussion, we deem it fit to observe thatthe proposal, as far as change in land use is concerned, comprises ofseven plots falling in the central vista region – Plots no. 2[2] (or Plot No.118 – New Parliament Building), 3, 4, 5, 6, 7 and 8. The terms “centralvista region or area” and “central vista precincts”, as used at variousGplaces in the judgment, are not interchangeable. Whereas the centralvista region broadly refers to the entire region as per the master plan,central vista precincts refers to the “Central Vista Precincts at Rajpath”as per the list of 141 heritage buildings/precincts. The subject plots, except

2 For short, “plot no. 2" or “plot no. 118"H

plot no. 3, fall in the central vista region and not in the central vistaprecincts.

10. In constitutional democracy governed by Rule of Law wherediversity of views is both heard and respected; and the principle ofconstitutionalism touches both ends as well as means of accomplishingthe wisest of intentions, every action of the Government, howsoeverlaudable, need not have free flow in its implementation and unless itstands the test of constitutional parameters. In the same vein, thepetitioners herein (claiming to be public spirited persons) have approachedthis Court taking exception to various aspects of the project, includingbut not limited to the manner and procedure adopted for effecting theproposed changes in the central vista precincts. Our examination flowsfrom such objections which have been presented to us in this set ofcases.

PROCEEDINGS AND CONTENTIONS OF THEPARTIES

11. After objections to the proposed change in land use werereceived by the Delhi Development Authority[3] and public hearings wereconducted thereagainst, the petitioners approached the High Court ofDelhi[4] for challenging the Public Notice dated 21.12.2019 in W.P. (C)No. 1568 of 2020. The learned single Judge of High Court, vide orderdated 11.2.2020, directed the respondents to inform the Court beforetaking any step in furtherance of the impugned public notice. The relevantextract of the order reads thus:

“20. In case, decision is taken to notify the proposed changes inMPD 2020-21, the DDA will approach the court before notifyingsuch decision.”

12. The respondent Union of India took exception to the aforesaidorder by filing L.P.A. No. 119 of 2020 before the Division Bench of theHigh Court. The Division Bench ordered an ex-parte stay on the abovedirection of learned single Judge vide order dated 28.2.2020. Anotherwrit petition being W.P. (C) No. 1575 of 2020 was also pending beforethe High Court.

13. Aggrieved by the order of the Division Bench, the petitionersapproached this Court vide S.L.P. (Civil) Diary No. 8430 of 2020 which

3 For short, “DDA” or “the Authority”, as the case may be

4 For short, “the High Court”

[2021] 15 S.C.R.

Aresulted in the withdrawal of the entire subject matter before this Courtin terms of order dated 6.3.2020, which reads thus:

In our opinion, it is just and proper that writ petition itself is heardby this Court instead of examining the grievance about the mannerBin which the interim directions have been passed and then vacatedby the High Court. Indeed, this order is not reflection on theproceedings before the High Court, in any manner, but in largerpublic interest, we deem it appropriate that the entire matterpertaining to challenge pending before the High Court is heardCand decided by this court expeditiously.

We are given to understand that there is one more writ petitionpending before the High Court involving the same issue.Accordingly, Writ Petition Nos. 1568 and 1575 of 2020 pendingbefore the High Court of Delhi shall stand withdrawn to this CourtDand be registered as Transferred Cases, to be heard along withthe present Special Leave Petition on 18.03.2020.

Letters Patent Appeal No. 119 of 2020 before the High Courtstands disposed of in terms of this order.

Any steps taken by the authorities, in the meantime, will be subjectEto the outcome of the proceedings.Liberty is granted to both sides to file additional documents.

The Registry shall forthwith call for the case records of WritPetition Nos. 1568 and 1575 of 2020 from the High Court.”

FThereafter, more petitions were filed and we agreed to hear allpetitions analogously. We deem it apposite to reproduce two other orderspassed in the leading case dated 19.6.2020 and 29.7.2020 respectively.The same read thus:

19.6.2020

G“O R R

We have heard learned counsel for the parties.

Application(s) for amendment of petition(s) are allowedsubject to just exceptions and without prejudice to the contentionsavailable to the respondent(s).H

The petitioner(s) in the respective case(s) to file separatecompilation with index consisting of writ petition memo, asamended, along with annexure(s) thereto, followed by the affidavitsfiled before the Delhi High Court in seriatum. The said compilationwill be used at the time of hearing of the concerned cases. Thecompilation in the respective transferred cases be filed by 23rdJune, 2020 through e-mail/on-line.

Mr. Shikhil Suri, learned counsel for the petitioner(s), hasinformed us that one more petition has been filed in this Courtbeing Writ Petition (C) No.510 of 2020. The said petition shall beheard along with these petitions (transferred cases).

We make it clear that any other petition/proceedingsinstituted or to be filed hereafter by any party concerning thesubject Project, be heard and proceeded along with the presentcases.

The respondent(s) may file consolidated reply on or before3rd July, 2020, which can be placed on record in the respectivetransferred cases/proceedings.

List these matter(s) along with all connected cases on 7thJuly, 2020.”

29.7.2020

Heard learned counsel for the parties on the preliminaryobjection raised by Mr. Shyam Divan, learned senior counselappearing for the applicant(s)-intervenor(s).

In deference to the observations made by the Court, Mr.Shyam Divan submits that he would commend to the applicant(s)in application I.A. No.59230/2020 to file substantive writ petitionchallenging the environmental clearance dated 17.06.2020 by wayof writ petition under Article 32 of the Constitution whilemaintaining the preliminary objection already raised so that allaspects can be considered by the Court at appropriate stage.

Counsel for the respondent(s) and the petitioner(s) have noobjection to take recourse to this option while permitting each ofthem to file response to the proposed writ petition, to be filed by

Athe applicant(s) in I.A. No.59230/2020. As assured by Mr. ShyamDivan, learned senior counsel, the substantive writ petition will befiled within one week from today.

The respondents in the said writ petition to file acomprehensive reply within one week from service of memo ofBwrit petition. Advance copy of the proposed writ petition be servedby the applicant(s) in the office of the Solicitor General throughe-mail/on-line, at the time of filing the same in the Registry.

List the matters at the end of Board in the week commencing17th August, 2020.”

Being mindful of the prevailing state of affairs amidst the pandemic,we refrained from insisting upon technicalities during the course ofhearing and granted complete freedom to the parties, both in terms oftimelines and volume of submissions, to file pleadings, written statementsand documents. We may now advert to the challenge raised by theDpetitioners in the subject petitions.

Civil Appeal No. …......./2021

(Arising out of S.L.P. (C) No.……….2021 @ Diary No. 8430/2020)

14. The appellant (writ petitioners) has challenged the order ofEDivision Bench on the ground that well-considered order of learned singleJudge came to be vacated by the Division Bench without hearing theappellant. This amounted to violation of the basic principles of naturaljustice which required the appellant to be heard before passing an adverseorder. It is further stated that the learned single Judge had asked theFrespondents to file reply to the original writ petition, however, no replywas filed and the Division Bench failed to consider this aspect whilevacating the stay granted by the learned single Judge.

15. In this appeal arising out of special leave petition, the applicants(third parties) filed I.A. No. 59796/2020 praying for recall/modificationGof the order of this Court dated 6.3.2020 whereby the following directionwas issued:

“We make it clear that any other petition/proceedings instituted orto be filed hereafter by any party concerning the subject Project,be heard and proceeded along with the present cases.”

The applicants have contended that the aforesaid direction debarredthe applicants from approaching the National Green Tribunal[5]for theinvocation of their statutory remedy of challenging the grant ofenvironmental clearance[6]. It is submitted that NGT, being an expert bodyequipped with technical members, ought to exercise jurisdiction concerningenvironmental issues in the first place. Hence, the order of this Courtcould not have curtailed the statutory remedies otherwise available tothe applicants. At the conclusion of the hearing of these cases, however,the learned counsel for the applicants had prayed that this application bedisposed of as infructuous.

T.C. (C) NO. 229/2020

(formerly W.P. (C) No. 1568 of 2020 before the High Court ofDelhi)

16. In this petition, originally filed in the High Court under Article226 of the Constitution, the petitioners therein have assailed the publicnotice dated 21.12.2019 and final notification for change in land usedated 20.3.2020. The relevant prayers read thus:

“I. Issue an appropriate writ, order or direction calling for recordsand quashing Public Notice S.O. 4587 dated 21.12.2019, issuedby Respondent No. 1 Delhi Development Authority (DDA); and/

xxxxxxxxx

IV. Issue an appropriate writ, order or direction calling for recordsand quashing Notification S.O. 1192 (E) dated 20.03.2020 issuedby Union of India Represented Through Ministry of Housing andUrban Affairs.”

17. The Land & Development Officer[7], Ministry of Housing andUrban Affairs[8], Government of India, being the land-owning agency ofthe plots, initiated the process of change in land use vide letter no. L&DO/L-IIA/11(1158)/545 dated 4.12.2019 for 8 plots. Plots No. 1 to 7 and 8are in Planning Zone-D and respectively of the central vista area. Thesaid proposal was considered in the Technical Committee Meeting of

5 For short “NGT”.

6 For short, “EC”

7 For short, “the L&DO”

8 For short, “MoHUA”

Athe DDA on 5.12.2019 wherein the proposal was recommended forfurther processing by the Authority. The recommendation reads thus:

“After detailed deliberation, the proposal as contained in Para 4.0of the agenda with the above modification in landuse for Plot No.1 was recommended by the Technical Committee for furtherBprocessing under Section-11A of DD Act, 1957. With the followingconditions:

(i) The clearances from the PMO, Heritage ConservationCommittee and Central Vista Committee shall be taken byL&DO.

C(ii) The heritage buildings shall be dealt as per the relevant heritageprovisions.”

(emphasis supplied)

18. Thereafter, on 11.12.2019, in the meeting of the Authority atDRaj Niwas, Delhi (Lieutenant Governor’s Residence), therecommendations of the Technical Committee were placed forconsideration. The Authority approved the recommendations with adirection for issuing public notice inviting objections/suggestions fromthe public qua the proposed modifications in accordance with Section-11A of the Delhi Development Act, 1957[9]. The decision taken onE11.12.2019 reads thus:

“The proposal contained in the agenda item was approved. Publicnotice inviting objections/suggestions under Section-11A of DDAct, 1957 be issued.”

19. Thereafter, on 21.12.2019, the Authority issued Public NoticeFS.O. 4587 with proposal for the change in land use of Plots No. 1 to8 situated at different direction/location in Zones and and invitingsuggestions/objections from the citizens of the country qua the saidproposal. After public hearing on objections, the matter was consideredby the Authority in its following meeting chaired by Lt. Governor, DelhiGon 10.2.2020. The Board recommended that fresh proposal be initiatedas regards plot no. 1. This recommendation was accepted by theAuthority in the meeting. Thus, plot no. 1 stood excluded from the originalproposal and is not the subject matter of these petitions. As regards plotsno. 2 to 8, the Authority approved the proposal after public consultation

H9 For short, “the 1957 Act”

and the same was finally submitted to the Central Government for issuingthe final notification. On 20.3.2020, the final notification (impugned)was issued by the Central Government notifying the change in land useof plots nos. 2 to 8.

20. To buttress the challenge, the petitioner would assert that thechanges in land use had been proposed without framing an updated ZonalDevelopment Plan[10] for Zone D, as mandated in the Master Plan Delhi,2021[11], and therefore, the changes are not backed by updated informationand empirical data. It is submitted that the respondents relied upon anold ZDP of 2001 for carrying on the changes. Further, in the absence ofan updated plan, an informed decision could not have been taken by therespondents with regard to the proposed changes, more particularlyrelating to standards of population density. It is supplemented by referringto Chapter-16 of the Master Plan which requires comprehensive landuse plan based on current data for undertaking different urban activities,social and physical infrastructure.

21. It is submitted that the proposal issued is ultra vires Section11A of 1957 Act as the Authority had no power to modify the land use ofsubject plots. The argument stems from the understanding that theproposed modifications substantially alter the Master Plan and Section11A(1) prohibits the Authority from undertaking modifications of naturethat effect important alterations in the character of the plan. It is submittedthat the nature of changes proposed could not have been carried forth inthe name of modifications as they were of substantial nature and thus,required fresh Master Plan or amendment to the extant Master Plan.22. Mr. Shikhil Suri, learned counsel for the petitioner has submittedthat since the notice dated 21.12.2019 stood vitiated in terms of theabovementioned submissions, the final notification dated 20.3.2020 isbad and illegal as such notification ought to have preceded by validpublic notice. The petitioner submits that the proposed changes contradictthe Master Plan. An attempt has been made to demonstrate contradictionswithin various chapters of the plan. It is stated that the public noticedoes not advert to Chapter-17 of the Master Plan which provides for a“Development Code” and lays emphasis on the quality of built

10 For short, “ZDP” or “zonal plan”

11 For short, “Master Plan” (Prepared by Delhi Development Authority and approvedby the Central Government under Section 11A(2) of Delhi Development Act 1957 andnotified on 7th February 2007 (The Gazette of India, Extraordinary, Part II–Section3 Subsection (ii) No. 125 (Magha 18, 1928) vide S.O. 141- (E)).

Aenvironment while considering any land use proposals and developmentpolicies. It is stated that Chapter-8 of the plan requires decentralizationof Government offices in the NCR region which is contrary to the proposalof creating an integrated vista of Government offices. It is further statedthat proposal to alter central vista precincts does not reckon the mandateof Chapter-10 for conservation of built heritage.B

23. It is urged that the respondents have acted in an arbitrarymanner and have violated Article 21 as well as the Doctrine of PublicTrust by denying basic access to public/recreational spaces which areessential to life and liberty.

C24. To buttress their submissions, the petitioners have placedreliance upon Lal Bahadur v. State of Uttar Pradesh & Ors.[12],Bangalore Medical Trust v. B.S. Muddappa & Ors.[13], R.K. Mittal& Ors. v. State of Uttar Pradesh & Ors.[14], Municipal Corporation ofGreater Mumbai & Ors. v. Hiraman Sitaram Deorukhar & Ors.[15]and Goel Ganga Developers India Private Limited v. Union of IndiaDThrough Secretary, Ministry of Environment and Forests & Ors.[16].

25. In the counter affidavit filed by DDA, it is submitted that theproposal is merely meant to align the existing land use with the proposedplan for optimum utilisation whilst preserving and conserving environmentand built heritage of the central vista precincts as whole. As regardsEthe contention of population density, it is submitted that the project is notgoing to result in any enhancement in population density as the areaattracts floating population which brings in temporary footprint duringofficial working hours only.

26. As regards the absence of an updated ZDP, the respondentFDDA, in its counter affidavit, placed reliance upon Chapter-16 of theMaster Plan to urge that such plan was not required at all as Chapter-16expressly permits the usage of the previous plan. It is submitted that inthe absence of an updated plan, the ZDP formulated under the previousMaster Plan continues to be operative.G27. In the consolidated counter affidavit, the respondents (Unionof India) have urged that the changes indicated in the proposal regarding12 (2018) 15 SCC 407 (paras 12, 13 and 15)13 (1991) 4 SCC 54 (paras 23 and 24)14 (2012) 2 SCC 232 (para 47)15 (2019) 14 SCC 411 (para 6)H16 (2018) 18 SCC 257

land use are in the nature of minor modifications and not substantialalterations of the Master Plan, as suggested. Responding to the argumentof lack of authority, the respondents have urged that the power of CentralGovernment to propose modifications falling under Section 11A(2) is notrestricted as the limitations of sub-Section (1) are strictly meant for theAuthority and do not apply to the Central Government as such. To buttressthe submission, it is urged that the powers of Central Government undersub-Section (2) are untrammelled and uninhibited by restrictions whichapply to the Authority.28. Countering the argument that DDA possessed no power toissue public notice, it is submitted in the written submissions that procedureprescribed under the Act requires DDA to publish notice invitingobjections, be it for modification of the existing plan or for preparation ofnew Master Plan. Reference has been made to S.O. 141 dated 7.2.2007to support this view.

29. It is further urged in the written submissions that procedureprescribed by law has been strictly followed by the Authority. In that,the proposal was initiated by Land & Development Office – land owningagency – and was placed for due consideration of Technical Committeeon 5.12.2019 before being finally placed before the Authority on11.12.2019 wherein all recommendations of the Technical Committeewere considered before approving the release of public notice. Appearingfor the respondents, learned Solicitor General has submitted that theabove sequence of events reveals due application of mind and no groundfor arbitrariness has been made out.

30. The respondents, in addition to the arguments, have placedreliance upon Union of India & Anr. v. Cynamide India Ltd. & Anr.[17],Shri Sitaram Sugar Company Limited & Anr. v. Union of India &Ors.[18], State of Punjab v. Tehal Singh & Ors.[19], Pune MunicipalCorporation & Anr. v. Promoters and Builders Association & Anr.[20],Transmission Corporation of Andhra Pradesh Limited & Anr. v. SaiRenewable Power Private Limited & Ors.[21], Tulsipur Sugar Co. Ltd.v. the Notified Area Committee, Tulsipur[22], Sundarjas Kanyalal

17 (1987) 2 SCC 720 (paras 4, 6, 7 and 14)

18 (1990) 3 SCC 223 (paras 36 to 47)

19 (2002) 2 SCC 7 (paras 36 to 44)

20 (2004) 10 SCC 796 (paras 2 to 5)

21 (2011) 11 SCC 34 (para 39)

22 (1980) 2 SCC 295 (para 3, 5, 7 and 8)

ABhatija & Ors. v. Collector, Thane, Maharahstra & Ors.[23],Bangalore Development Authority v. Aircraft Employees’Cooperative Society Limited & Ors.[24] and Chairman, Indore VikasPradhikaran v. Pure Industrial Coke & Chemicals Ltd. & Ors.[25].

T.C. (C) No. 230/2020[formerly W.P. (C) No. 1575 of 2020Bbefore the High Court of Delhi]

31. The challenge in this petition is to the public notice dated5.2.2020 and also the final notification dated 20.3.2020. The relevantextract of prayers read thus:

“a) Issue Writ in the nature of mandamus or any other Writ/COrder/Direction thereby quashing the impugned public notice dated05.02.2020 issued by the Respondent No. 1 herein and allconsequential actions taken thereto;

b) Issue Writ in the nature of mandamus or any other Writ/Order/Direction thereby quashing the impugned notification forDchange in land use dated 20.03.2020 issued by the RespondentNo. 2 herein and all actions taken in furtherance thereof.”

32. In response to the notice inviting objections/suggestionsregarding the change in land use, total of 1292 responses were receivedby the Authority. Thereafter, on 3.2.2020, the Authority sent emails and

ESMS to the objectors conveying about personal/public hearing on thesaid responses before the Board of Enquiry and Hearing[26] scheduledfor 6.2.2020 and 7.2.2020. Additionally, on 5.2.2020, the Authority alsopublished notice (impugned notice) in six leading newspapers havingwide circulation informing about the said hearing. The objectors were

asked to remain present for personal/public hearing as per the slot (time)Fallotted to objections clubbed on the basis of commonality of the issue(s)raised by them so as to hear them together. In response, only 42 personsappeared for the oral hearing. The hearings were concluded as per theschedule published for that purpose.

33. Assailing the said notice, the petitioners submit that theGrespondents called the objectors for public hearing at short notice ofonly one day which effectively disabled most of the objectors from

23 (1989) 3 SCC 396 (para 2, 3, 5, 7, 15, 27 and 28)

24 (2012) 3 SCC 442 (paras 2, 8, 9, 66, 67, 76 and 77)25 (2007) 8 SCC 705 (paras 20, 42 and 87 to 90)H26 For short, “BoEH”

appearing as travel arrangements could not be made within such shortperiod. It is submitted that short notice resulted in the denial of naturaljustice to the objectors and negated the very essence of the requirementof public consultation as envisaged in Section-11A of 1957 Act. To buttressthis submission, it is urged that the impugned notice had the effect ofreducing the hearing into mere formality and violated the requirementsof fair opportunity which is an essential facet of democratic decisionmaking. It is further submitted that as many as 200 persons were calledfor oral submissions within time slot of one hour, thereby rendering thehearing itself as meaningless and ineffective.

34. Mr. Sanjay Hegde, learned senior counsel appearing for thepetitioners further submitted that the respondents did not place completeinformation regarding the proposed changes in public domain and withoutadequate information, it entailed in denial of opportunity of raising effectiveobjections. Reliance has been placed upon series of judgments to supportthe view that Master Plan ought to be preceded by comprehensiveconsultative exercise based on multiple parameters including populationdensity, availability of open spaces etc.

35. To support their case, the petitioners have made reference toM.C. Mehta v. Union of India & Ors.[27], Automotive TyreManufacturers Association v. Designated Authority & Ors.[28], Stateof U.P. & Ors. v. Maharaja Dharmander Prasad Singh & Ors.[29],Aruna Roy & Ors. v. Union of India & Ors.[30], Travancore RayonLtd. v. Union of India[31], Hanuman Laxman Aroskar v. Union ofIndia[32], Utkarsh Mandal v. Union of India[33], R.K. Mittal[34], RajendraShankar Shukla & Ors. v. State of Chhattisgarh & Ors.[35], S.N.Chandrashekar & Anr. v. State of Karnataka & Ors.[36], LalBahadur[37], Bangalore Medical Trust[38] and Virender Gaur & Ors. v.State of Haryana & Ors.[39].

27 (2019) 12 SCC 720 (para 13 and 15 to 18)

28 (2011) 2 SCC 258 (paras 16, 63, 77-80 and 83)

29 (1989) 2 SCC 505 (para 64)30 (2002) 7 SCC 368 (paras 7 and 8)

31 (1969) 3 SCC 868 (paras 7 and 12)

32 (2019) 15 SCC 401 (para 112.8)

33 2009 SCCOnline Del 3836 (paras 31 and 32)

34 (supra at 14, paras 48 and 49)

35 (2015) 10 SCC 400 (paras 7, 38, 39, 103, 108 and 109)

36 (2006) 3 SCC 208 (paras 31, 33 and 34)

37 (supra at 12, paras 12, 14 to 16, 24 and 26)

38 (supra at 13, paras 13 and 23 to 29)

39 (1995) 2 SCC 577 (paras 7, 8 and 10)

A36. To counter the aforesaid submissions, respondent DDA, in itsconsolidated reply, has submitted that out of 1292 objections, 1156 wereidentical and even remaining objections raised similar issues. It is urgedthat personal communication in the form of emails and SMS was sent tothe objectors at least 3 days before the date of hearing which constitutesreasonable time in the facts and circumstances of the case and thus,Bdenial of principles of natural justice cannot be alleged. To buttress thissubmission, it is further submitted that apart from aforesaidcommunication, the notice of public hearing was also published in sixleading newspapers to encourage participation.

37. Responding to the argument of lack of information in publicCdomain before calling for objections, the consolidated reply states thateach and every detail relating to the project was published on the officialwebsite of Authority (www.dda.org.in) and it was open to common publicto access it at any point of time.

38. Learned Solicitor General, appearing for the respondents,Dcontended that there is no requirement of oral hearing in the 1957 Act orin the 1959 Rules and despite that the hearing was provided by theAuthority as measure of fairness and transparency. He furthersubmitted that none of the heritage buildings is being adversely affectedin the process.

39. In the written submissions filed by the respondents, it isEsubmitted that the argument of denial of natural justice cannot be sustainedas modification of Master Plan and town planning are activities of alegislative character and in legislative functions, public hearing can beallowed only to the extent provided in the law unlike other administrativeprocesses.FW.P. (C) No. 510/2020

40. Post the final notification of change in land use, the SpecialAdvisory Group of Central Vista assembled at its 50[th] meeting to considerthe agenda item – Proposed New Parliament Building at Plot No. 118on 23.4.2020. The minutes of the said meeting were released onG30.4.2020 wherein “No Objection” was granted to the said proposal.The petitioner herein seeks to challenge the said grant of “No Objection”.Another challenge to the Office Memorandum dated 14.10.2019 issuedby Works Division, MoHUA whereby the Central Vista Committee[40]was reconstituted. The relevant prayers read thus:

H40 For short, “CVC”

“I. Issue an appropriate writ, order or direction to RespondentNo. 2 Ministry of Housing and Urban Affairs (MoHUA), callingfor records and quashing the Minutes of Meeting of Central VistaCommittee dated 30.04.2020 at the 5[th] Meeting of Special AdvisoryGroup of Central Vista and Central Secretariat Central VistaCommittee with Agenda Item – Proposed New ParliamentBuilding at Plot No. 118 New Delhi which was held on 23[rd] April2020; and/or

II. Issue an appropriate writ, order or direction to RespondentNo. 2 Ministry of Housing and Urban Affairs (MoHUA), quashingOffice Memorandum F.No.6/21/2018/ADG (Works)/338-W-1dated 14[th] October, 2019 which was reconstituted as patentlybiased Central Vista Committee with obvious conflict of interestin the Central Vista Project.”

41. In the additional written note submitted by the petitioner, it isurged that the reconstitution of the CVC was done to rush through theproposals regarding the subject project without any impartial and objectivescrutiny. It is submitted that the project proponent herein was ChiefArchitect (CPWD) and after reconstitution, the chairmanship of theCommittee was entrusted to ADG (Works), CPWD, another officer ofthe project proponent, indicative of the fact that there was an apparentconflict of interest in the CVC. It is further urged that similar identity ofthe Project Proponent and Chairman subjugated the principle of NemoJudex In Causa Sua. Referring to the minutes of the meeting, thepetitioner argues that the minutes reveal clear non-application of mindon the part of this Committee as no reasons are supplied for the alleged“No Objection”. To buttress this submission, it is urged that the Committeewas originally envisaged to be study group which was meant to advisethe Government and contrary to this purpose, the Committee paid amere lip service to their duty and failed to act as study group.42. It is further submitted that the said meeting was not convenedin proper manner as it was not attended by designated officers andvarious junior officers were present on their behalf to consider theproposal. It is further submitted that the prescribed quorum of the meetingwas not complete as only 7 out of 12 members of the study group werepresent in the meeting, thereby leaving out 5 members belonging toindependent non-Governmental organisations. As per the petitioner’s case,the absence of representation from non-Government organisations and

Apresence of junior officers of the Government goes to show that therewas no effective deliberation and application of mind.

43. The petitioner further submits that detailed maps, drawings,scheme, layouts and other relevant documents of the subject projectwere not placed before the Committee and these documents were sineBqua non for taking an informed decision regarding the proposal. Theabsence of consideration of the relevant material, argues the petitioner,had vitiated the outcome of the meeting.

44. In the counter affidavit filed by respondents, it is submittedthat the CVC serves limited purpose and is meant to study theCdevelopment proposals submitted for its consideration and examinewhether the proposal is in sync with the overall character of the region.It is submitted that the Committee has been reconstituted at variouspoints of time in the past as per emerging needs and nomination tochairmanship is made on the basis of designation (ex-officio) irrespectiveof individual holder of office. As regards the absence of designatedDmembers, it is submitted that as general practice, when some membersare preoccupied with other engagements, their representatives from thesame department/office are nominated and authorised to act on theirbehalf. As regards quorum, it is stated that no quorum is prescribed forthe meetings of the Committee and in absence thereof, the standardEquorum of 25% would suffice the requirement.

45. Regarding the conduct of meeting, the counter affidavit statesthat the online meeting was in tune with the standard Government protocolamidst the pandemic and it was aimed towards facilitation of participationwithout requiring the members to step out of their homes for the purposeFof meeting. It is submitted that the grant of no objection by CVC was apre-requisite to further processing of the proposal and the entire projectcould not have been kept in abeyance by delaying the CVC meetingindefinitely amidst the uncertainties of the pandemic. The respondentshave also highlighted that the minutes of the meeting were sent to all themembers (including the non-attendees) and no objections were raisedGby them nor received from any member concerning the propriety of thegrant of no objection.

W.P.(C) No. 638/2020

46. The thrust of this petition is also on the “No Objection” dated23.4.2020 granted by the CVC. The relevant prayer reads thus:H

“A. Issue Writ in the nature of mandamus or any other Writ/Order/Direction thereby quashing “No-objection” granted by theRespondent No. 2 herein, being the Central Vista Committee, tothe proposed New Parliament Building in its meeting dated23.04.2020, which is reflected in the minutes of that meetingcirculated on 30.04.2020 and all consequential actions takenthereto;”

47. In addition to the grounds urged in W.P. (C) 510/2020, thepetitioners herein submit that the CVC was functioning under thechairmanship of ADG (Works) who is not an architect or town plannerand thereby lacks the requisite skills/knowledge required for consideringthe said proposal. The argument is supplemented in the writtensubmissions where it is stated that the nature of duties entrusted to CVCrequires the head of the Committee to be professional architect ortown planner so as to consider the proposal in nuanced manner. Tobuttress this submission, the petitioners contend that the meeting wascalled despite absence of external experts and it was deliberate step toavoid professional scrutiny of the professional, thereby rendering thesaid no objection as arbitrary and illegal.

48. The petitioners have also pressed the argument of non-application of mind, akin to that taken in W.P. (C) 510/2020, on the groundthat no assessment was made by the respondents to consider the viabilityand need of new Parliament building and the entire process was carriedin undue haste. To buttress this argument, reliance has been placed uponInderpreet Singh Kahlon & Ors. v. State of Punjab & Ors.[41] andBahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors.[42]to urge that an action taken in undue haste could be declared as bad inlaw.

49. It is further submitted that CVC disregarded the legalframework for dealing with heritage structures. The petitioners seeksupport from clause 7.26 read with Annexure-II of Building Byelaws tocontend that minimum changes are permissible on Grade-I heritagebuildings/precincts and the Committee failed to take that intoconsideration. The said no objection is also assailed on the alleged failureof the Committee to take into consideration various factors concerningenvironmental impacts, traffic assessment etc.

41 (2006) 11 SCC 356 (paras 72 and 73)

42 (2004) 2 SCC 65 (paras 24 and 25)

A50. During the hearing, Mr. Hegde, appearing for the petitioners,submitted that CVC, though originally conceived as an advisory body,has assumed statutory character owing to its long functioning and isexpected to discharge pivotal role in development of such projects. In“Supplementary Note on the Role of Central Vista Committee” submittedby the petitioners, reference is made to the notice inviting bids and clauseB6.4.3 of ZDP for Zone-D to support the view that CVC was envisagedas statutory committee.

51. Alternatively, it is urged that the statutory mandate of CVC isin line with the doctrine of legitimate expectations in administrativematters. The petitioners have relied upon National BuildingsCConstruction Corporation v. S. Raghunathan & Ors.[43] to contendthat this doctrine is premised on the ground of reasonableness and naturaljustice, and has now become source of substantive as well as proceduralrights.

52. In addition to cases noted above, the petitioners have placedDreliance upon R.S. Garg v. State of U.P. & Ors.[44], Council ofArchitecture v. Mukesh Goyal & Ors.[45]and Maharashtra State Boardof Secondary and Higher Secondary Education v. K.S. Gandhi &Ors.[46]

53. The argument regarding the statutory character of CVC hasEbeen countered by learned Solicitor General. He would urge that it ismerely an advisory body with limited mandate to advise the Governmenton proposal submitted for its consideration. It has no authority to grantapprovals or take decisions. Further, merely because body has beenreferred to in the ZDP (Zone-D) or has been working for prolongedFperiod, it will not assume statutory character on its own until it is soprovided by statute.

54. As regards the argument of non-application of mind, it issubmitted that CVC is not supposed to supply reasons for its approval ina manner akin to judicial/quasi-judicial bodies and the fact that CVC, inGits decision, had asked the project proponent/CPWD to ensure that theproject is in sync with the character of Central Vista reveals dueapplication of mind. It is urged that application of mind must be revealed

43 (1998) 7 SCC 66

44 (2006) 6 SCC 430 (para 28)

45 2020 SCCOnline SC 329 (para 58)H46 (1991) 2 SCC 716 (paras 20 and 21)

from substantial compliance perspective. The respondents have urgedthat the present case is sui generis one and must be treated accordinglykeeping in mind larger national interest. For brevity, other submissions ofthe respondents to this prayer are not being repeated here.

W.P.(C) No. 681/2020 AND W.P. (C) No. 845/2020

55. On 12.2.2020, the project proponent (CPWD) filed applicationfor EC for “Expansion and Renovation of Existing Parliament Buildings,New Delhi”. The Expert Appraisal Committee[47] considered the saidapplication in its 49[th] meeting dated 25-26.2.2020. After examining detailsof the project, EAC noted that several objections have been received bythe Committee as well as by the Ministry of Environment, Forests &Climate Change[48] wherein various concerns have been expressedregarding the project. After underlining this information, the Committeedeemed it appropriate to record the said objections and ask the projectproponent to submit additional information for further deliberation. Thus,the proposal stood deferred. On 11.3.2020, CPWD responded to theCommittee’s observation for supplying additional material and submittedthe relevant documents for consideration of the proposal. Form-I andForm-IA were also revised in light of the additional information soughtby the Committee. In the revised form, details touching upon cost ofproject, total built-up area and number of trees were modified. The totalcost of the Project was enhanced from Rs. 776 crores to Rs.922 crores,total built-up area of the proposed Parliament was enhanced from 59,800sq.m. to 65,000 sq.m., number of trees on plot no. 118 was enhancedfrom 326 to 333. In its 50[th] meeting on 22.4.2020, EAC considered therevised proposal and approved the same for grant of EC subject to certainspecific conditions commensurate with the nature of subject project alongwith standard conditions of EC. Thereafter on 17.6.2020, the MoEFaccepted the recommendations of EAC and granted EC to the proposalon Expansion and Renovation of Parliament building. This grant of ECstands impugned in these two petitions. The relevant extract of prayersread thus:

“a.Pass an order in the nature of Writ/Order quashing andsetting aside the impugned Environmental Clearance dated17.06.2020 issued by the Respondent No. 1 in respect tothe project titled as “Expansion and Renovation of

47 For short, “EAC”

48 For short, “the MoEF”

350SUPREME COURT REPORTS

AExisting Parliament Building at Parliament Street, NewDelhi”;

b.Pass an order in the nature of Writ/Order calling for therecords of the Environmental Clearance dated 17.06.2020issued by the Respondent No. 1 and thereafter hold thatBthe entire decision making process as carried out by theExpert Appraisal Committee in the build-up to the issuanceof the Environmental Clearance dated 17.06.2020 is vitiatedand accordingly set aside the same;

c.Pass an Order in the nature of Writ/Order declaring thatCthe subject project being Development /Redevelopmentof Parliament Building, Common Central Secretariat andCentral Vista at New Delhi is composite project for thepurposes of seeking Environmental Clearance;”

In addition to the aforesaid prayer for quashing the Clearance,the petitioners in W.P. (C) 681/2020 have alleged case of deliberateDconcealment of information and supply of misleading information in theproposals submitted for EC and prayed thus:

“2. Direct action against Respondent No. 3 as Project Proponentfor concealment of information and submission of false andmisleading information; classifying the project as Category B2Einstead of Category B1; and Schedule 8(a) project instead of8(b); and obtaining Environment Clearance; which attractsconditions stipulated in Clause 8 of the EIA Notification of 2006,‘Grant of Rejection of Prior Environmental Clearance’, and thepenal conditions of sub clause (vi); leading to cancellation ofEnvironment Clearance.”F

56. The petitioners in W.P. (C) 845/2020 have submitted that theEAC failed to apply its mind while considering the proposal and both theproposal and objections by various persons were treated in mechanicalmanner. The submission is buttressed by placing reliance upon HanumanLaxman Aroskar[49], wherein this Court observed that EAC being anGexpert body must apply itself to every relevant aspect of the project andits bearing upon environment.

57. The petitioners, in common rejoinder, have furthered theargument by contending that merely seeking certain clarifications from

the project proponent is not sufficient compliance and it would only beupon detailed scrutiny of the response/data/statements that therequirement of application of mind could be satisfied. It is added that theabsence of reasoned order by EAC advances the case of the petitionersas administrative/quasi-judicial authorities cannot grant approvals withoutrecording reasons.

58. To support this argument, it is submitted that EAC failed tonote that the project proponent deliberately separated the Parliamentproject out of the larger Central Vista Project with an objective to lowerthe scrutiny level by considering it on standalone basis. Due to thissegregation, the project was categorised as B2 project (Building andConstruction) in item 8(a); whereas collective assessment of the projectwould make it fall in item 8(b) i.e., Township and Area Development,falling under category B1 in terms of the 2006 Environmental ImpactAssessment[50] Notification[51]. As result of this categorisation, ascontended, the respondents unscrupulously did away with therequirements of preparing comprehensive Terms of Reference (TOR),Scoping and EIA Report as these requirements do not apply to B2category projects. To buttress this submission, it is added that it was onlyto bypass the comprehensive scrutiny that the respondents characterisedthe proposal as “renovation” and “expansion” project, instead ofspecifying that whole new building with built-up area measuring65,000 sq.m. is being proposed alongwith the development of CentralVista precincts as whole.59. According to the petitioners, the proposed Project is singleproject with three components – Development /Redevelopment ofParliament Building, Common Central Secretariat and Central Vista.The argument of deliberate disintegration and slicing of the project isfurther supported by referring to various documents of the Governmentwherein single vision was projected by the Government viz:

(i)CPWD notice inviting bids which referred to the project as“Development/Redevelopment of Parliament Building,

50 For short, “EIA”

51 For short, “2006 notification” or “EIA Notification”, as the case may be.[Although this notification has been described as “ 2006 notification” it has beenreprinted in August, 2015 (pages 3-55 in Compilation of Documents filed byrespondents), incorporating all the amendments thereto until 6.7.2015, and the extractedportions of the notification in this judgment are from the reprinted version].

Common Central Secretariat and Central Vista at NewDelhi.”

(ii)Public notice of DDA dated 21.12.2019 inviting objectionsand suggestions proposed change in land use of 8 plotscollectively.

(iii)MoHUA Press Release dated 25.10.2019 treats it as anintegrated project as it reads:

“With an aim of improving the old buildings on RaisinaHills, make improved Common Secretariat Buildings,refurbish old Parliament building, make new space fornew requirement of MPs and upgrade the entire CentralVista area by revisiting entire Master Plan, world classConsultant was required. ….”

60. The petitioners have relied upon OM dated 24.12.2010 issuedby MoEF which refers to “Consideration of Integrated and Inter-linkedDprojects” to urge that legal mandate requires collective appraisal ofinterlinked and integrated projects for the purpose of EC so that theircumulative impact can be assessed. To buttress the submission, it isurged that the said O.M. ought to be given purposive meaning so as toprocure comprehensive information on such projects in line with theEobjective of environmental protection. Reliance has been placed uponAlaknanda Hydropower Company Limited v. Anuj Joshi & Ors.[52]to supplement the view that combined impact of project must beconsidered to arrive at true assessment of environmental impact.Emphasizing on the meaning of the phrase “cumulative impact”, thepetitioners have relied upon the decision of NGT in T. MuruganandamFv. Ministry of Environment & Forests[53] to contend that cumulativeassessment involves holistic approach towards all present andreasonably foreseeable future activities so that actual impact on ecologycan be determined.

61. It is further submitted that the respondents wilfully concealedGrelevant information from the Expert Committee regarding cumulativeeffects, proximity to other existing or planned projects, etc. which wouldattract clause 8(vi) of 2006 Notification pertaining to concealment ofinformation and submission of false information. Reliance has again been

52 (2014) 1 SCC 769H53 Manu/GT/0135/2014 (NGT decision dated 10.11.2014 in Appeal No. 50/2012)

placed upon Hanuman Laxman Aroskar[54] to contend that submissionof authentic information without any concealment is basic expectationunder the 2006 Notification and any clearance granted on the basis of adefective Form-I is liable to be rejected.

62. The petitioners submit that the project proponent failed toconduct any assessment studies for examining the real impact of theproject on environment. The respondents’ statement that the newParliament building shall have minor and incremental impacts on theenvironment is alleged to be baseless and unfounded. It is urged thatabsent any scientific assessment to back its claim, the project proponentmisinformed the expert committee and gave false assurances regardingimpact on air pollution, noise pollution, geology, ecology and biodiversity.The respondents’ assurance on transplantation of trees is also assailedas baseless and lacking in substance as no study was conducted todetermine the age, girth and species of the trees which are essentialelements for examining the potential of survival of transplanted tree.

63. The petitioners further submit that the project proponentmisinformed and misled the expert committee as regards the requirementof parking space and acted in violation of Master Plan which mandatesa parking requirement of 1.8 ECS (Equivalent Car Space) per 100 sq.m.of built-up area. Contrary to this specification, parking space of 100ECS was stated in the requirements for the proposed built-up area of65,000 sq.m. which is grossly low.

64. Relying upon Vellore Citizens’ Welfare Forum v. Union ofIndia & Ors.[55] and A.P. Pollution Control Board II v. Prof. M.V.Nayudu (Retd.) & Ors.[56], the petitioners have contended that EACought to have given regard to the precautionary principle during appraisalas it is attracted in all those cases where an identifiable risk ofenvironmental degradation is present and thus, there was heavy burdenon the project proponent to demonstrate the absence of environmentalharm. In this case, the EAC could not have relied upon blanket assuranceswithout undertaking any analysis as it would otherwise be case of non-application of mind. The threshold submission is that the role of EACunder 2006 Notification is well carved out and in Hanuman LaxmanAroskar[57], this Court had highlighted the importance of reasons andundertaking detailed analysis of all environmental factors.

54 (supra at 32)

55 (1996) 5 SCC 647

56 (2001) 2 SCC 62

57 (supra at 32)

A65. Mr. Shyam Divan, learned senior counsel appearing for thepetitioners, further submitted that as per Lafarge Umiam MiningPrivate Limited v. Union of India (UOI) & Ors.[58], doctrine ofproportionality and non-application of mind standards can be invoked inenvironmental review cases and as per Hanuman Laxman Aroskar[59],an in-depth merits review is mandated by the 2006 Notification and EACBfailed to undertake the same. Thus, the respondents are bound by thesehigh standards and the entire matter needs to be examined on that basisby this Court.

66. The petitioner in W.P.(C) No. 681/2020 has adopted similarsubmissions to assail the EC and they are not being repeated. ReferringCto Clause 7 of 2006 Notification, the petitioner submitted that thenotification contemplates four stages of EC for new projects and byshowcasing this project as an “expansion” instead of new construction,the respondents have evaded the crucial stages. It is further submittedthat EAC ought to have considered the proposal in the light of principlesDof sustainable development, public trust and inter-generational equity.67. To support their submissions, petitioners have relied uponKeystone Realtors Private Limited v. Anil V. Tharthare & Ors.[60],Bengaluru Development Authority v. Sudhakar Hegde & Ors.[61],Sunil Kumar Chugh & Ors. v. Secretary, Environment Department,EGovernment of Maharashtra & Ors.[62], Samata & Anr. v. Union ofIndia & Ors.[63], Intellectuals Forum, Tirupathi v. State of A.P. &Ors.[64], Common Cause v. Union of India & Ors.[65], Sarpanch,Grampanchayat, Tiroda, Tal. Sawantwadi, District Sindhudurg,Maharashtra & Ors. v. Ministry of Environment & Forests &Ors.[66]and Goel Ganga Developers India Private Limited[67].F68. In counter affidavit filed by CPWD, it is submitted that thenew Parliament building is being constructed adjacent to the existing

58 (2011) 7 SCC 338

59 (supra at 32)

60 (2020) 2 SCC 66 (para 19)

61 2020 SCCOnline SC 328 (paras 99 and 100)G62 MANU/GT/0153/2015 [Appeal No. 66 of 2014 decided on 3.9.2015 (paras 24 to26)]

63 2013 SCCOnline NGT 101 (para 38)

64 (2006) 3 SCC 549 (paras 66 to 69, 72 to 76, 78 and 82)

65 (2017) 9 SCC 499 (paras 208, 209 and 210)

66 2011 SCCOnline NGT 10 (para 19)H67 (supra at 16, para 17)

building and both buildings will supplement each other in terms offunctionality. Simultaneously, the existing building shall be retrofitted andrenovated in accordance with the limitations prescribed for Grade-Istructures and thus, the project was rightly named as an expansion andrenovation project.

69. It is submitted that in terms of 2006 Notification, no detailedEIA is required for building projects with built-up area of less than 1,50,000sq.m. as they fall under category 8(a), and since the built-up area ofsubject project is less than 1,50,000 sq.m., no such assessment is requiredas per the notification and thus, EAC was right in not insisting for anysuch impact assessment. Learned Solicitor General, would further submitthat categorisation as 8(a) or 8(b) would not be of much consequence asthe nature of categorisation causes no prejudice in considering thecumulative impact of the project on environment, if any. To buttress thissubmission, it is urged that as per the mandate of law, detailed EIAwould be carried out for the Central Secretariat project as it falls undercategory 8(b) i.e., Township and Area Development. Such assessment,as per law, would examine land use within the radius of 10km and sinceParliament falls within these dimensions, environmental concerns (if any)associated with it may also be addressed in the same assessment andadditional mitigating measures could be imposed.

70. To the argument that both these projects are integrated projectscalling for collective appraisal, the counter affidavit states that theexpression “Integrated Projects” refers to those projects that cannotexist without each other to the extent that their existence as well asfunctionality is inevitably dependent upon each other. In present case,submitted the respondents, both these projects are marked by differenttimelines, different budgetary allocations, different wings of the Unionof India (Parliament and Executive) and also for different utilities. Inthat, Parliament project is supposed to culminate in 2022, the other projectmay go on till 2026. It is further urged that budgetary allocation forParliament project is made by Lok Sabha Secretariat and that for North/South Block project is made by Ministry of Culture. To further justifyseparate EC application for Parliament project, the consolidated replystates that as matter of practice, EC is not given merely on the basis ofpreliminary vision/Master Plan and such application ought to be madefor those projects only for which detailed drawings, planning layouts etc.are available so that an informed impact assessment (site specific) can

Abe made. The central secretariat project has not reached that stage yet.The submission reads thus:

“8. ...Therefore, an application for Environment Clearance canbe made effectively and accurately only in the final stages of theplanning and execution of project and not at broad macro levelBwithout mentioning the minute details of the project.”

71. Learned Solicitor General urged that merely because theproject was mentioned in the comprehensive project and in the biddocument for engagement of the Consultant, it does not mean that theproject proponent is obliged to treat it as whole for all future purposes.CWhereas, the Government is well within its rights to even drop the planof Central Secretariat project without impacting the Parliament project.It is urged that expansion/renovation of Parliament and development ofnew Central Secretariat in that sense are two distinct projects and attractdifferent procedural compliances under law before the constructionthereof commences, as stated in the written submissions thus:D

“20. It is submitted that carrying out architectural and engineeringplanning of all the components through single consultant with aview to benefit from cost and planning efficiencies does notautomatically mean that the Parliament project and the remainingCentral Vista redevelopment projects are, for the purposes of anEenvironment clearance, is single project. It is submitted thatParliament Project and the remaining Central Vista redevelopmentare different projects and the planning in respect of such projectsis carried out in different stages. It is submitted that execution ofthe different projects shall be taken up in phases ...”F72. It is submitted that the total built-up area of the proposedParliament building is 65,000 sq.m. whereas that of proposed CentralSecretariat is approximately 17 lakh sq.m. and it was conscious policydecision of the competent authority to treat the Parliament project as anindependent one being most urgent and to prevent it from falling prey toGdelays owing to the vast territorial expanse of the comprehensive plan.Thus, the conscious decision of the Government is to ensure completionof building project in smooth manner and not to link it up with the towndevelopment project.

73. The contention regarding non application of mind by EAC hasbeen countered by respondent MoHUA in its reply affidavit wherein it isH

submitted that EAC comprises of scientific experts who have beenconsidering proposals for EC for past 1.5 years. It is submitted thatdetailed deliberation took place in the 49[th] EAC meeting after whichsupplementary information was sought in revised Form-1/1A regardingscope of renovation of existing building, status of pending cases, trafficmanagement plan, response to objections received from public, updatedMaster Plan showing land use of plot no. 118 and accordingly, entireinformation was placed before the Committee and the same was dulyconsidered in the next meeting before formulating its recommendation.Thus, application of mind is writ large in the entire process. As regardsthe allegation of fraud and misrepresentation while providing informationregarding connected projects in Form-I, the written submissions statethat O.M. dated 24.12.2010, relied upon by the petitioners to extend thisargument, was misconceived as the concept of inter-linked projects isused in reference to multi-sectoral projects and the subject project doesnot involve multi-sectoral component and is standalone buildingconstruction project.74. In written submissions filed by the respondents, it is furthersubmitted that detailed study was conducted to identify the possibleimpacts of the proposed project and concerns relating to air emissions,water, soil etc. were duly addressed by EAC by prescribing anEnvironment Management Plan (EMP) and operational measures. It isinformed that measures including setting up of sewage treatment plantat the site, usage of recycled water, rain water storage tanks, usage ofrecycled material, solid waste management etc. shall be followed.

75. Learned Solicitor General has sought to distinguish the judgmentof this Court in Hanuman Laxman Aroskar[68] by contending that in thesaid case, the analysis was done in context of Category-A project andmoreover, the view of the Court as regards the requirement of reasonswas in the context of the facts of that case. It is submitted that as perthe 2006 Notification, reasons are required only in cases of rejection ofobjections and not in all cases. To buttress this submission, the argumentadvanced in W.P. (C) 638/2020 that decisions taken by experts are notakin to those taken by judicial/quasi-judicial bodies has been reiterated.

W.P. (C) No. 853/2020

76. On 2.9.2019, the respondent CPWD invited bids vide NITNo. 04/CPM/RPZ/NIT/2019-20 from national/international design and

Aplanning firms for appointment of Consultant (Consultancy Services)for comprehensive architectural and engineering planning fordevelopment/redevelopment of Parliament Building, Common CentralSecretariat and Central Vista. The minimum eligibility criteria requiredthe bidders to have an average annual turnover of Rs. 20 crores fromconsultancy services in India. On 4.9.2019, the Indian Institute ofBArchitects[69] gave representation to the respondent raising certainobjections to the eligibility conditions in the tender document. The Councilof Architecture, on 9.9.2019, also raised similar objections and called foran Open Design Competition. On 12.9.2019, pre-bid meeting was heldfor the interested parties for clarifications regarding the NIT. After theCpre-bid meeting discussion, CPWD released corrigendum andaddendum to Consultation Services NIT whereby, the date of onlinesubmission was extended from 23.9.2019 to 30.9.2019 and sum of earnestmoney was reduced to Rs.25 lakhs. After this process, five firms qualifiedfor technical bids and four firms qualified for financial bids. On 25.10.2019,MoHUA announced that M/s. HCP Designs has been awarded theDConsultation Services NIT for the development of entire Central Vistaregion. This was followed by DDA’s public notice for change in landuse, public hearing on objections, final notification of change in land useand grant of no objection by CVC at relevant points of time as alreadydiscussed above.E[[70]][[nd]]

77. On 5.6.2020, Delhi Urban Art Commission[[70]], in its 1542[[nd]]meeting considered the proposal for Parliament project and recordedvarious observations regarding urban form, aesthetics, integration of oldbuilding with proposed old building, incorporation of green building featuresetc. Thereafter, on 1.7.2020 (1544[th] meeting), DUAC considered

Frevised building plan proposal submitted by the project proponent andgranted its approval along with some observations regarding parkingrequirements, public art, skylights and height of the building.

78. The petitioners herein seek to raise comprehensive challengeto the project by assailing various stages of the project elaborated above.GThe relevant extract of the prayers read thus:

“a. declaration that the Central Vista Project including but notlimited to the Parliament building is ultra vires the Constitution ofIndia and is illegal, null and void;

69 For short, “IIA”H70 For short, “DUAC”

b. declaration that project for redesigning the Central Vistaincluding Parliament building may be carried out (i) only pursuantto an objective and independent assessment made afterstakeholder consultation which confirms the necessity for such aproject; (ii) through widely publicized Open Design Competition;(iii) by adopting transparent process with adequate timelinesthat enable wide participation in the consultancy, design andexecution phases; and (iv) through the selection of the design bya representative and independent jury;

c. declaration that Parliament building is part of India’s nationalpolitical heritage; that it is living symbol of Indian democracy;and that it can only be supplanted by following transparent processinvolving the widest stakeholder consultation and global bestpractices for selecting excellence in design;

d. writ of mandamus or writ in the nature of mandamus orany other appropriate writ, order or direction ordering and directingRespondent No. 1 and No. 2 to disclose and furnish copies to thePetitioners of each and every document, correspondence and anyother communication (including electronic records) relating to theconception of the impugned Project and up to the date of theissuance of the impugned Notice inviting Bid NIT No. 04/CPM/RPZ/NIT/2019-20 dated 02.09.2019 issued by Respondent No.1, CPWD (the Consultation Services NIT), including all documentsrelating to the preparation of the Consultation Services NIT, whichare in the possession and control of Respondent No. 1 and No. 2or their officers, including any document, correspondence or anyother communication exchanged inter se with the otherRespondents or any of their officers;”

Apart from the above prayers, further prayers to quash and setaside the following are made:

“(i) Notice inviting Bid NIT No. 04/CPM/RPZ/NIT/2019-20 dated02.09.2019, issued by Respondent No. 1, the Central Public WorksDepartment;

(ii) The award of the consultancy bid to Respondent No. 9, HCPDesign, Planning and Management Pvt. Ltd., dated 18.10.2019;

(iii) The Notice inviting pre-qualification bids, NIT No. 01/CE/PCWZ/CPWD/2020-21, dated July 2020, for the Construction of

New Parliament Building at Plot No. 118 Parliament House Estate,New Delhi, released by Respondent No. 1 in July 2020.

(iv) The approval granted by Respondent No. 3, the Delhi UrbanArt Commission in its 1545[th] meeting dated 01.07.2020 to the“proposal for New Parliament Building, Plot No. 118, N.A.,BNew Raisina Road, New Delhi”;

(v) The notice inviting objections from the public against thechanges proposed to be made to the Master Plan for Delhi 2021/Zonal Development Plan for Zone-D under Section 11-A of theDDA Act, 1957 dated 21.12.2019, issued by Respondent No. 7,CDelhi Development Authority;

(vi) The consequent decision dated 10.02.2020 made by DDAapproving the change in land use for the aforementioned plotincluding Plot No. 118 wherein the new Parliament House isproposed to be made;

(vii) Notification dated 20.03.2020 under Section 11-A of the DDAAct, 1957, allowing the change in land use in Central Vista, includingthe change in land use for the proposed new Parliament building;

(viii) Decision taken by Respondent No. 8, the Central VistaCommittee dated 23.04.2020, as reflected in minutes publishedEon 30.04.2020.”

79. Appearing for the petitioners, Mr. Shyam Divan, learned seniorcounsel supported by Ms. Vrinda Bhandari and Mr. Gautam Bhatia,learned counsel, submits that this petition seeks to interrogate the Stateat very fundamental level so as to enforce the principle of “Rule ofFLaw” as distinguished from “Rule by Law”. Broadly, it is the petitioners’case that the respondents have followed the principle of “Rule by Law”right from the stage of conception of the subject project and have failedto comply with the idea of substantive due process including in obtainingvarious approvals and clearances for the same. As is manifest from theaforesaid prayer, the petitioners have called upon this Court to issueGsuitable declarations relating to democratic due process, standards oftransparency, public consultation and procedural fairness in project ofthis nature and importance.

80. In addition to grounds already urged with respect to commonprayers in previous petitions, the primary submission of the petitionersH

herein is that any decision to change or renovate the Parliament buildingought to be preceded by widest public consultation as it is an essentialfeature of democratic due process. The petitioners contend that projectof this nature should be backed by legislation and even if the same isnot made, the executive Government is bound to work under the contoursof limited Government ensuring minimum standards of stakeholderconsultation, transparency, fair competition, adequate participation timeand excellence in design. Reliance has been placed upon State of MadhyaPradesh & Anr. v. Thakur Bharat Singh[71 ]to contend that there arewell recognised constitutional limitations on the Government of the day.The manner of consultation, as envisaged by the petitioners in writ petitionand rejoinder to consolidated reply, involves two elements- consultationwith expert agencies and consultation with common public.

81. The argument regarding lack of expert consultation statesthat the respondents failed to consult Heritage Conservation Committee[72]which is an expert body in matters involving heritage structures andought to have been consulted right from the stage of conception of theproject. It is contended that even before the design is freezed, the projectproponent was obliged to consult HCC. For, as it would be of no use toconsult it after the procedure is complete and development work is aboutto commence. It is submitted that the respondents have violated theirobligation to protect and conserve the heritage as per globally acceptedinternational principles. It is submitted that principles of adaptive re-useand minimal impact must be adhered to and any operation of restorationor modification ought to be considered as special operation to becompulsorily preceded by detailed archaeological and historical study.It is added that non-adherence to due procedure in the present case isalso violative of Article 49 which, being Directive Principle, is meant tobe fundamental in the governance of the country. Similarly, consultationwith other bodies such as DUAC and CVC was not only inadequateand arbitrary but also delayed as it ought to have been done at the planconception stage itself. It is urged that the tender document called uponthe consultant to make new Master Plan for Central Vista withoutundertaking any assessment by expert bodies such as HCC or CVC. Itis further contended that CPWD ought to have conducted physicalaudit of heritage structures and called for views of special committee ofParliament. To buttress this submission, it is further submitted in written

71 AIR 1967 SC 1170

72 for short, “HCC”

Asubmissions that post 2015, no Parliamentary Committee has hadexamined the prospects of repairing the existing structure or the needfor transformation of the entire Central Vista.

82. The petitioners invited our attention to the Parliament Buildings(Restoration and Renewal) Act, 2019 passed by UK Parliament toBcontend that this comprehensive legislation reflects the best practicesadopted by other democracies while undertaking projects of this nature.

83. Assailing the decision of DUAC, the petitioners have arguedthat the Commission acted in manner contrary to its statutory schemeas per Memorandum No. 1(2)/82-DUAC dated 7.7.2005 which enjoinsCit with the duty of preservation. As statutory body, the petitioners submit,the Commission ought to have considered the impact of this project onheritage by conducting thorough study and it failed to fulfil its mandateby not doing so. This mandate is borne from Section 11 of the DelhiUrban Art Commission Act, 1973[73] which enjoins the Commission witha duty to advise the Government and lay down guidelines for the localDbodies. The petitioners submit that this duty to advise must continue atall stages of the process including the pre-tender stage.

84. While taking exception to the No Objection granted by CVC,the petitioners’ stand is similar to that taken in W.P. (C) 638/2020 as hasbeen set out hitherto. Hence, the same is not reiterated for brevity. TheEprimary submission pertains to non-application of mind, absence ofreasons, mechanical approval and abdication of real duty envisaged forCVC.

85. In addition to arguments set forth in previous petitions regardingneed for empirical data, the petitioners herein have placed reliance uponFK.S. Puttaswamy (Retired) & Anr. (II) v. Union of India & Anr.[74]and Internet and Mobile Association of India v. Reserve Bank ofIndia[75 ]in the written submissions to reiterate the need for proper/empirical independent studies before taking actions in larger public interest.Reference has been made to Internet and Mobile Association[76 ]toGsupport the view that empirical data is essential to understand the degreeof harm and decision based on lack of proper studies must fail the testof proportionality. The requirement of conducting proper scientific studies

73 For short, “the DUAC Act”74 (2019) 1 SCC 175 (2020) 10 SCC 274H76 (supra at 75)

is also borne from Article 9 and 10 of Venice Charter for the Conservationand Restoration of Monuments and Sites, 1964.

86. Advancing the argument regarding direct public consultation,the petitioners have stated that the concept of participatory democracydemands that project of this nature must involve the common public asthey are the real stakeholders of national heritage and must be consultedat every stage of the project including prior to drawing outline of theproject, releasing consultancy tender, modifying the Master Plan andfinalisation of the design and making changes therein. Reliance has beenplaced upon Hanuman Laxman Aroskar[77] and clause 1.3 of Annexure-II of UBBL to contend that the mandate of law requires invitingsuggestions from public and consideration thereof by the expert bodiesbefore granting any permission. To buttress this submission, Mr. Divanhas contended that the nature of Indian democracy envisages publicparticipation at the most fundamental level of decision making. Placingreliance upon Cellular Operators Association of India & Ors. v.Telecom Regulatory Authority of India & Ors.[78], it is submitted thatCPWD ought to have followed three-step process including –stakeholder consultation, inviting submissions from stakeholders, fulldocumentation of all decisions supported with reasons. Further reliancehas been placed upon K.S. Puttaswamy & Anr. (I) v. Union of India& Ors.[79] to contend that akin to privacy, democracy is also travellingright which travels across all tenets and all stages of the project.87. The written submissions of petitioners state that right to publicparticipation and consultation is pre-requisite for consequential stateaction and it flows from 19(1)(a) of the Constitution. It is submitted thatthis requirement is born out of reasonableness and State is under aconstitutional duty to take affirmative measures to ensure maximumparticipation. It is urged that what extent of participation may bereasonable in given case may be determined on case-to-case basiskeeping in mind certain parameters including – scope and publicimportance of State action, urgency involved, availability of forums toengage with public, efficacy of public participation etc.

88. The petitioners, in written submissions, have supported theidea of wide public participation by drawing strength from comparative

77 (supra at 32)

78 (2016) 7 SCC 703

79 (2017) 10 SCC 1

Aconstitutional position on the subject-matter in other jurisdictions. Reliancehas been placed upon Doctors for Life International v. Speaker ofthe National Assembly & Ors.[80], delivered by the Constitutional Courtof South Africa, wherein an express provision providing for publicconsultation was considered to be practical and symbolic part of thedemocratic process. While describing the nature and scope of such right,Bthe petitioners adopt observations from para 98 of the judgment whereinindirect participation through elected representatives and directparticipation by public are both recognized as essential tenets ofdemocracy. Additionally, the petitioners also submit that in Doctors forLife International[81], the right to political participation is recognized evenCbeyond the express provision by referring to various international andregional human rights instruments.

89. Mr. Divan, in order to advance the submission on publicparticipation, placed further reliance upon the decision of Court of Appeal,Kenya in Kiambu County Government & Ors. v. Robert N. GakuruD& Ors.[82] wherein public participation was envisaged both quantitativelyand qualitatively. While enunciating the concept of participatorydemocracy, the Court in Kiambu County[83] further observed that arms-length democracy is not participatory democracy.

90. The petitioners, in Rejoinder to Third Consolidated Reply filedEby the respondents, submit that public participation is premised on theprinciple of democratic due process which requires the fulfilment of atleast six basic parameters:

(i)decision based upon extensive debate and discussion;

(ii)Robust statutory framework laying out specific obligationsFof different bodies involved in the process;

(iii)Budgetary control through Parliament;

(iv)Public portal for continuous exchange with public andstakeholders;

G(v)No substantial alteration of heritage;

(vi)Disclosure and transparency.

80 2006 (12) BCLR 1399

81 (supra at 80)

82 Civil Appeal No. 200 of 2014 decided on 30.6.2017 (Court of Appeal, Kenya)H83 (supra at 82)

91. To conclude, the petitioners have submitted set of principleswhich can be termed as essential features of “consultation” in any suchprocess and we reproduce the same for clarity of thought and betterconsideration of the case thus:

“(a) There are two sets of parties involved –

(1)the proposer, upon whom duty to consult has beencast – in this case, the State, acting through theRespondents; and

(2)the stakeholder, who has claim to be consulted andwhose input is sought – in this case, the entire citizenryof India, represented non-exclusively through the WritPetitioners.

(b) There must be ‘meeting of minds’ between the proposerand the stakeholder;

(c) The precursors for an effective ‘meeting of minds’ are thatthe stakeholder must be: (1) provided all relevant materials availableto the proposer, and (2) given sufficient time to prepare itsresponse;

(d) The parties must ‘deliberate’ upon the subject matter, suchthat there is full and meaningful communication of each party’sproposals and counter-proposals, and the parties ‘make theirrespective points of view known to the others’ and ‘discuss andexamine the relative merits of their views’; and

(e) While consensus is not necessary, the minimum preferenceis for there to be ‘satisfactory solution’ for all concerned. It issubmitted that the Central Vista Project has failed to meet theserequirements.”

92. The petitioners, in written submissions, have adopted groundsimilar to that taken in T.C. (C) 230/2020 to contend that availability ofinformation is essential for public consultation. Mr. Divan has submittedthat the opaque manner in which various steps of this project haveproceeded has jeopardized the citizens’ right to know, which is consideredto be fundamental under Article 19(1)(a) of the Constitution as per JusticeK.S. Puttaswamy (I)[84]and State of U.P. v. Raj Narain & Ors.[85]as

84 (supra at 79)85 (1975) 4 SCC 428

Awell as under the broad spirit of the Constitution. Further reliance hasbeen placed upon Reliance Petrochemicals Ltd. v. Proprietors ofIndian Express Newspapers, Bombay Pvt. Ltd. and Ors.[86] to contendthat right to know is also traceable from Article 21. It is urged that anymodification/alteration/renovation with respect to structures likeParliament that reflect living heritage of the country must be undertakenBin manner wherein the voice of common public is recognised. To buttressthis submission, it is argued that unless public is made aware ofGovernment actions, it would not be in position to question such actionsand democratically participate in the decision-making process.93. Regarding Respondent No. 9 (Consultant) as well, theCpetitioners submit that it is an agent of the State and is duty bound toadopt practices and procedures akin to the State including publicconsultation with respect to design, architecture, heritage impact etc.

94. In order to assail Consultation Services NIT, the petitionerscontend that it undermined the principles of fair competition and preventedDinternational firms from applying. The fact that six bidders applied forthe tender demonstrates unfairness of the process. It is urged that anOpen Design Competition ought to have been organized by the projectproponent as it is standard practice across the world. As per globalstandards, the petitioners have submitted, such competitions entail threeEbasic norms – two-part open competition, competition to be judged byjury (with citizen participation), encouragement of widest participation.Various domestic examples were also cited – including of National WarMemorial and Indira Gandhi National Center for Arts - to demonstratehow an open design competition is the standard norm.

F95. The petitioners contend that Consultation Services NIT wasissued in violation of existing heritage conservation regulations as it calledfor redevelopment of entire area including demolition and constructionof buildings which is violative of clause 7.26, UBBL 2016 which specifiesthat no changes other than prolonging the life of the heritage structuresare permissible. The argument is on similar lines with those taken alreadyGin W.P. (C) Nos. 638/2020 and 845/2020 and is not being elaborated.

96. The petitioners have further submitted that no estimated costof project was provided in the tender document which is not only arbitrarybut also violative of Rule 182 of General Finance Rules, 2017 which

envisages for an estimation of reasonable expenditure. It is submittedthat consultation NIT sought to employ Quality and Cost Based Selection(QCBS) system while at the same time, inviting bids on cost percentagebasis which effectively made it impossible to rank different bids in fairand non-discriminatory manner. The provision regarding percentage-based fee has also been alleged to be contrary to clause 3.4.2 of Manualof Procurement of Consultancy & Services (Ministry of Finance) whichdiscourages percentage-based fee as it lacks incentive for economicdesign.

97. Advancing the ground of public trust adopted in previouspetitions, in this petition as well, Mr. Divan has stoutly contended thatthe respondents have compromised with the doctrine of public trust whileproceeding with this project. Placing reliance upon M.C. Mehta v. KamalNath & Ors.[87], it is submitted that transient Government holds theresources in trust for the public and they can only be utilised for thebenefit of public. It is further submitted that under American law (IllinoisCentral Railroad Co. v. People of the State of Illinois[88]) as well, thepublic trust doctrine extends to properties which are of “specialconsequence” and extending the same logic, it is urged that CentralVista is of special consequence for the nation, thereby calling for highthreshold of due process. To further the argument of suppression ofpublic trust, it is urged that the bid document reveals that the decision ofconstructing new Parliament building or to renovate the existing buildingwas left to be decided by the private consultant and entrusting privateconsultant with fundamental decision of this nature does not fall insync with the principles of public trust.

98. In addition to cases noted above, the petitioners have placedreliance upon I.R. Coelho (Dead) by LRs v. State of T.N.[89], Government(NCT of Delhi) v. Union of India & Anr.[90], Lok Prahari Through itsGeneral Secretary v. State of Uttar Pradesh & Ors.[91], RajeevMankotia v. Secretary to the President of India & Ors.[92], SushantaTagore & Ors. v. Union of India & Ors.[93], K. Guruprasad Rao v.State of Karnataka & Ors.[94], Manohar Joshi v. State of Maharashtra

87 (1997) 1 SCC 388

88 [146 US 387 : 36 L Ed 1018 (1892)]

89 (2007) 2 SCC 1 (paras 48, 109, 139-141 and 151)

90 (2018) 8 SCC 501 (paras 53 to 57)

91 (2018) 6 SCC 1 (paras 2, 26, 27 and 38)

92 (1997) 10 SCC 441 (paras 4, 6, 13, 18 and 19)

93 (2005) 3 SCC 16 (paras 21 and 32)

94 (2013) 8 SCC 418 (paras 15, 71, 94, 95 and 102)

A& Ors.[95],Public Interest Foundation & Ors. v. Union of India &Anr.[96], Brajendra Singh Yambem v. Union of India & Anr.[97],Hindustan Construction Company Limited & Anr. v. Union of India& Ors.[98], State of Punjab & Anr. v. Khan Chand[99], Shayara Bano v.Union of India & Ors.[100], Natural Resources Allocation, In re,Special Reference No. 1 of 2012[101], Manoj Narula v. Union ofBIndia[102], Global Energy Limited & Anr. v. Central ElectricityRegulatory Commission[103], Sakal Papers (P) Ltd. & Ors. v. Unionof India[104], Bennett Coleman & Co. & Ors. v. Union of India &Ors.[105], Union of India & Ors. v. Motion Picture Association & Ors.[106],Life Insurance Corporation of India v. Prof. Manubhai D. Shah[107],CSecretary, Ministry of Information & Broadcasting, Govt. of India& Ors. v. Cricket Association of Bengal & Ors.[108],Chandramouleshwar Prasad v. Patna High Court & Ors.[109], OrissaMining Corporation Limited v. Ministry of Environment & Forests& Ors.[110], Democratic Alliance & Anr. v. Masondo NO & Anr.[111],Matatiele Municipality & Ors. v. President of the Republic of SouthDAfrica & Ors.[112], South African Veterinary Association v. Speakerof the National Assembly & Ors.[113], Law Society Case of Kenya v.Attorney General & Ors.[114], Archaeological Survey of India v.Narender Anand & Ors.[115], Nagar Nigam, Meerut v. Al Faheem

E95 (2012) 3 SCC 61996 (2019) 3 SCC 224 (para 99)97 (2016) 9 SCC 20 (para 38)

98 2019 SCCOnline SC 1520 (para 17)

99 (1974) 1 SCC 549 (para 12)

100 (2017) 9 SCC 1 (para 85)

101 (2012) 10 SCC 1 (paras 149 and 184)F102 (2014) 9 SCC 1 (para 82)103 (2009) 15 SCC 570

104 AIR 1962 SC 305

105 (1972) 2 SCC 788

106 (1999) 6 SCC 150

107 (1992) 3 SCC 637

108 (1995) 2 SCC 161G109 (1969) 3 SCC 56 (para 7)110 (2013) 6 SCC 476 (paras 50, 51, 66 and 70)

111 2003 (2) BCLR 128 (CC) (South African Constitutional Court)

112 2007 (1) BCLR 47 (CC) (South African Constitutional Court)

113 2019 (2) BCLR 273 (CC) (South African Constitutional Court)

114 Civil Appeal No. 96 of 2014 decided on 27.9.2019 (Court of Appeal, Kenya)115 (2012) 2 SCC 562 (para 7)H

Meat Exports Pvt. Ltd. & Ors.[116], Dutta Associates Pvt. Ltd. v. IndoMerchantiles Pvt. Ltd. & Ors.[117], Meerut Development Authority v.Association of Management Studies & Anr.[118], Manohar Lal Sharmav. Principal Secretary & Ors.[119], Radha Krishna Agarwal & Ors. v.State of Bihar & Ors.[120], Uttar Pradesh Avas Evam Vikas Parishad& Ors. v. Om Prakash Sharma[121], Akhil Bhartiya UpbhoktaCongress v. State of Madhya Pradesh & Ors.[122], Harminder SinghArora v. Union of India & Ors.[123], Jagdish Mandal v. State of Orissa& Ors.[124]and Ramana Dayaram Shetty v. International AirportAuthority of India & Ors.[125].

99. The respondents have filed elaborate written submissions torespond to petitioners’ arguments on the concept of democracy, as itexists in India and democratic due process as envisaged under theConstitution. It is contended that the manner of public participation inIndia is through the representative mode, as we have adopted therepresentative model of governance. It is submitted that the public electsits representatives and the Council of Ministers are collectively responsibleto the Parliament. To buttress this argument, the written submissionsstate that necessary element of democratic process is that directlyelected persons represent true will of the people and they must takedecisions that affect the people.100. The respondents have contended that the principle of Ruleof Law, as envisaged in India, requires due adherence to existing statutoryand constitutional principles. To include imaginary steps in the processof decision making by democratically elected representatives would beantithetical to the Rule of Law. It is urged in written submissions that thenature of participatory process proposed by the petitioners is akin to areferendum. Such process is not envisaged under our Constitution.

101. To demonstrate ample consultation within Lok SabhaSecretariat, the respondents have placed short affidavit on General

116 (2006) 13 SCC 382 (para 16)117 (1997) 1 SCC 53 (paras 3 and 4)118 (2009) 6 SCC 171 (paras 28 and 37 to 39)119 (2014) 9 SCC 516120 (1977) 3 SCC 457 (paras 9 and 10)121 (2013) 5 SCC 182 (para 29)122 (2011) 5 SCC 29 (paras 62 to 66)123 (1986) 3 SCC 247 (para 19)124 (2007) 14 SCC 517125 (1979) 3 SCC 489

APurpose Committee[126] which states that the idea of GPC, originallyconstituted for the first time on 26.11.1954, was to enable the PresidingOfficer/Speaker to take into confidence all members of the Houseirrespective of party lines while considering matters relating to the affairsof the House. Learned Solicitor general has further submitted that theneed for this project was expressed by the then Speaker of Lok SabhaBin writing vide letter dated 9.12.2015. In 2019, another letter wasaddressed by the present Speaker to the Prime Minister. Furthermore,separate presentations were conducted by the officials of the concerneddepartments before Speaker of Lok Sabha and Chairman of Rajya Sabhai.e., Vice-President of India in order to apprise them about the project. ItCis submitted in the affidavit that GPC for 17[th] Lok Sabha was constitutedon 21.11.2019 and present composition of the said Committee hasrepresentation from the following national political parties; whosemembers were elected representatives in the Parliament:

• Bhartiya Janata Party (BJP)D• Dravida Munnetra Kazhagam (DMK)

• All India Trinamool Congress (AITC)

• Indian National Congress (INC)

• Shiv Sena (SS)E• Biju Janata Dal (BJD)

• Bahujan Samaj Party (BSP)

• Lok Jan Shakti Party (LJSP)

• Revolutionary Socialist Party (RSP)F

• Telangana Rashtra Samiti (TRS)

• Yuvajana Sramika Rythu Congress Party (YSR Congress Party)

• Janata Dal (United) (JDU)

• Nationalist Congress Party (NCP)G

• Samajwadi Party (SP)

102. It is submitted that detailed presentation was made beforeGPC on 19.3.2020. The meeting was attended by Members of Parliament

being representatives of prominent national political parties havingpresence in the Lok Sabha, one Special Invitee, six Secretariat members,Secretary and Joint Secretary of MoHUA, Dr. Bimal Patel, Director,HCP Designs, and was chaired by the Speaker of Lok Sabha (Chairpersonof GPC). The aforesaid persons were present during the presentationregarding the new Parliament Building project. Furthermore, the budgetaryconsiderations were placed before the relevant committee comprisingof members across party lines and no objections is placed on record.Therefore, it would be wrong to allege that Parliament was kept in thedark regarding the project.

103. Responding to the contention that legislation ought to havebeen passed for this purpose, the respondents have submitted that therewas no constitutional requirement to adopt the legislative route asconstruction projects can be carried out in discharge of executivefunctions.

104. The respondents have specifically addressed in the writtensubmissions that extensive reliance on foreign decisions may not be usefulin the Indian context. In any case, that cannot be made the basis toanswer the matters in issue. It is urged that the precedents relied uponby the petitioners had dealt with express statutory provisions for publicparticipation, as applicable in the concerned country, and judicial opinionwas rendered in that specific context. Besides, these precedents dealwith prior public participation in legislative action. That is entirely differentthan extending similar public participation in the matter of executive andadministrative functions such as planning and development of nationalproject, in absence of any statutory requirement in that regard.

105. As regards approval by DUAC, the respondents, inconsolidated reply, have submitted that every local body in Delhi isrequired to procure approval by DUAC, which is statutory body meantto advise and guide the Government on matters submitted to it. It issubmitted that as per Section 11 of the DUAC Act, the proposal must besubmitted for scrutiny by DUAC in respect of any project of buildingoperations or engineering operations or any development proposal. It isstated that considering different stages for different components of theproject, DUAC approval as regards the Parliament project has beenobtained whereas the approval for rest of central vista precincts shall betaken as and when the development activity thereat is proposed in future.As regards application of mind, it is stated that the proposal was first

Aconsidered by the committee in its 1542[nd] meeting dated 5.6.2020 whereinit was deferred due to insufficient information as regards vehicular parkingplan and landscape plan. Thereafter, revised proposal was placed beforethe committee in its 1545[th] meeting dated 1.7.2020 wherein it had beenapproved. It is further submitted that the minutes of the committee revealthat all representations concerning heritage, parking, landscape etc. wereBplaced before the committee and duly considered by it while grantingapproval. To buttress this submission, it is urged that the minutes wereratified by the committee in its 1547[th] meeting on 10.7.2020 and noamendments were suggested by any member at the time of suchratification.C106. As regards the preservation of heritage structures andpermission of HCC, in addition to grounds already urged above, therespondents submit that no heritage structure is being affected in theentire project. In the written submissions, it is stated that heritageconservation does not prohibit improving the heritage structures by takingDnecessary action for increasing their life. The genesis of this argumentcould be understood by reproducing the following extract form para 150of the written submissions:

“150. ...The present project represents not radical break fromthe past so as to lean on the future, rather entails judicious policyEattempt to conserve the delicate heritage and historical value ofthe area whilst allowing room for growth and development forfuture generations. ….”

107. It is further submitted that as per relevant laws, permissionwould be required only for retrofitting of existing Parliament buildingFand no such prior permission is needed for the construction of new buildingin the neighbouring independent plot, without affecting the existingheritage Parliament building. Reliance has been placed upon Annexure-II of UBBL to show that regulations on development/redevelopment areonly for listed buildings and even for such buildings, no such approvalfrom HCC is needed at the planning stage. All such approvals are requiredGat the development stage only. To buttress this submission, it is urgedthat the mandate of HCC is limited to buildings only and it does notconcern the areas adjacent to such buildings. As far as area is concerned,DUAC is empowered to consider such changes and grant approval andaccordingly, it has already granted its approval, as aforesaid.H

108. Repelling the challenge to Consultation Services NIT on theground of limited competition, it is submitted that both national andinternational design firms were invited to participate in the process andwidest choice was given to applicants to encourage participation. It isurged that the requirement of prior experience of Government workwas consciously provided for to ensure that the firm is capable of workingin the administrative framework of Government. The respondents havealso contended that even if any irregularity could be pointed out in thetender process, none of the participants raised any grievance as regardsthe same and the petitioners have no locus to escalate it at this stage byway of public interest litigation.

109. On the alleged irregularities in percentage-based feemechanism, it is submitted that the apprehension regarding percentage-based fee for consultancy services is not sustainable as the consultancyfee was consciously pegged by the Government vide corrigendum dated23.9.2019 and thus, there was no incentive left for the consultant toescalate the cost of the project.

110. Addressing the contention of heightened judicial review inthis case, the respondents, in addition to grounds already urged in T.C.(C) 229/2020, have submitted that the subject project involves set ofpolicy decisions, namely – construction of new Parliament, location ofproposed structure, common Central Secretariat, treating them as mutuallyindependent projects and to achieve these objectives without impingingupon heritage. It is urged that the scope of judicial review must be limitedto the examination of violation of statutory and constitutional principlesand theoretical and academic questions need not be entertained or invokedfor striking down policy decisions otherwise in compliance with thestatutory provisions and mandate of the Constitution. The respondents,in their written submissions, have placed reliance upon Justice K.S.Puttaswamy (II)[127] to contend that the expression “procedureestablished by law” connotes fair and reasonable procedure and itcannot be equated with the due process clause, as understood and appliedin the American constitutional scheme. Reliance has been placed uponSunil Batra v. Delhi Administration[128]and Rajbala & Ors. v. State ofHaryana & Ors.[129] to contend that this Court has expressly rejectedthe existence of substantive due process under the Constitution. To

127 (supra at 74)128 (1978) 4 SCC 494129 (2016) 1 SCC 463

Abuttress this submission, it is submitted that judicial review in India, incontext of Article 13, is to be understood in reference to actual violationof any of the provisions of Part III of the Constitution.

111. Learned Solicitor General has submitted that the entire caseof the petitioners merely presents an alternative and to choose betweenBavailable alternatives is not within the domain of judicial review. It isurged that when appeal is made to the Court on flimsy and abstractgrounds which are incapable of any precise definition, the Court must becautious and must interpret in line with the language of the Constitution.Reliance has been placed upon Keshavan Madhava Menon v. State ofBombay[130] to advance this proposition. It is also submitted that ifCprocedure has been complied with substantially and in broad senseand application of mind is duly revealed, then no minute enquiry is calledfor on the basis of exposition in Lafarge Umiam Mining[131].

112. Addressing the contention regarding public trust, therespondents categorically submit that they are principally in agreementDwith the notion that Government ought to act in accordance with publictrust. However, this doctrine does not prohibit the Government fromutilising the resources held in public trust for the advancement of publicinterest itself.

113. Responding to the contention that respondents compromisedEwith public trust by entrusting the decision of new construction/renovationto the consultant, it is submitted that the task of making Master Plan orof deciding whether or not new building is required was never entrustedto the consultant and it was conscious decision taken by the Governmentafter consultation with all relevant entities. The Consultation NIT merelyFcalled upon the prospective bidders to prepare vision document whichcould be used to understand the vision of the bidders regarding the projectand scrutinize their applications on that basis and therefore, it cannot besaid that Government abdicated its duty. The consultant was merely toadvise whether renovation would suffice or new structure would beimminent and final decision regarding all aspects of the project restedGwith the Government.

114. To support their position, the respondents have placed relianceupon Narmada Bachao Andolan v. Union of India & Ors.[132],Shimnit130 AIR 1951 SC 128131 (supra at 58)H132 (2000) 10 SCC 664 (paras 226 to 235)

Utsch India Private Limited & Anr. v. West Bengal TransportInfrastructure Development Corporation Limited & Ors.[133], Stateof Madhya Pradesh v. Narmada Bachao Andolan &Anr.[134],Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain& Ors.[135], State of Kerala v. Joseph Antony[136], G. Sundarrajan v.Union of India & Ors.[137], University of Mysore v. C.D. GovindaRao & Anr.[138], Tata Iron & Steel Co. Ltd. v. Union of India & Anr.[139],Federation of Railway Officers Association & Ors. v. Union ofIndia[140], Avishek Goenka v. Union of India & Anr.[141], Dental Councilof India v. Subharti K.K.B. Charitable Trust & Anr.[142], Basavaiah(Dr.) v. Dr. H.L. Ramesh & Ors.[143], K.T. Plantation Private Limited& Anr. v. State of Karntaka[144], Rohit Dhupar & Ors. v. Lt. Governor& Ors.[145], Cynamide India[146], Canara Bank v. V.K. Awasthy[147],Haryana Financial Corporation & Anr. v. Kailash ChandraAhuja[148], Punjab National Bank & Ors. v. Manjeet Singh & Anr.[149],Karnataka State Road Transport Corporation & Anr. v. S.G.Kotturappa & Anr.[150],Viveka Nand Sethi v. Chairman, J&K BankLtd. & Ors.[151], Ranjan Kumar Mitra v. Andrew Yule & Co. Ltd. &Ors.[152], Jagjit Singh v. State of Haryana & Ors.[153], Chairman, Boardof Mining Examination and Chief Inspector of Mines v. Ramjee[154],Sohan Lal Gupta (Dead) through LRs. & Ors. v. Asha Devi Gupta133 (2010) 6 SCC 303 (para 34, 42 to 48 and 52)134 (2011) 7 SCC 639 (paras 36 and 37)135 (2007) 4 SCC 737 (para 16)136 (1994) 1 SCC 301 (para 14)137 (2013) 6 SCC 620 (paras 200, 201, 207 to 212)138 (1964) 4 SCR 575 (para 12)139 (1996) 9 SCC 709 (para 68)140 (2003) 4 SCC 289 (para 12)141 (2012) 5 SCC 275 (paras 20 to 22 and 25)142 (2001) 5 SCC 486 (paras 11 and 16)143 (2010) 8 SCC 372 (paras 13, 20 to 22 and 38)144 (2011) 9 SCC 1 (para 59)145 (2009) SCCOnline Del 487 (paras 7 to 9)146 (supra at 17, paras 27, 31 and 35)147 (2005) 6 SCC 321 (paras 6 to 9 and 18)148 (2008) 9 SCC 31 (paras 22 to 24, 35, 36, 40, 42, 44 and 45)149 (2006) 8 SCC 647 (paras 17, 19 and 22)150 (2005) 3 SCC 409 (para 24)151 (2005) 5 SCC 337 (paras 19, 20 and 22)152 (1997) 10 SCC 386 (para 1)153 (2006) 11 SCC 1 (paras 14, 20, 24 to 27, 44, 46, 47 and 49)154 (1977) 2 SCC 256 (para 13)

ABCD

EFGH

A& Ors.[155], Major G.S. Sodhi v. Union of India[156], Bhim Sen & Ors. v.State of Punjab[157], Barium Chemicals Ltd. & Anr. v. Company LawBoard & Ors.[158], Rohtas Industries v. S.D. Agarwal & Ors.[159], M.Jhangir Bhatusha & Ors. v. Union of India & Ors.[160], HaryanaFinancial Corporation & Anr. v. Jagdamba Oil Mills & Anr.[161],Puranlal Lakhanpal v. President of India & Ors.[162],Union of IndiaB& Ors. v. E.G. Nambudiri[163], Maharashtra State Board[164], MahabirJute Mills Ltd., Gorakhpore v. Shibban Lal Saxena & Ors.[165], SaratKumar Dash and Ors. v. Biswajit Patnaik and Ors.[166],Dr. AshwaniKumar v. Union of India & Anr.[167],R.K. Garg v. Union of India &Ors.[168], Premium Granites & Anr. v. State of T.N. & Ors.[169], DelhiCScience Forum v. Union of India[170], BALCO Employees’ Union(Regd.) v. Union of India & Ors.[171], State of Madhya Pradesh v.Narmada Bachao Andolan[172], Natural Resources Allocation[173], G.B.Mahajan & Ors. v. Jalgaon Municipal Council & Ors.[174], MeerutDevelopment Authority[175], Indira Nehru Gandhi v. Raj Narain[176],State of Karnataka v. Union of India & Anr.[177], Kuldip Nayar &DOrs. v. Union of India & Ors.[178], Ashoka Kumar Thakur v. Union ofIndia&Ors.[179],SupremeCourt Advocates-on-Record Association155 (2003) 7 SCC 492 (paras 29, 43 and 44)

156 (1991) 2 SCC 382 (paras 35 to 37)157 AIR 1951 SC 481

158 AIR 1967 SC 295 (para 10, 27, 60 and 64)E159 (1969) 1 SCC 325 (paras 7 to 9, 11 and 13)160 1989 (2) Supp. SCC 201 (paras 8, 9 and 13)

161 (2002) 3 SCC 496 (para 10)

162 AIR 1961 SC 1519

163 AIR 1991 SC 1216 (paras 6 to 10)

164 (supra at 46, paras 22 and 23)

165 (1975) 2 SCC 818 (para 3)F166 1995 Supp (1) SCC 434 (para 11)

167 2019 SCCOnline SC 1144 (paras 8 to 16, 19, 22 to 37, 43 and 44)

168 (1981) 4 SCC 675 (para 8)

169 (1994) 2 SCC 691 (para 54)

170 (1996) 2 SC 405 (para 7)

171 (2002) 2 SCC 333 (paras 77 to 88)G172 (supra at 134, para 36)

173 (supra at 101, paras 146 to 150)

174 (1991) 3 SCC 91 (paras 22 to 26)

175 (supra at 118, paras 40 to 46, 61, 62, 67 and 68)

176 1975 Supp. SCC 1 (paras 176 and 661)

177 (1977) 4 SCC 608 (para 238)178 (2006) 7 SCC 1 (para 107)H179 (2008) 6 SCC 1 (para 116)

& Anr. v. Union of India[180], Council of Civil Service Unions v.Minister for the Civil Service[181],Associated Provincial PictureHouses Ltd. v. Wednesbury Corporation[182], Indian RailwayConstruction Company Ltd. v. Ajay Kumar[183], R v. Secretary of Statefor the Home Department, Ex Parte Daly[184], Regina (Mahmood) v.Secretary of State for the Home Department[185], Huang & Ors. v.Secretary of State for the Home Department[186], Asia Foundation &Construction Ltd. v. Trafalgar House Construction (I) Ltd. andOthers[187], Reliance Airport Developers (P) Ltd. v. Airports Authorityof India & Ors.[188], Himachal Pradesh Housing and UrbanDevelopment Authority v. Universal Estate & Anr.[189], VillianurIyarkkai Padukappu Maiyam v. Union of India & Ors.[190], Centrefor Public Interest Litigation & Anr. v. Union of India & Ors.[191],Jagdish Mandal[192], Sterlite Industries (India) Limited & Ors. v.Union of India & Ors.[193], Municipal Corporation, Ujjain & Anr. v.BVG India Limited & Ors.[194], Lafarge Umiam Mining[195], N.D. Jayal& Anr. v. Union of India & Ors.[196],Alaknanda HydropowerCompany[197],M/s. Lithoferro & Ors. v. Ministry of Environment andForests[198], Lochner v. New York[199], New State Ice Co. v. Liebmann[200],West Coast Hotel Co. v. Parrish[201], United States v.Carolene Products

180 (2016) 5 SCC 1 (para 381)1811984 (3) All ER 935182 (1947) 2 All ER 680183 (2003) 4 SCC 579184 [2001] 3 All ER 433185 [2001] 1 WLR 840186 [2005] 3 All ER 435187 (1997) 1 SCC 738 (paras 9, 10 and 11)188 (2006) 10 SCC 1 (paras 56, 77 and 89 to 92)189 (2010) 14 SCC 253 (paras 22, 23 and 26)190 (2009) 7 SCC 561 (paras 113 to 115 and 165 to 170)191 (2000) 8 SCC 606 (para 19 to 22)192 (supra at 124, paras 21, 21.1., 21.6 and 22)193 (2013) 4 SCC 575 (paras 31 and 32)194 (2018) 5 SCC 462 (paras 14, 15 and 27)195 (supra at 58, paras 105 to 111)196 (2004) 9 SCC 362 (paras 19 and 20)197 (supra at 52, paras 13 to 16)198 (2013) SCC Online NGT 40 (paras 17 to 21 and 39)199 198 U.S. 45 (1905)200 285 U.S. 262 (1932)201 300 U.S. 379 (1937)

ABCD

ACo.[202], American Federation of Labor Et. Al. v. American Sash &Door Co.[203], Ferguson, Attorney General of Kansas, Et. Al. v.Skrupa[204], Kharak Singh v. State of U.P. & Ors.[205], Satwant SinghSawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi& Ors.[206], Wolf v. Colorado[207],Rustom Cavasjee Cooper v. Union ofIndia[208],Maneka Gandhi v. Union of India & Anr.[209], Bachan SinghBv. State of Punjab[210], State of A.P. & Ors. v. McDowell & Company& Ors.[211], Mohd. Arif alias Ashfaq v. Registrar, Supreme Court ofIndia & Ors.[212], Shayara Bano[213],K.S. Puttaswamy & Anr.(I)[214],Swiss Ribbons Private Limited & Anr. v. Union of India &Ors.[215], Kesavananda Bharati Sripadagalvaru v. State of Kerala &CAnr.[216], Peerless General Finance and Investment Co. Limited &Anr. v. Reserve Bank of India[217] and Daroga Singh & Ors. v. B.K.Pandey[218].115. Appearing for Respondent No. 9 (Consultant), Mr. HarishSalve, learned senior counsel stoutly contends that allegations of biasDand favouritism have been made by the petitioners which colourises thischallenge as one based on malice in fact. That allegation cannot proceedfurther in absence of the person against whom such case of bias ispleaded, by name. It is submitted that the virtue of participatory democracyis laudable but the extent and nature of participation cannot be enforcedthrough the medium of judicial review. Mr. Salve argues that participatoryEdemocracy is two-tier process of which major element isParliamentary law making which is done through the representative mode202 304 U.S. 144 (1938)203 335 U.S. 538 (1949)

204 372 U.S. 726 (1963)F205 AIR 1963 SC 1295206 AIR 1967 SC 1836207 338 U.S. 25 (1949)208 (1970) 1 SCC 248209 AIR 1978 SC 597210 (1980) 2 SCC 684211 (1996) 3 SCC 709G212 (2014) 9 SCC 737213 (supra at 100)214 (supra at 79)215 (2019) 4 SCC 17216 (1973) 4 SCC 225 (paras 634, 1436, 1437 and 1442)217 (1992) 2 SCC 343218 (2004) 5 SCC 26 (para 30)H

in India and not by referendum. It is submitted that the nature ofparticipation envisaged in India requires participation without causinghindrance in the system. It is for the Government to decide who is to beheard, for instance, in EC issues, only local affected people are meant tobe heard.

116. It is further urged that even arguably, mere absence ofsufficient participation would not be capable of being termed asWednesbury unreasonableness so as to quash the whole process. Further,the argument of participatory democracy in respect of important decisionsto be taken by the Government such as in respect of construction of anew Parliament building, if accepted, would be forcing the judiciary todefine the type of Government decisions where such procedure need tobe followed by applying the same logic. That will be groping in the darkand by no standards judicial function. In that, same logic may then beinvoked to compel the Government of the day to undertake publicparticipation before going for war on the fronts due to aggression bythe neighbouring country, which is more important than decision toconstruct new Parliament building.

117. Mr. Salve submits that the scope of judicial review should befocussed on two enquiries only – first, whether there is any illegality orinfraction of any statutory mandate and second, whether there is anyprocedural unfairness which can be checked by judicially manageablestandards. As regards the lack of information in public domain, it issubmitted that it is one thing to place information in public domain, but itdoes not mean that mere absence of information would render the decisionas vitiated.

118. To buttress his submissions, Mr. Salve placed reliance uponAruna Roy[219].

W.P.(C) No. 922/2020

119. On 17.10.2017, the MoHUA, while acting under Section-11A of 1957 Act, had issued notification S.O. 3348 (E) whereby Chapter-17 (clause 8(2)) of Master Plan “Permission of Use Premises in UseZones” was modified to permit the usage of land allocated for Public/Semi Public (PSP) usage for the purpose of Government offices. Thesaid notification is assailed by the petitioners herein with the followingprayer:

A“i. Issue an appropriate writ, order or direction calling for recordsand for quashing the Notification S.O. 3348 (E) dated 17.10.2017,promulgated by Respondent No. 1 being ultra vires the powerunder the Delhi Development Authority Act of 1957, and inviolation of Article 14 and 21 of Constitution of India;”

B120. In addition to grounds urged in T.C. (C) 229/2020, it issubmitted that the said notification violates the tenets of WednesburyPrinciple of Reasonableness and can be assailed on the three grounds of– illegality, irrationality and procedural impropriety. The petitioners submitthat the notification was the result of colourable exercise of power andno such power vested with the respondents so as to permit the usage ofCland for uncontemplated purposes.

121. To support their case, the petitioners have relied upon SyedHasan Rasul Numa & Ors. v. Union of India & Ors.[220], MackinonnMackenzie & Company Limited v. Mackinnon MackenzieEmployees Union[221], Babu Verghese & Ors. v. Bar Council of KeralaD& Ors.[222], State of Uttar Pradesh v. Singhara Singh & Ors.[223], KedarNath Yadav v. State of West Bengal & Ors.[224], Khub Chand & Ors.v. State of Rajasthan & Ors.[225], S. Rama Rao & Ors. v. JawaharlalNehru Technological University, Hyderabad & Anr.[226], AircelCellular Ltd. v. Union of India[227] and Legg & Ors. v. Inner LondonEEducation Authority[228].

W.P. (C) No. 1041/2020

122. This petition seeks to challenge various approvals includingaward of tender dated 2.9.2019, EC dated 17.6.2020 and No Objectionby CVC dated 30.4.2020. The prayer reads thus:F

“i. Issue writ in the nature of order and/or direction(s) callingfor the records of the various approvals/decisions granted/takento redevelop Central Vista including the Parliament such as the

220 (1991) 1 SCC 401 (paras 11 to 14)221 (2015) 4 SCC 544 (paras 42 and 44)G222 (1999) 3 SCC 422 (paras 31 and 32)223 AIR 1964 SC 358 (paras 7 and 8)224 (2017) 11 SCC 601 (paras 85, 88 and 89)225 AIR 1967 SC 1074 (para 7)226 1977 SCC Online AP 271 (paras 23, 24, 28 and 31)227 2016 SCC Online Mad 8463 (paras 141, 142, 144 and 152)H228 [1972] 1 WLR 1245 (Chancery Division)

tender awarded pursuant to the Notice dated 02.09.2019 NITNo. 04/CPM/RPZ/NIT/2019-20, Environmental Clearance dated17.06.2020 in relation to the Parliament, the Central VistaCommittee “No objection” dated 30.04.2020, and after reviewingthe same to quash and set aside the said approvals/decisions.”

123. The grounds adopted by the petitioner herein are similar tothose adopted by the petitioners in W.P. (C) No. 853/2020 and W.P. (C)No. 638/2020 and we do not intend to dilate on the same for brevity.

CONSIDERATION

RULE OF LAW

124. After ruminating on the blistering and exquisite arguments ofthe learned counsel for the parties, we find that the same are profferedon the hypothesis of governance by Rule of Law with specific emphasison the high constitutional tenets and values of democratic polity, asadopted in India, and the principle of constitutionalism. All other grounds,relating to alleged violations of statutory and municipal laws, flow fromthe petitioners’ understanding of the aforesaid fundamental principlesand thus, we begin our discussion by examining this fundamental premiseso as to understand to what extent, if at all, and in what manner policy/administrative decision-making can be overseen in judicially manageablestandards in the light of such principles.

125. To consider the matters in issue, we deem it apposite totraverse through some illuminating discourse of founding fathers of ourcountry. On 9.12.1946, when the Constituent Assembly embarked uponthe journey to create the most fundamental instrument of futuregovernance of the country, it had two concepts in mind – democracyand Rule of Law. The reason for this pin-pointed emphasis reflects aptlyfrom the words of Sir S. Radhakrishnan, who rose to speak up as thefirst speaker after election of Permanent Chairman on 11.12.1946. Hesaid:

“...We have to remember with gratitude all those great souls whoworked and suffered for the freedom of this country, for the dawnof this day. Thousands died, more thousands suffered privation,imprisonment, and exile, and it is their suffering that has cementedand built up this great edifice ...[229]”

229 Constituent Assembly Debates Vol. I (9.12.1946 – 23.12.1946)

A126. The fact that millions of Indians had struggled incessantly tobreathe in democratic polity which treated them not as mere subjectsbut as cardinal constituents on which the whole edifice of the nationstands, was the primary reason that our Constitution makers wanted anenvironment where law operates equally upon one and all, where Ruleof Law trumps over even the slightest notion of rule by whims, whereBthe equation between state and citizens is not marked by imbalance andwhere law, as it exists, governs all legal relationships.

127. When an effort is made to decipher the understanding ofmembers as regards the concept of governance by Rule of Law duringthe Constituent Assembly Debates, an interesting pattern emerges andCwe must delineate it henceforth. During the discussion on Part-III, Mr.Naziruddin Ahmad emphatically stated that democracy means rule oflaw. He elaborated his viewpoint by stating thus:

“We are erecting one of the finest democracies in the world. Butthe implication of democracy must be squarely faced. DemocracyDmeans rule of law as opposed to rule of force. Inautocracies and in Totalitarian States the law is not supreme. Butdemocracy means supremacy of the law where no one, behe the highest individual, is above the law. We shouldtherefore all respect law and should be law-abiding citizens inorder to inculcate that sense of law-abidingness wherein lies theEsafety of democracy. We should ourselves follow democraticprinciples, democratic methods and respect the law.[230]”

(emphasis supplied)

On another occasion, Dr. P.K. Sen exposited that Rule of Law ismeant to save the Government from disruptive tendencies. He said:F“…The rule of law is, in my humble judgment, the rule that shouldsave the Government from all manner of disruptivetendencies…[231]”

While speaking on the administrative setup that the British left forus, Dr. P. Subbarayan observed Rule of Law to be concept on whichGfuture of the country depends. He said:

“The second point I wish to touch upon is the rule of law which Ithink is peculiar part of the English legal system. If there is

230 Constituent Assembly Debates Vol. VIII (16.5.1949 – 16.6.1949)231 Constituent Assembly Debates Vol. VIII (16.5.1949 – 16.6.1949)H

anything which I would like to cling to in the future of this country,it is this rule of law…[232]”

On 17.9.1949, Mr. K.M. Munshi rose to speak on the evolution ofSupreme Court of India for the independent India and expressed anearnest hope premised on nothing but the ideal of Rule of Law. He said:

“Sir, the British Parliament and the Privy, Council are the twogreat institutions which the Anglo-Saxon race has given to mankind.The Privy Council during the last few centuries has not only laiddown law, but coordinated the concept of rights and obligationsthroughout all the Dominions and Colonies in the BritishCommonwealth. So far as India is concerned, the role of the PrivyCouncil has been one of the most important. It has been verygreat unifying force and for us Indians it became theinstrument and embodiment of the rule of law, concept onwhich alone we have based the democratic institutions whichwe have set up in our Constitution.[233]”

(emphasis supplied)

He added:

“Sir, on the 26th of January our Supreme Court will come intoexistence and it will join the family of Supreme Courts of thedemocratic world of which the Privy Council is the oldest andperhaps the greatest. I can only hope and trust that though wepart with the Privy Council our Supreme Court will carry forwardthe traditions of the Privy Council, traditions which involve thatjudicial detachment, that unflinching integrity, that subordinationof everything to the rule of lawand that conscientious regardfor the rights and for justice not only between subjects andsubjects but also between the State and the subjects.”

(emphasis supplied)

What emerges from this discourse is that the makers of theConstitution envisaged legal and political system which would besubservient to Rule of Law.

128. Rule of Law inter alia posits four universal tenets. It is asystem of laws, institutions, norms and community commitment that232 Constituent Assembly Debates Vol. XI (14.11.1949 – 26.11.1949)233 Constituent Assembly Debates Vol. IX (30.7.1949 – 18.9.1949)

Aenvisages – Accountability of Government and private actors alike underthe law; The laws must be just, clear, publicized and stable and appliedevenly, protect fundamental rights and human rights; Open Government– meaning thereby the processes by which the laws are enacted,administered and enforced are accessible, fair and efficient; andAccessible justice – to include timely delivery of justice by competent,Bethical, and independent representations and neutrals who are accessible,have adequate resources and mirror the traits of the communities theyserve[234].

129. Theoretically, the concept of Rule of Law was understoodand applied to advance even autocratic regime. Louis XIV, NapoleanCand Hitler had Governments based on nothing but Rule of Law. But withthe evolution of political discourse, the expanse of Rule of Law traversedfrom an autocratic to democratic one. It underwent transformationfrom being concept used by autocrats to control their subjects to aliving idea of governance wherein citizens and state interact with eachDother on level playing field.

130. For the purposes of present examination, we need to providelife and meaning to this idea as concept capable of judicial applicationwith manageable standards and not just as an idea of political rhetoric.The difference between these two approaches is real and reflects in theEintroductory words of T.R.S. Allan in “Constitutional Justice” wherehe notes thus:

“Its rhetorical power in aid of an argument about governmentalauthority, individual liberty, or constitutional legitimacy, makes therule of law an object of understandable suspicion as much as oneof reverence: its uncertain and contested content allows itFto be too readily invoked in support of opinions whose”cogency might not withstand careful scrutiny…[235]

(emphasis supplied)

131. The principle of Rule of Law coalesces two words – ruleGand law. The two words are not only connected with each other but alsocontrol the meanings attributable to each other. “Rule” refers to the ideaof governing the state and depending on the nature of model adopted ina country, such rule can be effected in multiple ways. When we gave to

234 worldjusticeproject.orgH235 T.R.S. Allan, Constitutional Justice, Oxford University Press (Edn. 2001) pg. 1

ourselves the Constitution, we categorically envisioned such rule to be“DEMOCRATIC” i.e., Government of the people, by the people andfor the people. The word “law”, now, lays down the precise contours ofmode of ruling in India. Article 13 provides an inclusive definition of“law” as understood in India and reads thus:

“13. Laws inconsistent with or in derogation of the fundamentalrights.—

(1) All laws in force in the territory of India immediately beforethe commencement of this Constitution, in so far as they areinconsistent with the provisions of this Part, shall, to the extent ofsuch inconsistency, be void.

(2) The State shall not make any law which takes away or abridgesthe rights conferred by this Part and any law made in contraventionof this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule,regulation, notification, custom or usage having in the territoryof India the force of law;

(b) “laws in force” includes laws passed or made by aLegislature or other competent authority in the territory of Indiabefore the commencement of this Constitution and notpreviously repealed, notwithstanding that any such law or anypart thereof may not be then in operation either at all or inparticular areas.

(4) Nothing in this article shall apply to any amendment of thisConstitution made under article 368.”

The first written safeguard, mentioned in Article 13, categoricallyprohibits the making of any law which contravenes the fundamentalrights. The legislation passed in Parliament is not included in this definitionbut is covered separately in Articles 245 and 246. What is clear is thatthe structure of rule in India is duly codified by the makers. It primarilymeans democratic rule based upon law as envisaged in the Constitution.

132. With passage of time, the word “law” has also beencircumscribed by plethora of safeguards, written and unwritten, therebywidening the array of rights which were not articulated by the founding

Afathers. For, the most remarkable features of living and dynamicConstitution are its ability to grow and stay effective with the growth ofsocio-economic structures and vicissitudes. To elaborate further, thecharacteristics of reasonableness, non-arbitrariness and fairness havetime and again shown direction to law and thus, to rule by such law.

B133. The above discussion is instructive on at least three counts-first, Rule of Law requires law in existence; second, such law mustqualify as law within the meaning of the Constitution and must satisfythe standards laid therein and third, legally applicable meaning of Ruleof Law in India can be best understood as democratic rule within thefour corners of the Constitution, as originally envisaged and as isCinterpreted from time to time. The existence of democracy per se doesnot guarantee adherence to Rule of Law, but abidance of Rule of Lawby one and all is the hallmark of real thriving democracy.

134. The fact that all power flows from law and must be exercisedin accordance with such law is easy to be theorized in constitutionalDdiscourse, but difficult to be sustained in the aftermath of ever-expandingpotpourri of the law itself. It is for this very reason the statement – ‘Ruleof Law’ must encompass dynamic concept albeit rooted in four cornersof the Constitution. It provides constant trigger to any state-citizenintercourse and calls upon this Court to strike just balance betweenEtwo entities, both equally bound by the same principle of superiority oflaw. just and time-tested methodology to strike this balance lies in theend product of furthering the avowed goal of democracy premisedupon Rule of Law and not dragging it backwards.135. The principle of Rule of Law runs as common thread throughFthe substantive as well as procedural laws. democratic polity requiresall organs of the state to attach equal importance to substance of law aswell as to the procedure delineated to perform such substantive functions.That must be the constant endeavour to touch both ends as well asmeans.

DEMOCRATIC DUE PROCESS AND JUDICIALGREVIEW

136. The petitioners have called upon this Court to apply the scaleof “democratic due process” for examining the validity of proceduresadopted by the respondents at various stages. Before expressing ouropinion on whether the concept of Rule of Law in India envisionsH

something akin to democratic due process or not, we must make anendeavour to understand the meaning of this phrase.

137. The phrase “democratic due process” is not privy to anyreasonably acceptable definition and thus, it is relevant to understand itin substance. Rodney A. Smolla, in his seminal work “Democratic DueProcess: Administrative Procedure after Bishop v. Wood”[236] explainedthis phrase in the form of negative concept i.e., one that diminishesconstitutional protections rather than enhancing them, as opposed to thepetitioners’ understanding. He couched it as phenomenon wherein:

“... the responsibility for defining, shaping and limiting administrativedue process has been taken from the courts and given to thelegislatures. By placing this responsibility in the hands of electedrepresentatives, the Supreme Court has in effect created a“democratic due process clause…..”

138. The background story leading upto the enunciation of thisphrase can be understood by making reference to Bishop v. Wood[237]wherein the US Supreme Court upheld the termination of Carl Bishop, apoliceman in North Carolina, who was terminated without prior hearing.The Court affirmed the decision on the ground that the applicable statutoryemployment laws did not mandate any prior hearing and the same couldnot be compelled by the invocation of the due process clause. Uponfurther examination, one would note that this decision was not an isolatedone, rather, it was culmination of prior decisions on terminations frompublic employment, as noted by Smolla in his work. Beginning fromArnett, Director, Office of Economic Opportunity, Et. Al. v. KennedyEt. Al. [238 ]and Board of Regents of State Colleges Et. Al. v. Roth[239],the US Supreme Court made conscious departure from the due processclause, as enshrined in 14[th] amendment of the US Constitution. Thebasis of this departure is reflected in the opinion of Justice Stewart,writing for the Court in Roth[240 ]wherein he observed that there are someprocesses in the Government wherein due process clause may not beimported. He relied upon the language of fourteenth amendment whichlays down that no state shall “deprive any person of life, liberty, or property,

236 Duke Law Journal, Vol. 1977, No. 2, Eighth Annual Administrative Law Issue (May,1977), pp. 453-488237 426 U.S. 341 (1976)238 416 U.S. 134 (1974)239 408 U.S. 564 (1972)240 (supra at 239)

Awithout due process of law” to hold that due process clause wouldbecome operative only when person’s life, liberty or property is atstake. The underlying idea behind shifting the judicial eye from blanketapplication of due process to enforcement of specific processes understatutes is that, due process must be restricted to matters involving actualdeprivation of life, liberty or property. Smolla, in the aforesaid work,Bnotes that all administrative due process decisions were primarily markedby two characteristics:

“….. first, property interest is not an abstract expectation of abenefit, but legitimately claimed entitlement; and second, indetermining whether an asserted interest is mere expectation orCa matured entitlement, the Court will look not to the Constitution,but to an independent source of law, such as state statute[241].”

This conscious judicial departure from blanket application of dueprocess clause is understood in the American constitutional discourse asevolution of due process into democratic due process - as it restatesgiving effect to the mandate of statutes duly enacted by electedDrepresentatives.

139. Though the petitioners have used this phrase in mannerwhich is purportedly opposite to the way democratic due process isperceived in U.S., the above discussion is relevant to understand thethrust of the petitioners on acceptance of procedural standard akin toE“due process” in administrative matters. The above discussion irresistiblyoffers the following takeaways –

first, the requirement of due process is envisaged in mattersinvolving deprivation of individual rights;

second, before asserting deprivation of right, the claimant hasFto discharge the onus of proving the entitlement to such right;third, such deprivation needs to be demonstrably proved in orderto remedy it;

fourth, even in U.S., there is judicial acceptance of the tenet thatthe requirement of due process cannot be enforced in allGovernment processes;Gfifth, there can be situations when existence of duly enacted andvalid statutes may preclude the application of the principle of dueprocess in adjudication.

241 Duke Law Journal, Vol. 1977, No. 2, Eighth Annual Administrative Law Issue (May,1977), pg. 454H

140. Reverting to the Indian context, the inroad of due processclause in the Indian Constitution has unique history of its own. WhenPandit Shri Thakur Das Bhargava, in the Constituent Assembly, proposedan amendment to Article 15 (now Article 21) to substitute the words“procedure established by law” with “due process of law[242]”, hewas supported by many other stalwarts of the Assembly who, in onevoice, considered that inclusion of thelater expression would be muchmore effective in safeguarding personal liberty of persons. The proposedchange, however, did not appeal to others including Dr. B.R. Ambedkarand Mr. Alladi Krishnaswami Ayyar. Drawing upon the origin and dubiousacceptability of the doctrine in U.S., Ayyar said:

“… Today, according to Professor Willis, the expression means,what the Supreme Court says what it means in any particularcase. It is just possible, some ardent democrats may have greaterfaith in the judiciary than in the conscious will expressed throughthe enactment of popular legislature. Three gentlemen orfive gentlemen, sitting as court of law, and stating whatexactly is due process according to them in any particularcase, after listening to long discourses and arguments ofbriefed counsel on either side, may appeal to certaindemocrats more than the expressed wishes of thelegislature or the action of an executive responsible to thelegislature. In the development of the doctrine of `due process’,the United States Supreme Court has not adopted consistentview at all and the decisions are conflicting. One decision veryoften reversed another decision. I would challenge any memberof the Bar with deep knowledge of the cases in the UnitedStates Supreme Court to say that there is anything likeuniformity in regard to the interpretation of `due process’.One has only to take the index in the Law Reports AnnotatedEdition for fifteen years and compare the decisions of one yearwith the decisions of another year and he will come to the conclusionthat it has no definite import. It all depended upon the particularJudges that presided on the occasion. Justice Holmes took aview favourable to social control. There were other Judges of aTory complexion who took strong view in favour of individualliberty and private property…[243]"

(emphasis supplied)

242 Constituent Assembly Debates Vol. IX (30.7.1949 – 18.9.1949)

243 Constituent Assembly Debates Vol. VII (4.11.1948 – 8.1.1949)

CDEF

ABefore the amendment was negatived by voting, Dr. B.R.Ambedkar rose to sum up the controversy in the Assembly and noted asto how the distinction between “due process” and “procedure establishedby law” is essentially one of the extents and scope of judicial review thatthe Courts must be empowered to exercise in independent India. Hesaid:B

“… The question now raised by the introduction of the phrase‘due process’ is whether the judiciary should be given the additionalpower to question the laws made by the State on the ground thatthey violate certain fundamental principles.[244]"

CHe went on to elaborate and, in way, to reinforce the expressnegation of due process clause which was to follow his speech and said:

“The question of “due process” raises, in my judgment, the questionof the relationship between the legislature and the judiciary. In afederal constitution, it is always open to the judiciary to decideDwhether any particular law passed by the legislature is ultra viresor intra vires in reference to the powers of legislation which aregranted by the Constitution to the particular legislature. If the lawmade by particular legislature exceeds the authority of the powergiven to it by the Constitution, such law would be ultra vires andinvalid. That is the normal thing that happens in all federalEconstitutions. Every law in federal constitution, whether madeby the Parliament at the Centre or made by the legislature of aState, is always subject to examination by the judiciary from thepoint of view of the authority of the legislature making the law.The ‘due process’ clause, in my judgment, would give theFjudiciary the power to question the law made by thelegislature on another ground. That ground would bewhether that law is in keeping with certain fundamentalprinciples relating to the rights of the individual…”

(emphasis supplied)

GThe above discussion vividly expounds that the makers of theConstitution expressly rejected the incorporation of due process clause.

141. The express deletion of “due process” from the draftConstitution and replacement thereof by “procedure established by law”

244 Constituent Assembly Debates Vol. VII (4.11.1948 – 8.1.1949)

as noted by Jurist Granville Austin, is adverted to by this Court in K.S.Puttaswamy(I)[245] thus:

“276. The third major change which the Constituent Assemblymade was that the phrase “due process of law” was deleted fromthe text of the draft Constitution. Following B.N. Rau’s meetingwith Justice Frankfurter, the Drafting Committee deleted the phrase“due process of law” and replaced it with “procedure establishedby law”. Granville Austin refers to the interaction betweenFrankfurter and B.N. Rau and the reason for the deletion [GranvilleAustin, The Indian Constitution : Cornerstone of aNation (Oxford University Press, 1966) at p. 103.] :“Soon after, Rau began his trip to the United States, Canada,Eire, and England to talk with justices, constitutionalists, andstatesmen about the framing of the Constitution. In the UnitedStates he met Supreme Court Justice Felix Frankfurter, whotold him that he considered the power of judicial review impliedin the due process clause both undemocratic—because fewJudges could veto legislation enacted by the representatives ofa nation—and burdensome to the Judiciary. Frankfurter hadbeen strongly influenced by the Harvard Law School’s greatconstitutional lawyer, James Bradley Thayer, who also fearedthat too great reliance on due process as protection againstlegislative oversight or misbehaviour might weaken thedemocratic process. Thayer’s views had impressed Rau evenbefore he met Frankfurter. In his Constitutional Precedents,Rau had pointed out that Thayer and others had ‘drawn attentionto the dangers of attempting to find in the Supreme Court—instead of in the lessons of experience—a safeguard againstthe mistakes of the representatives of people’.”

142. Further, the whole idea of due process was meant to safeguardpersonal liberties of individuals by ensuring that the process to be usedfor taking away such liberty complies with certain standards. It wasnever meant to be used to circumscribe or to questionthe administrativedecisions by applying higher bench mark than the statutory defined/articulated obligations. This is not to say that administrative action wasleft unchecked by the Constitution. The Constitution provides for ascheme wherein “law” is made subject to all the provisions of Part-III

245 (supra at 79)

Adepending on the nature of action and nature of consequence on therights. The test of nature of action and nature of consequence isessential to determine the nature of remedy that the Constitution canoffer. For this purpose, line must be drawn between executive actionwhich has direct bearing on personal liberty of individual; and executiveaction which comprises of ministerial/administrative functions with noBdirect impact on individual liberties.

143. The distinction is relevant to highlight crucial aspect of thegrowth of constitutional law in India. As regards individual liberties, wehave witnessed wholehearted and rather expansive approach by theCourt. One would note that it was during the review of an administrativeCaction with bearing on personal liberty that this Court mandated theprocedure in “procedure established by law” to be just, fair and non-arbitrary, as distinguished from fanciful, arbitrary and oppressive inManeka Gandhi[246]. With unwinding of time, dimensions came to beadded to increase the fairness of procedure so as to make it more exactingDfor the executive to put curbs on personal liberty of an individual. InMithu v. State of Punjab[247]and Sunil Batra[248], standards of fairnessand non-arbitrariness were held to inform the word “law” as well in thephrase “procedure established by law” because individual liberties wereat stake. In Sunil Batra[249], Desai J. noted in para 228 thus:

E“228. ... The word “Law” in the expression “procedure establishedby law” in Article 21 has been interpreted to mean in ManekaGandhi case that the law must be right, just and fair, and notarbitrary, fanciful or oppressive. Otherwise it would be noprocedure at all and the requirement of Article 21 would no besatisfied. If it is arbitrary it would be violative of Article 14...”F

However, in Rajbala and Ors. v. State of Haryana andOrs.[250],this Court succinctly observed about the non-existence of thedoctrine of substantive due process in the Indian Constitution thus:

“64. From the above extract from McDowell & Co. case [StateGof A.P. v. McDowell & Co., (1996) 3 SCC 709, para 43] it isclear that courts in this country do not undertake the task of

246 (supra at 209)247 (1983) 2 SCC 277248 (supra at 128)249 (supra at 128)H250 (2016) 2 SCC 445

declaring piece of legislation unconstitutional on the ground thatthe legislation is “arbitrary” since such an exercise implies valuejudgment and courts do not examine the wisdom of legislativechoices unless the legislation is otherwise violative of some specificprovision of the Constitution. To undertake such anexamination would amount to virtually importing thedoctrine of “substantive due process” employed by theAmerican Supreme Court at an earlier point of time whileexamining the constitutionality of Indian legislation. Aspointed out in the above extract, even in United States thedoctrine is currently of doubtful legitimacy. This Court longback in A.S. Krishna v. State of Madras, AIR 1957 SC 297declared that the doctrine of due process has no applicationunder the Indian Constitution [Municipal Committee,Amritsar v. State of Punjab, (1969) 1 SCC 475]. As pointed outby Frankfurter, J., arbitrariness became mantra.

(emphasis supplied)

In K.S. Puttaswamy (I)[251], the Court was more categorical innoting the dichotomy between these two expressions and observed thus:

“290. The constitutional history surrounding the draftingof Article 21 contains an abundant reflection of deliberateand studied decision of the Constituent Assembly to deletethe expression “due process of law” from the draftConstitution when the Constitution was adopted. In theConstituent Assembly, the Drafting Committee chaired by Dr. B.R.Ambedkar had included the phrase but it came to be deleted aftera careful evaluation of the vagaries of the decision-making processin the US involving interpretation of the due process clause.Significantly, present to the mind of the Framers of our Constitutionwas the invalidation of social welfare legislation in the US on theanvil of the due process Clause on the ground that it violated theliberty of contract of men, women and children to offer themselvesfor work in free market for labour. This model evidently did notappeal to those who opposed the incorporation of similar phraseinto the Indian Constitution ....”

(emphasis supplied)

251 (supra at 79)

[2021] 15 S.C.R.

AIt further noted the dangers of construing substantive due processas rigid principle of constitutional interpretation in India and vagariesassociated with it thus:

“296. The danger of construing this as an exercise of“substantive due process” is that it results in theBincorporation of concept from the American Constitutionwhich was consciously not accepted when the Constitutionwas framed. Moreover, even in the country of its origin,substantive due process has led to vagaries of judicialinterpretation. Particularly having regard to the constitutionalhistory surrounding the deletion of that phrase in our Constitution,Cit would be inappropriate to equate the jurisdiction of constitutionalcourt in India to entertain substantive challenge to the validity ofa law with the exercise of substantive due process under the USConstitution. Reference to substantive due process in some ofthe judgments is essentially reference to substantive challengeDto the validity of law on the ground that its substantive (as distinctfrom procedural) provisions violate the Constitution.”

(emphasis supplied)

144. Therefore, the trajectory of our jurisprudence in review ofmatters involving personal liberties has been one of strict approaches. ItEis, however, misnomer to propagate that we have gradually transformedfrom chosen “procedure established by law” into once consciouslyrejected “due process of law”. Indisputably, we are not dealing with amatter of personal liberty per se. The petitioners, despite their best ofefforts, have not been able to demonstrate case of deprivation of lifeFor personal liberty of any individual on account of any of the impugnedexecutive action. Whereas, it is essential for the petitioners todemonstrate real and direct impact or restriction on their corefundamental rights due to the impugned executive action to invoke thedue process argument. cause-effect relationship is essential. Onlythen the burden would shift on the State to either show the absence ofGrestrictions or justification of restrictions within the permissible exceptionsof Part-III.

145. Concededly, we are sitting in review of the process of anadministrative or so to say quasi legislative action which falls in the lattercategory, namely, with no direct impact on personal liberties as such. AHjudicial review is an exercise in reference to some existing rights and the

reliefs and remedies prayed for. The Rule of Law, as accepted andsettled in India, with regard to judicial interference in administrative andexecutive or policy matters is no more res integra. The duty enjoinedupon the judiciary is to ensure checks and balances; and to place itselfbetween the Government and citizens when they come face to face in aCourt of law. It is meant to act as an equaliser and ensure that the flowof decisions from executive to citizens is overseen through the prism ofwell-established principles, as and when called upon to do so. The judicialorgan is not meant to impose the citizens’ or even its own version ofgood governance upon the Government in the name of Rule of Law inexercise of its power of judicial review.

146. In Chief Constable of the North Wales Police v. Evans[252],Lord Brightman very succinctly observed thus:

“Judicial review is concerned, not with the decision, but with thedecision-making process. Unless that restriction on the power ofthe court is observed, the court will in my view, under the guise ofpreventing the abuse of power, be itself guilty of usurping power.”

Benjamin Cardozo, in his seminal work “TheNature of theJudicial Process” elaborated as to how Judge derives his strengthfrom hallowed principles thus:

“… The judge, even when he is free, is still not wholly free. He isnot to innovate at pleasure. He is not knight-errant, roaming atwill in pursuit of his own ideal of beauty or of goodness. He is todraw his inspiration from consecrated principles. He is not to yieldto spasmodic sentiment, to vague and unregulated benevolence.He is to exercise discretion informed by tradition, methodizedby analogy, disciplined by system, and subordinated to “theprimordial necessity of order in the social life.” Wide enough in allconscience is the field of discretion that remains…[253].”

In Reliance Airport Developers[254], this Court discussed the scopeof judicial review in administrative action and noted thus:

“56. One of the points that falls for determination is the scope forjudicial interference in matters of administrative decisions.Administrative action is stated to be referable to broad area of

252 [1982] 1 WLR 1155253 The Nature of the Judicial Process, Benjamin Cardozo, New Haven: Yale UniversityPress, 13[th ]Edn. 1946 pg. 141254 (supra at 188)

Agovernmental activities in which the repositories of power mayexercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exerciseof power, whether legislative or administrative, will be setaside if there is manifest error in the exercise of such poweror the exercise of the power is manifestly arbitrary (see StateBof U.P. v. Renusagar Power Co. [(1988) 4 SCC 59 : AIR 1988SC 1737] ). At one time, the traditional view in England was thatthe executive was not answerable where its action was attributableto the exercise of prerogative power. Professor de Smith in hisclassic work Judicial Review of Administrative Action, 4th Edn.Cat pp. 285-87 states the legal position in his own terse languagethat the relevant principles formulated by the courts may be broadlysummarised as follows. The authority in which discretion isvested can be compelled to exercise that discretion, butnot to exercise it in any particular manner. In general, adiscretion must be exercised only by the authority to which it isDcommitted. That authority must genuinely address itself to thematter before it; it must not act under the dictates of another bodyor disable itself from exercising discretion in each individualcase. In the purported exercise of its discretion, it must not dowhat it has been forbidden to do, nor must it do what it has notEbeen authorised to do. It must act in good faith, must have regardto all relevant considerations and must not be influenced byirrelevant considerations, must not seek to promote purposes aliento the letter or to the spirit of the legislation that gives it power toact, and must not act arbitrarily or capriciously. …”

(emphasis supplied)

The Court then summed up the principles into two broad categoriesthus:

“56. …These several principles can conveniently be grouped intwo main categories: (i) failure to exercise discretion, and (ii)excess or abuse of discretionary power. The two classes are not,however, mutually exclusive. Thus, discretion may be improperlyfettered because irrelevant considerations have been taken intoaccount, and where an authority hands over its discretion to anotherbody it acts ultra vires.”

The Court further added the grounds of non-application of mindto relevant factors and non-existence of facts and noted thus:

“57. ...If the power has been exercised on non-consideration ornon-application of mind to relevant factors, the exercise of powerwill be regarded as manifestly erroneous. If power (whetherlegislative or administrative) is exercised on the basis of factswhich do not exist and which are patently erroneous, such exerciseof power will stand vitiated ...”

In Council of Civil Service Unions[255], Lord Diplock attemptedto sum up the grounds of judicial review of administrative action underthree broad heads and noted thus:

“… Judicial review has I think developed to stage today when,without reiterating any analysis of the steps by which thedevelopment has come about, one can conveniently classify underthree heads the grounds on which administrative action is subjectto control by judicial review. The first ground I would call‘illegality’, the second ‘irrationality’ and the third‘procedural impropriety’. That is not to say that furtherdevelopment on case by case basis may not in course of timeadd further grounds. I have in mind particularly the possibleadoption in the future of the principle of ‘proportionality’ which isrecognised in the administrative law of several of our fellowmembers of the European Economic Community; but to disposeof the instant case the three already well-established heads that Ihave mentioned will suffice.”

(emphasis supplied)

Apart from noting that judicial review is warranted only in casesof illegality, irrationality and procedural impropriety, Lord Diplockprophetically noted that the categories of review could not be exhaustivein society where administrative action is making inroads in all spheresof human activity and that “proportionality” could emerge as yet anotherground of review in future.

147. This Court succinctly summed up the position in Tata Cellularv. Union of India[256] and observed thus:

255 (supra at 181)256 (1994) 6 SCC 651

A“94. The principles deducible from the above are:(1) The modern trend points to judicial restraint in administrativeaction.

(2) The court does not sit as court of appeal but merelyreviews the manner in which the decision was made.B(3) The court does not have the expertise to correct theadministrative decision. If review of the administrativedecision is permitted it will be substituting its own decision, withoutthe necessary expertise which itself may be fallible.

(emphasis supplied)

148. We must note that the scope, operation and extent of judicialreview is dependent upon the nature of subject matter that Court isdealing with. constitutional Court cannot devise uniform standard of

Dinterference particularly when nature of administrative action may involveexpediency (in relative terms) in execution depending on the subjectmatter. In Council of Civil Service Unions[257], Lord Scarman observedthus:

“… Just as ancient restrictions in the law relating to the prerogativeEwrits and orders have not prevented the courts from extendingthe requirement of natural justice, namely the duty to act fairly, sothat it is required of purely administrative act, so also has themodern law, vivid sketch of which my noble and learned friendLord Diplock has included in his speech, extended the range ofjudicial review in respect of the exercise of prerogative power.FToday, therefore, the controlling factor in determiningwhether the exercise of prerogative power is subject tojudicial review is not its source but its subject matter.”

(emphasis supplied)

G149. Graham Aldus and John Alder in their book “Applications forJudicial Review, Law and Practice”, as relied upon by the Court inReliance Airport Developers[258], have identified two categories ofnational security and foreign affairs to demonstrate how judicial review

257 (supra at 181)H258 (supra at 188)

can be restricted/moulded in light of the subject matter before the Courtin following words:

“57. …..There is general presumption against ousting thejurisdiction of the courts, so that statutory provisions whichpurport to exclude judicial review are construedrestrictively. There are, however, certain areas ofgovernmental activity, national security being the paradigm,which the courts regard themselves as incompetent toinvestigate, beyond an initial decision as to whether theGovernment’s claim is bona fide. In this kind of non-justiciablearea judicial review is not entirely excluded, but very limited. Ithas also been said that powers conferred by the Royal Prerogativeare inherently unreviewable but since the speeches of the Houseof Lords in Council of Civil Service Unions v. Minister for theCivil Service [1985 AC 374 : (1984) 3 WLR 1174 (HL) : (1984)3 All ER 935] this is doubtful. Lords Diplock, Scaman and Roskiliappeared to agree that there is no general distinction betweenpowers, based upon whether their source is statutory orprerogative but that judicial review can be limited by the subject-matter of particular power, in that case national security. Manyprerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some arereviewable in principle, including the prerogatives relating to thecivil service where national security is not involved. Another non-justiciable power is the Attorney General’s prerogative to decidewhether to institute legal proceedings on behalf of the publicinterest.”

150. It is noteworthy that even in R v. Secretary of State for theHome Department, Ex Parte Daly[259], case wherein Lord Cookecriticised the Wednesbury decision by stating that it heavily restricts thepower of judicial review of court by targeting only those actions whichcan be termed as extremely unreasonable, he made it point tocategorically note that calling for detailed judicial review can never beunderstood to translate it into merit review of the administrative action.He observed thus:

A“[28] The differences in approach between the traditional groundsof review and the proportionality approach may thereforesometimes yield different results. It is therefore important thatcases involving convention rights must be analysed in thecorrect way. This does not mean that there has been shiftto merits review. On the contrary, as Professor Jowell hasBpointed out, the respective roles of judges andadministrators are fundamentally distinct and will remainso (see [2000] PL 671 at 681). To this extent the general tenorof the observations in R (Mahmood) v Secretary of State for theHome Dept [2001] 1 WLR 840 are correct. And Laws LJ (at 847C(para 18)) rightly emphasised in Mahmood’s case ‘that theintensity of review in public law case will depend on thesubject matter in hand’. That is so even in cases involvingConvention rights. In law context is everything.”

(emphasis supplied)

151. We may usefully borrow the dictum of Frankfuter, J. in Morey,Auditor of Public Accounts of Illinois Et. Al. v. Doud Et. Al.[260], notedwith approval by this Court in R.K. Garg[261] – “that the Courts have onlythe power to destroy, not to reconstruct. When these are added to thecomplexity of economic regulation, the uncertainty, the liability to error,Ethe bewildering conflict of the experts, and the number of times theJudges have been overruled by events – self limitation can be seen to bethe path of judicial wisdom and institutional prestige and stability.” InPremium Granites[262], even this Court restated that it is not the domainof the Courts to embark upon unchartered ocean of public policy in anexercise to consider as to whether particular public policy is wise or aFbetter public policy can be evolved. Such exercise must be left to thediscretion of the executive and legislative authorities, as the case maybe. The Court may interfere only when the case involves infringementof fundamental rights guaranteed by the Constitution or any otherstatutory right.G152. priori, the prescription of procedure to be deployed by theadministration in taking their decisions in the ordinary course of theirbusiness is not for the Court to decide. More particularly, in cases where

260 354 US 457 (1957)261 (supra at 168)H262 (supra at 169)

decisions are taken in tune with duly enacted statutory scheme, it isnot open to Court of law to disregard the same on the specious reasoningthat the governing statutory scheme is deficient for the nature of orsignificance of the project. Even if Court finds it debatable, that can beno ground for the Court to quash an action taken strictly in accord withthe prescribed procedure.

153. Indubitably, Rule of Law is based on the concept of“expository jurisprudence” which requires exposition of contents of actuallegal system as it exists[263]. To say that in given case the statutoryscheme laying down the procedure is not good enough and new standardof democratic due process ought to have been deployed by the executivewould be classic way of abjuring the principle of Rule of Law whichrequires consistency and uniformity of approach by one and all and inparticular, by judicial forum. In matters which may appear to bewholesome for accomplishing ideals of administrative efficiency includingdemocratisation of the decision-making process, even if Court is of theopinion that different procedure (in addition to the statutory scheme)would be more just and appropriate, it may not attempt to implement itsideal by way of judicial review, much less to strike it down[264]. In judicialreview, we do not sit in discussion on idealism in Government actions,rather, our domain is to examine its legality on the touchstone ofconstitutional values and the procedure prescribed by law in that regard.

154. The import of an expression like democratic due process inan administrative matter is fraught with at least three seriousconsequences – first, in manner of speaking non-enforcement of astatutory process without any declaration of its invalidity; second, importof process which is not “due” as per the prescribed law but is deemedto be due as per the subjective notions of the Court (or if we may borrowthe exposition of Mr. Alladi Krishnaswami Ayyar – three gentlemen orfive gentlemen sitting as Court deciding or accepting an argumentagainst the expressed wishes of the legislature or the action of anexecutive responsible to the legislature); and third, withdrawing the taskof governance from the democratically elected representatives includingthe executive thereby creating an illusory bar on the exercise of theirpower to function freely despite being within the four corners of the law.

263 Black’s Law Dictionary, 11th Edition (Page 726)

264 [see: Joseph Antony (supra) – para 14 and State of M.P. v. Narmada Bachao Andolan(supra) – paras 36 and 37]

A155. We must note that neither the principle of Rule of Law norof judicial review envisage such scenario. Justice J.C. Shah, in hispublished lecture on “The Rule of Law and the Indian Constitution”rightly noted that:

“The Rule of Law in democratic society may, in its ultimateBanalysis, be reduced to the following broad propositions:-

(1)Without regard to the content of the law, all power in theState is derived from and must be exercised inaccordance with the law.

(2)The law itself is based on the supreme value of the humanCpersonality. For that purpose (a) protection of the individual’srights is secured through the medium of an impartial judicialauthority. By judicial it is not meant that the authority musthave the paraphernalia of trial in civil court. Anadministrative tribunal infused with the requisite qualitiesDfor competently performing its functions consistently withthe basic norms of the judicial process, acts judicially. Whenthe tribunal departs from the basic norms of the judicialprocess or is swayed by irrelevant considerations or objects,the Rule of Law is violated; (b) the law must be designedto ensure for the individual equality of status and opportunity,Ein fields social, political and economic, and provideenvironment for development of his special forte and hiscapacities.[265]"

(emphasis supplied)

FThus, to add subjective notions of the Court in statutory processeswould be antithetical to the fundamental tenet of Rule of Law whichrequires “all power in the State” to be exercised in accordance with theprocedure established by law.

156. Another dimension to be kept in mind is the factum ofsubjective satisfaction of the executive. The law regarding the involvementGof constitutional Courts in public interest in cases involving subjectivesatisfaction is well settled. The interference of Courts is neither warrantedto look into the quality of material relied upon by the Government toapproach decision nor to adjudicate upon the sufficiency of such

265 published in 1972 at Bombay, pp. 24-25H

material. These matters are of subjective character and if legislaturepermits subjective powers on one organ of the State, the other (in thename of judicial review) is not expected to substitute its own subjectiveopinion in its place. The sole concern of the Court is to look at therelevancy of the material relied upon to take decision in order to seethat the decision is not devoid of application of mind. It is based on thebasic idea that the structure of subjective decision stands on thefoundation of objective reasons. The Court may interfere when decisionis devoid of any reason or affected by malafides or when the decision isreached in the aftermath of statutory violations. In BariumChemicals[266], the Court while dealing with an order in the exercise ofstatutory powers, adverted to the exposition of Privy Council and observedthus:

“(60) ...Even if it is passed in good faith and with the best ofintention to further the purpose of the legislation which confersthe power, since the Authority has to act in accordance with andwithin the limits of that legislation, its order can also be challengedif it is beyond those limits or is passed on grounds extraneous tothe legislation or if there are no grounds at all for passing it or ifthe grounds are such that no one can reasonably arrive at theopinion or satisfaction requisite under the legislation ...”

This decision delineates the contours of judicial review, such as:

(i)The formation of the opinion/satisfaction by the Governmentwas purely subjective process and such an opinion couldnot be challenged on the ground of propriety, reasonablenessor sufficiency;

(ii)However, the subjective opinion/satisfaction of theFGovernment is required to be arrived at based on facts/circumstances, which the Government must be able toobjectively establish to exist;

(iii)Mala fides, fraud or corruption would vitiate the formationof the opinion/satisfaction; and

(iv)If the opinion/satisfaction was reached in good faith it wasimmune from judicial review unless:

(a)it was shown that the objective facts/circumstances did not exist; or

(b)it was impossible for anyone to form the opinion/satisfaction based on those facts/circumstances,

for then the Government’s opinion could bechallenged on the ground of non-application ofmind or perversity or on the ground that it wasformed on grounds extraneous to the legislationand was beyond the scope of the statute.

The aforesaid principles are restated in Rohtas Industries[267]wherein this Court noted thus:

“11. …For the reasons stated earlier we agree with the conclusionCreached by Hidayatullah and Shelat, JJ. in Barium Chemicals casethat the existence of circumstances suggesting that the company’sbusiness was being conducted as laid down in sub-clause(1) orthe persons mentioned in sub-clause (2) were guilty of fraud ormisfeasance or other misconduct towards the company or towardsDany of its members is condition precedent for the Governmentto form the required opinion and if the existence of those conditionsis challenged, the courts are entitled to examine whether thosecircumstances were existing when the order was made. In otherwords, the existence of the circumstances in question are open tojudicial review though the opinion formed by the Government isEnot amenable to review by the courts. As held earlier the requiredcircumstances did not exist in this case.”

(emphasis supplied)

157. Be it noted that the Constitution provides an effectiveFmechanism to review the law itself under which administrative power isbeing exercised. For, the “law” in the expression “Rule of Law” must begood law within the realm of the Constitution. Arguendo, if the law itselfis challenged and consequently struck down, there would be no occasionfor the Court to enforce such law and in the absence of law, the Courtmight be in position to venture into areas of arbitrariness, justness andGequity, so as to do complete justice in the cause before it. Such power iswell ingrained in Article 142. However, in the absence of any challengeto an existing law enacted by the legislature prescribing the procedure,all actions taken thereunder and in substantial compliance thereof mustcontinue to be valid and the Court would be duty bound to give true

H267 (supra at 159)

effect to it. In the present case, none of the enacted (statutory) proceduresis subject matter of assail.

158. In India, what prevails is the “constitutional due process”i.e., the process which is due under the constitutional scheme. And whatis due, as exposited above, is principled judicial review wherein a“check” is maintainable without tilting the “balance”. For, all organs ofthe state are constitutionally committed to and beholden by the commongoal of giving effect to processes and procedure established by law,ideals, expectations, rights and duties due under the Constitution and nodeviation can be permitted therefrom. We must, however, make it clearthat we do not mean to signify conflict between the concept ofdemocratic due process, as envisaged by the petitioners and constitutionaldue process, as exposited by us.

NEED FOR HEIGHTENED JUDICIAL REVIEW

159. The petitioners have argued at length as to why the presentcase calls for heightened judicial review. The underlying idea is notrestricted to the aforesaid settled principles of judicial review inadministrative decisions. The argument essentially stems from theprinciple of constitutionalism which informs all spheres of public activity.We are compelled to wonder as to what could be the circumstances, ifat all any, wherein the Court not only surpasses the boundaries reservedfor its oversight in the Constitution but also provides it an expressrecognition by acknowledging heightened review. Would it be justifiedfor the Court to innovate and elevate the standard of review after adecision has already been taken by the executive in accordance with theprocedure established by law, in pursuance of policy? If yes, whatwould be the basis or benchmark for the Court to identify the subjectmatters wherein such innovation or elevation is permissible?

160. The petitioners contend that standards may be heightenedonly for this project which is sui generis one. Even the respondentshave at one stage called for sui generis treatment for this project. Wemust note at the very outset that we are impressed with none. To considera particular subject matter as sui generis in common parlance is onething, but to accord something with that character in judicial proceedingis an altogether different thing. Concededly, exposition of any suchjurisprudence would be fraught with unforeseen consequences and repletewith uncertainties. Whether particular development project calls for

Aurgency or deserves special treatment or requires maximum attention ofthe Government or is to be deferred for budgetary reasons or requiresauthority ‘A’ to initiate the proposal and not authority ‘B’, is matter ofpolicy decision of the executive. Moreover, there is absolutely no legalbasis to “heighten” the judicial review by applying yardstick beyond thestatutory scheme and particularly when the Government has accordedBno special status to the project and has gone through the ordinary routeof such development projects as per law.

161. In given project, the Government may well accord suigeneris status in its subjective wisdom provided it does not deviate fromthe prescribed procedural standards. Once the Government decides toCconstruct new space for its sitting or to construct highway or waterdam or school or university and follows the procedure prescribed underlaw commensurate with the nature of project, then the Court cannot actas multiplier of regulations and add its own notion as to what ought tobe additional essential procedure for going ahead with particular project.

DWhen legislature, in its wisdom, decides to enact legal framework, itis expected to and must be so presumed that it has undertaken thoroughanalysis as regards the involvement of stakeholders – experts and non-experts, institutions, procedures, timelines for approval, intra-departmentalappeals, inter-department appeals etc. Court sitting in review does nothave this machinery available before it and the Constitution never wantedEit to do so. Therefore, when review is brought before the Court, itcannot choose to adopt different (or the so-called heightened) approachfor reviewing the administrative process involved in reference to aparticular project. The role of Court is well defined and it must not leavethe administration to grapple with multiplicity of alternate opinions byFstepping into the shoes of policymakers.

162. policy decision goes through multiple stages and factors indiverse indicators including socio-economic and political justice, beforeits final culmination. As per the nature of the project, the Governmentexecutes the project by taking certain steps – legislative, administrative

etc. - and it is this which comes under the radar of the Court. TheGincreasing transparency in Government functioning by means of traditionaland modern media is reducing the gap between citizens and Governmentand Government actions are met with higher level of scrutiny on areal-time basis.

163. In democracy, the electors repose their faith in the electedHGovernment which is accountable to the legislature and expect it to adopt

the best possible course of action in public interest. Thus, an electedGovernment is the repository of public faith in matters of development.Some section of the public/citizens may have another view point if notcomplete disagreement with the course of action perceived by the electedGovernment, but then, the dispensation of judicial review cannot beresorted to by the aggrieved/dissenting section for vindication of theirpoint of view until and unless it is demonstrated that the proposed actionis in breach of procedure established by law or in given case, colourableexercise of powers of the Government. Therefore, it is important for theCourts to remain alive to all the attending circumstances and not interferemerely because another option as in the perception of the aggrieved/dissenting section of public would have been better option.

164. As noted earlier, the Courts do not sit in appeal over thedecisions of the Government to do merit review of the subjective decisionas such. In Natural Resources Allocation[268], this Court noted thatGovernment decisions concerning public resources have an “intricateeconomic value” attached with them and to elevate the standard of reviewon the basis of subjective understanding of the subject matter beingextraordinary would be dehors the review jurisdiction. In NarmadaBachao Andolan v. Union of India[269], this Court observed that:

“229. It is now well settled that the courts, in the exercise oftheir jurisdiction, will not transgress into the field of policy decision.Whether to have an infrastructural project or not and whatis the type of project to be undertaken and how it has to beexecuted, are part of policy-making process and the courtsare ill-equipped to adjudicate on policy decision soundertaken. The court, no doubt, has duty to see that in theundertaking of decision, no law is violated and people’sfundamental rights are not transgressed upon except to the extentpermissible under the Constitution. Even then any challenge tosuch policy decision must be before the execution of the projectis undertaken. Any delay in the execution of the project meansoverrun in costs and the decision to undertake project, ifchallenged after its execution has commenced, should bethrown out at the very threshold on the ground of laches ifthe petitioner had the knowledge of such decision and

Acould have approached the court at that time. Just because apetition is termed as PIL does not mean that ordinary principlesapplicable to litigation will not apply. Laches is one of them.”

(emphasis supplied)

165. The Government may examine advantages or disadvantagesBof policy at its own end, it may or may not achieve the desired objective.The Government is entitled to commit errors or achieve successes inpolicy matters as long as constitutional principles are not violated in theprocess. It is not the Court’s concern to enquire into the priorities of anelected Government. Judicial review is never meant to venture into theCmind of the Government and thereby examine validity of decision. InShimnit Utsch India[270], this Court, in para 52, observed thus:“52. … The courts have repeatedly held that thegovernment policy can be changed with changingcircumstances and only on the ground of change, such policyDwill not be vitiated. The Government has discretion to adopt adifferent policy or alter or change its policy calculated to servepublic interest and make it more effective. Choice in the balancingof the pros and cons relevant to the change in policy lies with theauthority. But like any discretion exercisable by the Governmentor public authority, change in policy must be in conformityEwith Wednesbury [Associated Provincial Picture HousesLtd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER680 (CA)] reasonableness and free from arbitrariness, irrationality,bias and malice.”

(emphasis supplied)

FIn State of Madhya Pradesh v. Narmada Bachao Andolan[271],the Court was dealing with an issue of rehabilitation of persons displaceddue to the construction of the dam. It went on to observe that judicialinterference in policy matter is circumscribed, in the following words:

“36. The Court cannot strike down policy decision takenGby the Government merely because it feels that anotherdecision would have been fairer or more scientific or logicalor wiser. The wisdom and advisability of the policies areordinarily not amenable to judicial review unless the policies

270 (supra at 133)H271 (supra at 134)

are contrary to statutory or constitutional provisions orarbitrary or irrational or an abuse of power. (See Ram SinghVijay Pal Singh v. State of U.P. [(2007) 6 SCC 44] , VillianurIyarkkai Padukappu Maiyam v. Union of India [(2009) 7 SCC 561]and State of Kerala v. Peoples Union for Civil Liberties [(2009)8 SCC 46].)

37. Thus, it emerges to be settled legal proposition that theGovernment has the power and competence to change the policyon the basis of ground realities. public policy cannot bechallenged through PIL where the State Government is competentto frame the policy and there is no need for anyone to raise anygrievance even if the policy is changed. The public policy canonly be challenged where it offends some constitutional or statutoryprovisions.”

(emphasis supplied)

166. In Tata Iron & Steel[272], in paragraph 68, the Court notedthat whenever the issues brought before the Court are intertwined withthose involving determination of policy and plethora of technical issues,the Courts are very wary and must exercise restraint and not trespassinto policy-making. Similarly, in Narmada Bachao Andolan v. Unionof India[273], in paragraph 228, the Court noted that project may beexecuted departmentally or by an outside agency as per the choice ofthe Government, whilst ensuring that it is done according to someprocedure or set manner. Further, the Court should be loath to assumethat the authorities will not function properly and that the Court shouldhave no role to play. Later in 2007, the Court restated the position inDirectorate of Film Festivals[274], as follows:

16. The scope of judicial review of governmental policy isnow well defined. Courts do not and cannot act as AppellateAuthorities examining the correctness, suitability andappropriateness of policy, nor are courts advisors to theexecutive on matters of policy which the executive isentitled to formulate. The scope of judicial review whenexamining policy of the Government is to check whether it violatesthe fundamental rights of the citizens or is opposed to the provisions

272 (supra at 139)

273 (supra at 132)

274 (supra at 135)

Aof the Constitution, or opposed to any statutory provision ormanifestly arbitrary. Courts cannot interfere with policy either onthe ground that it is erroneous or on the ground that better, faireror wiser alternative is available. Legality of the policy, and not thewisdom or soundness of the policy, is the subject of judicial review(vide Asif Hameed v. State of J&K [1989 Supp (2) SCCB364], Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC223], Khoday Distilleries Ltd. v. State of Karnataka [(1996) 10SCC 304], BALCO Employees’ Union v. Union of India [(2002)2 SCC 333], State of Orissa v. Gopinath Dash [(2005) 13 SCC495] and Akhil Bharat Goseva Sangh (3) v. State of A.P. [(2006)C4 SCC 162)].

(emphasis supplied)

167. To sum up the above discussion, it may be noted that judicialreview primarily involves review of State action – legislative, executive,administrative and policy. The primary examination in review of aDlegislative action is the existence of power with the legislature to legislateon particular subject matter. For this purpose, we often resort to doctrinesof pith and substance, harmonious construction, territorial nexus etc.Once the existence of power is not in dispute, it is essentially an enquiryunder Article 13 of the Constitution which enjoins the State to not violateEany of the provisions of Part-III in law-making function. The reviewof executive action would depend upon the precise nature of the action.For, the domain of executive is wide and is generally understood to takewithin its sweep all residuary functions of the State. Thus, the precisescope of review would depend on the decision and the subject matter.For instance, an action taken under statute must be in accordance withFthe statute and would be checked on the anvil of ultra vires the statutoryor constitutional parameters. The enquiry must also ensure that theexecutive action is within the scope of executive powers earmarked forState Governments and Union Government respectively in theconstitutional scheme. The scope of review of pure administrativeGaction is well settled. Since generally individuals are directly involved insuch action, the Court concerns itself with the sacred principles of naturaljustice – audi altrem partem, speaking orders, absence of bias etc. Theenquiry is also informed by the Wednesbury principles ofunreasonableness. The review of policy decision entails limitedenquiry. As noted above, second guessing by the Court or substitution ofH

judicial opinion on what would constitute better policy is strictly excludedfrom the purview of this enquiry. Under the constitutional scheme, thegovernment/executive is vested with the resources to undertakenecessary research, studies, dialogue and expert consultation andaccordingly, pure policy decision is not interfered with in an ordinarymanner. The burden is heavy to demonstrate manifest illegality orarbitrariness or procedural lapses in the culmination of the policy decision.However, the underlying feature of protection of fundamental rightsguaranteed by the Constitution must inform all enquiries of State actionby the constitutional Court.

CONSTITUTIONALISM

168. The principle of constitutionalism has been deployed by thepetitioners to justify the alteration of aforesaid standards. The ideal ofconstitutionalism finds place in almost every constitutional discourseinvolving the state and the citizen and we need to reflect upon this idealin the context in which it appears. “Constitutionalism”, as an expressionof political theory, holds the distinction of receiving diverse meaningsand unlike most other concepts, the meanings are fundamentally distinctand inexplicable beyond the specific context in which they are used.The need for understanding this principle in its correct terminology getsmultiplied in country with written Constitution. What, then, is the roleof the principle of constitutionalism for Court of law performingfunctions under the umbrella of written Constitution?

169. peculiar feature of the usage of this expression inconstitutional matters is that one side tries to project it as an independentsubstantive rule, as opposed to it being mere force behind the rule, andthe other side brushes it down as redundant theoretical concept. Wemust note that the true import of constitutionalism cannot be understoodby treating it as standalone concept of judicial application. Jurists acrossthe world have given different meanings to this word. Whereas somehave associated it with fundamental concepts of Rule of Law and judicialreview as envisaged in the Constitution, others have considered it as aradical idea for transforming the Constitution over and above its trueimport. For some, judicial supremacy over functioning of executive andlegislature is considered as essential to constitutionalism. For others, likeProf. Barendt[275], the ideal of separation of powers is the essence of

275 Barendt, An Introduction to Constitutional Law, (Clarendon Press, Oxford 1998),pg. 6

Aconstitutionalism. Building upon the subjectivity of this concept, Jo EricKhushal Murkens, in “The Quest for Constitutionalism in UK PublicLaw Discourse” notes that the substantive content of any constitutionaldiscourse is not likely to change due to this principle thus:

“… Every scholar above is able to convey her message (theBsubstantive concept of the rule of law, the legitimacy of governmentaction, and the core institutional values) without requiring recourseto constitutionalism. In other words, if constitutionalism wereeliminated from constitutional discourses, their substantive”content would remain unchanged.[276]

(emphasis supplied)

170. Constitutionalism, therefore, is relative concept whichenvisages constitutional order wherein powers and limits on the exerciseof those powers are duly acknowledged. It is tool which is used toreach upto the ultimate goal of constitutionalization of governance and itDcannot be deployed to present an alternative model of governance. Wemust state that it would not only be absurd but also fraught with dangersof overreach and ambiguity if subjective principles of interpretation areapplied by detaching them from the textual scheme of the Constitution,particularly when the textual scheme lays down an elaborate structureof administration. For, to do so would be to drag duly elected GovernmentEon the edges as it would be under constant fear of being adjudgedwrong on the basis of undefined principles which appeal to “threegentlemen or five gentlemen sitting as Court”. And what will suffer ispublic interest in the form of public exchequer including sovereignty ofthe nation.F

171. In this regard, we must recall the enunciation of this Court inKeshavan Madhava Menon[277], wherein it is observed that an argumenton what is claimed to be the spirit of the Constitution is always attractive,for it has powerful appeal to sentiments and emotion; but Court oflaw has to gather the spirit of the Constitution from the language of theGConstitution. For, one may believe or think to be the spirit of theConstitution cannot prevail if the language of the Constitution does notsupport that view.276 The Quest for Constitutionalism in UK Public Law Discourse, Jo Eric KhushalMurkens, Oxford Journal of Legal Studies, Vol. 29, pg. 446H277 (supra at 130)

172. To conclude, the principle of constitutionalism is work inprogress which is meant to infuse life and blood into an existing schemewhich has stood the test of constitutional validity and not to nudge withthe scheme itself. It may only be deployed to evolve minimum standardsof procedures prescribed by law. It is not to undermine or supplant theelaborate statutory regulatory schemes.

PARTICIPATORY DEMOCRACY IN INDIA

173. An argument has been advanced as regards the absence ofsufficient public participation in the entire process. It stems from theunderstanding that India is participatory democracy. Thereby citizens’participation must be provisioned at all stages of decision making. Rarelydo we come across instances when the very nature of democracy in acountry becomes subject of debate in an administrative review action.It is, however, important to take this debate to logical end, as enforceableparticipatory rights are alleged to flow from the nature of democracy.The question essentially is about the meaning of the phrase “rule by thepeople” as used in understanding the meaning of democracy.

174. Tracing the origin of mode of governance in India, one wouldinvariably note that we have traversed long journey beginning with theIndian Councils Act, 1861[278]. After the First War of Independence in1857, Viceroy’s Legislative Council was opened up to include “non-official” members for the first time, however, there was no representativecharacter in the members. The limitations of this Council were noted byMr. S.P. Verma in “Parliamentary Democracy in India – TheGenesis” and the same is relevant to understand the journey ofParliamentary system in India:

“…The functions of the Legislative Council at this time were of avery limited nature. ‘It would meet only for legislative purposesand its members would have the right to speak only on somedefinite legislative projects. They would have no right to putquestions to the members of the government and demand answersthereto. Nor would they have authority over the finances of theGovernment’[279].”

It was followed by Indian Councils Act, 1892[280] whereby indirectelections were introduced and members of local bodies were empowered

278 For short, “the 1861 Act”

279 Parliamentary Democracy in India (Ist Edn., 1987), pg. 5

280 For short, “the 1892 Act”

Ato recommend members for the legislature. Mr. K. Raghu Ram Reddy,in “Roots of Parliamentary System in India”, noted the objects of thisAct of which the relevant extract reads thus:

“... “to widen the basis and expand the functions of the governmentof India, and to give further opportunities to the non-official andBnative elements in Indian society to take part in the work of thegovernment.””[281]

However, the same was not acceptable to the members of IndianNational Congress and this disappointment came out in the words of SirChettur Sankaran Nair, leading jurist and Congress President in 1897session. He said thus:C

“From our earliest school days the great English writers havebeen our classics. Englishmen have been our professors in colleges.English history is taught in our schools. We live now the life of theEnglish. To deny us the freedom of the press; to deny usrepresentative institutions, England will have to ignore thoseDvery principles for which the noblest names in her history toiledand bled.[282]”

(emphasis supplied)

very significant takeaway from the aforesaid observation isthat Sir Sankaran propagated what Indian freedom struggle was strivingEto achieve – representative institutions. The slow journey towards ademocratic system then led to Indian Councils Act, 1909[283](popularlyknown as Morley-Minto Reforms) whereby elections were introducedfor 32 non-official members out of total 68 members and representativeelement was introduced. Thereafter, the Government of India Act, 1919[284](in the aftermath of Montague-Chelmsford Reform) was introduced andFthis Act opened way for representative democracy. On 20.8.1917,British Government made declaration stating their policy. It read thus:

“The policy of His Majestry’s Government with which theGovernment of India are in complete accord, is that of increasing theassociation of Indians in every branch of the administration and the gradualGdevelopment of self-governing institutions with view to the progressive

281 Parliamentary Democracy in India (Ist Edn., 1987), pg. 21

282 W.H. Morris Jones, Parliament in India (Philadelphia: University of California,1957), pg. 83

283 For short, “the 1909 Act”

H284 For short, “the 1919 Act”

realisation of responsible government in India as an integral part of theBritish Empire.”

The 1919 Act was considered as the threshold point ofcommencement of parliamentary culture in India. Mr. Reddy says thatit was an important beginning in the “sense of transfer of power to thepeople”. Afterwards, the Government of India Act, 1935[285] wasintroduced which provided for greater right to vote and provincialautonomy with elected representatives in the provinces. The journeyfinally culminated in the Constituent Assembly when the membersdeliberated upon the question of the form of Government to be devisedfor independent India. The members were certain that democracy isdesirable, however, the exact shape that such democracy would takewas not pre-decided, as perceivable from the words of Pandit JawaharlalNehru who said thus:

“Whatever system of government we may establish here must fitin with the temper of our people and be acceptable to them.... Westand for democracy but what form of democracy, what shape itmight take is another matter ... for this House to determine.[286]”

175. In the Constituent Assembly, when the question of mode ofgovernance came up for deliberation, many ambitious proposals weremade by the members to suggest varying democratic structures. Few ofsuch proposals suggested to bring in clause for “recall” so as to enablethe voters to vote out an elected member owing to poor performance.Proposals for direct democracy were also placed for deliberation soas to establish Government directly run by the people. The Assemblynegatived all such proposals and adopted representative model ofdemocracy. It is useful to refer to the motion moved by Pandit JawaharlalNehru on 21.7.1947 for the election of President. He said thus:

“... Now Sir, one thing we have to decide at the very beginning iswhat should be the kind of governmental structure, whether it isone system where there is ministerial responsibility or whether itis the Presidential system as prevails in the United States ofAmerica; many members possibly at first sight might object tothis indirect election and may prefer an election by adult suffrage.We have given anxious thought to this matter and we came

285 For short, “the 1935 Act”

286 Parliamentary Democracy in India, V. Bhaskara Rao, B. Venkateswarlu, 1987, pg. 16

Ato the very definite conclusion that it would not be desirable,first because we want to emphasize the ministerial characterof the Government that power really resided in the Ministryand in the Legislature and not in the President as such. Atthe same time we did not want to make the President just merefigure-head like the French President. We did not give him anyBreal power but we have made his position one of great authorityand dignity. You will notice from this draft Constitution that he isalso to be Commander-in-Chief of the Defence Forces just as theAmerican President is. Now, therefore, if we had an election byadult franchise and yet did not give him any real powers, it mightCbecome slightly anomalous and there might be just extraordinaryexpense of time and energy and money without any adequateresult. Personally, I am entirely agreeable to the democraticprocedure but there is such thing as too much of ademocratic procedure and I greatly fear that if we have awide scale wasting of the time, we might have no time leftDfor doing anything else except preparing for the electionsand having elections. We have got enough elections for theConstitution. We shall have elections on adult franchise basis forthe Federal Legislature. Now if you add to that an enormousPresidential election in which every adult votes in the whole ofEIndia, that will be tremendous affair. In fact even financially itwill be difficult to carry out and otherwise also it will upset mostactivities for great part of the year. ....[287]”

(emphasis supplied)

The predicament exposited by him of preparing for the electionsFand having elections intermittently if not continually is so relevant evenafter passage of over 73 years.

176. Be that as it may, we must note that our founding fatherswere limpid about their vision for the nature of democracy we need toinherit. Further, the members of the Assembly were aware of challenges,Gparticularly administrative challenges, that may fall in the way ofefficiency of administration due to “too much of democratic procedure”.Three days before the acceptance of the draft, on 23.11.1949, T.J.M.Wilson expressed hope for increased public participation in future. Hesaid thus:

H287 Constituent Assembly Debates Vol. IV (14.7.1947 – 31.7.1947)

“The most elementary requisite of democracy is the right of everycitizen to vote and we have provided for it in our Constitution. Buteven this was questioned by some of our friends on the groundthat they are not sufficiently educated to carry on the Governmentof the country. Their contention is that only intellect is necessaryfor the Government of the country. But the conditions and alsothe philosophy have changed. Government also has changed—the Government is not something meta-physical or something mytic.Government has to deal today with the actual conditions of peopleand the needs of people, whether they are of food and cloth or ofhealth and education and how can anybody else claim to knowthese needs of people better than the people themselves? Thoughtis, of course necessary and intellect is really essential; but unlessit is united with action, unless it is based upon the experience ofthe people, it will not achieve much. Therefore, the purpose ofadult suffrage, the right of every person to vote is to bridge thisgulf between action and thought. But is this right to vote oncein five years enough? The essence of democracy is not somuch the existence of what are called political parties, etc.,but the essence of democracy is the effective participationof the individual in the actual government of the country.The greater and more effective the participation of theindividual in the government, the greater is the democracy,because democracy is still only an ideal which has yet to bereached by humanity. Decentralisation would have donesomething in that direction, if we had provided for it in ourConstitution.[288]”

(emphasis supplied)

177. Article 40 in Part-IV was then made part of DirectivePrinciples, which reads thus:

“40. Organisation of village panchayats.—The State shall takesteps to organise village panchayats and endow them with suchpowers and authority as may be necessary to enable them tofunction as units of self-government.”

The above hope for more decentralisation and opening up ofdemocracy was vindicated in 1992 with the introduction of 73[rd] and 74[th]

288 Constituent Assembly Debates Vol. XI (14.11.1949 – 26.11.1949)

ABC

Aamendments in the Constitution which resulted into the inclusion of localself-governance in rural and urban India. This opening up of democracyin India was step towards enhanced participation. It was noted by thisCourt in Bhanumati and Ors. v. State of Uttar Pradesh &Ors.[289],wherein it was observed thus:

B“26. What was in nebulous state as one of the directive principlesunder Article 40, through the Seventy-third ConstitutionalAmendment metamorphosed to distinct part of constitutionaldispensation with detailed provision for functioning of panchayat.The main purpose behind this is to ensure democraticdecentralisation on the Gandhian principle of participatoryCdemocracy so that the panchayat may become viable andresponsive people’s bodies as an institution of governance andthus it may acquire the necessary status and function with dignityby inspiring respect of common man. ….”

(emphasis supplied)

Furthermore, the Supreme Court in K. Krishna Murthy and Ors.v. Union of India (UOI) and Anr.[290], while observing on the participationthrough panchayats, had observed thus:

“56. The objectives of democratic decentralisation are not onlyEto bring governance closer to the people, but also to make it moreparticipatory, inclusive and accountable to the weaker sections ofsociety. ...”

In yet another post-independence judgment, this Court inMohinder Singh Gill and Anr. v. Chief Election Commissioner, NewFDelhi and Ors.[291], while noting how the representative model serves asthe minimum requirement of participatory democracy, observed thus:

“24. Democracy is government by the people. It is continualparticipative operation, not cataclysmic, periodic exercise. Thelittle man, in his multitude, marking his vote at the poll does asocial audit of his Parliament plus political choice of his proxy.GAlthough the full flower of participative Government rarelyblossoms, the minimum credential of popular governmentis appeal to the people after every term for renewal of

289 (2010) 12 SCC 1290 (2010) 7 SCC 202H291 (1978) 1 SCC 405

confidence. So we have adult franchise and general elections asconstitutional compulsions. ‘The right of election is the veryessence of the constitution’ (Junius). It needs little argument tohold that the heart of the Parliamentary system is free and fairelections periodically held, based on adult franchise, although socialand economic democracy may demand much more.”

(emphasis supplied)

178. In fact, the very basis of inclusion of administrative detailswithin the Constitution, as opposed to leaving them to be determined byordinary enactments, was to avoid scenario wherein functioning of theadministration is hindered by pressing for undeclared rights and standards.On 4.11.1948, when Dr. B.R. Ambedkar placed the draft Constitutionbefore the Assembly, he spoke in unambiguous terms thus:

“As to the accusation that the Draft Constitution has produced agood part of the provisions of the Government of India Act, 1935,I make no apologies. There is nothing to be ashamed of inborrowing. It involves no plagiarism. Nobody holds any patentrights in the fundamental ideas of Constitution. What I amsorry about is that the provisions taken from the Government ofIndia Act, 1935, relate mostly to the details of administration. Iagree that administrative details should have no place inthe Constitution. I wish very much that the DraftingCommittee could see its way to avoid their inclusion in theConstitution. But this is to be said on the necessity whichjustifies their inclusion.”

(emphasis supplied)

179. The above discussion has vital takeaways for the purpose ofthe present controversy. It reveals that direct democracy was neverenvisaged by our founding fathers as an ideal model in light of the domesticsocio-economic set-up. Right from the days of struggle for freedom tothe debates of Constituent Assembly and afterwards in independent India,we have invariably embraced the representative model of democracywherein political sovereignty vested in the People of India and legalsovereignty vested in the Constitution of India. The rule is by the peoplethrough their elected representatives at all levels of the Government –from village panchayats to the Parliament.

180. However, we must note that mere acceptance of arepresentative model did not seal the fate of the country once and for

Aall. In fact, over period of time, there has been constant endeavour toencourage wider public participation, wherever possible and required,keeping in the view the efficiency of administration and Rule of Law.That, however, has been done by way of laws enacted by the legislaturein that regard[292].

B181. The introduction of local self-governance in 1992 could beseen as an acceptance of the above proposition. In the Indian scenario,it would be wholly wrong to say that public participation is limited toexercise of universal suffrage once in five years. Today, Governmentinvites public to participate in series of administrative processes as perthe mandate of enacted laws envisaging public participation in the formCof inviting representations against Government proposals. Besides, everycitizen is vested with guaranteed right to approach the constitutionalCourts for seeking review of administrative action. We must note thatPart III of the Constitution is the pivot around which democracy revolvesas it creates an open market for diverse political and social ideas,Dexpression of common interests and political associations. In King &Ors. v. Attorneys Fidelity Fund Board of Control & Anr.[293],theSupreme Court of South Africa noted the facets of public involvementthus:

“22. … Public involvement might include public participationthrough the submission of commentary and representations: butEthat is neither definitive nor exhaustive of its content. The publicmay become ‘involved’ in the business of the National Assemblyas much by understanding and being informed of what it is doingas by participating directly in those processes. It is plain that byimposing on Parliament the obligation to facilitate publicFinvolvement in its processes, the Constitution sets basestandard, but then leaves Parliament significant leeway infulfilling it. …”

(emphasis supplied)

292 Such as: (1) The Panchayats (Extension to the Scheduled Areas) Act, 1996; (2)GScheduled Tribes and Other Traditional Forest Dwellers (Recognition ofForest Rights) Act, 2006; (3) Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013; (4) Airports EconomicRegulatory Authority of India Act, 2008; (5) Environmental Impact AssessmentNotification, 2006; (6) The Insolvency and Bankruptcy Code, 2016; (7) General ClausesAct, 1897; and (8) Forest Rights Act, 2006.H293 2006 (4) BCLR 462 (South African Constitutional Court)

182. Michael Walzer, in “Philosophy and Democracy”,eloquently notes how the process involved in representative decision-making attaches immense moral value to those decisions. He notes thus:

“For democratic theory, what makes governmental decisionsmorally binding is process: the people’s freely choosingrepresentatives, those representatives’ debating and enacting policyand later standing for reelection, and administrators’ enforcingthat policy.[294]"

183. holistic understanding of the dispensation envisaged underour Constitution would reveal that we are representative democracywith strong elements of participatory democracy embedded in it. Theelement of participation, however, is regulated not only by statutes butalso by the Constitution. The Constitution, if it would have envisagedevery important decision to be flowing from the public in the mannerproposed by the petitioners herein, would have clearly provided for thatdispensation. It has not.Understood thus, the Constitution in our systemplays twin role – first, Constitution as the guardian of fundamental rightsand second, Constitution as the structure of governance[295].

184. The principle of participatory democracy has two integralelements – first, public participation in decision making and second,placing information regarding Government actions in public domain. Asdiscussed above, the first element, no matter how desirable, is carefullycircumscribed by the state of Rule of Law or procedure established bylaw, as present, and fine balance has been struck between need forpublic participation and effective functioning of administration. Thelegislature has expressly provided for such public participation and theextent thereof in the governing enactments, referred to earlier[296].

185. The participation itself involves three features – the stage,the extent and the nature of participation. The extent and quality ofpermissible participation is dependent upon multitude of factors including,but not limited to, the stage of procedure, nature of subject matter, numberof affected persons, local conditions, geography, strategic importance ofproject, budgetary allocations for the project etc. The subject matter of

294 Constitutionalism and Democracy - Constitutions, Constitutionalism, andDemocracy, Walter F. Murphy, Oxford University Press, pg. 4

295 Constitutionalism and Democracy, Transitions in the Contemporary World, OxfordUniversity Press, 1993296 (supra at 292)

Aa development project having no direct bearing on lives and livelihoodscannot be equated with project which has direct impact upon theirlives and livelihoods.

186. Pertinently, this exercise cannot be undertaken in abstractnessmerely because participation is one of the facets of democraticBstructure. Rather, it involves delicate analysis of complex web of factors.Whether in given case personal oral hearing is to be provisioned for ormere representations be invited or public discussion is called for, is amatter for the legislature to make law in that regard.

187. We may very well have our own notion of participation andCit could be radically different from the prescribed one. It may be possiblethat some people feel unheard in direct manner, however, democracy,in an ultimate analysis, is about prevalence of collective wisdom of citizens,which may or may not commend to individual wisdom of few. Thesentiment also resonated in the words of Thomas Jefferson when hewrote to John Taylor on 28.5.1816 that “the mass of the citizens is theDsafest depository of their own rights”[297].

188. The citizens are completely free to advocate any notion alongthe Government policy or the manner of making it in their free exerciseof right to speech and expression, but enforcement of such notion cannotbe fructified by resorting to judicial review. The idea of public involvementEin administrative matters is based upon the stage and extent ofrepresentation prescribed by the legislature. No country with sizeablepopulation like ours can give promise of direct participation to everyindividual in the decision-making process (of the Government) inadministrative matters unless the law so prescribes.F189. Having said thus, it must be borne in mind that such publicparticipation is not to supplant the discretion of the Government or toretard the development work. It is only for inviting constructivesuggestions/objections from all stakeholders for effective implementationof the policy of the Government, to subserve public interest.

G190. The Supreme Court in Janhit Manch and Anr. v. The Stateof Maharashtra and Ors.[298], opined that consultative process is alwayshelpful. However, it went on to caution that the perspective of elected

297 The Works of Thomas Jefferson, Federal Edition Vol. 11 (Correspondence andPapers 1808-1816), pp. 298H298 (2019) 2 SCC 505

bodies must give way to that of few individuals. The Court observedthus:

“13. We have to keep in mind the principles of separation ofpowers. The elected Government of the day, which has themandate of the people, is to take care of policy matters. There isa democratic structure at different levels, starting from the levelof Village Panchayats, Nagar Palikas, Municipal Authorities,Legislative Assemblies and the elected Parliament; each of themhas role to perform. In aspects, as presented in the instantcase, consultative process is always helpful, and is onewhich has already been undertaken. The philosophy ofAppellant 2 cannot be transmitted as mandatory policy ofthe Government, which is what would happen were amandamus to be issued on the prayers made. Perspectiveof individuals may vary, but if the elected bodies which havepolicy formulation powers, is to be superseded by the idealsof each individual, the situation would be chaotic. Thepolicies formulated and the legislations made, unless theyfall foul of the Constitution of India, cannot be interferedwith, at the behest of the appellants. The appellants havecompletely missed this point”

(emphasis supplied)

191. The reliance placed by the petitioners upon Doctors for LifeInternational[299 ]and Kiambu County[300 ]may not be of much relevancein absence of statutory regime in Indian context mandating publicparticipation before formulation of the policy, in the light of principlesdiscussed above. Despite the great persuasive value of these decisions,we cannot escape some glaring differences which alter the character ofthese decisions. In Doctors for Life International[301], the Court, in para75, clearly noted that its opinion is founded upon clear and expressstatutory provisions mandating the National Council to facilitate publicinvolvement. It observed thus:

“[75] The provisions of sections 72(1)(a) and 118(1)(a) (“the publicinvolvement provisions”) clearly impose duty on the NCOP and

299 (supra at 80)300 (supra at 82)301 (supra at 80)

Athe provincial legislatures to facilitate public involvement in theirrespective legislative processes. The question is what is the natureand scope of the duty comprehended by these provisions and towhat extent is it justiciable.”

Similar position existed before the Kenyan Court of Appeal inBKiambu County[302].Secondly, the judgment of the Court examines scopeof public involvement in legislative processes. In the introductory para, itnotes thus:

“… The first question concerns the nature and the scope of theconstitutional obligation of legislative organ of the state to facilitatepublic involvement in its legislative processes and those of itsCcommittees and the consequences of the failure to comply withthat obligation. …”

The petitioners have adopted position that this judgment is notrestricted to the express public consultation provision and in respect oflegislative processes but it derives strength from international and foreignDinstruments to which India is also signatory. However, the Court, inpara 95, lays down the correct proposition of law and observed thus:

“[95] The precise nature and scope of the international lawright to participate in the conduct of public affairs is matterfor individual states to determine through their laws andEpolicies. …”(emphasis supplied)In conclusion, it further expounded that international law right topolitical participation encompasses “general right to participate” and“specific right to vote”. It noted thus:

F“[105] The international law right to political participationencompasses general right to participate in the conductof public affairs and more specific right to vote and/or beelected into public office. The general right to participate in theconduct of public affairs includes engaging in public debate anddialogue with elected representatives at public hearings. But thatGis not all; it includes the duty to facilitate public participation in theconduct of public affairs by ensuring that citizens have thenecessary information and effective opportunity to exercise theright to political participation.”

(emphasis supplied)

As regards the nature of democracy envisaged in South Africa,the Court noted thus:

“[115] In the overall scheme of our Constitution, the representativeand participatory elements of our democracy should not be seenas being in tension with each other. They must be seen as mutuallysupportive. General elections, the foundation of representativedemocracy, would be meaningless without massive participationby the voters. The participation by the public on continuousbasis provides vitality to the functioning of representativedemocracy. It encourages citizens of the country to be activelyinvolved in public affairs, identify themselves with the institutionsof government and become familiar with the laws as they aremade. It enhances the civic dignity of those who participate byenabling their voices to be heard and taken account of. It promotesa spirit of democratic and pluralistic accommodation calculated toproduce laws that are likely to be widely accepted and effectivein practice. It strengthens the legitimacy of legislation in the eyesof the people. Finally, because of its open and public character itacts as counterweight to secret lobbying and influence peddling.Participatory democracy is of special importance to those whoare relatively disempowered in country like ours where greatdisparities of wealth and influence exist.

[116] Therefore our democracy includes as one of its basic andfundamental principles, the principle of participatory democracy.The democratic government that is contemplated is partlyrepresentative and partly participatory, is accountable, responsiveand transparent and makes provision for public participation inthe law-making processes. …”

We must note at the very outset, Doctors for LifeInternational[303], barring the analysis on express provision on consultation,does not operate in conflict with the views expressed by us in thisjudgment. It duly recognises that precise contours of participation in thematter of governance are dependent upon local conditions, in particularexistence of municipal laws in that regard and the nature of subjectmatter. Suffice it to note that in the cited decisions referred to above, theCourt was not dealing with challenge to administrative processes inrelation to development project. It is justly urged by the respondents

303 (supra at 80)

Athat the prosaic, bland, inapplicable metaphysical principles ofconstitutional theory, imported from foreign jurisdictions, cannot createan extra-constitutional standard of judicial review or to extendinvolvement of public at every level of governance absent any statutoryregime in that regard. Thus, the scope of public involvement in Governmentprocesses is matter dependent on legal framework of country andBthe Court should be loath to venture into that area in the guise of eminenceof the project under consideration.

192. It was also urged that like the approach adopted in Britain,with regard to upgradation or construction of new Parliament, theIndian Parliament should enact special legislation in that regard includingCto guarantee extensive public participation at all stages. Somewhat similarplea was dealt with in Dr. Ashwani Kumar[304], wherein the Court afteradverting to the settled legal position including in reference to theprinciples of separation of powers of the three constituents of the State,negatived the same. We may usefully refer to exposition in paras 26 toD28 of this reported decision, the same reads thus:“26. Legislating or law-making involves choice to prioritisecertain political, moral and social values over the others from awide range of choices that exist before the legislature. It is abalancing and integrating exercise to give expression/meaning toEdiverse and alternative values and blend it in manner that it isrepresentative of several viewpoints so that it garners supportfrom other elected representatives to pass institutional muster andacceptance. Legislation, in the form of an enactment or laws,lays down broad and general principles. It is the source of lawwhich the judges are called upon to apply. Judges, when theyFapply the law, are constrained by the rules of language and bywell identified background presumptions as to the manner in whichthe legislature intended the law to be read. Application of law bythe judges is not synonymous with the enactment of law by thelegislature. Judges have the power to spell out how precisely theGstatute would apply in particular case. In this manner, theycomplete the law formulated by the legislature by applying it. Thispower of interpretation or the power of judicial review is exercisedpost the enactment of law, which is then made subject matter ofinterpretation or challenge before the courts.

27. Legislature, as an institution and wing of the Government, isa microcosm of the bigger social community possessing qualitiesof democratic institution in terms of composition, diversity andaccountability. Legislature uses in-built procedures carefullydesigned and adopted to bring plenitude of representations andresources as they have access to information, skills, expertiseand knowledge of the people working within the institution andoutside in the form of executive. Process and method of legislationand judicial adjudication are entirely distinct. Judicial adjudicationinvolves applying rules of interpretation and law of precedentsand notwithstanding deep understanding, knowledge and wisdomof an individual judge or the bench, it cannot be equated with lawmaking in democratic society by legislators given their widerand broader diverse polity. The Constitution states that legislatureis supreme and has final say in matters of legislation when itreflects on alternatives and choices with inputs from differentquarters, with check in the form of democratic accountabilityand further check by the courts which exercise the power ofjudicial review. It is not for the judges to seek to develop new all-embracing principles of law in way that reflects the stance andopinion of the individual judges when the society/legislators as awhole are unclear and substantially divided on the relevant issues.In Bhim Singh v. Union of India, while observing that theConstitution does not strictly prohibit overlapping of functions asthis is inevitable in the modern parliamentary democracy, theConstitution prohibits exercise of functions of another branchwhich results in wresting away of the regime of constitutionalaccountability. Only when accountability is preserved, there willbe no violation of principle of separation of powers. Constitutionnot only requires and mandates that there should be right decisionsthat govern us, but equal care has to be taken that the rightdecisions are made by the right body and the institution. This iswhat gives legitimacy, be it legislation, policy decision or acourt adjudication.

28. It is sometimes contended with force that unpopular anddifficult decisions are more easily grasped and taken by the judgesrather than by the other two wings. Indeed, such suggestions wereindirectly made. This reasoning is predicated on the belief that thejudges are not directly accountable to the electorate and, therefore,

ABC

DEF

428SUPREME COURT REPORTS

Aenjoy the relative freedom from questions of the moment, whichenables them to take detached, fair and just view. The positionthat judges are not elected and accountable is correct, but thiswould not justify an order by court in the nature of judiciallegislation for it will run afoul of the constitutional supremacy andinvalidate and subvert the democratic process by which legislationsBare enacted. For the reasons stated above, this reasoning isconstitutionally unacceptable and untenable.”

193. The other facet of participatory democracy is disclosure ofinformation in public domain about the actions of Government. Thepetitioners’ argument is that for effective participation, the citizens mustCknow what they are participating in and why. This merits consideration.For, unless complete and relevant information about Government decisionis placed in public domain, the public would be ill-equipped to engagewith the Government in meaningful manner. In democracy, disclosureof full information is empowerment and acts as an enabler for meaningfulDparticipation. Granting open access to information also secures the goalof transparency to which all public institutions are wedded. In S.P. Gupta& Ors. v. President of India & Ors.[305], this Court discussed about thecommon thread running through information, transparency andaccountability and observed as under:

E“63. Now it is obvious from the Constitution that we have adopteda democratic form of Government. Where society has chosento accept democracy as its creedal faith, it is elementary thatthe citizens ought to know what their government is doing.The citizens have right to decide by whom and by whatrules they shall be governed and they are entitled to callFon those who govern on their behalf to account for theirconduct. No democratic government can survive withoutaccountability and the basic postulate of accountability is that thepeople should have information about the functioning of thegovernment. It is only if people know how government isGfunctioning that they can fulfill the role which democracy assignsto them and make democracy really effective participatorydemocracy. “Knowledge” said James Madison, “will for evergovern ignorance and people who mean to be their own governorsmust arm themselves with the power knowledge gives. popular

government without popular information or the means ofobtaining it is but prologue to farce or tragedy or perhapsboth.” The citizens’ right to know the facts, the true facts, aboutthe administration of the country is thus one of the pillars of ademocratic State. And that is why the demand for openness inthe government is increasingly growing in different parts of theworld.”

(emphasis supplied)

In R.K. Jain v. Union of India[306], the Court observed again:

“41. … It is only if the people know how the Government isfunctioning that they can fulfil their own democratic rights givento them and make the democracy really effective participatorydemocracy. There can be little doubt that exposure to public scrutinyis one of the surest means of running clean and healthyadministration. Disclosure of information in regard to thefunctioning of the Government must be the rule and secrecycan be exceptionally justified only where strict requirementof public information was assumed. The approach of thecourt must be to alleviate the area of secrecy as much aspossible constantly with the requirement of public interestbearing in mind all the time that the disclosure also servesan important aspect of public interest. ...”

(emphasis supplied)

In Central Public Information Officer, Supreme Court of Indiav. Subhash Chandra Agarwal[307], this Court restated the governinglegal position and highlighted the importance of an informed citizenry bydrawing from the preamble of Right to Information Act, 2005[308] andobserved thus:

“120. Before we proceed any further we need to have briefreference to the scheme of the RTI Act. The Statement of Objectsand Reasons envisage noble goal of creating democracy whichis consisting of informed citizens and transparent government.It also provides for balance between effective government,efficient operations, expenditure of such transparent systems and

308 For short, “the 2005 Act”

Arequirements of confidentiality for certain sensitive information.It recognises that these principles are inevitable to create frictioninter se and there needs to be harmonisation of such conflictinginterests and there is further requirement to preserve thesupremacy of democratic ideal. The recognition of this normativedemocratic ideal requires us to further expound upon the optimumBlevels of accountability and transparency of efficient operationsof the Government. …”

The Court then highlighted how open access to information iscrucial for the participatory element of democracy thus:

“192. Bhagwati, J. expanded on the socio-political backgroundCthat must inform any approach in “democratic society weddedto the basic values enshrined in the Constitution”. He drew aninterconnection between democracy, transparency andaccountability to hold that basic postulate of accountability, whichis fundamental to democratic government, is that informationabout the Government is accessible to the people. He held thatDparticipatory democracy is premised on the availability ofinformation about the functioning of the Government. The right toknow as “pillar of democratic State” imputes positive contentto democracy and ensures that democracy does not remain staticbut becomes “continuous process”. Thus, limitation onEtransparency must be supported by more than claim toconfidentiality — it must demonstrate that the public harm arisingfrom disclosure is greater than the public interest in transparency.…”

In T.S.R. Subramanian and Ors. v. Union of India and Ors.[309],a similar proposition could be traced in para 34 thus:F“39. Democracy requires an informed citizenry and transparencyof information. The Right to Information Act, 2005 (“the RTI Act”)recognises the right of the citizen to secure access to informationunder the control of public authority, in order to promotetransparency and accountability in the working of every publicGauthority. …”In Anjali Bhardwaj and Ors. v. Union of India and Ors.[310],this Court recognised that right to information was traceable from Article19(1)(a) even before the 2005 Act came into force and observed thus:

309 (2013) 15 SCC 732H310 2019 (3) SCALE 447

“10. Much before the enactment of RTI Act, which came on thestatute book in the year 2005, this Court repeatedly emphasisedthe people’s right to information to be facet of Article 19(1)(a)of the Constitution. It has been held that the right to information isa fundamental right and flows from Article 19(1)(a), whichguarantees right to speech. This right has also been traced toArticle 21 which concerns about right to life and liberty. Thereare umpteen number of judgments declaring that transparency isthe key for functioning of healthy democracy ...”

194. It is right to say that the 2005 Act has empowered the citizento obtain information from the Government but it would be absolutelyuntenable to say that there is no duty on the Government to be open. Ina democratic setup where the citizen has entrusted abundant governanceto the Government, it is bounden obligation of the Government to keepthe citizens well informed about its actions, as prudent trustee would.

195. It must be noted that the principle of “political justice” ismeant to inform all institutions of national life and is essential for securinga just social order. Further, securing political justice is envisioned as astep towards “welfare of the people”. The term “political justice” is ofutmost importance, for it is not just fundamental to governance of thecountry owing to its positioning in the Directive Principles and beingprominently expounded in the PREAMBLE of the Constitution whichstrives

““…to secure to all its citizens:

JUSTICE, social, economic and political;

In Raghunathrao Ganpatrao v. Union of India[311], the Courtattempted to provide meaning to the term political justice and observedthus:

“96. ...Political justice relates to the principle of rights of the people,i.e. right to universal suffrage, right to democratic form ofGovernment and right to participation in political affairs ...”

(emphasis supplied)

196. The idea of political justice is not constrained to an orthodoxunderstanding of democratic form of Government. We are in an

311 AIR 1993 SC 1267

Ainformation age and political justice would be incomplete withoutinformational justice which essentially requires the decision makers toconsider the subjects of their decisions as rightful recipients of allinformation that may have an impact on their lives. Furthermore, openavailability of information would also advance the objective of educationand empowerment. Article 51(h) provides for the fundamental duty “toBdevelop the scientific temper, humanism and the spirit of inquiryand reform”. The furtherance of spirit of inquiry and reform is largelydependent on the availability of information. It is nothing but duty whichenjoins the citizens to participate in good governance.

197. Notably, the respondents in the present case have recognisedCthe importance of openness and have placed elaborate data before us todemonstrate how all steps of the project including all permissions, orders,invitations, approvals etc. were made available for direct public accessonline from time to time at the earliest available opportunity. We shall beexamining the same at an appropriate stage.D198. Having thoroughly discussed the import, scope of applicationand substantial value of the aforesaid principles for the purpose of thiscase, we may now advert to specific challenges.

CHANGE IN LAND USE

199. In order to address the challenge against change in land use,Ethree broad questions arise for consideration, namely:

(i)Whether the change in land use of the subject plots ispermissible in law?

(ii)If permissible, to what extent can such change be madeFwithin the contours of law?

(iii)Whether the parameters, procedural or otherwise, to befollowed for effecting such change have been duly followedby the respondents?

WHAT IS MASTER PLAN AND ZONAL PLANG

200. We may first advert to the legal framework relating to MasterPlan, Zonal Plans and modifications therein, as envisaged in the 1957Act and the Master Plan (master plan presently in force). Admittedly,thus far three Master Plans have been made for Delhi. Before the presentplan, two master plans were in force – Master Plan, 1962 (in force forH

20 years from 1962-1981), Master Plan, 2001 and now Master Plan,2007 (in force from 1981-2021). Section 7 of the 1957 Act provides forthe preparation of master plan and reads thus:

“7. Civic survey of, and master plan for, Delhi. —

(1) The Authority shall, as soon as may be, carry out civic surveyof, and prepare master plan for, Delhi.

(2) The master plan shall—

(a) define the various zones into which Delhi may be dividedfor the purposes of development and indicate the mannerin which the land in each zone is proposed to be used(whether by the carrying out thereon of development orotherwise) and the stages by which any such developmentshall be carried out; and

(b) serve as basic pattern of frame-work within whichthe zonal development plans of the various zones may beprepared.

(3) The master plan may provide for any other matter which isnecessary for the proper development of Delhi.”

(emphasis supplied)

Primarily, the Master Plan is meant to delineate various territorialzones within Delhi and the manner of land use in each zone. It also actsas basic framework or presaging for the consequent preparation ofzonal plans. Sub-Section (3) is of residuary character. It predicatesthat the master plan may also provide for any other matter (in addition tospecified in earlier part of the same section) which is necessary for theproper development of Delhi.

201. To effectuate the master plan, the 1957 Act mandatespreparation of zonal plans for each zone created under the master plan.A zonal plan for the concerned zone must contain site plan and useplan for the development of the zone in conformity with the land useprescribed therefor in the master plan, including other particulars referredto in sub-Section (2) of Section 8, for ensuring proper development. It isa subset of the master plan. Section 8 provides thus:

“8. Zonal development plans.— (1) Simultaneously with thepreparation of the master plan or as soon as may be thereafter,

the Authority shall proceed with the preparation of zonaldevelopment plan for each of the zones into which Delhi may bedivided.

(2) zonal development plan may—

(a) contain site-plan and use-plan for the development of thezone and show the approximate locations and extents of land-uses proposed in the zone for such things as public buildingsand other public works and utilities, roads, housing, recreation,industry, business, markets, schools, hospitals and public andprivate open spaces and other categories of public and privateuses;

(b) specify the standards of population density and buildingdensity;

(c) show every area in the zone which may, in the opinion ofthe Authority, be required or declared for development or re-development;

(d) in particular, contain provisions regarding all or any of thefollowing matters, namely: —

(i) the division of any site into plots for the erection of buildings;

(ii) the allotment or reservation of land for roads, open spaces,gardens, recreation grounds, schools, markets and other publicpurposes;

(iii) the development of any area into township or colony andthe restrictions and conditions subject to which suchdevelopment may be undertaken or carried out;

(iv) the erection of buildings on any site and the restrictionsand conditions in regard to the open spaces to be maintained inor around buildings and height and character of buildings;

(v) the alignment of buildings on any site;

(vi) the architectural features of the elevation or front age ofany building to be erected on any site;

(vii) the number of residential buildings which may be erectedon any plot or site;

(viii) the amenities to be provided in relation to any site orbuildings on such site whether before or after the erection ofbuildings and the person or authority by whom or at whoseexpense such amenities are to be provided;

(ix) the prohibitions or restrictions regarding erection of shops,workshops, warehouses or factories or buildings of specifiedarchitectural feature or buildings designed for particularpurposes in the locality;

(x) the maintenance of walls, fences, hedges or any otherstructural or architectural construction and the height at whichthey shall be maintained;

(xi) the restrictions regarding the use of any site for purposesother than erection of buildings; and

(xii) any other matter which is necessary for the properdevelopment of the zone or any area thereof according to planand for preventing buildings being erected haphazardly in suchzone or area.”

notable feature of the zonal plan is that it manifests multiplemicro aspects of decentralized planning depending on the type of zone.It may provide for conditions and restrictions on development as may beneeded for the proper development of the zone.

202. An understanding of the relationship between master planand zonal plan is relevant for further analysis. Whereas the master planlays down broad vision of development for region, the zonal plan ismeant to provide specificity to the vision expressed in the master planfor facilitating the execution of the vision in specified zones. zonal planis meant to further the vision of the master plan. In Master Plan, zonalplan is defined thus:

“2(2) Zonal Development Plan means plan for one of the zones(divisions) of the National Capital Territory of Delhi containingdetailed information regarding provision of social infrastructure,

parks and open spaces, circulation system, etc.”

Chapter 16 of Master Plan titled “Land Use Plan” throws light onthe substance of zonal plan as:

“16.1 ...The Zonal plans shall detail out the policies of theMaster Plan 2021 andact as link between the Layout Plan

Aand Master Plan. The development schemes and layoutplans indicating various use premises shall conform to theMaster Plan / Zonal Plans. The Zonal Plans of the areas shallbe prepared under Section 8 and processed under Section 10 andsimultaneously the modifications of land uses shall be processedunder Section 11(A) of the Delhi Development Act, 1957. AlreadyBapproved Sub Zonal (earlier Zonal) Plans in conformity withthe Master Plan shall continue for the areas where the ZonalPlans have not been approved. The Zonal Plans in the form ofstructure plans shall be prepared within 12 months of the approvalof the MPD-2021.

In absence of Zonal Plan of any area, the development shallbe in accordance with the provisions of the Master Plan.No urban activity shall be permitted in the proposed UrbanExtension without change of land use / modification to the MasterPlan as per the Delhi Development Act, 1957"

(emphasis supplied)

The zonal plan, as exposited above, acts as link between layoutplan[312] and master plan. It is also relevant to note that preparation of azonal plan in accordance with Section-8 is not pre-requisite for theoperationalization of master plan. It is clearly stated in clause 16.1(quoted above) that earlier zonal plan if in conformity with the prevailingEmaster plan, may continue in areas where new zonal plan has not beenapproved. Further, in absence of zonal plan of any area, the developmentcan proceed in accordance with the contours specified in the masterplan – for the specified zone. The underlying reason is to ensure that thepace of development does not come to standstill in absence of zonalFplan and at the same time is for proper development of the concernedzone and in particular whole of Delhi. Therefore, the scope and directionof development as envisaged in the master plan shall remain unhindered,irrespective of whether or not it is complemented with new zonal planor not.

MODIFICATION OF PLANSG

203. We may now examine the statutory scheme concerning themodification of plans. The thrust of the challenge necessitates us toanalyse the provisions for modifying the plan.

312 Layout Plan means Plan indicating configuration and sizes of all Use Premises.Each Use Zone may have one or more than one Layout Plan depending upon theHextensiveness of the area under the specific Use Zones and vice-versa.

204. Section 11A of the 1957 Act is the primary provision enablingmodifications to plan. It falls under separate chapter titled“MODIFICATIONS TO THE MASTER PLAN AND THE ZONALDEVELOPMENT PLAN”. The same reads thus:

“11A. Modifications to plan.—(1) The Authority may makeany modifications to the master plan or the zonal developmentplan as it thinks fit, being modifications which, in its opinion, do noteffect important alterations in the character of the plan and whichdo not relate to the extent of land-uses or the standards ofpopulation density.

(2) The Central Government may make any modificationsto the master plan or the zonal development plan whethersuch modifications are of the nature specified in sub-section(1) or otherwise.

(3) Before making any modifications to the plan, the Authority or,as the case may be, the Central Government shall publish noticein such form and manner as may be prescribed by rules made inthis behalf inviting objections and suggestions from any personwith respect to the proposed modifications before such date asmay be specified in the notice and shall consider all objectionsand suggestions that may be received by the Authority or theCentral Government.

(4) Every modification made under the provisions of this sectionshall be published in such manner as the Authority or the CentralGovernment, as the case may be, may specify and the modificationsshall come into operation either on the date of the publication oron such other date as the Authority or the Central Governmentmay fix.

(5) When the Authority makes any modifications to the plan undersub-section (1), it shall report to the Central Government the fullparticulars of such modifications within thirty days of the date onwhich such modifications come into operation.

(6) If any question arises whether the modificationsproposed to be made by the Authority are modificationswhich effect important alterations in the character of theplan or whether they relate to the extent of land-uses orthe standards of population density, it shall be referred to

438SUPREME COURT REPORTS

Athe Central Government whose decision thereon shall befinal.

(7) Any reference in any other Chapter, except Chapter III, to themaster plan or the zonal development plan shall be construed as areference to the master plan or the zonal development plan asBmodified under the provisions of this section.”

(emphasis supplied)

205. Section 11A is repository of both power and procedure ofmodification. It bestows two entities with such power - Authority (DDA)and the Central Government. The power of modification vested in theCAuthority, is circumscribed, as specified in sub-Section (1); but widerdiscretion has been given to the Central Government in that regard. Theextent of power granted to the two entities is dissimilar and disparate.Section 11A(1) empowers the Authority to make modifications in themaster plan or the zonal plan subject to three express fields:D(i)such modifications do not effect important alterations inthe character of the plan;

(ii)such modifications do not relate to the extent of land-uses;(iii)such modifications do not relate to the standards ofpopulation density.E

Whereas, in marked progression from the mandate of Authority,sub-Section (2) empowers the Central Government to effectmodifications to the master plan or zonal plan irrespective of whethersuch modifications are of the nature specified in sub-Section (1) or anyother modification as may be deemed necessary in public interest. TheFlanguage used by the legislature is explicit and commends no othermeaning. In other words, sub-Section (2) is widely worded and bestowsexpansive power upon the Central Government. It is not constricted byplacing restrictions regarding not to alter the character or extent of themaster plan or zonal plan specified in sub-Section (1), in case the CentralGGovernment intends to do so in public interest including for the properdevelopment of Delhi. This literal understanding of the provision is incomplete harmony with the text of Master Plan, as we shall see, whichalso acknowledges the need for modifications in cases of necessity basedupon public interest. That, however, can be done by following procedureprescribed for carrying out such modification. Sub-Section (6) of theH

provision is also instructive. It empowers the Central Government todecide whether the Authority has violated the three express limitationsunder sub-Section (1) while effecting modifications and that decision isfinal. Let us understand the scheme further.

206. Section 41 of the 1957 Act provides for the control of theCentral Government over the Authority and advances the view that asuperior role is attributed to it under the Act. It reads thus:

“41. Control by Central Government.—(1) The Authorityshall carry out such directions as may be issued to it fromtime to time by the Central Government for the efficientadministration of this Act.

(2) If in, or in connection with, the exercise of its powers anddischarge of its functions by the Authority under this Act, anydispute arises between the Authority and the CentralGovernment the decision of the Central Government onsuch dispute shall be final.

(3) The Central Government may, at any time, either on its ownmotion or on application made to it in this behalf, call for the recordsof any case disposed of or order passed by the Authority for thepurpose of satisfying itself as to the legality or propriety of anyorder passed or direction issued and may pass such order or issuesuch direction in relation thereto as it may think fit:

Provided that the Central Government shall not pass an orderprejudicial to any person without affording such person reasonableopportunity of being heard.”

(emphasis supplied)

The same intent was reflected in the unamended DelhiDevelopment (Master Plan and Zonal Development) Rules, 1959[313].Rule 12 provided for amendment of the Master Plan by the Authorityand predicated that the Authority may carry out amendments upon theexpiry of every five years in accordance with the procedure prescribedin the 1957 Act. The requirement of acting “in accordance with theprocedure” prescribed in the 1957 Act signified that the Authority is notsupposed to deviate from the three stipulations under Section 11A(1).Rule 12 reads thus:

“12. Amendment of Master Plan.—The Authority may amendthe whole or any part of the master plan, if necessary, at theexpiry of every five years in accordance with the procedureprescribed by the Act and these rules as if the proposedamendment were new master plan.

Provided that if the Authority is of opinion that having regardto the circumstances prevailing at any particular time it is necessaryso to do, it may amend the master plan or any part thereof at anytime prior to the expiry of the said period, in accordance with theaforesaid procedure.

CProvided further that the Authority may, without following theaforesaid procedure, but with the prior approval of the CentralGovernment, permit on receipt of an application in this behalf, anychange in the size of public parks and recreation grounds notexceeding ten per cent either way of the approved size.”

DRule 13 being supplemental to Rule 12 mandated that everyamendment of the master plan by the Authority was subject to approvalby the Central Government. The relevant extract thereof reads thus:

“13. Approval of Central Government to Amendment ofMaster Plan.— (1) Amendment of the master plan shall notEtake effect unless approved by the Central Government.....

Indeed, Rules 12 and 13 came to be deleted [vide DelhiDevelopment (Master Plan and Zonal Development Plan) AmendmentRules, 1966[314]]. However, they are useful in understanding the intent ofFthe law-making bodies as well as to ascertain the relationship betweenthe Central Government and Authority in planning activities. collectivereading of Rules 12 and 13 signifies that the Authority is subservient tothe Central Government as far as modifying the master plan is concerned.Its powers are controlled by the Central Government. At the same time,a key takeaway from conjoint reading of the aforesaid Rules is that inGthe entire scheme (Act and Rules), there is no restriction – be it ofminimum time period after which amendments could be made or ofseeking approvals from superior body – on the Central Government’spower of modification of the master plan/zonal plan. Therefore, in order

to determine the validity of modification, it is of utmost importance toascertain the entity which has initiated the modification exercise. Wemay consider this in the light of facts of this case at later stage, afterdelineating the law clearly.

207. The permissibility of modifications in the master plan/zonalplan includes modifications in any part of these plans. There is norestriction on the Central Government on the scope of modifications.For qualitative examination of the extent of permissible modifications,however, we may now advert to the meaning of the word “modification”as envisioned in the applicable provisions of Master Plan and the 1957Act.

Modification: Meaning

208. The Master Plan, as noted above, was notified in 2007 toguide the direction of development in the National Capital Territory ofDelhi till 2021. In the section comprising of “Major Highlights of thePlan”, planned development of new areas and rejuvenation of old areasare stated to be parallel aims. Point 18 reads thus:

“18. The Master Plan incorporates several innovations for thedevelopment of the National Capital. critical reform has beenenvisaged in the prevailing land policy and facilitating public -private partnerships. Together with planned development ofnew areas, major focus has been on incentivising therecycling of old, dilapidated areas for their rejuvenation.The Plan contemplates mechanism for the restructuring of thecity based on mass transport. The Perspective Plans of physicalinfrastructure prepared by the concerned service agencies shouldhelp in better coordination and augmentation of the services.”

(emphasis supplied)

Point 19 indicates that the Master Plan, once freezed, is not goingto stagnate the scope of development until the completion of durationand changing requirements of the society may call for modification/review of the plan. It reads thus:

“19. The Master Plan envisages vision and policy guidelines forthe perspective period upto 2021. It is proposed that the Planbe reviewed at five yearly intervals to keep pace with thefast changing requirements of the society.”

(emphasis supplied)

AThe vision of the Master Plan, as specified in the plan, succinctlynotes that blending heritage with modern patterns of development is akey feature. It reads thus;

“VISION

3. Vision-2021 is to make Delhi global metropolis and world-Bclass city, where all the people would be engaged in productivework with better quality of life, living in sustainable environment.This will, amongst other things, necessitate planning and action tomeet the challenge of population growth and in-migration into Delhi;provision of adequate housing, particularly for the weaker sectionsCof the society; addressing the problems of small enterprises,particularly in the unorganized informal sector; dealing with theissue of slums, up-gradation of old and dilapidated areas of thecity; provision of adequate infrastructure services; conservationof the environment; preservation of Delhi’s heritage andblending it with the new and complex modern patterns ofDdevelopment; and doing all this within framework of sustainabledevelopment, public private and community participation and aspirit of ownership and sense of belonging among its citizens.”

(emphasis supplied)

What emerges from the above extracts of Master Plan is that theEMaster Plan presents dynamic vision of development which dulyacknowledges the need for suitable modifications in light of emergentcircumstances. The dynamic nature of the plan is further reflected inChapter 18 titled “Plan Review and Monitoring” which specifies thatphased monitoring of the functioning of the plan is essential to take careFof emerging socio-economic changes. It further notes that periodic reviewof the plan is essential for effective implementation. It reads thus:“18.0 PLAN REVIEW AND MONITORING

Plan Monitoring is essential to evaluate the changes required toimprove the quality of life in the city. Properly phased monitoringGmakes the plan responsive to the emerging socio-economic forces.Implementation of the plan can be effective only when monitoredand reviewed at appropriate periods.”

Resultantly, such review can take place by way of suitablemodifications in the plan. This is succinctly reflected in point 18.5 whichreads thus:H

“18.5 REVIEW

Timely review of the plan with the help of above groups andmonitoring unit shall ensure mid-term correction andmodifications if needed in the Plan Policies as well as theimplementation procedures, which will help to re-adjust theevents in the plan that could not be foreseen or anticipatedduring the Plan Formulation. If the plan is timely monitoredand appropriately reviewed, the policies can be moulded inthe right direction according to the present needs of thepeople of the city.”

(emphasis supplied)

The above point is reinforcement of the view that the plans canundergo mid-course corrections and modifications to mould the policiesin the right direction for the proper development of Delhi. The characterof modifications and permissibility thereof as envisaged in the masterplan can be articulated amongst others as:

first, modification to be necessary for meeting the present needsof the people including for better governance and properdevelopment of Delhi;

second, modifications can be effected in the wake of unforeseenand unanticipated circumstances;

The aforesaid points are not exhaustive. For, the Master Planlays down framework for development of the zones in prescribed manner.It does not operate as controlling force upon the statutory powers ofmodification of the Central Government or Authority within theirrespective mandates under the 1957 Act. The idea of organic developmentin consonance with the evolving needs of time is explicitly reflected inthe Master Plan. The basic principle behind the Master Plan is to treadthe path of development in the specified manner including with apurposeful transformation perceived by the policy makers. The primaryconsideration before the Central Government while undertaking amodification exercise in Section 11A(2) is public interest. pro-development enactment cannot be read in pedantic manner, as theunderlying purpose of all laws is to act in aid of the larger goal ofprovisioning for improving quality of life of the citizens and meaningfulgovernance.

A209. To understand further, it would be relevant to note thatdevelopment and planning enactments often carve out distinctionbetween major and minor modifications. In Manohar Joshi[315], this Courtanalysed the provisions of Maharashtra Regional and Town PlanningAct, 1966[316] and observed that distinction exists between major andminor modifications under that Act. It observed thus:B

“55. There are only two methods by which modifications of thefinal development plan can be brought about. One is where theproposal is such that it will not change the character of thedevelopment plan, which is known as minor modification and forwhich the procedure is laid down under Section 37 of the Act.CThe other is where the modification is of substantial nature whichis defined under Section 22-A of the Act. In that case the procedureas laid down under Section 29 is required to be followed ...”

It then observed that when modifications are permissible subjectto not changing the character of the plan, it would be case of minorDmodification. In para 58, it was observed thus:

“Minor modifications

58. Section 37 of the MRTP Act, reads as follows:

“37.Modification of final development plan.—(1) WhereEa modification of any part of or any proposal made in, afinal development plan is of such nature that it will notchange the character of such development plan, thePlanning Authority may, or when so directed by the StateGovernment shall, within sixty days from the date of suchFdirection, publish notice in the Official Gazette and in suchother manner as may be determined by it inviting objectionsand suggestions from any person with respect to the proposedmodification not later than one month from the date of suchnotice; and shall also serve notice on all persons affected bythe proposed modification and after giving hearing to anyGsuch persons, submit the proposed modification (withamendments, if any), to the State Government for sanction.

315 (supra at 95)316 For short, “the 1966 Act”H

59. As seen from this section, the minor modification underSection 37(1) has to be such that it will not change thecharacter of the development plan. The section indicates thatfor setting the procedure under Section 37 into motion, the PlanningAuthority has to firstly form an opinion that the proposedmodification will not change the character of the developmentplan. Such an opinion has to be formed by the Planning Authoritymeaning the general body of the Municipal Corporation, since thisfunction is not permitted to be delegated to anybody else underSection 152 of the Act. Thereafter the Planning Authority has topublish notice in the Official Gazette inviting the objections andsuggestions from the public with respect to the proposedmodification. It is also required to give notice to all the personsaffected by the proposed modification.

(emphasis supplied)

The Court then considered “modifications of substantial nature”and procedure in that regard stipulated in Sections 22A and 29 of the1966 Act and observed thus:

“66. As seen from Section 22-A, it treats modifications ofsix types as substantial modifications. They are as follows:

(a) If plot is admeasuring more than 0.4 ha (i.e. 4000 sq m) inthe Municipal Corporation area or an class municipal area areduction of more than 50% would be considered as substantialmodification. In and class municipal areas such plot has tobe of 1 ha;

(b) Secondly, under clause (b) all changes which result in theaggregate to reduction of any public amenity by more than tenper cent of the area provided in the planning unit are considered asubstantial change;

(c) Where there is an actually existing site reserved for publicamenity, except for marginal area up to two hundred square metresrequired for essential public amenities or utility services theirreduction will be substantial modification;

(d) Shifting of the allocation of use of land from zone to zonewhich results in increasing the area in the other zone by ten percent in the same planning unit will be substantial modification;

A(e) Any new reservation made in draft development plan whichis not earlier published will be substantial modification; and

(f) Alternation in the floor space index beyond ten per cent will bea substantial modification.”

(emphasis supplied)

210. The exposition in Manohar Joshi[317] does reveal that townplanning legislations contemplate various levels of modifications.Depending on the nature of modification, minor or substantial, separateprocedure is prescribed under the 1966 Act. notable takeaway fromthe aforesaid analysis is that even substantial modification, per se, is notCan out-of-bounds of executive action as long as the applicable law permitssuch modification. Unlike the 1966 Act applicable to Maharashtra, the1957 Act does not expressly use the expression “substantial modification”.However, Section 11A provides for similar scheme of minor and majormodification. Under the scheme of the 1957 Act read with Master Plan,Dminor modifications would refer to changes within zone demarcatedas per the master plan; and major modifications may involve substantialmodifications such as changing the zone itself from one category toanother or altering the territorial expanse of zone. Section 22A of the1966 Act considers variation of ten percent in the area allocated to aparticular zone as substantial variation. We reproduce the relevantEextract thus:

“(d) Shifting of the allocation of use of land from zone to zonewhich results in increasing the area in the other zone by ten percent in the same planning unit will be substantial modification;”

F211. In Machavarapu Srinivasa Rao & Anr. v. Vijayawada,Guntur, Tenali, Mangalagiri Urban Development Authority &Ors.[318], this Court considered the Andhra Pradesh Urban Areas(Development) Act, 1975 and found similar distinction between minorand substantial modifications and observed that the DevelopmentAuthority did not possess the power to effect substantial modificationsGto the plan, however, the State Government possessed that power. Inpara 20, it noted thus:

“20. An analysis of the abovenoted provisions shows that oncethe master plan or the zonal development plan is approved by the317 (supra at 95)H318 (2011) 12 SCC 154

State Government, no one including the State Government/Development Authority can use land for any purpose other thanthe one specified therein. There is no provision in the Act underwhich the Development Authority can sanction construction of abuilding, etc. or use of land for purpose other than the onespecified in the master plan/zonal development plan. The powervested in the Development Authority to make modification in thedevelopment plan is also not unlimited. It cannot make importantalterations in the character of the plan. Such modification can bemade only by the State Government and that too after followingthe procedure prescribed under Section 12(3).”

212. Bearing in mind the underlying principles in aforementionedexpositions, it may be safely held that sub-Section (1) of Section 11A ofthe 1957 Act contemplates minor modifications by the Authority as itprohibits changing the character of the plan. Whereas, sub-Section (2)contemplates both minor as well as substantial modifications of the planin accordance with the procedure prescribed therefor.

213. Ordinarily, the sanctity of the plan has to be preserved whilstexercising the power of modification or else it would no longer qualify asa modification. In Black’s Law Dictionary, 11[th] Edition, the word “modify”is defined as:

“To make somewhat different; to make small changes to(something) by way of improvement, suitability, or effectiveness.”

214. Moreover, in Puranlal Lakhanpal[319], this Court providedmeaning to the word “modification” on similar lines and observed thus:

“(4) …In the Oxford English Dictionary (Vol. VI) the word“modify” means inter alia “to make partial changes in; to change(as object) in respect of some of its qualities; to alter or varywithout radical transformation.” Similarly the word“modification” means “the action of making changes in an objectwithout altering its essential nature or character; the state of beingthus changed; partial alteration”. …”

(emphasis supplied)

215. The legislature has consciously used the term “modification”.It implies that the changes contemplated under Section 11A must not

Aqualitatively alter the original identity of the plan. Indeed, any modificationentails deviation from the prevailing plan, but it has been permitted bythe legislature as long as it coalesces with the spirit of the original plan.The expression “or otherwise” occurring in sub-Section (2) needs to beso construed. The deviation must not be of nature that virtually leadsto the replacement of the original plan. The distinctiveness, fundamentalBidentity and basic features of the plan must be preserved in modificationexercise as far as possible. The real test is that the broad vision ofdevelopment envisaged in the plan stays intact. The modification maybecome necessary to infuse improvement, suitability or effectivenessinto the governing plan, due to supervening circumstances including toCaddress the dynamic factors and contemporary overlapping needs ofthe public and effective governance. That, however, in country governedby Rule of Law must be exercised in public interest and meet the testsof reasonableness, non-arbitrariness and fairness. It is not an untrammelledpower in that sense. This hallowed promise is so cardinal to the sustenanceof Rule of Law that the legislature hardly considers it essential to makeDit express in every enactment.

216. We may now see whether change in land use forms part ofpermissible modifications under the 1957 Act. As noted above, masterplan and zonal plans contain land use plan. Rule 4 of the 1959 Rulestitled “Form and contents of Master Plan” specifically provides that aEland use plan forms part of the master plan. Since Section 11Acategorically allows modifications in both these documents, it naturallysignifies that such modifications can relate to land-use as well, apartfrom modifications in other elements of the plan.

217. It is well established by now that existence of power andFexercise of power are two different things. Having found that the changein land use, in principle, is permissible, we now proceed to examine thechanges effected in the present case and the procedure adopted therefor.

218. The proposal for change in land use of seven plots involvedin the Project was initiated by the Deputy Land and Development Officer,MoHUA, Government of India i.e., by the Central Government. Thus,Gwe note at the very outset that modifications in the present case arecarried out under sub-Section (2) of Section 11A of the 1957 Act andtherefore, any reliance upon the stipulations of sub-Section (1) to controlthe power of modification is wholly misplaced and out of purview of ourexamination. As per the proposal, the details of plots and correspondingHchanges therein can be enumerated thus:

A.Plot No.1 is located on Church road near DTC CentralSecretariat Bus Terminal, New Delhi. As per Master Plan,the Land Use of the Site is under Transportation (BusTerminal/Parking). The proposed land use of the site isGovernment Office.

B.Plot No.2 is located opposite to the Parliament House, NewDelhi. As per Master Plan, the land use of the site is underRecreational (District Park). The proposed land use of thesite is Government Office.

C.Plot No.3 is located on Dr. Rajendra Prasad Road andhouses National Archives. As per Master Plan, the landuse of the site is under Public and Semi-Public facilities.The proposed land use of the site is Government Officeand Recreational (District Park).

D.Plot No.4 is located on Dr. Rajendra Prasad Road and isoccupied by Indira Gandhi National Centre for Art andCulture. As per Master Plan, the land use of the site isunder Public and Semi-Public Facilities (SC). The proposedland use of the site is under Government Office andRecreational (District Park).

E.Plot No.5 is located between Man Singh Road, Ashoka Roadand India Gate Hexagon in Triangular formation. AsMaster Plan, the land use of the site is under Public andSemi-Public facilities. The proposed land use of the site isGovernment Office.

F.Plot No.6 is located on Maulana Azad Road and Consistsof VP house, Vigyan Bhavan and National Museum. Asper Master Plan, the land use of the site is under Public andSemi-Public facilities (SC). The proposed land use of thesite is under Government Office.

G.Plot No.7 is located on Dara Shikoh Marg. As per MasterPlan the land use of the site is under Government office.The proposed land use of the site is Residential.

H.Plot No.8 is located on Lucknow Road near Timarpur andpart of Planning Zone C. As per Master Plan the land useof the site is under Public and Semi-Public Facilities. Theproposed land use of the site is recreational (District Park).

A219. In order to comprehensively understand the impact of theproposed changes, it is necessary to pitch deeper and examine the extentof changes proportionally. This must be understood in light of the entiremaster plan which has been divided into 15 zones (divisions) of theNational Capital Territory of Delhi. The said zones along with theirrespective area can be delineated thus:B

The Land Use Plan identifies 27 land use zones across the capitalterritory which have further been clubbed into 9 categories namely:

i. Residential;

ii. Commercial;

iii. Industrial;

iv. Recreational;

Hv. Transportation;

vi. Utility;

vii. Government;

viii. Public & Semi - Public Facilities; and

ix. Agriculture & Water Body.

The proposed plan herein caters only to two territorial zones i.e.,Zone-D[320] (plots no. 2-7) and Zone-C[321] (plot no. 8) out of 15 zones andbroadly touches upon three land use categories – recreational, governmentand public & semi-public facilities. The total area of Zone is 6855 Ha.which roughly translates to 16938 .71 acres (using the equivalent of 1Ha. = 2.471 acres), and the total area under consideration in this projectis 86.1 acres.

220. Therefore, it is incomprehensible as to how the proposedchanges could be termed as substantial enough to alter the basic identityof the plan or for that matter, of the zone concerned. The effect is negligiblein contrast to the expanse of the zone. The word “plan” represents awider area and is not represented by one or two zones of the city muchless individual plots therein. The case on hand is certainly not one of awholesale changes so as to be calledas drastically or radically alteringthe existing plan. The determination of the true character of developmentplan is to be judged on the basis of facts and circumstances of eachcase. The public interest in holistic and orderly development cannot beundermined by taking pedantic view of the phrase “character of theplan”. By its very nature, character of the plan manifests its identity asa whole and not portion of one of the elements therein. Even from theperspective of land allocated for particular usage, the proposed plandoes not affect the extent of land allocated for different uses in anymaterial sense and overall nature and extent of respective usages in thecentral vista area remains the same, as already discussed above.Moreover, the proposed changes are essentially in the nature of swappingof the uses of the concerned Government plots. It does not pertain toany private ownership plot at all.

221. Pertinently, Plot no. 8, which is part of Zone C, is not partof the central vista region. Furthermore, it is crucial to note that there isa marked distinction between central vista region and central vistaprecincts. The central vista region, wherein all seven plots except plot

320 New Delhi Zone

321 Civil Line Zone

DEF

Ano. 8 fall, refers to the entire regional expanse as per the master plan.Within the central vista region, there is listed space (for heritage purpose)referred to as “Central Vista Precincts at Rajpath”. The demarcation isclear and central vista precincts at Rajpath have been accorded specialstatus in the list of heritage buildings/precincts. Out of the subject plotsinvolved in the project, plot no. 3 (National Museum) is the only plotBwhich forms part of the central vista precincts. The remaining plots,despite being part of the central vista region, are not part of the listedheritage precincts.222. Further, it is common knowledge that plot no. 2 admeasuring10.5 acres (for proposed Parliament House) earlier shown as forCRecreational use (District Park) is inaccessible to the public for the last44 years (since 1976), due to logistical and security reasons. PostParliament attack in 2001, the security arrangements have beenintensified and public access to this space has been restricted. It is quiteevident that despite the official earmarked purpose, the objective ofDrecreation and availability of the said space as public park is not beingfulfilled. Thus, it is important to underscore that the change in land useof this plot from recreational use to Government use is not going toresult in any actual reduction of area available for public usage.Nevertheless, to compensate this change, the proposed change in landuse provides for recreational space at three different locations in theEneighbourhood. In Zone D, three pockets of 1.88 acres each at plots no.3, 4 and 6 have been earmarked for recreational use. Additionally, landuse of 3.5 acres of space at plot no. 8 is being altered from Public andSemi-Public Facilities to Recreational (District Park) use. The underlyingidea is to provision recreational spaces in diversified manner at locationsFwhere public can actually access such spaces meaningfully. Recreationaluse entails use of public space by common public for amusement,relaxation and leisure. The proposed recreational spaces, therefore, notonly fully compensate for the loss of recreational space of plot No. 2,but also provide for accessible recreational spaces elsewhere in thesurrounding vicinity, thereby ensuring meaningful public access to greenGspaces.

223. Upon further examination, it can be noted that the proposedplan seeks to change the land use of certain Government plots in thecentral vista area in order to use them for similar purposes – Governmentoffices, public and semi-public use and recreation. The underlying natureH

of usage of land in this area is not being altered in any substantial manner.By its very nomenclature, Public and Semi-Public use refers to the usageof space for legitimate public purpose including for official use,something which is antithetical to private use. Such public use could beeffected in multiple ways. No doubt, Government use and semi-publicuse may overlap in certain circumstances. For, Government use is oneof the facets of public use itself. It will depend upon specific facts andcircumstances of the case. It was in this spirit that S.O. 3348(E) dated17.10.2017 permitted the usage of PSP spaces for Government offices.In the subject region, various spaces earmarked for Public and Semi-Public Use are already being used for Government purposes and thisoverall pattern of use is preserved with broadly the same character.

224. Notably, the challenge to above noted S.O. dated 17.10.2017needs to be negatived for the reasons already mentioned while testingthe validity of notifications regarding change in land use, as beingrepetitive. In any case, the challenge to this S.O. is being raised by thepetitioners after the expiry of three years, that too after it was reliedupon by the respondents in their reply. This particular challenge must fallon the ground of laches itself. It is not the case of the petitioners that theimpugned notification was beyond access for the period of three yearsand they could not have assailed it at any prior stage. Merely becausethe notification has now come handy in favour of the responding party,the petitioners cannot jump upon it and multiply the scope of challengewithout any sound basis. Strictly speaking, it is not in consonance withthe principle of good faith. In Prabhakar v. Joint Director, SericultureDepartment and Anr.[322],the Court rightly noted thus:“38. It is now well-recognised principle of jurisprudence that aright not exercised for long time is non-existent. Even whenthere is no limitation period prescribed by any statute relating tocertain proceedings, in such cases courts have coined the doctrineof laches and delays as well as doctrine of acquiescence andnon-suited the litigants who approached the Court belatedly withoutany justifiable explanation for bringing the action after unreasonabledelay. Doctrine of laches is in fact an application of maxim ofequity “delay defeats equities”.”

substantive writ petition is entertained by the Court in the lightof certain specific facts and circumstances and it is not an occasion for322 (2015) 15 SCC 1

Athe petitioners to call upon the Court to reopen remote government decisiontaken in the past. Even on merits, as already noted above, the challengedeserves to be negatived. For, the procedure followed meets statutoryrequirements and does not warrant judicial interference.

225. The total area of plots being subjected to change in land useBis 86.1 acres, out of which 61.6 acres of area involves change frompublic and semi-public use to Government use. In light of the above, asactual usage of spaces earmarked for PSP Use, the proposed changescannot be treated as substantial deviation from the nature of land usein the region. Furthermore, use of plot no. 7 presently earmarked forGovernment office alone would be converted to residential in place ofCGovernment office to provide official quarters – which again is publicpremises (Government owned). The remaining proposed changes arelargely in tune with the usage generally followed in this region. Takingany view of the matter, the exercise of power by the Central Governmentis in conformity with the purport of sub-Section (2) of Section 11A,Denabling “modification” as no change of substantial or radical character

is envisaged as far as land use is concerned.

226. The petitioners have raised concerns regarding the changein standards of population density. However, the test of alteration instandard of population density is applicable to modifications initiated byEthe Authority under sub-Section (1). The same falls outside ourconsideration. Further, the subject area caters to floating footfall ofemployees and visitors who may visit for attending to their responsibilities/work in the Government offices situated herein. Except plot no. 7, noresidential usage is being contemplated in this area and the petitionershave not demonstrated any special circumstance which points towardsFthe fact that standards of population density would stand immenselyaltered as result of the proposed plan. We need not dilate further onthis aspect.

227. Before parting with this point, we may gainfully advert toPoint 8.2 titled “Optimum Utilization of Government Land” of MasterGPlan which reads thus:

“8.2. OPTIMUM UTILIZATION OF GOVERNMENTLAND

Government of India, Govt. of NCTD and local bodies areoccupying prime land in Delhi for their offices. Most of the officesH

have been setup immediately after Independence. Large areasare underutilized and have completed their economic life.Due to downsizing of government employment and needfor generation of resources by the ministries, optimumutilization of existing government offices / land could beachieved by the following measures:

i) Intensive utilization of existing government offices/land.

ii) Utilization of Surplus land by the government forresidential development.

iii) Utilization of 10% of total FAR for commercial uses tomake the restructuring process financially feasible. This shallbe subject to approval of land owning agency and concernedlocal body.”

(emphasis supplied)

What emerges from the aforesaid extract of Master Plan is thatthe master plan itself envisages intensive utilization of existingGovernment land and utilization of surplus land by the Government asessential components of optimum utilization of Government land resource.The public trust doctrine obligates the Government to use the availableresources prudently and to subserve the common good. The proposeduse is not to bestow largesse on private persons but for assets creationandfor public use. Naturally, if such optimum utilization requires changingthe land use of Government lands, that must follow in public interest.Further, the afore-quoted extract of the master plan is in line with theobjectives stated by the L&DO while proposing change in land use andmore so there is no basis to label the proposed changes as contraveningthe master plan. On comprehensive understanding of the plan, we areof the view that the proposed changes fully gel with the vision of themaster plan including the zonal plan. Modernity, technologicaladvancements and protection of historicity are subjects of parallelconcern today. They can neither overstep or dispense each other norprohibit each other’s advance. This is the shared spirit of the masterplan and the subject project.

228. We now advert to the final assail regarding the procedurefollowed while effecting the change in land use. Our enquiry at this pointwould traverse through the procedure to be followed for effecting the

Asubject changes – before decision making process begins, during theprocess of decision making until the final notification to bring the changesin force.

PROCEDURE BEFORE DECISION

229. Before the decision, proposal was floated by the land-Bowning agency (Central Government) on 4.12.2019 for change in landuse regarding eight plots located within the Central Vista area. The samewas considered by the Technical Committee in meeting attended bythe Chief Town Planner (TCPO), Chief Architect (NDMC), TownPlanner (MCD), representatives from all stakeholders like DDA, DUAC,CDelhi Metro Rail Corporation, Delhi Police, Fire Department, DelhiElectric Supply Undertaking etc. We deem it apposite to highlight thecomposition of the broad-based Technical Committee:

“DDA

i. Vice Chairman – Chairman

ii. Engineer Member

iii. Principal Commissioner

iv. Commissioner (Plg)

v. Commissioner (LD)

vi. Commissioner (LM)

vii. Chief Architect

viii. Chief Engineer (Electrical)

ix. Additional Commissioners (Planning)- I, II, III & MPMR

x. Director (Landscape)

xi. Director (Building)

OTHER GOVERNMENT DEPARTMENTS

Gi. Chief Town Planner (TCPO)

ii. Chief Architect, NDMC

iii. Town Planner, MCD

iv. Secretary, DUAC

v. Land & Development Officer L&DO

vi. Sr. Architect, H&T Nirman Bhawan

vii. Dy. Commissioner of Police (T) MSO Building

viii. Chief Engineer (Plg.), DESU

ix. Representative of Delhi Metro Rail Corporation (DMRC)

x. Representative of Fire Department

xi. Director PPR”

The Technical Committee recommended the proposal with thefollowing observation:

“After detailed deliberation, the proposal as contained in Para 4.0of the agenda with the above modification in landuse for Plot No.1 was recommended by the Technical Committee for furtherprocessing under Section-11A of DD Act, 1957. With the followingconditions:

(i) The clearances from the PMO, Heritage ConservationCommittee and Central Vista Committee shall be taken byL&DO.

(ii) The heritage buildings shall be dealt as per the relevantheritage provisions.”

(emphasis supplied)

After the approval of the Technical Committee, the proposal wasconsidered by the Authority in its meeting dated 11.12.2019. The purposeof this meeting was to consider the issuance of public notice invitingobjections from general public and commence the decision-makingprocess. The meeting was attended by the following members of theAuthority in accordance with Section 3 of the Act:

“CHAIRMANShri Anil Baijal

Lt. Governor, Delhi

VICE CHAIRMANShri Tarun kapoor

[2021] 15 S.C.R.

AMEMBERS

1.Shri K Vinayak Rao

Finance Member, DDA

2.Shri Shailendra Sharma

BEngineer Member, DDA

3.Shri Vijender Gupta, MLA & Leader of Opposition in theLegislative Assembly of NCT of Delhi

4.Shri Somnath Bharti, MLA

5.Shri SK Bagga, MLA

6.Shri OP Sharma, MLA

7.Shri Manish Aggarwal, Municipal Councillor, South DelhiMunicipal Corporation

8.Smt. Bhawna Malik, Municipal Councillor, East DelhiMunicipal Corporation

SECRETARY

Shri Sarkar, Commissioner-cum-Secretary, DDA

SPECIAL INVITEES

1.Dr. Rajesh Kumar, Principal Commissioner (Housing, CWGand Sports), DDA

2.Shri Manish Kumar Gupta, Principal Commissioner (LD,LM, Systems & Coordination), DDA

3.Dr. Rajeev Kumar Tiwari, Principal Commissioner (Pers.,Hort. & Landscape), DDA

4.Smt. Varsha Joshi, Commissioner, North Delhi MunicipalCorporation

5.Shri Amit Kataria, Land & Development Officer, MoHUA,Govt. Of India

LT. GOVERNOR’S SECRETARIAT

1.Shri Vijay Kumar

Principal Secretary to Lt. Governor

2.Smt. Chanchal Yadav

Special Secretary to Lt. Governor”

The subject proposal was considered in this meeting as Item No.130/2019 along with seventeen other proposals in ordinary course ofbusiness and was approved thus:

“Item No. 130/2019

Regarding proposed change of land use of Plot Nos.1,2,3,4,5,6,7 and 8.

F.20(12)2019/MP

The proposal contained in the agenda item was approved. Publicnotice inviting objections/suggestions under Section 11 of DDAct, 1957 be issued.”

PROCEDURE DURING DECISION-MAKING PROCESSAND PUBLIC HEARING UNDER SECTION 11A

230. As result of the approval accorded by the Authority, apublic notice came to be issued on 21.12.2019. The same reads thus:

“DELHI DEVELOPMENT AUTHORITY

(Master Plan Section)

PUBLIC NOTICE

New Delhi, the 21st December, 2019

S.O. 4587(E).— The following modification which the DelhiDevelopment Authority / Central Government proposes tomake to the Master Plan-2021/Zonal Development Plan of Zone‘D’ (for Plot No.1 to 7) and Zone ‘C’ (for Plot No.8) under Section11-A of DD Act, 1957, is hereby published for public information.Any person having any objection/suggestion with respect to theproposed modification may send the objection/suggestion in writingto the Commissioner-cum-Secretary, Delhi DevelopmentAuthority, ‘B’ Block, Vikas Sadan, New Delhi-110023 within aperiod of thirty (30) days from the date of this Public Notice. Theperson making the objection or suggestion should also give his/hername and address in addition to telephone No./contact numberand e-mail ID which should be legible.

460SUPREME COURT REPORTSAProposed Modification:BCDEFGH

The text/Plan indicating the proposed modifications shallbe available for inspection at the office of Deputy Director (MP),Delhi Development Authority, 6th Floor, Vikas Minar, I.P. Estate,New Delhi on all working days during the period referred above.The text/plan indicating the proposed modifications is alsoavailable on DDA’s website i.e. www.dda.org.in.

[F.No.F.20(12)2019/MP]

D. SARKAR, Dy. Secy.”

(emphasis supplied)

231. The land-owning agency later submitted revised proposalto the Authority in respect of plot No. 1 (out of the eight plots), videcommunication dated 31.1.2020. Be that as it may, the issuance of publicnotice by the Authority commences the statutory process under Section11A of the 1957 Act. In the present case, the respondents have adoptedthe procedure analogous to one under Chapter-III of the 1959 Rulesalong with Section 11A for effecting the subject modifications in themaster plan and therefore, we may consider the same in our analysis.

232. Sub-Section (3) of Section 11A of the Act (produced above)specifies the procedure to be followed before the final decision. Wereproduce sub-Section (3) for easy reference:

“(3) Before making any modifications to the plan, theAuthority or, as the case may be, the Central Governmentshall publish notice in such form and manner as may beprescribed by rules made in this behalf inviting objectionsand suggestions from any person with respect to theproposed modifications before such date as may be specifiedin the notice and shall consider all objections and suggestionsthat may be received by the Authority or the Central Government.”

(emphasis supplied)

It mandates publication of notice in prescribed form and mannerunderthe rules made in that regard in order to invite objections andsuggestions from any person with respect to the proposed modifications.It further enjoins the Authority to “consider” all objections and suggestionsthat may be received.

233. Incontrovertibly, no rules have been framed in furtheranceof Section-11A(3) to prescribe the form and manner of notice. However,

Aon 28.5.1966, the Ministry of Works Housing & Urban Development(as it then was) released notification to amend the 1959 Rules in exerciseof powers under Section-56 of the 1957 Act. By way of this notification,Chapter V titled “Modification to the Master Plan and the ZonalDevelopment Plan” was inserted in the 1959 Rules. Rule 16 was insertedwith the headnote “Form of notice under Section 11A(3)” and it readsBas:

“16. The notice referred to in sub-section (3) of section 11A ofthe Act shall be in Form appended to these rules.”

Form appended with the notification clearly specifies that publicCnotice shall be issued under the signature of “Secretary, DelhiDevelopment Authority”. Furthermore, form and manner of notice canalso be determined as per Section 44 which is the general provision inthis behalf. Section 44 specifies the manner of publishing the public noticeand requires that “every public notice given under this Act shall bein writing under the signature of the secretary to the Authority”. ItDreads thus:

“44. Public notice how to be made known. — Every publicnotice given under this Act shall be in writing over the signatureof the secretary to the Authority and shall be widely made knownin the locality to be affected thereby by affixing copies thereof inEconspicuous public places within the said locality, or by publishingthe same by beat of drum or by advertisement in local newspaperor by any two or more of these means, and by any other meansthat the secretary may think fit.”

No challenge has been set up qua any of these statutory provisions.FFurther, to supplement this provision, on 24.9.2012, gazette notificationwas published by the Ministry of Urban Development (as it then was)whereby the Central Government directed that “the power exercisableby it under sub-section 11A of the said Act for the purpose of review/modification of Master Plan for Delhi, 2021 shall also be exercisableby the Vice-Chairman, Delhi Development Authority in so far as itGrelates to issuing public notice for inviting objections andsuggestions”. Furthermore, Rule 6 of the 1959 Rules also requires thepublic notice to be published by the Authority in accordance with Section44. It reads thus:

“6. Mode of Publication of Public Notice. - The AuthorityHshall cause the said notice to be published in the manner prescribed

by section 44 of the Act and may also cause it to be published inthe Official Gazette.”

234. In this backdrop, the notice under sub-Section (3) was issuedby the Authority on 21.12.2019 under the signature of the DeputySecretary with chart disclosing the proposed modifications with locationsof all the plots to be subjected to change in land use and the specificchange in usage. This was, indisputably, at the behest of and for and onbehalf of the Central Government to take the modifications proposed toits logical end. The notice called upon to send all objections/suggestionsto the specified authority within period of 30 days i.e., till 20.1.2020.The stated public notice was in conformity with the prescribed formatfor such notice as in the 1959 Rules (post 1966 amendment); and theDDA was well within its powers to issue such notice for inviting objectionsas per amended rules. The petitioners’ submission that the Authority hadno jurisdiction to issue the notice is ex facie tenuous.

235. The notice further stated that the plan indicating the proposedmodifications would be available for inspection at the Office of DeputyDirector (MP), DDA as well as on the official website of the Authority.We are impelled to re-extract the relevant part of public notice dated21.12.2019 thus:

“The text/Plan indicating the proposed modifications shall beavailable for inspection at the office of Deputy Director (MP),Delhi Development Authority, 6[th] Floor, Vikas Minar, I.P. Estate,New Delhi on all working days during the period referred above.The text/plan indicating the proposed modifications is also availableon DDAs website i.e. www.dda.org.in.”

The availability of proposal for inspection by general public is inline with the mandate of Rule 5 of 1959 Rules. That Rule ensures generalpublic participation and opportunity to raise objections, if any, aftercarefully studying the proposed changes. Relevant extract of Rule 5reads thus:

“5. Public Notice regarding preparation of Master Plan.—(1) As soon as may be after the draft master plan has beenprepared, the Authority shall publish public notice stating that -

(a) the draft Master Plan has been prepared and may beinspected by any person at such time and place may be specifiedin those notice;

464SUPREME COURT REPORTS

(b) suggestions and objections in writing, if any, in respect ofthe draft master plan may be filed by any person with thesecretary of the Authority within 90 days from the date of firstpublication of the notice.”

236. The public notice was followed by receipt of 1292 objectionsBand constitution of the BoEH for considering the said objections. Theappointment of BoEH was in accordance with Rule 8 of the 1959 Rules

which states thus:

“8. Appointment of Board for enquiry and hearing.—(1) TheAuthority shall, for hearing and considering anyrepresentation, objection and suggestion to the draft masterplan, appoint Board consisting of not less than 3 and notmore than 5 members of the Authority.

Provided that such Board shall have powers to co-opt not morethan 2 members from amongst the members of the AdvisoryCouncil.

(2) No business of the Board shall be transacted at any meetingunless at least three members are present from the beginning tothe end of the hearing.”

(emphasis supplied)

237. Intimation was sent to the objectors regarding the date ofhearing before the BoEH. In addition, paper publication was also doneon 5.2.2020, regarding the hearing scheduled on 6/7.2.2020 at thespecified place and time. The public notice reads thus:

“DELHI DEVELOPMENT AUTHORITY

PUBLIC NOTICE

Delhi Development Authority issued public notice vide Gazettenotification S.O. 4587 (E) dated 21.12.2019 and also published inthe newspapers for inviting objections/suggestions from the publicGregarding proposed change of land use of Plot No.1 to 7 (Zone-D) and Plot No.8 (Zone-C).

As per procedure all the objections/suggestions received withinthe stipulated time period of 30 days i.e. up to 19.1.2020, will beplaced before the Board of Enquiry and Hearing (BoEH). The

Board Hearing will be held on 06.02.2020 (Thursday) & 07.02.2020(Friday) from 10.30 A.M. onwards at DDA Office, ConferenceHall, 8-Block, Ground Floor, Vikas Sadan, INA.

Any person who has filed objection/suggestion and wants to presenthis/her oral evidence in person before the Board, may come tothe abovementioned venue on 06.02.2020 & 07.02.2020 to presenthis/her views, as per the proposed scheduled, which shall beavailable on the DDA website i.e. www.dda.org.in (under head‘HOTLINKS’/’PUBLIC NOTICES’) on 05.02.2020 (12 pm).Concerned persons shall also be informed through E-mail/SMSas per details provided in their representations.

In case any person who has filed objection/suggestion but doesnot find his/her name in the schedule or has not received any e-mail/SMS, may present his/her oral submission before the Boardon the said date i.e. 07.02.2020 (Friday) from 1:00 P.M. to 1:30P.M. All persons are requested to carry valid Identity Proof.”

238. As notified to all concerned, the hearing was conducted inaccordance with Rule 9 for considering any suggestion/objection by thegeneral public. Rule 9 reads thus:

“9. Enquiry and hearing.— The secretary shall, after the expiryof the period allowed under these rules for making objections,representations and suggestions fix date or dates for hearingby the Board of any person, or local authority in connectionwith any objection, representation or suggestion made bysuch person or local authority in respect of the draft masterplan and shall serve on the local authority or any personwho may be allowed personal hearing in connection withsuch representation, objection or suggestion to the draftmaster plan, notice intimating the time, date and place ofthe hearing.

Provided that the Board may disallow personal hearing to anyperson, if it is of the opinion that the objection or suggestion madeby such person in inconsequential, trivial or irrelevant.”

(emphasis supplied)

After the hearing, the recommendations of BoEH were submittedto the Authority in accordance with Rule 10 which reads thus:

[2021] 15 S.C.R.

A“10. Report of Enquiry.— The Board shall after the conclusionof its enquiry, submit to the Authority report of itsrecommendations.”

The BoEH took note of all the suggestions/objections of theconcerned representationist and after interacting with those in attendanceB(42 objectors), made its recommendations as follows:“i. Regarding proposal of change of land use of Plot No.1, it isrecommended that the revised proposal for change of land usemust be taken afresh under Section 11-A of DD Act, 1957.

ii. Among the respondents, majority of whom are Planners/CArchitects, there appears to be feeling that authentictechnical information on this iconic project of Centra Vistais not available in public domain, which is leading toavoidable misgivings. Board recommends that allconcerned departments need to address this concern.

iii. Keeping in view the strong reservation of the respondents, it isDsuggested that impact assessment studies on traffic, environmentand heritage may be commissioned at the earliest.

iv. From the responses received during public hearing, it appearsthat the present project has not been referred to the Central VistaCommittee, although in the past any such project has always beenEreferred to the Central Vista Committee. Authority may like totake view on this issue and make suitable recommendations toGovernment of India.”

(emphasis supplied)

Needless to underscore that the role of BoEH is limited toFsubmitting its report to the Authority of its recommendations. There isnothing in the Act and Rules mandating the BoEH to record reasons orfor accepting and rejecting the objections received by it. As per theprescribed procedure, the decision in that regard is that of the Authority.Notably, there is no statutory requirement obligating Authority/CentralGovernment to give personal hearing to the objectors before taking finalGdecision. The competent authority, however, is obliged to take into accountthe objections and the recommendations of BoEH before taking finaldecision.

239. Accordingly, the recommendations of BoEH were consideredby committee of the Authority comprising of Lt. Governor, expertH

members from various agencies, elected representatives of theGovernment as well as of the opposition, along with Special Inviteesfrom the MoHUA. This meeting held on 10.2.2020, was organized inaccordance with Rule 11 with the purpose of finalizing the plan for theapproval of the Central Government. Rule 11 reads thus:

“11. Preparation of final draft Master Plan and its submissionto Central Government.— The Authority shall, after consideringthe report of the Board and any other matter it thinks fit, finallyprepare the master plan and submit it to the Central Governmentfor its approval.”

The Authority in its meeting held on 10.2.2020, after duedeliberations, accorded approval to the proposal regarding change inland use of plot nos. 2 to 8 only, on following terms. The minutes of themeeting read thus:

“Item No.18/2020

Regarding proposed change of land use of Plot Nos.1,2,3,4,5,6,7and 8.F.20(12)2019/MP

a) The proposal was presented by Joint Secretary (L&E),MoHUA, In-charge of Central Vista Development/RedevelopmentProject, who was present as Special Invitee. She apprised thedetails of the Project to the members of the Authority.

b) JS, MoHUA informed that during the planning of Capital City-New Delhi, the architects and urban designers – Edward Lutyensand Herbert Baker had prepared an urban design plan for entireNew Delhi in such way that all the important Government officeswould come along the Central Vista (Rajpath). However, by theyear 1931, when Delhi officially became capital of India, only five(05) buildings were constructed namely, Rashtrapati Bhawan,Sansad Bhawan, North and South Blocks and first building of theNational Archives. She assured that the heritage buildingsin the Central Vista shall be conserved.

c) She further informed that for this Project, the followingmeasures are being taken up:

i. No trees shall be cut during the implementation of theproject. However, some trees may be transplanted forwhich techniques are available.

ii. Total tree cover shall increase with new plantation.

iii. 100% C&D waste shall be re-cycled and utilized withinthe project.

iv. All the green building features will be followed bymaking most efficient use of resources and adoptingmodern day construction technologies.

v. Rain Water Harvesting (RWH) structures and waterconservation measures will be undertaken.

vi. Proposed development has been integrated with two metrostations in the Vista namely, Udyog Bhawan and CentralSecretariat for commuting public/government employeesthrough an underground shuttle.

vii. In the proposed scheme, the Central Government Ministries/Offices will be moved to the Central Vista thereby cutting downlarge scale travel across 47 Central Government Ministries/Offices’ Buildings spread in different parts of Delhi. Theproposal, once implemented shall result in easing traffic flowin Lutyens’ Bunglow Zone (LBZ) and in the city. This willresult in reduction of vehicular trips thereby reducing carbonfootprint, congestion, pollution and accidents.

d) The recommendations of Board of Enquiry & Hearing(BoE&H) and the issues raised by the public in the meetingheld on 06.02.2020 and 07.02.2020, were deliberated in theAuthority meeting. Member Engineering, DDA-cum-Chairman or BoE&H explained that as has been clarifiedby JS, MoHUA, the proposed project addresses all issuesraised by the public in comprehensive manner. Heinformed that all objections and suggestions given by thepublic were duly considered by the BoE&H. Variousobjections and suggestions which were pertaining to L&DOand Planning Department of DDA were replied to by therepresentatives of these respective agencies and the detailsare available on the record. Based on the detaileddeliberations, BoE&H has recommended for issuing publicnotice for plot no.1 and consideration of allowing change ofland use with respect to plot no.2 to 8.

e) The following facts were further elaborated by JS, MoHUA:

i. Under the proposed Development / Redevelopment,total public space in the Central Vista is increasing byalmost 100 acres. This constitutes the following:

National Bio-diversity Arboretum in 48.6 acres landon the western end of the President’s Estates isproposed to house 1,236 endangered species in 11different phytological zones. This facility will be opento the researchers as well as to the public.

North and South Blocks which cover nearly 27 acresis proposed to be converted into National Museumsshowcasing India prior to and after 1857. Nearly 25acres of land on the Western Bank of River Yamunais proposed to be developed as New India Gardenwith an iconic structure to commemorate 75 years ofIndia’s independence.

ii. The project also proposes to develop/re-develop the CentralVista with proper public utilities, green spaces, water bodies,landscaping etc. whose total area will be more than the existingarea as 5.6 acres from the existing buildings will be added tothe greenspace. Further, plot no.8 located at Timarpur inPlanning Zone-Chaving an area of 3.9 acres is also being addedto green spaces of Delhi.

iii. The area of over 90 acres currently under Hutments will beproperly planned and developed into organized urban spaces.

iv. All necessary approvals for buildings and the facilities willbe taken from the competent authorities as and when required.

f) Vice Chairman, DDA apprised that notification number SO3348 (E) has been issued by the Government of India on 17/10/2017, whereby as per Master Plan for Delhi (MPD) – 2021,‘Central Government Offices’ are permitted use premise in ‘Publicand Semi Public facilities’ (PSP) land use zones. Therefore,Authority is competent to allow Plot No.3,4,5, & 6 which arecurrently under PSP land use for housing ‘Central Government

AOffices’ with 1.88 acres each in the plot no.3, 4 and 6 earmarkedas Recreational (District Park).

g) Additional Secretary (D), MoHUA and Member, DelhiDevelopment Authority, explained that the Authority is competentto make the proposed modification in the Master Plan for the landBuses as these will not alter the character of the Master Plan sincethey are in line with the Lutyen & Bakers’ plan of housingGovernment buildings in the Central Vista. Further, the proposaldoes not impact the extent of the land uses and the standards ofpopulation density as has been envisaged in the Master Plan forCDelhi, (MPD) – 2021. Hence, Section 11(A) (1) or DelhiDevelopment Act, 1957, empowers the Authority to make proposedchanges under consideration. Vice-Chairman DDA furthercorroborated this and stated that only after being satisfied that theAuthority is competent under 11(A)(1) of the Act, that the proposalhas been considered and submitted for Authority’s approval.

DDecision: After detailed deliberations, the proposal isapproved as follows:

i. public notice shall be issued for change of land usefor plot number 01 from ‘Transportation’ (Bus Terminal/Eparking) and ‘Recreational’ to ‘Residential’ and to beprocessed under Section 11-A of DD Act 1957.

ii. With respect to plot Nos 02 to 07; the proposal ofland use change of L&DO is approved. The proposal besubmitted to MoHUA for approval/notification.

iii. Change of Land Use for plot No 8 is approved andthe proposal be forwarded to MoHUA for approval/notification.”

(emphasis supplied)

As the proposal had originated from the land-owning agency(Central Government), the minutes were forwarded to the CentralGovernment for its further consideration. Upon receipt of the same, theCentral Government processed the proposal and after considering allaspects of the matter proceeded to notify the modification of change inHland use vide notification dated 20.3.2020. The same reads thus:

“MINISTRY OF HOUSING AND URBAN AFFAIRS

(Delhi Division)

NOTIFICATION

New Delhi, the 20th March, 2020

S.O. 1192(E).— Whereas, certain modifications which the CentralGovernment proposed to make in the Master Plan for Delhi-2021/Zonal Development Plan of Zone-D (for Plot No.02 to 07) andZone-C (for Plot No.08) regarding the area mentioned here underwere published in the Gazette of India, Extraordinary, as PublicNotice vide No. S.O. 4587(E) dated 21.12.2019 by the DelhiDevelopment Authority in accordance with the provisions ofSection 44 of the Delhi Development Act, 1957 (61 of 1957) invitingobjections/suggestions as required by sub-section (3) of Section11-A of the said Act, within thirty days from the date of the saidnotice;

2. Whereas, 1,292 objections/suggestions received with regard tothe proposed modifications have been considered by the Board ofEnquiry and Hearing, set up by the Delhi Development Authorityand the proposed modifications were recommended in the meetingof Delhi Development Authority held on 10.02.2020.

3. Whereas, the Central Government have after carefullyconsidering all aspects of the matter, have decided to modifythe Master Plan for Delhi-2021 / Zonal Development Planof Zone-D & Zone-C;

4. Now, therefore, in exercise of the powers conferred underSub-section (2) of Section 11-A of the said Act, the CentralGovernment hereby makes the following modifications in thesaid Master Plan for Delhi-2021 / Zonal Development Plan ofZone [sic]-D & Zone [sic]-C, with effect from the date ofPublication of this Notification in the Gazette of India.

Modifications:

The land use of the following area of land falling in Zone-D andZone-C is changed as per description listed below:

472SUPREME COURT REPORTS[2021] 15 S.C.R.ABCDEFGH

[F.No.K-13011/6/2019-DD-I]

VIRENDRA KUMAR KUSHWAHA, Under Secy.”

(emphasis supplied)

On bare perusal of this notification, it is evinced that the finaldecision is taken by the Central Government and it is so notified in exerciseof its powers under sub-Section (2) of Section 11A of the 1957 Act.Being case of minor modification and as we have held, it does not alterthe character of the plan in question including it does not relate to theextent of the land-uses or the standards of population density. TheAuthority itself could have given effect to its approval in terms of Section11A(1) of the 1957 Act, as it was competent to do so in that regard andreport to the Central Government within thirty days of the date on whichsuch notification came into force as provided by Section 11A(5).However, since the proposal had originated from the land-owning agency(Central Government) as mentioned in the public notice dated 21.12.2019and was of national importance, the Authority opted to forward theproposal along with its approval to the Central Government for takingappropriate decision. This step taken by the Authority is ascribable toSection 11A(6) of the 1957 Act, which predicates that if any questionarises whether the modifications proposed to be made by the Authorityare likely to effect important alterations in the character of the plan orwhether they relate to the extent of land-uses or the standards ofpopulation density, it shall be referred to the Central Government whosedecision thereon shall be final. The Central Government then took theproposal forward and acted upon it by issue of notification which it did inexercise of powers under Section 11A(2) of the 1957 Act. For that,there was no need for the Central Government to issue public noticeitself or to constitute its own BoEH to grant hearing to the objectors. Asthat process had already been completed by the Authority and the CentralGovernment had acted upon the proposal received by it from the Authority,in exercise of powers vested in it ascribable to Section 11A(6) and notifiedits decision thereon under Section 11A(2) in due course. Under thelegislative scheme predicated in Section 11A for modification of plans,the Central Government has the complete authority including todisapprove the decision of the Authority taken under sub-Section (1)and to issue directions under sub-Section (6). The Central Governmenthas ample power to take decision on all aspects covered by the subjectof modifications of plans in terms of Section 11A. Further, its decision

Aunder sub-Section (6) is final. Pertinently, Section 11A is an enablingprovision giving limited power to the Authority and complete power tothe Central Government in respect of modifications of the plans. Theprocedure adopted in the present case, considering the totality of thescope of Section 11A of the Act would be legitimate exercise of powerby the Central Government including under sub-Section (2) of SectionB11A of the 1957 Act. By no standards, it can be labelled as having beentaken in violation thereof or failure of the authorities to follow theprescribed procedure under Section 11A of the Act. There is substantialcompliance of the prescribed procedure and the final decision is theconsequence or outcome of involvement of all the planning authoritiesCreferred to under the 1957 Act. These steps taken by the State authoritiesand the Central Government in collaboration and after due considerationof all the objections cannot be undermined much less labelled as anillegality. It is not case of exercise of power by an Authority notcompetent to do so. At best, it can be said that because of the nature ofthe project of national importance, guarded procedure had been adoptedDby the Authorities concerned albeit within the framework of Section11A of the Act. Suffice it to observe that the final decision of the CentralGovernment as manifested in the notification dated 20.3.2020 clinchinglypoints towards substantial compliance of the procedure prescribed foreffecting such modifications under the 1957 Act and the 1959 RulesEframed thereunder.

240. The land-owning agency had simultaneously referred theproposal to CVC, who in turn, had already accorded its approval theretoon 9.3.2020 in its 4[th] meeting. It noted thus:

“After detailed deliberation the Committee decided to accordFapproval in principle as the process of change of land use hadbeen taken up by the competent authorities. Accordingly, the finalapproval of change of land use may be communicated to theCommittee.”

For clarity of record, we note that CVC was engaged on anotheroccasion as well when the proposal for obtaining “no objection” to theGParliament project was sent for its consideration on 11.04.2020. Thesaid “no objection” was granted by CVC on 23.4.2020 in its 5[th] meeting.We shall be dealing with the challenge even to this “no objection” ofCVC little later.

241. Before proceeding further, we deem it pertinent to note thatHthe petitioners’ argument that the Parliament was kept out of the purview

of consultative exercise is unfounded on facts. In fact, the proposalregarding the new Parliament Building was placed before the GPC atthe inception stage. The GPC, of which the Speaker of the Lok Sabha isthe Chairman, is constituted by Members of Parliament beingrepresentatives of major national political parties having presence in theParliament. The committee had met on 19.3.2020 to witness thepresentation given by the case proponent through the consultant whereinthe members interacted and gave diverse suggestions to be incorporatedin the proposal. Detailed presentations explaining the concept as well asthe need for the Project were made for all the members. The membersmade suggestions/comments relating to design, central hall, interiors,access to public, auditorium, lounge rooms, rainwater harvesting etc.The members were also apprised of various formal developments relatingto the Project. Thereafter, budgetary estimate and concept plan werealso placed before the Lok Sabha Secretariat and approved by it, asalready noted above. We need not dilate on this aspect any further.

242. Reverting to the issue under consideration, the procedureprescribed under Chapter III of the 1959 Rules is applicable to preparationof new master plan/zonal plan. The expression “draft master plan”, usedthroughout in this chapter, makes it amply clear and leaves nothing to beimagined. The distinction between the two is clear. Strictly speaking,Chapter III does not apply to procedure for modification of plans underSection 11A. In the absence of Chapter III, only Section 11A woulddetermine the procedure for modification of master plan and the procedureunder Section 11A is less cumbersome and merely envisages publicationof notice and inviting objections for being considered before taking afinal decision. It does not prescribe personal hearing to the objectors assuch, much less by the Authority or the Central Government, as the casemay be. Whereas, even Rule 9 provisions for hearing before BoEHonly. Despite this clear position of law, the respondents followed theextensive procedure analogous to under Chapter III of the 1959 Ruleseven for the subject modifications. It was certainly not case ofpreparation of new master plan or draft master plan. The compliancewith building byelaws shall be dealt later.

243. Notably, on 7.4.2015, letter captioned as “DDA’s proposalfor amendment to MPD-2021 and change of land use cases-reg.” wasaddressed by MoHUA to Vice Chairman, DDA requiring the Authorityto provide separate information on set of parameters while sendingany proposal for amendment to the master plan. The subject proposal

Acontained all the information as per the aforesaid letter and is found tobe in accordance thereof. No procedural infirmity is found on this count.The aforesaid letter is reproduced for ready reference: -

Dated 7[th] April, 2015

The Vice Chairman,

Delhi Development Authority,

Vikas Sadan, INA,

New Delhi

Subject: DDA’s proposal for amendment to MPD-2021 and changeof land use cases-reg.

Sir,

DDA has been sending proposals for amendment to MPD-2021 and change of land use cases for final notification underSection 11-A of DD Act 1957. It is being observed that DDA hasbeen sending proposals without self contained note/proposals andcertain necessary documents such as recommendations of Boardof Enquiry & Hearing, Site Map, details of enquiry, details of anyongoing Court Cases etc. are also found missing. As result, ittakes considerable time for examining these cases and extractingthe relevant details from the documents annexed to such proposals.

2. Therefore, in order to minimize the time taken for disposal ofsuch cases, DDA is directed to send the proposals containing aself contained note/proposal alongwith the justification which shouldbe complete in all respects. While sending the proposals followinginformation under separate headings should definitely be provided:

(i)Whether the land is government or private and who isthe land owning agency?

(ii)On whose request the change of land use case ormodification to MPD-2021 has been initiated?

(iii)Whether responsible officer from DDA (give details)was deputed for inspection of site and copy of inspectionreport be provided.

(iv)What is the public purpose proposed to be served bymodification of MPD and/or change of land use?

(v)What will be impact of proposal on the ZDP/MPD andwhether the changes are in consonance with theapproved plans and policies?

(vi)What will be proposal’s impact/implications on generalApublic eg. Law & Order etc.?

(vii)Whether any court cases are ongoing on the landmentioned in proposal? Full details be attached.

3. It is, therefore, requested that the proposals should contain abovestated information otherwise the proposals would not beBconsidered.

4. There instruction will came into force with immediate effect.

Yours faithfully,

(Sunil Kumar)

Under Secretary (DD-I)”

It is not the case of the petitioners that the proposal submitted bythe project proponent was not in accord with the stated requirements.

244. The procedure followed by the respondents in the presentcase for change in land use can be delineated in the following chartfurnished by the respondents:

A245. According to the petitioners, the entire process followed isreplete with undue haste, particularly in calling for personal/public hearing.However, the facts reveal otherwise. Taking legitimate steps/actionsswiftly and as per the timelines because of the nature of the proposalcannot be termed as having been done in haste. Concededly, no allegationof mala fide in fact has been set out nor the facts of this case commendBus to hold it as mala fide in law. Further contrary to the petitioner’sargument that the window of objections/suggestions was closed beforethe period of 30 days specified in the notice, upon enquiry of the originalrecords supplied by the respondents, we found that despite 20.1.2020being the last date for receiving objections/suggestions, the same wereCreceived even beyond the period of 30 days. The last recorded objectionwas received on 21.1.2020 and entered into diary on 22.1.2020. Eachone of these objections/suggestions were duly proceeded as if filed intime.246. We may now examine the legal position as regards theDrequirement of personal/public hearing. As noticed earlier, sub-Section(3) merely requires the Authority “to consider” the objections andsuggestions received from the public. The legislature has not thought itfit to specify any particular manner of consideration in the governingprovision of modification. No strict proposition can be laid down in anenquiry of this nature when the legislature has consciously chosen not toEprovision for personal/public hearing during consideration of the proposal.But only in the form of written suggestions/objections. The petitionershave stated that personal/public hearing is usually given in such cases.

247. We wonder whether such requirement can be read in thisprovision by way of necessary implication. The test of necessaryFimplication usually comes into the picture when there is danger thatfailure to so infer would necessarily render the provision otiose. It is nota tool used to substitute an opinion out of convenience or out of anuncontrolled exercise of the power of the judicial pen, rather, it is used topreserve an enactment from reaching an unconscionable conclusion. InGSuperintendent and Remembrancer of Legal Affairs, West Bengalv. Corporation of Calcutta[323], nine-Judge bench of this Courtexamined the usage of the interpretative tool of necessary implicationand observed thus:

323 AIR 1967 SC 997

“(51)… In Sri Venkata Seetaramanjaneya Rice and Oil Mills andothers v. State of Andhra Pradesh, [1964] 7 SCR 456 this Courtheld that an inference of necessary implication binding the Statemay be drawn if “the conclusion that the State is not bound by thespecific provision of given statute would hamper the working ofthe statute, or would lead to the anomalous position that the statutemay lose its efficacy”. …”

It further observed:

“(57) … If the application of the Act leads to some absurdity, thatmay be ground for holding that the State is excluded from itsoperation by necessary implication. …”

248. To read strict and absolute requirement of personal/publichearing in particular form and manner in the present case would be torewrite the provisions altogether. That is uncalled for. The power ofjudicial review cannot be converted into power to legislate and the lawas regards this proposition is settled. No doubt, had it been case ofpreparation of new master plan, Chapter III of the 1959 Rules explicitlydenotes the need for hearing the objections and thus mandatory. That isnot the requirement for modification of the plan in exercise of powersunder Section 11A.

249. The true import of the phrase “shall consider” used in sub-Section (3) of Section 11A, would be to decide the manner of publicconsultation in accordance with the quantum and quality of changesbeing proposed strictly on case-to-case basis. The legislature hasentrusted this duty on the executing body so as to enable it to mould themanner of consideration as per the prevailing ground realities of project.The word “consider” is phrase mandating the competent authority tolook into the objections received post public notice, and then takeappropriate decision. The designated authority may determine the mannerof consideration in accordance with the nature of changes being proposed.Convention is the true guide in such matters. And in the present case,admittedly personal/public hearing was provided in tune with theconvention. But the Court need not elevate the convention to statutoryrequirement of affording personal hearing to every objection.

250. In Cynamide India[324], this Court has had an occasion toexamine the purport of expression “such enquiry by the government as

Ait thinks fit” in reference to the Drug (Prices Control) Order. It went onto observe that such provision is only an enabling provision to facilitatethe subordinate legislating body to obtain relevant information from anysource and it is not intended to vest any right in anybody other than thesubordinate legislating body. That process is an enquiry leading to alegislative activity, and no implications of natural justice can be read intoBit unless it is statutory condition to afford personal hearing.

251. priori, we are of the view that no uniform formula can beevolved by the Court on its own in matters like these where larger aspectsof town planning and infrastructure are involved, and concerns ofgeography, economy, social conditions, time-frame etc. pose variableCchallenges across the national spectrum. It is precisely in the same spiritthat even in the process of preparation of new master plan, the provisoto Rule 9 of the 1959 Rules empowers the BoEH to deny personal hearingto any person if it is considered to be irrelevant or trivial in light of theobjection raised by that person. It reads thus:D“9. Enquiry and hearing -

Provided that the Board may disallow personal hearing to anyperson, if it is of the opinion that the objection or suggestion madeEby such person in inconsequential, trivial or irrelevant.”

252. An argument has been advanced by the petitioners that Rules8 and 9 of Chapter III of the 1959 Rules, which provide for appointmentof BoEH and personal hearing are part of the mandatory procedure ofmodification. We have already made it clear that Chapter III of the 1959FRules applies to preparation of “new master plan” and not to modificationsunder Section 11A.

253. The stated Rules have been framed in furtherance of Section56(1) and are divided into five chapters. Chapter III relates to the“Procedure for Preparation of Master Plan” and Chapter V, which wasGinserted vide 1966 amendment of the 1959 Rules, relates to “Modificationto the Master Plan and the Zonal Development Plan”. The subject ofmodifications, therefore, is dealt under separate chapter i.e., ChapterV. In the Act also, preparation of master plan is dealt under Chapter IIIand modifications are dealt under Chapter IIIA which was added laterHby Act 56 of 1963 by way of an amendment.

254. Thus, the legislature has demarcated the subjects ofpreparation and modification in two separate chapters, both in the Actas well as the Rules. And there is clear distinction between the two interms of procedure. More importantly, the provisions regardingmodification were added later by way of amendments in 1963 (in theAct) and 1966 (in the Rules) and we cannot lose sight of the fact thatthe legislature was well aware of the pre-existing requirements ofpersonal/public hearing in case of preparation of new plan. Despite suchknowledge, it chose not to extend the same standard of public consultationin the process of modification and confined itself to the expression “shallconsider all objections and suggestions” as used in Section 11A. Noother manner of consultation is prescribed in the 1959 Rules.255. It has been stated by the petitioners that even the act ofpreparation of new master plan is done by way of modification andtherefore, the requirement of personal/public hearing would be implicitat the time of modification as well. As discussed, it is beyond doubt thatthe Act as well as the Rules treat these two subjects in separatecompartments and it is also beyond doubt that the objective of suchseparate treatment is to ensure that the process of modification is notsubjected to the same rigours as the process of preparing new plan.Moreover, the language deployed in the notification S.O. 141 dated7.2.2007 for the new Master Plan and that deployed in S.O. 1192(E)dated 20.3.2020 (the impugned notification for modification) is also ofguiding value to answer the argument under consideration. Whilepreparing the new master plan, the expression used is “extensivemodifications”, whereas while notifying the present changes (which wehave held as minor in nature and not substantive or radical changes tothe master plan or for that matter to the zonal plan), the expression usedis simpliciter “modification”. The usage of the word “extensive” signifiesthat despite being modification, the preparation of new master planproposes extensive changes as it is meant to replace the previous planonce and for all. Accordingly, the scrutiny is higher and is placed in aseparate chapter. The same cannot be said about modification underSection 11A unless it is shown to be substantial or radical which is notthe case here.

256. case of replacement of the original plan with new oneand that of modification in an existing plan cannot be placed on the samefooting. This carefully crafted scheme cannot be turned on its head byaccepting the submission under consideration.

A257. The counsel for the petitioner, owing to inadvertence or lackof research, had built up his case by placing reliance on the deletedRules 12 and 13 of the unamended 1959 Rules to support their argumentas regards the requirement of personal/public hearing in case ofmodification. We are pained to note that the said rules were deleted by1966 amendment dated 28.5.1966 and no reliance whatsoever can beBplaced on the said rules in the present subject matter. Rather, the deletionis indicative of legislative intent of doing away with the dispensationprovided thereunder for the purposes of modification. The relevant extractof the said notification reads thus:

“2. In the Delhi Development (Master Plan and Zonal DevelopmentCPlan) Rules, 1959,—

(a) rules 12 and 13 shall be omitted;

258. The petitioners have placed reliance upon decision of theHigh Court of Delhi on Section-11A in Friends of Rajouri GardenEnvironment & Anr. v. South Delhi Municipal Corporation[325]. Thejudgment merely explains the intent behind the provision and lays out therequirement of inviting objections and suggestions from “any person”,Eparticularly locally affected persons. In this case, the said objections andsuggestions have been invited. Furthermore, that case involvedconstruction activity of nature different from the use zone of the areawithout effecting the change in land use prior thereto. The reliance,therefore, is of no significance in this case. Similarly, the decisions reliedFupon by the petitioners in support of the argument under considerationincluding Syed Hasan Rasul Numa[326 ]does not take the matter anyfurther. Indeed, decision in Syed Hasan Rasul Numa[327 ]pertains to the1957 Act. It was, however, case of objection(s) taken by the concernedperson having gone unnoticed by the BoEH and also the Authority. TheCourt found as of fact that the objection taken by the appellants was notGlisted in the agenda of the meeting convened for consideration and anyjustification given by the Authority cannot validate the final decision whichotherwise suffered from the vice of principles of natural justice qua the

325 2020 SCCOnline Del 458 (paras 30 and 33)

326 (supra at 220)327 (supra at 220)H

appellants. Further, in that case the appellants were directly affected bythe proposed modification.

259. Arguendo, personal/public hearing was strictly mandated,the relevant query here would be to see whether sufficient opportunitywas given, and if not, whether any case of actual prejudice has beenmade out by the petitioners. It is seen that on 3.2.2020, personalcommunication was sent to all the objectors. Out of 1292 objectors,1171 successfully received the emails, 62 emails bounced back due totechnical errors and 59 objectors had not provided their email addresses.Additionally, 92 objectors were informed about the scheduled hearingvia SMS. Across the span of two days of hearing, 42 objectors wereheard including some of the petitioners before this Court. The minutesof the meeting of the Board dated 7.2.2020 succinctly noted the stand ofthe applicants/objectors in 13 points. Even before us, identical pointswere repeated by most of the objectors in stereotype manner, and ithas been conceded by the petitioners herein that their grievances werealso part of these 13 points. No other grievance was pointed out to uswhich was not taken on record and adverted to during the personal/public hearing. Thus, the absence of petitioners or similarly placed personsduring public hearing for whatever reasons mentioned, would be of noconsequence. Therefore, the contention that short notice led to denial offairness or opportunity cannot be accepted. It is no doubt settledproposition that wherever public consultation is prescribed, it must bedone in an effective manner, both quantitatively and qualitatively, so asto make it meaningful participatory process. And in order to make itmeaningful, the requirement of reasonable time is of fundamentalimportance. But what is reasonable time in given factual scenariocannot be stated as general proposition and would depend on thecircumstances of each case. In the present case, despite there being noexpress requirement of personal/public hearing, the same was providedfor after keeping the window of sending objections/suggestions open for30 days and sending personal intimation regarding hearing 3 days priorto the scheduled date. It is not the case of the petitioners that they hadnot received such communication.

260. Thus, no case of prejudice whatsoever has been made outby the petitioners in the process of public consultation. It is well settledthat principles of natural justice are not an unruly horse. It would be anempty formality to permit large number of persons to raise same 13

Aobjections multiple times. An attempt was made to impress upon us thatdue to pandemic situation most of the objectors were unable to remainpresent on the specified day and time for hearing. As aforesaid, none ofthe petitioners have invited our attention to any objection taken by themin writing which was different than the 13 points/questions noted by theAuthority which were common in all the objections received by it. Hence,Beven this plea raised by the petitioners is of no avail. In other words,though the petitioners have vehemently argued about denial of naturaljustice, the same has not been demonstrated sufficiently to meet thebasic standards of judicial conscience so as to warrant our interference.

261. Indeed, principles of natural justice infuse life and blood intoClegal processes both judicial and administrative. However, the occasionof their application is not uniform and it cannot be stated as propositionof blanket application that all administrative exercises are subject tounalterable and absolute standards of natural justice. In Kailash ChandraAhuja[328], this Court in para 36, observed thus: -D“36. … Even in those cases where procedural requirements havenot been complied with, the action has not been held ipso factoillegal, unlawful or void unless it is shown that non-observancehad prejudicially affected the applicant.”In Canara Bank[329], this Court highlighted the fundamental premiseEof natural justice and observed thus: -

“9. The expressions “natural justice” and “legal justice” do notpresent water-tight classification. It is the substance of justicewhich is to be secured by both, and whenever legal justice fails toachieve this solemn purpose, natural justice is called in aid of legalFjustice. Natural justice relieves legal justice from unnecessarytechnicality, grammatical pedantry or logical prevarication. Itsupplies the omissions of formulated law. As Lord Buckmastersaid, no form or procedure should ever be permitted to excludethe presentation of litigants’ defence.”

GReference could also be had to State Bank of Patiala & Ors. v.S.K. Sharma[330 ]wherein this Court had noted thus:

328 (supra at 148)329 (supra at 147)330 (1996) 3 SCC 364

“32. ... Justice means justice between both the parties. Theinterests of justice equally demand that the guilty should be punishedand that technicalities and irregularities which do not occasionfailure of justice are not allowed to defeat the ends of justice.Principles of natural justice are but the means to achieve the endsof justice. They cannot be perverted to achieve the very oppositeend. That would be counter-productive exercise.”

262. In Karnataka State Road Transport Corporation[331], thisCourt observed thus:

“24. ....The question as to what extent, principles of natural justiceare required to be complied with would depend upon the factsituation obtaining in each case. The principles of natural justicecannot be applied in vacuum. They cannot be put in any straitjacketformula. The principles of natural justice are furthermorenot required to be complied with when it will lead to anempty formality....”

(emphasis supplied)

263. In Secretary, Andhra Pradesh Social Welfare ResidentialEducational Institutions v. Pindiga Sridhar & Ors.[332], the Courtreiterated the settled position and observed thus:

“7. ...By now, it is well settled principle of law that the principlesof natural justice cannot be applied in straitjacket formula. Theirapplication depends upon the facts and circumstances of eachcase. To sustain the complaint of the violation of principles ofnatural justice one must establish that he was prejudiced for non-observance of the principles of natural justice ...”

264. In Jagjit Singh[333], this Court had observed that:

“44. ... However, the principles of natural justice cannot be placedin straitjacket. These are flexible rules. Their applicability isdetermined on the facts of each case.”

265. Further, in Chairman, Board of Mining Examination[334],theCourt was more categorical in its approach and observed thus:

331 (supra at 150)332 (2007) 13 SCC 352333 (supra at 153)334 (supra at 154)

A“13. … Natural justice is no unruly horse, no lurking landmine, nora judicial cure-all. If fairness is shown by the decision-maker tothe man proceeded against, the form, features and thefundamentals of such essential processual propriety beingconditioned by the facts and circumstances of each situation, nobreach of natural justice can be complained of. UnnaturalBexpansion of natural justice, without reference to the administrativerealities and other factors of given case, can be exasperating.We can neither be finical nor fanatical but should be flexible yetfirm in this jurisdiction.…”In short, the petitioners have not been able to demonstrate anyCcase of denial of natural justice. For, the prescribed procedure, both bystatute and convention, seems to have substantially been followed. Infact, in circumstances when challenge is raised to project of immensenational importance which is not limited to any particular city or state orintended to give benefit to any private individual, impediments cannot beDinduced by reading in requirements which are not mandated by law. Theprinciple of “Rule of Law” requires rule in accordance with the law as itis, and not in accordance with an individual’s subjective understandingof law. Substantial justice is the core of any such inquiry and it is in thisdirection that processes are to be understood and adjudicated upon. TheCourt needs to be conscious of all aspects in non-adversarial publicEinterest litigation where public interest is the sole premise of enquiry.

QUASI-LEGISLATIVE FUNCTION

266. Learned Solicitor General has also commended us that thenature of power exercised in the present case falls in the realm ofFlegislative or quasi-legislative exercise and not an administrative exerciseof power per se and therefore, the standards of natural justice and judicialreview would be restricted. The submission deserves consideration.Reliance has been placed upon Cynamide India[335], wherein pricefixation was considered as legislative act, Tulsipur Sugar[336], whereinnotification extending limits of town area under Section 3 of U.P. TownGAreas Act, 1914 was considered as legislative exercise, SundarjasKanyalal Bhatija[337], wherein the merging of municipal areas wasconsidered as legislative exercise, Aircraft Employees’ Cooperative

335 (supra at 17)336 (supra at 22)H337 (supra at 23)

Society[338], wherein preparation of comprehensive development plan,comprehensive zoning of land use, demarcating areas for new housingetc. were considered as legislative exercise and Pune MunicipalCorporation[339] wherein the power of the State Government of makingor amending Development Control Rules was held to be part ofdelegated legislation, thereby rejecting any requirement of natural justiceover and above what is provided under the statute.

267. We have carefully traversed through the cases relied uponby the respondents. In Cynamide India[340], the Court while holding pricecontrol fixation as legislative measure, observed thus:

“7. …... It is true that, with the proliferation of delegated legislation,there is tendency for the line between legislation andadministration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and,conversely, legislative activity tends to fade into and present anappearance of an administrative or quasi-judicial activity. Anyattempt to draw distinct line between legislative andadministrative functions, it has been said, is “difficult intheory and impossible in practice”. Though difficult, it isnecessary that the line must sometimes be drawn as differentlegal rights and consequences may ensue. The distinction betweenthe two has usually been expressed as “one between the generaland the particular”. …..”

(emphasis supplied)

The Court went on to define legislative and administrative act

“… “A legislative act is the creation and promulgation of generalrule of conduct without reference to particular cases; anadministrative act is the making and issue of specific directionor the application of general rule to particular case inaccordance with the requirements of policy”. “Legislation isthe process of formulating general rule of conduct withoutreference to particular cases and usually operating in future;administration is the process of performing particular acts,

338 (supra at 24)

339 (supra at 20)

340 (supra at 17)

488SUPREME COURT REPORTS

Aof issuing particular orders or of making decisions whichapply general rules to particular cases.” It has also been said:“Rule-making is normally directed toward the formulation ofrequirements having general application to all members of abroadly identifiable class” while, “an adjudication, on the otherhand, applies to specific individuals or situations”. …”

(emphasis supplied)

The Court further observed the uncertainty of such distinctionand observed:C

“...But, this is only bread distinction, not necessarilyalways true. Administration and administrative adjudication mayalso be of general application and there may be legislation ofparticular application only. That is not ruled out. …”

(emphasis supplied)

268. In Lachmi Narain and Ors. v. Union of India &Ors.[341],when called upon to adjudge whether certain exercise of powerwas that of delegated legislation or conditional legislation, this Courtobserved: -

E“49. …In our opinion, no useful purpose will be served to pursuethis line of argument because the distinction propounded betweenthe two categories of legislative powers makes no difference, inprinciple. In either case, the person to whom the power is entrustedcan do nothing beyond the limits which circumscribe the power;he has to act — to use the words of Lord Selbourne — “withinFthe general scope of the affirmative words which give the power”and without violating any “express conditions or restrictions bywhich that power is limited”. There is no magic in name. Whetheryou call it the power of “conditional legislation” as Privy Councilcalled it in Burah case [5 IA 178 : ILR 4 Cal 172] or “ancillaryGlegislation” as the Federal Court termed itin Choitram v. CIT [1947 FCR 116 : AIR 1947 FC 32 : ILR 26Pat 442] or “subsidiary legislation” as Kania, C.J. styled it, orwhether you camouflage it under the veiling name of“administrative or quasi-legislative power” — as Professor

Cushman and other authorities have done it — necessaryfor bringing into operation and effect an enactment, the factremains that it has content, howsoever small andrestricted, of the law-making power itself. …”

(emphasis supplied)

269. It is no doubt true that the classification of legislative oradministrative functions can no more be done like pigeon-holesclassification. It was because of this reason that the phrases “quasi-legislative” and “quasi-administrative” have made inroads in the modernadministrative law. In fact, in practical parlance, even quasi-legislativefunctions are treated as falling under the wider ambit of administrativefunctions. Illustratively, in Ganesh Bank of Kurundwad Ltd. & Ors. v.Union of India & Ors.[342], the two-Judge Bench of this Court delineatedthe ambit of administrative actions and observed thus: -

“51. ”13. One of the points that falls for determination is the scopefor judicial interference in matters of administrative decisions.Administrative action is stated to be referable to the broadarea of governmental activities in which the repositories ofpower may exercise every class of statutory function ofexecutive, quasi-legislative and quasi-judicial nature. …”

(emphasis supplied)

270. However, the same cannot be accepted as generalproposition in all cases. The demarcation of an executive function aslegislative/quasi legislative or administrative has direct bearing on theaspect of public participation in the decision-making process and thus,the classification becomes imminent in certain cases. It is settled lawthat public participation is permissible to the limited extent of what isprovided in the statute in case of legislative exercise of power. Asregards Tulsipur Sugar[343], the relevant provision (Section 3) dealt withfresh declaration of areas or for defining limits of areas. Such functionsundoubtedly have general character. Similarly, in Sundarjas KanyalalBhatija[344], no standards of procedure to be followed during the decision-making process were prescribed, contrary to the present case whereinviting objections/suggestions and consideration thereof is statutoryrequirement.

342 (2006) 10 SCC 645343 (supra at 22)344 (supra at 23)

A271. The reliance on Pune Municipal Corporation[345 ]may notassist us in the present enquiry as in that case, the function performedwas of amending the “rules” and not development plan. Amendmentof rules which would have the effect of creation of new rules wouldmost certainly qualify as legislative function, however, limitedmodification of an existing development plan may not attract similarBobservation. Moreover, the said action was taken under provision whichcalled for “such inquiry as it may consider necessary” by the relevantauthority. This phrase is of very wide import and clearly grants widepowers to the authority as it does not even provide for specified methodof inquiry. On the contrary, in the present case in Section 11A(3) of theC1957 Act, the method of inquiry is expressly specified i.e. “invitingobjections and suggestions from any person” and further the Authorityherein is mandated to consider the objections/suggestions by way of a“shall” provision. The broad requirement of public consultation, no matterhow limited, is explicit here. And as observed already, manner ofconsideration may vary from case to case.D

272. We now discuss the case of Aircraft Employees’Cooperative Society[346 ]which comes closest to the present enquiry. Theprecise challenge therein was regarding excessive delegation of legislativepowers. The Court recognised that it was not case of excessivedelegation as legislative functions like preparation of comprehensiveEdevelopment plan and zoning of land in different use zones could bedelegated by the legislature to the development authorities for variousreasons. Strictly speaking, the Court in that case did not enter upon anexamination of whether the function of town planning was of anadministrative character or legislative. The Court took it to be of

Flegislative character and answered accordingly. The present questionwas not in issue in that case. Therefore, it cannot be stated as directauthority upon the enquiry before us. However, the fact that broadactivities of town planning involved in that case are synonymous withthe activities involved in the present case is of guiding value.G273. In the present case, what is being modified is the master/zonal plan already in existence. True that is not an action that createsnew zones or new parameters as was the case in Aircraft Employees’Cooperative Society[347]. However, the underlying nature of activity being

345 (supra at 20)346 (supra at 24)H347 (supra at 24)

performed here is of town planning and change in land use of one orcouple of plots in given zone. It is modification which will providedirection to all future development of the subject plots. We have notedthat there is distinction between modifying the use of land in givenzone and demarcating fresh boundaries for various zones of land. Thechange of usage of Government land is of general nature. It is certainlynot purely routine administrative work. That means that the functionof change in land use has quasi-legislative hue to it.

POST CHANGE IN LAND USE DECISION

274. The Project had two independent components –expansion/renovation of Parliament and common Central Secretariat with separatetimelines for each of them as per the nuanced policy decision at theappropriate level. The project proponent thus had initiated the processof seeking approval of CVC regarding the former. Accordingly, only thecomponent of expansion/renovation of Parliament is part of this lis.Thus, no other aspect of the Central Secretariat project and the remainingproject arises for our consideration.

275. We may now advert to the challenge against clearances/approvals granted by CVC and DUAC. The primary examination pertainsto the mandate of these bodies, respective stages of consideration andrequirements of application of mind.

CVC CLEARANCESTATUS OF CVC AND PROCEDURE ADOPTED FORGRANT OF “NO OBJECTION”

276. In light of the submissions advanced by the parties, thefollowing questions emerge for our consideration in this part: -

(i)What is the status of CVC?

(ii)Is the Government bound by the opinion of CVC?

(iii)Whether CVC has failed to exercise its mandate whilegranting “No Objection” to the subject proposal?G

(iv)Whether the clearance by CVC stands vitiated due toabsence of reasons and non-application of mind?

277. At the outset, we may deal with the status of the CVC andlegal force of its opinion on the government. The central vista region has

Abeen of immense importance for the Government of India from the timeit took control after independence. To ensure that development in thisarea is regulated and continues to be so, various stakeholders wereinvolved in the process who joined in differing capacities to further thatcause. Amongst others, Specialized Study Group of architects andtown planners to advice the Government came to be constituted onB4.9.1962 vide O.M. No. 6/11/62-WI. The relevant portion thereof readsthus:

“The question of development of the Central Vista and SecretariatComplex has been engaging the attention of this Ministry for sometime. In view of the national importance of the area and the needCfor its planned development, it has been decided to bring the entirearea under strict architectural control. …”

It then specifies the limitations on development and states that nodevelopment is permissible except with its specific approval. The O.M.states thus:D

“… No construction or development in the area extending fromthe Rashtrapati Bhavan to the hexagon around the India Gate willtake place without the specific approval of the Govt. of India inthe Ministry of WH&S. It has also been decided to set up aSpecialised Study Group of architects and town planners, to adviseEGovt. on such aspects of the development of the Central Vistaand the Secretariat Complex as may be referred to it from time totime. …”

278. What emerges from the above discussion is that the CVCwas created by an Office Memorandum (executive fiat) by theFGovernment at that time as an advisory body to advice the Governmenton matters sent for its consideration. It was not created by an Act ofParliament. This distinction is crucial in understanding the character ofthe body. Had it been statutory body, its functioning and mandate wouldhave been governed by the legislation and any deviation therefrom wouldGhave been case of illegality. However, this cannot be the case whenthe body is an outcome of an executive order. Executive orders, in theabsence of statutory backing, are passed by the government forimproving day to day governance. If the government, in its wisdom, feltthe need to constitute body for advising it on certain matters as andwhen they are submitted for its consideration, the Court cannot elevateHits status to platform where it becomes an impediment in the functioning

of the government itself. The constitution of CVC was purely internalmatter of the government and government can choose to incorporateas many steps in the process of decision making as it deems fit. Theresponsibility of the Court would be to check the status of the body andsee whether it has failed to exercise its mandate or has transgressed itsmandate altogether. The creation of CVC was to have the benefit of anadditional scrutiny over the development of the central vista region inthe form of approval. It has no binding authority on Government actionand in case of conflict, the decision of the Government must prevail.There is no ambiguity in this regard. Over the course of time, no matterhow institutionalised CVC has become in the process of decision making,its inherent character remains the same and in no circumstance, can itoverride the very institution that created it. The argument as regards theapplicability of procedural legitimate expectation is dealt with little later.

279. Furthermore, it can be seen that the study group wasconstituted to “advice” the Government and that too on certain aspectsof development of the region as may be referred to it from time to time.The expression “such aspects” categorically signifies that the study groupis not meant to approve or reject an entire proposal of development.Instead, its mandate is limited to advising the Government on certainfeatures of the project as and when it is called upon to express its views.The study group was, as originally constituted was chaired by ChiefArchitect and Town Planner, CPWD. On 17.9.2002, the composition ofthe group was altered and ADG (Arch.), CPWD was designated as theChairman. The group was further reconstituted on 14.10.2019 owing tothe change in nomenclature of designations of certain members of thecommittee. The Office Memorandum notes thus:

“… The nomenclature of designations of the Chairman and someMembers of the Special Advisory Group has undergone change.In this regard, Chairman, ADG (Arch.), CPWD has been renamedas ADG (Works) and Member Secretary, CA (NDR), CPWDhas been renamed as CA (PRD). Besides this, Chairman, IndianInstitute of Architects has also been renamed as President, IndianInstitute of Architects and Chairman, Institute of Town Planners,India has been renamed as President, Institute of Town Planners,India.”

280. On 11.4.2020, Mr. Ashwani Mittal, Executive Engineer,Central Vista Project Division-I, CPWD sent communication to Chief

AArchitect (Planning & Design), CPWD titled “Construction of NewParliament Building Plot No. 118. Approval by CVC – regarding” forconsideration and approval of CVC. The communication categoricallynotes that the Committee was supplied with architectural drawings anddocuments in respect of the project before the date of this communication.It reads thus:B“The architectural drawings and documents in respect ofParliament Building have already been submitted to your goodoffice for accord of local body approval.”

The communication further notes that the selected consultant M/Cs HCP Designs was also asked to place before the Committee hard andsoft copies of presentation, relevant drawings, brief project report and3D views of the proposal. It reads thus:

“This office is asking the consultants M/s HCP Design to providethe hard and soft copy of presentation and the relevant drawingsDincluding brief report of the project and 3-D views of the proposalin this regard by Monday 13.04.2020. Soft copy of the same shallbe shared with you at your office email id [REDACTED],”

The communication further requested the Chief Architect to inviteESenior Architect, CPWD as special invitee for the CVC meetingwherein the subject proposal was to be considered. It notes thus:

“It is kindly requested to invite Shri Vijay Prakash Rao, SeniorArchitect, CPWD, Senior Architect (DR), CPWD, as specialinvitee for the CVC meeting ...”F281. The notice of 5[th] CVC meeting was circulated to all themembers on 16.4.2020 wherein the case proponents were requested topresent their proposals along with all other necessary documents anddrawings. It reads thus:

“Case proponents are requested to present their proposal in theGmeeting by way of PPT/Drawings and all other necessarydocuments and material along with their Architects/Team.”

Owing to the outbreak of COVID-19, the notice alsocommunicated the possibility of an online meeting on the same day andensured that electronic means for online conference facility may be issuedHto attend the meeting. It noted thus:

“Keeping in view the Guidelines for COVID 19 as issued by theGOI from time to time it is possible and desired that as far aspossible the electronic means for online conference facility maybe issued to attend and participate in the meeting.”

282. The minutes of the meeting expressly note that detailedpresentations were made by the consultant. We must note at the veryoutset that allegations of mala fide in reconstitution of the Committeeare devoid of merit. For, the reconstitution was done not to replace anexpert member but only to correct the nomenclature of certaindesignations in light of the changes that must have taken place inrespective organisations. For instance, the office of ADG (Arch.) isnow known as ADG (Works) in CPWD and accordingly, the change ofthis nomenclature in the membership of CVC was warranted to avoidany confusion. This change of nomenclature was prior administrativedecision and the corresponding correction in the CVC membership wasmerely an incidental step to such change. There is no basis to say thatthe said change was done solely for perpetuating some foul play in theworking of CVC, as is urged before us.283. Incontestably, the original decision of change of nomenclaturehas not even been challenged by the petitioners and it would be nothingbut absurd to accept challenge to an incidental step in the absence ofany challenge to the main decision that resulted in the incidental step.Even otherwise, we need not probe into the mental frame of the executiveto understand the thought behind decision, on the basis of surmises andconjectures and especially when the decision is taken by the competentauthority and is untainted. Similar line of argument was adopted tochallenge the absence of some members and representation of somemembers through their delegates. The delegates were none else butauthorised officials of the same department as that of the designatedmembers. Upon further examination, we find that even in CVC meetingdated 18.10.2018 for “Construction of Reception Building for RashtrapatiBhawan near Gate No. 37, President Estate, New Delhi” and dated12.3.2018 for “Construction of National War Museum, New Delhi”,various authorised officials participated in representative capacity whichreinforces the respondents’ submission that this method of participationis part of ordinary course of business in functioning of Governmentbodies.

284. The petitioners have gone to the extent of saying that ADG(Works), Chairman of CVC, not being an architect by profession, was

Anot competent to chair this Committee. We must note that it is one thingto allege an illegality in process, but it is another to question theprofessional competency of the office holder who is occupying suchposition owing to his designation (ex-officio) and not in his personalcapacity or by virtue of his qualifications. It is noticed that the post ofChairman is not qualification-based position, rather, it is designation-Bbased office. For, the Chairman is supposed to discharge multiple functionsinvolving but not limited to offering his views on proposal submitted forthe Committee’s consideration. The Committee comprises of variousother members who bring their respective expertise onboard and inconsideration of proposal, the Chairman enjoys no special powers orCveto to turn down the suggestions of expert members. In other words,the Chairman is entrusted with administrative functions which do notvest in the entire Committee, whereas the function of tendering adviceon the subject proposal vests equally in all the members. Therefore, it isa broad-based administrative Committee, which is the amalgam ofdesignated office holders (ex-officio) and of experts. They comeDtogether to advise the Government on certain aspects of given project.Illustratively, the subject meeting was attended by representatives fromDUAC, Chief Architect, Chief Planner, Town & Country PlanningOrganisation and Senior Architect, CVC, CPWD. Thus, merely becausethe Chairman was not an architect by profession, it could not be assumedEthat the Committee itself became incompetent to consider the subjectproposal.

285. The broad structure of administration and governance ofState is premised on the notion that the task of administration is not thesole virtue of select few who are experts in particular field of study.FMultiple factors come into play when administration is entrusted to aparticular office and it is not for the Court to prescribe qualifying criterionfor discharging the functions assigned to particular office, particularlywhen it is sitting in judicial review of decision and not in quo warrantoproceeding to challenge the appointment of office holder. The nature ofoffice, nature of functions to be performed, composition of team, mandateGof office etc. are some of the considerations that come into play.

286. As regards the absence of some members, we must notethat the notice of meeting was communicated to all the members on16.4.2020 and they were asked to make the requisite arrangements inadvance. Furthermore, the members who lacked in technical know-howHto interact virtually were given the option of necessary assistance for

the purpose of meeting. In such scenario, it is inconceivable to say thatthe members were deliberately kept out of the meeting. None of themembers was required to go out for the meeting and the arrangementsin place were sufficient for them to register their presence in the meetingand participate in the decision-making. If they failed to join the meetingfor reasons best known to them, the outcome of the meeting cannot beassailed by alleging motives. Further, the minutes of meeting were mailedto all the members on 30.4.2020 and even then, no word of discord ordissatisfaction was received from any of these members. It must followthat their absence cannot be equated to an irregularity, much less anillegality. The Committee was not expected to sit over the proposal merelybecause some members were unwilling to join virtually despite allarrangements being in place. Indisputably, none of the absent membersis before us in this case and we have no occasion whatsoever to considerthem as being aggrieved in any manner, for no grievance at their instancehas come on record.

287. We may broadly revisit the procedure followed by CVC inreference to proposal for expansion and renovation of Parliament Building,in the following order:

(a)Communication by Chief Architect (Planning &Development), CPWD for consideration by CVC –11.4.2020;

(b)Submission of presentations, drawings, project report andother documents for consideration of members – 11.4.2020;

(c)Request for invitation to Senior Architect (CPWD) toparticipate in the meeting as special invitee – 11.4.2020;

(d)Notice of meeting to all the members – 16.4.2020;

(e)Request to case proponents for presenting theproposal – 16.4.2020;

(f)Communication conveying the possibility of online meetingto all the members and suitable arrangements regardingvideo conferencing were proposed – 16.4.2020;

(g)Conclusion of Meeting - 23.4.2020;

(h)Minutes of meeting communicated to all the members fortheir approval – 30.4.2020;

(i)Minutes approved on 30.4.2020.

AThus, the statement of minutes and preceding steps duly reflectthat the committee ensured that all elements of the project are in order.While approving, the committee duly noted the requirement of ensuringthat the project is in sync with the flavour of the region. decisionreached by the advisory Committee (which is indisputably anadministrative committee and not statutory) after following such anBelaborate process is to be seen in the light of its substance and not itsform. Seeing such decision in isolation from the above order ofproceedings would be to miss out on substance for the form. Such is notthe standard of scrutiny in judicial review.

NON-APPLICATION OF MINDC

288. We may nevertheless advert to the asseveration of non-application of mind. Upon examination of the minutes of meeting dated23.4.2020 as approved on 30.4.2020 and notice of meeting dated16.4.2020, we have observed that all documents, presentations, designsetc. were placed before all members of the Committee well in advanceDand they were equipped enough to examine the subject project withintheir mandate and advise the Government. In Committee’s observation,the grant of no objection is an in-principle approval coupled with asuggestion that “the features of the proposed parliament buildingshould be in sync with the existing parliament building”. ThisEobservation is indicative of the due awareness on part of the Committeeof heritage requirements relating to Grade-I precincts. Merely becausethe minutes do not advert to any specific documents already placedbefore the members of the Committee, it does not follow that the membersdid not discharge their duty properly. Indisputably, the relevant documentswere placed before all the members at least week before the CommitteeFmeeting and understandably, week’s time was granted to all themembers for examining the documents. In such circumstances, it cannotbe assumed that the documents and presentations escaped the minds ofthe Committee members until and unless demonstrable infirmity isshown.G

289. It is noticed that the argument of non-application of mind hasbeen invoked by the petitioners, irrespective of the nature of body whosedecision has come to be assailed. The requirement of due application ofmind is one of the shades of jurisprudential doctrine that justice shouldnot only be done but seen to be done. It requires decision-making body,Hjudicial or quasi-judicial, to abide by certain basic tenets of natural justice,

including but not limited to the grant of hearing to the affected persons.Rules of natural justice are not embodied rules. They are means to anend and not end in themselves. The goal of these principles is to preventprejudice. It is from the same source that the requirement of applicationof mind emerges in decision making processes as it ensures objectivityin decision making. In order to ascertain that due application of mind hastaken place in decision, the presence of reasons on record plays acrucial role. The presence of reasons would fulfil twin objectives ofrevealing objective application of mind and assisting the adjudicatorybody in reviewing the decision. The question that arises here is, whetherthe statement in the recorded minutes of the CVC meeting (“the featuresof the proposed Parliament building should be in sync with the existingParliament building”) is or is not indicative of application of mind.

290. In cases when the statute itself provides for an expressrequirement of reasoned order, it is understandable that absence ofreasons would be violation of legal requirement and thus, illegal.However, in cases when there is no express requirement of reasons, theulterior effect of absence of reasons on the final decision cannot besealed in straightjacketed manner. Such cases need to be examinedfrom broad perspective in the light of overall circumstances. The Courtwould look at the nature of decision-making body, nature of rights involved,stakeholders, form and substance of the decision etc. The list is notexhaustive for the simple reason that drawing conclusion of non-application of mind from mere absence of reasons is matter of pureinference and the same cannot be drawn until and unless othercircumstances too point in the same direction. The aforesaid factor ofnature of rights has been considered by this Court in E.G. Nambudiri[348]thus:“8. The question is whether principles of natural justice requirean administrative authority to record reasons. Generally, principlesof natural justice require that opportunity of hearing should begiven to the person against whom an administrative order is passed.The application of principles of natural justice, and its sweepdepend upon the nature of the rights involved, havingregard to the setting and context of the statutory provisions.Where vested right is adversely affected by an administrativeorder, or where civil consequences ensue, principles of natural

Ajustice apply even if the statutory provisions do not make anyexpress provision for the same, and the person concerned mustbe afforded opportunity of hearing before the order is passed.But principles of natural justice do not require the administrativeauthority to record reasons for its decision as there is no generalrule that reasons must be given for administrative decision. OrderBof an administrative authority which has no statutory orimplied duty to state reasons or the grounds of its decisionis not rendered illegal merely on account of absence ofreasons. It has never been principle of natural justicethat reasons should be given for decisions.CSee: Regina v. Gaming Board for Great Britain, ex p. Benaimand Khaida, (1990) 2 QB 417 at 431. ...”

(emphasis supplied)

291. It is settled that in cases where individual rights are affectedby the decision, an opportunity of being heard and application of mindDcouched in the form of reasons form part of the jurisprudential doctrine.Such cases need to be distinguished from cases which do not impingeupon individual rights and involve ordinary administrative processes. For,similar standards cannot be deployed to decide both these cases. Whenpetitioners allege illegality on ground such as absence of reasons in aEpure administrative process, they must bear the burden to demonstratethe requirement of reasons in the first place. It is not as if reasons aremandatory in all decisions. What we are dealing with is the opinion of anadvisory (administrative) body which is appointed by the sameGovernment which calls for its advice and not to adjudicate upon rightsof individuals. Even if we assume that the no objection by an advisoryFbody would have the effect of affecting the objectivity of the final decision,the fact remains that it does not take the final decision. It is meant toinvoke its expertise in light of the subject proposal placed before it andadvise the Government as regards the feasibility of the proposeddevelopment in connection with the existing central vista region. TheGfinal decision would be that of the competent authority of the concerneddepartment. Furthermore, what purpose would it serve to entangle anadvisory body into rigidity of recording elaborate reasons when its adviceis not going to affect any stakeholder whatsoever nor can be made thebasis to challenge the final decision of the competent authority. Not beinga statutory body, its opinion has no finality attached to it nor could beH

appealed against to superior forum. Undeniably, in the process of decision-making, the Government may choose to consult as many bodies andagencies as it desires and opinion of every such advisory body cannot beassailed by supplying fictional standards without keeping in view thenature of body and context of advice.

292. In E.G. Nambudiri[349], this Court noted as to how mereabsence of reasons may not render the decision to be illegal thus:

“6. ...Ordinarily, courts and tribunals, adjudicating rights of parties,are required to act judicially and to record reasons. Where anadministrative authority is required to act judicially it is also underan obligation to record reasons. But every administrative authorityis not under any legal obligation to record reasons for its decision,although, it is always desirable to record reasons to avoid anysuspicion. Where statute requires an authority though actingadministratively to record reasons, it is mandatory for the authorityto pass speaking orders and in the absence of reasons the orderwould be rendered illegal. But in the absence of any statutoryor administrative requirement to record reasons, the orderof the administrative authority is not rendered illegal forabsence of reasons. If any challenge is made to the validityof an order on the ground of it being arbitrary or mala fide,it is always open to the authority concerned to place reasonsbefore the court which may have persuaded it to pass theorders. …”

(emphasis supplied)

293. Had it been case of any other administrative committeerequired to adjudicate upon the rights of individuals, merely because it isnot mandatory to record reasons would not absolve it of the requirementof objective consideration of the proposal. The ultimate enquiry is ofapplication of mind and reasoned order is merely one element in thisenquiry. In given case, the Court can still advert to other elements ofthe decision-making process to weigh the factum of application of mind.The test to be applied in such case would be of reasonable linkbetween the material placed before the decision-making body and theconclusion reached in consideration thereof. The Court may decide inthe context of overall circumstances of the case and sole element (of

Ano reasons or lack of elaborate reasons) cannot be enough to make orbreak the decision as long as judicial mind is convinced of substantialapplication of mind from other circumstances. Even in common lawjurisprudence, there is no absolute requirement of reasoned order in alldecisions. In Lonrho plc v. Secretary of State for Trade and Industry& Anr.[350], it was contended that the decision is not based on convincingBreasons and therefore, must be declared as illegal. The House of Lordsrefused to entertain this contention and noted that mere absence ofreasons would not render the decision as irrational. Lord Keith, in hisopinion, noted that the only significance of absence of reasons would bethat if circumstances overwhelmingly point towards different conclusionCthat the one reached by the body, it would be fatal. He noted thus:

“The absence of reasons for decision where there is no duty togive them cannot of itself provide any support for the suggestedirrationality of the decision. The only significance of the absenceof reasons is that if all other known facts and circumstances appearDto point overwhelmingly in favour of different decision, thedecision-maker who has given no reasons cannot complain if thecourt draws the inference that he had no rational reason for hisdecision.”

In Administrative Law, P.P. Craig notes that it is relevant toEconsider the context in which decision operates thus:

“The court will consider the nature of the decision maker, thecontext in which it operates and whether the provision of reasonsis required on grounds of fairness.[351]”

Mr. Craig also refers to R. v. Ministry of Defence, Ex p.FMurray[352] wherein certain principles relating to duty of reasons wereelaborated. Lord Chief Justice Bingham, in his opinion, observed thatthe requirement of giving reasons may be outweighed by concerns ofpublic interest in certain cases, for instance, when it would unduly burdenthe decision maker. We are not importing any rider of public interest toGnegate the requirement of reasons; however, the above exposition isuseful to understand the effect of absence of reasons on an otherwiselegal, rational and just decision.

350 [1989] 2 All ER 609351 Administrative Law, 5th Edn., Thomson Sweet and Maxwell, pg. 440H352 [1998] COD 134 (QBD)

294. Notably, this Court in Maharashtra State Board[353] and inMahabir Jute Mills[354] noted that if the function/decision of theGovernment is administrative, in law, ordinarily there is no requirementto be accompanied by statement of reasons unless there is an expressstatutory requirement in that regard. Again, in Sarat Kumar Dash[355],the Court observed that in the field of administrative action, the reasonsare link between maker of the order or the author of the decision and theorder itself. The record can be called to consider whether the authorhad given due consideration to the facts placed before him before hearrives at the decision.

295. Therefore, the requirement of reasons in cases which do notdemand it in an express manner is based on desirability and the same isadvised to the extent possible without impinging upon the character ofthe decision-making body and needs of administrative efficiency.

LEGITIMATE EXPECTATION

296. The petitioners would contend that CVC performs functionsakin to statutory bodies and has acted in contravention of legitimateexpectations of public. It has been rightly pointed out to us that ZonalPlan for Zone and tender conditions require consultation with CVC asan essential step. However, it is not the petitioners’ case that noconsultation has taken place in furtherance thereof. The argument isripe with ambiguity. We hold that CVC cannot be given the status of astatutory body when its mandate and origin, as envisaged in the relevantOffice Memoranda, have been duly discussed above.

297. As regards legitimate expectations, it is settled that legitimateexpectations may arise in administrative matters depending on the factualmatrix of case. However, it is necessary to understand the basic importof this doctrine. Legitimate expectations may arise in cases when thedecision-making body deviates from set standard, thereby impingingupon the rights of those who are subjected to the decision. In the presentcase, had the project proponent entirely skipped the step of consultationwith CVC, enforcing such consultation by operation of legitimateexpectation may have come into play. We need not record our final viewin that regard, as it does not arise in this case. In Punjab CommunicationsLtd. v. Union of India & Ors.[356], this Court had noted that the

353 (supra at 46, paras 22 and 23)354 (supra at 165)

355 (supra at 166)

356 (1999) 4 SCC 727

Arequirement of legitimate expectation is not based on mere hope or wishor anticipation. Referring to Union of India & Ors. v. HindustanDevelopment Corporation & Ors.[357], it observed thus:

“33. ...This Court then observed that legitimate expectation wasnot the same thing as anticipation. It was also different from aBmere wish or desire or hope. Nor was it claim or demand basedon right. mere disappointment would not give rise to legalconsequences. This Court held (p.540) as follows:

“The legitimacy of an expectation can be inferred only if it isfounded on the sanction of law or custom or an establishedCprocedure followed in regular and natural sequence. … Suchexpectation should be justifiably legitimate and protectable.”

In Ram Pravesh Singh & Ors. v. State of Bihar & Ors.[358], thisCourt noted the dimensions of this doctrine and we quote the same withDapproval thus:

“15. What is legitimate expectation? Obviously, it is not legalright. It is an expectation of benefit, relief or remedy, that mayordinarily flow from promise or established practice. The term“established practice” refers to regular, consistent, predictableEand certain conduct, process or activity of the decision-makingauthority. The expectation should be legitimate, that is,reasonable, logical and valid. Any expectation which is basedon sporadic or casual or random acts, or which is unreasonable,illogical or invalid cannot be legitimate expectation. Not being aright, it is not enforceable as such. It is concept fashioned by theFcourts, for judicial review of administrative action. It is proceduralin character based on the requirement of higher degree offairness in administrative action, as consequence of the promisemade, or practice established. In short, person can be said tohave “legitimate expectation” of particular treatment, if anyGrepresentation or promise is made by an authority, either expresslyor impliedly, or if the regular and consistent past practice of theauthority gives room for such expectation in the normal course.As ground for relief, the efficacy of the doctrine is rather weak

357 (1993) 3 SCC 499H358 (2006) 8 SCC 381

as its slot is just above “fairness in action” but far below“promissory estoppel”. It may only entitle an expectant: (a) to anopportunity to show cause before the expectation is dashed; or(b) to an explanation as to the cause for denial. In appropriatecases, the courts may grant direction requiring the authority tofollow the promised procedure or established practice. legitimateexpectation, even when made out, does not always entitle theexpectant to relief. Public interest, change in policy, conduct ofthe expectant or any other valid or bona fide reason given by thedecision-maker, may be sufficient to negative the “legitimateexpectation”. The doctrine of legitimate expectation based onestablished practice (as contrasted from legitimate expectationbased on promise), can be invoked only by someone who hasdealings or transactions or negotiations with an authority, on whichsuch established practice has bearing, or by someone who has arecognised legal relationship with the authority. total strangerunconnected with the authority or person who had noprevious dealings with the authority and who has notentered into any transaction or negotiations with theauthority, cannot invoke the doctrine of legitimateexpectation, merely on the ground that the authority has ageneral obligation to act fairly.”

(emphasis supplied)

Suffice it to say that this expression does not convey tangibleright. Instead, it is mere expectation of fair and reasonable treatmentand the legitimacy of that expectation would strictly depend upon thefacts and circumstances of case, particularly on whether or not theabsence of procedural step had led to failure of fairness. Legitimateexpectation is locus-based principle and it is not meant to assuage theexpectations of those whose interests are unaffected by decision. It iseasy to form an expectation but difficult to find legitimate basis forsuch expectation.

298. Importantly, such expectation gets developed only on thebasis of an established practice in context of the decision being takenand in context of the body taking the decision, and the petitioners havenot demonstrated any established practice which has been deviated fromin the present case. At any rate, reading in an additional proceduralrequirement on the basis of legitimate expectations is not standard

ABC

Ajudicial review function and the Court must bear heavy burden bydemonstrating the need as well as an established basis for such an action.The petitioners’ insistence on this doctrine is wholly out of context and infact has no application to the case under consideration. In suchcircumstances, any further deliberation on this count would be an exercisein futility.B

DUAC APPROVAL

STAGE FOR STATUTORY APPROVAL BY DUAC

299. The proposal for DUAC approval pertained only to the “NewParliament Building, Plot No. 118, N.A., New Raisina Road, New Delhi.”CIt was not for the entire Central Vista Project as such. Thus, what isunder consideration is the validity of DUAC approval for the Parliamentproject and not the remaining central secretariat project. In light of thesubmissions detailed above, the following questions emerge for ourconsideration in this part:D(i)Whether the approval of DUAC was essential even beforethe release of Consultation Services NIT?

(ii)Whether DUAC acted in an arbitrary manner whileconsidering the proposal thereby vitiating the approvalgranted by it?E300. DUAC has been constituted as statutory body under theDUAC Act for the purpose of maintaining the aesthetic quality of urbandesign. The Preamble to the DUAC Act reads thus:

“An Act to provide for the establishment of the Delhi Urban ArtCommission with view to preserving, developing and maintainingFthe aesthetic quality of urban and environmental design withinDelhi.”

In Objectives, Jurisdiction and Guidelines of DUAC, the intentbehind the formation of this Commission becomes clear. It is stated thus:

G“While developing/redeveloping, maintaining and preserving variousparts of the city, there has hardly been any emphasis on the qualityof the physical environment and visual character of the city. Theaesthetic and visual character of Delhi at least the better part of itleaves much to be desired. In fact certain beautiful areas havebeen ruined due to sheer negligence and indifference. The needH

for high-powered Design Re-view Board/Commission to guideand control the aesthetic quality of urban and environmental designof the city and its cultural values has been felt for some timepast.”

Section 11 of the DUAC Act specifies the functions of theCommission. It reads thus:

11. Functions of the Commission. — (1) It shall be the generalduty of the Commission to advise the Central Government in thematter of preserving, developing and maintaining the aestheticquality of urban and environmental design within Delhi and toprovide advice and guidance to any local body in respect of anyproject of building operations or engineering operations or anydevelopment proposal which affects or is likely to affect the sky-line or the aesthetic quality of surroundings or any public amenityprovided therein.

(2) Subject to the provisions of sub-section (1), it shall be the dutyof the Commission to scrutinise, approve, reject or modify proposalsin respect of the following matters, namely:—

(a) development of district centres, civic centres, areasearmarked for Government administrative buildings and forresidential complexes, public parks and public gardens;

(b) re-development of the area within the jurisdiction of NewDelhi Municipal Committee including Connaught PlaceComplex and its environs, Central Vista, the entire bungalowarea of Lutyen’s New Delhi, and such other areas as theCentral Government may, by notification in the Official Gazette,specify;

(c) plans, architectural expressions and visual appearance ofnew buildings in the centres, areas, parks and gardens specifiedin clauses (a) and (b) including selections of models for statuesand fountains therein;

(d) re-development of areas in the vicinity of Jama Masjid,Red Fort, Qutab, Humayun’s Tomb, Old Fort, Tuglakabad andof such other places of historical importance as the CentralGovernment may, by notification in the Official Gazette, specify;

(e) conservation, preservation and beautification of monumentalbuildings, public parks and public gardens including location orinstallation of statues or fountains therein;

(f) under passes, over-passes and regulations of street furnitureand hoardings;

(g) location and plans of power houses, water towers, televisionand other communication towers and other allied structures;

(h) any other projects or lay-out which is calculated to beautifyDelhi or to add to its cultural vitality or to enhance the qualityof the surroundings thereof;

(i) such other matters as may be prescribed by rules.

Explanation.—For the purposes of this sub-section,—

(i) “civic centre” means the headquarters of local bodycomprising therein its office buildings and buildings intendedDfor cultural activities;

(ii) “Connaught Place Complex” means the area comprisingConnaught Place and its extension measuring approximately140 hectares, being the area described as Zone D-I (Revised)in the Delhi Master Plan;

(iii) “district centre” means self-contained unit created in theDelhi Master Plan comprising areas for retail shopping, generalbusiness, commercial and professional offices, forwarding,booking and Government offices, cinemas, restaurants andother places of entertainment.”

FA perusal of Section 11 reveals that the Commission (DUAC) isinvested with twin duties -

first, to advise the Central Government in matter of preserving,developing and maintaining the aesthetic quality of urban andenvironmental design;

second, to provide advice and guidance to any local body in respectof any project ......... which affects or is likely to affect the skylineor aesthetic quality of surroundings.

301. Sub-Section 2 of Section 11 states that the Commission(DUAC) is duty bound to scrutinize, approve, reject or modify proposals

in respect of “re-development of the area within the jurisdiction ofNew Delhi Municipal Committee including Connaught PlaceComplex and its environs, Central Vista ....”. Furthermore, sub-Section3 bestows powers upon the Commission (DUAC) to act suo motu tosecure its objectives in case the proposal is not submitted to it by thelocal authority. It states thus:

“(3) Without prejudice to the provisions contained in sub-section (1) and sub-section (2), the Commission may suomotu promote and secure the development, re-development orbeautification of any areas in Delhi in respect of which noproposals in that behalf have been received from any local body.”

302. Section 12 obligates every local authority, undertaking building/engineering operations, to refer to the Commission (DUAC) for itsscrutiny. Further, the decision of the Commission (DUAC) in that regardwould be binding upon the local authority. It reads thus:

“12. Duty of local bodies to refer development proposals,etc., to the Commission. —

Notwithstanding anything contained in any other law for the timebeing in force, every local body shall, before according approvalin respect of any building operations, engineering operations ordevelopment proposals referred to in sub-section (1) of section11 or intended to be undertaken in any area or locality specified insub-section (2) of that section, refer the same to the Commissionfor scrutiny and the decision of the Commission in respect thereofshall be binding on such local body.”

Furthermore, in Section 14,

“14. Power to revise decision in certain cases.—

Nothing contained in this Act shall preclude the CentralGovernment from calling for and examining, on its own motion, ifit considers it necessary so to do in the public interest, any case inwhich decision has been made by the Commission under section12 but no appeal lies thereto, and passing such order thereon as itthinks fit:

Provided that no such order shall be made prejudicially affectingany person except after giving him an opportunity of making arepresentation in the matter.”

A303. The aforesaid scheme of the DUAC Act succinctly revealsthat the mandate of DUAC is to offer its advice in matters of preservation,development, re-development and maintenance of aesthetic quality ofurban and environmental design within Delhi. Such advice is not renderedin context of each and every aspect of the proposal, rather, it only ensuresthat overall aesthetic quality of the concerned region is not beingBdisturbed. Over and above the concern of aesthetics, there is no otheraspect on which the Commission’s (DUAC’s) approval is mandated. Itis also noteworthy that the Act draws clear distinction between localbodies and Central Government insofar as the binding value of the adviceof Commission (DUAC) is concerned. Section 12 categorically bindsCthe local bodies with the advice of the Commission (DUAC). Thisdistinction is further strengthened by Section 14 which incorporates asaving clause providing for an overriding power bestowed upon theCentral Government to call for and examine the advice of the Commission(DUAC) if public interest so demands and pass “such order thereon,as, it thinks fit”.D304. As regards the stage of consultation with DUAC, Section 12enjoins the local bodies to consult before according approval in respectof any building operations, engineering operations or developmentproposals. Section 2(b) defines “building operations” as:

E“(b) “building operations” includes rebuilding operations, structuralalterations of, or additions to, buildings and other operationsnormally undertaken in connection with the construction ofbuildings;”

Section 2(f) defines “engineering operations” as:F“(f) “engineering operations” includes the formation or laying outof means of access to road or the laying out of means of watersupply;”

Section 2(e) defines “development” as:

“(e) “development” with its grammatical variations means theGcarrying out of building, engineering, mining or otheroperations in, on, over or under, land or the making of anymaterial change in any building or land and includes re-development;”

(emphasis supplied)

305. The meaning of the expression “development” offers guidanceas regards the stage of consultation. It specifies that development means“carrying out of building ...... operations”on land or “making materialchange” in any building. The words “carrying out” and “making”, whenharmoniously read, lay out clear position that approval of Commissionmust be sought before actual development i.e., before carrying outoperations or making material changes. There is no ambiguity in theoperative provision as regards the stage of consultation. The petitioners’argument that such consultation must be before releasing the tender forconsultation services, therefore, has no basis in the governing law. Thesame intent would reflect from the Preamble of the DUAC Act whichstipulates in no uncertain terms that the concern of the Commission iswith the aesthetics of concerned region. Indubitably, the considerationwhether or not proposal is in sync with the existing aesthetics wouldnot be possible until and unless the design and shape of the proposedproject is ready being site specific. For, without design before it, theCommission (DUAC) would be incapable of comprehending thecompliance of design with aesthetics of the region.

306. We recall and note that at the stage of tender for consultationservices, the prospective bidders were called upon to submit their visionof the proposed project which goes on to show that no final design wasin existence at that point of time. It was only after the consultant wasselected that the design was finalised and the role of DUAC would notemerge before this crucial step.

ARBITRARINESS IN GRANT OF APPROVAL

307. We may now deal with the argument regarding arbitrarinessof DUAC in granting approval. In order to understand whether theDUAC acted in fulfilment of its mandate, we deem it necessary to analysethe Minutes of the meetings of DUAC. Initially, when the proposal wasplaced before DUAC for its consideration, detailed presentation wasmade before it by the consultant wherein various features of the projectwere delineated. The minutes dated 5.6.2020 note thus:

“2. The proposal was scrutinised by the Commission. The architectalso made presentation of the project (via Video Conference),explained its unique features, client requirements and constraintsand provided clarifications to the queries of the Members of theCommission. The Commission appreciated the overall design ...”

AThereafter, the DUAC categorically noted that some inadequacieswere found in the proposal and accordingly it was returned with certainobservations. Point 3 of the Minutes reads thus:

“3. It was observed that as per preliminary scrutiny done by theDUAC Secretariat in May 2020, some of the inadequacies foundBin the submission were communicated to the CPWD ....”308. The DUAC noted that the Vehicular Parking Plan andLandscape Plan was not commensurate with the requirements andobserved in point 4 that:

“4. The Commission reiterates that the above two viz. a) VehicularCParking Plan and b) Landscape Plan need to be submitted as perrequirement.”

The DUAC elaborated on the observation regarding parking planand observed thus:

D“5. In the Vehicular Parking Plan, parking for the vehicles needsto be shown as per statutory requirement. Further, the interfacebetween vehicular movement and pedestrian/visitor movementneeds to be indicated. The gate opening towards Rafi Marg Circleseems to require further resolution. This may be reviewed.”

Even in the Landscape Plan, the DUAC emphasized uponErationalisation of open spaces around the proposed new building. In point9, the DUAC asked the integration of new building with the old building.The Committee, in accordance with their mandate, specifically focussedon form and aesthetics of the proposed building in point 10 and notedthus:F

“10. The urban form and aesthetics of the main new Parliamentbuilding may be improved. The elevation design and treatmentneeds to be less overbearing and more representative of thediversity and democratic ideals of modern India. The facadefacing the present Parliament should be given appropriateGtreatment as it will be the link for movement between the twobuildings, as well as define symbolic connection. The form ofthe new building as visible from Vijay Chowk needs to be visuallyscaled to the present Parliament building.”

Thereafter, the DUAC recorded certain observations relating toHinteriors and other features of the building like windows, desirability of

natural light, better ventilation, availability of skylights and sustainabilityfeatures in accordance with the provisions of green buildings in Delhi. It,then, recorded its decision as “Not Approved” and returned the proposal.

309. The project proponent, thereafter, submitted revised proposalwhich was considered by the DUAC in its 1545[th] meeting on 1.7.2020,to which approval was granted after detailed discussion and scrutiny,as recorded in the Minutes thus:

“3. Now, the revised building plan proposal received (online) withincorporation of observations of the Commission was scrutinized,and after detailed discussion with the architect/project proponent...”

The Minutes reveal that even in this round of consideration, theDUAC was not peripheral in its scrutiny and again recorded certainobservations relating to parking requirements and environmentalconcerns. In point (a), it is noted that:

“a. The parking requirements for the plot are proposed to bedistributed in several plots scattered around the complex. To ensuresmooth accessibility and to address environmental concerns, itwas suggested that the local body shall explore the possibility ofMulti-Level Car Parking (MLCP) after identifying plot ofappropriate size and location, in the vicinity, to relocate all theproposed parking in one consolidated plot wherein parkingrequirements for all users to the Parliament building including MPChambers, supporting staff, media, visitors, school children buses,etc. can be accommodated.”

Furthermore, touching upon various aspects of the quality anddesigns of fencing, size, scale and material of gates, the DUAC notedthat they should be commensurate with the character and identity of thecomplex. The Commission also advised the project proponent to enhancenatural lightening features and decide location of trees in the mannerthat pedestrian pathways are not disturbed and shade is enough. In point3(e), it noted thus:

“e. The Landscape plan has to be more detailed with theappropriate treatment of Hardscape & Softscape. The locationand selection of trees to be planted should be appropriate so thatthere is enough shade and does not interfere with the pedestrian

Apathways. Pedestrian circulation must be shaded and suitable forall ages. Covered entrances for pedestrians are advisable.”

310. The above analysis leaves no manner of doubt that the DUACwas not only mindful of its advisory functions, but also discharged thesame in accordance with its statutory mandate. The argument that theBDUAC did not apply its mind to various aspects of the project is ill-informed, if not ill-advised. The DUAC was sitting in an advisory capacityso as to advise the Government on aesthetics of development/re-development project. It is not meant to analyse any other aspect of theproject. In that, it is expected to apply its mind to those aspects of theproject which may have bearing on aesthetics. The Minutes succinctlyCreveal that complete information relating to designs was placed beforethe DUAC and it applied itself on an array of factors including parking,plantation of trees, traffic, appearance of facade, ventilation, landscape,building equipment etc. so far as the same are relevant for its enquiry, tofulfil its advisory duties.

311. The law relating to arbitrariness and its application in legalissue before the Court is well settled. To apply the principle ofarbitrariness in an advisory function would entail situation wherein theadvice is rendered without any reasonable thought to the proposal. Thelaw demands demonstration of inadequacies, for instance, absence ofEany material to consider the proposal or failing to exercise the mandateor leaving out relevant considerations or mala fide consideration of theproposal. At the very least, the case must reveal situation of non-application of mind based upon the circumstances of the case or theMinutes of the meeting. The present case does not involve any suchsituation. The Minutes reveal thorough and reasonable considerationFby DUAC of all relevant aspects and we are in no position to consider ita case of non-application of mind much less arbitrary. Suffice it to observethat the allegation of arbitrariness is easy to raise in theoretical discourse,but hard to establish in Court of law where unsubstantiatedconsiderations have no place.G

312. As per Conduct of Business Regulations, 1976, the Minutesof the meeting were ratified and confirmed in the next meeting of theCommission and no member has expressed any reservation regardingany aspect of the advice tendered by DUAC. The petitioners’ challengeon this count, therefore, fails.H

CHALLENGE TO CHANGE IN LAND USE INREFERENCE TO HERITAGE CONSERVATION

313. The concern relating to disregard for heritage conservationlaws has been expressed in multiple petitions in this case. From changein land use to grant of approval by various bodies, it is consistently allegedthat heritage conservation laws have been kept out of consideration bythe respondents. We note at the very outset that as regards the newParliament building project, the concern of heritage conservation doesnot arise directly. For, plot No. 118 (New Parliament Building) is not anenlisted heritage property and does not fall within central vista precincts.However, the concern emerges due to it being an adjoining space withplot no. 116 (Existing Parliament Building) which houses Grade-Istructure. The impact of this positioning, if any, and role of HCC inexamination thereof shall form part of the discussion to follow. From athorough perusal of the submissions and documents, the followingquestions emerge for our consideration in this part:

(i)Whether the subject new Parliament building project hasbreached the scope of changes permissible under UnifiedBuilding Byelaws for Delhi, 2016[359] relating to heritagebuildings/precincts?

(ii)Whether the approval of HCC is mandated at thedevelopment stage or prior thereto?

314. At the outset, we note that the argument relating toimpermissibility of change in land use without reckoning the heritagerelated laws shall also be addressed in this part itself, along with thebroader argument that the whole project is in contravention of heritageconservation laws. As regards heritage spaces, the general tone of the2016 Byelaws is to preserve the heritage as they specify that“conservation of heritage sites shall include buildings, artifacts,structures, areas and precincts of historic, aesthetic, architectural,cultural or environmentally significant (heritage buildings andheritage precincts) ...”

315. To begin this discussion, the pin-pointed enquiry is whetherthe broad statement that “once heritage, always heritage” or thatheritage buildings/precincts have an inviolable character in law with anabsolute embargo on any modification whatsoever, is the correct legal

359 For short, “2016 Byelaws”

Aposition. If not, then our examination would pertain to the extent ofchanges that can be made. The scheme of the 2016 Byelaws plainlyenunciates that heritage buildings/precincts are not ipso facto unalterable.For, the Byelaws contemplate three kinds of changes that can be madein respect of heritage buildings/precincts:

B(i)physical changes through development work on heritagesites (clause 1.3);

(ii)change of ownership of heritage sites (clause 1.12);

(iii)change of use of land on which heritage sites are situated(clause 1.12).

In the present challenge, we are concerned with points (i) and (iii)i.e., examination of permissibility of change in land use and physicalchanges during development as per 2016 Byelaws. We may proceed inthat order.

D316. But before that, be it noted that the principles of conservationor preservation of heritage buildings/precincts are restricted only to thosebuildings/precincts which have been listed as heritage buildings/precinctsin the official notification. The same gets corroborated by the affidavitof Mrs. Ruby Kaushal, Member Secretary to the HCC where she statesthat the jurisdiction of the HCC is limited to the listed heritage buildings/Eprecincts and that the entire Lutyen’s Bungalow Zone (LBZ) is not aheritage zone. The submission is that only listed buildings/precincts aresubject to heritage conservation norms. Clause 1.1 of the Byelawscategorically state that:

“1.1. Applicability: This regulation shall apply to heritage sitesFwhich shall include those buildings, artifacts, structures, streets,areas and precincts of historic, architectural, aesthetic, cultural orenvironmental value (hereinafter referred to as Listed HeritageBuildings/Listed Heritage Precincts) .... which shall be listedin notification(s) to be issued by Government/identified inMPD.”G

(emphasis supplied)

The Government in exercise of the powers conferred by Bye-laws 23.1 and 23.5 of the Delhi Building Bye-laws, 1983 read with sub-Section (17) of Section 2 of the New Delhi Municipal Council Act, 1994,Hhas published list of 141 Heritage Sites including Heritage Buildings,

Heritage Precincts and Listed Natural Feature Areas for generalinformation. The same reads thus:

“NOTIFICATION

Delhi, the 1st October, 2009

F.No. 4/2/2009/UD/l 6565.—Whereas list of 147 Heritage Sitesincluding Heritage Buildings, Heritage Precincts and Listed NaturalFeature Areas prepared by the Chairperson, New Delhi MunicipalCouncil, on the advice of the Heritage Conservation Committee,was published in the newspaper on June 8, 2005 as public noticeinviting objections and suggestions from all persons likely to beaffected thereby within period of thirty days from the date ofpublication of the notice.

And whereas copies of the said notice were made available tothe public on 8th June, 2005.

And whereas all objections and suggestions received in respectto the above mentioned public notice have been duly consideredby the Heritage Conservation Committee.

And whereas out of the original list of 147 heritage buildings andprecincts referred to the NDMC by the HCC, two buildings/precincts have not been found suitable for listing by the NDMC(Annexure-B) and four buildings/ precincts are being studied andreconsidered by the NDMC (Annexure-C).

Nov/, therefore, in exercise of the powers conferred by Bye-laws 23.1 and 23.5 of Delhi Building Bye-laws, 1983 read withsub-section (17) of Section 2 of the New Delhi Municipal CouncilAct 1994, the Government hereby publishes the following list of141 Heritage Sites including Heritage Buildings, Heritage Precinctsand Listed Natural Feature Areas for general information(Annexure-A)

By Order and in the Name of the Lt. Governor of the NationalCapital Territory of Delhi,

R.C. MEENA, Jt. Secy.

LIST OF 141 HERITAGE BUILDINGS IN NDMC AREAFOR NOTIFICATION

518SUPREME COURT REPORTS[2021] 15 S.C.R.AGRADE-IBCDEFGH

[2021] 15 S.C.R.

GRADE-IIABCDEFGH

520SUPREME COURT REPORTS[2021] 15 S.C.R.ABCGRADE-IIIDEFANNEXURE-BDeleted List of 2 Heritage Buildings in NDMC Area Grade-IIGH

GRADE-III

ANNEXURE-C

LIST OF 4 HERITAGE BUILDINGS IN NDMC AREA BEINGSTUDIED/RECONSIDERED GRADE-I

GRADE-II

GRADE-I

(emphasis supplied)

317. Therefore, our foremost concern is to determine whetherany of the seven subject plots are situated on listed heritage site. Oncareful examination, we note that out of seven subject plots, only twoplots, i.e. plot no. 3 (National Archives listed as Grade-I) and plot no. 4(which houses structure titled “Grave Platform” listed as Grade-III),have been listed as heritage sites in the list. At serial no. 13 of Grade-Isites, “National Archives and Campus” located at Janpath is earmarkedas Grade-I heritage building/precinct. The other listed site is at serialno. 3 in Grade-III sites which is part of plot no. 4.

318. The petitioners have submitted that the entire central vistaarea is part of listed heritage sites. In response, learned Solicitor Generalhas commended us with the official colour coded map of Central VistaAvenue signed by Senior Architect (R.D-II Unit) of Central Public WorksDepartment (CPWD), New Delhi alongwith affidavit of Ms. Leenu

522SUPREME COURT REPORTS

ASahgal, Commissioner (Planning), Delhi Development Authority, dated3.7.2020. There is no reason to doubt the correctness of this factualstatement on affidavit. list of listed heritage sites has also been furnishedwherein 141 sites have been listed as heritage buildings, precincts andnatural feature areas. We have carefully studied the plan specified indetail in the said map, reproduced hereunder: -B

Note:

1. With regard to Plot No. 1 of area 15 acres mentionedin the public notice dated 21.12.2019, the current landFuse is Transportation (Bus Terminal)/Parking) (10.5acres) and Recreational (Neighborhood Play Area) (4.5acres). In terms of public notice dated 21.12.2019, itwas proposed to change to ‘Govt Office’. However,subsequently, it has been decided by the GovernmentGto use it as ‘Residential’ and accordingly DDA istaking further action to change the land use as perthe provisions of Delhi Development Act, 1957.

2. Plot No 8 of area 3.9 acres located in Zone has beenchanged from Public Semi Public (Facilities) toRecreational (District Park).H

319. The plan demarcates the Rajpath, central vista lawns andcentral vista water body running parallel to Rajpath as collective spacetitled “Central Vista Precincts at Rajpath” which is part of the listedheritage buildings/precincts at Serial No. 9 of Grade-I sites. Whereas,the existing Parliament Building on plot No. 116, has been separatelynotified as Grade-I at Serial No. 8 of the same list. The proposedParliament Building, however, is on plot No. 118. Both these plots(Nos.116 and 118) may come within the central vista area, but are notpart of central vista heritage precincts as such. Therefore, it follows thatthe entire central vista area has not been declared as heritage precinctand only the central vista precinct at Rajpath is declared as such.Inasmuch as, all other heritage structures/precincts in the central vistaarea have been listed separately in the list of heritage buildings/precincts.In other words, if the entire central vista area was to be listed as heritageprecinct, the requirement of listing its components separately would nothave arisen. Further, it is matter of record that the aforesaid precinctat Rajpath is not part of the proposed comprehensive developmentproject, as no changes thereto have been proposed as of now.

320. It is relevant to note that the appropriate authority whileenlisting the heritage buildings/precincts/natural feature areas wasconscious about the difference between building and precincts, as isevident from the published list. Our discussion on the expression “heritagebuildings” also clarifies the position. The list separately includes multiplebuildings/sites or precincts within the central vista area. For instance,other structures/buildings within central vista area i.e., India Gate, IndiaGate Canopy, North Block and South Block etc. If the petitioners’argument that the entire central vista area is listed precinct wouldhave reflected the correct position and there was absolutely no need forthe competent authority to include different buildings/precincts situatedin the same region separately. To reinforce this view, reference could bemade to the INTACH Report which gives physical description of“Central Vista, Rajpath” thus:

“PHYSICAL DESCRIPTION: The vista was designed to linkthe Viceroy’s House (now the President’s House) to the northerngateway of the Purana Qila. At the eastern end was erected theWar Memorial Arch (India Gate), around which were built thePrinces’ houses. On both sides on the main road, there are widelawns. The architectural character of the Central Vista is enhanced

Aby the landscaping, the street furniture, the water bodies, etc. andit is important that any new addition/intervention is sensitive toand respects the character of the area.”

Notably, INTACH is not statutory authority but only registeredsociety. Nevertheless, the description by it is also unambiguous and leavesBno scope for further scrutiny. It is in complete sync with the stand takenby the respondents on affidavit and which has found favour with us thatonly the Central Vista Precincts at Rajpath, as described by the INTACHReport, qualify as listed heritage precinct. As submitted by therespondents, precinct may include some parts of the appurtenant landas well, however, it will not cover the entire central vista region. It willCdefeat the whole purpose of the exercise of listing, which is statutorymeasure with intent to preserve and conserve only the listed heritagepremises.

321. As regards the heritage status of other plots involved in thepresent lis, during the course of the hearing, the petitioners were calledDupon to show relevant official documents to depict that the subject plotshave been listed as heritage buildings/precincts, as contended. Nodocument to the contrary is forthcoming. Reference was, however, madeto some documents downloaded from internet including official websiteof NDMC. Those documents cannot be the basis to disregard the officialdocuments produced under the signatures of the authorised officer onEaffidavit including the statutory notification published by the Governmentfor listing of 141 heritage sites/buildings. We would, therefore, rely uponthe official documents and the affidavit of the officials of the competentauthority, as aforesaid.

322. As per the coded plan, the land use of plot Nos. 3 and 4 isFbeing changed from Public and Semi-Public Facilities to GovernmentOffice and Recreational (District Park). Our enquiry is focussed onwhether the said change is permissible in law.

323. On change in land use, clause 1.12 is the guiding provisionfor the present enquiry which categorically states that listing does notGipso facto prohibit change of ownership or usage. However, it adds acaveat by stating that the change in land use of such listed heritagebuildings/precincts is not permissible without “prior approval” of theHCC. It reads:

“1.12. Grading of the Listed Buildings/Listed Precincts:...Listing does not prevent change of ownership or usage.H

However, change of use of such Listed Heritage Building/Listed Precincts is not permitted without the prior approvalof the Heritage Conservation Committee. Use should be inharmony with the said listed heritage site. …”

(emphasis supplied)

Therefore, it is urged that for the aforesaid two plots, the changein land use was contingent upon prior approval of HCC. In the firstplace this prior approval is required if the proposal for change in land usepertains to listed heritage building/listed precincts only. Not for otherproperties. In any case, the record reveals that this requirement hasbeen substantially complied with by the respondents.

324. Indisputably, the HCC is constituted as part of the nodalMinistry i.e., MoHUA and Special Secretary/Additional Secretary ofthe Ministry is designated as the Chairman of the committee. Othermembers of the HCC include Additional D.G. (Architecture), CPWD,Chief Planner, Town and Country Planning Organisation, Commissioner(Planning), DDA, Secretary, DUAC among others. In the present case,both the meetings of the Authority wherein the proposal of change inland use was considered comprised of representatives of all the agencieswhich were required to give their approval to the project. The minutesof the DDA meeting dated 10.2.2020 wherein the project proposal wasapproved for final notification reveal that Shri Kamran Rizvi, AdditionalSecretary, MoHUA, Government of India, who is also the designatedChairman of the HCC, was present in the meeting and had unreservedlyjoined in the approval of the HCC to the proposed change in land use.Additionally, we note that various other members of the HCC had alsoparticipated in the meeting of the Technical Committee in December,2019. In the participation of high officials of HCC including its Chairman,it can be safely accepted that those officials of HCC were fully informedand conscious about their role in approving the proposal regarding changein land use. In other words, the HCC was throughout part of the process,represented by its Chairman and other members. Their approval to theproposal under consideration has been duly recorded in the said meetings.It must, therefore, follow that the approval of the HCC as regards thechange in land use was implicit and understood in the approvals grantedin the said meetings. Resultantly, there is substantial compliance of “priorapproval” under clause 1.12.

A325. This approval under clause 1.12, however, does not dispensewith the requirement of formal written “prior permission” of HCCunder clause 1.3. That would become essential before commencing thedevelopment work on listed heritage buildings/sites and that stage is yetto arrive, including in respect of construction on plot No. 118 likely to beaffected by the expression “Heritage building”[360] to include such portionBof land adjoining heritage building (existing Parliament building on plotNo. 116) or part thereof as may be required for fencing or covering or inany manner preserving the historic and/or architectural and/or culturalvalue of such existing heritage building.

SCOPE OF DEVELOPMENT ON HERITAGE SITESC(PRIOR APPROVAL VIS-À-VIS PRIOR PERMISSION)

326. The scope of restrictions regarding the development/re-development of the heritage buildings/precincts is stated in clause 1.3 ofthe Byelaws which reads thus:

D“1.3 Restrictions on Development/Re-development/Repairs etc.

(i) No development or redevelopment or engineering operationor additions/alterations, repairs, renovations including painting ofthe building, replacement of special features or plastering ordemolition of any part thereof of the said listed buildings or listedEprecincts or listed natural feature areas shall be allowed exceptwith the prior permission of Commissioner, MCD, ViceChairman DDA/Chairman NDMC. Before granting suchpermission, the agency concerned shall consult theHeritage Conservation Committee to be appointed by theGovernment and shall act in accordance with the advice ofFthe Heritage Conservation Committee.(ii) Provided that, before granting any permission for demolitionor major alterations/additions to listed buildings (or buildings withinlisted streets or precincts, or construction at any listed naturalfeatures, or alternation of boundaries of any listed natural feature

G360 “Heritage building” means and includes any building of one or more premises or anypart thereof and/or structure and/or artifact which requires conservation and/orpreservation for historical and/or environmental and/or architectural and/or artisanaryand/or aesthetic and/or cultural and /or environmental and /or ecological purpose andincludes such portion of land adjoining such building or part thereof as may berequired for fencing or covering or in any manner preserving the historical and/Hor architectural and/or aesthetic and/or cultural value of such building.

areas, objections and suggestions from the public shall be invitedand shall be considered by the Heritage Conservation Committee.

(emphasis supplied)

327. Clause 1.3 does not per se prohibit development/redevelopment/engineering operations/alterations /additions etc. of theheritage building/precincts. It stipulates that such development work canbe undertaken on listed heritage buildings/precincts, only after priorpermission of the specified authorities which would mandatorily consultand act in accordance with the advice tendered by the HCC. Clause1.16 is in line with clause 1.3 and states that “the regulations do notamount to any blanket prevention of demolition or of changes toHeritage Buildings.” The only requirement is to obtain prior permission/clearance from the relevant authorities from heritage point of view beforethe development work is actually commenced by the project proponent.Thus understood, heritage buildings/precincts are not ipso facto inviolablein law. The extent of permissible development on the listed heritagebuildings/sites is within the domain of HCC.

328. As per clause 1.12, the listed buildings/precincts may begraded into three categories – Grade I, II and III, and based on suchgrading, the scope of development over such spaces is to be determined.The extent of physical development is determinable on the basis of gradingof heritage buildings/precincts. For instance:

(i)No interventions be permitted either on exterior or interiorof the heritage building or natural features unless it isnecessary in the interest of strengthening and prolonging,the life of the buildings/or precincts or any part or featuresthereof. For this purpose, absolutely essential and minimumchanges would be allowed and they must be in conformitywith the original;

(ii)Internal changes and adaptive re-use may by and large beallowed but subject to strict scrutiny. Care would be takento ensure the conservation of all special aspects for whichit is included in Heritage Grade-II. In addition to the above,extension or additional building in the same plot or compoundcould in certain circumstances, be allowed provided thatthe extension/ additional building is in harmony with (and

does not detract from) the existing heritage building(s) orprecincts especially in terms of height and façade;

(iii)Internal changes and adaptive re-use may by and large beallowed. Changes an include extensions and additionalbuildings in the same plot or compound. However, anyBchanges should be such that they are in harmony with andshould be such that they do not detract from the existing

heritage building/precinct.

329. It is clear that restricted development to the extent of repairsand improvements is permissible even on Grade-I building. TheCrespondents have categorically submitted that none of the listed heritagestructures is being touched in violation of the aforesaid restrictions.Furthermore, it has been submitted that the proposed new building(Parliament building) falls outside the domain of HCC as it is situated ona separate plot (plot No. 118).

D330. However, in light of the meaning of expression “heritagebuilding”, as provided in 2016 Byelaws, the respondents were asked asto whether plot no. 118 would come within the expression “land adjoiningsuch building”, thereby making it liable for the same level of scrutiny asa Grade-I structure. The respondents maintain that plot no. 118 wouldfall outside the purview of HCC. That issue needs to be examined byEthe HCC in the first place. We need not answer the same in theseproceedings. If and when the project proponent seeks clarification/permission of HCC before commencing work on plot No. 118, the HCCis free to examine the same on its own merits by following procedureprescribed therefor.F331. Having stated the principles relating to the scope of permissible

F331. Having stated the principles relating to the scope of permissibledevelopment, we make it clear that we are neither delving further intothe question of development of new Parliament building, nor into thequestion of whether or not the interpretation of the expression “heritagebuilding” would take within its sweep plot no. 118 as well (being situatedon adjacent land). For, the 2016 Byelaws clearly state that the respondentsGare obliged to obtain “prior permission” of the Commissioner, MCD,Vice Chairman, DDA and Chairman, NDMC before development workcommences and the same may be sought (if already not done) as andwhen the project proponent decides to commence development workupon plot No. 118 for the new Parliament building. The HCC is free to

decide that proposal in accordance with law. We do not wish to dilate onthis aspect any further and leave all questions in that regard open.

332. For the completion of record, we note that prior “approval”or “permission” of HCC, as the case may be, becomes essential at twodifferent stages. As per clause 1.12 what is required is “prior approval”before processing the proposal for change of use of the listed heritagebuilding/listed precincts. Not for other buildings/sites. Whereas, “priorpermission” of the designated Authority is required to be obtained underclause 1.3 before the commencement of development/redevelopmentetc. work by the project proponents of the listed heritage buildings/listedprecincts including on lands adjoining thereto. The stages and purposeof each of these is distinct. The two do not overlap. In the present case,the former i.e., “prior approval” under clause 1.12 for change in landuse of the concerned listed buildings/listed precincts has been grantedby the HCC, as recorded in the form of minutes of the Authorityconcerned, referred to earlier. Thus, what is now needed is “priorpermission” of the designated Authority under clause 1.3 before thedevelopment/redevelopment etc. work by the project proponent iscommenced on the listed heritage buildings/precincts/natural feature areasincluding on plot No. 118 (for construction of new Parliament building)being land adjoining to Grade I listed heritage building, if already notobtained.

ENVIRONMENTAL CLEARANCE (EC)

333. We may now examine the validity of EC granted to theproposed Parliament project on plot no. 118 by MoEF. On thoroughperusal of the submissions and documents on record, the followingquestions emerge for our consideration in this part:

(i)Whether the respondents have acted in violation of 2006Notification and O.M. dated 24.12.2010 by not submittingthe entire Project i.e., Central Vista Project as conceivedby the Government of India, for EC at the same time?

(ii)Whether the applicant misdescribed/miscategorised theParliament project as Category B2 (Building & Construction)Gproject in item 8(a) as per the 2006 Notification so as toreduce the level of scrutiny?

(iii)Whether the grant of EC by MoEF and recommendationthereof by EAC stands vitiated on account of non-applicationof mind and failure to discharge their mandate as per law?

A334. We may begin this discussion by briefly examining the lawrelating to the requirement of EC under 2006 Notification. For the purposeof clearance, clause 4 of the Notification requires categorisation of theproject/activity either as category or category depending upon thespatial extent and potential impacts on human health, natural and manmaderesources. It states thus:B

“4. Categorization of projects and activities: -

(i) All projects and activities are broadly categorized in to twocategories – Category and Category B, based on the spatialextent of potential impacts and potential impacts on human healthCand natural and man made resources.

Clause 6 provides for the application of prior EC to be made bythe project proponent. Notably, this clause makes it clear that suchapplication must be made after identification of the prospective site forDthe project and before actual commencement of the construction activityor preparation of land. It states thus:

“6. Application for Prior Environmental Clearance (EC):-

An application seeking prior environmental clearance in all casesshall be made in the prescribed Form 1 annexed herewith andESupplementary Form 1A, if applicable, as given in Appendix II,after the identification of prospective site(s) for the project and/oractivities to which the application relates, before commencing anyconstruction activity, or preparation of land, at the site by theapplicant. The applicant shall furnish, along with the application, aFcopy of the pre-feasibility project report except that, in case ofconstruction projects or activities (item 8 of the Schedule) inaddition to Form 1 and the Supplementary Form 1A, copy of theconceptual plan shall be provided, instead of the pre-feasibilityreport.”

GAlong with the application in Form I and Form IA, pre-feasibilityreport is to be prepared and attached by the project proponent. However,in cases falling under item 8 of the schedule, instead of pre-feasibilityreport, conceptual plan is to be supplied along with Form I and FormIA. The petitioners had advanced an argument that the respondentsfailed to submit pre-feasibility report while making the application forH

clearance for construction of new Parliament building. The same is turneddown in light of the position of law as aforesaid.

335. While making application on 12.2.2020, the project proponenthad submitted three documents to the EAC, including the conceptualplan and no infirmity is found on this count. The application letter statesthus:

“… We are enclosing the following documents for your kindperusal.

1. Form 1 as per EIA Notification 2006.

2. Form 1 as per EIA Notification 2006 duly filled with allrequisite Annexure Drawings/Plans.

3. Conceptual Plan.”

336. After the submission of application, the scrutiny process goesthrough four broad stages as per clause 7. Notably, the clause makes itclear that all four stages may not be warranted in all projects and thesame would depend upon host of other factors as we shall see. Thefour stages are sequenced thus:

“I. Stage (1) – Screening:

In case of Category ‘B’ projects or activities, this stage will entailthe scrutiny of an application seeking prior environmental clearancemade in Form 1 by the concerned State level Expert AppraisalCommittee (SEAC) for determining whether or not the projector activity requires further environmental studies forpreparation of an Environmental Impact Assessment (EIA)for its appraisal prior to the grant of environmental clearancedepending up on the nature and location specificity of theproject. The projects requiring an Environmental ImpactAssessment report shall be termed Category ‘B1’ and remainingprojects shall be termed Category ‘B2’ and will not require anEnvironment Impact Assessment report. For categorization ofprojects into B1 or B2 except item 8 (b), the Ministry ofEnvironment and Forests shall issue appropriate guidelines fromtime to time.”

(emphasis supplied)

The underlying idea of this stage is to analyse the level of scrutinythat particular project ought to go through and whether further stages

Awould be attracted or not. At the stage of screening, the EAC decideswhether an impact assessment report is required for further appraisal orsuch appraisal would be permissible without an impact assessment report.It further makes it clear that once project is categorized as B2 projectafter screening stage, no Environment Impact Assessment Report[361]shall be required.BThereafter, the second stage of “Scoping” comes in, which isdefined as:

“II. Stage (2) – Scoping:

(i) “Scoping”: refers to the process by which the Expert AppraisalCCommittee in the case of Category ‘A’ projects or activities, andState level Expert Appraisal Committee in the case of Category‘B1’ projects or activities, including applications for expansion and/or modernization and/or change in product mix of existing projectsor activities, determine detailed and comprehensive Terms ofReference (TOR) addressing all relevant environmental concernsDfor the preparation of an Environment Impact Assessment (EIA)Report in respect of the project or activity for which priorenvironmental clearance is sought ...”

This definition then makes it clear that no scoping is mandated forprojects categorized as category B2 in item 8 of the Schedule and appraisalEof such projects shall take place on the basis of Form I and Form IA. Itis noted that:

“…All projects and activities listed as Category ‘B’ in Item 8 ofthe Schedule (Construction/Township/Commercial Complexes /Housing) shall not require Scoping and will be appraised on thebasis of Form 1/ Form 1A and the conceptual plan.”F

S.O. 996(E) dated 10.4.2015 published in the Gazette of Indiaalso makes it clear that projects falling under category against item

8(a) do not require scoping. The relevant extract thereof notes thus:

“Provided also that the following shall not require Scoping-

G(i) all projects and activities listed under Category ‘B’, againstItem 8(a) of the Schedule;

It further notes that the projects/activities referred in the aforesaidclause shall be appraised on the basis of Form I, Form IA and theconceptual plan thus:

“Provided also that-

(A) the project and activities referred to in clause (I) shall beappraised on the basis of Form I or Form IA and the conceptualplan;

The third stage is of public consultation which is defined as:

“III. Stage (3) – Public Consultation:

(i) “Public Consultation” refers to the process by which theconcerns of local affected persons and others who have plausiblestake in the environmental impacts of the project or activity areascertained with view to taking into account all the materialconcerns in the project or activity design as appropriate. AllCategory ‘A’ and Category B1 projects or activities shall undertakePublic Consultation, except the following: -

(d) all Building /Construction projects/Area Developmentprojects and Townships (item 8).(e) all Category ‘B2’ projects and activities.

(emphasis supplied)

337. Without doubt, there is no requirement of public consultationin category B2 projects and building or construction projects in item8(a). It is also made clear that such consultation, wherever required, isto cater to the concerns of locally affected persons and others who havea plausible stake in the environmental impacts of the project or activity.

338. The fourth and most prominent stage is of appraisal. This isthe stage of actual scrutiny of the proposal by the expert committee.The definition itself makes it clear that there is no uniform and unalterablestandard of scrutiny for all projects, irrespective of their expanse andnature. Appraisal is defined as:

A“IV. Stage (4) – Appraisal:

(i) Appraisal means the detailed scrutiny by the Expert AppraisalCommittee or State Level Expert Appraisal Committee of theapplication and other documents like the Final EIA report, outcomeof the public consultations including public hearing proceedings,Bsubmitted by the applicant to the regulatory authority concernedfor grant of environmental clearance. This appraisal shall be madeby Expert Appraisal Committee or State Level Expert AppraisalCommittee concerned in transparent manner in proceeding towhich the applicant shall be invited for furnishing necessaryclarifications in person or through an authorized representative.COn conclusion of this proceeding, the Expert Appraisal Committeeor State Level Expert Appraisal Committee concerned shall makecategorical recommendations to the regulatory authority concernedeither for grant of prior environmental clearance on stipulatedterms and conditions, or rejection of the application for priorDenvironmental clearance, together with reasons for the same.”

At the cost of repetition, albeit with the benefit of clarity on thelegal position, we note that clause (ii) reiterates the same legal positionas regards the material on the basis of which appraisal of category Bitem 8(a) projects (projects not requiring public consultation) is to beEdone. It is stated that:

“(ii) The appraisal of all projects or activities which are not requiredto undergo public consultation, or submit an Environment ImpactAssessment report, shall be carried out on the basis of theprescribed application Form 1 and Form 1A as applicable, anyother relevant validated information available and the site visitFwherever the same is considered as necessary by the ExpertAppraisal Committee or State Level Expert Appraisal Committeeconcerned.”

339. The aforesaid legal position makes it clear that both basis asGwell as level of scrutiny of proposal strictly depends upon thecategorization of project. The 2006 Notification draws clear balanceand does not prescribe equal level of scrutiny for all projects.

340. We may now examine the basis of categorization of projects/activities. The Schedule attached with the Notification incorporates a“List of Projects or Activities Requiring Prior Environmental Clearance”.H

Item 8 in category is divided into two sub-categories – item 8(a) titled“Building and Construction projects” and item 8(b) titled “townships andArea Development projects”. The distinction lies in the expanse of built-up area of the proposed project. The Schedule specifies that projectwith built-up area falling between 20,000 sq.m. and 1,50,000 sq.m. wouldbe categorized as building and construction project in item 8(a). Notably,the term “built-up area” is defined as:

“... the built up or covered area on all the floors put together,including its basement and other service areas, which are proposedin the building or construction projects.”

341. As per the Form I and Form IA submitted by the projectproponent and final EC, it is matter of record that plot no. 116 (whichhouses the existing Parliament building) has built-up area of 44,940sq.m. and proposed built-up area on plot no. 118 is 65,000 sq.m. Therefore,total built-up area covered in the proposed project is 1,04,740 sq.m. andas per the specification provided in 2006 Notification, the project is to becategorized as category project in item 8(a). In light of the legal positionenunciated above, the appraisal of this project is mandated on the basisof Form I and Form IA. Contrary to the petitioner’s argument, therequirements of scoping and public consultation are not warranted forthe subject project.

342. The petitioners have advanced an argument that therespondents resorted to foul play in misdescribing/miscategorising theproject by carving out the Parliament project from the Central VistaProject. However, on closer and comprehensive examination, we areof the view that the argument lacks merit. The argument draws supportfrom the fact that in tender for consultancy services and public noticedated 21.12.2019 inviting objections to change in land use, the respondentshad referred to the project as uniform whole.

343. Principally speaking, in matter of planning and developmentactivity, the Government has the sole prerogative to decide the nature,expanse and timeline of development work. The Government may chooseto begin the development of an entire region at once or do it in phasedmanner. We hasten to add that this prerogative of the Government issubject to due observance of rules, regulations and other procedures.The scrutiny of the Court is to ensure that the Government does nottransgress its boundaries in the task of governance. For the purpose ofinviting consultant and changing use of land involved in the project, it is

Aunderstandable, rather desirable, that the entire project is treated as one.It would be absurd to invite different consultants for different componentsof project, the very idea behind which is to ensure uniformity of designand efficiency. It would be never-ending spiral. The job of consultantherein was to present vision document for the whole project at once sothat the Government is in position to plan further course of action asBper the approved design. It could not have been expected to seek suchconsultancy services in piece-meal manner. Therefore, merely becausethe project was presented as cumulative one for the aforesaid purposes,it cannot be inferred that the Government intended or is legally obligedto treat it as such from the stage of conception to the stage of execution.C344. Be that as it may, once the Government has ensured that theproposed usage of land is in sync with the desired purposes as also theexisting usage and has finalized uniform vision of development, it wouldbe well within its domain of policy to timeline the project in phasedmanner for the purpose of actual execution. Such phasing may takeDplace on the basis of various factors, including but not limited to, thesource of financing for different components, purpose of differentcomponents, operational requirements, imminence of need includingowner or authorized user of land. Thus, relevant factor to be kept inmind is the factum of land ownership or control. In this case, the landinvolved in the Parliament project is under the control of Lok SabhaESecretariat and other plots involved in the common central secretariatproject are owned by L&DO, MoHUA. Furthermore, it is pertinent tonote that the Parliament project is being financed by the Lok SabhaSecretariat, whereas the remaining projects shall be financed by differentMinistries. Thus, the ownership of the structures would be in differentFentities, albeit being part of Government of India. Notably, the Parliamentproject is meant to serve different organ of the State i.e., Legislature,whereas the remaining projects are intended to cater to the needs ofExecutive in general and different departments of the Government ofIndia in particular. It is also matter of record that the timeline proposedfor the Parliament project culminates in 2022, whereas the remainingGprojects shall go on till 2026.

345. Apart from the aforesaid differences, we must note that thereis no similarity of design between the proposed Parliament complex andcentral secretariat. From an operational point of view as well, the twoprojects have separate operational concerns and are not dependent uponH

each other for any purpose. The functioning of the Parliament is not inany way dependent upon the availability of new central secretariat. TheParliament functions at limited intervals during the year, whereas theoffices of central ministries continue their functioning throughout theyear and therefore, the footprint and utility of both these projects aredistinct.

346. It would not be out of place to note that even change ofpolicy is well recognized as function integral to governance. In Col.A.S. Sangwan v. Union of India & Ors.[362], the Court rightly noted thepossibility of changes in policy matters and noted thus:

“4. ...A policy once formulated is not good for ever; it isperfectly within the competence of the Union of India tochange it, rechange it, adjust it and readjust it according tothe compulsions of circumstances and imperatives ofnational considerations. We cannot, as Court, give directivesas to how the Defence Ministry should function except to statethat the obligation not to act arbitrarily and to treat employeesequally is binding on the Union of India because itfunctions under the Constitution and not over it. In this view, weagree with the submission of the Union of India that there is nobar to its changing the policy formulated in 1964 if there are goodand weighty reasons for doing so. We are far from suggestingthat new policy should be made merely because of the lapse oftime, nor are we inclined to suggest the manner in which such apolicy should be shaped. It is entirely within the reasonablediscretion of the Union of India. It may stick to the earlier policyor give it up. But one imperative of the Constitution implicit in Art.14 is that if it does change its policy, it must do so fairly and shouldnot give the impression that it is acting by any ulterior criteria orarbitrarily. …”

(emphasis supplied)

In Secretary, Ministry of Chemicals and Fertilizers,Government of India v. Cipla Ltd. & Ors.[363], the Court expoundedthe correct approach to deal with policy documents in judicial reviewand noted thus:

362 1980 Supp. SCC 559363 (2003) 7 SCC 1

538SUPREME COURT REPORTS

A“4.1. It is axiomatic that the contents of policy documentcannot be read and interpreted as statutory provisions. Toomuch of legalism cannot be imported in understanding thescope and meaning of the clauses contained in policyformulations. At the same time, the Central Government whichcombines the dual role of policy-maker and the delegate ofBlegislative power, cannot at its sweet will and pleasure give go-by to the policy guidelines evolved by itself in the matter of selectionof drugs for price control. The Government itself stressed on theneed to evolve and adopt transparent criteria to be applied acrossthe board so as to minimize the scope for subjective approach andCtherefore came forward with specific criteria. It is nobody’s casethat for any good reasons, the policy or norms have been changedor have become impracticable of compliance. That being the case,the Government exercising its delegated legislative power shouldmake real and earnest attempt to apply the criteria laid down byitself. The delegated legislation that follows the policy formulationDshould be broadly and substantially in conformity with that policy,otherwise it would be vulnerable to attack on the ground ofarbitrariness resulting in violation of Article 14.”

(emphasis supplied)

E347. In Sooraram Pratap Reddy & Ors. v. District Collector,Ranga Reddy Distt. & Ors.[364],the Court has categorically noted thatthe determination of what is mandated for public purpose is domain ofthe government and until and unless such decision is found to be ultravires statute or irrational or unreasonable or vitiated by fraud, there isno occasion for the courts to interfere. In Sooraram Pratap Reddy[365],Fthe Court noted the dynamic nature of public purpose thus:

“108. … It was also observed: (Motibhai case AIR, 1961 Guj93 AIR p. 104, para 43)

“43. Public purpose is not constant. The scope of anGexpression which conjugates general interest of the publicmust necessarily depend inter alia on social and economicneeds and broad interpretation of the democratic ideal. Itmust alter as social and economic conditions alter. The socialand economic theorist may contend for an extremely wide

364 (2008) 9 SCC 552H365 (supra at 363)

application of this concept of public purpose and overemphasisethe element of the general interest of the public. The reactionaryon the other hand may strive for stringent restraints on its shiftingboundaries and oppose any shift in emphasis. The true rule of thematter would seem to lie midway. The Court will not attach toomuch weight to the apparent character of the activity or agencybut would prefer to lean in favour of an application of the rulewhich has regard to the substance of the matter and embracesactivities, engagements and operations which would serve thecommon good as being affected with public interest. Theapplication of the rule must rest on the modern economic systemof welfare State having its own requirements and problems.The application of the rule would not be governed by rightdistinctions nor would the economic principle be allowed tobe blurred by the blending of forms and interests.” …..”

(emphasis supplied)

348. It is true that the 2006 Notification prescribes for cumulativeimpact assessment. We are in agreement with the proposition that thebasic purpose of an environmental impact assessment is to determineand mitigate the cumulative impact of project - if the project proponentintends to commence development together or within reasonable timespace. However, the meaning of the expression “cumulative impact/effect’ is not to be understood as an expression of art. It does not shunsegregating an independent project. In an examination of this nature, theforemost requirement is to identify the precise expanse of project. Forthis purpose, the first source is the information supplied by the projectproponent in Form I as it expressly requires information on any interlinkedprojects. Upon the receipt of that information, it falls upon the EAC tocheck and scrutinize whether there is more to the project which hasbeen left out of its scrutiny. This latter scrutiny is dependent upon thenature of the project as it would involve collective consideration of alloperational aspects of project. It does not mean connecting independentprojects upon subjective notion that it is necessary to do so for collectiveappraisal merely because such projects fall in the same region. Theword ‘cumulative’ is to be read in conjunction with the word ‘project’and idea behind examination of cumulative impact is to assess the impactof the project including all its functional components, and not of alldevelopment activities going on in region.

A349. In the light of 2006 Notification read with Office Memorandumdated 7.10.2014 issued by MoEF, it is settled that environmental clearanceis always site specific and is required to be obtained only before theactual commencement of work on the project and not before that. Thus,there is no sound basis for the argument that the Central Secretariatproject must be assessed with the Parliament project. For, the stage ofBcommencement of work in respect of the former Project has not reachedyet and indisputably the same will be on different site altogether.

350. Once the project proponent frames conscious timeline ofcompletion of various projects which broadly fall under the umbrella of acommon vision for the region, the same cannot be disturbed on the notionCthat the whole vision should go through the regulatory compliances atonce. That would defeat the whole purpose of advance planning of adevelopment activity. Planning involves in-depth consideration of widerange of concerns including regulatory requirements. The decision toattribute different timelines and purposes to different projects is domainDof planning and the Court cannot readily attribute the label of mala fidesto such informed decision until and unless there is clear attempt toevade the requirements of law. Noticeably, the Parliament projectinvolves two components – renovation of existing building and constructionof new building on adjacent plot – and both these components have beensubmitted for collective assessment by the project proponent. If theseEcomponents would have been separated and submitted for clearance ina piece-meal manner, it would have been case of “cake-slicing” theproject. For, these two components are functionally and intrinsicallyconnected and must be considered cumulatively.351. The petitioners’ reliance upon O.M. dated 24.12.2010 titledF“Consideration of Integrated and Inter-linked projects – ProcedureRegarding” is misplaced. The real purport of this O.M. is to ensure thatprojects which entail multi-sectoral components are not dissected by theproject proponent in sectoral manner, thereby rendering the EACincapable of assessing the multi-dimensional aspects of project. TheGfirst and foremost requirement for the applicability of this O.M. is thatthe subject project should involve multi-sectoral components. The caseon hand does not involve multi-sectoral components to it as it is asimpliciter construction project. If project does not involve multi-sectoralcomponents, there is no occasion for the EAC to examine this aspect.The words “integrated” and “inter-linked” offer guidance on this count.H

Any two activities/projects could be said to be integrated or inter-linkedwhen they are functionally connected in the manner that operability ofone is intrinsically dependent on the operability of another. It is scientificand functional connection, not hypothetical or theoretical connection.The above discussion on cumulative impact supplements this position. InDictionary of Environment & Ecology[366], the approach of integratedpollution control is defined as one which takes into account all inputs andoutputs from “a process”. It signifies that the strategy ought to be toregulate and monitor the effects of the process in question and the processwhich is “actually going on”. For, the real concern must be to regulatean ongoing process by mitigating its effects, if any, and not to anticipateeffects of those processes which are not ongoing at the moment but aremerely future processes. Such cannot be the import of cumulativeassessment. It reads thus:

“Integrated pollution control, integrated pollutionprevention and control.

an approach which looks at all inputs and outputs from aprocess that is likely to cause pollution and regulates other factorsas well as emissions.”

(emphasis supplied)

In Dictionary of Architecture and Construction[367], theexpression “building system” is defined thus:

“Building system.

2. An assembly of integrated building subsystems satisfyingthe functional requirements of building.”

(emphasis supplied)

The aforesaid definition provides that functionality is the coreelement in deciding what comprises of building system. Thus, differentcomponents which are not only separated by area but also do not dependupon each other for functional needs cannot be treated as part of onebuilding system. This is corroborative of the legal position exposited abovein the discussion.

366 Dictionary of Environment & Ecology, Bloomsbury, P.H. Collin, 5th Edn., page 116367 Dictionary of Architecture and Construction, McGraw-Hill, Cyril M. Harris, 4thedn, page 150

A352. Irrefutably, any exposition on what could amount to anintegrated project, thereby calling for cumulative assessment, has tobe done with circumspection. For, the 2006 Notification would applyequally to other public projects including private projects without variationin the legal standard. The question here is whether common builder/developer undertaking construction work on ten different plots totallingBupto thousand acres scattered in different areas of region/state/countryand not adjoining or contiguous could be subjected to the rigours ofcumulative assessment equivalent to an integrated project merely becausethe total area across which the projects are spread, when added up,turns out to be beyond permissible limits warranting such assessment.CThat is not the dispensation prescribed by law as of now. In ourconsidered opinion, this interpretation would be counter-productive tothe very idea of sustainable development. To be considered as integrated,the plots must involve multi-sectoral components in close proximity ifnot contiguous and fulfil other specifications under the notification.D353. The tenor of the 2006 Notification shows that the grant ofenvironmental clearance is project as well as owner/builder specific.Appendix I attached with the notification contains the format of Form I.The terminology used in the format includes expressions such as “Nameof the Project/s”, “Name of the applicant”, “Designation (Owner/Partner/CEO), “Address”, “Location, Plot/Survey/Khasra No.” etc. which revealEthat the application for grant of clearance initiates from the owner of thesubject land and is site-specific exercise. Merely because the proponent(Central Public Works Department – CPWD) undertakes multipleindependent projects/activities of similar type, that by itself cannot bethe basis to assess the category applicable for the purpose of theFnotification under consideration. Furthermore, item 8 in the Scheduleattached with the 2006 Notification providing for “List of Projects orActivities Requiring Prior Environmental Clearance” provides thatenvironmental clearance is warranted only when the built-up area (project-specific) is equal to or exceeds 20,000 sq.m. Thus, if the built-up area ofa particular owner does not exceed the aforesaid minimum threshold,Gthere would be no occasion for such owner to apply for any clearance.This ought to be even if the common builder engaged by such owner isworking on other projects in the same region. That would not ipso factosubject the owner to the 2006 Notification.

354. As discussed above, the factum of land ownership is equallyHpertinent in such enquiry. If ownership or control over the land to be

developed vests in different entities, then merely because the commonbuilder (CPWD) is developing different projects, cannot be assessed asa uniform or as an integrated/interlocked project. It would be anomalousto press different owners for collective environmental appraisal (ofhigher standard) merely due to location of their sites in close proximitydespite the fact that development thereof is yet to commence and do notinvolve multi-sectoral components.

355. Furthermore, it is relevant to note that the 2006 Notificationis not toothless in the face of misinformation in Form I. Clause 8 of the2006 Notification, in clause (vi), provides for appropriate recourse incase any information in Form I is found to be false and misleading(including information relating to interlinked projects). It states thus:

“8. Grant or Rejection of Prior Environment Clearance(EC):

(vi) Deliberate concealment and/or submission of false ormisleading information or data which is material to screening orscoping or appraisal or decision on the application shall make theapplication liable for rejection, and cancellation of priorenvironmental clearance granted on that basis. Rejection of anapplication or cancellation of prior environmental clearancealready granted, on such ground, shall be decided by the regulatoryauthority, after giving personal hearing to the applicant, andfollowing the principles of natural justice.”

We find merits in the plea taken by the respondents that theParliament project cannot be regarded as inter-linked or inter-dependentwith the central secretariat project. The differences relating tofunctionality, budgeting, timelines and purpose are glaring and substantial.

356. Notably, the argument of the petitioners alleging fraud insegregation of the project is also devoid of merit. For, it completely blursthe line between conscious policy decision to separate the developmentproject need-based and concealment, misrepresentation or fraud. Fraudstands on the foundation of fraudulent mental intent and culling outthat specific intent is pre-requisite for establishing the ground of fraudin court of law. The petitioners’ argument of fraud lacks judicialsustainable basis.

A357. The information supplied by the proponent in Form I is thepivot around which our examination revolves. The form has suppliedinformation on various aspects, as required. We may now advert tocertain specific aspects for the purpose of this examination:

(i)Change in land use, land cover and topography – It isBinformed that land use is being changed from recreationaluse to Government use/Parliament.

(ii)Clearance of existing land, vegetation and buildings– It is informed that there are 250 trees on plot no. 116 and326 trees on plot no. 118. The trees on plot no. 116 are notbeing touched in the process, however, 194 trees out of 250Ctrees on plot no. 118 are proposed to be translocated forclearing the space for the new structure. It is furtherinformed that 250 new trees are proposed to be planted inplot no. 118.

(iii)Pre-construction investigations – it is informed that pre-Dconstruction investigations have been done.

(iv)Temporary sites to be used during construction andhousing of workers – it is informed that around 3200workers are to be engaged for the construction activity andthey will be housed in earmarked camps.

E(v)Earthworks - It is informed that the project involvesearthworks for which cut and fill shall be done, and additionalearthwork shall be utilized for Government constructionprojects in NCT and nearby areas.

(vi)Facilities for storage of goods or materials – It isFinformed that provisions have been made for separatewarehouses and storage spaces.

(vii) Treatment/disposal of solid waste or liquid effluents– It is submitted that the project will generate solid wasteboth during construction as well as operational phase. Acomprehensive plan has been prepared for the disposal ofGsaid waste. During the construction phase, “Constructionand Demolition (C&D) Waste” management plan has beenmade which primarily covers:

(a)Proper collection to avoid spillage, nuisance, trafficcongestion, choking of drains and covering of storageHspaces.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY &545ORS. [A. M. KHANWILKAR, J.](b)Segregation of generated waste into concrete, soil,Asteel, wood, plastic, bricks and mortar.

(c)Re-use and recycling at C&D waste managementfacility.

It is further informed that for the management of municipalsolid waste, different approach has been devised which includes:

(a)Segregation of municipal solid waste into bio-degradable, non-bio-degradable, hazardous waste andgarden waste, and supplying this waste to authorizedpersonnel as per NDMC norms.

(b)Organic wastes to be composted through an in-housemechanism.

During the operational phase, it is informed that waste wouldbe generated in the same manner as in the construction phaseand estimates state that maximum solid waste generation couldbe 4826.35 kg per day including the waste generation duringParliament session.

(viii) Wastewater generation – It is informed that wastewatergeneration shall take place both during construction phaseand operational phase. The management approach regardingboth these phases is provided thus:

“Construction Phase

During construction phase, liquid effluents will becollected, stored, treated in wastewater/sewagetreatment plant and re-used for either gardening,construction related needs such as curing or flushing orsprinkling as per the guidance of the Delhi PollutionControl Committee after securing necessary Consents.

Operation Phase

It is estimated that ~438 KLD of wastewater will begenerated from the project (including the existing andproposed parliament buildings) during operation phase,which will be treated in wastewater/sewage treatmentplant to comply with the requirements of the Consent toOperate issued by the Delhi Pollution Control Committee

(DPCC). Thereafter, the water will be re-used forflushing (a dual plumbing system will be installed in thenew building) or in the Heating, Ventilation and Air-conditioning (HVAC) systems.”

(ix)Increase in traffic – It is informed that road traffic willBincrease during the construction phase and of visitors duringthe operational phase.

(x)Dismantling of existing structures – It is informed thatexisting structures on plot no. 118 (proposed land for newParliament House) will be dismantled.

(xi)Influx of population (temporarily or permanently) – Itis informed that 3200 workers would be engaged duringthe construction phase and during the operational phase,approximately 9500 people (inclusive of 4500 permanentemployees and 5000 temporary staff/visitors) would beDpresent at the site.

(xii) Water management and source of water – It is informedthat water management plan has been devised forconstruction phase and operational phase. During theconstruction phase, 180 KLD water will be required whichEwill be generated through recycling of available sewagewaste water and other sources. Additionally, 45 KLD ofwater will be outsourced from NDMC supply for domesticusage. For the operational phase, water management isprepared for both existing and proposed project.

(xiii) Involvement of hazardous substances – It is informedFthat there shall be no storage of hazardous substances exceptdiesel for operational needs.

(xiv) Hazardous wastes – It is informed that hazardous wastesgenerated during the project shall be dealt in accordancewith Hazardous and Other wastes (Management andGTransboundary Movement) Rules, 2016 and handling, storing,recycling, transporting, disposal shall be in accordance withthe orders/approvals from DPCC.

(xv) Emissions – It is expected that fugitive emissions fromhandling, loading, unloading shall be released during theH

construction phase. To minimize such emissions, theAfollowing steps are proposed:

(a)loading/unloading to be done under covered area;

(b)proper barricading to reduce offsite dust generation;

(c)transportation of material to be done under coveredBmeans of transport;

(xvi) Dust/odours – To prevent emergence of dust and foulodour, it is proposed that comprehensive plan shall bemade to be operative in construction phase and operationalphase. During the construction phase, the following stepsare proposed:

(a)water sprinkling for dust suppression;

(b)mobile/temporary toilets;

(c)temporary solid waste storage on the site;

For the operational phase, it is informed that owing tolandscaped nature of the site, there will be minimum dustgeneration including that from vehicular emissions.

(xvii) Deposition of pollutants – It is informed that there willbe some dry deposition due to air emissions near theproposed site and special care will be taken during theconstruction phase to prevent the same.

358. In Form I-A, the project proponent has submitted detailedchecklist of environmental impacts on land environment, water supply,waste handling, water environment, fauna, air environment, socio-economic impacts, energy conservation. Furthermore, an elaborateEnvironment Management Plan[368] has also been submitted. The EMP isprepared in phased manner to take care of myriad set of concernsanticipated during the construction phase and operational phase. Thepurpose of EMP is noted in the following terms:

“Purpose of EMP

The environment management plan is prepared with view tofacilitate effective environmental management of the project, ingeneral and implementation of the mitigation measures in particular.

548SUPREME COURT REPORTS

AThe EMP provides delivery mechanism to address potentialadverse impacts and to introduce standards of good practice tobe adopted for all project works. For each stage of the programme,the EMP lists all the requirements to ensure effective mitigationof every potential biophysical and socio-economic impact. Foreach impact or operation, which could otherwise give rise toBimpact the following information is presented:

•A comprehensive listing of the mitigation measures (actions)that the project proponent will implement;

•The parameters that will be monitored to ensure effectiveCimplementation of the action;

•The timing for implementation of the action to ensure thatthe objectives of mitigation are fully met.”

The EMP is produced hereinbefore for better appraisal: -

DTable 1: Environmental Management Plan

ABCDEFGH

550SUPREME COURT REPORTS[2021] 15 S.C.R.ABCDEFGH

ABCDEFGH

ABC

359. The EAC (Infra-2), in its 49[th] Meeting on 25-26.2.2020,considered the application for grant of EC. The minutes of the meetingDreflect that the committee took note of various aspects of the projectincluding need of the project, present use, preservation and expansion ofgreen spaces and measures to reduce environmental impact duringconstruction phase. The committee also noted that large number ofrepresentations have been received whereby various objections haveEbeen raised on the project. Upon deliberation, EAC found the applicationto have inadequate information and returned the same noting thus:

“… The EAC deliberated upon the proposal and noted that theproject will provide larger parliament building for the nation forbetter functioning of the legislature. Additionally, the project willFalso provide short term and long term employment opportunities.The proposed project will also make positive contribution tosocial infrastructure and overall development of the region. Theremay be some environmental impacts (e.g. on soil, ambient noiselevels, traffic, etc.) which can be mitigated by taking preventivemeasures during operation. The EAC also took note of the issuesGraised in the representation(s) and response given by the projectproponent in its submission and conceptual plan and EnvironmentManagement Plan submitted. The Committee after detaileddeliberation asked the project proponent to submit the followingfor further deliberation:

ORS. [A. M. KHANWILKAR, J.]

(i) Revised Form-1/1-A along with details of total built-up areaproposed for expansion.

(ii) Scope of renovation of existing Parliament Building.

(iii) Status of Court Case(s) pending in Courts/Tribunals relatedto the project.

(iv) Traffic Management Plan.

(v) Point wise reply to the representations received.

(vi) Updated Master Plan of Delhi showing land-use of plot no.118.

The proposal thus stood deferred.

360. The requisite documents were supplied by the projectproponent to EAC along with modified Form I/I-A. detailed conceptualplan titled “Conceptual Plan for Environmental Clearance of Expansionand Renovation of Existing Parliament Building” was also prepared andsubmitted by the proponent for appraisal by EAC. The conceptual planconsists of details on various environmental aspects which can besummarized thus:

(i)Environmental sensitivity;

(ii)Connectivity with national highways, railway stations,airports and state boundaries;

(iii)Project cost;

(iv)Project details covering information relating to plot area,built-up area, permissible ground coverage, proposed groundcoverage, proposed construction area, area to bedemolished, power requirements, fresh water requirements,waste water generation, number of trees to be translocatedFand number of trees to be planted.;

(v)Population density;

(vi)Complete layout of sewage treatment plant;

(vii)Storm water drainage system;

(viii) Flow charts for solid waste management and compostingsystems;

(ix)Power backup, firefighting system and landscaping.

361. To assuage the concerns relating to traffic management, acomprehensive “Traffic Circulation & Management Plan for New

AParliament Building” has been released. The preamble of the plan readsthus:

“1.1PREAMBLE

Traffic circulation and management plan is the outcome ofBproposed redevelopment of Parliament in Central Vista addressingroad blockage issue during movement of President of India, PM& VIPs. With the new proposed Parliament building, internalcirculation of vehicular traffic for self-driven cars, pickup anddrop-off locations for VIPs needs to be addressed in regards withCefficient vehicular access & circulation with associated securitymeasures. Construction activity for proposed redevelopment ofCentral Vista includes large number of movements of constructionmachinery & equipment. With consideration of constructionphasing, hindrance to traffic and road restriction on movement ofheavy vehicles during day time, provision of temporary roadDconstruction and work zone planning shall be decided.

362. Furthermore, copy of representations received by theproject proponent along with point-wise replies was placed before theEAC. Mr. Ashwani Mittal, Executive Engineer, CPWD submitted aEcomprehensive chart on “Key Issues Pertaining to Project, PollutionSources, Assessment Methods and Mitigation/Management Suggested”.The chart lays down possible concerns and planned mitigation/management measures on ten functional areas of the project, namely -

a.Air Pollution;

b.Noise Pollution;

c.Water;

d.Solid Waste (mainly municipal);

e.Risk Assessment;

f.Ecology and biodiversity;

g.Land use;

h.Socio-economic impacts;

i.Hydrogeology and Geology;

j.Soil Conservation.

The same are reproduced for better appraisal: -

KEY ISSUES PERTAINING TO PROJECT,POLLUTION SOURCES, ASSESSMENT METHODS ANDMITIGATION/MANAGEMENT SUGGESTED

FGH

ABCDEFGH

[2021] 15 S.C.R.

363. The revised application along with the aforesaid details anddocuments was reconsidered by the EAC in its 50[th] Meeting on 22-24.4.2020. The committee considered the relevant information on recordand considered the application in light of the representations/objectionsreceived. The committee noted that more representations have beenreceived ahead of the 50[th] meeting and considered the same duringappraisal. The committee then took into account the information on recordand mitigation measures, wherever applicable, and recommended theproject for grant of EC, with fifteen specific conditions. We may nowanalyse the conditions: -

I. For operationalizing the project, the committee recommendedthat Consent to Operate be obtained thus:

“(ii) Consent to Establish/Operate for the project shall beobtained from the Delhi Pollution Control Committee as requiredunder the Air (Prevention and Control of Pollution) Act, 1981and the Water (Prevention and Control of Pollution) Act, 1974.”

II. To ensure adequate fire safety measures, the committeerecommended to install proper measures and equipment inaccordance with National Building Code and noted thus:

“(iii) The project proponent shall provide for adequate fire safetymeasures and equipment as per National Building Code/required by Fire Service Act of the State and instructions issuedby the local Authority/Directorate of fire, from time to time.Further, the project proponent shall take necessary permission/NOC regarding fire safety from Competent Authority asrequired.”

III. The committee put cap on the fresh water requirement andstated that the Consent to Operate shall not be granted beforerequisite permissions relating to water requirements have beenobtained. It recommended thus:

“(v) As proposed, fresh water requirement from NDMC shallnot exceed 210 KLD. Consent to Operate (CTO)/OccupancyCertificate shall be issued only after getting necessarypermission for required water supply from NDMC/concernedauthority.”

IV. As regards sewage treatment, the committee recommendedthe use of Membrane Bioreactor (MBR) technology for sewage

treatment. It further recommended that treated effluent be re-used for flushing and HVAC Cooling thus:

“(vi) Sewage shall be treated in the STP based on MBRTechnology with tertiary treatment i.e. Ultra-Filtration. Thetreated effluent from STP shall be recycled/re-used for flushingand HVAC cooling. As proposed, no treated water shall bedischarge to Municipal drain.”

V. The committee further recommended monitoring plan forcontinuous monitoring of the proper use of treated waste water.It recommended thus:

“(vii) The project proponents would devise monitoring planto the satisfaction of the State Pollution Control Board so as tocontinuously monitor the treated waste water being used forflushing in terms of faecal coliforms and other pathogenicbacteria.”

VI. The committee recommended that for proper implementationof conditions relating to quality and quantity of recycled wastewater, third-party study may be commissioned and stated thus:

“(viii) The project proponents would commission third partystudy on the implementation of conditions related to qualityand quantity of recycle and reuse of treated water, efficiencyof treatment systems, quality of treated water being suppliedfor flushing (specially the bacterial counts), comparativebacteriological studies from toilet seats using recycled treatedwaters and fresh waters for flushing, and quality of water beingsupplied through spray faucets attached to toilet seats.”

VII. The committee suggested compliance with rainwaterharvesting laws and recommended thus:

“(ix) The local bye-law provisions on rain water harvestingshould be followed. If local byelaw provision is not available,adequate provision for storage and recharge should be followedas per the Ministry of Urban Development Model BuildingByelaws, 2016. As proposed, one rain water harvesting tankshall be provided for rain water harvesting after filtration asper CGWB guidelines.”

VIII. The committee recommended separate treatment for wetand dry waste and earmarking of adequate area for solid wastemanagement within the premises. The recommendation reads thus:

“(x) Separate bins for dry and wet waste must be provided ineach unit and at appropriate places for facilitating segregationof waste. Solid waste shall be segregated and managed as perthe rules notified under the E.P. Act, 1986. Wet garbage shall

be composted in Organic Waste Converter. Adequate area shallbe provided for solid waste management within the premiseswhich will include area for segregation, composting. The inertwaste from project will be sent to dumping site.”

IX. The committee then recommended proper storage and disposalof demolition debris in accordance with Construction andDemolition Waste Management Rules 2016. The committee thengave pin-pointed recommendations regarding solid waste disposaland we reproduce the same for their sheer importance:

“a) The project proponent shall prima-facie be responsible forcollection, segregation of concrete, soil and others and storageof construction and demolition waste generated, as directed ornotified by the concerned local authority in consonance withthese rules.

b) The project proponent shall ensure that other waste (suchas solid waste) does not get mixed with this waste and is storedand disposed separately.

c) The project proponent if generate more than 20 tons ormore in one day or 300 tons in month shall segregate thewaste into four streams such as concrete, soil, steel, wood andplastics, bricks and mortar and shall submit waste managementplan and get appropriate approvals from the local authoritybefore starting construction or demolition or re-modelling workand keep the concerned authorities informed regarding therelevant activities from the planning stage to the implementationstage and this should be on project to project basis.

d) The project proponent shall keep the construction anddemolition waste within the premise or get the waste depositedat collection centre so made by the local body or handover it tothe authorized processing facilities of construction and

demolition waste; and ensure that there is no littering ordeposition of construction and demolition waste so as to preventobstruction to the traffic or the public or drains.

e) The project proponent shall pay relevant charges forcollection, transportation, processing and disposal as notifiedby the concerned authorities. The project proponent if generatemore than 20 tons or more in one day or 300 tons in monthshall have to pay for the processing and disposal of constructionand demolition waste generated, apart from the payment forstorage, collection and transportation as per the rate fixed bythe concerned local authority or any other authority designatedby the State Government.”

X. The committee then recommended that along with the currenttraffic management plan, detailed traffic decongestion plan beprepared on the basis of cumulative impact of all developmentand increased habitation consequent thereto. It noted that:

“(xii) Traffic Management Plan as submitted shall beimplemented in letter and spirit. Further, detailed trafficmanagement and traffic decongestion plan shall be drawn upto ensure that the current level of service of the roads within 5kms radius of the project is maintained and improved uponafter the implementation of the project. This plan should bebased on cumulative impact of all development and increasedhabitation being carried out or proposed to be carried out bythe project or other agencies in this 5 Kms radius of the site indifferent scenarios of space and time. Traffic managementplan shall be duly validated and certified by the State UrbanDevelopment department or competent authority for roadaugmentation and shall also have their consent to theimplementation of components of the plan which involve theparticipation of these departments.”XI. The committee then considered the aspect of cutting of treesand noted that such action may be taken only where it is absolutelynecessary, that too after prior permission from the Tree Authorityconstituted as per the Delhi Preservation of trees Act, 1994. itnoted that:

“(xiii) As committed by the proponent, there shall be nocutting of trees. Where absolutely necessary, tree

transplantation shall be carried out with prior permissionfrom the Tree Authority constituted as per the DelhiPreservation of Trees Act, 1994 (Delhi Act No. 11 of1994). Old trees should be retained based on girth andage regulations and as prescribed by the Delhi ForestDepartment. In case of non-survival of any transplantedtree, compensatory plantation in the ratio of 1:10 (i.e.planting of 10 trees for every one tree) shall be doneand maintained.”

(emphasis supplied)

XII. The committee then recommended that landscape planningshould involve plantation of native species and water intensivespecies may not be used for landscaping. It noted thus:

“(xiv) minimum of 1 tree for every 80 sqm of land shouldbe planted and maintained. The existing trees will becounted for this purpose. The landscape planning shouldinclude plantation of native species. The species withheavy foliage, broad leaves and wide canopy cover aredesirable. Water intensive and/or invasive speciesshould not be used for landscaping. As proposed, 4,500sqm area shall be provided under landscaping inproposed parliament building in addition to existing greenarea of 16,136 sqm in existing building.”

(emphasis supplied)

364. Upon close scrutiny of the information supplied in Form Iand I-A, documents supplied by the project proponent and appraisal madeby the EAC, we are of the view that the grant of EC is in conformitywith the mandate of the competent authority and is just and proper. Theproject proponent has undertaken various expert studies to prepare acomprehensive traffic management plan, solid waste management plan,water management plan and waste disposal plan. There is ampleinformation on record to show that the project proponent has adequatelyaddressed various facets of the project including source of water, disposalof water, generation of concrete, disposal of concrete, power availability,concerns relating to landscape etc. and the petitioners have outrightlyfailed to substantiate their apprehensions by placing material on recordto the contrary.

A365. As regards the transplantation of trees, wherever imminent,the committee has rightly noted that any such action must be taken afterprior permission from the statutory authority under the 1994 Act.Understandably, the exercise of transplantation is to be carried out strictlyin circumstances when the project cannot be carried forward in its actualform unless the trees are relocated. In environmental jurisprudence, theBuppermost consideration is to secure the vision of sustainabledevelopment. The existence of an expert statutory authority to regulatethis phenomenon is legal safeguard to ensure that harmony is maintainedbetween need for beneficial development in public interest and protectionof trees - the guardians of our lungs. No decision of the competentCauthority under the 1994 Act is put in issue before us. We, therefore,need not dilate on this aspect any further.

366. The minutes of the two meetings of EAC are self-explanatoryand reveal due application of mind, in light of the principles relating toapplication of mind enunciated above. We do not wish to repeat theDsame to avoid prolixity. EAC is an expert body and it is amply clear thatit has been made aware of all relevant information relating to the projectand it has applied its mind to the proposal. Even on settled principles ofjudicial review, it is clear that relevant material has been considered bythe committee and no reliance has been pointed out on any irrelevantmaterial. The specific recommendations given by the committee doEindicate that the committee was aware of the need for precautionarymeasures in environmental matters and accordingly, it suggestedrequirement of further permissions on certain counts.

367. Once an expert committee has duly applied its mind to anapplication for EC, any challenge to its decision has to be based onFconcrete material which reveals total absence of mind. Absent thatmaterial, due deference must be shown to the decisions of experts. Thefacts of the case do not reveal any deliberate concealment of fact/information from the EAC or supply of any misinformation. Thepetitioners’ extensive reliance upon Hanuman Laxman Aroskar[369] isGmisdirected and will not be of any avail in advancing their cause. We arein complete agreement with the dictum that full and correct disclosureand highest level of transparency are warranted in any application forEC. However, the present case is fundamentally different. The landscapeof this project does not involve greenfield component surrounded by

forests and significant wildlife. It does not involve complete non-applicationof mind regarding crucial aspect of the project, such as EcologicallySensitive Zones. The entire basis of scrutiny and appraisal in HanumanLaxman Aroskar[370] was different. For, it involved project whichmandated compliance with all four stages of EC i.e., screening, scoping,public consultation and appraisal. Whereas, the present project, as alreadydiscussed above, is not subject to scoping procedure. In HanumanLaxman Aroskar[371], various details in Form I/I-A were left blank,information regarding trees was actively concealed and absence ofreasons coupled with cursory analysis of the application raised substantialconcerns of non-application of mind. The fact situation in that case wasenough for shaking the judicial conscience and invocation of powers ofreview.

368. The petitioners have urged that the respondents havedeliberately kept the Parliament annexe building and library out of thetotal built-up area so as to reduce the scrutiny level. Upon examination,we note that this argument is also devoid of substance. We note at thevery outset the respondents’ submission that the aforesaid structuresare not part of the proposal. In Written Submissions – Part I, it isstated in clear terms that no work is proposed with respect to the saidbuildings (Parliament annexe and Library). The submission in para 9reads thus:

“9. The aforesaid 44940 sq.m. + 5200 sq.m. do not contain orinclude “Annexe building”, which is not being touched. copy ofthe map showing the existing parliament building and the proposedparliament complex [Plot No. 118] is enclosed for ready reference.”

The petitioners’ argument, therefore, overlooks the factual positionstated by the respondents and stands rejected. As noted above, therequirement of obtaining prior environmental clearance is site-specificexercise. The objective is to prevent any adverse impact by the proposedactivity. Thus, it is necessary to understand the scope of the work beforeconsidering the impact thereof. The essential question is whether thescope of work involves physical activity on structure which has beenkept out of impact assessment. The project, as noted above, involvestwo dimensions – construction of new Parliament Building and renovationof existing Parliament Building. Furthermore, the MoEF, while granting

370 (supra at 32)

371 (supra at 32)

Aclearance on 17.6.2020, noted the scope of renovation of existingParliament Building thus:

“2. (vi) … Scope of renovation of existing Parliament Buildingwill be (a) Condition Survey to assess the structure of the existingParliament Building; (b) Structural Strengthening; and (c)BRenovation of interiors and utilities.”

Thus, the scope of work is limited to improving the functionalityand life of the existing building, and not to carry out changes in all thestructures annexed with the building. We may gainfully refer to S.O.695(E) dated 4.4.2011 which defined “built-up area” for the purpose ofCenvironmental clearance under the 2006 Notification as:

“The built up area for the purpose of this Notification is definedas “the built up or covered area on all the floors put togetherincluding basement(s) and other service areas, which are proposedin the building/construction projects”.”D

The above definition further clarifies that the built-up area is to bededuced in the context of the proposed construction project. Once aparticular building is involved in the project, the covered area of all thefloors, basement and services areas thereof must be included in the totalbuilt-up area. As corollary, until and unless building or site is involvedEin the project and is the subject of any development, there would be nooccasion for the EAC to include its area in the total area of the project.For, there can be no question of any environmental impact from suchbuilding.

MERITS REVIEW BY NGT

F369. Before we delve into the analysis further, we would addressthe call for merits review in this challenge to EC. The expression“merits review” needs to be put into its correct perspective. For that wemust immediately advert to Section 16 of the National Green TribunalAct, 2010[372]. Itprovides for the appellate jurisdiction of NGT thus:G“16. Tribunal to have appellate jurisdiction. —Any personaggrieved by, —

372 For short, “2010 Act”H

(h) an order made, on or after the commencement of theNational Green Tribunal Act, 2010, granting environmentalclearance in the area in which any industries, operations orprocesses or class of industries, operations and processes shallnot be carried out or shall be carried out subject to certainsafeguards under the Environment (Protection) Act, 1986 (29of 1986);

may, within period of thirty days from the date on which theorder or decision or direction or determination is communicatedto him, prefer an appeal to the Tribunal:”

The provision empowers “any aggrieved person” to file an appealagainst the grant of EC for the scrutiny of NGT. The scheme of 2010Act, as found in Sections 17-19, provides for host of remedies to theaggrieved persons, including compensation and other reliefs dependingon the injury. Section 20 lays down the basic principle on which thetribunal is expected to exercise its jurisdiction. It states thus:

“20. Tribunal to apply certain principles. —The Tribunal shall,while passing any order or decision or award, apply the principlesof sustainable development, the precautionary principle and thepolluter pays principle.”

370. The expression “merits review” signifies that the tribunalmust scrutinize the merits of the decision and must not restrict itself to acursory examination of the process of decision making. Section 20 makesit amply clear that the principles of sustainable development, precautionaryprinciple and polluter pays principle must inform its examination. Therequirement of merits review is to be understood in the light of the statutoryjurisdiction of NGT under the 2010 Act and not beyond it. Statutorily,NGT is vested with limited mandate to hear an appeal before it in lightof the aforesaid principles and grant limited reliefs as provided in the2010 Act. Section 16 specifies that the jurisdiction of NGT may be invokedwhen any person either feels that the project should not be carried forwardor should be subjected to certain safeguards under the EnvironmentProtection Act, 1986. The NGT, therefore, is body meant for theassessment of limited facet of the project i.e., environmental facet andis not meant to be panacea for all ills. The requirement of merits review,

Aas exposited in Hanuman Laxman Aroskar[373], is to be understood asa review within the statutory jurisdiction of NGT.

371. NGT is not plenary body with inherent powers to addressconcerns of residuary character. It is statutory body with limitedmandate over environmental matters as and when they arise for itsBconsideration. In cause before it, NGT cannot directly go on toadjudicate on concerns of violation of fundamental rights and once thecontours of subject matter traverse the scope of appeal from grantof EC, the merits review by tribunal cannot traverse beyond the scopeof jurisdiction vested in it by the statute.

C372. We deliberated upon whether the question of EC needs to besent for consideration of NGT. However, none of the issues raised beforeus demonstrate requirement of in-depth technical analysis in this case.Mere suspicion cannot become ground for parting away with subjectmatter which is pending for this Court’s consideration and deservescomplete justice in the cause.D

373. No doubt, by way of the exclusive jurisdiction clause in Section29, the jurisdiction of civil Courts is barred on these subject matters, butthere is no impact whatsoever on the jurisdiction of this Court, being aCourt of record and bestowed with original and appellate jurisdictionincluding superior powers to do complete justice under Article 142 inEspecial circumstances. In other words, the jurisdiction of this Court isnot controlled or guided by the form of jurisdiction vested in NGT interms of the 2010 Act. The considerations before this Court can bediverse and expansive and the moment lis comesbefore this Court, thesubject matter comes out of the ambit of limited statutory considerationand falls in the realm of plenary constitutional consideration - whereinFthe duty of the Court is to do complete justice between the parties beforeit and in public interest jurisdiction to class of persons.

374. Indubitably, environment and development are not swornenemies of each other. It would be an anomalous approach to considerenvironment as hurdle in development and vice-versa. The entities likeGEAC and NGT are created to strike just balance between two competinginterests and time-tested principle of striking this balance is timelyinvocation of mitigating environmental measures amidst developmentactivity. True that mere application of certain mitigating measures maynot alleviate environmental concerns in all matters and in someH373 (supra at 32)circumstances, the project is simply incomprehensible with theenvironment. But as long as legitimate development activity can becarried on in harmony with the idea of environmental protection andpreservation including sustainable development, the Courts as well asexpert bodies should make their best endeavour to ensure that harmonyis upheld and hurdles are minimized by resorting to active mitigatingmeasures.

375. The principle of sustainable development and precautionaryprinciple need to be understood in proper context. The expression“sustainable development” incorporates wide meaning within its fold.It contemplates that development ought to be sustainable with the ideaof preservation of natural environment for present and future generations.It would not be without significance to note that sustainable developmentis indeed principle of development – it posits controlled development.The primary requirement underlying this principle is to ensure that everydevelopment work is sustainable; and this requirement of sustainabilitydemands that the first attempt of every agency enforcing environmentalrule of law in the country ought to be to alleviate environmental concernsby proper mitigating measures. The future generations have an equalstake in the environment and development. They are as much entitled toa developed society as they are to an environmentally secure society.By Declaration on the Right to Development, 1986, the United Nationshas given express recognition to right to development. Article 1 of theDeclaration defines this right as:

“1. The right to development is an inalienable human right by virtueof which every human person and all peoples are entitled toparticipate in, contribute to, and enjoy economic, social, culturaland political development, in which all human rights andfundamental freedoms can be fully realized.”

376. The right to development, thus, is intrinsically connected tothe preservance of dignified life. It is not limited to the idea ofinfrastructural development, rather, it entails human development as thebasis of all development. The jurisprudence in environmental mattersmust acknowledge that there is immense inter-dependence between rightto development and right to natural environment. In International Lawand Sustainable Development, Arjun Sengupta in the chapter“Implementing the Right to Development[374]” notes thus:

374 International Law and Sustainable Development – Principles and Practice, Edn.2004, pg. 354

A“… Two rights are interdependent if the level of enjoyment ofone is dependent on the level of enjoyment of the other...”

The concern of the regulatory agencies is to weed out theunsustainable from the development plan and to parallelly ensure thatright to development is not trumping upon any other right. Sengupta furtherBnotes:

“… There is an improvement in the right to development only if atleast one of the constituent rights improves and no other rightdeteriorates or is violated, which means the right to developmentconforms to the principle of the indivisibility of human rights…[375].”C377. The precautionary principle duly mandates that all agenciesof the State, including Courts, must make their best endeavour to ensurethat precaution is instilled in the process of development. The veryrequirement of prior EC is born out of this need for precaution. It is amanifestation of the precautionary principle in India and if developmentDwork is carried out in furtherance of prior EC and such EC is not vitiatedby illegality, it would be case of proper adherence with the precautionaryprinciple.378. In matters of balancing between competing environmentaland development concerns, the Court has to be project-specific. InEenvironmental matters, even one fact here or there may have the effectof attributing totally distinct character to the project and accordingly,the scope of judicial review may vary. This sentiment is best reflected inthe following words of Professor Schotland[376] who proposed rankingof standards of judicial review according to strictness:

F“3. ….. I have always thought of scope of review as spectrum,with de novo at one end, with unconstitutionality at the other end,and in between number of what I will call “mood-points” ordegrees of judicial aggressiveness or restraint, such aspreponderance of the evidence, clearly erroneous, substantialevidence on the whole record, scintilla of evidence, abuse ofGdiscretion and last, right next to or even into unconstitutionality,arbitrary and capricious. And since these are only “mood-points”,there is considerable room within each for difference.”

375 International Law and Sustainable Development – Principles and Practice, Edn.2004, pg. 354376 D.C. Circuit Judicial Conference, Environmental Protection: Law and Policy, 2ndHEdn., pg. 122

379. The proper balance of judicial review in environmental mattersin constantly developing society is matter of great debate across alljurisdictions. In Ethyl Corporation v. EPA[377], the observations of JudgeWright present just balance. He observed thus:

“There is no inconsistency between the deferential standard ofreview and the requirement that the reviewing court involve itselfin even the most complex evidentiary matters; rather, the twoindicia of arbitrary and capricious review stand in careful balance.The close scrutiny of the evidence is intended to educate the court.It must understand enough about the problem confronting theagency to comprehend the meaning of the evidence relied uponand the evidence discarded; the questions addressed by the agencyand those bypassed; the choices open to the agency and thosemade. The more technical the case, the more intensive the court’seffort to understand the evidence, for without an appropriateunderstanding of the case before it the court cannot properlyperform its appellate function. …”

He then notes the need for realising the limits of judicial function

thus:

“But the function must be performed with conscientiousawareness of its limited nature. The enforced education intothe intricacies of the problem before the agency is notdesigned to enable the court to become superagency thatcan supplant the agency’s expert decision-maker. To thecontrary, the court must give due deference to the agency’s abilityto rely on its own developed expertise. The immersion in theevidence is designed solely to enable the court to determinewhether the agency decision was rational and based onconsideration of the relevant factors. It is settled that we mustaffirm decisions with which we disagree so long as this test is met. . .”

(emphasis supplied)

380. They must always look for careful balance when two equallyrelevant interests compete with each other. The task may not be easy,but is the only reasonable recourse. For the proper application of theseprinciples, the first and foremost thing to be kept in mind is the nature of

Athe project. In the present case, the subject project is an independentbuilding and construction project wherein one-time construction activityis to be carried out. It is not perpetual or continuous activity like arunning industry. It is absolutely incomprehensible to accept that projectof this nature would be unsustainable with the needs and aspirations offuture generations. Furthermore, the increase in footprint is not shownBto be substantial and the inclusion of new members of Parliament afterthe delimitation exercise is anyway going to lead to an inevitable increasein footprint (floating though) that cannot be countenanced as concernhere.381. We, therefore, upon thorough examination, decline toCinterfere in the grant of EC. The expertise developed by the EAC cannotbe undermined in light manner and as noted above, due deferencemust be accorded to expert agencies when their decisions do not attractthe taint of legal unjustness[378]. We, however, feel the need to record thatthe mitigating measures must be observed by the project proponent inDletter and spirit during the construction and operational phase. Wastemanagement methods, inclusive of hazardous wastes, must be subjectto regular monitoring. The construction debris must be subjected toimmediate removal as per the Construction & Development Plan. Theproject proponent may also install permanent high-capacity smog toweras part of the Project and use adequate number of smog guns to minimiseEpollution levels during the construction activity is in progress on the site.

382. We deem it fit to call upon the respondent MoHUA toconsider issuing appropriate general directions so as to ensure thatadequate use of smog guns during the construction of developmentprojects and setting up smog towers is made mandatory requirement,Fparticularly involving government buildings, townships or other majorprivate projects. Time has come to advance the intent behind improvingair quality mandatory feature for modern buildings and more particularlyduring the phase of construction of such major projects in the cities mostaffected by air pollution. In other words, directions be issued for theGareas with deteriorating air quality index. We call upon the respondents(MoEF) to finalise the nuances in this regard and issue appropriatedirections.

CONSULTATION SERVICES NIT

378 [See: G. Sundarrajan (supra) – paras 209 and 212;University of Mysore (supra) –Hpara 12; Basavaiah (Dr.) (supra) – paras 21 and 38; and K.T. Plantation (supra)]

SELECTION PROCESS

383. The petitioners have challenged the selection/appointmentof consultant on various counts including due to following usual bestprice method instead of best design competition of international standardsfor such an eminent project of national importance. At the outset, wemust deal with the challenge to the method preferred by the Governmentfor selection/appointment of Consultant for the stated project. In light ofour analysis whilst dealing with other larger issues (other than based onstatutory violations) for the same reasons or principle underlying thereto,even the challenge under consideration must be negatived being devoidof merits. For, in absence of any statutory mandate to adopt particularmethod for selection/appointment of Consultant for projects of nationalimportance, it would result in deciding the challenge on the principle ofsecond guess by the Court in exercise of powers of judicial review. Thatis certainly uncalled for and beyond the scope of permissible enquiry.What method is good or must be adopted for appointment of Consultantis the exclusive prerogative of the executive and in the nature of policymatter – where the Courts should not venture upon when even angelswould fear to tread. The mandate of Consultant is only to present avision document. The nitty-gritty of the design and floor plans is themandate of the project proponent and the Government (concerneddepartments being the stakeholders). Further, just because theGovernment has followed particular method of selection/appointmentof the Consultant for the stated project and another one would havebeen better option cannot be the basis to quash the appointment alreadymade after following fair procedure consequent to inviting tendersfrom eligible persons similarly placed.

384. Having said thus, what remains for consideration is essentiallyan assail against contractual relationship between two entities by athird party to the contract, that too by way of public interest litigation.Nevertheless, we may proceed to dissect this assail as well.

385. On 2.9.2019, notice was issued by CPWD inviting bids forthe appointment of consultant from national/international design andplanning firms. The invitation document specified initial eligibility criteriaand minimum eligibility criteria for prospective bidders. The criteriaspecified elaborate requirements relating to prior experience, historicalarea redevelopment projects, minimum annual turnover, earnest moneyand minimum experience. Thereafter, technical evaluation criterion

Awas specified to evaluate financial strength, project capabilities, coreproject team and approach and methodology. The scope of consultancywork was specified as:

“4. Scope of Consultancy Work:

The Firms/Consultants shall provide comprehensiveBconsultancy services in Project Conceptualization coveringTopographical and Contour Survey by using Total Stations, preparesurvey site plan showing existing structures, trees, electric polesetc. with geo-coordinates, Geotechnical investigations along withreports, survey space utilization, functional relations, preparationCof master plan including obtaining its statutory and local bodiesapproval, preliminary project report preliminary estimate, detailedarchitectural drawings, detailed structural design and detailingincluding designing and detailing of all services, their drawings &approval, external development works, landscaping, BIM Modeling,detailed project report and preparation of all Bid/Tender documentsDetc. Consultant should adhere to the Central VistaCommittee Guidelines and Lutyens Bungalow ZoneGuidelines while carrying out the consultancy work for theRedevelopment of Central Vista.”

(emphasis supplied)

The scope of consultancy work clearly specifies that the consultantis required for the purpose of “project conceptualization” by assistingthe project proponent in various activities. It further specifies that theconsultant is bound to adhere to CVC guidelines and Lutyens BungalowZone guidelines, which goes on to show that the consultant is not entrustedFwith any independent function of making new master plan and is onlybound to work within the four corners of legal framework governing theregion.

386. The Terms of Reference (TOR) further specify the scopeof work and state thus:G“

“1.1 Scope of Work

i) The scope of work shall be as follows:

a) Inception Report and Master Plan

b) Comprehensive detailed Design & Periodic Supervision ofHWorkmanship.”

The petitioners have used the above specification to contend thatthe project proponent has been delegated the function of preparation ofMaster Plan to the private consultant. The argument deserves to berejected at the very outset. Clause 1.2 of TORs is instructive on thiscount as it notes the “Detailed Scope of Work”. The expression “masterplan” as used in the TORs is absolutely different from the statutorymeaning of this expression. In this document, master plan is broadlyused to denote the vision document for the final design of the project.Point (a) in clause 1.2 (Detailed Scope of Work) notes:

“i) Inception Report and Master Plan

a) Preparation and finalisation of design brief in consultationwith the Client.”

Point (h) provides more clarity as it notes:

“h) Preparation of Conceptual Master Plan including affected area/buildings, circulation, land use, proposed building blocks, type ofworks, phasing etc.”

387. The selection of consultant was based upon pre-decidedQuality and Cost Based Selection[379] process wherein 80% weightagewas given to technical evaluation and 20% weightage was given tofinancial evaluation. Out of the four components of technical evaluation,as noted above, the last component of Approach and Methodology carriedmaximum weightage and was to be evaluated by Jury of Experts.After the submission of bids, pre-bid meeting was organized for removalof doubts of prospective bidders. total of 18 firms participated in thepre-bid meeting and six firms finally submitted their technical and financialbids for evaluation. These firms gave presentation on their approachand methodology before designated Jury of Experts on 11.10.2019.The jury comprised of one Chairman, five Members and one MemberSecretary. The composition of the jury is relevant and we reproduce thesame for better understanding:

(i)Prof. PSN Rao, Director, School of Planning andArchitecture, New Delhi - Chairman

(ii)Prof. Dr. Rama Subramanian, Principal of Dayanand SagarCollege of Architecture, KS Layout, Bengaluru - Member

(iii)Shri Ashok Malik, Retd. Chief Architect, NDMC – Member

379 For short, “QCBS”

A(iv)Shri Navneet Kumar, ADG (Works), CPWD – Member

(iv)Shri Vikas Bhosekar, Land Scape Architect, Plot No. 13,No. 136, New CDSS, Pune – Member

(vi)Shri Ramesh Dangle, Urban Designer, Chief ArchitectPlanner, CIDCO, Navi Mumbai – MemberB

(vii)Shri Vijay Prakash Rao, Senior Architect, Region Delhi,CPWD – Member Secretary

388. tender is essentially contract between two parties andmerely because one party to the contract is the State, the basic characterCof the transaction does not change. In India, we follow the principle ofprivity of contract and the law relating to contracts and specific reliefprovides ample remedy to an aggrieved party to the contractualtransaction. The principle of privity of contract has sound basis in law. Itis owing to the basic character of commercial relation wherein twoparties of sound mind choose to enter into legal relationship with eachDother and decide mutual rights and liabilities in accordance with the needsof the transaction with their free consent. There is an element ofconsensus ad idem. In free commercial transaction, itis the foremostdesire of the parties to keep third person interference away.

389. As general rule, there is no locus for third person toEquestion free contractual relationship. In special circumstances, nodoubt, the Specific Relief Act, 1963[380] provides for circumstances when“any person” could initiate action for recission of contracts or cancellationof instruments. However, this action is available only if the initiator isable to show that the contract/instrument is detrimental to its interests.FMoreover, that is remedy to be pursued in civil Court or the Court offirst instance. There is no basis in law to permit an absolutely unaffectedperson to shake settled transaction between two parties.

390. No doubt, it is settled that an award of tender by theGovernment, though contract, stands on slightly different footing. Itis so because when Government chooses to engage with citizen, it isGexpected to extend fair treatment to all those persons who choose toengage with the Government. This requirement of fairness brings in theelement of equality of treatment and absence of favouritism and thus,the requirements of Article 14 cannot be ousted. The question here isabout the scope of interference by writ Court in challenge against anH380 For short, “1963 Act”award of tender at the instance of third party to the transaction.Undisputedly, none of the petitioners before us had participated in thetender process and they cannot be termed as aggrieved as they do notsatisfy the requirement of privity of contract in conventional terms. Wehave before us bunch of public-spirited individuals who wish to questionthe award of tender, not because of the ineligibility of the duly selected/appointed Consultant or unfair advantage given to him but on other groundsby invoking high constitutional principles, which we have alreadynegatived hitherto.

391. In that view of matter, the primary concern of the Court is tosee whether the selection has been made by using formalised systemof selection or by an arbitrary pick and choose mechanism. In this case,the process of tender was used to select the consultant wherein uniformconditions were prescribed for all the participants who were eligible andfree to participate in the process. Upon submission of bids, theirapplications were analysed on pre-determined set of objective parameterswhich were duly notified to all the participants beforehand. An opportunitywas given to all the participants to clarify any doubts and the final technicalevaluation was done by Jury of Experts. The petitioners have notraised any allegation against the neutrality of jury members. Moreover,it is also not the case of the petitioners that the jury members failed toapply their mind during evaluation. The petitioners primarily assail theconditions of tender. As aforesaid, it is not for the Court to determine thesuitability of conditions under which the Government wants to enter intocommercial relationships with private persons or the manner in which itintends to execute the Project absent any statutory regime in that regard.The Government with the aid of its various agencies, is free to determineits rules of engagement with other entities.

392. In such matters, illegality in decision-making is the primaryconcern of this Court. The petitioners have not shown that the conditionsof tender were deliberately crafted in manner to make them suitablefor particular participant. Nor, have they shown that the conditionswere violative of any mandatory requirement. Even as regards theprocess of selection, it is not enough to allege mala fide conduct bypitching the argument of favouritism until and unless that allegation isdirected against specified persons who ought to be made parties to theproceedings. There cannot be an allegation of institutional mala fide infact. Furthermore, it is settled that an allegation of favouritism is

Aessentially question of fact which is to be mandatorily supported byhard evidence. The Court is not expected to buy an argument of thisnature on face value and enter upon wandering investigation or rovingenquiry merely because the petitioners allege favouritism. Apart frompure suspicion, the petitioners have not been able to assist the Court inproceeding in any logical direction which would demonstrate favouritismBin the selection of consultant. Suspicion cannot be guide for the Courtin judicial enquiry. The argument that the participants were less innumber would be of no significance unless it is shown that the conditionsof tender or other circumstances attributable to the respondents hadprevented others from participating. It is not even the case of theCpetitioners, at least those who claim to be in the same profession, thatthey had desire to participate and were prevented from doing so. Thelaw regarding interference by the Court in award of tender is well settled.In Michigan Rubber (India) Limited v. State of Karnataka and

Ors.[381], the Court observed thus:

D“35. ...As noted in various decisions, the Government and theirundertakings must have free hand in setting terms of the tenderand only if it is arbitrary, discriminatory, mala fide or actuated bybias, the courts would interfere. The courts cannot interfere withthe terms of the tender prescribed by the Government because itfeels that some other terms in the tender would have been fair,Ewiser or logical. In the case on hand, we have already noted thattaking into account various aspects including the safety of thepassengers and public interest, CMG consisting of experiencedpersons, revised the tender conditions. We are satisfied that thesaid Committee had discussed the subject in detail and for specifyingFthese two conditions regarding pre-qualification criteria and theevaluation criteria. On perusal of all the materials, we are satisfiedthat the impugned conditions do not, in any way, could be classifiedas arbitrary, discriminatory or mala fide.”

The Court, in Michigan Rubber[382], summed up certain parameters

Gto be kept in mind while considering challenge of this nature and observedthus:

“23. From the above decisions, the following principles emerge:

…..381 (2012) 8 SCC 216H382 (supra at 380)

(b) Fixation of value of the tender is entirely within the purviewof the executive and the courts hardly have any role to play in thisprocess except for striking down such action of the executive asis proved to be arbitrary or unreasonable. If the Governmentacts in conformity with certain healthy standards and normssuch as awarding of contracts by inviting tenders, in thosecircumstances, the interference by courts is very limited;

(c) In the matter of formulating conditions of tenderdocument and awarding contract, greater latitude isrequired to be conceded to the State authorities unless theaction of the tendering authority is found to be maliciousand misuse of its statutory powers, interference by courtsis not warranted;

(d) Certain preconditions or qualifications for tenders have to belaid down to ensure that the contractor has the capacity and theresources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and inpublic interest in awarding contract, here again, interference bycourt is very restrictive since no person can claim fundamentalright to carry on business with the Government.”

(emphasis supplied)

The above proposition may be read with our discussion on judicialinterference in policy matters in the initial part of this judgment. We arenot reiterating the settled position to avoid prolixity. The above propositionhas been expounded in case wherein the challenge was raised by aparticipant in the same tender process and not third party.

393. It is relevant to note that the question of locus in consideringan argument of this nature cannot be side lined. For, such arguments callupon the Court to expand the contours of its jurisdiction to venture intostrictly private commercial matters. litigant, not being party to thetransaction, cannot be heard in ordinary circumstances. What needs tobe established is substantial and demonstrable public interest on the basisof concrete factual position. The jurisprudence evolved by this Courtin such matters looks for substantial public interest, to be shown on thebasis of violation of Part III or arbitrariness in Government action. In theabsence thereof, it becomes the duty of the Court to preserve freecommercial relations. Law has substantial interest in preserving the

Afreedom of contract. In Villianur Iyarkkai[383], this Court discussed thisposition of law in the following terms:

“113. As far as second preliminary objection regarding locus standiof the appellant to challenge the award of the contract for thedevelopment of the Pondicherry Port to Respondent 11 isBconcerned, this Court finds that the contract assailed in thewrit petitions is purely commercial in nature. Neither theparties, which had participated in the process of selectionof the consultant/developer nor one of those, which hadexpressed desire to develop the Pondicherry Port but wasnot selected, has come forward to challenge the selectionCprocedure adopted by the Government of Pondicherry orthe selection of Respondent 11 as developer of thePondicherry Port.

114. The question of locus standi in the matter of awarding thecontract has been considered by this Court in BALCODEmployees’ Union (Regd.) v. Union of India[384]. This Court,after review of law on the point, has made following observationsin para 88 of the judgment:

“88. It will be seen that whenever the Court has interferedand given directions while entertaining PIL it has mainly beenEwhere there has been an element of violation of Article 21 orof human rights or where the litigation has been initiated forthe benefit of the poor and the underprivileged who are unableto come to court due to some disadvantage. In those casesalso it is the legal rights which are secured by the courts. WeFmay, however, add that public interest litigation was not meantto be weapon to challenge the financial or economic decisionswhich are taken by the Government in exercise of theiradministrative power. No doubt person personally aggrievedby any such decision, which he regards as illegal, can impugnthe same in court of law, but, public interest litigation at theGbehest of stranger ought not to be entertained. Such litigationcannot per se be on behalf of the poor and the downtrodden,unless the court is satisfied that there has been violation of

383 (supra at 190)

Article 21 and the persons adversely affected are unable toapproach the court.”

From the passage quoted above it is clear that the onlyground on which person can maintain PIL is where therehas been an element of violation of Article 21 or humanrights or where the litigation has been initiated for thebenefit of the poor and the underprivileged who are unableto come to the court due to some disadvantage.”

(emphasis supplied)

394. As long as there is fair play in Government action, it is noone’s concern to assail commercial transaction by levelling vague andunsubstantiated allegations. The genesis of public interest litigation liesin public interest; and public interest lies in vindicating the rights of thosewho lack the wherewithal to reach the Court to remedy injustice againstthem. The tool of public interest litigation or “social interest litigation”,as it is more appropriately called, was devised to open the doors of theconstitutional Courts for remedying glaring injustices against humans,that is, for securing constitutional rights. It was never meant to transformthe constitutional Court as superlative authority over day-to-daygovernance. Judicial time is not meant for undertaking roving enquiryor to adjudicate upon unsubstantiated flaws or shortcoming in policymatters of Government of the day and politicise the same to appease thedissenting group of citizens – be it in the guise of civil society or politicaloutfit.395. The foregoing comments are not because the Courts feelburdened by untenable and frivolous claims but to highlight that Courttime saved would be time-earned to be best spent on more deservingclaims of have-nots due to long incarceration, affecting liberty, denial ofpension and salary, motor accident claims, land acquisition compensation,including genuine corporate resurrection and revival to benefit largenumber of workmen and investors etc. The list of such deserving litigationis unending. We need to say so because we had to spend considerabletime and energy on this matter (lest the petitioners entertain feeling ofhaving been denied fair opportunity), despite the pandemic situation,which at the end, we find to be devoid of substance.

396. We may usefully advert to the exposition in NarmadaBachao Andolan v. Union of India[385]. In paragraph Nos. 230 to 235 ofthe reported decision, the Court noted thus:

385 (supra at 132)

“230. Public interest litigation (PIL) was an innovation essentiallyto safeguard and protect the human rights of those people whowere unable to protect themselves. With the passage of time PILjurisdiction has been ballooning so as to encompass within its ambitsubjects such as probity in public life, granting of largesse in theform of licences, protecting environment and the like. But theballoon should not be inflated so much that it bursts. Publicinterest litigation should not be allowed to degenerate tobecoming publicity interest litigation or privateinquisitiveness litigation.

231. While exercising jurisdiction in PIL cases the courthas not forsaken its duty and role as court of lawdispensing justice in accordance with law. It is only wherethere has been failure on the part of any authority in actingaccording to law or in non-action or acting in violation ofthe law that the court has stepped in. No directions areissued which are in conflict with any legal provisions.Directions have, in appropriate cases, been given wherethe law is silent and inaction would result in violation of thefundamental rights or other legal provisions.

232. While protecting the rights of the people from being violatedin any manner utmost care has to be taken that the court does nottransgress its jurisdiction. There is, in our constitutional frameworka fairly clear demarcation of powers. The court has come downheavily whenever the executive has sought to impinge upon thecourt’s jurisdiction.

233. At the same time, in exercise of its enormous powerthe court should not be called upon to or undertakegovernmental duties or functions. The courts cannot run theGovernment nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial reviewis constitutional fundamental. The role of the higher judiciaryunder the Constitution casts on it great obligation as the sentinelto defend the values of the Constitution and the rights of Indians.The courts must, therefore, act within their judiciallypermissible limitations to uphold the rule of law and harnesstheir power in public interest. It is precisely for this reasonthat it has been consistently held by this Court that in

matters of policy the court will not interfere. When there is avalid law requiring the Government to act in particular mannerthe court ought not to, without striking down the law, give anydirection which is not in accordance with law. In other words thecourt itself is not above the law.

234. In respect of public projects and policies which areinitiated by the Government the courts should not becomean approval authority. Normally such decisions are takenby the Government after due care and consideration. In ademocracy welfare of the people at large, and not merely ofa small section of the society, has to be the concern of aresponsible Government. If considered policy decisionhas been taken, which is not in conflict with any law or isnot mala fide, it will not be in public interest to require thecourt to go into and investigate those areas which are thefunction of the executive. For any project which is approvedafter due deliberation the court should refrain from beingasked to review the decision just because petitioner infiling PIL alleges that such decision should not havebeen taken because an opposite view against theundertaking of the project, which view may have beenconsidered by the Government, is possible. When two ormore options or views are possible and after consideringthem the Government takes policy decision it is then notthe function of the court to go into the matter afresh and, ina way, sit in appeal over such policy decision.

235. What the petitioner wants the Court to do in this case isprecisely that. The facts enumerated hereinabove clearly indicatethat the Central Government had taken decision to constructthe dam as that was the only solution available to it for providingwater to the water-scarce areas. It was known at that time thatpeople will be displaced and will have to be rehabilitated. There isno material to enable this Court to come to the conclusion that thedecision was mala fide. hard decision need not necessarily be abad decision.”

(emphasis supplied)

397. The apprehension of the petitioners regarding percentagecontracts is also unfounded, for the same is taken care of by Manual for

AProcurement of Consultancy & Other Services, 2017[386] released byDepartment of Expenditure, Ministry of Finance. Chapter-3 of the Manualprovides for “Risks and Mitigations” relating to percentage contracts.The risk is stated thus:

“Bias against Economic solutions: Since the percentage paymentBis linked to the total cost of the project, in the case of architecturalor engineering services, percentage contracts implicitly lackincentive for economic design and are hence discouraged.”

The corresponding mitigation measure is stated thus:

“Therefore, the use of such contract for architectural servicesCis recommended only if it is based on fixed target cost andcovers precisely defined services.”

Thus, there is no absolute prohibition on percentage contracts.The only requirement is mitigation which can be done by fixed targetcost. In the present case, by releasing subsequent corrigendum, theDconsultancy fee was capped by the project proponent irrespective of thefinal cost of the project and thus, no apprehension of lack of economicdesign survives.

DESIGN/CONCEPT COMPETITION

398. The contention regarding conduct of design competitionEbefore finalizing the design of the proposed structure can, at best, beunderstood as suggestion. For, there is no legally binding duty upon theproject proponent to conduct design competition for project of thisnature.

399. Chapter 7 of the Manual, in point 7.9, provides for guidelinesFon “Public competition for Design of symbols/logos”, which reads thus:

“7.9.1 Certain Ministries/Departments are required to conductcompetitions for the design of logos/symbols for their use,which should be conducted in transparent, fair and objectivemanner. Following guidelines shall be followed by all Ministries/Departments as well as their attached/subordinate offices andGthe autonomous bodies/organizations controlled by them, whileconducting public competitions for design of symbols/logos fortheir use.”

(emphasis supplied)

The aforesaid requirement, which is undoubtedly desirable, isenvisioned for the designs of logos and symbols for the use of theGovernment and not for buildings. The distinction is crucial, for, buildingprojects have their own functional and operational needs and mandatoryrequirement of conducting design competition may run contrary topublic interest vested in operational efficiency. The exclusion is aconscious one. It is possible to say that by conducting designcompetition, it would have opened up the process and increasedparticipation. However, for the purpose of legal review, it can only betermed as desirability. It cannot be elevated to the standard of animperative legal obligation of the State. And in the absence of which, theentire process cannot be regarded as illegal. The respondents havecategorically submitted that considering the fact that the proposed projectis functional building, concept competition was conducted instead ofa design competition. For, the latter is suitable for logos and art works,and concept competition was more suited to meet the needs of afunctional building. concept competition, like design competition, isanother way of planning for developing functional building (such asParliament House). It is for the government to decide their method ofplanning from the legally available alternatives in accordance with thenature of project – emphasis on design or emphasis on functionality. Inany case, it is not for the Courts to decide which competition will bemore appropriate, being policy matter.

400. To rebut the argument that CPWD may not be well equippedto take care of concerns of design and executing project of suchimmense national importance, learned Solicitor General submitted fromthe record that CPWD has been successfully executing projects atinternational scale. The recently completed state of the art NationalAssembly of Afghanistan or the Parliament of Afghanistan, he added,was constructed by CPWD and there is no occasion to doubt thecompetence of whole agency.

PUBLIC TRUST

401. Evidently, vehement reliance was placed by the petitionerson the doctrine of public trust in furthering their cause. The doctrine ofpublic trust has traversed long journey in legal jurisprudence. Thedoctrine enjoins the State to exercise its control over common publicresources in manner which furthers preservation and protection inpublic interest. It requires the management and distribution of public

Aresources in manner that public is not deprived of them. The doctrineof public trust involves basic element of due diligence in State’smanagement of public resources.

402. The public trust doctrine was primarily evolved for regulatingthe State’s handling of water resources. In Landscape ArchitectureBMagazine, Frederick Steiner and John Roberts noted thus:

“The public trust doctrine has evolved from Roman law, “by thelaw of nature these things are common to mankind- the air, runningwater, the sea and consequently the shores of the sea,” and throughEnglish common law, which held that the sovereign owns, “all ofCits navigable waterways and the lands laying beneath them ‘astrustee of public trust for the benefit of the people’” (189California Reporter 355, 1983)…[387]"

Thereafter, with the growth of judicial review and limitations uponState action, the doctrine received evolution to other areas, for instance,Dlands and education. Eventually, it became controlling factor in most ofthe natural public resources which give rise to an expectation of fairhandling. Whereas the precise import of the public trust doctrine in agiven proceeding depends upon the nature of resource under question,the underlying theme remains consistent, that is, usage of public resourcesfor beneficial public use.E403. The Constitution posits this doctrine at various places,particularly in Part-IV. Illustratively, Article 39(b) mandates justness in“ownership and control of material resources” so as to “subserve commongood”. Article 48A enjoins the State to protect and improve theenvironment thus:F

“48A. The State shall endeavour to protect and improve theenvironment and to safeguard the forests and wild life of thecountry.”

Furthermore, Article 49 enjoins the State to protect monumentsof historic and artistic interest thus:G

“49. It shall be the obligation of the State to protect every monumentor place or object of artistic or historic interest, declared by orunder law made by Parliament to be of national importance,

387 Prospect: Public Trust Doctrine, Landscape Architecture Magazine, May/June,H1986, Vol. 76, pg. 132

from spoliation, disfigurement, destruction, removal, disposal orexport, as the case may be.”

(emphasis supplied)

Article 49 reveals crucial dimension of public trust. It categoricallyspecifies that the obligation of State to protect monuments pertains tothose monuments which are declared to be of national importance by alaw made by Parliament. Though, it ipso facto does not mean that publictrust does not enliven State action with respect to handling of other publicresources, nonetheless it is instructive of the constitutional intent that thedoctrine of public trust does not operate in vacuum. It depends on severalfactors including, but not limited to, the resource under question, usageof the resource in the past, proposed usage of the resource, managementof the resource and nature (public or private) of the entity which isentrusted with its management.

404. The application of this doctrine in specific factual scenarioessentially involves balancing act. It is not doctrine of grammar andof textual application. The ground of public trust is invoked when argumentof increased protection is pitched against enhanced use of resources. Itis relevant to note that in United States, the State of Hawaii is consideredto have the most robust public trust jurisprudence as the HawaiianConstitution has an express provision for it. Section-1 of Article XI thereofreads thus:

“Section 1. For the benefit of present and future generations, theState and its political subdivisions shall conserve and protectHawaii’s natural beauty and all natural resources, including land,water, air, minerals and energy sources, and shall promote thedevelopment and utilization of these resources in mannerconsistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for thebenefit of the people.”

The express provision is result of the immense environmentalvolatility and fast-paced reduction of limited natural resources in Hawaii.The crucial takeaway from the aforesaid reference to HawaiianConstitution is found in the manner in which it is understood in judicialapplication. Despite there being an express provision, the practicalunderstanding of public trust doctrine in Hawaii also entails balance

Abetween protection and maximum beneficial use of resources. Ana Chingin “Charting the Boundaries of Hawaii’s Extensive Public TrustDoctrine Post-Waiâhole Ditch[388]" traces the applicability of the doctrineand notes thus:

“… However, extending the public trust doctrine does notBnecessarily lead to greater protections for all resources, as courtshave ruled that the public trust doctrine requires abalancing between protection on the one hand, andmaximum beneficial use on the other. Thus, the trust’sobjective is not to maximize protection, but instead is toachieve the most equitable and beneficial allocation ofCresources. As the case law demonstrates, this approach hasleft space for commercial uses of public resources.”

(emphasis supplied)

405. What emerges from the above discussion is that for provingDa violation of public trust, it falls upon the petitioners to establish thatpublic resources are being squandered and used or planned to be used ina manner which cannot be termed as beneficial public use. The Courtwould look for an actual deprivation of public’s right over commonresources. As for the respondents, it falls upon them to establish that theproposed use of public resources is aligned in the direction of beneficialEuse and in public interest. In the present case, the respondents haveelaborately demonstrated the imminent need for the project. Furthermore,as discussed above, the change in land use does not result into anydeprivation of recreational spaces. On the contrary, the changes wouldresult into optimisation and greater access to open spaces including entailFin assets creation. We have also noted that the present project ofexpansion and renovation of Parliament does not entail any destructionor diminution of heritage sites or urban aesthetics as such. Therespondents have repeatedly assured the Court of adhering to all normsand conditions necessary for preservation of environment and heritageincluding urban aesthetics.G406. As regards the natural environment, we have thoroughlyappraised the EC and forms submitted to obtain the same, and found nocircumstance which could lead us to believe that the tenets of

388 Charting the Boundaries of Hawaii’s Extensive Public Trust Doctrine Post-WaiâholeDitch, Ana Ching, Page 2H

environmental protection are compromised in the process. The mitigatingmeasures have been scrutinized and are found to be carefully drawn upso as to ensure permissible beneficial use. The public trust doctrine doesnot prohibit beneficial use of public resources. The scale would not tilttowards status quo and retention of the existing condition of publicproperty when the proposed use is for legitimate development and creationof assets and in public interest. Until and unless the proposed use is suchthat no entity holding resources in fiduciary capacity would propose,there is no occasion for the Court to disturb just use of resources forthe fulfilment of public purpose.407. Another important facet of public trust doctrine is that it limitsthe State from excessive entrustment of natural public resources tocommercial entities. It requires an abdication of responsibility. Thelandmark decision of U.S. Supreme Court in Illinois Central Railroad[389],relied upon by the petitioners, also involved grant of resources to privateentities. Frederick Steiner and John Roberts, in Prospect: Public TrustDoctrine, crisply noted thus:

“The U.S. Supreme Court’s decision in Illinois Central Railroad v.Illinois (146 U.S. 387, 1892) has been described as the “lodestar”of American public trust law. This case involved the State of Illinoisgranting to the Illinois Central Railroad Company “virtually theentire harbor of the City of Chicago” and then repealing the grant.The U.S. Supreme Court held that this repeal waslegitimate, “because the state could not abandon its trust... in the first place.” Further, because Illinois had duty to“hold and manage” the disputed Chicago harbor lands, “theoriginal grant was comparable to surrendering the policepower in the ‘administration of government andpreservation of the peace’ to private party.”[390]

(emphasis supplied)

Furthermore, in Kamal Nath[391], this Court noted two aspectsrelating to public trust doctrine – first, resolution of conflict betweenthose who want to preserve and those who want to meet societalexigencies in accordance with changing needs is for the legislature and

389 (supra at 88)

390 Prospect: Public Trust Doctrine, Landscape Architecture Magazine, May/June,1986, Vol. 76, pg. 132

391 (supra at 87)

Anot Courts and second, the executive cannot convert public resourcesinto private ownership.

“35. We are fully aware that the issues presented in this caseillustrate the classic struggle between those members of the publicwho would preserve our rivers, forests, parks and open lands inBtheir pristine purity and those charged with administrativeresponsibilities who, under the pressures of the changing needs ofan increasingly complex society, find it necessary to encroach tosome extent upon open lands heretofore considered inviolate tochange. The resolution of this conflict in any given case is for thelegislature and not the courts. If there is law made by ParliamentCor the State Legislatures the courts can serve as an instrument ofdetermining legislative intent in the exercise of its powers of judicialreview under the Constitution. But in the absence of anylegislation, the executive acting under the doctrine of publictrust cannot abdicate the natural resources and convertDthem into private ownership, or for commercial use. Theaesthetic use and the pristine glory of the natural resources, theenvironment and the ecosystems of our country cannot bepermitted to be eroded for private, commercial or any other useunless the courts find it necessary, in good faith, for the publicgood and in public interest to encroach upon the said resources.”E

(emphasis supplied)

The aforesaid exposition from Kamal Nath[392] further denotesthat most of the cases in which this doctrine is invoked involved conversionof public ownership into private ownership; or commercial use ofresources; or abdication of responsibility; or unjust denial to commonFpublic. None of these circumstances exist in the present case. The projectdoes not involve any conversion into private ownership and has no elementwhatsoever of permitting commercial use of vital public resources. Theproposed project is in line with the standards of public trust and thepetitioners have failed to point out any circumstance which would suggestGotherwise.AVAILABILITY OF INFORMATION IN PUBLICDOMAIN

408. In our discussion above, we have highlighted the importanceof availability of information in public domain. The discussion emanatedH392 (supra at 87)

from the petitioners’ argument that the project is being carried forwardclandestinely. There is no dispute as regards the legal position on publicaccess to information. The enquiry here is factual one. To counter thesubmission of the petitioners, the respondents have placed detailedcompilation of documents. The compilation reveals that the respondentshad duly uploaded relevant documents pertaining to various stages ofthe process on respective websites. In fact, the petitioners haveextensively built their case on the documents purportedly available inpublic domain. The petitioners, in W.P. (C) 853/2020, have called forproduction of documents before 2.9.2019. However, the formal processof inviting tenders for consultation services was initiated on 2.9.2019.All the documents after this date are in public domain. That is not indispute. Other relevant documents relating to processes before theaforesaid date have been supplied by way of the compilation and thus,the prayer does not survive for further consideration. We consider ituseful to briefly lay out the documents placed in public domain by therespondents:

(i)Relevant Environment Impact Assessment notificationsfrom 2006-2020.

(ii)Letter dated 9.12.2015 written by Smt. Sumitra Mahajan,Speaker of Lok Sabha expressing need for enhanced space.

(iii)Letter dated 2.8.2019 written by Sh. Om Birla, Speaker ofLok Sabha reiterating the need for space and othertechnological requirements.

(iv)Office Memorandum dated 30.8.2019 issued by MoHUAexpressing the need for development/redevelopment ofParliament Building, Common Central Secretariat andFCentral Vista, and requesting CPWD to float Request forProposal (RFP) for selection of consultant.

(v)Notice inviting bids dated 2.9.2019.

(vi)Responses to queries received in pre-bid meeting dated14.9.2019.

(vii)Copy of notice inviting bids dated 23.9.2019.

Evidently, all relevant documents from the stage of expression ofneed for the project by Speaker of Lok Sabha to appointment ofconsultant, issuance of public notice, conduct of public hearing, final

Anotification for change in land use and minutes of meetings of CVC,DUAC and EAC were placed in public domain. The petitioners havenot pointed out single document which formed part of the processand was not placed in public domain.

409. Be that as it may, it is also relevant to note that mere absenceBof information does not vitiate an administrative process, that too in toto.This is not the standard envisaged for judicial review. For, after theenactment of the 2005 Act, there are statutory means for obtaininginformation from the Government. If the authority fails to provide relevantinformation, the same could be assailed before appellate bodies. Thereis duly streamlined procedure for the same. The real effect of absenceCof information in public domain has to be tested on the anvil of actualprejudice on public’s ability to participate in the decision-making process,wherever provided for. It must result into denial of legally enforceableright. In the present case, none of the persons who participated in raisingobjections to change in land use or those who sent representations toDDUAC and EAC have come forward to contend that they could notaccess information, thereby rendering them incapable of participating inthe process or in raising informed objections. Nothing survives for furtherconsideration on this count.410. Reverting to the argument of the petitioners that technicalEinformation and documents (such as redevelopment plan and layouts)were not kept in public domain, which prevented the objectors to makeeffective representation. This objection was taken before the BoEH. Ithas been so recorded in the recommendations of BoEH. It had notedthat majority of the objectors who are planners and architects entertaina feeling that authentic technical information of this iconic project ofFCentral Vista is not available in public domain. Further, it is suggestedthat impact assessment study on traffic, environment and heritage maybe commissioned at the earliest. The third major objection noticed by theBoEH was that the project proponent had not forwarded the proposal toCVC. As regards the last two points, the same has nothing to do withGthe grievance regarding lack of information in public domain. Coming tothe first objection regarding lack of technical information regarding theiconic project in public domain, we fail to understand as to how thatwould be case of statutory non-compliance of the procedure forconsideration or for that matter, the culmination of final decision of theAuthority and of the Central Government in exercise of powers underH

Section 11A of the Act. In the context of modification of Master Plan orZonal Plan, the procedure prescribed in the Rules is limited to disclosureof intention as per the form prescribed for issuing public notice and themanner of enquiry to be conducted by the BoEH. The public notice isnot required to be accompanied by technical information of the proposedproject to be constructed on the notified plots. In fact, the concludingparagraph of public notice dated 21.12.2019 makes it amply clear thatthe text/plan indicating the proposed modifications is available on DDA’sofficial website i.e. www.dda.org.in. Further, there is no statutoryrequirement to display development plan concerning the proposed project,in the town planning legislation under consideration. Be it noted that thecase on hand is not relating to the preparation of draft Master Plan orZonal Plan governed by Part III of the Act, but only regardingmodification in exercise of powers under Section 11A of the Act. In anycase, it was open to the interested party to approach the concernedauthority under the 2005 Act for obtaining (further) requisite informationfrom the concerned authority. It is not the case of the petitioners thatsuch application was made and was not entertained within reasonabletime or was rejected. Had such application been made, the Authoritywould have responded to appropriately. It needs no emphasis that if anyperson who intended to take objection by relying on technical informationhad thirty clear days’ time to obtain such information and submit hisobjection. Merely taking such objection for the sake of record does nottake the matter any further nor need be entertained, in law, so as to labelthe final decision of the competent authority as illegal. Furthermore, asnoticed earlier in the present case, none of the petitioners had raised anypoint other than 13 points taken before the BoEH during the hearing.Suffice it to observe that the argument of non-availability of statedtechnical information in public domain as pursued by the petitioners, willbe of no consequence and certainly not germane to declare the finaldecision of the Central Government manifested vide notification dated20.3.2020 as illegal.

PRELIMINARY OBJECTION IN I.A.

411. We now turn to the preliminary objection raised in I.A. No.59230 of 2020 as regards the propriety of the Court’s order to collectivelyentertain the wide range of issues connected with the present subjectmatter, including those relating to EC in light of our order dated 6.3.2020.It has been submitted that the order resulted into denial of statutoryright to approach other forums and could not have been passed.

A412. At the outset, we note that the said order did not operate asa bar against any person from approaching the Court for any reliefwhatsoever. The present lis reached this Court by way of substantivespecial leave petition and later, writ petitions filed in the High Court ofDelhi came to be transferred to this Court. Thereafter, seven other writpetitions have been filed directly before this Court under Article 32 ofBthe Constitution. In any case, once cause reaches this Court and ofthis nature, the fundamental concern of the Court is and must be notonly of doing substantial and complete justice, but also expeditiousresolution of all aspects in larger public interest. This we must do withinthe constitutional bounds. Judicial activism to this limited extent is certainlyCpermissible, in national interest. In doing so, the Court would not merelyexercise its power under Article 139A while transferring the case beforeitself, rather, the underlying principle at play is the duty of this Court todo complete justice as envisaged under Article 142 and to obviatepossibility of project of national importance being stuck, embroiled anddelayed due to engagement of the project proponent before multipleDlegal forums/proceedings. We have had plethora of cases in the post-PIL period wherein prolonged litigation against infrastructural projectsresulted in inordinate delays to the extent that the projects got buriedforever or became unviable owing to excessive burden on the publicexchequer (honest taxpayers’ money). That is where this Court’s powerEto do not only complete but substantial justice gets triggered.

413. Deviating from constitutional obligation of the Court, we mayalso note that the 2018 amendment to the Specific Relief Act, 1963aligned the view of the legislature in this direction with the insertion ofSection-20A and clause (ha) to Section-41 which prohibited the grant ofFinjunction against infrastructural projects. The underlying legislative intentof the legislature is to protect such projects from inappropriate use ofCourt processes. Therefore, there is no doubt that the broad approachof constitutional Court in dealing with public interest matter has to bea vigilant one to further larger public interest. The laws delay due totardy flow of Court processes (for variety of reasons attributable toGdifferent stakeholders or duty holders or so to say systematic one) mustnot let itself become an impediment in the fulfilment of developmentgoals of our hallowed nation and consequently to the future generation.Depending on the subject matter, the constitutional Courts must addressthe legal challenges at the earliest opportunity without being bogged downHby technicalities, in national interest.

414. There is ample support to the proposition that when largernational interest is involved and concerns of public exchequer are directlyinvolved in the lis, the Court must act at the earliest opportunity. For,each day’s delay has direct impact on the exchequer. In NarmadaBachao Andolan v. Union of India[393], the Court resonated this positionand observed thus:

“227. There are three stages with regard to the undertaking ofan infrastructural project. One is conception or planning, secondis decision to undertake the project and the third is the executionof the project. The conception and the decision to undertake aproject is to be regarded as policy decision. While there is alwaysa need for such projects not being unduly delayed, it is at thesame time expected that thorough possible study will beundertaken before decision is taken to start project. Oncesuch considered decision is taken, the proper execution of thesame should be undertaken expeditiously. It is for the Governmentto decide how to do its job. When it has put system in place forthe execution of project and such system cannot be said to bearbitrary, then the only role which court may have to play is tosee that the system works in the manner it was envisaged.”

415. In Tata Cellular[394], the Court referred to the following paraauthored by Clive Lewis from Judicial Remedies in Public Law, 1992edition:

“86. An innovative approach is made by Clive Lewis as to whythe courts should be slow in quashing administrative decisions (inhis Judicial Remedies in Public Law 1992 Edn. at pp. 294-95).The illuminating passage reads as under:

“The courts now recognise that the impact on the administrationis relevant in the exercise of their remedial jurisdiction. Quashing decisionsmay impose heavy administrative burdens on the administration, divertresources towards reopening decisions, and lead to increased andunbudgeted expenditure. Earlier cases took the robust line that the lawhad to be observed, and the decision invalidated whatever theadministrative inconvenience caused. The courts nowadays recognisethat such an approach is not always appropriate and may not be in thewider public interest. The effect on the administrative process is relevant

393 (supra at 132)394 (supra at 256)

Ato the courts’ remedial discretion and may prove decisive. This isparticularly the case when the challenge is procedural rather thansubstantive, or if the courts can be certain that the administrator wouldnot reach different decision even if the original decisions were quashed.Judges may differ in the importance they attach to the disruption thatquashing decision will cause. They may also be influenced by theBextent to which the illegality arises from the conduct of the administrativebody itself, and their view of that conduct.””

416. The character of public interest proceeding is necessarilynon-adversarial in nature and it is not matter of two individuals fightingagainst each other at all possible forums. In Kalpana Mehta & Ors. v.CUnion of India & Ors.[395], this Court, in para 206, had observed that“When courts enter upon issues of public interest and adjudicateupon them, they do not discharge function which is adversarial.”Such proceeding is essentially in the nature of collective enquiry todetermine whether the State is acting in accordance with settled principlesof law and such collective enquiry is always targeted towards largerDpublic interest. What purpose will public interest proceeding serve ifthe fulfilment of one notion of public interest leads to clear subjugationof another legitimate action of the State taken in public interest and asthe petitioners themselves put it, concerning project of national importancetouching upon democratic polity. That is where the role of this CourtEcomes in, which ought to be active and not passive in such proceedings.417. We may usefully refer to our prior discussion on the statutoryjurisdiction of NGT vis-a-vis the constitutional powers of this Court. Weare not reiterating the same here to avoid repetition. The expression“complete justice” does not contemplate narrow view of doing justiceto the petitioners or the respondents. Rather, the principle entails lookingFat the parties, their respective positions and the subject matter/causebefore it as whole. The Court needs to be even more vigilant andproactive in its pursuit of complete justice when the subject matter involvesan exercise of power in rem and considerations of public interest traversebeyond the immediate expectations of the parties before the Court. It isGnot case where parties have approached the Court for the vindicationof personal rights, as already noted above, and the nature of subjectmatter is entirely different.

418. When competing public interests are brought before aconstitutional Court, it becomes the duty of the Court to harmonize and

H395 (2018) 7 SCC 1

balance such interests, even if it requires the invocation of an extraordinarypower. The performance of this function by the Court becomes evenmore indispensable when the grievance of the petitioners is that nationalinterest is at stake. It is precisely for such occasions that this Court isbestowed with such plenary power.

419. We also briefly note that this Court has time and again restatedthat the jurisdiction of this Court under Article 32 of the Constitution isplenary and merely because statutory remedy of appeal is providedfor in statute, it cannot be the sole basis to take away the jurisdiction ofthis Court in cause pending before it, which is likely to pose legalquestions of larger public and national interest including to facilitate theState to fulfil its constitutional obligations. Moreso because, substantivewrit petition(s) is filed and is being heard analogously by this Court aspublic interest litigation to question the impact of the impugned decision(s)being violative of environmental laws. In any case, this objection hasbecome academic because at the end of the oral arguments, the learnedcounsel appearing for the applicants, who had taken this plea, suggestedto dispose of the application as infructuous.

POSTLUDE

420. Before we part, we feel constrained to note that in the presentcase, the petitioners enthusiastically called upon us to venture intoterritories that are way beyond the contemplated powers of constitutionalcourt. We are compelled to wonder if we, in the absence of legalmandate, can dictate the government to desist from spending money onone project and instead use it for something else, or if we can ask thegovernment to run their offices only from areas decided by this Court, orif we can question the wisdom of the government in focusing on aparticular direction of development. We are equally compelled to wonderif we can jump to put full stop on execution of policy matters in the firstinstance without demonstration of irreparable loss or urgent necessity,or if we can guide the government on moral or ethical matters withoutany legal basis. In light of the settled law, we should be loath to ventureinto these areas. We need to say this because in recent past, the route ofpublic/social interest litigation is being increasingly invoked to call uponthe Court to examine pure concerns of policy and sorts of generalisedgrievances against the system. No doubt, the Courts are repositories ofimmense public trust and the fact that some public interest actions havegenerated commendable results is noteworthy, but it is equally important

Ato realise that Courts operate within the boundaries defined by theConstitution. We cannot be called upon to govern. For, we have nowherewithal or prowess and expertise in that regard.

421. The constitutionally envisaged system of “checks andbalances” has been completely misconstrued and misapplied in this case.BThe principle of “checks and balances” posits two concepts - “check”and “balance”. Whereas the former finds manifestation in the conceptof judicial review, the latter is derived from the well enshrined principleof separation of powers[396]. The political issues including regardingdevelopment policies of the Government of the day must be debated inthe Parliament, to which it is accountable. The role of Court is limited toCexamining the constitutionality including legality of the policy andGovernment actions. The right to development, as discussed above, is abasic human right and no organ of the State is expected to become animpediment in the process of development as long as the governmentproceeds in accordance with law.D422. The parties had relied upon several reported decisions/authorities in support of their arguments. However, we have consideredthe same to the extent necessary; and referred to those which are foundto be relevant for deciding the issues under consideration, in our judgmentat appropriate place(s). We do not deem it necessary to dilate on otherErelied upon decisions being repetitive or not directly on the points answeredby us, to obviate prolixity. Also, because the principle expounded thereinis restated by us in this judgment and is no way different.

CONCLUSION AND ORDER

423. In conclusion, we declare and direct as follows:

(i)We hold that there is no infirmity in the grant of:

(a)“No Objection” by the Central Vista Committee(CVC);

(b)“Approval” by the Delhi Urban Art CommissionG(DUAC) as per the DUAC Act, 1973; and

(c)“Prior approval” by the Heritage ConservationCommittee (HCC) under clause 1.12 of the BuildingByelaws for Delhi, 2016.

396 As restated in Dr. Ashwani Kumar (supra at 167) – paras 8 to 19, 22 to 37, 43 andH44.

(ii)We further hold that the exercise of power by the CentralAGovernment under Section 11A(2) of the DDA Act, 1957is just and proper and thus the modifications regardingchange in land use of plot Nos. 2 to 8 in the Master Plan ofDelhi, 2021/Zonal Development Plan for Zone-D and Zone-C vide impugned notification dated 20.3.2020 standsBconfirmed.

(iii)The recommendation of Environmental Clearance (EC) byExpert Appraisal Committee (EAC) and grant thereof byMoEF is just, proper and in accordance with law includingthe 2006 Notification. We uphold the same along withappropriate directions therein to ensure that the highlightedmitigating measures are followed by the project proponentin their letter and spirit.

(iv)The project proponent may set up smog tower(s) ofadequate capacity, as being integral part of the newDParliament building project; and additionally, use smog gunsat the construction site throughout the construction phaseis in progress on the site.

(v)We also call upon the respondent MoEF to consider issuingsimilar general directions regarding installation of adequatecapacity of smog tower(s) as integral part in all future majordevelopment projects whilst granting developmentpermissions, particularly in cities with bad track record ofair quality - be it relating to Government buildings, townshipsor other private projects of similar scale and magnitude,including to use smog guns during the construction activityof the Project is in progress.

(vi)The stage of prior permission under clause 1.3 of the BuildingBye Laws of the Heritage Conservation Committee (HCC),is the stage of actual development/redevelopment etc. workis to commence and not the incipient stage of planning andGformalisation of the Project. Accordingly, the respondentsshall obtain aforementioned prior permission of thedesignated Authority before actually starting anydevelopment/redevelopment work on the stated plots/structures/precincts governed by the heritage laws includingon plot No. 118, if already not obtained.H

A(vii)The selection/appointment of Consultant, in light of the limitedexamination warranted in this case, is held to be just andproper.

424. We must reserve moment to appreciate the contributionmade by learned counsel representing various parties. Despite voluminousBdocuments involved in the case and given the fact that the hearing wasconducted via video conferencing, the assistance given by learned counselwas invaluable. That helped us immensely in deciding the complex natureof factual and legal aspects involved in the case.

425. Having answered the questions posed for our consideration,Cthe subject petitions/appeal(s)/cases stand disposed of in their entirety inthe above terms. Pending applications, if any, shall also stand disposedof with no order as regards costs.

SANJIV KHANNA, J.

1. In the heart of the national capital, and within the “Lutyens’DBungalow Zone” (LBZ), lies the Central Vista – the centrepiece andliving heritage of Delhi. The Indian National Trust for Art and CulturalHeritage (INTACH) describes Central Vista as the “ensemble with mainaxis Rajpath...the Rashtrapati Bhawan at Raisina Hills, flanked by theSecretariat (North and South Blocks)...the Parliament House...theEhexagonal round-about that has the India Gate and the Canopy...” TheRashtrapati Bhawan, spread over about 330 acres, is the abode of thehead of the Indian Republic. The Parliament House is the birth-place ofour Constitution and the sanctum sanctorum where the electedrepresentatives of people discuss, deliberate and enact laws. The Northand the South Blocks house offices where the higher echelons ofFgovernment and civil service take policy decisions and govern the largestdemocracy in the world. The promenade has other iconic buildings likeIndia Gate with Amar Jawan Jyoti, the National Archives, the NationalMuseum, the National Stadium, the National War Memorial and theadolescents’ favourite ‘the Children’s Park’. The area embellished withGgreen lawns, water channels and fountains attracts residents and visitorsfor its distinctiveness, historical relevance and as locale for relaxation,recreation, walks and picnics. Initially constructed possibly as statementof imperial grandeur and power, the Central Vista, in post-independentIndia, inspires and connects common people to the citadels of ourdemocracy.H2. The present dispute relating to the modification andredevelopment of the Central Vista has different facets. First, is thelegal challenge to change in the land use of six plots in the Central Vistaunder the Delhi Development Act, 1957, and the permissions/approvalsgranted by the Central Vista Committee, the Delhi Urban ArtsCommission under the Delhi Urban Arts Commission Act, 1973 and theclearance/no-objection for construction of new Parliament House underthe Environment Protection Act, 1986. Failure to take prior permission/approval of the Heritage Conservation Committee as per Annexure IIof the Unified Building Bye-Laws is alleged. In Writ Petition (Civil) No.853/2020, the Notice inviting Bid and award of consultancy to the ninethrespondent therein has been challenged. At deeper and conceptuallevel the question relates to the government’s duty to consult and thescope and ambit of the citizen’s right to participate in the quasi legislativeexercise. Connected with the two issues is the third question of scopeand amplitude of the power of judicial review.

3. Since I have reservations with the opinion expressed by myesteemed brother A.M. Khanwilkar, J. on the aspects of publicparticipation on interpretation of the statutory provisions, failure to takeprior approval of the Heritage Conservation Committee and the orderpassed by the Expert Appraisal Committee, I have penned down aseparate dissenting judgment. However on the aspects of Notice invitingBid, award of consultancy and the order of the Urban Arts Commission,as standalone and independent order, I respectfully agree with thefinal conclusions in the judgment authored by respected brother A.M.Khanwilkar J.

4. At the outset, an overview of the legislative and regulatoryframework of the Delhi Development Act, 1957 (‘Development Act’)and the applicable rules would be beneficial in understanding the factsand issues that need consideration and decision.

4.1 The Development Act is enacted by the Parliament with theobjective to develop Delhi in planned manner, as without proper planningthe growth of the national capital would be unorganised, inequitable,unaesthetic and hazardous. The Development Act postulates constitutionof the Delhi Development Authority (the ‘Authority’), which shall workto promote and secure the development of Delhi according to plan.Chapter III, titled ‘Master Plan and Zonal Development Plan,’ consistsof Sections 7 to 11. Section 7 requires the Authority to carry out civic

Asurvey and prepare Master Plan for Delhi, defining various zones intowhich Delhi may be divided for the purposes of development, and indicatethe manner in which the land in each zone is proposed to be used. Section8 of the Development Act states that simultaneously with the preparationof Master Plan, or soon thereafter, the Authority shall prepare zonaldevelopment plans for each of the zones. The Master Plan is to serve asBa basic pattern of framework within which these zonal developmentplans may be prepared. These zonal development plans may contain asite-plan and use-plan for the development of the zone and show theapproximate locations and extents of land-uses proposed including suchthings as public buildings and other public works and utilities, housing,Crecreation, public and private open spaces, other categories of publicand private uses etc. It is also to specify the standards of populationdensity and building density, and show every area in the zone whichmay, in the opinion of the Authority, be required or declared fordevelopment or redevelopment. Section 9 states that after its preparation,the Authority shall submit the plan to the Central Government for approvalDas soon as possible. The Central Government may either approve theplan with or without such modifications as it may consider necessary orreject the plan with directions to the Authority to prepare fresh plan.4.2 Section 10 of the Development Act is of importance and readsas under:E“10. Procedure to be followed in the preparation andapproval of plans.— (1) Before preparing any plan finally andsubmitting it to the Central Government for approval, the Authorityshall prepare plan in draft and publish it by making copy thereofavailable for inspection and publishing notice in such form andFmanner as may be prescribed by rules made in this behalf invitingobjections and suggestions from any person with respect to thedraft plan before such date as may be specified in the notice.

(2) The Authority shall also give reasonable opportunities to everylocal authority within whose local limits any land touched by theGplan is situated, to make any representation with respect to theplan.

(3) After considering all objections, suggestions and representationsthat may have been received by the Authority, the Authority shallfinally prepare the plan and submit it to the Central GovernmentHfor its approval.

(4) Provisions may be made by rules made in this behalf withrespect to the form and content of plan and with respect to theprocedure to be followed and any other matter, in connection withthe preparation, submission and approval of such plan.

(5) Subject to the foregoing provisions of this section the CentralGovernment may direct the Authority to furnish such informationas that Government may require for the purpose of approving anyplan submitted to it under this section.”

Section 10 mandates the Authority to first prepare draft plan inaccordance with the rules and publish it, inviting objections andsuggestions from any person. Every local authority within whose locallimits any land touched by the plan is situated is also to be given areasonable opportunity to make representation. Upon consideration ofthe objections, suggestions and representations, the Authority shall finallyprepare the plan and submit it to the Central Government for approval.We shall subsequently refer to the rules enacted, which read togetherwith the Development Act envisage scheme of robust and effectivepublic participation in the entire process.

4.3 Section 11 states that after the plan has been approved by theCentral Government, the Authority shall publish the plan in mannerprescribed by the regulations, and by way of notice, inform that theplan has been approved, the place where copy of the plan may beinspected at all reasonable hours, and the date on which it shall comeinto operation.

4.4 Section 11A which was inserted by Act 56 of 1963 with effectfrom 30th December, 1963 and reads:

“11A. Modifications to plan. – (1) The Authority may makeany modifications to the master plan or the zonal developmentplan as it thinks fit, being modifications which, in its opinion, do noteffect important alterations in the character of the plan and whichdo not relate to the extent of land-uses or the standards ofpopulation density.

(2) The Central Government may make any modifications to themaster plan or the zonal development plan whether suchmodifications are of the nature specified in sub-section (1) orotherwise.

A(3) Before making any modifications to the plan, the Authority or,as the case may be, the Central Government shall publish noticein such form and manner as may be prescribed by rules made inthis behalf inviting objections and suggestions from any personwith respect to the proposed modifications before such date asmay be specified in the notice and shall consider all objectionsBand suggestions that may be received by the Authority or theCentral Government.

(4) Every modification made under the provisions of this sectionshall be published in such manner as the Authority or the CentralGovernment, as the case may be, may specify and the modificationsCshall come into operation either on the date of the publication oron such other date as the Authority or the Central Governmentmay fix.

(5) When the Authority makes any modifications to the plan undersub-section (1), it shall report to the Central Government the fullDparticulars of such modifications within thirty days of the date onwhich such modifications come into operation.

(6) If any question arises whether the modifications proposed tobe made by the Authority are modifications which effect importantalterations in the character of the plan or whether they relate toEthe extent of land-uses or the standards of population density, itshall be referred to the Central Government whose decision thereonshall be final.

(7) Any reference in any other Chapter, except Chapter III, to themaster plan or the zonal development plan shall be construed as aFreference to the master plan or the zonal development plan asmodified under the provisions of this section.”

Sub-section (1) to Section 11A permits the Authority to makemodifications to the Master Plan or Zonal Development Plan which inits opinion, does not affect any important alterations in the character ofGthe plan and which does not relate to the extent of land-uses or thestandards of population density. Sub-section (2) to Section 11A similarlyempowers the Central Government to make modifications to the MasterPlan or the Zonal Development Plan, but with wider power to evenaffect modifications which go beyond the exclusions under sub-section(1). The power of modification is to be exercised when necessary inH

public interest. Sub-section (3) to Section 11A imposes and casts dutyon the Authority or Central Government, as the case may be, to consultgeneral public by publication of notice in the prescribed form andmanner, invite objections and suggestions in respect of the proposedmodification. The Authority or the Central Government, as the case maybe, are duty bound to consider the objections and suggestions. Whenupon consideration, the Authority makes modifications under sub-section(1), it is required to report the full particulars to the Central Government,within 30 days of the date from which such modification come into force.Similarly, the Central Government may after consideration of theobjections/suggestions notify the modification(s) in terms of sub-sections(2) to (4) to Section 11A of the Development Act. Sub-section (6) statesthat where question arises whether the modifications proposed by theAuthority have the effect of making changes that are covered by theexclusions in sub-section (1), the Authority shall refer the matter to theCentral Government, whose decision would be final.

4.5 Act 56 of 1963 also amended clause (g) to sub-section (2) ofSection 56 of the Development Act which relates to the power of theCentral Government to make Rules after consultation with the Authorityand which have to be notified in the Official Gazette. Clause (g) to sub-section (2) of Section 56 of the Development Act, before insertion ofSection 11A, stipulated thus:

“(2) In particular and without prejudice to the generality of theforegoing power, such rules may provide for all or any of thefollowing matters, namely:-

xxxxxx

(g) the periodical amendment of the master plan and zonaldevelopment plan, the period at the expiration of which suchamendment may be taken up, the procedure to be followed inmaking such amendment and the date of operation of suchamendment;”

Post the amendment, clause (g) of Section 56(2) of theDevelopment Act reads as under:

“(g) the form and manner in which notice under sub-section (3)of section 11A shall be published;”

4.6 The Central Government in exercise of power under sub-section (1) of Section 56, read with clauses (e), (g) and (r) of sub-section(2) to Section 56, has enacted the Delhi Development (Master Plan and

AZonal Development Plan) Rules, 1959, (the ‘Development Rules’) whichcame into force on 1st January, 1960.Development Rules, in terms ofRule 3, require the Authority to carry out civic survey and analysis ofthe physical, economic and sociological features of Delhi with referenceto the natural resources, distribution of population, industry, communication,housing requirements, and other matters relating to the development ofBDelhi. Thereafter, draft Master Plan – consisting of maps, diagrams,charts, reports, and other written matter of explanatory or descriptivenature, as they pertain to development of the whole or any part of Delhi–has to be prepared and made available for public examination. Clause(b) of sub-rule (3) to Rule 4 states that the draft Master Plan may includeCthe land use plan based upon such survey of the present use of land asmay be necessary as well as analysis of estimated future needs andconsisting of comprehensive proposal for most desirable utilisation ofland including government land. It may include financial plan and anadministrative plan. Rule 5 relates to public notice regarding preparationof Master Plan, and reads:D

“5. Public Notice regarding preparation of Master Plan. -(1) As soon as may be after the draft master plan has beenprepared, the Authority shall publish public notice stating that -

(a) the draft Master Plan has been prepared and may be inspectedEby any person at such time and place may be specified in thosenotice;

(b) suggestions and objections in writing, if any, in respect of thedraft master plan may be filed by any person with the secretaryof the Authority within 90 days from the date of first publicationof the notice.F[Provided that where the Central Government considers itexpedient so to do for the purpose of maintenance of public orderor in case of any exigency likely to affect the interest of the publicit may require such suggestions and objection to be filed within inperiod of three days from the date of the notice]G(2) This notice may be in Form appended to these rules withoutmodification with. Such modification as may be necessary.”

Rule 5 states that public notice will be published stating that thedraft master plan has been prepared and may be inspected at such timeHand place as specified and secondly, suggestions and objections in writing,

if any, in respect of the Master Plan may be filed with the Secretary ofthe Authority within ninety (90) days of the first publication of the notice.Under the proviso the Central Government may in case of exigencyprovide for shorter notice.

4.7 Rule 6 states that the notice will be published in the mannerprescribed in Section 44 of the Development Act and shall also bepublished in the official gazette.

4.8 Rules 8, 9, 10 and 11 which deal with consideration of objectionsand suggestions and preparation of the final draft Master Plan; read:

“8. Appointment of Board for enquiry and hearing. - (1) TheAuthority shall, for hearing and considering any representation,objection and suggestion to the draft master plan, appoint Boardconsisting of not less than 3 and not more than 5 members of theAuthority.

Provided that such Board shall have powers to co-opt not morethan 2 members from amongst the members of the AdvisoryCouncil.

[(2) No business of the Board shall be transacted at any meetingunless at least three members are present from the beginning tothe end of the hearing.]

9. Enquiry and hearing. - The secretary shall, after the expiryof the period allowed under these rules for making objections,representations and suggestions fix date or dates for hearing bythe Board of any person, or local authority in connection with anyobjection, representation or suggestion made by such person orlocal authority in respect of the draft master plan and shall serveon the local authority or any person who may be allowed apersonal hearing in connection with such representation, objectionor suggestion to the draft master plan, notice intimating the time,date and place of the hearing.

Provided that the Board may disallow personal hearing to anyperson, if it is of the opinion that the objection or suggestion madeby such person in inconsequential, trivial or irrelevant.

10. Report of Enquiry. - The Board shall after the conclusionof its enquiry, submit to the Authority report of itsrecommendations.

A11. Preparation of final draft Master Plan and its submissionto Central Government. - The Authority shall, after consideringthe report of the Board and any other matter it thinks fit, finallyprepare the master plan and submit it to the Central Governmentfor its approval.”

BAs per Rule 8, the Authority is required to appoint Board ofEnquiry and Hearing (BoEH) for hearing and considering therepresentations, objections and suggestions to the draft Master Plan.BoEH shall comprise of not less than three members of the Authority,which has the power to co-opt not more than two members from amongstthe members of the Advisory Council of the Authority. Sub-rule (2) toCRule 8 prescribes the minimum quorum for the BoEH and states that nobusiness of the BoEH shall be transacted unless at least three membersof the BoEH are present from the beginning till the end of the hearing.Rule 9 states that the Secretary of the Authority, after the procedureprescribed under the Rules for making objections/representations andDsuggestions has been followed, shall serve notice on the local authorityor the person who may be allowed personal hearing in connection withthe representation, objection or suggestion to the draft Master Plan,intimating the time, date and place of hearing. Rule 10 states that theBoEH after conclusion of the inquiry shall submit to the Authority areport of its recommendations. Clearly, the sub-rules demonstrate theEimportance given to public participation including public hearing.

4.9 As per Rule 11 the Authority after considering the report ofthe BoEH and any other matter it thinks fit, shall finally prepare theMaster Plan and submit it to the Central Government for its approval.Rules 5 to 11 apply mutatis mutandis to Zonal Development Plans.F

4.10 The Development Rules were amended by the DelhiDevelopment (Master and Zonal Development Plan) Amendment Rules,1966 by Gazette Notification GSR 930 dated 13[th] of May, 1966.Consequent to this amendment, Rules 12 and 13, which dealt withamendment of the Master Plan, were omitted. This was ex facieGnecessary and followed enactment of Section 11A of the DevelopmentAct. After Rule 15, Chapter V titled “Modification to the Master Planand the Zonal Development Plan” was inserted, wherein Rule 16 statesthat the notice referred to in subsection (3) of Section 11A shall be inForm B, and published in accordance with Rule 6. Form is reproducedbelow:H

“FORM

Public Notice

The following modification/s which the Delhi DevelopmentAuthority/Central Government proposes to make to the MasterPlan for Delhi/Zonal Development Plan/s, for zone/s ________is/are hereby published for public information. Any person havingany objection or suggestion with respect to the proposedmodification/s may send the objection or suggestion in writing tothe Secretary, Delhi Development Authority, Delhi Vikas Bhawan,Indraprastha Estate, New Delhi, within period of thirty daysfrom the date of this notice. The person making the objection orsuggestion should also give his name and address.

Modification/s.

...................................

2. The plan/s indicating the proposed modification/s will beavailable for inspection at the office of the Authority, Delhi VikasBhawan, Indraprastha Estate, New Delhi, on all working daysexcept Saturday, within the period referred to above.

SecretaryDelhi Development Authority

Delhi Vikas Bhawan,Indraprastha Estate,New DelhiDated, the ____ 196 .”

G[No. 19015(3)/66-UD.]R.R. Sharma, Under Secy.”

5. By virtue of powers under the Development Act and theDevelopment Rules, Master Plan for Delhi was promulgated in 1962,setting out broad vision for the development of Delhi. Subsequently,

Afor some reasons which we cannot fathom, albeit which need not beexamined for the present litigation, the Authority by taking recourse andinvoking Section 11A of the Development Act has enacted the MasterPlan of Delhi 2001, followed by the Master Plan of Delhi 2021, which iscurrently being implemented. While the second and the third MasterPlans were regarded as modifications under Section 11-A of theBDevelopment Act, the procedure under Section 11 and the DevelopmentRules was followed in preparation and publication of the draft masterplan and the positive requirement of public consultation and hearing werefollowed on both occasions. Significance of this exercise and its’ legalimplications would be noticed later.C6. With this statutory framework in mind, we shall proceed toconsider the facts;-

(a)On 2nd September 2019, Central Public Works Department(also referred to as ‘CPWD’) issued notice inviting bidsfor the “Development/Redevelopment of ParliamentDBuilding, Common Central Secretariat and Central Vista atNew Delhi.” The tender document stated: “A new MasterPlan is to be drawn up for the entire Central Vista area thatrepresents the values and aspirations of New India – goodgovernance, efficiency, transparency, accountability andEequity and is rooted in the Indian Culture and social milieu.”

(b)On 4th December 2019, the Land and Development Office(L&DO), in the Ministry of Housing and Urban Affairs(MoHUA), forwarded proposal for change in land use of7 plots located in the Central Vista area and 1 plot locatedin the Timarpur area, to the Authority. On the very next dayFi.e., 5th December 2019 the Technical Committee of theAuthority held its meeting. The examination was on theproposal for change of land use for the following plots :

“A. Plot No. 1 is located on Church road near DTCCentral Secretariat Bus Terminal, New Delhi. As perGMPD - 2021 the Land Use of the Site is underTransportation (Bus Terminal/Parking). (Locationmarked on attached Annexure A). The proposed landuse of the site is Government Office.

B. Plot No. 2 is located opposite to the Parliament House,HNew Delhi. As per MPD - 2021 the land use of the site

is under Recreational (District Park). (Location markedon attached Annexure A). The proposed land use of thesite is Government Office.

C. Plot No. 3 is located on Dr. Rajendra Prasad Roadand houses National Archives. As per MPD - 2021 theland use of the site is under Public and Semi Publicfacilities. (Location marked on attached Annexure A).The proposed land use of the site is Government Officeand Recreational (District Park).

D. Plot No. 4 is located on Dr. Rajendra Prasad Roadand is occupied by Indira Gandhi National Centre forArt and Culture. As per MPD - 2021 the land use of thesite is under Public and Semi Public facilities (SC).(Location marked on attached Annexure A). Theproposed land use of the site is under Government Officeand Recreational (District Park).

E. Plot No. 5 is located between Man Singh Road,Ashoka Road and India Gate Hexagon in triangularformation. As MPD - 2021 the land use of the site isunder Public and Semi Public facilities. (Location markedon attached Annexure A). The proposed land use of thesite is Government Office.

F. Plot No. 6 is located on Maulana Azad Road andconsists of VP house, Vigyan Bhavan and NationalMuseum. As per MPD -2021 the land use of the site isunder Public and Semi Public facilities (SC). (Locationmarked on attached Annexure A). The proposed landuse of the site is under Government Office.

G. Plot No. 7 is located on Dara Shikoh Marg. As perMPD - 2021 the land use of the site is under Governmentoffice. (Location marked on attached Annexure A). Theproposed land use of the site is Residential.

H. Plot No. 8 is located on Lucknow Road near Timarpurand part of Planning Zone C. As per MPD-2021 theland use of the site is under Public and Semi PublicFacilities. (Location marked on attached Annexure B).

AThe proposed land use of the site is Recreational (DistrictPark).”

(c)On the same day, i.e. 5th December 2019, the TechnicalCommittee of the Authority approved the proposal forfurther processing under Section 11A of the DevelopmentBAct. Relevant portion of the decision is as under:

G(d)Thereafter, on 21[st] December 2019, public notice wasissued inviting objections and suggestions from the public interms of sub-section 3 to Section 11-A of the DevelopmentAct and Rule 16 under the Development Rules, the relevantportion of which reads as under:

“DELHI DEVELOPMENT AUTHORITY

(Master Plan Section)

PUBLIC NOTICE

New Delhi, the 21st December, 2019

S.O. 4587(E).--––The following modification which the DelhiDevelopment Authority / Central Government proposes to maketo the Master Plan-2021 / Zonal Development Plan of Zone ‘D’(for Plot No. 1 to 7) and Zone ‘C’ (for Plot No. 8) under Section11-A of DD Act, 1957, is hereby published for public information.Any person haying any objection/suggestion with respect to theCproposed modification may send the objection/suggestion in writingto the Commissioner-cum-Secretary, Delhi DevelopmentAuthority, ‘B’ Block, Vikas Sadan, New Delhi-110023 within aperiod of thirty (30) days from the date of this Public Notice. Theperson making the objection or suggestion should also give his/hername and address in addition to telephone No./contact numberDand e-mail ID which should be legible.

Proposed Modification:

612SUPREME COURT REPORTS[2021] 15 S.C.R.ABCDEFGH

The text/Plan indicating the proposed modifications shallbe available for inspection at the office of Deputy Director(MP), Delhi Development Authority, 6th Floor, Vikas Minar,I.P. Estate, New Delhi on all working days during the periodreferred above. The text/plan indicating the proposedmodifications is also available on DDA’s website i.e.www.dda.org.in.

[F. No. F. 20(12)2019/MP]

D. SARKAR, Dy. Secy.”

(e)Meanwhile, on 31[st] January 2020 revised proposal forchange of land use in respect of Plot No.1 was sent by theL&DO to the Authority.

(f)As per the respondents, pursuant to the public notice, asmany as 1292 objections to the proposed amendments/modifications to the plan were received from people livingacross the country. Some were on behalf of multiplepersons. (For example, objection/suggestion No.1292 wason behalf of Rajiv Kataria and 16 others.)

(g)The public notice had stipulated: -

“as per procedure all the objections/suggestions receivedwithin the stipulated time period of 30 days i.e. up to19.01.2020, will be placed before the Board of Enquiryand Hearing (BoEH)”.

There is an error in computation of the 30-day period in thepublic notice, as Section 9 of the General Clauses Act, 1897requires exclusion of the date of publication. Accordingly,the period of 30 days having commenced on 22[nd] December2019 would have ended on 20[th] January,2020. Therespondents in their counter affidavit have not specificallydealt with and answered this contention. However, at thetime of hearing it was stated that objections received aslate as on 21[st ]January 2020 were taken into consideration.Reliance placed on the compilation giving gist of objections/suggestions which refers to the diary number and the date,does not indicate the date on which the objections/suggestions were received in the inbox. Consequently, we

would accept the statement made in the public notice thatthe objections received till 19[th] January 2020 only were takenon record, though as per law the citizenry had the right tofile objections/suggestions till 20[th] January 2020.

(h)On 3/4[th] February 2020 emails and SMS were issued tothose who had filed objections/suggestions fixing meetingof the BoEH for oral hearing on 6[th] and 7[th] Februray,2020from 10:30 a.m. to 5:30 p.m. at Vikas Sadan, INA, NewDelhi. Public notice informing the persons, who hadsubmitted objections and suggestions, about the meeting ofthe BoEH, was published in five newspapers on 5[th] February2020, reads: -

“DELHI DEVELOPMENT AUTHORITYPUBLIC NOTICE

Delhi Development Authority issued public notice videGazette notification S.O. 4587 (E) dated 21.12.2019 andalso published in the newspapers for inviting objections/suggestions from the public regarding proposed changeof land use of Plot No. 1 to 7 (Zone-D) and Plot No. 8(Zone-C).

As per procedure all the objections/suggestions receivedwithin the stipulated time period of 30 days i.e. up to19.01.2020, will be placed before the Board of Enquiryand Hearing (BoEH). The Board Hearing will be heldon 06.02.2020 (Thursday) & 07.02.2020 (Friday) from10:30 A.M. onwards at DDA Office, Conference Hall,8-Block, Ground Floor, Vikas Sadan, INA.

Any person who has filed objection/suggestion and wantsto present his/her oral evidence in person before theBoard, may come to the abovementioned venue on06.02.2020 & 07.02.2020 to present his/her views, asper the proposed schedule, which shall be available onthe DDA website i.e. www.dda.org.in (under head‘HOTLINKS’/’PUBLIC NOTICES’) on 05.02.2020(12 pm). Concerned persons shall also be informedthrough E-mail/SMS as per details provided in theirrepresentations.

In case any person who has filed objection/ suggestionbut does not find his/her name in the schedule or has notreceived any e-mail/SMS, may present his/her oralsubmission before the Board on the said date i.e.07.02.2020 (Friday) from 1:00 P.M. to 1:30 P.M. Allpersons are requested to carry valid Identity Proof.”

The public hearings were held on 6[th] and 7[th] February 2020.

(i)A summary of the objections and suggestions was preparedand made available to the BoEH. The most common, if notalmost universal, grievance raised was scanty andinsufficient information and lack of details/explanationregarding the proposed changes and the redevelopmentenvisaged so as to enable the public to make suggestions/objections. Consequently, there was disquiet andperturbation. For the sake of convenience and for clarity,we would like to reproduce portions of some of theobjections/suggestions:

“Sriram Ganapathi

Objections:

On account of the Central Vista area being the ‘nation-space’ of India the ever-increasing association in theminds of the general pubic of this being the space thatsignifies the unity and spirit of India and the manifestationof the same in the ever-increasing number of Indianswho visit this area the proposed reduction of as much as80 acres of area available both directly and indirectly tothe general public transport and parking etc. in this areamay be an inappropriate planning decision for obviousreasons.

xxxx

Suggestions:

On account of general inability to understand the meritfor such conversion without attendant details illustratingthe need for the proposed modifications. It is suggestedthat relevant material may be put into the public domain

and thorough public consultative process completedprior to finalisation of any decision regarding the same.

Madhav Raman

Objections:

xxxx

...Land use is violation of extant heritage regulationprotecting Central Vista notified Grade 1 Heritage Areaand Special Heritage Area of LBZ as notified in MPD2021. This proposed change interferes with the originalurban design of this precinct and changes the relationshipbetween built and unbuilt of the Central Vista.

Suggestions:

On account of general inability to understand the meritfor such conversion without attendant details illustratingthe need for the proposed modifications. It is suggestedthat relevant material may be put into the public domainand thorough public consultative process completedprior to finalisation of any decision regarding the same.

Pulkit Khanna Malik

Suggestions:

The merits of the proposed conversion are unclearwhereas the demerits are glaringly obvious. It issuggested that relevant material be put into the publicdomain and thorough public consultative processcompleted before any decisions are finalised.

Shamit Manchanda, Architect

We would also like to draw your attention to the MasterPlan of Delhi 2021 Sections 8.0 item 8.1 which is notsought to be changed and thereby the proposed changesseem to be in violation of the Master Plan of Delhi 2021.

Suggestions:

In view of the points mentioned above it is requestedthat the details sought are made public before proceedingwith the proposed land use changes that seem to be

conflicting with the Master Plan of Delhi 2021. Pleasealso share if any study has been undertaken to assessthe impact of additional pedestrian and vehicular trafficthis change of land use will cause.

Punit Sethi

Additional Suggestions:

(b) It is requested that the details sought are made publicbefore proceeding with the proposed land use changesas they seem to be conflicting with the Master Plan ofDelhi-2021.

(c) If any study has been undertaken prior to proposingthe said land use changes to assess the impact additionalpedestrian and vehicular traffic, this change of land usewill cause or impact on the environment et.al. should befirst said with public at large so that participatory publicprocess can be followed in decision making.”

Objections were also made in relation to exercise ofpowers of the Authority to make modifications under clause(1) of Section 11A of the Development Act. Some hadhighlighted that the project would reduce public space/areaand the requisite approvals were not in place. We wouldfor clarity quote some responses received by the Authorityto illustrate the concerns raised:

“Anil Sood

xxxxxx

The master Plan can be modified subject to thesatisfaction of restrictions imposed under section 11A.

Thus sub-section (1) of section 11A permits modificationsof the Master Plan under the following circumstances:

not affect important alterations in the character of theplan; and

which do not relate to the extent of land-users or thestandards of population density.

That it is matter of record that DDA has not conductedthe Civic Survey as mandated under section 7 but has

also violated the mandate of sub-section 1 of section11A that prohibits change of land use in case of changeof population density and altar the basic character ofthe plan.

Meena Gupta

The proposed redevelopment reduces drastically thespace available to the public for recreational public andsemi-public use. This is loss not just to the people ofDelhi but to the people of India. The Central Vista is ahistoric as well as iconic place. The buildings are justabout hundred years old and attempts should be madeto preserve rather than demolish them. Several thousandold and very old trees will have to be cut down to makeway for the buildings. Replacing these many trees isimpossible. Virtually no consultation has been held withthe public at large or bodies like the Urban ArtsCommission has been carried out.

We request you therefore to immediately stop action onthis proposal and only take it up after proper discussionwith the public and expert bodies.”

The BoEH, apart from noting the submissions/ objections/suggestions by those who appeared at the hearing, did notdeliberate or record specific reasons dealing with thesuggestions and objections. Having interacted with thepublic, BoEH did find merit in the objection regardingabsence and lack of information in public domain and tookspecific note of the public anxiety and ‘misgivings’. Minutesof the BoEH are an incontrovertible acknowledgement that,but for indicating the present and proposed land use, noplans, layouts, drawings etc., or written matter explanatoryor of descriptive nature to illustrate or explain the proposedchanges and project were put in public domain. BoEH hadtherefore thoughtfully recommended the need to addresslack of transparency concern by all departments. Therecommendations made by the BoEH are as under:

“(i) Regarding proposal of change of land use of PlotNo. 1, it is recommended that the revised proposal for

change of land use must be taken afresh under Section11-A pf DD Act, 1957.

(ii) Among the respondents, majority of whom arePlanners/Architects, there appears to be feeling thatauthentic technical information on this iconic project ofCentra Vista is not available in public domain, which isleading to avoidable misgivings. Board recommends thatall concerned departments need to address this concern.

(iii) Keeping in view the strong reservation of therespondents, it is suggested that impact assessmentstudies on traffic, environment and heritage may becommissioned at the earliest.

(iv) From the responses received during public hearing,it appears that the present project has not been referredto the Central Vista Committee, although in the past anysuch project has always been referred to the CentralVista Committee. Authority may like to take view onthis issue and make suitable recommendations toGovernment of India.”

On 10[th] February 2020, the proposal for modification of theCentral Vista Plan was placed before the Authority andapproved in respect of Plot Nos. 2 to 8 vide agenda itemno. 18/2020. The relevant portion of minutes reads as under:

“Item No. 18/2020

Regarding proposed change of land use of Plot Nos.1,2,3,4,5,6,7 and 8.F.20(12)2019/MP

a) The proposal was presented by Joint Secretary (L&E),MoHUA, In-charge of Central Vista Development/Redevelopment Project, who was present as SpecialInvitee. She apprised the details of the Project to themembers of the Authority.

b) JS, MoHUA informed that during the planning ofCapital City-New Delhi, the architects and urbandesigners - Edward Lutyens and Herbert Baker hadprepared an urban design plan for entire New Delhi insuch way that all the important Government offices

would come along the Central Vista (Rajpath). However,by the year 1931, when Delhi officially became capitalof India, only five (05) buildings were constructednamely, Rashtrapati Bhawan, Sansad Bhawan, Northand South Blocks and first building of the NationalArchives. She assured that the heritage buildings in theCentral Vista shall be conserved.

c) She further informed that for this Project, the followingmeasures are being taken up:

i. No trees shall be cut during the implementation of theproject. However, some trees may be transplanted forwhich techniques are available.

ii. Total tree cover shall increase with new plantation.

iii. 100% C&D waste shall be re-cycled and utilizedwithin the project.

iv. All the green building features will be followed bymaking most efficient use of resources and adoptingmodern day construction technologies.

v. Rain Water Harvesting (RWH) structures and waterconservation measures will be undertaken.

vi. Proposed development has been integrated with twometro stations in the Vista namely, Udyog Bhawan andCentral Secretariat for commuting public/governmentemployees through an underground shuttle.

vii. In the proposed scheme, the Central GovernmentMinistries/Offices will be moved to the Central Vistathereby cutting down large scale travel across 47 CentralGovernment Ministries/Offices’ Buildings spread indifferent parts of Delhi. The proposal, once implementedshall result in easing traffic flow in Lutyens’ BunglowZone (LBZ) and in the city. This will result in reductionof vehicular trips thereby reducing carbon footprint,congestion, pollution and accidents.

d) The recommendations of Board of Enquiry & Hearing(BoE&H) and the issues raised by the public in the

meeting held on 06.02.2020 and 07.02.2020, weredeliberated in the Authority meeting. MemberEngineering, DDA-cum-Chairman or BoE&H explainedthat as has been clarified by JS, MoHUA, the proposedproject addresses all issues raised by the public in acomprehensive manner. He informed that all objectionsand suggestions given by the public were duly consideredby the BoE&H. Various objections and suggestionswhich were pertaining to L&DO and PlanningDepartment of DDA were replied to by therepresentatives of these respective agencies and thedetails are available on the record. Based on the detaileddeliberations, BoE&H has recommended for issuingpublic notice for plot no. 1 and consideration of allowingchange of land use with respect to plot no. 2to 8.

e) The following facts were further elaborated by JS,MoHUA:

i. Under the proposed Development/ Redevelopment,total public space in the Central Vista is increasing byalmost 100 acres. This constitutes the following:

National Bio-diversity Arboretum in 48.6 acres landon the western end of the President’s Estates is proposedto house 1,236 endangered species in 11 differentphytological zones. This facility will be open to theresearchers as well as to the public.

North and South Blocks which cover nearly 27 acres isproposed to be converted into National Museumsshowcasing India prior to and after 1857.

Nearly 25 acres of land on the Western Bank of RiverYamuna is proposed to be developed as New IndiaGarden with an iconic structure to commemorate 75years of India’s Independence.

ii. The project also proposes to develop/re-develop theCentral Vista with proper public utilities, green spaces,water bodies, landscaping etc. whose total area will bemore than the existing area as 5.6 acres from the existingbuildings will be added to the greenspace. Further, plot

no. 8 located at Timarpur in Planning Zone-Chaving anarea of 3.9 acres is also being added to green spaces ofDelhi.

iii. The area of over 90 acres currently under Hutmentswill be properly planned and developed into organisedurban spaces.

iv. All necessary approvals for buildings and the facilitieswill be taken from the competent authorities as and whenrequired.

f) Vice Chairman, DDA apprised that notificationnumber SO 3348 (E) has been issued by the Governmentof India on 17/10/2017, whereby as per Master Plan forDelhi (MPD) - 2021, ‘Central Government Offices’ arepermitted use premise in ‘Public and Semi Publicfacilities’ (PSP) land use zones. Therefore, Authority iscompetent to allow Plot No.3,4,5 & 6, which arecurrently under PSP land use for housing ‘CentralGovernment Offices’ with 1.88 acres each in the plotNo. 3, 4 and 6 earmarked as Recreational (District Park).

g) Additional Secretary (D), MoHUA and Member, DelhiDevelopment Authority, explained that the Authority iscompetent to make the proposed modification in theMaster Plan for the land uses as these will not alter thecharacter of the Master Plan since they are in line withthe Lutyens & Bakers’ plan of housing Governmentbuildings in the Central Vista. Further, the proposal doesnot impact the extent of the land uses and the standardsof population density as has been envisaged in the MasterPlan for Delhi, (MPD) -2021. Hence, Section 11(A) (1)or Delhi Development Act, 1957, empowers the Authorityto make proposed changes under consideration. Vice-Chairman DDA further corroborated this and stated thatonly after being satisfied that the Authority is competentunder 11(A) (1) of the Act, that the proposal has beenconsidered and submitted for Authority’s approval.

Decision: After detailed deliberations, the proposal isapproved as follows:

i. public notice shall be issued for change of land usefor plot number 01 from ‘Transportation’ (Bus Terminal/parking) and ‘Recreational’ to ‘Residential’ and to beprocessed under Section 11-A of DD Act 1957.

ii. With respect to plot Nos 02 to 07; the proposal of landuse change of L&DO is approved. The proposal besubmitted to MoHUA for approval/notification.

iii. Change of Land Use for plot No 8 is approved andthe proposal be forwarded to MoHUA for approval/notification.”

(l)On 4[th] March 2020, public notice was issued with regardsto plot no.1 for which L&DO had sent revised proposal.

(m)On 9[th] March 2020, the Special Advisory Group of CentralVista and Central Secretariat (for short, ‘Central VistaCommittee’) gave its approval for the proposed change ofland use in respect of plots at serial nos. 2 to 8. We shallsubsequently refer to the minutes of this meeting andexamine the challenge to the validity of this permission/approval.

(n)On 20th March 2020, public notice was issued by theMoHUA accepting the modifications to the Master Plan ofDelhi – 2021 and the zonal development plan for Zone &

C. The notification dated 20th March, 2020 is as under:

“MINISTRY OF HOUSING AND URBANAFFAIRS

(Delhi Division)

NOTIFICATION

New Delhi, the 20th March, 2020

S.O. 1192(E).—Whereas, certain modifications whichthe Central Government proposed to make in the MasterPlan for Delhi-2021 / Zonal Development Plan of Zone-D (for Plot No. 02 to 07) and Zone-C (for Plot No. 08)regarding the area mentioned here under were publishedin the Gazette of India, Extraordinary, as Public Noticevide No. S.O. 4587(E) dated 21.12.2019 by the Delhi

Development Authority in accordance with the provisionsof Section 44 of the Delhi Development Act, 1957 (61of 1957) inviting objections/ suggestions as required bysub-section (3) of Section 11-A of the said Act, withinthirty days from the date of the said notice;

2. Whereas, 1,292 objections/ suggestions received withregard to the proposed modifications have beenconsidered by the Board of Enquiry and Hearing, set upby the Delhi Development Authority and the proposedmodifications were recommended in the meeting of DelhiDevelopment Authority held on 10.02.2020;

3. Whereas, the Central Government have after carefullyconsidering all aspects of the matter, have decided tomodify the Master Plan for Delhi-2021 / ZonalDevelopment Plan of Zone-D & Zone-C;

4. Now, therefore, in exercise of the powers conferredunder Sub-section (2) of Section 11-A of the said Act,the Central Government hereby makes the followingmodifications in the said Master Plan for Delhi-2021 /Zonal Development Plan of Zone-D & Zone-C, witheffect from the date of Publication of this Notificationin the Gazette of India.

Modifications:

The land use of the following area of land falling in Zone–D and Zone-C is changed as per description listedbelow:

F[F.No. K-13011/6/2019-DD-I]VIRENDRA KUMAR KUSHWAHA, Under Secy.”

(o)On 23[rd] April 2020, the Central Vista Committee grantedG“no objection” to the proposed new Parliament building.We shall be referring to these minutes and the challengesubsequently.

7. Conventionally, judicial review is not much concerned with themerits of an administrative decision, but rather, with the process of arriving

Aat it, and with the question of jurisdiction. The question of procedure canbe categorised under three principal heads – illegality, proceduralimpropriety and irrationality. Illegality occurs when the decision-makeracts in excess of his powers such as when he acts ultra vires or in errorof law and/or fact, unauthorisedly delegates his power, acts for improperpurpose or in bad faith or fails to act, considers irrelevant factors, imposesBonerous conditions etc. Procedural impropriety may be due to failure tocomply with the mandatory procedure of law or breach of principles ofnatural justice such as audi alteram partem, rule against bias, duty toact fairly, duty to give reasons, respecting legitimate expectation, etc.Irrationality takes into its umbrella Wednesbury unreasonableness,[1] whichconsiders decision as unreasonable if it is so outrageous in its defianceCof logic or accepted moral standards that no sensible person, applyinghis mind to the question, could have arrived at it.[2] Another ground forreview is the test of proportionality, considered by many as more intensive,and distinct from Wednesbury unreasonableness. To some jurists itrequires the court to make value judgment, independent of the decision-Dmaker, based on factors such as suitability or appropriateness, necessityand the balance or imbalance of benefits and disadvantages. We wouldsubsequently refer to and elaborate on the test of proportionality asjudicially accepted and applied in India. Presently, it would suffice tostate that proportionality incorporates and effectuates reasonableness.Proportionality is based on the principle that administrative or evenElegislative action ought not to go beyond what is necessary to achieve itsdesired aims or objectives. Even while examining the question ofWednesbury unreasonableness the court can ask whether the decisionwas within the range of rational balances that may be struck.[3]

8. In Anuradha Bhasin v. Union of India,[4] reference was made

to the earlier decision of this Court in Modern Dental College andFResearch Centre v. State of Madhya Pradesh and Others,[5] whereinreliance was placed on Aharon Barak’s work on proportionality[6], toobserve:

1 Associated Provincial Picture Houses v. Wednesbury Corporation1947 (2) All ER680 (CA)G2 All India Recruitment Board and Another v. K. Shyam Kumar and Others, (2010) 6SCC 614

3 The Nature of Reasonableness Review (by Paul Craig)

4 (2020) 3 SCC 637

5 (2016) 7 SCC 353

6 Proportionality: Constitutional Rights and its Limitations, Cambridge UniversityHPress (2012)

“60...a limitation of constitutional right will be constitutionallypermissible if:

(i) it is designated for proper purpose;

(ii) the measures undertaken to effectuate such limitationare rationally connected to the fulfilment of that purpose;

(iii) the measures undertaken are necessary in that there are noalternative measures that may similarly achieve that samepurpose with lesser degree of limitation; and finally

(iv) there needs to be proper relation proportionalitystrictosensu balancing between the importance of achieving theproper purpose and the social importance of preventing thelimitation on the constitutional right.”

This court in Anuradha Bhasin held that the principle ofproportionality is inherently embedded in the Indian Constitution underthe doctrine of reasonable restriction, which means the limitation imposedon person should not be arbitrary or of an excessive nature beyondwhat is required in the interest of public. Thereupon, reference wasmade to works of scholars/jurists and judgment of the Canadian SupremeCourt in R. Oakes,[7] to observe that some jurists have argued that if thenecessity stage is interpreted strictly, the legislation and policies, no matterhow well intended, will fail to pass the proportionality enquiry if anyother slightly less drastic measure exists. Therefore, David Bilchitz hassuggested moderate interpretation of the necessity test by stating thatnecessity involves process of reasoning designed to ensure that onlymeasures with strong relationship to the objective they seek to achievecan justify an invasion of fundamental rights. The process thus requirescourts to reason through the various stages of moderate interpretationof necessity in the following manner:

“(MN1) All feasible alternatives need to be identified, with courtsbeing explicit as to criteria of feasibility;

(MN2) The relationship between the government measure underconsideration, the alternatives identified in MN1 and the objectivesought to be achieved must be determined. An attempt must bemade to retain only those alternatives to the measure that realisethe objective in real and substantial manner;

(MN3) The differing impact of the measure and the alternatives(identified in MN2) upon fundamental rights must be determined,with it being recognised that this requires recognition ofapproximate impact; and

(MN4) Given the findings in MN2 and MN3, an overall comparisonB(and balancing exercise) must be undertaken between the measureand the alternatives. judgment must be made whether thegovernment measure is the best of all feasible alternatives,considering both the degree to which it realises the governmentobjective and the degree of impact upon fundamental rights (“thecomparative component”).”C

This approach was also adopted and preferred by A.K. Sikri, J. inK.S. Puttaswamy (Aadhaar-5J).[8] D.Y. Chandrachud, J., in the samejudgment, had referred to the threefold requirement of legality whichpostulates the existence of law; need defined in terms of legitimatestate action; and proportionality which ensures rational nexus betweenDthe objects and means adopted to achieve them. The third principle, itwas held, is the essential role of test of proportionality. Anuradha Bhasinalso refers to the four-pronged test suggested by Sanjay Kishan Kaul, J.in his concurring opinion in the Aadhar (5 Judge Bench) judgment, toelucidate that the action must be sanctioned by law; the proposed actionEmust be necessary in democratic society for legitimate aim; the extentof interference must be proportionate to need for such interference; andthere must be procedural guarantees against abuse of such interference.Accordingly, in Anuradha Bhasin it is observed that the current stateof doctrine of proportionality, as it exists in India, is the key tool to achievejudicial balance. But scholars are not agreeable to recognise proportionalityFequivalent to that of balancing.9. However the exercise of balancing involved in the proportionalityor reasonableness, in the context of the statutory provisions quoted aboveand as noticed below, necessitates knowledge of various alternativesavailable to the Authority/Central Government, and this is mandateGenabled inter alia by the process requiring public consultation. Legislationis often an exercise to select between options. Therefore issue of choicebetween alternatives, when public participation in quasi legislative orstatutory exercise is mandated by law, has different implications, for

example under the Environment Protection Act. This aspect would beconsidered subsequently.

10. In Gwalior Rayon Silk Mfg. Co. Ltd. v. AssistantCommissioner of Sale Tax,[9] the Constitutional Bench of this Court hadreferred to the precedents on constitutional limitation on delegation,including the decision in In Re.: The Delhi Laws Act.[10] It observed thatthere are limits to delegation which flow from the rule and necessarypostulate of the sovereignty of the people and, therefore, it is notpermissible in the matter of legislative policy to substitute the views ofindividual officers or other authorities, however competent they may be,for that of the popular will as expressed by the representatives of thepeople in the primary legislation. Nevertheless the court accepted thatgrowth of legislative powers of the executive is significant developmentof the last century consequent to need and necessity, as delegatedlegislation gives flexibility, elasticity, expedition and opportunity forexperimentation. However, it was emphasised that constitution-makershave entrusted the power of legislation to the representative legislatureso that the legislative power may be exercised not only in the name ofthe people, but also by the people speaking through their representatives.

11. Indian Express Newspapers v. Union of India[11 ]holds thatsubordinate legislation does not carry the same degree of immunity asenjoyed by statute passed by competent legislature. In addition to thegrounds on which primary legislation may be contested, subordinatelegislation can also be questioned on the ground that it does not conformto the statute under which it was made, it is contrary to some otherstatute, or that it was not formed in consonance with the legislative intentas reflected in the rule making power given under the statute. UnderArticle 14 of the Constitution of India, administrative decisions andsubordinate legislations can be challenged and struck down when anaction exhibits manifest arbitrariness. Quoting Diplock, L.J. in Mixnam’sProperties Ltd. v. Chertsey Urban District Council,[12 ]this court notedthat subordinate legislation can be questioned on the ground ofunreasonableness – not in the sense in which this expression is used incommon law – but manifest arbitrariness, injustice or partiality when thecourt finds that the legislature would have never intended and given

9 (1974) 4 SCC 98

10 AIR 1951 SC 332

11 (1985) 1 SCC 641

12 (1632) 2 All ER 787

Aauthority to make the rules under challenge or when there is uncertainty(as distinct from unenforceability) that it can be said that the legislaturehad not intended to authorise the subordinate legislative authority to makechanges in the existing law which are uncertain. In Kruse v. Johnson,[13]Lord Russell, C.J. observed that by-laws can be held illegal on accountof being unreasonable – in the sense that if they are found to be partialBand unequal in their operation as between different classes; if they weremanifestly unjust; if they disclose bad faith; if they involve such oppressiveor gratuitous interference with the rights of those subject to them ascould find no justification in the minds of reasonable men. Referring tothe said aspects, in Kerala Samsthana Chetu Thozhilali Union v. StateCof Kerala & Ors.,[14] it was observed that subordinate legislation it istrite must be reasonable, in consonance with the legislative policy andalso give effect to the purport in the main enactment and in good faith.The reason being that the subordinate law making body is bound by theterms of the delegative and the derived authority and the court, as ageneral rule, shall not give effect to the rules except where it is satisfiedDthat all the conditions precedent for validity of the rules have been fulfilled.Reference was made to the 7th Edition of Craies on Statute Law atpages 297-298 wherein it is observed:

“31...The courts therefore (1) will require due proof that the ruleshave been made and promulgated in accordance with the statutoryEauthority, unless the statute directs them to be judicially noticed;(2) in the absence of express statutory provision to the contrary,may inquire whether the rule-making power has been exercisedin accordance with the provisions of the statute by which it iscreated, either with respect to the procedure adopted, the form orFsubstance of the regulation, or the sanction, if any, attached to theregulation; and it follows that the court may reject as invalid andultra vires regulation which fails to comply with the statutoryessentials.”

12. Similarly, G.P. Singh in Principles in Statutory InterpretationG(14[th] edition) at page 916 observes that delegated legislations are opento scrutiny of courts and may be declared as invalid particularly on twogrounds – (i) violation of the constitution; and (ii) violation of the enablingact. The second ground includes not only cases of violation of substantive

13 1898, Divisional Court14 (2006) 4 SCC 327H

provisions of the enabling act but also cases of violation of the mandatoryprocedure prescribed. Compliance with the laying down requirementwhich includes approval of the Parliament through resolution wouldnot confer any immunity to delegated legislation though it may be acircumstance to be taken into account along with other factors to upholdvalidity though it has been held that laying down clause may prevent thesubordinate legislation from being declared invalid for excessivedelegation.

13. In Ispat Industries Limited v. Commissioner of Customs,[15]reference was made to pure theory of law and that in every legal systemthere is hierarchy of laws, and whenever there is conflict between anorm in higher layer in this hierarchy and the norm in the lower layer,the norm in the higher layer will prevail. In India, the hierarchy puts theConstitution at the highest level followed by statutory law either by theParliament or the State Legislature, delegated or subordinate legislationwhich are in the form of rules made under the Act, regulations madeunder the Act and then at the lowest level are the administrative ordersor executive instructions without any statutory backing.14. It has been argued before us that formulation or amendment/modification of city’s Master Plan is not an administrative but alegislative exercise. Relying on the decisions in Union of India v.Cynamide India Ltd.,[16] and Pune Municipal Corporation v. Promotersand Builders’ Association,[17] the respondents submit that the distinctionis that legislative act is the creation and promulgation of general ruleof conduct without reference to particular cases and usually operates infuture; whereas administrative act applies to specific individuals orsituations or making decisions by applying general rules to particularcases.

15. In Cynamide, this Court observed that price fixation underthe Essential Commodities Act and the Drugs (Price Control) Order,1979 is neither the function nor forte of the court but that of experts andis more or less legislative in character. Nevertheless, the court wouldnot totally deny jurisdiction to inquire into the question whether relevantconsiderations have been gone into and irrelevant considerations havebeen kept out of the determination of the price, especially when thelegislature has decreed the pricing policy and prescribed the factors which

15 (2006) 12 SCC 583

16 (1987) 2 SCC 720

17 (2004) 10 SC 796

Ashould guide the determination. Observations of Chinnappa Reddy, J.,quoted with approval in State of U.P. and Others v. Renusagar PowerCo. and Others,[18 ]refers to proliferation of delegated legislation, due towhich there is tendency for the line between legislation andadministration to vanish into an illusion. Administrative and quasi-judicialactions tend to merge into legislative activity and, conversely, legislativeBactivity tends to fade into and present an appearance of an administrativeor quasi-judicial activity. Chinnappa Reddy, J. insisted that it may benecessary that line must sometimes be drawn as different legal rightsand consequences may ensue. Nevertheless, such decision must bearrived at objectively and in consonance with the principles of naturalCjustice.16. In Cynamide, this court while accepting that legislative action,preliminary or subordinate, is not subject to rules of natural justice,nevertheless held that there are several instances of the legislationrequiring the subordinate legislating authority to give notice and conduct

Dpublic hearing before they legislate. Occasionally, legislature directs thesubordinate legislating body to make ‘such enquiry as it thinks fit’ beforemaking the subordinate legislation. In such situations, the nature andextent of inquiry is in the discretion of the subordinate legislating bodyand is not open to question on the ground that the inquiry was not as fullas it might have been. This would not confer any right on anyone.[19] TheEposition, however, would be different where the legislature specificallydirects the subordinate legislating body to invite objections and suggestionsfrom the general public which must be considered before the subordinatelegislation is made and enacted. Therefore, decision in Cynamide whileobserving that rules of natural justice are not applicable to legislativeFaction, primary or subordinate, draws clear caveat, that this dictum isnot applicable when the legislation has itself provided for duty andobligation to consult. When the legislation stipulates such right, thenthe ordinary rule of non-application of right to consult for legislativeaction is irrelevant. In such case, obligation to consult and right tohearing may be substantive right.G17. In Cellular Operators Association of India and Others v.Telecom Regulatory Authority of India and Others,[20 ]the dictum in

18 (1988) 4 SCC 5919 See - Rayalaseema Paper Mills Limited and Another v. Government of A.P. andOthers, (2003) 1 SCC 34120 (2016) 7 SCC 703H

Cynamide India Ltd. was followed. Section 11(4) of the TelecomRegulatory Authority of India Act, 1997, it was held, requires that theauthority (i.e. TRAI) shall ensure transparency in exercise of its powerin discharging the functions. In the said case, the authority had failed tohold consultation with all stakeholders and had not allowed stakeholdersto make their submissions to the authority. Further, there was no discussionor reasoning dealing with the arguments put forward by the serviceproviders that call drops occurred for variety of reasons, some ofwhich were beyond the control of the service provider and were becauseof the consumer himself. Therefore, the conclusion that the serviceproviders alone were to be blamed and consequently deficiency in servicewas not conclusion which reasonable person can reasonably arriveat.

18. On the question of transparency, Cellular OperatorsAssociation of India observes that these are fundamental questionsrelating to openness of governance. Right to Information Act, 2005 hasgone long way to strengthen democracy by requiring that thegovernment be transparent and open in its actions. Only then an informedcitizenry would be able to contain corruption and hold the governmentand its’ instrumentalities accountable to the people. Preamble of theRight to Information Act echoes this sentiment stating that informedcitizenry and transparency of information are vital for functioning of thegovernment and its’ instrumentalities. On the question of opengovernance, observations by Mathew, J., in State of U.P. v. Raj Narain,[21]was reproduced:

“74...The people of this country have right to know every publicact, everything that is done in public way, by their publicfunctionaries. They are entitled to know the particulars of everypublic transaction in all its bearing. To cover with veil of secrecy,the common routine business, is not in the interest of the public.Such secrecy can seldom be legitimately desired.”

Thereafter, it was observed that right to information is basicallyfounded on the right to know which is an intrinsic part of the fundamentalright to free speech and expression. Reference was also made to decisionsin Secretary, Ministry of Information & Broadcasting v. CricketAssociation of Bengal,[22]Reliance Petrochemicals Ltd. v. Proprietors

21 (1975) 4 SCC 42822 (1995) 2 SCC 161

Aof Indian Express Newspapers, Bombay Pvt. Ltd.[23]and People’sUnion for Civil Liberties v. Union of India.[24] The decision in ReliancePetrochemicals recognised the right to information as fundamentalright under Article 21 of the Constitution. Sabyasachi Mukharji, J., asHis Lordship then was, has held:

B“34…We must remember that the people at large have right toknow in order to be able to take part in participatory developmentin the industrial life and democracy. Right to know is basic rightwhich citizens of free country aspire in the broader horizon ofthe right to live in this age in our land under Article 21 of ourConstitution. That right has reached new dimensions and urgency.CThat right puts greater responsibility upon those who take uponthemselves the responsibility to inform.”

19. Earlier, in Central Board of Secondary Education v. AdityaBandopadhyay,[25 ]this Court had divided information into threecategories, namely, (i) information, that promotes transparency andDaccountability in the working of every public authority, and may alsohelp contain or discourage corruption, enumerated in clauses (b) and (c)of Section 4(1) of the Right to Information Act; (ii) other information,that is, information not falling within clauses (b) and (c) of Section 4(1)of the Right to Information Act; and (iii) information not held by, orEunder the control of the public authority, which cannot be accessed by apublic authority under the law for the time being in force. The thirdcategory information is excluded and does not fall within the scope ofthe Right to Information Act. Significant for our purpose are observationsthat there is also special responsibility upon the public authorities tosuo moto publish and disseminate information falling in the first categoryFso that they will be easily and readily accessible to public without anyneed to assess them through recourse of Section 6 of the Right toInformation Act. This is statutory obligation imposed by Section 4(1)(b)and (c) as also sub-sections (2), (3) and (4) of Section 4 relating todissemination of information. Thereupon, reference was made to sectionG19(8) of the Right to Information Act which entrusts the InformationCommissions with the power to require any public authority to take anysteps as may be necessary to secure compliance with the provisions of

23 (1988) 4 SCC 59224 (2004) 2 SCC 476H25 (2011) 8 SCC 497

the Right to Information Act. It states that every public authority shallmaintain its records duly catalogued and indexed in the manner and formwhich facilitates the right to information so as to ensure that informationenumerated in clauses (d) and (e) of Section 4(1) of the Right toInformation Act are published, disseminated and periodically updated.This, it was observed, would ensure transparency and accountabilityand enable the citizens to have access to relevant information and avoidunnecessary applications qua information under the Right to InformationAct.20. Public consultation in legislation as statutory mandate wasexamined by Constitutional Bench in Raza Buland Sugar Co. Ltd. v.Municipal Board, Rampur[26 ]to observe that the procedure for impositionof tax by the Municipal Board which required framing of proposal andpermitted any inhabitant of municipality to submit an objection to all orany of the proposals within fortnight, and the Board upon considerationcould pass orders, was necessary or mandatory. The Constitutional Benchelucidated that while use of the word ‘shall’ in the statute, whethermandatory or directory, cannot be resolved by laying down general rule;the object of the statute in making the provision is determining factor.The intention of the legislature in making the provision, the serious generalinconvenience or injustice to persons resulting from whether the provisionis read one way or the other, the relation of the particular provision toother provisions dealing with the same subject and other considerationswhich may arise on the facts of particular case including the languageof the provision have to be taken into account for arriving at the conclusionwhether the provision is directory or mandatory. The majority judgmentthereafter referred to the statutory position and the facts of the case athand to observe that publication of proposals was obviously to furtherthe democratic process and to provide reasonable opportunity of beingheard to those who are likely to be affected by the tax proposal. Theobject behind the publication was to elicit the reaction of the taxpayers,and the Board could even drop the proposal altogether if reaction of taxpayers in general merited disapprobation. However, another provisionof the statute relating to manner of publication, it was observed, was notmandatory and therefore so long as substantial compliance of the manneras provided was observed, it would be sufficient. The contention thatthe publication as per the mandate of the statute needs to be in Hindi

Athough the paper itself was published in Urdu was not good ground tostrike down the delegated legislation.

21. In Lachmi Narain v. Union of India[27] in the context oflegislation requiring publication of notice and public consultation threeobservations were made. Firstly, the requirement for publication of noticeBof not less than three months before amending the Second Schedule ofthe Sales Tax Act was held to be mandatory and not directory as theintention of the law makers was expressed in the law itself – the word‘must’ instead of ‘shall’ had been used. When the provision is couchedin prohibitive or negative language it can rarely be directory; pre-emptorylanguage in negative form is per se indicative of the intent that the provisionCis mandatory. Secondly, the period fixed in the notice, was mandatorykeeping in view several factors such as the imposition of new tax burdenor exemption from taxes should cause least dislocation or inconvenienceto the dealer in collecting tax for the government, keeping accounts andfiling proper returns, and to the Revenue in assessing and collecting theDsame. Thirdly, dealers and others likely to be affected by the amendment,must get sufficient time and opportunity for making representation,objection, suggestion, in respect of the intended amendment. Accordingly,period of not less than three months was absolute and the span of thenotice was thus the essence of the legislative mandate.E22. In Bhausaheb Tavanappa Mahajan v. State ofMaharashtra,[28] Madan, J., as His Lordship’s then was, observed thatthe mode of publication under the Maharashtra Agricultural ProduceMarketing Act was mandatory as the word ‘shall’ prima facie requiresstrict compliance and when read with the other provisions, and, theconsequences which flow from construing the word one way or theFother as it would affect the trade and business of several persons, includingagriculturists, it would be proper to hold that the legislative intent was tomake the requirement of publication mandatory and not leave it toindividual notice of different officers of the State.

23. On general observations and need for public consultation inGdelegated legislation in Harvinder Singh and Others v. State ofPunjab,[29] reference was made to working paper presented byProfessor Upendra Baxi that executive law making gives exclusive

27 (1976) SCC 2 95328 AIR 1982 Bom 284H29 (1979) 1 SCC 137

prerogative to small cross-section of people which necessarily effectsboth the quality of law making as well as its social communication,acceptance and effectiveness, resulting in highly centralised system ofpower. He observed that it is time that India considered desirability andfeasibility of building into public law-making process substantial amountof public participation. Mr. Justice Krishna Iyer in rather strong words inparagraph 52 and 53 observed that subordinate legislation beingbureaucratic driven, even when well-meaning and well-informed, couldsometimes be para-babel to local self-government. Further, doctrine ofdelegation in its extreme proportions is fraught with danger which we innaivety may not be fully cognizant. The system of government needscareful, yet radical restructuring, if participative and pluralistic governmentby the people is to be jettisoned. Similarly, in Cellular OperatorsAssociation of India, this court consciously referred to U.S.Administrative Procedure Act and Corpus Juris Secundum to observethat it would be healthy function of our democracy, if all subordinatelegislation, subject to some well-defined exceptions, are made bytransparent process together with explanatory memorandum; after dueconsultation is held and the rule and regulation making power is exercisedafter due consideration and by giving reasons for agreeing and disagreeingwith the concerns. This would be conducive to openness, improvedgovernance, and would also take care of most grievances and therebyreduce litigation. These observations may not be binding dictumsenforceable in law, but should be effectively applied when the legislationitself mandates and requires public participation, thereby making it aworthy and meaningful exercise.

24. In R (Moseley) v. London Borough of Haringey,[30] the UnitedKingdom Supreme Court examined the question of what are the essentialingredients of requisite consultation when the Parliament requires localauthority to consult interested persons before making decision whichwould potentially affect all its inhabitants. Lord Wilson approved thefour gunning principles propounded in R v. Brent London BoroughCouncil, ex parte Gunning[31]and read:

“Mr Sedley submits that these basic requirements are essential ifthe consultation process is to have sensible content. First, thatconsultation must be at time when proposals are still at

30 (2014) UKSC 56

31 (1985) 84 LGR 168

638SUPREME COURT REPORTS

Aformative stage. Second, that the proposer must give sufficientreasons for any proposal to permit of intelligent consideration andresponse. Third,… that adequate time must be given forconsideration and response and, finally, fourth, that the product ofconsultation must be conscientiously taken into account in finalisingany statutory proposals.”BLord Wilson observed that it was hard to see how any of the fourrequirements could be rejected or indeed improved. It was also observedthat the public authority’s duty to consult those interested before takinga decision may arise in variety of ways – most commonly where theduty is generated by statute. It can also arise under common law dutyCof procedural fairness in the form of doctrine of legitimate expectation.But, irrespective of how the duty to consult has arisen, it is the commonlaw duty of procedural fairness to inform the manner in which theconsultation should be conducted. Fairness is protean concept notsusceptible to much generalised enlargement, but its requirements in the

Dcontext must be linked to the purposes of consultation. The first objectiveobviously is to address the common law duty of procedural fairness indetermination of person’s legal right. Three other underlying purposesare: (i) that consultation results in better decisions by ensuring that thedecision maker receives all relevant information and is properly tested;(ii) it avoids the sense of injustice which the person who is the subject ofEthe decision will otherwise feel; and (iii) it is reflective of democraticprinciple at the heart of our society. At the same time, it was observedthat the degree of specificity with which the public authority shouldconduct its consultation exercise may be influenced by the identity ofthose it is consulting and the effect which the proposal has. In givenFcase, it may also include information relatable to arguable yet discardedalternative options, though consulting about proposal may not inevitablyinvolve inviting and considering use of possible alternatives. Therefore,it would be situation specific. Lord Reed observed that the common lawimposes general duty of procedural fairness upon public authorities

exercising wide range of functions which affect the interest ofGindividuals, but the content of that duty varies almost infinitely dependingupon the circumstances. Duty to consult, though not general commonlaw duty, can exist in circumstances where there is legitimate expectationof such consultation which is founded on an expectation, or from apractice of consultation. It may also arise from statutory duty ofHconsultation. In some cases, the statute may give discretion to the public

authority to restrict such consultation to particular consultancy or mayinvolve general public. The consultation may take the form of takingviews of the public or holding public meetings etc. mechanistic approachto the requirement of consultation should be avoided. Depending uponcircumstances, issues of fairness may be relevant to the explication ofthe duty to consult. The purpose of this statutory duty to consult is toensure public participation in the local authority’s decision-making process.In order for the consultation to achieve that objective it must fulfil certainminimum requirements to ensure meaningful public participation in theparticular decision-making process. Thus, the public should be providednot only with information about the draft scheme but also an outline ofrealistic alternatives and indication of main reasons for the authority’sadoption of the draft scheme. It is general obligation to inform as towhat the proposal is and exactly why it is under positive consideration. Itshould tell enough to enable the public to make an intelligent response.(We have subsequently discussed the principle of procedural legitimateexpectation.)

25. Gunning principles, first established in 1985, can be crystallisedas under:

a.consultation must occur when the proposals are still at aformative stage;

b.the proponent must give sufficient reasons for the proposalEthat permit intelligent consideration and response;

c.adequate time must be given for consideration and response;and

d.the product of consultation must be conscientiously takenFinto account in finalising any statutory proposals.These principles reflect the basic requirements essential if thepublic consultation process is to be sensible and meaningful. They wouldnormally form the basis and foundation for proper application of the dutyto consult and right to be consulted. Nevertheless, these principles shouldG

These principles reflect the basic requirements essential if thepublic consultation process is to be sensible and meaningful. They wouldnormally form the basis and foundation for proper application of the dutyto consult and right to be consulted. Nevertheless, these principles shouldnot be put in strait-jacket and the degree of application would dependupon the factual matrix and is situation specific. In United Kingdomgrant of relief is now covered by Criminal Justice and Courts Act, 2015which defines the circumstances in which the court must refuse relief.One of the grounds is when it appears to the court that it is highly unlikelythat the outcome for the applicant would have been substantially different

Aif the conduct complained of had not occurred. However, the court maynot apply the ‘no difference test’ where it considers it appropriate to doso for exceptional public interest. There are similar principles relating toundue delay in making claim for judicial review; extent of sufficientinterest of the claimant; whether or not no harm is suffered or prejudiceis caused by an unlawful act; the courts’ discretion not to provide aBremedy to make an order would serve no practical purpose; financialimplications of the remedy, etc. are to be taken into consideration.Referring to the relief aspect, in Stephen Viera v. London Borough ofCamden,[32] it was observed as follows:“106. quashing order should only be refused if it is inevitableCthat the outcome would have been the same had the correctprocedures been followed (see R (Copeland) v. London Boroughof Tower Hamlets (2011) J.P.L. 40 at para 36, 37 citing Smith v.North Derbyshire Primary Care Trust (2006) EWCA Civ 1291,per May LJ at (10):

D“...Probability is not enough. The defendants would have toshow that the decision would inevitably have been the sameand the court must not unconsciously stray from its properprovince of reviewing the propriety of the decision makingprocess into the forbidden territory of evaluating the substantialmerits of the decision...”E26. In Cellular Operators Association, this Court had quoted thedecision of Court of Appeal in England, R. v. North and East DevonHealth Authority, ex p Coughlan[33] as to the meaning of the term‘consultation’:

“108. It is common ground that, whether or not consultation ofFinterested parties and the public is legal requirement, if it isembarked upon it must be carried out properly. To be proper,consultation must be undertaken at time when proposals are stillat formative stage; it must include sufficient reasons for particularproposals to allow those consulted to give intelligent considerationand an intelligent response; adequate time must be given for thisGpurpose; and the product of consultation must beconscientiously taken into account when the ultimate decisionis taken...”

(emphasis as originally supplied)

32 (2012) EWHC 287H33 2001 QB 213 : (2000) 2 WLR 622 (CA)

27. We have already referred to Sections 7 to 11-A of theDevelopment Act which decree detailed procedure for preparation of aMaster Plan and the Zonal Development Plan(s) including direction thatthe Authority shall prepare draft and make copy available for inspectionto general public and invite objections and suggestions from any person.Every local authority within whose limit any land, as per the plan, issituated is to be given reasonable opportunity to make representation.Only on considering all representations, suggestions and objections, theAuthority, under sub-section (3) to Section 10, can prepare final planand submit it to the Central Government for its approval. Sub-section (4)to Section 10 makes provisions of the rules made in this behalf withrespect to form and content of the plan(s) and the procedure binding.Consequently, the Development Rules, which are the subordinatelegislation, are part of the Development Act. The Authority, CentralGovernment and common public are bound by the Development Rules,as they are bound to follow and abide by the Development Act. ThisCourt in Rajasthan State Road Transport Corporation v. Bal MukundBairwa[34] and Annamalai University v. Secretary to Government,Information and Tourism Department,[35] has held that subordinatelegislation when validly framed becomes part of the main enactment.The consequence thereof clearly is that the Development Rules shouldbe read as part and are equally enforceable as the Development Act. Inthis context, we would refer to Rule 4 of the Development Rules as itelucidates the form and contents of the draft Master Plan to be madepublic to invite objections, suggestions and representations. As per sub-rule (1) to Rule 4, the draft plan is to consist of such maps, diagrams,charts, reports, and other written matter of explanatory or descriptivenature as pertained to the development of whole or any part of Delhi.Sub-rule (2) to Rule 4 states that the written matter forming part of theMaster Plan shall include such summary of main proposals and suchdescriptive matter as the Authority may consider necessary to illustrateand/or explain the proposal indicated by maps, charts, diagrams and otherdocuments. Clauses (a) to (j) of sub-rule (3) to Rule 4 list out otherdetails which may be included. For the purpose of record, we must statethat the expression ‘Master Plan’ as per sub-section (1) to Section 9, forpurposes of Sections 10, 11, 12 and 14, would also mean the ZonalDevelopment Plan for zone.34 (2009) 4 SCC 299 (see paragraph 39)

35 (2009) 4 SCC 590 (see paragraph 42)

DEF

A28. Gunning principles can be substantially read as resonating inSections 10, 11 and 11-A of the Development Act and Rules 4, 8, 9 and10 of the Development Rules. To ignore their salutary mandate as to themanner and nature of consultation in the participatory exercise, wouldbe defeat the benefic objective of exercise of deliberation. PublicBparticipation to be fruitful and constructive is not to be mechanicalexercise or formality, it must comply with the least and basicrequirements. Thus, mere uploading of the gazette notification giving thepresent and the proposed land use with plot numbers was not sufficientcompliance, but rather an exercise violating the express as well as impliedstipulations, that is, necessity and requirement to make adequate andCintelligible disclosure. This condition also flows from the common lawgeneral duty of procedural fairness. Doctrine of procedural legitimateexpectation as explained below would be attracted. Intelligible andadequate disclosure of information in the context of the DevelopmentAct and the Development Rules means and refers to the degree to whichDinformation should be available to public to enable them to have aninformed voice in the deliberative decision making legislative exercisebefore final decision is taken on the proposals. In the present matterthis lapse and failure was acknowledged and accepted by the BoEH,which had recommended disclosure and furnishing of details. IntelligibleEand adequate disclosure was critical given the nature of the proposalswhich would affect the iconic and historical Central Vista. The citizenryclearly had the right to know intelligible details explaining the proposal toparticipate and express themselves, give suggestions and submitobjections. The proposed changes, unlike policy decisions, would beFlargely irreversible. Physical construction or demolition once done, cannotbe undone or corrected for future by repeal, amendment or modificationas in case of most policies or even enactments. They have far morepermanent consequences. It was therefore necessary for the respondentsto inform and put in public domain the redevelopment plan, layouts, etc.with justification and explanatory memorandum relating to the need andGnecessity, with studies and reports. Of particular importance is whetherby the changes, the access of the common people to the green and otherareas in the Central Vista would be curtailed/restricted and the visualand integrity impact, and proposed change in use of the iconic and heritagebuildings.H

29. In Hanuman Laxman Aroskar v. Union of India,[36] on thequestion of public consultation in the case of environment clearance hadobserved:

“112.8... Public consultation cannot be reduced to mereincantation or procedural formality which has to be completedto move on to the next stage. Underlying public consultation is theimportant constitutional value that decisions which affect the livesof individuals must, in system of democratic governance, factorin their concerns which have been expressed after obtaining fullknowledge of project and its potential environmental effects.

30. Similarly, in M.C. Mehta v. Union of India,[37] on the questionof amendment of Master Plan and the need for proper public participation,this Court had held:

“15. We may mention that it has been recorded that Delhi is beingravaged by unauthorised encroachments and illegal constructionswith impunity and none of the civic authorities including the DelhiDevelopment Authority was sincerely carrying out its statutoryduties. It is painful to require the issuance of directions to statutoryauthorities to carry out their mandatory functions in accordancewith the law enacted by Parliament. Unfortunately, the situationin Delhi warranted such direction due to the apathy of the civicauthorities.16. Again unfortunately, instead of taking the people of Delhi intoconfidence with regard to amendments to the Master Plan, bogeyof public order and rioting has been sought to be communicated tous as if the law and order situation in Delhi was getting out ofcontrol. We are at loss to understand the hyper reaction andhow changes in the Master Plan are sought to be brought aboutwithout any meaningful public participation with perhaps an intentto satisfy some lobbies and curtailing period of 90 days to just 3days on some unfounded basis. It must be appreciated that thepeople of Delhi come first.

17. It is for the purpose of taking the public in Delhi into confidenceand working for their benefit that an opportunity was granted tomake suggestions and raise objections to the proposed amendments

36 (2019) 15 SCC 401

37 (2019) 12 SCC 720

Ato the Master Plan and which were not objected to by the learnedAttorney General on 15-5-2018 keeping in view the spirit behindthe invitation to object and make suggestions and curtailment ofthe normal statutory period.

18. In view of the above, the oral request of the learned AttorneyBGeneral to modify the order dated 15-5-2018 is rejected. TheCentral Government should expeditiously implement the orderdated 15-5-2018 in letter and spirit keeping the interest of thepublic of Delhi in mind.”

31. In R.K. Mittal v. State of Uttar Pradesh,[38] this Court dealingCwith the action taken by the development authority and the allegationthat it was not in conformity with the Master Plan, the regulations andthe statutory enactment, this Court observed:

“49. The Development Authority is inter alia performing regulatoryfunctions. There has been imposition of statutory duties on theDpower of this regulatory authority exercising specified regulatoryfunctions. Such duties and activities should be carried out in away which is transparent, accountable, proportionate andconsistent. It should target those cases in which action is calledfor and the same be exercised free of arbitrariness. TheDevelopment Authority is vested with drastic regulatory powersEto investigate, make regulations, impute fault and even to imposepenalties of grave nature to an extent of cancelling the lease.The principles of administrative justice squarely apply to suchfunctioning and are subject to judicial review. The DevelopmentAuthority, therefore, cannot transgress its powers as stipulated inFlaw and act in discriminatory manner. The Development Authorityshould always be reluctant to mould the statutory provisions forindividual, or even for public convenience as this would bring aninbuilt element of arbitrariness into the action of the authorities.Permitting mixed user, where the Master Plan does not so provide,would be glaring example of this kind.”G32. Similar are the observations in Rajendra Shankar Shukla v.State of Chhattisgarh[39], wherein with regard to town planning anddevelopment reference was made to the ‘principles of natural justice’,

38 (2012) 2 SCC 23239(2015) 10 SCC 400H

when the town planning and development authority wanted to reconstitutethe plots and change the land use. Referring to the functioning of thecommittee which had to hear the objections of the parties, it was observed:

“103. The functioning of the Committee under Section 50(5) ofthe 1973 Act is dissatisfactory and required the process to befollowed afresh. The Committee constituted under the aforesaidAct to hear objections of the desirous parties, was mere eyewash.The Committee rejected the objections submitted by the appellantswithout providing any reasons for the same and not even providingany hearing opportunities to put forth their objections before thesaid Committee. Therefore, the recommendations of theCommittee did not carry any weight. This action of the StateGovernment is vitiated in law and therefore liable to be set aside.”33. Reference can also be made to Indore Development Authorityv. Madan Lal,[40] wherein it has been held as follows:

“10. We do not think that the Development Authority was justifiedin following short cut in this case. The procedure followed underthe Trust Act could not be sufficient to dispense with all therequirements of Section 50 of the Adhiniyam. As earlier noticedthat Section 50 of the Adhiniyam provides procedure forpreparation and approval of scheme for development. Afterpreparing draft scheme, the Development Authority must inviteobjections and suggestions from the public. There must be dueconsideration of the objections and suggestions received in thelight of the Master Plan of Indore. Indeed, the public must alsohave an opportunity to examine the scheme and file objections inthe light of the Master Plan if the Development Authority wantsto adopt the scheme. Since the scheme in question was not anapproved scheme under the Trust Act, the Development Authoritycould not have dispensed with the procedure prescribed underSection 50 of the Adhiniyam.”

34. More direct and relevant is the decision in Syed Hasan RasulNuma v. Union of India[41] in which this Court had interpreted Section44 of the Development Act requiring issue of public notice invitingobjections to the proposed modifications in the Master Plan. On the

40 (1990) 2 SCC 33441 (1991) 1 SCC 401

ABC

DEF

Aaspect of consideration of objections, reliance was placed on the affidavitfiled by the Secretary of the Authority stating that the objections weretransmitted to the Central government for consideration as in the case itwas the Central Government alone that was competent to consider theobjections received from the interested persons. However, it was heldthat in the absence of any discussion in the minutes of the meeting it wasBdifficult to accept that objections of the appellant before this Court likeother objections were considered by the Central Government.Accordingly, the High Court was in error in assuming that no prejudicehas been caused to the persons who had filed objections and suggestions.On the question of consideration of the objections, this Court hasCobserved:

“It is evident from these averments that the appellants’ statementof objections was not listed in the agenda of the meeting convenedfor consideration of all the objections received. It is, however,claimed that the appellants’ objection was read and ruled out inDthe meeting. But there is no record to indicate that it wasconsidered and rejected. At any rate, it is not borne out from theproceedings of the meeting. In fact, it is admitted that there is norecord with regard to disposal of the objection in question. It is notas if the proceedings of the meeting are not recorded andmaintained. It is very much there, but it is confined only to theElisted items in the agenda of the meeting. When the proceedingsof the meeting are recorded, one would naturally expect that allthat transpired in the meeting should find place in the minutes ofthe meeting. In the absence of any such record, we find it difficultto accept the mere allegation of the respondents that the appellants’Fobjection like any other objection was considered by the authorities.The High Court therefore, seems to be in error in assuming thatthere was no prejudice to the appellants. We do not however,mean to say that the appellants have right to have their belatedobjection considered by the authorities. If there was validpublication of the notice as prescribed under the law, they oughtGto have filed the objection within the period specified in the notice.They could not file their objection after the prescribed period andcomplain that they have been prejudiced by the non-considerationof the objection. The prejudice could be presumed only when theobjection filed within the prescribed period is not considered byHthe competent authorities.”Secondly, with reference to Section 44 which requires issuanceof public notice, it was observed that the provision though not happilyworded, the case for violation has been made out as the authorities hadto follow two out of the three alternative methods prescribed. This ismandatory. Thereafter, it was held:

“Section 11-A of the Act provides procedure for modification tothe Master Plan and the zonal development plan. Sub-section (3)thereof provides that before making any modifications to any plan,the Authority or, as the case may be, the Central Governmentshall publish notice inviting objections and suggestions frompersons with respect to the proposed modification before the datespecified in the notice. This is to give an opportunity to personswho are likely to be affected by the modification of the Plan tofile objections and suggestions. Indeed, the interested persons orthe persons who are likely to be affected have right to file theirobjections and representations within the time specified. They havefurther right to have the objections considered by the competentauthorities. In order to effectuate these rights, the prescribed meansof publication must be faithfully followed giving the persons clearnotice as specified in the statute. The provision providing suchnotice to persons whose rights or interests are likely to be impairedmust always be considered as mandatory. As otherwise, it woulddefeat the very purpose of giving public notice inviting objectionsand suggestions against the proposed action.”

In the said case, only one out of three means for publicationprovided in Section 44 was adopted, which it was observed falls short ofthe mandatory requirement. The public notice was therefore quashedwith costs. This decision would be also relevant when we examine thequestion of failure of the Central Government to pass an order undersub-section (6) to Section 11-A and apply its mind to the objections andsuggestions received from the public in respect of the proposedmodifications. Instead, as noticed below the exercise was undertakenby the Authority.

35. We have already quoted observations in Raza Buland Sugar(approving the dictum recorded in State of U.P. v. Manbodhan LalSrivastava[42], which cites Montral Street Railway Company v.Normandin[43]) that any determination whether statutoryprovision is

42 AIR 1957 SC 91243 AIR 1917 PC 142

Amandatory or directory must be made not only in the light of the languageof the provision but also based on whether the provisions of the statuterelate to performance of public duty and the case is such that to hold nulland void acts done in neglect of this duty would work against seriousgeneral inconvenience, or injustice to persons who have no control overthose entrusted with the duty and at the same time would not promoteBthe main objective of the legislation. This is not so in the present case.Further, it is the duty of the courts to get at the real intention of thelegislature by carefully attending to the scope of the statute consideredand not merely upon the language in which the intent is clothed. This canbe done by considering the phraseology of the provision, its nature, itsCdesign and consequences that would follow from construing it one wayor the other. The court can also take into account that if the necessity ofcomplying with the provision in question is avoided, whether the statuteprovides for contingency for non-compliance and whether or not thesame is visited with some penalty, the serious or trivial consequencesthat flow therefrom and above all whether the object of the legislationDwould be defeated or furthered (See State of U.P. v. Babu RamUpadhyay[44]). If the provision is mandatory the breach whereof willmake the action invalid. If it is directory, the act will be valid althoughnon-compliance may give rise to other penalty provided by the statute.The correct proposition appears to be that substantial compliance of theEenactment is insisted, where mandatory and directory requirements areclubbed together for in such case if the mandatory requirements arecomplied with, it will be proper to say that enactment has beensubstantially complied with notwithstanding the non-compliance of thedirectory requirements.[45]

F36. Principles to determine the effect of failure to comply withstatutory requirements has been noted in De Smith’s Judicial Review[46]asfollows:

“5-062 In order to decide whether presumption that provisionis “mandatory” is in fact rebutted, the whole scope and purposeof the enactment must be considered and one must assess “theGimportance of the provision that has been disregarded, and therelation of that provision to the general object intended to be secured

44 AIR 1961 SC 751 (at page 765)

45 Mandatory & Directory Provisions, Principles of Statutory Interpretation, JusticeG.P. Singh, 14[th ]Edition, page 430.H46 De Smith’s Judicial Review, 8th Edition, page 274

by the Act”. In Assessing the importance of the provision, particularregard should be given to its significance as protection ofindividual rights; the relative value that is normally attached to therights that may be adversely affected by the decision, and theimportance of the procedural requirement in the overalladministrative scheme established by the statute. Breach ofprocedural or formal rules is likely to be treated as mereirregularity if the departure from the terms of the Act is of trivialnature, or if no substantial prejudice has been suffered by thosefor whose benefit the requirements were introduced. But therequirement will be treated as “fundamental” and “of centralimportance” if members of the public might suffer from its breach.Another factor influencing the categorisation is whether there maybe another opportunity to rectify the situation; of putting right thefailure to observe the requirement.”De Smith however records that the courts in appropriate casesand on accepted grounds may, in their discretion, refuse to strike down adecision or action or award any other remedy. This principle does not somuch relate to determination of whether particular provision or statutoryobligation is itself mandatory or directory; rather, they are relevant forthe question that if the statutory provision is mandatory and is not fulfilled,what should be the nature of relief to be granted by the court [See –

Regina v. Secretary of State for Social Services[47]]. The generalapproach is that complainant who succeeds in establishing unlawfulnessof an action is entitled to remedial order, but the court has discretion inthe sense of determining what is fair and just to do in the particular case,and therefore could restrict or withhold the relief or grant declarationrather than more coercive quashing, prohibiting, or mandatory order orinjunction.

37. In the context of the present case, given the nature andimportance the statutory provisions which emphasise on fair participationof the public in the deliberations, and the importance and significance ofCentral Vista, we do not think it would be appropriate and correct toignore failure on the part of the respondents to ascribe to the principle ofintelligible and adequate disclosure to fulfil the requirement of publicparticipation. Right to make objections and suggestions in the true sense,would include right to intelligible and adequate information regarding the

Aproposal. Formative and constructive participation forms the very fulcrumof the legislative scheme prescribed by the Development Act and theDevelopment Rules. Every effort must be made to effectuate andactualise the participatory rights to the maximum extent, rather thanread them down as mere irregularity or dilute them as unnecessary ornot mandated.B38. Deliberative democracy accentuates the right of participationin deliberation, in decision-making, and in contestation of public decision-making. Contestation before the courts post the decision or legislation isone form of participation. Adjudication by courts, structured by the legal

principles of procedural fairness and deferential power of judicial review,Cis not substitute for public participation before and at the decision-making stage. In republican or representative democracy, citizensdelegate the responsibility to make and execute laws to the electedgovernment, which takes decisions on their behalf. This is unavoidableand necessary as deliberation and decision-making is more efficient inDsmaller groups. The process requires gathering, processing and drawinginferences from information especially in contentious matters. Vestedinterests can be checked. Difficult, yet beneficial decisions can beimplemented. Government officers, skilled, informed and conversant withthe issues, and political executive backed by the election mandate andEconnected with electorate, are better equipped and positioned to takedecisions. This enables the elected political executive to carry out theirpolicies and promises into actual practice. Further, citizens approachelected representatives and through them express their views both infavour and against proposed legislations and policy measures.Nevertheless, when required draft legislations are referred toFParliamentary Committees for holding elaborate consultation with expertsand stakeholders. The process of making primary legislation by electedrepresentatives is structured by scrutiny, consultation and deliberationon different views and choices infused with an element of garneringconsensus.G39. Indirect participation of the citizens is critical to democracyand this thought has been appropriately expressed by Justice Sachs inDoctors for Life International v. Speaker of the National Assembly[48]in the following words:““The Constitution predicates and incorporates within its visionthe existence of permanently engaged citizenry alerted to andinvolved with all legislative programmes. The people have morethan the right to vote in periodical elections, fundamental thoughthat is. And more is guaranteed to them than the opportunity toobject to legislation before and after it is passed, and to criticise itfrom the sidelines while it is being adopted. They are accordedthe right on an ongoing basis and in very direct manner, to be(and to feel themselves to be) involved in the actual processes oflaw-making. Elections are of necessity periodical. Accountability,responsiveness and openness, on the other hand, are by their verynature ubiquitous and timeless. They are constants of ourdemocracy, to be ceaselessly asserted in relation to ongoinglegislative and other activities of government ... thus it would be atravesty of our Constitution to treat democracy as going into adeep sleep after elections, only to be kissed back to short spells oflife every five years (paragraph 230).”

It is no doubt true that the South African Constitution obligatesthe duty to inform and consult; albeit it would be wrong to state that thisobligation and the right is utopian and an impractical proposition inelectoral democracies. India itself is shining exemplar of how the citizenshave been indirect participants in primary legislations.

By contrast, indirect public participation in delegated legislationgets restricted, an aspect highlighted with reservations in earlier judgmentsof this court[49]. Traditionally this has passed judicial acceptance for severalreasons, including exercise of keen legislative oversight over the executiveagencies thereby ensuring integrity of the collective rule. This concerncan be however addressed by adopting good governance principles, orby way of legislative mandate in the enacted statutes, rules andregulations. In fact, we have several legislations which mandate pubicparticipation in the form of consultation and even hearing, with an objectivethat the decisions and policies take into account people’s concerns andopinions. Public participation in this manner is more direct and of higherorder, than primary legislations enacted by elected representatives.

40. However, delegation of the power to legislate and govern toelected representatives is not meant to deny the citizenry’s right to knowand be informed. Democracy, by the people, is not right to periodical

49 See paragraphs 10 and 23 of this judgment.

Areferendum; or exercise of the right to vote, and thereby choose electedrepresentatives, express satisfaction, disappointment, approve ordisapprove projected policies. Citizens’ right to know and thegovernment’s duty to inform are embedded in democratic form ofgovernance as well as the fundamental right to freedom of speech andexpression. Transparency and receptiveness are two key propellants asBeven the most competent and honest decision-makers require informationregarding the needs of the constituency as well as feedback on how theextant policies and decisions are operating in practice. This requiresfree flow of information in both directions. When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interestCgroups take advantage. This may result in social volatility.[50]41. This is not to say that consultation should be open ended andindefinite, or the government must release all information, as disclosureof certain information may violate the right to privacy of individuals,cause breach of national security, impinge on confidentiality etc.Information may be abridged or even denied for larger public interest.DThis implies that there should be good grounds and justification to withholdinformation. Boundaries of what constitutes legitimate with holding canat times be debatable; but in the present case, there is no contestationbetween transparency and the right to know on the one hand, and theconcerns of privacy, confidentiality and national security on the other.EFurther, the Development Act and Development Rules demand andrequire openness and transparency, and embody without exception theright to know which is implicit in the right to participate and duty toconsult.

42. The historic and iconic nature of the Central Vista is tooapparent to even consider any counter argument. This is evident fromFthe formation of the Central Vista Committee, 1962, declaration of theentire Central Vista as heritage zone in the Master Plan of Delhi aswell as Annexure-II of the Unified Building Bye-Laws, which we wouldbe referring to subsequently. Paragraph 10.2 of the Master Plan as perthe heading ‘Conservation Strategy’ reads:

G“10.2 Built heritage of Delhi needs to be protected, nourished andnurtured by all citizens and passed on to the coming generations.It is suggested that with the aim of framing policies and strategiesfor conservation, appropriate action plans may be prepared by allthe agencies. These should include promotion of conservation of50 With reference to Olson 7th implication, distribution collision ... reduce the rate ofHgrowth. ‘The Rise and Decline of Nations’ and subsequent studies.

the civic and urban heritage, architecturally significant historicallandmarks, living monuments, memorials and historical gardens,riverfront, city wall, gates, bridges, vistas, public places, edictsand the ridge.”

Paragraph 10.3 of the Master Plan, which relates to heritage zones,reads:

Heritage Zone is an area, which has significant concentration,linkage or continuity of buildings, structures, groups or complexesunited historically or aesthetically by plan or physical development.The following areas have been identified as Heritage Zones asindicated in the Zonal Plan:

(ii) Specific heritage complex within Lutyens Bungalow Zone.

xxxxxx”

Paragraph 10.5 of the Master Plan reads:

“Each local body/land owning agency should formulate “SpecialDevelopment Plans” for the conservation and improvement oflisted heritage complexes and their appurtenant areas. Alternationor demolition of any listed heritage building is prohibited withoutthe prior approval of the Competent Authority.

The development plans/schemes for such areas shall conform tothe provisions, in respect of Conservation of Heritage Sitesincluding Heritage Buildings, Heritage Precincts and NaturalFeature Areas.”

43. Questions would, therefore, arise whether mere change in theland use would be sufficient or the respondents were required to drawout special conservation plan under paragraph 10.5 of the Master Plan.These aspects have not been examined by the sanctioning and approvingauthorities. Suffice would be to notice and record merit in the contentionraised by the petitioners that mere change in land use of the six plots inthe Central Vista would not be sufficient without specific amendmentsand modifications of the Master Plan of Delhi, including the followingstipulation:

“8.1 DECENTRALIZATION OF OFFICES

As per NCR Plan, no new Central Government and Public SectorUndertaking offices should be located in NCTD. However, the

Aissue of shifting existing Government / PSU offices from Delhi aswell as restricting the setting up of new offices would only bepossible after time bound action plan is prepared together withsuitable incentives and disincentives.

8.2 OPTIMUM UTILIZATION OF GOVERNMENTBLAND

Government of India, Govt. of NCTD and local bodies areoccupying prime land in Delhi for their offices. Most of the officeshave been setup immediately after Independence. Large areasare underutilized and have completed their economic life. Due toCdownsizing of government employment and need for generationof resources by ministries, optimum utilization of existinggovernment offices/ land could be achieved by the followingmeasures:

(i)Intensive utilization of existing government offices/land.

(ii)Utilization of surplus land by the government for residentialdevelopment.

(iii)Utilization of 10% of total FAR for commercial uses to makethe restructuring process financially feasible. This shall besubject to approval of land owning agency and concernedlocal body.E

XX XX XX”

44. The Government of India, Ministry of Housing and UrbanAffairs, Central Public Works Department in September 2019 hadpublished handbook called “Conservation and Audit of HeritageFBuildings”. The handbook emphasises on the need to protect andconserve heritage which was described as tangible and intangible valuespassed on to us from the past. Conservation of built heritage is generallyperceived to be in long term interest of the society. On the question ofidentifying heritage properties, specific reference is made to theParliament House at New Delhi being building associated with historicalGevents, activities or patterns. Reference is also made to the model buildingby-laws of 2016 which have specific provisions relating to heritagebuildings, heritage precincts and natural feature areas identical to theunified building by-laws as applicable to Delhi. The process ofidentification of heritage buildings is determined by three concepts, namely,Hsignificance, integrity and context and observes as under:

Significantly, the handbook on the basis of criteria identifies Rajpathin Lyutens’ New Delhi as heritage building/precinct because of itsdistinct town planning features like squares, streets and avenues.

45. While the Respondents have claimed that modifications to theMaster Plan of Delhi would not result in change in character of the plan,a reading of the notice inviting tenders published by the Central PublicWorks Department inviting design and planning firms for the

A“Development / Redevelopment of Parliament Building, Common CentralSecretariat and Central Vista at New Delhi” indicates that the proposedproject does envisage extensive change to the landscape. The scope ofthe project has been described as – “The objective of this bid documentis to replan the entire Central Vista area…” The Terms of Reference ofthe bid similarly states:B

“There is need for visionary Master Plan to be drawn up forthe entire Central Vista area. The new Master Plan shall be ablue-print for the redevelopment of the entire area– locatingmodern government office building blocks complete with buildingdesign, engineering services design, site development infrastructure,Clandscape, water bodies, lighting amongst other components. TheMaster Plan shall also provide intelligent and sustainable solutionsfor present issues pertaining to inefficient land-use, trafficcongestion, pollution etc. The new Master Plan shall identify anddetail out all works including building design, engineering servicesDand infrastructure design, site development, landscape design,engineering services and infrastructure design, site development,landscape design, mobility plan, lighting design, water bodies etc.”

The impact of the changes envisaged are not minor and what isenvisaged is complete redevelopment of the entire Central Vista, withEsite development infrastructure, landscape design, engineering designand services, mobility plan etc. The expenditure to be incurred anddemolition and constructions as proposed indicate the expansive andsweeping modifications/changes purposed.

46. We have noticed the marked difference between the scopeFand amplitude of power conferred on the Authority under sub-section(1) and the power conferred on the Central Government under sub-section (2). Sub-section (1) grants restricted and limited power to theAuthority to make modifications to the Master Plan and the ZonalDevelopment Plan as it thinks fit, which in the Authority’s opinion do not:(i) effect important alterations in the character of the plan, i.e. the MasterGPlan or the Zonal Development Plan; and (ii) relate to the extent of theland-uses or the standards of population density. Sub-section (2) confersa separate and wider power on the Central Government to make anymodification to the Master Plan or the Zonal Development Plan, whethersuch modifications are of the nature which the Authority (i.e. the DDA)His authorised to do or otherwise. Sub-section (3) to Section 11A mandatesthat the Authority or the Central Government, as the case may be, shallpublish notice as per prescribed rules inviting objections/suggestionsfrom any person with regard to the proposed modification before aspecified date and that the Authority or the Central Government shallconsider all the objections/suggestions that may be received. Thus, sub-section (3) to Section 11-A proceeds on the distinction between the powerconferred on the Authority and the Central Government under sub-sections (1) and (2) of Section 11-A of the Development Act. It statesthat the objections and suggestions can be received by the Authority orthe Central Government. Sub-section (4) to Section 11-A states thatevery modification shall be published in the manner as the Authority orthe Central Government, as the case may be, shall specify and themodification shall come into operation on the date of publication or suchother date as the Authority or Central Government may fix. Sub-section(5) to Section 11-A states that where an Authority makes modificationsto the plan under sub-section (1), it shall report to the Central Governmentfull particulars of such modifications within thirty days of the date onwhich such modifications come into operation. In other words, inmodifications covered by sub-section (1), the requirement is that theAuthority post the approval shall report to the Central Government withinthirty days from the date on which modifications have come into operation.In case of modifications covered by sub-section (2) to Section 11-A, it isthe Central Government which considers the objections and suggestionsand thereafter may notify the proposed modification in entirety or inpart. Central Government on consideration may even drop and not notifythe proposed modifications. It is in this context that the judgment of thisCourt in Syed Hasan Rasul Numa quoted above, had quashed themodifications as there was no record of the objections/suggestions tothe modifications being considered and decided by the CentralGovernment.

47. The respondents have placed on record the notification dated27[th] September 2012, SO No. 2318(E) published in the Gazette of Indiaon 27[th] September 2012 whereby, in exercise of powers conferred bysub-section (2) of Section 52 of the Act, the Central Government hasdirected that the power exercisable by it “under Section 11-A for thepurpose of review/modification of the Master Plan of Delhi 2021 shallbe exercisable by the Vice Chairman of DDA insofar as it relates toissue of public notice for inviting objections and suggestions from anyperson”. Clearly, the Central Government recognises and accepts the

DEF

Adifference between the power under sub-section (1) and (2) to Section11-A and that the Central Government alone has the power to considerthe objections/suggestions and make modifications which are excludedfrom the ambit of sub-section (1).

48. Two other aspects need to be noticed before we elucidateBand refer to other lapses in the decision-making process. Given the natureof changes in the proposal, sub-section (2) to Section 11-A applies. Indeed,the notification dated 20[th] of March, 2020 approving the proposal statesthat the Ministry of Housing and Urban Affairs, in exercise of powersconferred under sub-section (2) to Section 11-A, had made themodifications in the Master Plan of Delhi and Zonal Development PlanCof Zone and (see paragraph 17). However, it is clear that theprocedure followed is the one applicable to modifications under sub-section (1) to Section 11-A. Secondly, the Central Government in thepresent case has not passed an order under sub-section (6) to Section11-A of the Development Act.D[[th]]49. The Respondents in the consolidated affidavit dated 24[[th]] July2020 have pleaded that there is no change in the character of the plan,i.e. the Master Plan, and the Zonal Development Plan for Zone andC. Accordingly, contrary to the Notification dated 20[th] March,2020 whichspecifically refers to the Central Government exercising power underEsub-section (2) to Section11A, they have relied upon sub-section (1) toSection 11A. Relevant portion of the consolidated affidavit of theRespondents reads:-

“No Change in the Character of Plan

39. it is submitted that change in land use is in the direction ofFaligning the existing land use with the proposed Central VistaDevelopment / Redevelopment Plan and it is not going to alterany fundamental character or historicity of this area. It is only areadjustment / reorganization of the Central Government Ministryoffices. The present District Park area of 9.5 acre has beenGcompensated by providing 5.64 acre in Zone (Central Vista)and 3.9 acre in Zone, thereby keeping the green spaces intact.It is pertinent to mention that as per modified Plan the green areaalong the Rajpath will increase by 5.64 acre. It is submitted thatafter the land use modification of six plots, the character of theplan is not changing as they shall be utilised for Government officesHas already functional in the area. Therefore, there is no change in

the character of usage, rather it will be more organised and planned.The Government funds which are being utilised for maintenanceshall now be utilised to construct state of the art buildings, withprovisions of modern infrastructure, architecture and structurallysafe buildings. The buildings currently are more than 60 years oldand as per civil engineering design norms have completed theirlife.”

The Authority in its affidavit has pleaded somewhat similarly,stating:

“No Change in the Character of Plan / Extent of Land Use

The Change in land use is in the direction of aligning the existingland use with the proposed Central Vista Development /Redevelopment Plan and it is not going to alter any fundamentalcharacter or historicity of this area. It is only readjustment /reorganisation of the Central Government Ministry offices. Thepresent District Park area of 9.5 acre has been compensated byproviding 5.64 acre in Zone (Central Vista) and 3.9 acre in CZone, thereby keeping the green spaces intact. It is pertinent tomention that as per modified Plan the green area along the Rajpathwill increase by 5.64 acres.”

At another place in the consolidated affidavit filed by theRespondents with reference to the power of the Authority under Section11-A, it is pleaded :

“...Section 11A, Chapter IIIA of the Delhi Development Act, 1957empowers the Delhi Development Authority (DDA) to modifythe Master Plan or the Zonal Development Plan as it things fit;and as such answering Respondent DDA was empowered andfully competent to issue the said Public Notice and the subsequentmodification.

It is further submitted that in the context of the subject Notificationdated 21.12.2019, it is submitted that the proposal did not makeany important alteration in the character of the plan, extent ofland use or standards of population density.”

50. In the written submissions filed by the respondents on issuesof change of land use, with reference to sub-section (1) and (2) ofSection 11-A, it is stated as under:

“23. In light of the above, it is unequivocally submitted that thepresent process culminating in to the notification dated 20.03.2020,is issued under sub-section 2 of Section 11-A the DDA Act. It issubmitted that as stated above, the power of the CentralGovernment under sub section 2 are untrammelled and uninhibitedby the conditionalities of sub-section 1. It is submitted that followinglanguage in the present impugned notification represents clearapplication of mind by the Central Government to the materialpresented by the specialised body and therefore, is clearly adecision taken after due consideration and after due analysis ofthe material. The said part of the notification dated 20.03.2020 isas under:

“S.O. 1192(E).—Whereas, certain modifications which the CentralGovernment proposed to make in the Master Plan for Delhi-2021/Zonal Development Plan of Zone-D (for Plot No. 02 to 07) andZone-C (for Plot No. 08) regarding the area mentioned here underDwere published in the Gazette of India, Extraordinary, as PublicNotice vide No. S.O. 4587(E) dated 21.12.2019 by the DelhiDevelopment Authority in accordance with the provisions ofSection 44 of the Delhi Development Act, 1957 (61 of 1957) invitingobjections/ suggestions as required by sub-section (3) of Section11-A of the said Act, within thirty days from the date of the saidEnotice;

2. Whereas, 1,292 objections/ suggestions received with regardto the proposed modifications have been considered by the Boardof Enquiry and Hearing, set up by the Delhi Development Authorityand the proposed modifications were recommended in the meetingof Delhi Development Authority held on 10.02.2020;

3. Whereas, the Central Government have after carefullyconsidering all aspects of the matter, have decided to modify theMaster Plan for Delhi-2021 / Zonal Development Plan of Zone-D & Zone-C;

4. Now, therefore, in exercise of the powers conferred underSub-section (2) of Section 11-A of the said Act, the CentralGovernment hereby makes the following modifications in the saidMaster Plan for Delhi-2021 / Zonal Development Plan of Zone-D & Zone-C, with effect from the date of Publication of thisHNotification in the Gazette of India.

24. Therefore it is submitted that the challenge to the process andthe notification, as presented by the Petitioners, is meritless. It issubmitted that without prejudice to the above, it is submitted thateven if the present notification is considered to be one issuedunder sub-section 1 of Section 11-A, the present change of landuse does not after the conditionalities of the said sub-section whichwill be dealt with separately.”

Paragraph 23 makes an interesting reading as it accepts that themodifications were covered by Section 11-A(2) and not Section 11-A(1)of the Development Act. However, in paragraph 24, it is pleaded thatthe notification may also be considered to have been issued under sub-section (1) to Section 11-A as the present land use does not impingeupon the conditionalities of the sub-section which have been dealt withindependently. This ambiguous and oscillating stand, which is alsocontradictory, goes to the root of the issue and question of the authorityempowered and competent to legislate. First there is failure of the CentralGovernment to pass any order under sub-section (6) to Section 11A.Secondly, this oscillation is for reason; fatal failure to follow theprocedure prescribed under sub-section (2) to section 11A of theDevelopment Act as explained and elucidated in paragraph 51 below.Faced with this situation in the written submissions filed by therespondents, different version has been given in the list of dates andevents, wherein it has been stated as under:

“06.02.2020 – background note was placed by the L&DO inresponse to the objections raised.

Note 1: It is clear that the L&DO being the Central Government,at this stage, applied its mind to the objections and suggestionsmade before the DDA.”

This assertion in the list of dates is not supported by an affidaviton record. It would be hypothetical and incongruous to accept that L&DOhad applied its mind to the objections and suggestions even before thepublic hearing, and therefore, the court should assume that the CentralGovernment had considered the objections and suggestions. The standswould fall foul of duty to follow procedural fairness and legitimateexpectation expected from public authority required to comply withthe statutory duty of consultation in the decision making process. Finaldecision must be conscientiously and objectively taken by the competentauthority post the hearing. This plea must be reject, as the public hearing

Awas slated on 6th and 7th of February 2020. Cellular OperatorsAssociation of India and others holds that public consultations must beundertaken when the proposals are at formative stage. Further, theassertion is contrary to the minutes of the meeting of the Authority, i.e.the DDA, on 10[th] February 2020 in which the Additional Secretary (G),MoHUA and Member of the Delhi Development Authority hadBparticipated. perusal of the note dated 6th February 2020 also affirmsthe position that particulars and details of the proposal were not uploadedand made available for the public. The letter written by the L&DO dated6th February 2020 with reference to the background note does not reflectconsideration of the objections and suggestions but inter alia states thatCby an earlier letter dated 4th December 2019, agenda for change of landuse of eight blocks has been forwarded for placing before the technicalcommittee of the Authority and background note was being enclosed.Authority was requested to take necessary action accordingly. This isnot letter or communication showing consideration of the suggestionsand objections.D51. The Central Government has not placed on record even asingle document or minutes to show that the objections and suggestionswere considered by the Central Government, albeit they place relianceon the gazette notification 20[th] March, 2020 which does not specificallytalk about considerations of objections and suggestions but states ‘whereasEthe Central Government have after carefully considering all aspects ofthe matter, have decided to modify the Master Plan for Delhi 2021/Zonal Development Plan for Zone and Zone C’.

52. Relevant also on the said aspect are the minutes of the meetingof the Authority held on 10th February 2020 at Raj Niwas, Delhi whereinFit is observed as under:

“(g) Additional Secretary (D), MoHUA and Member, DelhiDevelopment Authority, explained that the Authority is competentto make the proposed modification in the Master Plan for the landuses as these will not alter the character of the Master Plan sineGthey are in line with the Lutyens & Bakers’ plan of housingGovernment buildings in the Central Vista. Further, the proposaldoes not impact the extent of the land uses and the standards ofpopulation density as has been envisaged in the Master Plan forDelhi, (MPD) – 2021. Hence, Section 11(A)(1) of DelhiDevelopment Act, 1957, empowers the Authority to make proposedH

changes under consideration. Vice-Chairman DDA furthercorroborated this and stated that only after being satisfied that theAuthority is competent under section 11(A)(1) of the Act, that theproposal has been considered and submitted for Authority’sapproval.”

Clearly, therefore, the Authority and the Central Government wereof the view that sub-section (1) to Section 11-A would apply and theprocedure as applicable should be followed, but notwithstanding objectionsand challenge no order under sub-section (6) to Section 11-A of theDevelopment Act was passed. Indeed, if there had been an order undersub-section (6) to Section 11-A, it would have been filed as part of thepleadings with liberty to the petitioners to challenge the same inaccordance with law which would include unreasonableness as coveredby Wednesbury principles. Sub-section (6) to Section 11-A of theDevelopment Act in our opinion are mandatory. Sub-sections (1) to (6)to Section 11-A envision the Authority and the Central Government astwo separate and distinct authorities with limited and broader powersfor ‘legislating’ proposals for modifications of the Plans.

53. Faced with the aforesaid position, the respondents had arguedthat Development Rules 4, 8, 9 and 10, would not be applicable as theyrelate to preparation of Master Plan or the Zonal Development Plan andnot to the amendment or modifications envisaged by sub-section (2) oreven (1) to Section 11-A of the Development Act. Our attention wasdrawn to Rule 12, which stands deleted. Rule 12 had stipulated thatamendments to whole or any part of the Master Plan, if necessary, afterexpiry of five years can be undertaken by the Authority in accordancewith the procedure prescribed by the Development Act and DevelopmentRules as if the proposed amendment were new Master Plan. Thereforeon deletion of Rule 12 in 1966, Rules 4,8,9 and 10 of the DevelopmentRules do not apply to modification of the Master Plan or ZonalDevelopment Plans. This contention, through attractive, must be rejectedfor several reasons. In any case, it cannot be denied that Section 11Aand Rule 16 mandate issue of public notice for inviting objections andsuggestions from the public and due consideration by the Authority orthe Central Government, as the case may be. As elucidated above thisrequires intelligible and adequate disclosure to enable public to makesuggestions/objections. We would now elucidate reasons why theprocedure as per Rules 4, 7, 8 to 10 of the Development Rules isnecessary: -

Aa.Sub-section (4) to Section 10 states that provisions can bemade by the rules in respect of form and content of theplan and with regard to the procedure to be followed andany other matter in connection with the preparation,submission and approval of the plan. This sub-section couldequally apply to modification of plan. Sub-section (3) toBSection 11-A is similarly worded as it states that theAuthority or the Central Government, as the case may be,shall publish notice in such form and manner as may beprescribed in this behalf and thereby invite objections andsuggestions from any person in respect of the proposedCmodifications before such date as may be specified in thenotice. It mandates that the Authority or the CentralGovernment, as the case may be, shall consider theobjections and suggestions. The sub-section (3) to Section11-A makes reference to the rules which are applicable,i.e. the Delhi Development (Master Plan and ZonalDDevelopment Plan) Rules, 1959. Therefore, the modificationof the Plan as per Section 11-A of the Development Acthas to be done as per the procedure prescribed by theDevelopment Rules and not de hors these rules. As perRule 15, Rules 5 to 11 relating to the Master Plan applyEmutatis mutandis to the Zonal Development Plan. Thereare several good reasons why this interpretation is moreacceptable and should be adopted.

b.In Superintendent and Legal Remembrancer, State ofWest Bengal v. Corporation of Calcutta[51] , nine judgesFbench of this Court had held that the interpretative tool ofnecessary implication can be drawn when it would hamperthe working of the statute or would lead to the anomalousposition that the statute may lose its efficacy. It is also wellsettled that provisions have to be read harmoniously toeffectuate them and give effect to the legislative intention.GIn the present case, the said interpretative tool of necessaryimplication would apply as modifications, which can be majoror substantive in nature as in the present case, should followand comply with Rules 4, 8,9 and 10 of the DevelopmentRules. Otherwise, an anomalous position would ariseH51 AIR 1967 SC 997

permitting modifications that have far reaching impactbeing made post the enactment of the plan without followingthe rigours prescribed for the original enactment of the plan.

c.Section 21 of the General Clauses Act reads:

“Power to issue, to include power to add to, amend,vary or rescind notifications, orders, rules or bye-laws— Where, by any Central Act or Regulations powerto issue notifications, orders, rules or bye-laws isconferred, then that power includes power, exercisablein the like manner and subject to the like sanction andconditions (if any), to add to, amend, vary or rescindany notifications, orders, rules or bye-laws so issued.”

Mandate of this section would apply as there is nothingexpressly or impliedly in Section 11-A that seeks to obliterateor even limit the need for public hearing. Silence doesimpede applicability of Rules 4,8,9 and10 of the DevelopmentRules. Rather in terms of Section 21, silence enforcesapplicability of these rules. Inconsistency is the test. In otherwords, the power to add to, amend, verify or rescind theMaster Plan under Section 11A are subject to the conditionof public hearing as required by the Development Act, andDevelopment Rules, as they prescribe to enactment of theMaster Plan or Zonal Development Plan. The procedure tomodify the plan has to follow procedure as it would applyto approve and modify the initial plan. Therefore formodification of plan, the BoEH has to be constituted andhearing has to be afforded to those who have submittedrepresentations, suggestions and objections to the proposalunder consideration. Any amendment or modification of aplan under Section 11-A of the Development Act contraryto or de hors the procedure prescribed in Rules 4, 8 and 9will be contrary to law. Referring to Section 21 of theGeneral Clauses Act, in Kamla Prasad Khetan v. Unionof India,[52] this Court had observed that the power to issuean order under the Central Act includes the power to amendan order, but this power is subject to an importantqualification contained in the words ‘exercisable in the like

52 AIR 1957 SC 676

DEFG

Amanner and subject to the like sanction and conditions (ifany)’. Therefore, the amending or modifying order has tobe made in the same manner as the original order and issubject to the same conditions that govern the making ofthe original order. In Scheduled Caste and WeakerSections Welfare Association v. State of Karnataka,[53]Bthis Court struck down notification issued under theKarnataka Slum Areas (Improvement and Clearance) Act,1973 which had rescinded the original notification and hadthereby reduced the slum area. After referring to earlierdecisions, it was observed that Section 21 of the GeneralCClauses Act would apply as there was nothing in the subjectmatter, context or effect of the concerned provision so asto be inconsistent with the application of Section 21 as theprocedure for issue of notification had required and couldbe exercised only after hearing the affected parties. It washeld that the amendment and redeclaration would alsoDrequire the same procedure to be followed. The rule ofpersonal hearing, it was observed, was incorporated toprotect every citizen against arbitrary power of the Stateor its officers and is mandated by law as it is the duty of theState to act judicially.

Ed.Doctrine of contemporanea expositio is applicable as therespondents have in the past followed and appliedDevelopment Rules 4, 8, 9 and 10 while consideringproposals for modification of plan (s) under Section 11-Aof the Development Act. Authorities on interpretation ofFSection 11A have held that Rules 4, 8, 9 and 10 would beapplicable to modifications undertaken in terms of Section11-A of the Act. The maxim ‘Contemporanea expositionest optima et fortissimo in lege’ means that the best wayto construe provision or document is to read it as it wouldhave been read when it was made. Explaining this principleGof interpretation, it has been held that contemporaneousconstruction placed by the authorities charged withexecuting the statute should be accepted by giving weightunless it is clearly wrong, in which case it should be

overturned. The construction given by the authorities whose

duty is to construe, execute and apply an enactment is highlypersuasive though when the court feels that this is caseof an error, it may refuse to follow such construction. G.P.Singh, in The Principles of Statutory Interpretation (14[th]edition) has explained that usage and practice developedunder the statute is indicative of the meaning ascribed to itswords by contemporary opinion as an external interpretiveaid to construction. However, it is subject to the conditionthat the court is not prevented from giving the trueconstruction as interpretation received from contemporaryauthority is not binding on the court, which may evendisregard such interpretation if it is clearly wrong. Sufficeto say, in the present case, reject the interpretation thatRules 4, 8, 9 and 10 do not apply to the process ofmodification of the Master Plan, as inimical to the languageas well as the spirit of the Development Act. On thecontrary, application of Rules 4, 8, 9 and 10 has beenaccepted by contemporanea expositio by the Authorityand the Central Government. We agree there are limitationsto the principle of contemporanea expositio when thestatutes are old as this principle has not been applied to theEvidence Act, 1872 and the Telegraph Act, 1885.Nevertheless, in the present case, the interpretation givenabove is in consonance with the interpretation given by theRespondents, i.e. the authorities who had made theDevelopment Rules.

e.Any change or modification in the practice adopted by therespondents viz. Rules 4, 8, 9 and 10 and their applicationto modifications under Section 11-A of the Act would alsobe governed by the principle of procedural legitimateexpectation which has special application in planning law.Recently, this Court in State of Jharkhand v. BrahmputraMetallics Limited Civil ,[54] has elaborately referred to thedoctrine of legitimate expectation by referring to the EnglishLaw, some of which has been quoted below, to observethat in Indian jurisprudence there appears certain doctrinalconfusion which needs to be corrected. The doctrine meansthat the public authorities should be held bound by the

54 Appeal No. 3860 of 2020 decided on 1stDecember 2020

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representations since citizens continue to live their livesbased on the trust they repose in the State. When publicauthorities fail to adhere to their representations withoutproviding adequate reasons, it violates the trust reposed bythe citizens in the State. The basis of the doctrine oflegitimate expectation is reasonableness and fairness, thedenial of which may amount to abuse of power. Theremedies against public authority must also take into accountthe interest of general public which the authority seeks topromote. There is denial of legitimate expectation when ina given case it amounts to denial of right that is guaranteed,or is arbitrary, discriminatory, unfair or biased or gross abuseof power or in violation of principles of natural justice so asto attract Article 14 of the Constitution. However, merelegitimate expectation without anything more cannot ipsofacto give right to invoke these principles. This meansthat public authorities cannot play fast and loose with thepowers vested in them which have to be exercised in thelarger public and social interests. Every authority is under alegal obligation to exercise the power reasonably and ingood faith to effectuate the purpose for which powers wereconferred. In this context, good faith for legitimate reasons,that is, bona fide for the purpose and none other. In thisway, legitimate expectation is way in which theconstitutional law guarantees non-arbitrariness enshrinedunder Article 14. Procedural legitimate expectation is distinctfrom substantive legitimate expectation as explained in R(Bhatt Murphy) and Others v. Independent Assessor[55],as procedural expectation arises where public authorityhas provided an unequivocal assurance, whether by meansof express promise or established practice that it will givenotice and chance of hearing to the affected party beforeit changes an existing substantive policy. In such cases, thecourt will not allow the decision maker to effect proposedchange without notice or consultation, as the case may be,unless there is overriding legal duty to the contrary orcountervailing public interest which requires departure fromthe express promise or established practice. In the lattercase, i.e. in case of departure, the onus would be on theauthority to justify such departure. The reason for applyingthe principle of procedural legitimate expectation is not onlyto check the decisions which may have harsh impact, or toprevent unfairness or abuse of power, but to enforce theprinciple of good governance, i.e. the public bodies ought todeal straight forwardly and consistently with the public. Thisis an objective standard of public decision making on whichthe courts would insist. Procedural legitimate expectationdoes not suffer and have the same constraints in applicationwhich the courts are faced when parties invoke substantivelegitimate expectation against the Government or publicauthority challenging the change or abolition of the earlierpolicy. It is generally agreed that ordinarily every governmentor authority, has the right to change the existing policy unlesssuch change is hit by Wednesbury principle ofunreasonableness, etc.. Therefore, normally substantivelegitimate expectation rarely results in relief unless thereis specific undertaking directed to particular individualor group by which the relevant policy’s continuance isassured. Even in such cases, substantive promise cannotbe binding if it is ultra vires or inconsistent with the statutoryduties imposed on the authority. The third category oflegitimate expectation is related to the second and wasdescribed in Bhatt Murphy’s case as ‘secondary case ofprocedural expectation’ which applies in situations where,without any express promise, the public authority hasestablished policy substantially affecting person orpersons who have reasonably relied on its continuance, canwell claim right to present their views and contest theproposed change before it is withdrawn. In the present case,we are not concerned with the second and third categorybut with the first category, i.e. procedural legitimateexpectation. This principle has often been applied whenthere is lack of consultation which results in failure to followprocedural promises or established practice in municipal lawas has been held in R (Majid) v. London Borough ofCamden[56], and R (Kelly) v. London Borough of

Hounston[57], where the claimant was not informed of thedate of the committee meeting in time to address it and in R(on the application of Vieira) v. London Borough ofCamden[58], which was case relating to grant ofretrospective planning permission for conservatory andfor building by local authority, which was struck down.The grounds included failure to make documents and reportsavailable on the website for comment before the panelmeetings as stated in the published procedure for membersbriefings and the statement and the requirement that the‘members briefing panel’ would be consulted on whetherthe application should be referred to the committee asindicated in the planning protocol, the procedure formembers briefing and its website. Importantly, in this case,the local authority’s submission that even if it had actedunlawfully, relief should be refused on the basis of theclaimant’s low prospects of success in objecting to theplanning permission was rejected, on the following reasons:

“116. quashing order should only be refused if it isinevitable that the outcome would have been the samehad the correct procedures been followed see R(Copeland) v. London Borough of Tower Hamlets, (2011)J.P.L. 40 at para 36, 37 citing Smith v. North DerbyshirePrimary Care Trust (2006) EWCA Civ 1291, per MayLJ at (10):

“…Probability is not enough. The defendants would haveto show that the decision would inevitably have beenthe same and the court must not unconsciously strayfrom its proper province of reviewing the propriety ofthe decision making process into the forbidden territoryof evaluating the substantial merits of the decision…”

117. In the present case the Interested Party built theGnew conservatory enforcement action. The planningconcerns are recognised in the Members’ initial requestfor amendments to the scheme. There remains the

57 2010 EWHC Civ 125658 2012 EWHC 287

question whether those amendments make the schemeacceptable, or whether there is an alternative solution.

118. In my judgment, this is not case in which it wouldbe proper to refuse relief. I order that the grant ofplanning permission should be quashed, and re-consideredaccording to law.”

54. We have referred to the principle of procedural legitimateexpectation only to reinforce our interpretation of Rules 4, 8, 9 and 10 ontheir applicability to modification of the Plan under Section 11-A of theAct as legitimate expectation comes into play when there is no statutoryrequirement. If there is breach of statutory requirement then the breachitself can be made subject matter of the proceedings. Legitimateexpectation comes into play when there is promise or practice to domore than that which is required by the statute. This is also the viewexpressed in 11th Edition of Administrative Law (H.W.R. Wade andC.H. Forsyth) at page 458 that doctrine of legitimate expectation thusextends the procedural protection that would otherwise be applicable; itenhances but does not replace the duty to act fairly.

55. The core issue in the present case is whether or not therespondents have performed their duty to consult the public, followedthe prescribed procedure and the authority competent had acted tomodify/amend, in terms of the Development Act and the DevelopmentRules. We are not concerned with the merits of the proposal. Therespondents in the first sentence of the written submissions in paragraph1 have stated as under:

“1. At the outset, it is submitted that the present broad segmenteddevelopment of the Central Vista is part of sovereign policydesigned to meet the present and future needs of space, to alleviatethe issues surrounding the particular area in terms of the ecologyimpact and to keep the architectural heart of Indian democracy atpace with the changing needs to time whilst preserving the gloryof the past.”

The latter portion of the sentence beginning from ‘designed’ till‘glory of the past’ represents the stand of the respondents. However,the contention that the broad segmented development of Central Vista isa part of sovereign policy requires emendation and elucidation. Thesovereignty rests with the People of India who have enacted and given

Ato themselves the Constitution, which incorporates the principle ofseparation of powers between the Legislature, the Executive and theJudiciary. Each of them function within the four corners of the Constitution,including compliance with the statutes and statutory rules while enactingdelegated legislation. Elected executive certainly has constitutional andpeople’s mandate to choose, formulate and execute policies, albeit inBaccordance with law. We have already delineated the parameters onwhich delegated legislation can be challenged before the court whichincludes failure to follow the mandatory procedure as well as the delegateeexceeding its power as conferred by the legislature. Merits of the publicpolicy is not perse dispute being decided by the Court. The matter andCdispute before us relates to the validity of delegated legislation on theground that the procedure prescribed by law, namely the DevelopmentAct and Development Rules has not been followed.56. At this stage, it would also be appropriate to refer to Section45 of the Delhi Development Act which mandates that where any notice,Dorder or document issued or made under the Act or any rule, regulationmade thereunder requires anything to be done for which no time is fixedunder the Act, the notice, order or document shall specify reasonabletime for doing so. The petitioner has placed on record writtencommunications raising objections to the public notice dated 3[rd] February.2020 fixing the hearing for 6[th ]/ 7[th] February, 2020, as it did not giveEreasonable time for preparing and appear in person for the hearing. Itmay be noted here that the respondents have also stated that the emailswere also sent on 3[rd] and 4[th] February, 2020 to 1292 objectors on the e-mail addresses provided by them. Only forty-two (42) persons hadappeared before the Board of Enquiry and Hearing on the two dates.F[[rd]]

57. As per the writ petitioners, the public notice dated 3[[rd]] February,2020 was published in the newspapers on 5[th] February, 2020. It is alsostated that the emails with regard to public hearing on 6[th] and 7[th] February,2020 were received in the evening on 4[th] February, 2020 and afternoonof 5[th] February, 2020 which hardly gave them any time to make itGconvenient to appear and present their views after due preparation. Thecontention of the writ petitioners is that this denied and prevented themfrom making full and proper representation at the time of oral hearing.Notice , therefore, gave no option to those who had submitted theirobjections/suggestions except to cancel and forego their priorarrangements and also make their travel arrangements, which in severalH

cases was not possible. The Petitioners also state that in the course ofthe hearing, many times when clarification or information was soughtin order to make constructive and creative suggestions, the members ofBoEH expressly told them that they would not respond at all and thepetitioners were only supposed to make their submissions.

58. In the present case, there is violation of the Section 45 aspublic notice of hearing fixed on 6[th] and 7[th] of February 2020 was issuedby way of public notice dated 3[rd] February, 2020 published on 5[th] February,2020. SMS and email were issued at the last moment. Lack of reasonabletime, therefore, prevented the persons who had filed objections and givensuggestions to present and appear orally state their point of view.

59. We would now turn to the permission granted by the CentralVista Committee (the ‘Committee) on 9[th] March 2020. The Petitionershave contended that the said permission was reduced to mere formalityas the Committee did not apply its mind to the proposal. The Respondentshave submitted that Committee is not statutory body and therefore theprinciples of administrative decision making are not applicable to it. ThePetitioner’s refutes this contention stating that though the Committee isnot statutory body, it has trappings of statutory body. The Petitioner’s,to buttress this stance, have relied, inter-alia on the Tender/Notice invitingbids for ‘consultancy services for comprehensive architectural andengineering planning for the development/redevelopment of ParliamentBuilding, Common Central Secretariat and Central Vista’ at New Delhi,vide NIT No. 04/CPM/RPZ/NIT/2019. Clause 4 of the Tender conditionprovides that” The consultant should adhere to the Central Vistacommittee Guidelines and Lutyens Bungalow Zones guidelines whilecarrying out the consultancy work for the Redevelopment of CentralVista”. The petitioners have also pointed that similar binding status wasbestowed to the Committee in the Notice inviting bids for National WarMuseum. The Petitioners have relied on the Zonal Development Planfor Zone D, piece of delegated legislation. The clause 6.4.3 (vii) of thisZonal Development Plan provides that “a detailed form of study shouldbe taken up for this prestigious area (President Estate/ North andSouth Blocks/Parliament House, etc) in consultation with DUAC andCentral Vista Committee.” The petitioners press that these provisionsin the Tender Notices and Development Plans demonstrate that theCommittee performs public functions akin to those performed by statutorybodies, and hence principles of administrative decision making are

Aapplicable. Zonal Development Plans are statutory and binding. Theyare formulated by quasi-legislative exercise.

60. As per the minutes of the meeting on 9[th] March,2020, thefollowing observations were made by the Committee:

“The representatives of L&DO and HCP presented the proposalBof change of land use to the Central Vista Committee. The list ofmembers attending the meeting is at Annexure.

Mr, Divya Khush, Member, CVC and President I.I.A. vide hismessage requested to read his views communicated by him to thecommittee. The same were read out by Member Secretary to allCthe members of the Committee in the meeting.

The Committee was of the view that the proposal placed fordiscussion was for change of land use only.

After detailed deliberation the Committee decided to accordDapproval in principle as the process of change of land use hadbeen taken up by the competent authorities. Accordingly, the finalapproval of change of land use may be communicated to theCommittee.

However, one member representing the Indian Institute ofArchitects wanted detailed facts on the matter before he gave hisEconsent.”

Reading of the aforesaid minutes does not show fair andindependent application of mind. The committee had decided to accordapproval in principle “as the process for change of land use had beentaken up by the competent authorities” and then records “accordingly,Fthe final approval for change of land use may be communicated”. Memberrepresenting Indian Institute of Architects had wanted detailed facts onthe matter. His request was ignored. Conspicuously there is no discussionon the aspect of lack of information. Use of the word ‘in principle’ isindicative, if not reflects tentativeness, as if, it was not an expression ofGa firm opinion. Opinion and advise of the Committee is certainly of greatvalue and importance. Their advice has been uniformly taken and followedfor any redevelopment/changes in the Central Vista.

61. The writ petitioners have pointed out that on 24th March 2020nation-wide lockdown was imposed due to COVID-19 pandemicHimposing severe restrictions on movement. Nevertheless, meeting of

the Committee on 23[rd] April 2020 through video conferencing, with theagenda “Proposed New Parliament Building at Plot No.118, New Delhi”,was held, and ‘No Objection’ was granted. The minutes of the meetingpublished on 30[th] April 2020 provide no reason whatsoever nor do theymention any details of the material considered and the discussion held.Pertinently, the mandate of the Committee is to engage architects andtown planners to advise the government on development of the CentralVista and the Secretarial Complex. However, four independentrepresentatives, namely, (i) President of Indian Institute of Architects;(ii) representative of Indian Institute of Architects (Northern Chapter);(iii) President of Institute of Town Planners, India; and (iv) representativeof Institute of Town Planners, India, were absent and did not participate.Even the Chief Architect of the NDMC was not present. Therefore,only the representatives of the Government, the Director Delhi Division,MoHUA and Joint Secretary (Admn.) of Ministry of Environment andForests were present. Thus, the contention that the meeting was apremeditated effort to ensure approval without the presence andparticipation of representatives of professional bodies is apparent andhardly needs any argument. This was notwithstanding that the project inquestion is extremely significant and of great importance for the CentralVista Committee. The project is the most extensive re-developmentprocess ever undertaken in the Central Vista. Further, the approvalgranted to the proposed new Parliament building does not record thedeliberations that took place or any reasons, even as the mandate of theCentral Vista Committee is pivoted and required to study and advise.The writ petitioners along with the written submissions have filed copiesof several minutes of the Committee relating to other projects like NationalWar Museum and the Delhi High Court Underground Car Parking whichdemonstrate that detailed assessment is usually undertaken by theCommittee, which is clearly lacking in the present case.

62. The Unified Building Bye-laws of Delhi, 2016, issued by theAuthority under Section 57 of the Development Act, vide paragraph2.3.3 refers to need for prior approval/no objections from externalagencies including Heritage Conservation Committee and 7.26 statesthat provision for conservation of heritage sites, including heritagebuildings, heritage precincts and featured areas shall be as per Annexure-II. In other words Annexure II is binding and mandatory.

63. Annexure-II to the Unified By-Laws of Delhi, effectuates theobject and propose, by specifying clear and strict norms that would apply

Ato heritage sites, including heritage buildings, heritage precincts and naturalfeature areas. Relevant portions of Annexure II read:-

“1. Conservation of Heritage Sites including HeritageBuilding, Heritage/ Precincts and Natural FeatureAreas(Please refer clause 2.18.2 and 7.26 of this document)

Conservation of Heritage sites shall include buildings, artifacts,structures, areas and precincts of historic, aesthetic, architectural,cultural or environmentally significant (heritage buildings andheritage precincts), natural feature areas of environmentalsignificance or sites of scenic beauty.

1.1. Applicability: This regulation shall apply to heritage siteswhich shall include those buildings, artifacts, structures, streets,areas and precincts of historic, architectural, aesthetic, cultural orenvironmental value (hereinafter referred to as Listed HeritageBuildings/Listed Heritage Precincts) and those natural featureareas of environmental significance or of scenic beauty includingbut not restricted to, sacred groves, hills, hillocks, water bodies(and the areas adjoining the same), open areas, wooded areas,points, walks, rides, bridle paths (hereinafter referred to as ‘listednatural feature areas’) which shall be listed in notification(s) to beissued by Government/identified in MPD.

1.1.1 Definitions:

(a) “Heritage building” means and includes any building of one ormore premises or any part thereof and/or structure and/or artifactwhich requires conservation and/or preservation for historical and/or environmental and/or architectural and/or artisanary and/oraesthetic and/or cultural and /or environmental and /or ecologicalpurpose and includes such portion of land adjoining such buildingor part thereof as may be required for fencing or covering or inany manner preserving the historical and/or architectural and/oraesthetic and/or cultural value of such building.

(b) “Heritage precincts” means and includes any space that requiresconservation and/or preservation for historical and/or architecturaland/or aesthetic and/or cultural and/or environmental and/orecological purpose. Such space may be enclosed by walls or otherboundaries of particular area or place or building or by animaginary line drawn around it.

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1.2 Responsibility of the Owners of Heritage Buildings: It shallbe the duty of the owners of heritage buildings and buildings inheritage precincts or in heritage streets to carry out regular repairsand maintenance of the buildings. The Government, the MunicipalCorporation of Delhi or the Local Bodies and Authorities concernedshall not be responsible for such repair and maintenance exceptfor the buildings owned by the Government, the MunicipalCorporation of Delhi or the other local bodies.

1.3 Restrictions on Development /Re-development / Repairsetc.

(i) No development or redevelopment or engineering operation oradditions/ alterations, repairs, renovations including painting of thebuilding, replacement of special features or plastering or demolitionof any part thereof of the said listed buildings or listed precincts orlisted natural feature areas shall be allowed except with the priorpermission of Commissioner, MCD, Vice Chairman DDA/Chairman NDMC. Before granting such permission, the agencyconcerned shall consult the Heritage Conservation Committee tobe appointed by the Government and shall act in accordance withthe advice of the Heritage Conservation Committee.

(ii) Provided that, before granting any permission for demolitionor major alterations / additions to listed buildings (or buildings withinlisted streets or precincts, or construction at any listed naturalfeatures, or alternation of boundaries of any listed natural featureareas, objections and suggestions from the public shall be invitedand shall be considered by the Heritage Conservation Committee.

(iii) Provided that, only in exceptional cases, for reasons to berecorded in writing, the Commissioner, MCD/Vice Chairman DDA/Chairman NDMC may refer the matter back to the HeritageConservation Committee for reconsideration.

However, the decision of the Heritage Conservation Committeeafter such reconsideration shall be final and binding.

1.4 Penalties: Violation of the regulations shall be punishable underthe provisions regarding unauthorized development. In case ofproved deliberate neglect of and/ or damage to Heritage Buildings

and Heritage precincts, or if the building is allowed to be damagedor destroyed due to neglect or any other reason, in addition topenal action provided under the concerned Act, no permission toconstruct any new building shall be granted on the site if HeritageBuilding or Building in Heritage Precinct is damaged or pulleddown without appropriate permission from Commissioner, MCD/Vice Chairman DDA/Chairman NDMC.

It shall be open to the Heritage Conservation Committee toconsider request for rebuilding/reconstruction of HeritageBuilding that was unauthorized demolished or damaged, providedthat the total built-up area in all floors put together in such newconstruction is not in excess of the total built up area in all floorsput together in the original Heritage Building in the same formand style in addition to other controls that may be specified.

1.5 Preparation of List of Heritage Sites including HeritageBuildings, Heritage Precincts and Listed Natural FeaturesDAreas: Preparation of List of Heritage Sites including HeritageBuildings, Heritage Precincts and Listed Natural Features Areasis to be prepared and supplemented by the Commissioner MCD/Vice-Chairman DDA/Chairman NDMC on the advice of theHeritage Conservation Committee. Before being finalized,Eobjections and suggestions of the public are to be invited andconsidered. The said list to which the regulation applies shall notform part of this regulation for the purpose of Building Bye-laws.The list may be supplemented from time to time by Governmenton receipt of proposal from the agency concerned or byGovernment suo moto provided that before the list is supplemented,Fobjections and suggestions from the public be invited and dulyconsidered by the Commissioner, MCD/ Vice-Chairman DDA/Chairman NDMC and/or Government and/or HeritageConservation Committee.

When building or group of building or natural feature areasare listed it would automatically mean (unless otherwise indicated)that the entire property including its entire compound/plot boundaryalong with all the subsidiary structures and artifacts, etc. withinthe compound/plot boundary, etc. shall form part of list.

1.6 Alteration/Modification/Relaxation in Development Norms:On the advice of the said Heritage Conservation Committee to be

appointed by the Government and for reasons to be recorded inwriting, the Commissioner, MCD/ Vice-Chairman DDA/ChairmanNDMC shall follow the procedure as per DDA Act, 1957 to alter,modify or relax the Development Control Norms prescribed inthe MPD, or Building Bye-laws of Delhi if required, for theconservation or preservation or retention of historic or aestheticor cultural or architectural or environmental quality of any heritagesite.

1.7 Heritage Precincts/ Natural Feature Areas: In case ofstreets, precincts, areas and, (where deemed necessary by theHeritage Conservation Committee) natural feature areas notifiedas per the provisions of this Building Bye-Laws No. 1.5 above,development permissions shall be granted in accordance with thespecial separate regulation prescribed for respective streets,precincts/natural feature areas which shall be framed by theCommissioner, MCD/ Vice-Chairman DDA/Chairman NDMC onthe advice of the Heritage Conservation Committee.

Before finalizing the special separate regulations for precincts,streets, natural features, areas, the draft of the same shall bepublished in the official gazette and in leading l newspapers forthe purpose of inviting objections and suggestions from the public.All objection and suggestions received within period of 30 daysfrom the date of publication in the official gazette shall be consideredby the Commissioner, MCD/ Vice-Chairman DDA/ChairmanNDMC/Heritage Conservation Committee.

After consideration of the above suggestions and objections,the agency concerned acting on the advice of the HeritageConservation Committee shall modify (if necessary) the aforesaiddraft separate regulations for streets, precincts, areas and naturalfeatures and forward the same to Government for notification.

1.10 Maintaining Skyline and Architectural Harmony: Afterguidelines are framed, building within heritage precincts or in thevicinity of heritage sites shall maintain the skyline in the precinctand follow the architectural style (without any high-rise ormultistoried development) as may be existing in the surroundingarea, so as not to diminish or destroy the value and beauty of orthe view from the said heritage sites. The development within the

Aprecinct or in the vicinity of heritage sites shall be in accordancewith the guidelines framed by the Commissioner, MCD/ Vice-Chairman DDA/Chairman NDMC on the advice of the HeritageConservation Committee or separate regulations/ guidelines: if any,prescribed for respective zones by DDA/NDMC/MCD.

B1.11 Restrictive Covenants: Restrictions existing as on date ofthis Notification imposed under covenants, terms and conditionson the leasehold plots either by Government or by MunicipalCorporation of Delhi or by Delhi Development Authority or byNew Delhi Municipal Council shall continue to be imposed inaddition to Development Control Regulations. However, in caseCof any conflict with the heritage preservation interest/environmentalconservation, this Heritage Regulation shall prevail.

1.12: Grading of the Listed Buildings/Listed Precincts: ListedHeritage Buildings/ Listed Heritage Precincts may be graded intothree categories. The definition of these and basic guidelines forDdevelopment, permissions are as follows:-

Listing does not prevent change of ownership or usage. However,change of use of such Listed Heritage Building/Listed Precinctsis not permitted without the prior approval of the HeritageConservation Committee. Use should be in harmony with the saidElisted heritage site.

ANothing mentioned above should be deemed to confer right onthe owner /occupier of the plot to demolish or reconstruct or makealterations top his heritage building/buildings in heritage precinctor on natural heritage site if in the opinion of the HeritageConservation Committee, such demolition/ reconstruction/alterationis undesirable.BThe Heritage Conservation Committee shall have the power todirect, especially in areas designated by them, that the exteriordesign and height of buildings should have their approval topreserve the beauty of the area.

C64. To maintain independence and objectivity, the composition ofthe Heritage conservation Committee vide paragraph 1.14 is broad basedto comprise of outside experts like historian, natural historian,environmentalist etc. Paragraph 1.14 of the Unified Building Byelawsreads:-

“1.14 COMPOSITION OF HERITAGE CONSERVATIONDCOMMITTEE

The Heritage Conservation Committee shall be appointed by theGovernment comprising of:

(i)Special Secretary/Additional Secretary,E(Ministry of Urban Development) Chairman

(ii)Additional Director General (Architecture),CPWDMember

(iii)Structural Engineer having experience ofFten years in the field and membership of the

Institution of Engineers, India

Architect having 10 years experience Member

(a) Urban DesignerG

(b) Conservation Architect

(iv)Environmentalist having in-depth knowledge and

Experience of 10 years of the subject.Member

(v)Historian having knowledge of the region &A

having 10 years experience in the field.Member

(vi)Natural historian having 10 years experience

in the field.

Member

(vii)Chief Planner, Town & Country PlanningOrganizationMember

(viii) Chief Town Planner, MCD

Member

(ix)Commissioner (Plg.), DDA

Member

(x)Chief Architect, NDMCMember

(xi)Representative of DG, Archeological Survey ofIndiaMember

(xii)Secretary, Delhi Urban ArtCommissionMember Secretary

(xiii) The Committee shall have the power toco-opt up to three additional members who

may have related experience.

(xiv) The tenure of the Chairman and Members

of other than Government Department/

Local Bodies shall be three years.”

65. By notification dated 1[st] October 2009, list of 147 heritagesites, including heritage buildings, heritage precincts and listed naturalfeature areas prepared by the Chairperson, New Delhi Municipal Council(NDMC) on the advice of the Heritage Conservation Committee, waspublished. This publication was preceded by public notice invitingobjections and suggestions from all persons likely to be effected thereby.The publication was in exercise of powers conferred by bye-laws 23.1and 23.5 of the Delhi Building Bye-Laws, 1983 read with sub-section(17) of Section 2 of the New Delhi Municipal Council Act, 1994. For thepresent litigation, we would record that following buildings/precincts, alongwith their location, have been notified as Grade-I:

66. At this stage it would be also relevant to refer to the Lutyens’Bungalow Zone Guidelines, 1988, which prescribe as under:

“......(b) Lutyens’ Bungalow Zone: In order to maintain the presentcharacter of Lutyens’ Delhi, which is still dominated by greenCareas bungalow, there should be separate set of norms for thiszone area. …. There were the following norms for constructionin the Lutyens’ Bungalow Zone.

(i)The new construction of dwelling on plot must have thesame plinth area as the existing bungalow and must have aDheight not exceeding the height of the bungalow in place, orif the plot is vacant, the height of the bungalow which is thelowest of those on the adjoining plots.

(ii)In the commercial areas, such as Khan Market, YashwantPalace etc., and in institutional areas within the Lutyens’EBungalow Zone, the norms will be the same as those forthese respective areas outside the zone.

(iii)The existing regulations for the Central Vista will continueto be applicable.

F(iv).......”

67. Annexure-II of the Unified Building Bye-Laws for Delhi andparagraph 10 of the Master Plan of Delhi relating to the conservation ofbuilt heritage have to be read together and harmoniously. Clause (5) ofparagraph 10 of the Master Plan of Delhi, as noticed above, the localGauthority or land owing agency has been entrusted with the task to preparespecial conservation plans in respect of specific heritage complex withinthe Lyutens’ Bungalow Zone and other heritage zones as indicated inthe Zonal Plan. This is statutory mandate of the Master Plan. Thistask cannot be delegated to third person or an architect, though it ispossible to take opinions and advice for preparation of the special

conservation plans. Unfortunately, neither the local body nor the landowing agency has formulated conservation plans/schemes for the specificheritage complex and appurtenant areas. The petitioners are right intheir contention that when the statute requires each local authority orland-owning agency to formulate special conservation plan forconservation and improvement of listed heritage complexes andappurtenant areas, the requirement is mandatory.

68. Paragraph 1 of Annexure-II states that conservation of heritagesites includes buildings, structures, areas and precincts of historic,aesthetic, architectural and significant buildings and precincts. Paragraph1.1 states that listed heritage buildings and listed heritage precincts willnot be restricted to hills, hillocks, water bodies or areas adjoining thesame, but also open areas, wooded areas, points, walks, etc. Further, theterms, Heritage Buildings and Heritage Precincts have been given broadand encompassing definitions. Historical building as defined, mean andincludes any building of one or more premises or even part thereof whichrequires conservation or preservation for historical, environmental,architectural, artisanry, aesthetic, cultural or ecological purpose. Suchbuildings would by fiction include such portion of land adjoining the buildingor part thereof as may be required for fencing, covering, preserving thehistorical, architectural, aesthetic or cultural value of the such building.Second part of Paragraph 1.5 states that the building or group of buildingslisted would mean, unless otherwise indicated, the entire property includingits entire compound/plot boundary along with all subsidiary structuresand artifacts. Heritage precincts, by way of term of art definition, meanand includes any space that requires conservation or preservation ofhistorical, architectural, aesthetic, environmental, ecological or culturalpurposes. Such place may be enclosed by walls or other boundaries of aparticular area or place or building or by an imaginary line drawn aroundit.69. Paragraph 1.2 casts an obligation on the owner, including thegovernment, municipal authorities, etc. to carry out regular repair andmaintenance of the listed buildings. It also stipulates need for ‘priorapproval’ for change of land use of the listed heritage building/precincts.Paragraph 1.3 is significant as it states that no development, re-development, engineering operations, additions/alterations, repairs orrenovation, including painting of the building, replacement of specialfeatures or blasting or demolition of any part thereof, of the listed heritage

Abuildings/listed precincts shall be carried out except with the permissionof the authorities specified, which includes Vice Chairman, Authorityand Chairman, NDMC. Further, before granting such permission, theagency shall consult the Heritage Conservation Committee and act inaccordance with the advice of the Heritage Conservation Committee.In exceptional cases, for reasons to be recorded in writing, the authority,Bincluding Vice Chairman, Authority, and Chairman, NDMC may remitthe matter to the Heritage Conservation Committee for its re-consideration. Decision of the Heritage Conservation Committee aftersuch re-consideration is final and binding. The Heritage ConservationCommittee before granting any permission for demolition, or majorCalterations/additions to the listed buildings or even buildings within thelisted streets/precincts etc. is required to invite suggestions/objectionsfrom the public and consider them. Therefore, public participation ismandated and required to be undertaken by the Heritage ConservationCommittee for demolition or major alteration/addition. Paragraph 1.6states that on advice of the Heritage Conservation Committee and forDreasons to be recorded in writing the Commissioner/Vice Chairman/Chairman of Municipal Committee/Authority/NDMC shall follow theprocedure as per the Development Act to alter, modify, relax thedevelopment control norms in the Master Plan or building Bye Laws forconservation, preservation retention of historic, aesthetic, cultural orEenvironmental quality of any heritage site. Question would thereforearise whether the proposed modifications would attract provisions ofparagraph 1.6. We would leave the question open to be raised and decidedby the Heritage Conservation Committee. First part of Bye-law 1.7 statesthat any development permission in respect of street/precinct areas asnotified under bye-law 1.5, shall be in accordance with the separateFregulation prescribed for the restrictive streets, precincts, natural featureareas by the authority concerned, including Chairman, NDMC, on theadvice of the Heritage Conservation Committee. Second and third partsof Paragraph 1.7, which relate to special separate regulations forprecincts, streets, natural feature areas, require that before finalisingGany draft the same shall be published in the Official Gazette and in oneleading newspaper inviting objections and suggestions from the public.The public have right to file objections and give suggestions within thirtydays of the publication in the Official Gazette which would be consideredby the authorities, including Chairman, NDMC and the HeritageConservation Committee. It is only after consideration of the suggestionsHand objections that the agency concerned, acting on the advice of theHeritage Conservation Committee, that the draft of the separateregulations for the street, precinct, natural feature area shall be forwardedto the government for notification. In Paragraph 1.10 emphasise on theneed to maintain skyline and architectural harmony and need to followthe architectural style, without high-rise and multi-storied development.This mandate applies to building within the heritage precinct or in thevicinity of heritage sites. Development within the historical sites or invicinity have to be in accordance with the guidelines framed by the localbodies on advice of the Heritage Conservation Committee. As perparagraph 1.11 existing restrictions under the lease deed, governmentincluding local bodies would in addition and continue to apply but in caseof conflict with the heritage preservation interest, or environmentalconservation, the heritage regulations would prevail. The 1988 guidelinesregarding construction would therefore continue to apply to the CentralVista area, which falls within the LBZ. In addition the restrictions underAnnexure II of the Unified Building Bye-Laws apply. Paragraph 1.12states that the heritage buildings/listed heritage precincts would be dividedinto three categories, namely Grade I, Grade II and Grade III. Thestipulations regarding Grade-I are the strictest and the most stringent.Paragraph (c) relating to Grade I states that no interventions will bepermitted either on exterior or interior of the heritage building or naturalfeatures unless it is necessary for strengthening and prolonging the lifeof the building or precincts. Only when absolutely essential minimalchanges would be allowed in conformity with the original. Further, allchanges require development permission which can be granted only onthe advice of the Heritage Conservation Committee. As per Clause (e),development in the area surrounding the heritage Grade-I is regulatedand controlled ensuring that it does not mar the grandeur or view fromheritage Grade-I.

70. The notice inviting bids for appointment of consultant hadstated:

“3. Objectives of Bid Documents

The objective of this bid documents is to re-plan the entire CentralVista area from the gates of Rashtrapati Bhavan up to India Gate,an area of approximately 4 square kilometres. new Master

Plan is to be drawn up for the entire Central Vista area thatrepresents the values and aspirations of New India – Good

ABC

AGovernance, Efficiency, Transparency, Accountability and Equityand is rooted in the Indian Culture and social milieu. The MasterPlan shall entail concept, plan, detailed design and strategiesdevelopment/redevelopment works, refurbishment works,demolition of existing buildings as well as related infrastructureand site development works. These new iconic structures shallBbe legacy for 150 to 200 years at the very least.”

Given the nature and magnitude of the entire re-developmentproject and having given due notice to the language, as well as objectand purpose behind the re-development project, undoubtedly priorapprovals and permissions from the Heritage Conservation CommitteeCwere/are required and necessary. Paragraph 1.12 specifically and clearlystates that “ change of use of such Listed Heritage Building/ListedPrecincts is not permitted without prior approval of the HeritageConservation Committee. Use should be in harmony with the said listedheritage site.” Thus prior approval/no objection certificate from theHeritage Conservation Committee was mandatory and necessary beforeDnotifying the ‘land use’ changes of the six plots within the Central Vista,provided the plots/area were falling with the ‘Listed Buildings’. Further,prior permission/no objection is also required in terms of paragraph 1.3from the Heritage Conservation Committee before any development,redevelopment, engineering operations, renovations, demolition etc. PriorEpermission is also required from Heritage Conservation Committee beforea local body issues building permit for any construction on any plot, whichin addition have to abide by the 1988 guidelines .

71. It is well-settled proposition that where power is given to doa certain thing in certain way, then the thing must be done in that wayor not at all. Other methods of performance are necessarily forbidden.FWhen the statute prescribes particular act must be done by followinga particular procedure, the act must be done in that manner or not at all(See – Nazeer Ahmed v. King Emperor[59], Parinder Singh v. Unionof India[60], Public Interest Foundation v. Union of India[61] and DhaniSugar and Chemicals Ltd. v. Union of India[62]). There is no provisionGfor deemed or in principle permission/approval/no objection certificateof the Heritage Conservation Committee. In fact no such plea of deemedapproval/permission is raised by the respondents.

59 AIR 1936 PC 25360 (2016) 9 SCC 2061 (2019) 3 SCC 224H62 (2019) 5 SCC 480

72. As noticed previously, the Technical Committee of the Authorityin its meeting held on 5[th] December,2019 while examining the proposalhad, inter alia, stated that steps would be taken to seek approval of theHeritage Conservation Committee. However Heritage ConservationCommittee was never moved to secure approval/permission. No approval/permission has been taken.The respondents in the written submissionshave stated that the permission or approval from the HeritageConservation Committee “would be sought as and when the stagereaches for the same as the same may not be pre-requisite for thepurposes of change in land use”. The use of the word ‘may’ itself reflectsthe doubt in the mind of the respondents, whereas the Technical Committeehad not expressed any doubts and was firm that approval or clearancefrom the Heritage Conservation Committee is mandatory and required.We would again reproduce the minutes of the decision of the TechnicalCommittee which reads as under:

“After detailed deliberation, the proposal as contained in Para 4.0of the agenda with the above modification in land use for PlotNo.1 was recommended by the Technical committee for furtherprocessing under Section 11A of DD Act, 1957. With the followingconditions:

The clearances from the PMO, Heritage Conservation Committeeand Central Vista Committee shall be taken by L&DO.

The heritage buildings shall be dealt as per the relevant heritageprovisions.”

73. For reasons stated above, on interpretation of Annexure II tothe Unified Building Bye Laws it has to be held that prior approval/permission was necessary for land use change of the plots/area with theListed Heritage Buildings and precincts. As observed above, Paragraph1.3 states that redevelopment, engineering operations, or even additions/alterations etc. require prior permission of Heritage ConservationCommittee. However for demolition, major repairs and alterations/additions to listed buildings or building precincts procedure of invitingobjections and suggestions from the public shall be followed. HeritageConservation Committee would consider the suggestions and objections.Decision of the Heritage Conservation Committee is final and binding.

74. Respondents have raised two other defences. First, theconstruction of the new Parliament being on vacant plot adjacent to

Athe existing Parliament building does not require approval/no objectionfrom the Heritage Conservation Committee. This contention accordingto the petitioners is fallacious as it is contrary to the statutory MasterPlan of Delhi and the Unified Building Bye-Laws. They rely on thedefinition assigned to the term ‘heritage building’, which ‘includes suchportion of land adjoining such building and part thereof as may be requiredBfor fencing or covering or in any manner preserving the historical and/orarchitectural and/or aesthetic and/or cultural value of such building’. Wewould observe and hold that the respondents should have moved andasked for clarification from the Heritage Conservation Committee. (Thequestion whether plot no.118 is part of the Central Vista Precinct atCRajpath classified as Grade I for Annexure II is being examinedseparately). Further, if the interpretation as put forward by the respondents,including the NDMC, is to be accepted, then as sequitur it follows thatconstruction or development can take place in vacant plot adjacent toor adjoining the Grade-I building. This interpretation appears unacceptable

as it is contrary to the express stipulations in the Master Plan and theDUnified Building Bye-Laws. It would also lead to unintendedconsequences and would be incompatible with the purpose and objectiveof these two legislations, relevant principle when we interpret provisionsin case of doubt or ambiguity. This is our tentative view, as it is for theHeritage Conservation Committee to opine on ‘includes such portion ofEland adjoining such building and part thereof as may be required forfencing or covering or in any manner preserving the historical and/orarchitectural and/or aesthetic and/or cultural value of such building’.

75. The Parliament House, National Archives, North Block, SouthBlock, as well as the Central Vista precincts have been specifically gradedFas Grade-I buildings and, therefore, under different clauses of AnnexureII several restrictions and bars apply. Whether or not the bars andrestrictions apply again would be questions to be examined and decidedby the Heritage Conservation Committee. Neither this Court norgovernment including local bodies can answer these questions.Compliance with Annexure II is mandatory and necessary, whichGessentially means that the proponent must approach the HeritageConservation Committee. Central Government could not have notifiedthe modified the land use changes, without following the procedure andwithout prior approval/permission from the Heritage ConservationCommittee. Further, the local body is expressly interdicted from issuingHbuilding permits in respect of the listed heritage buildings/precincts. Thelocal body i.e. NDMC should have approached the Heritage ConservationCommittee for clarification/confirmation and proceed on their advice.

76. In support of the second defence, the respondents have filedan additional affidavit of the Union of India along with short clarificatoryaffidavit of Mr. Vijay Kaushal and Ms. Ruby Kaushal. The affidavitfiled by Mr. Vijay Kaushal, Deputy Chief Architect of the NDMC statesthat Central Vista precincts have been specifically included as Grade-I building as per Unified Building Bye-Law, 1983, read with sub-section(17) of Section 2 of the New Delhi Municipal Council Act, 1994.Reference is made to the list of 141 heritage sites published, includingheritage buildings, heritage precincts, and limited national feature areas,which list includes Parliament House and Campus, India Gate, IndiaGate Canopy, North and south Block, National Archives and Campusand Central Vista Precincts. It is stated that the list of heritage buildingsin the NDMC area was finalised on the basis of an INTACH Report inconsultation with the Heritage Conservation Committee. Reference ismade to INTACH Report to assert that the Central Vista, LBZ Area,Rajpath have been demarcated by them as:

“Physical Description – The Vista was designed to link theViceroy’s House (now the President’s House) to the northergateway of the Purana Qila. At the eastern end was erected theWar Memorial Arch (India Gate), around which were built thePrinces houses. On both sies on the road, there are wide lawns.The architectural character of the Central Vista is enhanced bythe landscaping, the street furniture, the water bodies, etc. and itis important that any new addition/intervention is sensitive to andrespects the character of the area.”

Accordingly, it is submitted that the buildings with the PresidentEstate, North Block and South Block, Parliament House and campusand National Archives and campus are Grade-I buildings. Other buildingslike Nirman Bhawan, Udyog Bhawan, Rail Bhawan, Krishi Bhawanand Vayu Bhawan etc. are not expressly included in the heritage list.The petitioners would submit that the affidavit is ambiguous as it doesnot identify the area falling within the Central Vista precincts, which inaddition to other heritage buildings, has been classified as Grade I.Moreover, the INTACH report has not been filed and no details have

ABCDE

Abeen furnished. Petitioners have referred to several INTACH reports,which reflect that the Central Vista Precincts would include plot no.118.

77. Ms. Ruby Kaushal, Member Secretary of the HeritageConservation Committee, has referred to clause 2.3.3 (c) of the UnifiedBuilding Laws which states that all external agencies shall prepare colour-Bcoded maps with information on specific areas where approval/NOC isrequired and these maps shall be placed on the website and also thewebsites of sanctioning authorities directly or through link. Thereafterreference is made to the colour-coded map of Delhi (Annexure A-1) onthe website of the Heritage Conservation Committee to state that theCjurisdiction of the Committee is “hyperlinked to another detailed mapwhich depicts the location of the gazetted notified Listed Heritage building,precincts, natural features of the area,… attached as Annexure A-2.”Unfortunately, the colour-coding in the first map (Annexure A-1) is notclear. The map also records that the profile shown therein are indicativeand that the size, profile or location of the monuments/precincts/heritageDstructures are available with ASI, MCD or NDMC. Map enclosed asAnnexure A-2 is again not clear and legible as to decipher and figure outthe area falling within the Central Vista precincts. This map locates/demarcates other historical buildings graded as Grade-I, Grade-II andGrade-III by the NDMC, MCD and ASI and again states that the size,Eprofile or location of monuments/precincts/heritage structures areavailable with NDMC,MCD and ASI. The map refers to NDMCNotification F.No. 4/2/2009/UD/I-6565 dated 1st October 2009. As incase of the plan(Annexure A-1) it states that size, profile and locationshown are indicative. This affidavit by Ms. Ruby Kaushal does notdescribe the boundaries or the imaginary line, to use the language ofFclause(b) to paragraph 1.1.1 of the Unified Building Bye Laws, todemarcate the area that falls within the Central Vista Precincts.

78. On the contrary the petitioners rely on at-least three mapsthat demarcate the Central Vista Precincts with the imaginary line. Theyare drawn below with details of the authority that has published/printedGthem.

a.Central Vista and its landmarks – Ganju, MN Ashish. Re-development Plan for the Lutyens Bungalow Zone for theMinistry of Urban Development, Government of India,GREHA, New Delhi,1998.H

b.Map by the Delhi Urban Arts Commission-source Mapproduced by GSDL with the 1988 boundary: MOUD Letterno. D.O. No.K 13011/17/86- DDIIA 8.2.88

Ac.Lay out plan published in the Government of India, Ministryof Housing and Urban Affairs and CPWD handbook-‘Conservation and Audit of Heritage Buildings”, September,2019

These maps of the Central Vista Precincts by the project proponentitself namely CPWD and the Delhi Urban Arts Commission, which is

Dstatutory body, clearly indicate the extent and boundaries of the CentralVista precincts/area, which does include the Parliament House and plotno.118. In the aforesaid background, the contention of the respondentsas to demarcation of the area of the precincts in the Central Vistaprecincts at Rajpath prima facie appears to be erroneous and wrong.Parliament House and plot no.118 are apparently part of the CentralEArea Precincts. Definitions of ‘heritage building’ and ‘heritage precincts’in clauses (a) and (b) of paragraph 1.1.1. also support this view andinterpretation. However, we need not finally pronounce on this aspectas the Heritage Conservation Committee has the jurisdiction and authorityto examine and decide this aspect after ascertaining facts and details.FAs per paragraph 1.5, the list of Heritage Sites is to be prepared by theChairman NDMC on the advice of the Heritage Conservation Committee.In terms of Annexure II, the Heritage Conservation Committee shouldexamine and decide any dispute relating to boundaries of the HeritagePrecincts.79. The Central Vista Precincts, i.e. at the Rajpath, per se doesGnot have any building. This does not mean that the precincts of otherheritage buildings, namely, the Parliament, North and South Blocks,National Archives are not to be treated as areas adjoining the listedbuildings in terms of clause (a) to paragraph 1.1.1. contraryinterpretation would virtually negate the meaning of precincts to theHbuilding. The idea behind declaring the area as historical precincts is to

give protection even if no constructed structure exists. It is an additionalprotection, when several buildings have already been included in theheritage list. In the present case, as per the petitioners, it is to clarify andclear any doubt that the green areas/parks in the Central Vista Precinctwithin the demarcated line/boundaries are entitled to protection as GradeI under the Unified Building Bye Laws. In this regard reference canmade to paragraphs 1.2,1.5 and 1.7 of the Annexure -II of UnifiedBuilding Bye-Laws for Delhi, 2016, quoted above, and which appear tobe apposite. Needless to say that these issues have to be examined bythe Heritage Conservation Committee before they record their opinion.

80. Central Public Works Department, as the project proponent,had filed an application for environment clearance on 12[th] February 2020.Thereafter, revised application was filed on 12[th] March 2020. Bothapplications were for expansion and renovation of the existing Parliamentbuilding at Parliament Street, New Delhi. The second/revised applicationhad inter alia projected theproject cost at Rs.922 crores.

81. As per original and revised Form Nos. 1 and 1A, the project isa Building and Construction project covered by item 8(a) of the Scheduleof the 2006 Environmental Impact Notification. Suffice for ourconsideration is to record that item 8(b) or Townships and AreaDevelopment projects are put to greater level of scrutiny. Thecategorization is based on the spatial extent of potential impacts on humanhealth and natural and man-made resources. Four stages scrutiny processas envisaged by the 2006 Notification are (i) screening, (ii) scooping, (iii)public consultation and (iv) appraisal. Category B1 require an EnvironmentAssessment Report and consequently the stage (ii) procedure of scoopingis mandated. Stage (iii) public consultation is not required for the Buildingand Construction projects/ Area Development projects.

82. The distinction between 8(a)-Building and Construction projectsand 8(b)-Townships and Area Development projects lies in the expanseof the built-up area of the proposed project. Projects with the built uparea falling between 20,000 sq.m. to 1,50,000 sq. m. would be categorisedas 8(a)-Building and Construction projects. Projects with built up areaabove 1,50,000 sq. m. are categorised as 8(b) -Townships and AreaDevelopment projects. The term ‘built up area’ has been defined tomean “the built up or covered area on all the floors put together includingits basement and all other service area, which are proposed in the buildingor construction projects.”

A83. Central Public Works Department as the project proponent inthe original Form No.1 had declared:“1.1.1 Basic InformationBCDEFGH

In column relating to factors which should be considered such asconsequential development and would lead to environmental effect orpotential for accumulative impact with other existing or planned activitiesin the locality, it was stated as under:

A84. On the aspect of parking needs, it was stated that parkingrequirement shall be taken care of on an adjoining plot due to securityreasons.

85. Along with the revised application, the project proponent hadalso submitted report prepared by private consultant with headingB‘New Parliament Building – Traffic Circulation and Management Plan’,paragraph 4.1 of which reads as under:

“4.1 GENERAL

Construction vehicle circulation and management plan addresseseffective use of site for collection and disposing of material throughCdifferent vehicles. It makes entry/exit points for vehicles, requiredbarricading, traffic diversion and site layout. good managementplan minimizes impact of vehicle movement at site and on publicroads. Redevelopment of Central Vista consists of temporaryrelocation, demolition & construction of new central secretariatDbuildings, new Parliament House & other associated buildings inCentral Vista area. The redevelopment of Central Vista will becarried out in three phases, with different buildings beingsimultaneously operationally shifted and constructed in each phase.Details of construction phasing is described below:

1. Relocation of IGNCA, Parliament House & completeconstruction of new Parliament House & 3 centralsecretariat buildings.

2. Relocation of V.P. House, existing central secretariat building& complete construction of 7 central secretariat buildings.

3. Relocation of North, South block & complete constructionof remaining buildings.

Based on current traffic volume, regulations & restriction onexisting roads; delivery & collection of material shall be permittedduring 10:00 PM to 6:00 AM. Changes in the route & timing dueGto special events & security reasons shall be informed by DelhiTraffic Police to associated contractors, vendors & supply agenciesfor planning delivery & collection schedule.”

86. Original application was taken up in the 49[th] meeting of theExpert Appraisal Committee (EAC) held on 25-26[th] February 2020. TheHmeeting records that large number of representations had been received

by the Ministry as well as Chairman/Members expressing concerns mainlyon the following points:

•The Indian Parliament is structurally part of the compositenotified heritage precinct, the Central Vista. The applicationcompletely disregards the historical, cultural and socialimportance of the existing Parliament by treating its“expansion and renovation” any other regular constructionproject.

•The application treats the expansion of the Parliament as aCstand-alone project when it is only one part of the proposedredevelopment of the Central Vista heritage precinct.

•The treatment of the Parliament expansion as separateproject violates the MoEFCC’s OM dated (No. J-11013/41/2006-IA.II (I)) for ‘consideration of integrated and interrelated projects for grant of environmental clearance’. TheDcurrent application is in complete disregard of therequirements of this OM.

•The application contains false and misleading informationstating that the project will have no “cumulative effectsdue to proximity to other existing or planned projects withsimilar effects”, that there will be no significant impacts onecology and public space, and on areas protected underconventions or legislations for their ecological, landscape,cultural or other values.

•The application is full of subjective responses to questionsof scale and duration of various impacts that are likely tobe caused by the proposed construction. These can only betreated as opinions because there are no studies or detailedassessments to support the application.

•The application for environment clearance must be set asidedue to pending litigation on the land use change for theproject. The land use change notification for Central Vista,which includes plot 118 is under litigation before the HighCourt of Delhi i.e. W.P.C. 1575/2020 and W.P.(C) 1568/2020.”

ANoticing that there was mistake in calculation as to the totalbuilt up area proposed to be constructed, the project proponent wasasked to revise the information of the built-up area. The project proponentwas to file revised application. Further, the project proponent wasdirected by the EAC to file para-wise reply to the representationsreceived, traffic management plan and scope of ‘renovation of the existingBParliament building’. EAC also felt appropriate to record that the proposalwas in respect of construction of larger parliament building for thenation and that the project would have positive contribution to socialinfrastructure and overall development of the region. Adverseenvironmental impact could be mitigated by taking preventive measuresCduring operation.

87. Thereupon, the project proponent had filed revised applicationand had furnished point-wise reply to the representations received.Revised proposal was taken up for consideration in the 50[th] meeting ofthe EAC held on 22[nd] April 2020. The minutes of the meeting wouldDreflect that it reproduces in detail the objections and point wise replyfurnished by the project proponent and information regarding change ofland use of Plot No. 118 that was subject matter of court litigation.Referring to the representations received objecting to the environmentclearance specific objections noted above were recorded. It was alsostated that the environment clearance should take into considerationEimpact of the physical environment footprint of the building coveringinter alia water, air, soil, noise and other biotic and abiotic factors,including social and architectural heritage.

88. The point-wise reply submitted by the project proponent statesthat integrated and interrelated projects are those without which theFnecessary functional outcome of the proposed project cannot be achieved.Parliament building essentially carries out the functions which aredisparate from the executive functions, carried out in other office buildings,and therefore, expansion of Parliament cannot be considered as anintegrated and interrelated project as the end users of the ParliamentGbuilding and the other buildings proposed in the Central Vista are distinct.Pointwise reply by the Central Public Works Department, reads:

“a. Parliament and Central Vista EC segregation:

i.Integrated and inter-related projects are thoseprojects without which the necessary functional

outcome of the proposed project cannot be achieved.For example, such projects would include captivepower plant attached to coal mine, or jettyattached to Liquid Natural Gas (LNG) terminal.

ii.The proposed Parliament Building essentially carriesout Legislative functions, which is separate fromBExecutive Functions to be carried out in other officebuildings and therefore, cannot be considered as anintegrated and inter-related project vis-à-vis the otherproposed central vista buildings for the simple reasonthat it can definitely operate independently of theCother structures.

iii.The Parliament is headed by the Honorable Vice-President of India for the Rajya Sabha and theHonorable Speaker of the Lok Sabha, not theexecutive. It has its own secretariat. The end usersare therefore very different.

iv.The redevelopment of the other Central Vita buildingsis distinct activity as opposed to the expansion andrenovation of the parliament.

xxx

e. Rationale for integrating the existing and Proposed ParliamentBuilding ECs.

i.The existing Parliament Building and the proposedParliament expansion are definitely inter-related, bothin terms of function- since certain functions of theParliament will be conducted in in the Existing Buildingand simultaneously certain functions will be conductedin the Proposed Building-but also in terms ofphysical utilities. In fact, Plots 116 and 118 are inter-related even today (and since about four decades)because the existing Parliament Building houses itsutilities at the same plot (118) where the Parliamentexpansion is proposed. Moving forward, it has beenproposed to have common utility block for both,the existing and the Proposed Parliament Buildings.Therefore, it also follows the proposed Parliament

Building is indeed an expansion of the existingParliament Building/Structure.

ii.The existing Parliament Building needs to betemporarily vacated to allow for its renewal andrenovation. This can only be done if the newParliament Building is constructed on an urgent basis.

f. Site Alternatives:

i. As already mentioned

•The buildings are not stand-alone. They are inter-related. Facilities will be shared. Officials will needto move from one building to another, quite frequently.

•Several utilities will be common or housed at oneplace.

•This is an expansion and not Greenfield project.Environmental impacts of comparable fresh projectwill always be higher than that of retrofit, renovationand expansion as is being proposed.

•Parliament needs to be close to the other seats ofgovernance.

It follows that the alternative selected is indeed the best fora building like the Parliament of India.

g. Cumulative Impacts vis-à-vis Central Vista Development alongwith Proposed Parliament Expansion:

i. We re-state with emphasis that the proposed project is anexpansion of an existing building on the neighboring plot.Majority of the impacts of the combined structure are alreadyoccurring at the site. The expansion of the new ParliamentBuilding will lead to environmental impacts, that are, if atall, minor and incremental. Please see Annexure 1highlighting the reason for this conclusion.

ii. There will be no significant impacts on ecology sincetrees that require to be transplanted will be sent to holdingnurseries for the time being. Thereafter, these will be movedto Plot 118 as part of the external site development. Trees

that cannot be accommodated within Plot 118 will betransplanted within the Central Vista area. The above detailshave been represented with the MoEF&CC. Requisitepermissions for transplanting of trees will be secured fromthe Competent Agencies.

iii. There will be n significant impacts on public spaceswhatsoever due to the proposed Parliament expansion. Thisis so because Plot 118, which is adjacent to Plot 116 onwhich the existing Parliament stands, currently housesparking, ancillary services and reception to the ParliamentHouse since about four decades. The reception was builtin 1976 and utilities such as the AC chiller plant were builtin 1981-82 whilst the sub-station was built in 1974, since itwas not possible to accommodate these facilities within Plot116. As the entire area is high security zone, it could neverbe utilized as District Park for recreational use.”

89. Thereupon, the EAC had proceeded to record its conclusionand findings, which read:

“50.3.7.5. Based on the information and clarifications providedby the proponent vis-à-vis mitigation measures for likelyenvironmental impacts proposed by the proponent, the EACappraised environmental aspects of the project and recommendedfor grant of Environmental Clearance with following specificconditions along with other Standard EC Conditions as specifiedby the Ministry vide Om dated 4[th] January, 2019 for the saidproject/activity (specified at Annexure-8 of the minutes), whileconsidering for accord of environmental clearance.”

Recording the above, the EAC proceeded to impose as many asfifteen conditions including those relating to other clearances which wouldbe required, like clearance from Delhi Pollution Control Committee underthe Air and Water Pollution Act, provision for adequate fire safetymeasures, etc.

90. What is of concern is lack of discussion, reasons or even theconclusion or finding on the aspect of slicing or inclusion. On the matterof “appraisal” in Bengaluru Development Authority v. SudhakarHegde[63], this court has elucidated:

63 (2019) 15 SCC 401.

A“Appraisal by the SEAC is structured and defined by the 2006Notification. At this stage, the SEAC is required to conduct “adetailed scrutiny” of the application and other documents includingthe EIA report submitted by the applicant for the grant of an EC.Upon the completion of the appraisal process, the SEAC makes“categorical recommendations” to the SEIAA either for: (i) theBgrant of prior EC on stipulated terms and conditions; or (ii) therejection of the application. Significantly, the recommendationsmade by the SEAC for the grant of EC, are normally accepted bythe SEIAA and must be based on “reasons”.

Proceedings before the EAC are not adversarial in nature. EACCacts both as fair investigator and an independent objective adjudicatorwhen deciding whether or not to grant environmental clearance. Theremust be application of mind which is reflected when reasons justifyingthe conclusion are recorded. Mere reproduction of the contesting standsis not sufficient. On the contrary it would reflect mechanical grant without

Dapplication of mind. Further, it is not for the court/appellate forum toassume what weighed, whether the conclusion relies on material whichis relevant, irrelevant or partly relevant, or whether the decision is partlybased on surmises and conjectures and partly on evidence. (See, theConstitutional Bench decision of this Court in Dheeraj Lal and GirdhariLal v. Commissioner of Income Tax,[64]). Some reasons at least in briefEto understand what had weighed and persuaded the authority is mandatedand required. One issue certainly raised that required an answer wasthe question of slicing or inclusion. We are unable to fathom and ascertainreasons or the findings recorded on this aspect.

91. In S.N. Mukharji v. Union of India[65], observations in SiemensFEngineering & Manufacturing Co. of India Ltd. v. Union of Indiaand Another[66] were quoted to hold that administrative authorities andtribunals exercising quasi-judicial function can justify their existence andcarry credibility with the people by inspiring confidence in the adjudicatoryprocess. Unless reasons are disclosed, it is not possible to know whetherGthe authority had applied its mind or not. Also giving of reasons minimiseschances of arbitrariness. It is an essential requirement of rule of lawthat some reasons at least in brief must be disclosed in judicial orquasi-judicial order even if it is an order of affirmation. Similar64 AIR 1955 SC 27165 AIR 1990 SC 1984H66 (1976) 2 SCC 981observations have been made in Chairman, Disciplinary Authority,Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish ChandVarshney.[67]Commissioner of Income Tax v.Walchand and Co. Pvt.Ltd.,[68] observes that certain quasi-judicial tribunals must approach anddecide the case in judicial spirit and for that purpose it must indicatethe disputed questions before it with evidence pro and con and record itsreasons in support of the decision. The practice of recording decisionwithout reason in support cannot but be severely deprecated. Whengiving and recording of reasons by quasi-judicial authority is mandatedin law, it serves several purposes. First, exercise of discretion by quasi-judicial process is best vindicated by clarity in its exercise.[69] Secondly, itpromotes thought by the authority and compels it to consider and deciderelevant points and eschew irrelevancies ensuring careful consideration.[70]Thirdly, the appellate authority or courts exercising power of judicialreview are unable to exercise their appellate or judicial review powerunless they are advised and made aware of the consideration underlyingthe order under review.[71] Fourthly, requirement for recording reasons isone of the fundamentals of good administration and governance. Lastly,recording of reasons, specially by administrative authorities performingquasi-judicial functions, ensures lack of bias and prejudice. This is speciallyso when government and the citizens are pitted against each other, asthen there could be allegations that the executive officer or the quasi-judicial authority look at things from the stand point of the policy makerand expediency, rather than the rights of people. Thus, failure to recordreasons can amount to denial of justice, as the reasons are live linkbetween the mind of the decision maker to the controversy in questionand decision or conclusion arrived at. Therefore, requirement of aspeaking order is judicially recognised as an imperative. In State ofPunjab v. Bhag Singh[72], it was observed:

6. Even in respect of administrative orders, Lord Denning, M.R.in Breen v. Amalgamated Engg. Union [(1971) 1 All ER 1148 :(1971) 2 QB 175 : (1971) 2 WLR 742 (CA)] observed: “Thegiving of reasons is one of the fundamentals of good

67 (2009) 4 SCC 240

68 AIR 1967 SC 1435

69 Phillips Dodge Corporation

70 John P. Dunlop

71 Securities and Exchange Commission

72 (2004) 1 SCC 547

DEF

Aadministration.” In Alexander Machinery (Dudley)Ltd. v. Crabtree [1974 ICR 120 (NIRC)] it was observed: “Failureto give reasons amounts to denial of justice. Reasons are livelinks between the mind of the decision-taker to the controversy inquestion and the decision or conclusion arrived at.” Reasonssubstitute subjectivity by objectivity. The emphasis on recordingBreasons is that if the decision reveals the “inscrutable face of thesphinx”, it can, by its silence, render it virtually impossible for thecourts to perform their appellate function or exercise the powerof judicial review in adjudging the validity of the decision. Right toreasons is an indispensable part of sound judicial system, reasonsCat least sufficient to indicate an application of mind to the matterbefore court. Another rationale is that the affected party can knowwhy the decision has gone against him. One of the salutaryrequirements of natural justice is spelling out reasons for the ordermade, in other words, speaking-out. The “inscrutable face of asphinx” is ordinarily incongruous with judicial or quasi-judicialDperformance.”

92. Faced with the aforesaid position, it was faintly argued beforeus that the relevant clause of the EIA Notification of 2006 does notrequire giving of reasons when environment clearance is granted. Further,observations of this Court to the contrary in recent decision in HanumanELaxman Aroskar v. Union of India[73] are per incuriam. The relevantclause of the EIA notification reads as under:

“(i) Appraisal means the detailed scrutiny by the Expert AppraisalCommittee or State Level Expert Appraisal Committee of theapplication and other documents like the Final EIA report, outcomeFof the public consultations including public hearing proceedings,submitted by the applicant to the regulatory authority concernedfor grant of environmental clearance. This appraisal shall be madeby Expert Appraisal Committee or State Level Expert AppraisalCommittee concerned in transparent manner in proceeding toGwhich the applicant shall be invited for furnishing necessaryclarifications in person or through an authorized representative.On conclusion of this proceeding, the Expert Appraisal Committeeor State Level Expert Appraisal Committee concerned shall makecategorical recommendations to the regulatory authority concerned

either for grant of prior environmental clearance on stipulatedterms and conditions, or rejection of the application for priorenvironmental clearance, together with reasons for the same.”

The National Green Tribunal in Gau Raxa Hitraxak Manch v.Union of India[74] has rightly observed that the use of the comma at theend of the first part of the sentence, prefixing the words ‘terms andconditions’ and also suffixing the words ‘terms and conditions’ with thewords ‘together with reasons for the same’ need to be read in conjunction.In this case it was held, and we respectfully agree, that the apprisingbody, which includes EAC as well as the Ministry, has to make categoricalrecommendations to the regulatory authority either for grant of clearanceor rejection, together with reasons for the same. Further, the orderspassed by the EAC are appealable before the National Green Tribunal.Appellate forum would not be able to decipher and adjudicate unlessreasons are set out and stated in the order under challenge. The wholepurpose of outsourcing the task to EAC, comprised of experts andspecialists, is to have proper evaluation on the basis of some objectivecriteria. EAC is body that has to apply its collective mind and not torecord conclusions. It must justify and give basis for its conclusions.Hanuman Laxman Aroskar, observes:

“160. EAC, as an expert body abdicated its role and function bytaking into account circumstances which were extraneous to theexercise of its power and failed to notice facets of the environmentthat were crucial to its decision making. The 2006 Notificationpostulates that normally, MoEFCC would accept therecommendation of EAC. This makes the role of EAC even moresignificant. NGT is an adjudicatory body which is vested withappellate jurisdiction over the grant of an EC. NGT dealt with thesubmissions which were urged before it in essentially oneparagraph. It failed to comprehend the true nature of its role andpower under Section 16(h) and Section 20 of the NGT Act, 2010.In failing to carry out merits review, NGT has not discharged anadjudicatory function which properly belongs to it.”

93. The respondent had argued that this Court can examine thequestion whether or not there is slicing and inclusions. We are to ascertainthe legal correctness of the impugned order and not undertake an in-depth and fresh merit exercise. We are not experts. Statutoryprovisions

Ashould be respected. Some the writ petitioners state that the built area ofthe parliament library and the annexe have been deliberately excluded.If the constructed area of the library and annexe are added to the built-up area, the total built-up area would come be 1,99,435 sq. mtrs., andhence the application has to be processed in terms of item 8(b) and notitem 8(a), even if the principle of slicing/division of the Central Vista isBrejected. We would not like to answer or go into these aspects in theabsence of any consideration by the EAC. However, on remand theseaspects should be considered.

94. The respondents have, in their pleadings and in the course ofChearings, submitted the reasons why Central Vista requires redevelopment.Keeping in view the scope and ambit of judicial review, we havedeliberately not considered merits of the grounds given by the respondentsfor modification of the Master Plan with regard to redevelopment of theCentral Vista. However we would record the same and would takenotice of the counter by the petitioners. The respondents have statedDthat hutments or temporary barracks or stables, built during World WarII, occupy an area of over 90 acres of land including open area adjacentto the North Block, A&B Block adjacent to South Block, plots at ThyagrajMarg, Jamnagar House and Jodhpur House. Further, buildings like ShastriBhawan, Nirman Bhawan, Udyog Bhawan, Rail Bhawan, Krishi BhawanEand Vayu Bhawan etc. were constructed post-Independence. Thehutments and these buildings have outlived their structural life of aroundfifty areas and are not earthquake–safe, suffer from poor serviceintegration, inefficient use of land, inadequate facilities and lack ofcoherent architectural identity. These hutments and buildings cannotfunction as modern offices, and require retrofitting and refurbishing whichFwould cost about Rs.50 crores year. Further, usage and architectureof these buildings and others is incoherent; for instance, the VicePresident’s residence, Vigyan Bhawan and National Museum are locatedadjoining each other. As per non-availability certificate issued by theDirectorate of Estates there is shortage of about 3.8 lakh meters ofoffice space for which rentals up to Rs.1000 crores would be required.GCentral Vista Development and Re-development Plan would ensure thatformal central secretariat with all ministries are located at single locationfor efficiency and synergy of function. In all about 51 Ministries are tobe located in 10 buildings to be constructed in the Central Vista withoffice spaces having modern technological features and amenities. ThereHwould be an underground shuttle approximately 3 km in length that wouldconnect and integrate all buildings. The existing Parliament House andAnnexe are not being demolished; new Parliament building is beingconstructed which, along with the existing buildings will form theParliament Complex. It is stated that the Parliament House wascommissioned in 1927 and over the years parliamentary activities andnumber of people working or visiting there have increased manifold.Parliament building was designed to house the Imperial Legislative Counciland is not planned for national legislature. Two floors were added tothe structure in 1956 due to demand of more space. Library building andAnnexe were added later on. The building is not designed according tothe present fire safety norms and there are other safety issues. Electricalair-conditioning and plumbing systems are inadequate, inefficient andcostly to operate and maintain. Audio video system in the Parliament isold and hall acoustics are not effective. Lastly, it is stated that the lastdelimitation for number of seats in Lok Sabha was carried out on thebasis of 1971 census. Since then 545 seats have not undergone change.This number of seats is likely to increase substantially after 2026. BothLok Sabha and Rajya Sabha are packed to capacity and have no spacefor additional seats. Seating arrangements are cramped and cumbersomeand there are no desks beyond second row. This makes the movementextremely constrained. Central Hall has seating capacity of only 440persons. Further all heritage buildings are being preserved and many ofthe them would be used as museums.

95. The petitioners, on the other hand, have submitted:

(a)Existing Parliament House and Central Vista are continuingand living heritage which must be preserved and protectedFfor future generations. Re-development of nearly 80 acresof land, demolition of National Museum and constructionof new Parliament will permanently affect the iconiccharacter, skyline, layout, and the architectural harmony ofthe Central Vista. It would cause irreplaceable and non-revocable harm and damage Garde 1 heritage buildings andGprecincts.

(b)Re-development if permitted would violate Articles 49 and51(c) of the Directive Principles of State Policy. Further,Doctrine of Public Trust applies to historically significant

710SUPREME COURT REPORTS

[2021] 15 S.C.R.

Abuildings/precincts and properties of special consequence(Lok Prahari v. State of U.P.[75]).

(c)Re-development, if required, should be undertaken as perwell-established norms applicable to places of historicalinterest. Reference is made to Vienna Memorandum onBWorld Heritage and Contemporary Architecture – Managingthe Historic Urban Landscape (2005), ICOMOS’s DelhiDeclaration on Heritage and Democracy (2017) and others.The exercise being undertaken fails to follow best practicesof heritage conservation.

C(d)No expert or specialised study and assessments has beenundertaken and in absence, allegations of structural integrity,fire safety and seismic concerns etc. are mere reservationsand misgivings. There is no empirical data in support of theassertions made by the respondents that the ParliamentHouse etc. has outlived its life. No such doubt is raised inDrespect of other building constructed at the same time likethe North and South Blocks and the President’s House. Onthe contrary, Annexure to the written submissions filedby the Respondent records the state of preservation of theParliament House as ‘fair’. Heritage assessment studyEshould be undertaken and made public. Existing Parliamentbuilding can be upgraded.

(e)In alternative, expansion or additional construction ratherthan construction of new Parliament can be explored.Office spaces, can be created near the official residenceFof the bureaucracy.

(f)Cost-benefit analysis has not been undertaken thoughsignificant capital expenditure in excess of Rs. 20,000 croresapparently would be incurred. The capital cost would behigher as logistics, temporary housing cost and the cost ofGremoval or transplantation of mature trees etc. have notbeen included. Assertion that expenditure of Rs. 1,000 croresper annum on account of rent etc., is unsupported by anydocument and is assumptive.

75 (2018) 6 SCC 1

(g)Over period of time, there has been reduction of greenarea in the Central Vista, which is open and accessible togeneral public. The public area would get further reducedwith the re-development plan.

(h)Zone ‘C’ where New India Gardens are proposed, is at adifferent location and not within Zone ‘D’, in which theCentral Vista and LBZ are located. Reduction in green/recreational area in Central Vista, prime and iconic place,cannot be compensated by garden at different location.

(i)By the Constitution (84[th] Amendment Act),2002 hasextended the freeze on undertaking fresh delimitation as apart of national population strategy. Delimitation for the

same reason may or may not take place. In any case itwould be after the next census post 2026, that is in 2031.

96. We have referred to the contentions of the petitioners andrespondents in some detail but would not comment on merits. These arecomplex and esoteric issues which have to be at first stage consideredand decided by the specialised authorities like the Heritage ConservationCommittee. If we consider and examine the merits of the pleas, wewould be directly encroaching their jurisdiction and exceeding the powerof judicial review. It is the reasoning and discussion in the orders by thestatutory/quasi-judicial that are subjected to judicial scrutiny and review.Further, matters pertaining to heritage, architectural, functionality etcare for the experts and specialists in the field like Architects, town planers,historians, urbanists, engineers etc. to examine and guide. Suffice it wouldbe to observe that the stands on merits reflect different perceptions andbeliefs. The respondents without doubt do verily believe thatredevelopment of Central Vista and new Parliament building is animperative necessity. Central Vista requires makeover. The hutmentsand some of the non-heritage buildings like Shashtri Bhawan, NirmanBhawan, Udyog Bhawan etc. which it is stated occupy more than 90acres of land require re-development. Similarly, if new parliament buildingis required and being must, it should be constructed. Several formerand the present Speaker have expressed the need for construction of anew Parliament. Some of the petitioners do not oppose partial andregulated redevelopment for functionality, while maintaining and

Apreserving the heritage, ethos and visual look. Central Vista andParliament House is an heritage and belongs to the Nation and the people.Their primary grievance is lack of information and details. They submitthat experts and specialists can provide acceptable solutions to conserveand make historical buildings functional, as it has happened elsewhere.BThe issues raised by the petitioners along with the stand of therespondents have to be taken into consideration by the statutory authoritiesin terms of and as per the statutory mandate. Ultimately, the issue has tobe decided as per law after ascertain details by professional experts.Our interference does not reflect on merits of the stands, but is on accountof procedural illegalities and failure to abide the statutory provisions andCmandate.

97. In view of the aforesaid discussion, while setting aside andquashing the final notification of modification/change of the land usedated 28[th] March 2020 in respect of the 6 plots in the Central Vista, wewould direct as under:D

A)The Central Government/Authority would put on publicdomain on the web, intelligible and adequate informationalong with drawings, layout plans, with explanatorymemorandum etc. within period of 7 days.

B)Public Advertisement on the website of the Authority andthe Central Government along with appropriate publicationin the print media would be made within 7 days.

C)Anyone desirous of filing suggestions/objections may do soFwithin 4 weeks from the date of publication. Objections/suggestions can be sent by email or to the postal addresswhich would be indicated/mentioned in the public notice.

D)The public notice would also notify the date, time and placewhen public hearing, which would be given by the HeritageGConservation Committee to the persons desirous ofappearing before the said Committee. No adjournment orrequest for postponement would be entertained. However,the Heritage Conservation Committee may if required fixadditional date for hearing.

E)Objections/suggestions received by the Authority along withAthe records of BoEH and other records would be sent tothe Heritage Conservation Committee. These objections etc.would also be taken into consideration while deciding thequestion of approval/permission.

F)Heritage Conservation Committee would decide allcontentions in accordance with the Unified Building ByeLaws and the Master Plan of Delhi.

G)Heritage Conservation Committee would be at liberty toalso undertaken the public participation exercise if it feelsCappropriate and necessary in terms of paragraph 1.3 or otherparagraphs of the Unified Building Bye Laws forconsultation, hearing etc. It would also examine the disputeregarding the boundaries of the Central Vista Precincts atRajpath.

H)The report of the Heritage Conservation Committee wouldbe then along with the records sent to the CentralGovernment, which would then pass an order in accordancewith law and in terms of Section 11A of the DevelopmentAct and applicable Development Rules, read with theEUnified Building Bye-laws.

I)Heritage Conservation Committee would alsosimultaneously examine the issue of grant of priorpermission/approval in respect of building/permit of newparliament on Plot No. 118. However, its final decision oroutcome will be communicated to the local body viz.,NDMC, after and only if, the modifications in the masterplan were notified.

J)Heritage Conservation Committee would pass speakingorder setting out reasons for the conclusions.

98. We set aside the order of the EAC dated 22[nd] April,2020 andthe environment clearance by the Ministry of Environment and Forestdated 17[th] June,2020, and would pass an order of remit to the EAC witha request that they may decide the question on environment clearance

Awithin period of 30 days from the date copy of this order received,without awaiting the decision on the question of change/modification ofland use. Speaking and reasoned order would be passed.

99. Parties, if aggrieved by any order/approval/non-approval wouldbe entitled to challenge the same in accordance with law.B

In the facts of the case there would be no order as to costs.

Bibhuti Bhushan Bose

Matters disposed of.