Rajeev Suri vs Delhi Development Authority & Ors.

1.3 of the Building Bye Laws of the Heritage Conservation Committee (HCC), is the stage of actual development/ redevelopment etc. work is to commence and not the incipient stage of planning and formalisation of the Project – Accordingly, respondents to obtain prior permission of the designated Authority before actually starting any 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.) (partly dissenting) (Minority judgment): The dissent is only on aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee (HCC) and order passed by the Expert Appraisal Committee (EAC) – However on aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order, there is no disagreement – Final notification of modification /change of the land use dated 28th March 2020 in respect of the 6 plots in the Central Vista quashed and set aside, with directions – Order of EAC dated 22nd April, 2020 and environment clearance by Ministry of Environment and Forest dated 17th June, 2020 set aside, and an order of remit to the EAC passed with a request that they may decide the question on environment clearance, without awaiting the decision on the question of change/modification of land use – Delhi Development Act, 1957 – s.11A(2) – Delhi Urban Arts Commission Act, 1973 – Environment Protection Act, 1986 – Building Byelaws for Delhi, 2016 – Master Plan of Delhi, 2021.

Doctrines / Principles – Principle of Rule of Law – Held: The principle of Rule of Law runs as a common thread through the substantive as well as procedural laws – A democratic polity requires all organs of the state to attach equal importance to substance of law as well as to the procedure delineated to perform such substantive functions – That must be the constant endeavour to touch both ends as well as means.

ORS.

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

Government Policy – Interference with – Judicial Review – Scope – Held: The Courts do not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such – The Government may examine advantages or disadvantages of a policy at its own end, it may or may not achieve the desired objective – The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process – It is not the Court’s concern to enquire into the priorities of an elected Government – Judicial review is never meant to venture into the mind of the Government and thereby examine validity of a decision.

Judicial Review – Principled judicial review – “Constitutional due process” – Held: In a principled judicial review a “check” is maintainable without tilting the “balance” – An elected Government is the repository of public faith in matters of development – Dispensation of judicial review cannot be resorted to by the aggrieved /dissenting section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government – Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option as in the perception of the aggrieved/dissenting section of public would have been a better option.

Doctrines / Principles – Constitutionalism – Held: Constitutionalism is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged – It is a tool which is used to reach upto the ultimate goal of constitutionalization of governance but it cannot be deployed to present an alternative model of governance – Principle of constitutionalism is a work in progress which is meant to infuse life and blood into an existing scheme which has stood the test of constitutional validity and not to nudge with the scheme itself – It may only be deployed to evolve minimum standards of procedures prescribed by law – It is not to undermine or supplant the elaborate statutory regulatory schemes.

Constitution of India – Role of – Held: Constitution in our system plays twin role – First, Constitution as the guardian of fundamental rights and second, Constitution as the structure of governance.

Democracy – Principle of participatory democracy – Elements – 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, placing information regarding Government actions in public domain – The scope of public involvement in Government processes is however a matter dependent on legal framework of a country and the Court should be loath to venture into that area in the guise of eminence of the project under consideration – In a democratic setup where the citizen has entrusted abundant governance to the Government, it is bounden obligation of the Government to keep the citizens well informed about its actions, as a prudent trustee would. Policy and Development – Role of the Courts – Held: Courts operate within the boundaries defined by the Constitution, and cannot be called upon to govern, for, they have no wherewithal or prowess and expertise in that regard – The political issues including regarding development policies of the Government of the day must be debated in the Parliament, to which it is accountable – The role of Court is limited to examining the constitutionality including legality of the policy and Government actions – The right to development is a basic human right and no organ of the State is expected to become an impediment in the process of development as long as the government proceeds in accordance with law – Judiciary.

In the instant matters, this Court was called upon by the petitioners to undertake a comprehensive and heightened judicial scrutiny regarding the permissibility of the Central Vista Project of the Government of India. As per the policy documents, the ORS.

need for the development of the Central Vista Project is rooted in the creation of a larger working space for efficient functioning of the highest legislative wing of the country and for integrated administrative block for Ministries/ Departments presently spread out at different locations including on rental basis. The Central Vista lies in the heart of the national capital, and within the “Lutyens’ Bungalow Zone” (LBZ), and is described by the Indian National Trust for Art and Cultural Heritage (INTACH) as the “ensemble with main axis Rajpath...the Rashtrapati Bhawan at Raisina Hills, flanked by the Secretariat (North and South Blocks)...the Parliament House...the hexagonal round-about that has the India Gate and the Canopy...”

Diverse issues concerning the decisions taken by the statutory Authorities including regarding the change in land use, grant of statutory and other permissions, environmental as well as heritage clearances etc., were raised in the proceedings. The challenge was premised on high principles of democratic values as applicable in India and not limited to mere infringement of statutory provisions of the governing enactments. That is on account of the nature of project – being of high political significance and eminence for our democratic republic; and for upholding the “Rule of Law”, which is on a higher pedestal than the governance by “Rule by Law”. An argument was also advanced as regards the absence of sufficient public participation in the entire process. Advancing the argument regarding direct public consultation, the petitioners stated that the concept of participatory democracy demands that a project of this nature must involve the common public as they are the real stakeholders of national heritage and must be consulted at every stage of the project including prior to drawing outline of the project, releasing consultancy tender, modifying the Master Plan and finalisation of the design and making changes therein.

The dispute relating to the modification and redevelopment of the Central Vista has different facets. First, is the legal challenge to change in the land use of six plots in the Central Vista under the Delhi Development Act, 1957, and the permissions/approvals granted by the Central Vista Committee, the Delhi Urban Arts Commission under the Delhi Urban Arts Commission Act, 1973 and the clearance/no-objection for construction of a new Parliament House under the Environment Protection Act, 1986. Failure to take prior permission/approval of the Heritage Conservation Committee as per Annexure II of the Unified Building Bye-Laws is alleged. In Writ Petition (Civil) No. 853/2020, the Notice inviting Bid and award of consultancy to the ninth respondent therein has been challenged. At a deeper and conceptual level the question relates to the government’s duty to consult and the scope and ambit of the citizen’s right to participate in the quasi legislative exercise. Connected with the two issues is the third question of scope and amplitude of the power of judicial review.

Disposing of the matters, the Court

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

HELD:1.1. The Rule of Law requires law in existence; such law must qualify as law within the meaning of the Constitution and must satisfy the standards laid therein and legally applicable meaning of Rule of Law in India can be best understood as a democratic rule within the four corners of the Constitution, as originally envisaged and as is interpreted from time to time. The existence of democracy per se does not guarantee adherence to Rule of Law, but abidance of Rule of Law by one and all is the hallmark of a real thriving democracy. [Para 133][386-B-D]

1.2. The fact that all power flows from law and must be exercised in accordance with such law is easy to be theorized in a constitutional discourse, but difficult to be sustained in the aftermath of ever-expanding potpourri of the law itself. It is for this very reason the statement – ‘Rule of Law’ must encompass a dynamic concept albeit rooted in four corners of the Constitution. It provides a constant trigger to any state-citizen intercourse and calls upon this Court to strike a just balance between two entities, both equally bound by the same principle of superiority of law. A just and time-tested methodology to strike this balance lies in the end product of furthering the avowed goal of a democracy premised upon Rule of Law and not dragging it backwards. [Para 134][386-D-F]

ORS.

1.3. The principle of Rule of Law runs as a common thread through the substantive as well as procedural laws. A democratic polity requires all organs of the state to attach equal importance to substance of law as well as to the procedure delineated to perform such substantive functions. That must be the constant endeavour to touch both ends as well as means. [Para 135][386F-G]

2.1. The trajectory of our jurisprudence in review of matters involving personal liberties has been one of strict approaches. It is, however, a misnomer to propagate that we have gradually transformed from chosen “procedure established by law” into once consciously rejected “due process of law”. The petitioners, despite their best of efforts, have not been able to demonstrate a case of deprivation of life or personal liberty of any individual on account of any of the impugned executive action. Whereas, it is essential for the petitioners to demonstrate a real and direct impact or restriction on their core fundamental rights due to the impugned executive action to invoke the due process argument. A cause-effect relationship is essential. Only then the burden would shift on the State to either show the absence of restrictions or justification of restrictions within the permissible exceptions of Part-III. [Para 144][394-E-G]

2.2. A judicial review is an exercise in reference to some existing rights and the reliefs and remedies prayed for. The Rule of Law, as accepted and settled in India, with regard to judicial interference in administrative and executive or policy matters is no more res integra. The duty enjoined upon the judiciary is to ensure checks and balances; and to place itself between the Government and citizens when they come face to face in a Court of law. It is meant to act as an equaliser and ensure that the flow of decisions from executive to citizens is overseen through the prism of well-established principles, as and when called upon to do so. The judicial organ is not meant to impose the citizens’ or even its own version of good governance upon the Government in the name of Rule of Law in exercise of its power of judicial review. [Para 145][394-H; 395-A-C]

2.3. In India, what prevails is the “constitutional due process” i.e., the process which is due under the constitutional scheme. And what is due, is a principled judicial review wherein a “check” is maintainable without tilting the “balance”. For, all organs of the state are constitutionally committed to and beholden by the common goal of giving effect to processes and procedure established by law, ideals, expectations, rights and duties due under the Constitution and no deviation can be permitted therefrom. [Para 158][405-A-C]

3. In a democracy, the electors repose their faith in the elected Government which is accountable to the legislature and expect it to adopt the best possible course of action in public interest. Thus, an elected Government is the repository of public faith in matters of development. Some section of the public/citizens may have another view point if not complete disagreement with the course of action perceived by the elected Government, but then, the dispensation of judicial review cannot be resorted to by the aggrieved/dissenting section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government. Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option as in the perception of the aggrieved/dissenting section of public would have been a better option. [Para 163][406-H; 407A-C]

4.1. The Courts do not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such. The Government may examine advantages or disadvantages of a policy at its own end, it may or may not achieve the desired objective. The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process. It is not the Court’s concern to enquire into the priorities of an elected Government. Judicial review is never meant to venture into the mind of the Government and thereby examine validity of a decision. [Paras

164 and 165][407-C; 408-B-C]

4.2. Judicial review primarily involves a review of State action – legislative, executive, administrative and policy. The primary examination in a review of a legislative action is the existence of power with the legislature to legislate on a particular ORS.

subject matter. For this purpose, doctrines of pith and substance, harmonious construction, territorial nexus etc. are often resorted to. Once the existence of power is not in dispute, it is essentially an enquiry under Article 13 of the Constitution which enjoins the State to not violate any of the provisions of Part-III in a lawmaking function. The review of executive action would depend upon the precise nature of the action. For, the domain of executive is wide and is generally understood to take within its sweep all residuary functions of the State. Thus, the precise scope of review would depend on the decision and the subject matter. For instance, an action taken under a statute must be in accordance with the statute and would be checked on the anvil of ultra vires the statutory or constitutional parameters. The enquiry must also ensure that the executive action is within the scope of executive powers earmarked for State Governments and Union Government respectively in the constitutional scheme. The scope of review of a pure administrative action is well settled. Since generally individuals are directly involved in such action, the Court concerns itself with the sacred principles of natural justice – audi altrem partem, speaking orders, absence of bias etc. The enquiry is also informed by the Wednesbury principles of unreasonableness. The review of a policy decision entails a limited enquiry. Second guessing by the Court or substitution of judicial opinion on what would constitute a better policy is strictly excluded from the purview of this enquiry. Under the constitutional scheme, the government/executive is vested with the resources to undertake necessary research, studies, dialogue and expert consultation and accordingly, a pure policy decision is not interfered with in an ordinary manner. The burden is heavy to demonstrate a manifest illegality or arbitrariness or procedural lapses in the culmination of the policy decision. However, the underlying feature of protection of fundamental rights guaranteed by the Constitution must inform all enquiries of State action by the constitutional Court. [Para 167][410-D-H; 411-A-B]

5.1. Constitutionalism is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach upto the ultimate goal of constitutionalization of governance and it cannot be deployed to present an alternative model of governance. It would not only be absurd but also fraught with dangers of overreach and ambiguity if subjective principles of interpretation are applied by detaching them from the textual scheme of the Constitution, particularly when the textual scheme lays down an elaborate structure of administration. For, to do so would be to drag a duly elected Government on the edges as it would be under a constant fear of being adjudged wrong on the basis of undefined principles which appeal to “three gentlemen or five gentlemen sitting as a Court”. And what will suffer is public interest in the form of public exchequer including sovereignty of the nation. [Para 170][412-C-F]

5.2. The principle of constitutionalism is a work in progress which is meant to infuse life and blood into an existing scheme which has stood the test of constitutional validity and not to nudge with the scheme itself. It may only be deployed to evolve minimum standards of procedures prescribed by law. It is not to undermine or supplant the elaborate statutory regulatory schemes. [Para 172][413-A-B]

6.1. A holistic understanding of the dispensation envisaged under our Constitution would reveal that we are a representative democracy with strong elements of participatory democracy embedded in it. The element of participation, however, is regulated not only by statutes but also by the Constitution. The Constitution, if it would have envisaged every important decision to be flowing from the public in the manner proposed by the petitioners, would have clearly provided for that dispensation. It has not. Understood thus, the Constitution in our system plays twin role – first, Constitution as the guardian of fundamental rights and second, Constitution as the structure of governance. [Para 183][421-C-D]

6.2. The principle of participatory democracy has two integral elements – first, public participation in decision making and second, placing information regarding Government actions in public domain. The first element, no matter how desirable, is carefully circumscribed by the state of Rule of Law or procedure established by law, as present, and a fine balance has been struck between need for public participation and effective functioning of ORS.

administration. The legislature has expressly provided for such public participation and the extent thereof in the governing enactments.[Para 184][421-E-F]

6.3. The participation itself involves three features – the stage, the extent and the nature of participation. The extent and quality of permissible participation is dependent upon a multitude of factors including, but not limited to, the stage of procedure, nature of subject matter, number of affected persons, local conditions, geography, strategic importance of project, budgetary allocations for the project etc. The subject matter of a development project having no direct bearing on lives and livelihoods cannot be equated with a project which has a direct impact upon their lives and livelihoods. [Para 185][421-F-G]

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

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

6.6. However, it must be borne in mind that such public participation is not to supplant the discretion of the Government or to retard the development work. It is only for inviting constructive suggestions/objections from all stakeholders for effective implementation of the policy of the Government, to subserve public interest. [Para 189][422-F-G]

6.7. The prosaic, bland, inapplicable metaphysical principles of constitutional theory, imported from foreign jurisdictions, cannot create an extra-constitutional standard of judicial review or to extend involvement of public at every level of governance absent any statutory regime in that regard. Thus, the scope of public involvement in Government processes is a matter dependent on legal framework of a country and the Court should be loath to venture into that area in the guise of eminence of the project under consideration. [Para 191][426-A-B]

6.8. The other facet of participatory democracy is disclosure of information in public domain about the actions of Government. The petitioners’ argument is that for effective participation, the citizens must know what they are participating in and why. This merits consideration. For, unless complete and relevant information about Government decision is placed in public domain, the public would be ill-equipped to engage with the Government in a meaningful manner. In a democracy, disclosure of full information is empowerment and acts as an enabler for meaningful participation. Granting open access to information also secures the goal of transparency to which all public institutions are wedded. It is right to say that the Right to Information Act, 2005 has empowered the citizen to obtain information from the Government but it would be absolutely untenable to say that there is no duty on the Government to be open. In a democratic setup where the citizen has entrusted abundant governance to the Government, it is bounden obligation of the Government to keep the citizens well informed about its actions, as a prudent trustee would. [Paras 193 and 194][428-C-D; 431-C]

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

incomplete without informational justice which essentially requires the decision makers to consider the subjects of their decisions as rightful recipients of all information that may have an impact on their lives. Furthermore, open availability of information would also advance the objective of education and empowerment. Article 51(h) provides for the fundamental duty “to develop the scientific temper, humanism and the spirit of inquiry and reform”. The furtherance of spirit of inquiry and reform is largely dependent on the availability of information. It is nothing but a duty which enjoins the citizens to participate in good governance. Notably, the respondents in the present case have recognised the importance of openness and have placed elaborate data to demonstrate how all steps of the project including all permissions, orders, invitations, approvals etc. were made available for direct public access online from time to time at the earliest available opportunity. [Paras 196 and 197][431-H; 432A-D]

7. In the present case, the petitioners enthusiastically called upon this Court to venture into territories that are way beyond the contemplated powers of a constitutional court. No doubt, the Courts are repositories of immense public trust and the fact that some public interest actions have generated commendable results is noteworthy, but it is equally important to realise that Courts operate within the boundaries defined by the Constitution. The Court cannot be called upon to govern. For, the court has no wherewithal or prowess and expertise in that regard. [Para 420][595-E; 595-G-H; 596-A]

8. The constitutionally envisaged system of “checks and balances” has been completely misconstrued and misapplied in this case. The principle of “checks and balances” posits two concepts - “check” and “balance”. Whereas the former finds a manifestation in the concept of judicial review, the latter is derived from the well enshrined principle of separation of powers. The political issues including regarding development policies of the Government of the day must be debated in the Parliament, to which it is accountable. The role of Court is limited to examining the constitutionality including legality of the policy and Government actions. The right to development is a basic human right and no organ of the State is expected to become an impediment in the process of development as long as the government proceeds in accordance with law. [Para 421][596-BD]

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

(i) There is no infirmity in the grant of: (a) “No Objection” by the Central Vista Committee (CVC); (b) “Approval” by the Delhi 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 Central Government under Section 11A(2) of the DDA Act, 1957 is just and proper and thus the modifications regarding change in land use of plot Nos. 2 to 8 in the Master Plan of Delhi, 2021/Zonal Development Plan for Zone-D and Zone-C vide impugned notification dated 20.3.2020 stands confirmed.

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

(iv) The project proponent may set up smog tower(s) of adequate capacity, as being integral part of the new Parliament building project; and additionally, use smog guns at the construction site throughout the construction phase is in progress on the site.

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

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

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

Accordingly, the respondents shall obtain aforementioned prior permission of the designated Authority before actually starting any development/redevelopment work on the stated plots/structures/precincts governed by the heritage laws including on plot No. 118, if already not obtained.

(vii) The selection/appointment of Consultant, in light of the limited examination warranted in this case, is held to be just and proper. [Para 423][596-F-H; 597-A-H; 598-A] Lal Bahadur v. State of Uttar Pradesh & Ors. (2018)

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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; Public Interest Foundation & Ors. v. Union of India & Anr. (2019) 3 SCC 224; Brajendra Singh Yambem v. Union of 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 SCC

549 : [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 Reference No. 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) 15 SCC 570: [2009] 9 SCR 22; Sakal Papers (P) Ltd. & Ors. v. Union of India AIR 1962 SC 305 : [1962] 3 SCR 842; Bennett Coleman & Co. & Ors. v. Union of India & 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; Life Insurance 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 ; Chandramouleshwar Prasad v. Patna High Court & Ors. (1969) 3 SCC 56 : [1970] 2 SCR 666; Orissa Mining Corporation Limited v. Ministry of Environment & Forests & Ors. (2013) 6 SCC 476 : [2013] 6 SCR 881; Archaeological Survey of India v. Narender Anand & Ors. (2012) 2 SCC 562 : [2012] 1 SCR 260; Nagar Nigam, Meerut v. Al Faheem Meat 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 Development Authority v. Association of Management Studies & Anr. (2009) 6 SCC 171 : [2009] 6 SCR 663; Manohar Lal Sharma v. Principal Secretary & Ors. (2014) 9 SCC

516 : [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 Congress v. State of Madhya Pradesh & Ors. (2011) 5 SCC 29 : [2011] 5 SCR 77; Harminder Singh Arora v. Union of India & Ors. (1986) 3 SCC 247 : [1986] 3 SCR 63; Jagdish Mandal v. State of Orissa & Ors. (2007) 14 ORS.

SCC 517 : [2006] 10 Suppl. SCR 606; Ramana Dayaram Shetty v. International Airport Authority of India & 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 AIR 1951 SC 128 : [1951] 0 SCR 228; Narmada Bachao Andolan v. Union of India & Ors. (2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94; Shimnit Utsch India Private Limited & Anr. v. West Bengal Transport Infrastructure Development Corporation Limited & Ors. (2010) 6 SCC

303 : [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. Sundarrajan v. Union of India & Ors. (2013) 6 SCC 620 : [2013] 8 SCR 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] 3 Suppl. SCR 808; Federation of Railway Officers Association & Ors. v. Union of India (2003) 4 SCC

289 : [2003] 2 SCR 1085; Avishek Goenka v. Union of India & Anr. (2012) 5 SCC 275 : [2012] 5 SCR 547; Dental Council of India v. Subharti K.K.B. Charitable Trust & Anr. (2001) 5 SCC 486 : [2001] 3 SCR 149; Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors. (2010) 8 SCC 372 : [2010] 9 SCR 227; K.T. Plantation Private Limited & 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; Canara Bank v. V.K. Awasthy (2005) 6 SCC 321 : [2005] 3 SCR 81; Haryana Financial Corporation & Anr. v. Kailash Chandra Ahuja (2008) 9 SCC 31 : [2008] 10 SCR 222; Punjab National Bank & Ors. v. Manjeet Singh & 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] 3 SCR 1095; Ranjan Kumar Mitra v. Andrew Yule & Co. Ltd. & Ors. (1997) 10 SCC 386; Jagjit Singh v. State of Haryana & Ors. (2006) 11 SCC 1 : [2006] 10 Suppl. SCR 521; Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee (1977) 2 SCC 256 : [1977] 2 SCR 904; Sohan Lal Gupta (Dead) through LRs. & Ors. v. Asha Devi Gupta & Ors. (2003) 7 SCC

492 : [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 SCC

325 : [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 of India & Ors. AIR 1961 SC 1519 : [1962] 1 SCR 688; Union of India & Ors. v. E.G. Nambudiri AIR 1991 SC 1216 : [1991] 2 SCR 451; Mahabir Jute Mills Ltd., Gorakhpore v. Shibban Lal Saxena & Ors. (1975) 2 SCC 818 : [1976] 1 SCR 168; Sarat Kumar Dash and Ors. v. Biswajit Patnaik and Ors. (1995) 1 Suppl. SCC

434 : [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 of T.N. & Ors. (1994) 2 SCC 691 : [1994] 1 SCR 579; Delhi Science Forum v. Union of India (1996) 2 SC

405 : [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. Raj Narain (1975) 1 Suppl. SCC : [1975] Suppl. SCC 1; ORS.

State of Karnataka v. Union of India & Anr. (1977) 4 SCC 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 Court Advocates-on-Record Association & Anr. v. Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1; Indian Railway Construction Company Ltd. v. Ajay Kumar (2003) 4 SCC 579 : [2003] 2 SCR 387; Asia

Foundation & Construction Ltd. v. Trafalgar House Construction (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) 10 SCC 1: [2006] 8 Suppl. SCR 398; Himachal Pradesh Housing and Urban Development Authority v. Universal Estate & Anr. (2010) 14 SCC 253; Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors. (2009) 7 SCC 561: [2009] 9 SCR 225; Centre for Public Interest Litigation & Anr. v. Union of India & Ors. (2000) 8 SCC 606; Sterlite Industries (India) Limited & Ors. v. Union of India & Ors. (2013) 4 SCC

575 : [2013] 6 SCR 573; Municipal Corporation, Ujjain & Anr. v. BVG India Limited & Ors. (2018) 5 SCC 462 : [2018] 6 SCR 861; N.D. Jayal & Anr. v. Union of India & Ors. (2004) 9 SCC 362 : [2003] 3 Suppl. SCR 152; Kharak Singh v. State of U.P. & Ors. AIR 1963 SC 1295 : [1964] 1 SCR 332; Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi & Ors. AIR 1967 SC 1836: [1967] 2 SCR 525; Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Maneka Gandhi 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 SCC 709; Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India & Ors. (2014) 9 SCC 737: [2014] 11 SCR 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 SCC

343 : [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 SCC

544 : [2015] 4 SCR 45; Babu Verghese & Ors. v. Bar Council of Kerala & Ors. (1999) 3 SCC 422 : [1999] 1 SCR 1121; State of Uttar Pradesh v. Singhara Singh & Ors. AIR 1964 SC 358; Kedar Nath Yadav v. State of West Bengal & Ors. (2017) 11 SCC 601 : [2016] 11 SCR 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 Cellular v. 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) and Anr. (2010) 7 SCC 202 : [2010] 6 SCR 972; Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405 : [1978] 2 SCR 272; Janhit Manch and Anr. v. The State of Maharashtra and Ors. (2019) 2 SCC 505 : [2018] 14 SCR 860; S.P. Gupta & Ors. v. President of India & Ors. AIR 1982 SC 149 : [1982] 2 SCR 365; R.K. Jain v. Union of India (1993) 4 SCC 119 : [1993] 3 SCR 802; Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2020) 5 SCC 481 : [2019] 16 SCR 424; T.S.R. Subramanian and Ors. v. Union of India and Ors. (2013) 15 SCC 732 : [2013] 11 SCR 991; Anjali Bhardwaj and Ors. v. Union of India and Ors. 2019 (3) SCALE 447; Raghunathrao

Ganpatrao v. Union of India AIR 1993 SC 1267: [1993] ORS.

1 SCR 480; Machavarapu Srinivasa Rao & Anr. v. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development 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 Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta AIR 1967 SC 997 : [1967] 2 SCR 170; State Bank of Patiala & Ors. v. S.K. Sharma (1996) 3 SCC 364 : [1996] 3 SCR 972; Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions v. Pindiga Sridhar & 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 of Kurundwad Ltd. & Ors. v. Union of India & Ors. (2006)

10 SCC 645 : [2006] 5 Suppl. SCR 437; Punjab Communications Ltd. v. Union of India & Ors. (1999) 4 SCC 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. Union of India & Ors. 1980 Supp. SCC 559; Secretary, Ministry of Chemicals and Fertilizers, Government of India v. Cipla Ltd. & Ors. (2003) 7 SCC 1 : [2003] 2 Suppl. SCR 177; Sooraram Pratap Reddy & Ors. v. District Collector, Ranga Reddy Distt. & Ors. (2008) 9 SCC 552 : [2008] 13 SCR 126; Michigan Rubber (India) Limited v. State of Karnataka and Ors. (2012) 8 SCC 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 Online Del 3836; T. Muruganandam v. Ministry of Environment & Forests Manu/GT/0135/2014 (NGT decision dated 10.11.2014 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 SCC Online NGT 101; Sarpanch, Grampanchayat, Tiroda, Tal. Sawantwadi, District Sindhudurg, Maharashtra & Ors. v. Ministry of Environment & Forests & Ors. 2011 SCC Online NGT 10; M/s. Lithoferro & Ors. v. Ministry of Environment and Forests (2013) SCC Online NGT 40; S. Rama Rao & Ors. v. Jawaharlal Nehru Technological University, Hyderabad & Anr. 1977 SCC Online AP 27; Aircel Cellular Ltd. v. Union of India 2016 SCC Online Mad 8463; Friends of Rajouri Garden Environment & Anr. v. South Delhi Municipal Corporation 2020 SCC Online Del 458 – referred to. Illinois Central Railroad Co. v. People of the State of Illinois [146 US 387 : 36 L Ed 1018 (1892)] Democratic Alliance & Anr. v. Masondo NO & Anr. 2003 (2) BCLR

128 (CC); Matatiele Municipality & Ors. v. President of the Republic of South Africa & Ors. 2007 (1) BCLR

47 (CC); South African Veterinary Association v. Speaker of the National Assembly & Ors. 2019 (2) BCLR 273 (CC); Law Society Case of Kenya v. Attorney General & Ors. [Decision of Court of Appeal, Kenya in Civil Appeal No. 96 of 2014 decided on 27.9.2019]; Council of Civil Service Unions v. Minister for the Civil Service 1984 (3) All ER 935; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947)

2 All ER 680; R v. Secretary of State for the Home Department, Ex Parte Daly [2001] 3 All ER 433; Regina (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840; Huang & Ors. v. Secretary of State for the Home Department [2005] 3 All ER 435; Lochner v. New York 198 U.S. 45 (1905); New State Ice Co. v. Liebmann 285 U.S. 262; West Coast Hotel Co. v. Parrish 300 U.S. 379 (1937); United States v. Carolene Products Co. 304 U.S. 144 (1938); American Federation of Labor Et. Al. v. American Sash & Door Co. 335 U.S. 538 (1949); Ferguson, Attorney General ORS.

of Kansas, Et. Al. v. Skrupa 372 U.S. 726 (1963); Wolf v. Colorado 338 U.S. 25 (1949); Legg & Ors. v. Inner London 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 State Colleges Et. Al. v. Roth 408 U.S. 564 (1972); Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155; Morey, Auditor of Public Accounts of Illinois 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. EPA

426 U.S. 941 (1977) : 541 F.2d 1 (1977); Doctors for Life International v. Speaker of the National Assembly & Ors. 2006 (12) BCLR 1399; Kiambu County

Government & Ors. v. Robert N. Gakuru & Ors [Decision of Court of Appeal, Kenya in Civil Appeal No. 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 University Press (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 of Environment & Ecology Dictionary of Environment & Ecology, Bloomsbury, P.H. Collin, 5th Edn., page 116; “Implementing the Right to Development International Law and Sustainable Development – Principles and Practice, Edn. 2004, pg. 354; Professor Schotland D.C. Circuit Judicial Conference, Environmental Protection: Law and Policy, 2nd Edn., pg. 122; Landscape Architecture Magazine, Frederick SteinerandJohn Roberts Prospect: Public Trust Doctrine, Landscape Architecture Magazine, May/June, 1986, Vol. 76, pg.

132 and “Charting the Boundaries of Hawaii’s Extensive Public Trust Doctrine Post Waiâhole Ditch Charting the Boundaries of Hawaii’s Extensive Public Trust Doctrine Post-Waiâhole Ditch, Ana Ching, Page

2 – referred to.

Per Sanjiv Khanna, J. (partly dissenting) (Minority judgment)

HELD:1. This separate dissenting judgment is on account of difference with the opinion expressed by A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee. However on the aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order, there is no disagreement with the final conclusions in the judgment authored by A.M. Khanwilkar, J. [Para 3][599-D-E]

2.1. Gunning principles, first established in 1985, can be crystallised as under: (a) consultation must occur when the proposals are still at a formative stage; (b) the proponent must give sufficient reasons for the proposal that permit intelligent consideration and response; (c) adequate time must be given for consideration and response; and (d) the product of consultation must be conscientiously taken into account in finalising any statutory proposals. These principles ref lect the basic requirements essential if the public consultation process is to be sensible and meaningful. They would normally form the basis and foundation for proper application of the duty to consult and right to be consulted. Nevertheless, these principles should not be put in a strait-jacket and the degree of application would depend upon the factual matrix and is situation specific. [Para 25][639-DG]

2.2. Sections 7 to 11-A of the Delhi Development Act, 1957 decree detailed procedure for preparation of a Master Plan and the Zonal Development Plan(s) including direction that the Authority shall prepare a draft and make a copy available for inspection to general public and invite objections and suggestions ORS.

from any person. Gunning principles can be substantially read as resonating in Sections 10, 11 and 11-A of the Development Act and Rules 4, 8, 9 and 10 of the Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959. To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would be defeat the benefic objective of exercise of deliberation. Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements. Thus, mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure. This condition also flows from the common law general duty of procedural fairness. Doctrine of procedural legitimate expectation as explained below would be attracted. Intelligible and adequate disclosure of information in the context of the Development Act and the Development Rules means and refers to the degree to which information should be available to public to enable them to have an informed voice in the deliberative decision making legislative exercise before a final decision is taken on the proposals. In the present matter this lapse and failure was acknowledged and accepted by the Board of Enquiry and Hearing (BoEH), which had recommended disclosure and furnishing of details. Intelligible and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments. They have far more permanent consequences. It was therefore necessary for the respondents to inform and put in public domain the redevelopment plan, layouts, etc. with justification and explanatory memorandum relating to the need and necessity, with studies and reports. Of particular importance is whether by the changes, the access of the common people to the green and other areas in the Central Vista would be curtailed/restricted and the visual and integrity impact, and proposed change in use of the iconic and heritage buildings. [Paras 27, 28][641-A-B; 642-A-H]

3. In the context of the present case, given the nature and importance the statutory provisions which emphasise on fair participation of the public in the deliberations, and the importance and significance of Central Vista, it would not be appropriate and correct to ignore failure on the part of the respondents to ascribe to the principle of intelligible and adequate disclosure to fulfil the requirement of public participation. Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regarding the proposal. Formative and constructive participation forms the very fulcrum of the legislative scheme prescribed by the Development Act and the Development Rules. Every effort must be made to effectuate and actualise the participatory rights to the maximum extent, rather than read them down as mere irregularity or dilute them as unnecessary or not mandated. [Para 37][649-F-H; 650A-B]

4. The Central Government has not placed on record even a single document or minutes to show that the objections and suggestions were considered by the Central Government. [Para 51][662-D-E]

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

6. It is a well-settled proposition that where power is given to do a certain thing in a certain way, then the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. When the statute prescribes a particular act must be done by following a particular procedure, the act must be done in that manner or not at all. The Technical Committee of ORS.

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

7. Respondents raised two other defences. First, the construction of the new Parliament being on a vacant plot adjacent to the existing Parliament building does not require approval/no objection from the Heritage Conservation Committee. This contention according to the petitioners is fallacious as it is contrary to the statutory Master Plan of Delhi and the Unified Building Bye-Laws. They rely on the definition assigned to the term ‘heritage building’, which ‘includes such portion of land adjoining such building and part thereof as may be required for fencing or covering or in any manner preserving the historical and/or architectural and/or aesthetic and/or cultural value of such building’. However, the respondents should have moved and asked for clarification from the Heritage Conservation Committee. Further, if the interpretation as put forward by the respondents, including the NDMC, is to be accepted, then as a sequitur it follows that construction or development can take place in a vacant plot adjacent to or adjoining the Grade-I building. This interpretation appears unacceptable as it is contrary to the express stipulations in the Master Plan and the Unified Building Bye-Laws. It would also lead to unintended consequences and would be incompatible with the purpose and objective of these two legislations, a relevant principle when one interprets provisions in case of doubt or ambiguity. This is a tentative view, as it is for the Heritage Conservation Committee to opine on ‘includes such portion of land adjoining such building and part thereof as may be required for fencing or covering or in any manner preserving the historical and/or architectural and/or aesthetic and/or cultural value of such building’. [Para 74][689H; 690-A-E]

8. Central Government could not have notified the modified the land use changes, without following the procedure and without prior approval/permission from the Heritage Conservation Committee. Further, the local body is expressly interdicted from issuing building permits in respect of the listed heritage buildings/precincts. The local body i.e. NDMC should have approached the Heritage Conservation Committee for clarification/confirmation and proceed on their advice. [Para 75][690-G-H; 691-A]

9. The Expert Appraisal Committee (EAC) [which carried out the entire decision making process in the build-up to the issuance of the Environmental Clearance] proceeded to impose as many as fifteen conditions including those relating to other clearances which would be required, like clearance from Delhi Pollution Control Committee under the Air and Water Pollution Act, provision for adequate fire safety measures, etc. What is of concern is lack of discussion, reasons or even the conclusion or finding on the aspect of slicing or inclusion. Proceedings before the EAC are not adversarial in nature. EAC acts both as a fair investigator and an independent objective adjudicator when deciding whether or not to grant environmental clearance. There must be application of mind which is reflected when reasons justifying the conclusion are recorded. Mere reproduction of the contesting stands is not sufficient. On the contrary it would reflect mechanical grant without application of mind. Further, it is not for the court/appellate forum to assume what weighed, whether the conclusion relies on material which is relevant, irrelevant or partly relevant, or whether the decision is partly based on surmises and conjectures and partly on evidence. [Paras 89, 90][703-F-G; 704-C-E]

10. It was argued that the relevant clause of the Environmental Impact Assessment (EIA) Notification of 2006 does not require giving of reasons when environment clearance is granted. However, the apprising body, which includes EAC as well as the Ministry, has to make categorical recommendations to the regulatory authority either for grant of clearance or rejection, together with reasons for the same. Further, the orders passed by the EAC are appealable before the National Green Tribunal. Appellate forum would not be able to decipher and adjudicate unless reasons are set out and stated in the order under challenge. The whole purpose of outsourcing the task to EAC, comprised of experts and specialists, is to have a proper ORS.

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

11. There are complex and esoteric issues which have to be at first stage considered and decided by the specialised authorities like the Heritage Conservation Committee. If the merits of the pleas is considered and examined, it would be a direct encroachment on their jurisdiction and exceeding the power of judicial review. It is the reasoning and discussion in the orders by the statutory /quasi-judicial that are subjected to judicial scrutiny and review. Further, matters pertaining to heritage, architectural, functionality etc are for the experts and specialists in the field like Architects, town planers, historians, urbanists, engineers etc. to examine and guide. The respondents without doubt do verily believe that redevelopment of Central Vista and new Parliament building is an imperative necessity. Central Vista requires a makeover. The hutments and some of the non-heritage buildings like Shashtri Bhawan, Nirman Bhawan, Udyog Bhawan etc. which it is stated occupy more than 90 acres of land require re-development. Similarly, if new parliament building is required and being a must, it should be constructed. Several former and the present Speaker have expressed the need for construction of a new Parliament. Some of the petitioners do not oppose partial and regulated redevelopment for functionality, while maintaining and preserving the heritage, ethos and visual look. Central Vista and Parliament House is an heritage and belongs to the Nation and the people. Their primary grievance is lack of information and details. They submit that experts and specialists can provide acceptable solutions to conserve and make historical buildings functional, as it has happened elsewhere. The issues raised by the petitioners along with the stand of the respondents have to be taken into consideration by the statutory authorities in terms of and as per the statutory mandate. Ultimately, the issue has to be decided as per law after ascertain details by professional experts. [Para 96][711-D-H; 712-A-C]

12. While setting aside and quashing the final notification of modification/change of the land use dated 28th March 2020 in respect of the 6 plots in the Central Vista, it is directed as under: A) The Central Government/Authority would put on public domain on the web, intelligible and adequate information along with drawings, layout plans, with explanatory memorandum etc. within a period of 7 days. B) Public Advertisement on the website of the Authority and the Central Government along with appropriate publication in the print media would be made within 7 days. C) Anyone desirous of filing suggestions/objections may do so within 4 weeks from the date of publication. Objections/ suggestions can be sent by email or to the postal address which would be indicated/mentioned in the public notice.

D) The public notice would also notify the date, time and place when public hearing, which would be given by the Heritage Conservation Committee to the persons desirous of appearing before the said Committee. No adjournment or request for postponement would be entertained. However, the Heritage Conservation Committee may if required fix additional date for hearing.

E) Objections/suggestions received by the Authority along with the records of BoEH and other records would be sent to the Heritage Conservation Committee. These objections etc. would also be taken into consideration while deciding the question of approval/permission.

F) Heritage Conservation Committee would decide all contentions in accordance with the Unified Building Bye Laws and the Master Plan of Delhi.

G) Heritage Conservation Committee would be at liberty to also undertake the public participation exercise if it feels appropriate and necessary in terms of paragraph 1.3 or other paragraphs of the Unified Building Bye Laws for consultation, hearing etc. It would also examine the dispute regarding the boundaries of the Central Vista Precincts at Rajpath.

H) The report of the Heritage Conservation Committee would be then along with the records sent to the Central ORS.

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

I) Heritage Conservation Committee would also simultaneously examine the issue of grant of prior permission/approval in respect of building/permit of new parliament on Plot No. 118. However, its final decision or outcome will be communicated to the local body viz., NDMC, after and only if, the modifications in the master plan were notified.

J) Heritage Conservation Committee would pass a speaking 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 the environment clearance by the Ministry of Environment and Forest dated 17th June, 2020 are set aside, and an order of remit to the EAC passed with a request that they may decide the question on environment clearance within a period of 30 days from the date copy of this order received, without awaiting the decision on the question of change/modification of land use. [Para 98][713-G-H; 714-A]

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3 SCR 333; Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal (1995)

2 SCC 161 : [1995] 1 SCR 1036; Reliance

Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, 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 Board of Secondary Education v. Aditya Bandopadhyay (2011) 8 SCC 497 : [2011] 11 SCR 1028; Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur AIR 1965 SC 895; [1965] SCR 970 ; Lachmi Narain v. Union of 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 Road Transport Corporation v. Bal Mukund Bairwa (2009)

4 SCC 299 : [2009] 2 SCR 161; Annamalai University v. Secretary to Government, Information and Tourism Department (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. State of Chhattisgarh (2015) 10 SCC 400 : [2015] 11 SCR 723; Indore Development Authority v. Madan Lal (1990) 2 SCC 334; Syed Hasan Rasul Numa v. Union of India (1991) 1 SCC 401: [1990] 3 Suppl. SCR 165; State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912: [1958] SCR 533; State of U.P. v. Babu Ram Upadhyay AIR 1961 SC 751: [1961] SCR 679 ; Superintendent and Legal Remembrancer, State of West Bengal v. Corporation of Calcutta AIR 1967 SC 997 : ORS.

[1967] SCR 170; Kamla Prasad Khetan v. Union of India AIR 1957 SC 676 : [1957] SCR 1052; Scheduled Caste and Weaker Sections Welfare Association v. State of 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 Interest Foundation v. Union of India (2019) 3 SCC 224; Dhani Sugar and Chemicals Ltd. v. Union of India (2019) 5 SCC 480 : [2019] 6 SCR 307; Bengaluru Development Authority 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 and Another (1976) 2 SCC 981: [1976] Suppl. SCR 489; Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Chand Varshney (2009) 4 SCC 240: [2009] 5 SCR 326; Commissioner of Income Tax v.Walchand and Co. Pvt. Ltd. AIR 1967 SC 1435 :[1967] SCR 214; State of Punjab v. Bhag Singh (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 Lok Prahari v. State of U.P. (2018) 6 SCC 1:[2018] 6 SCR 1076 – referred to.

Bhausaheb Tavanappa Mahajan v. State of

Maharashtra AIR 1982 Bom 284 and Gau Raxa

Hitraxak Manch v. Union of India (2013) SCC Online NGT 85 – referred to.

Montral Street Railway Company v. Normandin AIR 1917 PC 142 and Nazeer Ahmed v. King Emperor AIR 1936 PC 253 – referred to.

Associated Provincial Picture Houses v. Wednesbury Corporation 1947 (2) All ER 680 (CA); R. Oakes 1986

1 SCR 103 [Decision of Canadian Supreme Court]; Mixnam’s Properties Ltd. v. Chertsey Urban District Council (1632) 2 All ER 787; Kruse v. Johnson 1898, Divisional Court; R (Moseley) v. London Borough of Haringey (2014) UKSC 56; R v. Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168; Stephen Viera v. London Borough of Camden (2012) EWHC 287; R. v. North and East Devon Health Authority, ex p Coughlan 2001 QB 213 : (2000) 2 WLR 622 (CA); Regina v. Secretary of State for Social Services 1986 WLR Vol. 1 pg. 1; Doctors for Life International v. Speaker of the National Assembly 2006 (12) BCLR 1399 [Decision of Constitutional Court of South Africa]; R (Bhatt Murphy) and Others v. Independent Assessor (2008) EWCA Civ 755; R (Majid) v. London Borough 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 of Camden 2012 EWHC 287 – referred to.