Rajeev Suri vs Union Of India

TRANSFERRED CASE (CIVIL) NO. 229 OF 2020

RAJEEV SURI ...PETITIONER

Versus

DELHI DEVELOPMENT AUTHORITY & ORS. ...RESPONDENTS

with

TRANSFERRED CASE (CIVIL) NO. 230 OF 2020

CIVIL APPEAL NO. ….…..... OF 2021 (Arising out of S.L.P. (Civil) No. …………./2021) (@ Diary No. 8430/2020)

WRIT PETITION (CIVIL) NO. 510/2020

WRIT PETITION (CIVIL) NO. 638/2020

WRIT PETITION (CIVIL) NO. 681/2020

WRIT PETITION (CIVIL) NO. 845/2020

WRIT PETITION (CIVIL) NO. 853 OF 2020

Signature Not Verified WRIT PETITION (CIVIL) NO. 922/2020 Digitally signed by DEEPAK SINGH Date: 2021.01.05 17:58:38 IST Reason:

WRIT PETITION (CIVIL) NO. 1041/2020

1 JUDGMENT

A.M. Khanwilkar, J.

TABLE OF CONTENTS

S.NO. TOPIC PARAS

1. Introduction 1

2. Objectives of the Project 2-10

3. Proceedings and Contentions of the 11-123 Parties Consideration

4. Rule of Law 124-135

5. Democratic Due Process and 136-158 Judicial Review

6. Need for Heightened Judicial Review 159-167

7. Constitutionalism 168-172

8. Participatory Democracy in India 173-198

9. Change in Land Use 199

a) What is Master Plan and Zonal 200-202 Plan.

b) Modification of Plans 203-228 c) Procedure before decision 229 d) Procedure during decision- 230-265 making process and Public Hearing under Section 11A e) Quasi Legislative Function 266-273 f) Post change in land use decision 274-275

2 10. CVC Clearance a) Status of CVC and Procedure 276-287 Adopted for Grant of “No Objection” b) Non-application of mind 288-295 c) Legitimate Expectation 296-298

11. DUAC Approval a) Stage for Statutory Approval by 299-306 DUAC

b) Arbitrariness in Grant of Approval 307-312

12. Challenge to Change in Land Use in 313-325 Reference to Heritage Conservation

13. Scope of Development on Heritage 326-332 Sites (Prior Approval vis-à-vis Prior Permission)

14. Environmental Clearance (EC) 333-368

15. Merits Review by NGT 369-382

16. Consultation Services NIT

a) Selection Process 383-397

b) Design/Concept Competition 398-400

17. Public Trust 401-407

18. Availability of Information in Public 408-410 Domain

19. Preliminary Objection in I.A. 411-419

20. Postlude 420-422

21. Conclusion and Order 423-425

3 INTRODUCTION

1. By these petition(s)/appeal(s)/case(s), we are called upon by

the petitioners to undertake a comprehensive and heightened

judicial scrutiny regarding the permissibility of the Central Vista

Project1 of the Government of India. 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., have been raised

in these proceedings. The challenge is 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”.

OBJECTIVES OF THE PROJECT

2. As per the policy documents, the need for the development of

the Project is rooted in the creation of a larger working space for

efficient functioning of the highest legislative wing of the country

1 For short, “the Project” 4 and for integrated administrative block for

Ministries/Departments presently spread out at different locations

including on rental basis.

3. The Parliament House building, a Grade-I heritage structure,

was commissioned in 1927 and stands as a 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 changing requirements. Post 1971 census wherein the total

population of India was recorded as 548,159,6521, the number of

seats for the House of People was fixed at 545. Today, the

population has spiralled exponentially and is stated to have

crossed the 130-crore mark. The next delimitation exercise,

proposed to take place in 2026, is bound to result in a substantial

increase 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 a seating capacity of only 440

persons. That already falls short of the present need to

accommodate members of both Houses together during a joint

session. Presently, there is no scope to expand the existing Central

Hall. Resultantly, the Joint Sessions of both the Houses of 5 Parliament are conducted by way of a makeshift arrangement in

the Central Hall causing inconvenience to the members attending

official functions thereat, apart from undermining their dignity.

Furthermore, the structure falls short of fire, water and electrical

safety norms and poses a grave security risk for the legislators and

secretariat staff.

5. In order to address the concerns stated above, the Central

Government decided to construct a new Parliament building with

a futuristic approach and the House of People being 3 times the

size of the present chamber. That along with the present

Parliament building and Annexe attached therewith, would be

referred to as the Parliament Complex. It is further proposed that

all the 51 Ministries of the Central Government be housed in 10

buildings within an integrated complex marked with underground

transit connectivity and structural identity. Expressing the need

for urgent completion of the project, it has been stated that the

new Parliament shall symbolize the 75th Independence Day of the

country in 2022 as well as the Global G-20 Summit to be hosted

by India in the same year. The objectives, as stated in the written

submissions of the respondents, succinctly read thus:

6

“(i) A new Parliament Building with space and technology to meet the present and emerging needs of vibrant Indian democracy.

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

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

6. Similar structural defects, along with acute shortage of office

spaces, have been pointed out in the offices of various Ministries

presently spread across 47 buildings in the Central Vista region

and in particular, Central Secretariat block. It is stated that

various buildings housing the Ministries, including North Block

and South Block, are ill-equipped to meet even the basic fire and

earthquake safety norms and require regular upgradations

involving recurring expenses to the tune of Rs.50 crores annually.

As per Non-Availability Certificates (NACs) issued by Directorate of

Estate, a shortage of 3.8 lakh sq.m. of office space has been

flagged. To add to this state of affairs, the Central Government is

spending an amount equivalent to about Rs.1,000 crores on rental

spaces to accommodate the offices of various Ministries annually.

The proposal states thus:

“Most of the buildings in the Central Vista area are more than 40-50 years old and have either outlived or approaching their structural lives. Further buildings constructed over 100 years ago such as North and South Block are not earthquake safe. There is shortage of working spaces, parking amenities and services. The spread of Central Government Ministries and Departments in

7 different locations leads to inefficiencies and difficulty in coordination.”

7. Upon examination of other documents associated with the

Project, the objectives for redeveloping/constructing the existing

Central Secretariat have been broadly summed up thus:

(i) Even after 73 years of independence, the nation does not have a common secretariat building.

Some Ministries are housed in Central Vista complex while some Ministries are housed in other parts of Delhi;

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

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

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

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

8

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

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

(viii) There are six plots on Central Vista, which houses temporary barracks or stable building during 2nd World War occupying 90 acres of land, which has remained underutilised;

(ix) To utilise the underutilised spaces in the Central Vista region;

(x) Integrated functioning of all offices of the Central Government;

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

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

(xiii) To connect all the ministerial offices through an underground shuttle transportation system for smooth performance of routine administrative functions.

9

8. As regards the decision to supplement the existing

Parliament building (on plot No. 116 admeasuring 10.75 acres

having built-up area 44940 sq. mts.) with utilities constructed on

plot No. 118 admeasuring 10.5 acres having built-up area of 5200

sq. mts. which is not a heritage building/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 house the Imperial Legislative Council and was never intended to house a bicameral national legislature;

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

(iv) Periodically ad-hoc additions have taken place in this building as per the requirement of the day, which has added to an additional 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 a haphazard manner, leading to seepage and destroying the heritage nature of the building;

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

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

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

(x) In the Central Hall of the Parliament, the seating capacity is only for 440 persons. Whenever

constitutional joint sessions are held, large number of temporary seats are placed in the aisles, undermining the dignity of this great democratic institutions;

(xi) The cramped seating arrangement both for members of the House and the staff posed a serious security risk in case of either any fire hazard or any external attack requiring quick evacuation. The existing Parliament is not built from the earthquake resistant point of view;

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

11 (xiii) To ensure a modern and technologically advanced space for single and joint sittings of the Houses of Parliament commensurate with modern safety norms; and

(xiv) To preserve the built heritage by not undertaking aggressive reconstruction activity on graded heritage structures on which only minimum renovation measures are permissible in law.

9. Before we begin the discussion, we deem it fit to observe that

the proposal, as far as change in land use is concerned, comprises

of seven plots falling in the central vista region – Plots no. 22 (or

Plot No. 118 – New Parliament Building), 3, 4, 5, 6, 7 and 8. The

terms “central vista region or area” and “central vista precincts”,

as used at various places in the judgment, are not interchangeable.

Whereas the central vista 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 plot no. 3, fall in the

central vista region and not in the central vista precincts.

10. In a constitutional democracy governed by Rule of Law where

diversity of views is both heard and respected; and the principle of

2 For short, “plot no. 2” or “plot no. 118” 12 constitutionalism touches both ends as well as means of

accomplishing the wisest of intentions, every action of the

Government, howsoever laudable, need not have a free flow in its

implementation and unless it stands the test of constitutional

parameters. In the same vein, the petitioners herein (claiming to

be public spirited persons) have approached this Court taking

exception to various aspects of the project, including but not

limited to the manner and procedure adopted for effecting the

proposed changes in the central vista precincts. Our examination

flows from such objections which have been presented to us in this

set of cases.

PROCEEDINGS AND CONTENTIONS OF THE PARTIES

11. After objections to the proposed change in land use were

received by the Delhi Development Authority3 and public hearings

were conducted thereagainst, the petitioners approached the High

Court of Delhi4 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 order dated 11.2.2020, directed the respondents to

3 For short, “DDA” or “the Authority”, as the case may be 4 For short, “the High Court” 13 inform the Court before taking any step in furtherance of the

impugned public notice. The relevant extract of the order reads

thus:

“20. In case, a decision is taken to notify the proposed changes in MPD 2020-21, the DDA will approach the court before notifying such decision.”

12. The respondent Union of India took exception to the aforesaid

order by filing L.P.A. No. 119 of 2020 before the Division Bench of

the High Court. The Division Bench ordered an ex-parte stay on

the above direction of learned single Judge vide order dated

28.2.2020. Another writ petition being W.P. (C) No. 1575 of 2020

was also pending before the High Court.

13. Aggrieved by the order of the Division Bench, the petitioners

approached this Court vide S.L.P. (Civil) Diary No. 8430 of 2020

which resulted in the withdrawal of the entire subject matter

before this Court in terms of order dated 6.3.2020, which reads

thus:

“……… In our opinion, it is just and proper that writ petition itself is heard by this Court instead of examining the grievance about the manner in which the interim directions have been passed and then vacated by the High Court. Indeed, this order is not a reflection on the proceedings before the High Court, in any manner, but in larger public interest, we deem it appropriate that the entire matter pertaining to challenge pending before the High Court is heard and decided by this court expeditiously.

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

Letters Patent Appeal No. 119 of 2020 before the High Court stands disposed of in terms of this order. Any steps taken by the authorities, in the meantime, will be subject to 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 Writ Petition Nos. 1568 and 1575 of 2020 from the High Court.”

Thereafter, more petitions were filed and we agreed to hear all

petitions analogously. We deem it apposite to reproduce two other

orders passed in the leading case dated 19.6.2020 and 29.7.2020

respectively. The same read thus:

19.6.2020

“O R D E R We have heard learned counsel for the parties.

Application(s) for amendment of petition(s) are allowed subject to just exceptions and without prejudice to the contentions available to the respondent(s).

The petitioner(s) in the respective case(s) to file separate compilation with index consisting of writ petition memo, as amended, along with annexure(s) thereto, followed by the affidavits filed before the Delhi High Court in seriatum. The said compilation will be used at the time of hearing of the concerned cases. The compilation in the respective transferred cases be filed by 23rd June, 2020 through e-mail/on-line.

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

15

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

The respondent(s) may file consolidated reply on or before 3rd July, 2020, which can be placed on record in the respective transferred cases/proceedings.

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

29.7.2020

“O R D E R Heard learned counsel for the parties on the preliminary objection raised by Mr. Shyam Divan, learned senior counsel appearing 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 petition challenging the environmental clearance dated 17.06.2020 by way of writ petition under Article 32 of the Constitution while maintaining the preliminary objection already raised so that all aspects can be considered by the Court at appropriate stage.

Counsel for the respondent(s) and the petitioner(s) have no objection to take recourse to this option while permitting each of them to file response to the proposed writ petition, to be filed by the applicant(s) in I.A. No.59230/2020. As assured by Mr. Shyam Divan, learned senior counsel, the substantive writ petition will be filed within one week from today.

The respondents in the said writ petition to file a comprehensive reply within one week from service of memo of writ petition. Advance copy of the proposed writ petition be served by the applicant(s) in the office

16 of the Solicitor General through e-mail/on-line, at the time of filing the same in the Registry.

List the matters at the end of Board in the week commencing 17th August, 2020.”

Being mindful of the prevailing state of affairs amidst the

pandemic, we refrained from insisting upon technicalities during

the course of hearing and granted complete freedom to the parties,

both in terms of timelines and volume of submissions, to file

pleadings, written statements and documents. We may now advert

to the challenge raised by the petitioners 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 of

Division Bench on the ground that well-considered order of learned

single Judge came to be vacated by the Division Bench without

hearing the appellant. This amounted to violation of the basic

principles of natural justice which required the appellant to be

heard before passing an adverse order. It is further stated that the

learned single Judge had asked the respondents to file a reply to

the original writ petition, however, no reply was filed and

17 the Division Bench failed to consider this aspect while vacating 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/modification of the order of this Court dated 6.3.2020

whereby the following direction was issued:

“We make it clear that any other petition/proceedings instituted or to 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

debarred the applicants from approaching the National Green

Tribunal5 for the invocation of their statutory remedy of

challenging the grant of environmental clearance6. It is submitted

that NGT, being an expert body equipped with technical members,

ought to exercise jurisdiction concerning environmental issues in

the first place. Hence, the order of this Court could not have

curtailed the statutory remedies otherwise available to the

applicants. At the conclusion of the hearing of these cases,

however, the learned counsel for the applicants had prayed that

this application be disposed of as infructuous.

5 For short “NGT”.

6 For short, “EC” 18 T.C. (C) NO. 229/2020 (formerly W.P. (C) No. 1568 of 2020 before the High Court of Delhi)

16. In this petition, originally filed in the High Court under Article

226 of the Constitution, the petitioners therein have assailed the

public notice dated 21.12.2019 and final notification for change in

land use dated 20.3.2020. The relevant prayers read thus:

“I. Issue an appropriate writ, order or direction calling for records and quashing Public Notice S.O. 4587 E dated 21.12.2019, issued by Respondent No. 1 Delhi Development Authority (DDA); and/or xxx xxx xxx IV. Issue an appropriate writ, order or direction calling for records and quashing Notification S.O. 1192 (E) dated 20.03.2020 issued by Union of India Represented Through Ministry of Housing and Urban Affairs.”

17. The Land & Development Officer7, Ministry of Housing and

Urban Affairs8, Government of India, being the land-owning

agency of the 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 8 are in Planning Zone-D and C respectively

of the central vista area. The said proposal was considered in the

Technical Committee Meeting of the DDA on 5.12.2019 wherein

7 For short, “the L&DO” 8 For short, “MoHUA” 19 the proposal was recommended for further processing by the

Authority. The recommendation reads thus:

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

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

(ii) The heritage buildings shall be dealt as per the relevant heritage provisions.” (emphasis supplied)

18. Thereafter, on 11.12.2019, in the meeting of the Authority at

Raj Niwas, Delhi (Lieutenant Governor’s Residence), the

recommendations of the Technical Committee were placed for

consideration. The Authority approved the recommendations with

a direction for issuing public notice inviting

objections/suggestions from the public qua the proposed

modifications in accordance with Section-11A of the Delhi

Development Act, 19579. The decision taken on 11.12.2019 reads

thus:

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

9 For short, “the 1957 Act” 20

19. Thereafter, on 21.12.2019, the Authority issued Public Notice

S.O. 4587 E with a proposal for the change in land use of Plots No.

1 to 8 situated at different direction/location in Zones C and D and

inviting suggestions/objections from the citizens of the country

qua the said proposal. After a public hearing on objections, the

matter was considered by the Authority in its following meeting

chaired by Lt. Governor, Delhi on 10.2.2020. The Board

recommended that a fresh proposal be initiated as regards plot no.

1. This recommendation was accepted by the Authority in the

meeting. Thus, plot no. 1 stood excluded from the original proposal

and is not the subject matter of these petitions. As regards plots

no. 2 to 8, the Authority approved the proposal after public

consultation and the same was finally submitted to the Central

Government for issuing the final notification. On 20.3.2020, the

final notification (impugned) was issued by the Central

Government notifying the change in land use of plots nos. 2 to 8.

20. To buttress the challenge, the petitioner would assert that the

changes in land use had been proposed without framing an

updated Zonal Development Plan10 for Zone D, as mandated in the

10 For short, “ZDP” or “zonal plan” 21 Master Plan Delhi, 202111, and therefore, the changes are not

backed by updated information and empirical data. It is submitted

that the respondents relied upon an old ZDP of 2001 for carrying

on the changes. Further, in the absence of an updated plan, an

informed decision could not have been taken by the respondents

with regard to the proposed changes, more particularly relating to

standards of population density. It is supplemented by referring to

Chapter-16 of the Master Plan which requires a comprehensive

land use 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 Section

11A of 1957 Act as the Authority had no power to modify the land

use of subject plots. The argument stems from the understanding

that the proposed modifications substantially alter the Master Plan

and Section 11A(1) prohibits the Authority from undertaking

modifications of a nature that effect important alterations in the

character of the plan. It is submitted that the nature of changes

proposed could not have been carried forth in the name of

modifications as they were of a substantial nature and thus,

11 For short, “Master Plan” (Prepared by Delhi Development Authority and approved by the Central Government under Section 11A(2) of Delhi Development Act 1957 and notified on 7th February 2007 (The Gazette of India, Extraordinary, Part II–Section 3 Subsection

(ii) No. 125 (Magha 18, 1928) vide S.O. 141- (E)). 22 required a fresh Master Plan or amendment to the extant Master

Plan.

22. Mr. Shikhil Suri, learned counsel for the petitioner has

submitted that since the notice dated 21.12.2019 stood vitiated in

terms of the abovementioned submissions, the final notification

dated 20.3.2020 is bad and illegal as such notification ought to

have preceded by a valid public notice. The petitioner submits that

the proposed changes contradict the Master Plan. An attempt has

been made to demonstrate contradictions within various chapters

of the plan. It is stated that the public notice does not advert to

Chapter-17 of the Master Plan which provides for a “Development

Code” and lays emphasis on the quality of built environment while

considering any land use proposals and development policies. It is

stated that Chapter-8 of the plan requires decentralization of

Government offices in the NCR region which is contrary to the

proposal of creating an integrated vista of Government offices. It is

further stated that proposal to alter central vista precincts does

not reckon the mandate of Chapter-10 for conservation of built

heritage.

23. It is urged that the respondents have acted in an arbitrary

manner and have violated Article 21 as well as the Doctrine of 23 Public Trust by denying basic access to public/recreational spaces

which are essential to life and liberty.

24. To buttress their submissions, the petitioners have placed

reliance 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 of Greater Mumbai & Ors. v. Hiraman Sitaram

Deorukhar & Ors.15 and Goel Ganga Developers India Private

Limited v. Union of India Through Secretary, Ministry of

Environment and Forests & Ors.16.

25. In the counter affidavit filed by DDA, it is submitted that the

proposal is merely meant to align the existing land use with the

proposed plan for optimum utilisation whilst preserving and

conserving environment and built heritage of the central vista

precincts as a whole. As regards the contention of population

density, it is submitted that the project is not going to result in any

enhancement in population density as the area attracts floating

12 (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) 16 (2018) 18 SCC 257 24 population which brings in a temporary footprint during official

working hours only.

26. As regards the absence of an updated ZDP, the respondent

DDA, in its counter affidavit, placed reliance upon Chapter-16 of

the Master Plan to urge that such plan was not required at all as

Chapter-16 expressly permits the usage of the previous plan. It is

submitted that in the absence of an updated plan, the ZDP

formulated under the previous Master Plan continues to be

operative.

27. In the consolidated counter affidavit, the respondents (Union

of India) have urged that the changes indicated in the proposal

regarding land use are in the nature of minor modifications and

not substantial alterations of the Master Plan, as suggested.

Responding to the argument of lack of authority, the respondents

have urged that the power of Central Government to propose

modifications falling under Section 11A(2) is not restricted as the

limitations of sub-Section (1) are strictly meant for the Authority

and do not apply to the Central Government as such. To buttress

the submission, it is urged that the powers of Central Government

under sub-Section (2) are untrammelled and uninhibited by

restrictions which apply to the Authority.

25

28. Countering the argument that DDA possessed no power to

issue public notice, it is submitted in the written submissions that

procedure prescribed under the Act requires DDA to publish notice

inviting objections, be it for modification of the existing plan or for

preparation of new Master Plan. Reference has been made to S.O.

141 dated 7.2.2007 to support this view.

29. It is further urged in the written submissions that procedure

prescribed by law has been strictly followed by the Authority. In

that, the proposal was initiated by Land & Development Office –

land owning agency – and was placed for due consideration of

Technical Committee on 5.12.2019 before being finally placed

before the Authority on 11.12.2019 wherein all recommendations

of the Technical Committee were considered before approving the

release of public notice. Appearing for the respondents, learned

Solicitor General has submitted that the above sequence of events

reveals due application of mind and no ground for arbitrariness

has been made out.

30. The respondents, in addition to the arguments, have placed

reliance upon Union of India & Anr. v. Cynamide India Ltd. &

Anr.17, Shri Sitaram Sugar Company Limited & Anr. v. Union

17 (1987) 2 SCC 720 (paras 4, 6, 7 and 14) 26 of India & Ors.18, State of Punjab v. Tehal Singh & Ors.19,

Pune Municipal Corporation & Anr. v. Promoters and Builders

Association & Anr.20, Transmission Corporation of Andhra

Pradesh Limited & Anr. v. Sai Renewable Power Private

Limited & Ors.21, Tulsipur Sugar Co. Ltd. v. the Notified Area

Committee, Tulsipur22, Sundarjas Kanyalal Bhatija & Ors. v.

Collector, Thane, Maharahstra & Ors.23, Bangalore

Development Authority v. Aircraft Employees’ Cooperative

Society Limited & Ors.24 and Chairman, Indore Vikas

Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. &

Ors.25.

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

31. The challenge in this petition is to the public notice dated

5.2.2020 and also the final notification dated 20.3.2020. The

relevant extract of prayers read thus:

“a) Issue a Writ in the nature of mandamus or any other Writ/Order/Direction thereby quashing the impugned

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) 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) 27 public notice dated 05.02.2020 issued by the Respondent No. 1 herein and all consequential actions taken thereto;

b) Issue a Writ in the nature of mandamus or any other Writ/Order/Direction thereby quashing the impugned notification for change in land use dated 20.03.2020 issued by the Respondent No. 2 herein and all actions taken in furtherance thereof.”

32. In response to the notice inviting objections/suggestions

regarding the change in land use, a total of 1292 responses were

received by the Authority. Thereafter, on 3.2.2020, the Authority

sent emails and SMS to the objectors conveying about

personal/public hearing on the said responses before the Board of

Enquiry and Hearing26 scheduled for 6.2.2020 and 7.2.2020.

Additionally, on 5.2.2020, the Authority also published a notice

(impugned notice) in six leading newspapers having wide

circulation informing about the said hearing. The objectors were

asked to remain present for personal/public hearing as per the slot

(time) allotted 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 persons appeared for the oral hearing. The

hearings were concluded as per the schedule published for that

purpose.

26 For short, “BoEH” 28

33. Assailing the said notice, the petitioners submit that the

respondents called the objectors for public hearing at short notice

of only one day which effectively disabled most of the objectors

from appearing as travel arrangements could not be made within

such short period. It is submitted that short notice resulted in the

denial of natural justice to the objectors and negated the very

essence of the requirement of public consultation as envisaged in

Section-11A of 1957 Act. To buttress this submission, it is urged

that the impugned notice had the effect of reducing the hearing

into a mere formality and violated the requirements of fair

opportunity which is an essential facet of democratic decision

making. It is further submitted that as many as 200 persons were

called for oral submissions within a time slot of one hour, thereby

rendering the hearing itself as meaningless and ineffective.

34. Mr. Sanjay Hegde, learned senior counsel appearing for the

petitioners further submitted that the respondents did not place

complete information regarding the proposed changes in public

domain and without adequate information, it entailed in denial of

opportunity of raising effective objections. Reliance has been

placed upon a series of judgments to support the view that a

Master Plan ought to be preceded by a comprehensive consultative

29 exercise based on multiple parameters including population

density, availability of open spaces etc.

35. To support their case, the petitioners have made reference to

M.C. Mehta v. Union of India & Ors.27, Automotive Tyre

Manufacturers Association v. Designated Authority & Ors.28,

State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh

& Ors.29, Aruna Roy & Ors. v. Union of India & Ors.30,

Travancore Rayon Ltd. v. Union of India31, Hanuman Laxman

Aroskar v. Union of India32, Utkarsh Mandal v. Union of

India33, R.K. Mittal34, Rajendra Shankar Shukla & Ors. v.

State of Chhattisgarh & Ors.35, S.N. Chandrashekar & Anr.

v. State of Karnataka & Ors.36, Lal Bahadur37, Bangalore

Medical Trust38 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) 30

36. To counter the aforesaid submissions, respondent DDA, in

its consolidated reply, has submitted that out of 1292 objections,

1156 were identical and even remaining objections raised similar

issues. It is urged that personal communication in the form of

emails and SMS was sent to the objectors at least 3 days before

the date of hearing which constitutes reasonable time in the facts

and circumstances of the case and thus, denial of principles of

natural justice cannot be alleged. To buttress this submission, it

is further submitted that apart from aforesaid communication, the

notice of public hearing was also published in six leading

newspapers to encourage participation.

37. Responding to the argument of lack of information in public

domain before calling for objections, the consolidated reply states

that each and every detail relating to the project was published on

the official website of Authority (www.dda.org.in) and it was open

to common public to access it at any point of time.

38. Learned Solicitor General, appearing for the respondents,

contended that there is no requirement of oral hearing in the 1957

Act or in the 1959 Rules and despite that the hearing was provided

by the Authority as a measure of fairness and transparency. He

31 further submitted that none of the heritage buildings is being

adversely affected in the process.

39. In the written submissions filed by the respondents, it is

submitted that the argument of denial of natural justice cannot be

sustained as modification of Master Plan and town planning are

activities of a legislative character and in legislative functions,

public hearing can be allowed only to the extent provided in the

law unlike other administrative processes.

W.P. (C) No. 510/2020

40. Post the final notification of change in land use, the Special

Advisory Group of Central Vista assembled at its 50th meeting to

consider the agenda item – Proposed New Parliament Building at

Plot No. 118 on 23.4.2020. The minutes of the said meeting were

released on 30.4.2020 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 issued by Works Division,

MoHUA whereby the Central Vista Committee40 was reconstituted.

The relevant prayers read thus:

40 For short, “CVC” 32 “I. Issue an appropriate writ, order or direction to Respondent No. 2 Ministry of Housing and Urban Affairs (MoHUA), calling for records and quashing the Minutes of Meeting of Central Vista Committee dated 30.04.2020 at the 5th Meeting of Special Advisory Group of Central Vista and Central Secretariat Central Vista Committee with Agenda Item – Proposed New Parliament Building at Plot No. 118 New Delhi which was held on 23rd April 2020;

and/or II. Issue an appropriate writ, order or direction to Respondent No. 2 Ministry of Housing and Urban Affairs (MoHUA), quashing Office Memorandum F.No.6/21/2018/ADG (Works)/338-W-1 dated 14th October, 2019 which was reconstituted as a patently biased Central Vista Committee with obvious conflict of interest in the Central Vista Project.”

41. In the additional written note submitted by the petitioner, it

is urged that the reconstitution of the CVC was done to rush

through the proposals regarding the subject project without any

impartial and objective scrutiny. It is submitted that the project

proponent herein was Chief Architect (CPWD) and after

reconstitution, the chairmanship of the Committee was entrusted

to ADG (Works), CPWD, another officer of the project proponent,

indicative of the fact that there was an apparent conflict of interest

in the CVC. It is further urged that similar identity of the Project

Proponent and Chairman subjugated the principle of Nemo Judex

In Causa Sua. Referring to the minutes of the meeting, the

petitioner argues that the minutes reveal a clear non-application

of mind on the part of this Committee as no reasons are supplied

for the alleged “No Objection”. To buttress this submission, it is 33 urged that the Committee was originally envisaged to be a study

group which was meant to advise the Government and contrary to

this purpose, the Committee paid a mere lip service to their duty

and failed to act as a study group.

42. It is further submitted that the said meeting was not

convened in a proper manner as it was not attended by designated

officers and various junior officers were present on their behalf to

consider the proposal. It is further submitted that the prescribed

quorum of the meeting was not complete as only 7 out of 12

members of the study group were present in the meeting, thereby

leaving out 5 members belonging to independent non-

Governmental organisations. As per the petitioner’s case, the

absence of representation from non-Government organisations

and presence of junior officers of the Government goes to show that

there was 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

project were not placed before the Committee and these documents

were sine qua non for taking an informed decision regarding the

proposal. The absence of consideration of the relevant material,

argues the petitioner, had vitiated the outcome of the meeting. 34

44. In the counter affidavit filed by respondents, it is submitted

that the CVC serves a limited purpose and is meant to study the

development proposals submitted for its consideration and

examine whether the proposal is in sync with the overall character

of the region. It is submitted that the Committee has been

reconstituted at various points of time in the past as per emerging

needs and nomination to chairmanship is made on the basis of

designation (ex-officio) irrespective of individual holder of office. As

regards the absence of designated members, it is submitted that

as a general practice, when some members are preoccupied with

other engagements, their representatives from the same

department/office are nominated and authorised to act on their

behalf. As regards quorum, it is stated that no quorum is

prescribed for the meetings of the Committee and in absence

thereof, the standard quorum of 25% would suffice the

requirement.

45. Regarding the conduct of meeting, the counter affidavit states

that the online meeting was in tune with the standard Government

protocol amidst the pandemic and it was aimed towards facilitation

of participation without requiring the members to step out of their

homes for the purpose of meeting. It is submitted that the grant of

35 no objection by CVC was a pre-requisite to further processing of

the proposal and the entire project could not have been kept in

abeyance by delaying the CVC meeting indefinitely amidst the

uncertainties of the pandemic. The respondents have also

highlighted that the minutes of the meeting were sent to all the

members (including the non-attendees) and no objections were

raised by them nor received from any member concerning the

propriety of the grant of no objection.

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

46. The thrust of this petition is also on the “No Objection” dated

23.4.2020 granted by the CVC. The relevant prayer reads thus:

“A. Issue a Writ in the nature of mandamus or any other Writ/Order/Direction thereby quashing “No-objection” granted by the Respondent No. 2 herein, being the Central Vista Committee, to the proposed New Parliament Building in its meeting dated 23.04.2020, which is reflected in the minutes of that meeting circulated on 30.04.2020 and all consequential actions taken thereto;”

47. In addition to the grounds urged in W.P. (C) 510/2020, the

petitioners herein submit that the CVC was functioning under the

chairmanship of ADG (Works) who is not an architect or town

planner and thereby lacks the requisite skills/knowledge required

for considering the said proposal. The argument is supplemented

36 in the written submissions where it is stated that the nature of

duties entrusted to CVC requires the head of the Committee to be

a professional architect or town planner so as to consider the

proposal in a nuanced manner. To buttress this submission, the

petitioners contend that the meeting was called despite absence of

external experts and it was a deliberate step to avoid professional

scrutiny of the professional, thereby rendering the said 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 ground that no assessment was made by the respondents to

consider the viability and need of a new Parliament building and

the entire process was carried in undue haste. To buttress this

argument, reliance has been placed upon Inderpreet Singh

Kahlon & Ors. v. State of Punjab & Ors.41 and Bahadursinh

Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors.42 to urge

that an action taken in undue haste could be declared as bad in

law.

41 (2006) 11 SCC 356 (paras 72 and 73) 42 (2004) 2 SCC 65 (paras 24 and 25) 37

49. It is further submitted that CVC disregarded the legal

framework for dealing with heritage structures. The petitioners

seek support from clause 7.26 read with Annexure-II of Building

Byelaws to contend that minimum changes are permissible on

Grade-I heritage buildings/precincts and the Committee failed to

take that into consideration. The said no objection is also assailed

on the alleged failure of the Committee to take into consideration

various factors concerning environmental impacts, traffic

assessment etc.

50. During the hearing, Mr. Hegde, appearing for the petitioners,

submitted that CVC, though originally conceived as an advisory

body, has assumed a statutory character owing to its long

functioning and is expected to discharge pivotal role in

development of such projects. In “Supplementary Note on the Role

of Central Vista Committee” submitted by the petitioners,

reference is made to the notice inviting bids and clause 6.4.3 of

ZDP for Zone-D to support the view that CVC was envisaged as a

statutory committee.

51. Alternatively, it is urged that the statutory mandate of CVC

is in line with the doctrine of legitimate expectations in

administrative matters. The petitioners have relied upon National 38 Buildings Construction Corporation v. S. Raghunathan &

Ors.43 to contend that this doctrine is premised on the ground of

reasonableness and natural justice, and has now become a source

of substantive as well as procedural rights.

52. In addition to cases noted above, the petitioners have placed

reliance upon R.S. Garg v. State of U.P. & Ors.44, Council of

Architecture v. Mukesh Goyal & Ors.45 and Maharashtra State

Board of Secondary and Higher Secondary Education v. K.S.

Gandhi & Ors.46

53. The argument regarding the statutory character of CVC has

been countered by learned Solicitor General. He would urge that

it is merely an advisory body with a limited mandate to advise the

Government on a proposal submitted for its consideration. It has

no authority to grant approvals or take decisions. Further, merely

because a body has been referred to in the ZDP (Zone-D) or has

been working for a prolonged period, it will not assume a statutory

character on its own until it is so provided by a statute.

43 (1998) 7 SCC 66 44 (2006) 6 SCC 430 (para 28) 45 2020 SCCOnline SC 329 (para 58) 46 (1991) 2 SCC 716 (paras 20 and 21) 39

54. As regards the argument of non-application of mind, it is

submitted that CVC is not supposed to supply reasons for its

approval in a manner akin to judicial/quasi-judicial bodies and

the fact that CVC, in its decision, had asked the project

proponent/CPWD to ensure that the project is in sync with the

character of Central Vista reveals due application of mind. It is

urged that application of mind must be revealed from a substantial

compliance perspective. The respondents have urged that the

present case is a sui generis one and must be treated accordingly

keeping in mind larger national interest. For brevity, other

submissions of the 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 application

for EC for “Expansion and Renovation of Existing Parliament

Buildings, New Delhi”. The Expert Appraisal Committee47

considered the said application in its 49th meeting dated 25-

26.2.2020. After examining details of the project, EAC noted that

several objections have been received by the Committee as well as

47 For short, “EAC” 40 by the Ministry of Environment, Forests & Climate Change48

wherein various concerns have been expressed regarding the

project. After underlining this information, the Committee deemed

it appropriate to record the said objections and ask the project

proponent to submit additional information for further

deliberation. Thus, the proposal stood deferred. On 11.3.2020,

CPWD responded to the Committee’s observation for supplying

additional material and submitted the relevant documents for

consideration of the proposal. Form-I and Form-IA were also

revised in light of the additional information sought by the

Committee. In the revised form, details touching upon cost of

project, total built-up area and number of trees were modified. The

total cost of the Project was enhanced from Rs. 776 crores to

Rs.922 crores, total built-up area of the proposed Parliament was

enhanced from 59,800 sq.m. to 65,000 sq.m., number of trees on

plot no. 118 was enhanced from 326 to 333. In its 50th meeting on

22.4.2020, EAC considered the revised proposal and approved the

same for grant of EC subject to certain specific conditions

commensurate with the nature of subject project along with

standard conditions of EC. Thereafter on 17.6.2020, the MoEF

48 For short, “the MoEF” 41 accepted the recommendations of EAC and granted EC to the

proposal on Expansion and Renovation of Parliament building.

This grant of EC stands impugned in these two petitions. The

relevant extract of prayers read thus:

“a. Pass an order in the nature of a Writ/Order quashing and setting aside the impugned Environmental Clearance dated 17.06.2020 issued by the Respondent No. 1 in respect to the project titled as “Expansion and Renovation of Existing Parliament Building at Parliament Street, New Delhi”;

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

c. Pass an Order in the nature of a Writ/Order declaring that the subject project being Development /Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi is a composite project for the purposes of seeking Environmental Clearance;”

In addition to the aforesaid prayer for quashing the Clearance, the

petitioners in W.P. (C) 681/2020 have alleged a case of deliberate

concealment of information and supply of misleading information

in the proposals submitted for EC and prayed thus:

“2. Direct action against Respondent No. 3 as Project Proponent for concealment of information and submission of false and misleading information; classifying the project as a Category B2 instead of Category B1; and a Schedule 8(a) project instead of 8(b); and obtaining Environment Clearance; which attracts conditions stipulated in Clause 8 of the EIA Notification of 2006, ‘Grant of Rejection of Prior Environmental Clearance’, and the penal conditions of sub 42 clause (vi); leading to cancellation of Environment Clearance.”

56. The petitioners in W.P. (C) 845/2020 have submitted that the

EAC failed to apply its mind while considering the proposal and

both the proposal and objections by various persons were treated

in a mechanical manner. The submission is buttressed by placing

reliance upon Hanuman Laxman Aroskar49, wherein this Court

observed that EAC being an expert body must apply itself to every

relevant aspect of the project and its bearing upon environment.

57. The petitioners, in common rejoinder, have furthered the

argument by contending that merely seeking certain clarifications

from the project proponent is not sufficient compliance and it

would only be upon a detailed scrutiny of the

response/data/statements that the requirement of application of

mind could be satisfied. It is added that the absence of a reasoned

order by EAC advances the case of the petitioners as

administrative/quasi-judicial authorities cannot grant approvals

without recording reasons.

58. To support this argument, it is submitted that EAC failed to

note that the project proponent deliberately separated the

49 (supra at 32) 43 Parliament project out of the larger Central Vista Project with an

objective to lower the scrutiny level by considering it on a

standalone basis. Due to this segregation, the project was

categorised as B2 project (Building and Construction) in item 8(a);

whereas a collective assessment of the project would make it fall

in item 8(b) i.e., Township and Area Development, falling under

category B1 in terms of the 2006 Environmental Impact

Assessment50 Notification51. As a result of this categorisation, as

contended, the respondents unscrupulously did away with the

requirements of preparing a comprehensive Terms of Reference

(TOR), Scoping and EIA Report as these requirements do not apply

to B2 category projects. To buttress this submission, it is added

that it was only to bypass the comprehensive scrutiny that the

respondents characterised the proposal as a “renovation” and

“expansion” project, instead of specifying that a whole new

building with a built-up area measuring 65,000 sq.m. is being

proposed alongwith the development of Central Vista precincts as

a whole.

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 been reprinted in August, 2015 (pages 3-55 in Compilation of Documents filed by respondents), incorporating all the amendments thereto until 6.7.2015, and the extracted portions of the notification in this judgment are from the reprinted version]. 44

59. According to the petitioners, the proposed Project is a single

project with three components – Development /Redevelopment of

Parliament Building, Common Central Secretariat and Central

Vista. The argument of deliberate disintegration and slicing of the

project is further supported by referring to various documents of

the Government wherein a single vision was projected by the

Government viz:

(i) CPWD notice inviting bids which referred to the project as “Development/Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi.”

(ii) Public notice of DDA dated 21.12.2019 inviting objections and suggestions proposed change in land use of 8 plots collectively.

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

“With an aim of improving the old buildings on Raisina Hills, make improved Common Secretariat Buildings, refurbish old Parliament building, make new space for new requirement of MPs and upgrade the entire Central Vista area by revisiting entire Master Plan, a world class Consultant was required. ….”

60. The petitioners have relied upon OM dated 24.12.2010 issued

by MoEF which refers to “Consideration of Integrated and Inter-

linked projects” to urge that legal mandate requires collective

45 appraisal of interlinked and integrated projects for the purpose of

EC so that their cumulative impact can be assessed. To buttress

the submission, it is urged that the said O.M. ought to be given a

purposive meaning so as to procure comprehensive information on

such projects in line with the objective of environmental

protection. Reliance has been placed upon Alaknanda

Hydropower Company Limited v. Anuj Joshi & Ors.52 to

supplement the view that combined impact of a project must be

considered to arrive at a true assessment of environmental impact.

Emphasizing on the meaning of the phrase “cumulative impact”,

the petitioners have relied upon the decision of NGT in T.

Muruganandam v. Ministry of Environment & Forests53 to

contend that cumulative assessment involves a holistic approach

towards all present and reasonably foreseeable future activities so

that actual impact on ecology can be determined.

61. It is further submitted that the respondents wilfully

concealed relevant information from the Expert Committee

regarding cumulative effects, proximity to other existing or

planned projects, etc. which would attract clause 8(vi) of 2006

52 (2014) 1 SCC 769 53 Manu/GT/0135/2014 (NGT decision dated 10.11.2014 in Appeal No. 50/2012) 46 Notification pertaining to concealment of information and

submission of false information. Reliance has again been placed

upon Hanuman Laxman Aroskar54 to contend that submission

of authentic information without any concealment is a basic

expectation under the 2006 Notification and any clearance granted

on the basis of a defective Form-I is liable to be rejected.

62. The petitioners submit that the project proponent failed to

conduct any assessment studies for examining the real impact of

the project on environment. The respondents’ statement that the

new Parliament building shall have minor and incremental

impacts on the environment is alleged to be baseless and

unfounded. It is urged that absent any scientific assessment to

back its claim, the project proponent misinformed the expert

committee and gave false assurances regarding impact on air

pollution, noise pollution, geology, ecology and biodiversity. The

respondents’ assurance on transplantation of trees is also assailed

as baseless and lacking in substance as no study was conducted

to determine the age, girth and species of the trees which are

essential elements for examining the potential of survival of a

transplanted tree.

54 (supra at 32) 47

63. The petitioners further submit that the project proponent

misinformed and misled the expert committee as regards the

requirement of parking space and acted in violation of Master Plan

which mandates a parking requirement of 1.8 ECS (Equivalent Car

Space) per 100 sq.m. of built-up area. Contrary to this

specification, parking space of 100 ECS was stated in the

requirements for the proposed built-up area of 65,000 sq.m. which

is grossly low.

64. Relying upon Vellore Citizens’ Welfare Forum v. Union of

India & Ors.55 and A.P. Pollution Control Board II v. Prof. M.V.

Nayudu (Retd.) & Ors.56, the petitioners have contended that EAC

ought to have given regard to the precautionary principle during

appraisal as it is attracted in all those cases where an identifiable

risk of environmental degradation is present and thus, there was

heavy burden on the project proponent to demonstrate the absence

of environmental harm. In this case, the EAC could not have relied

upon blanket assurances without undertaking any analysis as it

would otherwise be a case of non-application of mind. The

threshold submission is that the role of EAC under 2006

55 (1996) 5 SCC 647 56 (2001) 2 SCC 62 48 Notification is well carved out and in Hanuman Laxman

Aroskar57, this Court had highlighted the importance of reasons

and undertaking a detailed analysis of all environmental factors.

65. Mr. Shyam Divan, learned senior counsel appearing for the

petitioners, further submitted that as per Lafarge Umiam Mining

Private Limited v. Union of India (UOI) & Ors.58, doctrine of

proportionality and non-application of mind standards can be

invoked in environmental review cases and as per Hanuman

Laxman Aroskar59, an in-depth merits review is mandated by the

2006 Notification and EAC failed to undertake the same. Thus, the

respondents are bound by these high standards and the entire

matter needs to be examined on that basis by this Court.

66. The petitioner in W.P.(C) No. 681/2020 has adopted similar

submissions to assail the EC and they are not being repeated.

Referring to Clause 7 of 2006 Notification, the petitioner submitted

that the notification contemplates four stages of EC for new

projects and by showcasing this project as an “expansion” instead

of new construction, the respondents have evaded the crucial

stages. It is further submitted that EAC ought to have considered

57 (supra at 32) 58 (2011) 7 SCC 338 59 (supra at 32) 49 the proposal in the light of principles of sustainable development,

public trust and inter-generational equity.

67. To support their submissions, petitioners have relied upon

Keystone 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, Government of Maharashtra &

Ors.62, Samata & Anr. v. Union of India & 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 Limited67.

68. In counter affidavit filed by CPWD, it is submitted that the

new Parliament building is being constructed adjacent to the

existing building and both buildings will supplement each other in

terms of functionality. Simultaneously, the existing building shall

60 (2020) 2 SCC 66 (para 19) 61 2020 SCCOnline SC 328 (paras 99 and 100) 62 MANU/GT/0153/2015 [Appeal No. 66 of 2014 decided on 3.9.2015 (paras 24 to 26)] 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) 67 (supra at 16, para 17) 50 be retrofitted and renovated in accordance with the limitations

prescribed for Grade-I structures and thus, the project was rightly

named as an expansion and renovation project.

69. It is submitted that in terms of 2006 Notification, no detailed

EIA is required for building projects with built-up area of less than

1,50,000 sq.m. as they fall under category 8(a), and since the built-

up area of subject project is less than 1,50,000 sq.m., no such

assessment is required as per the notification and thus, EAC was

right in not insisting for any such impact assessment. Learned

Solicitor General, would further submit that categorisation as 8(a)

or 8(b) would not be of much consequence as the nature of

categorisation causes no prejudice in considering the cumulative

impact of the project on environment, if any. To buttress this

submission, it is urged that as per the mandate of law, a detailed

EIA would be carried out for the Central Secretariat project as it

falls under category 8(b) i.e., Township and Area Development.

Such assessment, as per law, would examine land use within the

radius of 10km and since Parliament falls within these

dimensions, environmental concerns (if any) associated with it

may also be addressed in the same assessment and additional

mitigating measures could be imposed.

51

70. To the argument that both these projects are integrated

projects calling for a collective appraisal, the counter affidavit

states that the expression “Integrated Projects” refers to those

projects that cannot exist without each other to the extent that

their existence as well as functionality is inevitably dependent

upon each other. In present case, submitted the respondents, both

these projects are marked by different timelines, different

budgetary allocations, different wings of the Union of India

(Parliament and Executive) and also for different utilities. In that,

Parliament project is supposed to culminate in 2022, the other

project may go on till 2026. It is further urged that budgetary

allocation for Parliament project is made by Lok Sabha Secretariat

and that for North/South Block project is made by Ministry of

Culture. To further justify separate EC application for Parliament

project, the consolidated reply states that as a matter of practice,

EC is not given merely on the basis of preliminary vision/Master

Plan and such application ought to be made for those projects only

for which detailed drawings, planning layouts etc. are available so

that an informed impact assessment (site specific) can be made.

The central secretariat project has not reached that stage yet. The

submission reads thus:

52

“8. ...Therefore, an application for Environment Clearance can be made effectively and accurately only in the final stages of the planning and execution of a project and not at a broad macro level without mentioning the minute details of the project.”

71. Learned Solicitor General urged that merely because the

project was mentioned in the comprehensive project and in the bid

document for engagement of the Consultant, it does not mean that

the project proponent is obliged to treat it as a whole for all future

purposes. Whereas, the Government is well within its rights to

even drop the plan of Central Secretariat project without impacting

the Parliament project. It is urged that expansion/renovation of

Parliament and development of new Central Secretariat in that

sense are two distinct projects and attract different procedural

compliances under law before the construction thereof

commences, as stated in the written submissions thus:

“20. It is submitted that carrying out architectural and engineering planning of all the components through a single consultant with a view to benefit from cost and planning efficiencies does not automatically mean that the Parliament project and the remaining Central Vista redevelopment projects are, for the purposes of an environment clearance, is a single project. It is submitted that Parliament Project and the remaining Central Vista redevelopment are different projects and the planning in respect of such projects is carried out in different stages. It is submitted that execution of the different projects shall be taken up in phases ...”

72. It is submitted that the total built-up area of the proposed

Parliament building is 65,000 sq.m. whereas that of proposed

53 Central Secretariat is approximately 17 lakh sq.m. and it was a

conscious policy decision of the competent authority to treat the

Parliament project as an independent one being most urgent and

to prevent it from falling prey to delays owing to the vast territorial

expanse of the comprehensive plan. Thus, the conscious decision

of the Government is to ensure completion of building project in a

smooth manner and not to link it up with the town development

project.

73. The contention regarding non application of mind by EAC has

been countered by respondent MoHUA in its reply affidavit wherein

it is submitted that EAC comprises of scientific experts who have

been considering proposals for EC for past 1.5 years. It is

submitted that detailed deliberation took place in the 49th EAC

meeting after which supplementary information was sought in a

revised Form-1/1A regarding scope of renovation of existing

building, status of pending cases, traffic management plan,

response to objections received from public, updated Master Plan

showing land use of plot no. 118 and accordingly, entire

information was placed before the Committee and the same was

duly considered in the next meeting before formulating its

recommendation. Thus, application of mind is writ large in the

54 entire process. As regards the allegation of fraud and

misrepresentation while providing information regarding

connected projects in Form-I, the written submissions state that

O.M. dated 24.12.2010, relied upon by the petitioners to extend

this argument, was misconceived as the concept of inter-linked

projects is used in reference to multi-sectoral projects and the

subject project does not involve a multi-sectoral component and is

a standalone building construction project.

74. In written submissions filed by the respondents, it is further

submitted that a detailed study was conducted to identify the

possible impacts of the proposed project and concerns relating to

air emissions, water, soil etc. were duly addressed by EAC by

prescribing an Environment Management Plan (EMP) and

operational measures. It is informed that measures including

setting up of sewage treatment plant at the site, usage of recycled

water, rain water storage tanks, usage of recycled material, solid

waste management etc. shall be followed.

75. Learned Solicitor General has sought to distinguish the

judgment of this Court in Hanuman Laxman Aroskar68 by

contending that in the said case, the analysis was done in context

68 (supra at 32) 55 of a Category-A project and moreover, the view of the Court as

regards the requirement of reasons was in the context of the facts

of that case. It is submitted that as per the 2006 Notification,

reasons are required only in cases of rejection of objections and

not in all cases. To buttress this submission, the argument

advanced in W.P. (C) 638/2020 that decisions taken by experts are

not akin 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 NIT No.

04/CPM/RPZ/NIT/2019-20 from national/international design

and planning firms for appointment of Consultant (Consultancy

Services) for a comprehensive architectural and engineering

planning for development/redevelopment of Parliament Building,

Common Central Secretariat and Central Vista. The minimum

eligibility criteria required the bidders to have an average annual

turnover of Rs. 20 crores from consultancy services in India. On

4.9.2019, the Indian Institute of Architects69 gave a representation

to the respondent raising certain objections to the eligibility

69 For short, “IIA” 56 conditions in the tender document. The Council of Architecture,

on 9.9.2019, also raised similar objections and called for an Open

Design Competition. On 12.9.2019, a pre-bid meeting was held for

the interested parties for clarifications regarding the NIT. After the

pre-bid meeting discussion, CPWD released a corrigendum and

addendum to Consultation Services NIT whereby, the date of

online submission was extended from 23.9.2019 to 30.9.2019 and

sum of earnest money was reduced to Rs.25 lakhs. After this

process, five firms qualified for technical bids and four firms

qualified for financial bids. On 25.10.2019, MoHUA announced

that M/s. HCP Designs has been awarded the Consultation

Services NIT for the development of entire Central Vista region.

This was followed by DDA’s public notice for change in land use,

public hearing on objections, final notification of change in land

use and grant of no objection by CVC at relevant points of time as

already discussed above.

77. On 5.6.2020, Delhi Urban Art Commission70, in its 1542nd

meeting considered the proposal for Parliament project and

recorded various observations regarding urban form, aesthetics,

integration of old building with proposed old building,

70 For short, “DUAC” 57 incorporation of green building features etc. Thereafter, on

1.7.2020 (1544th meeting), DUAC considered a revised building

plan proposal submitted by the project proponent and granted its

approval along with some observations regarding parking

requirements, public art, skylights and height of the building.

78. The petitioners herein seek to raise a comprehensive

challenge to the project by assailing various stages of the project

elaborated above. The relevant extract of the prayers read thus:

“a. A declaration that the Central Vista Project including but not limited to the Parliament building is ultra vires the Constitution of India and is illegal, null and void;

b. A declaration that a project for redesigning the Central Vista including Parliament building may be carried out (i) only pursuant to an objective and independent assessment made after stakeholder consultation which confirms the necessity for such a project; (ii) through a widely publicized Open Design Competition; (iii) by adopting a transparent process with adequate timelines that enable wide participation in the consultancy, design and execution phases; and (iv) through the selection of the design by a representative and independent jury;

c. A declaration that Parliament building is a part of India’s national political heritage; that it is a living symbol of Indian democracy; and that it can only be supplanted by following a transparent process involving the widest stakeholder consultation and global best practices for selecting excellence in design;

d. A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction ordering and directing Respondent No. 1 and No. 2 to disclose and furnish copies to the Petitioners of each and every document, correspondence and any other communication (including electronic records) relating to the conception of the impugned Project and up to the date of the issuance of the impugned Notice inviting Bid NIT No. 58 04/CPM/RPZ/NIT/2019-20 dated 02.09.2019 issued by Respondent No. 1, CPWD (the Consultation Services NIT), including all documents relating to the preparation of the Consultation Services NIT, which are in the possession and control of Respondent No. 1 and No. 2 or their officers, including any document, correspondence or any other communication exchanged inter se with the other Respondents or any of their officers;”

Apart from the above prayers, further prayers to quash and set

aside the following are made:

“(i) Notice inviting Bid NIT No. 04/CPM/RPZ/NIT/2019- 20 dated 02.09.2019, issued by Respondent No. 1, the Central Public Works Department;

(ii) The award of the consultancy bid to Respondent No. 9, HCP Design, 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 Urban Art Commission in its 1545th meeting dated 01.07.2020 to the “proposal for New Parliament Building, Plot No. 118, N.A., New Raisina Road, New Delhi”;

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

(vi) The consequent decision dated 10.02.2020 made by DDA approving the change in land use for the aforementioned plot including Plot No. 118 wherein the new Parliament House is proposed to be made;

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

59

(viii) Decision taken by Respondent No. 8, the Central Vista Committee dated 23.04.2020, as reflected in minutes published on 30.04.2020.”

79. Appearing for the petitioners, Mr. Shyam Divan, learned

senior counsel supported by Ms. Vrinda Bhandari and Mr. Gautam

Bhatia, learned counsel, submits that this petition seeks to

interrogate the State at a very fundamental level so as to enforce

the principle of “Rule of Law” 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 failed to comply with

the idea of substantive due process including in obtaining various

approvals and clearances for the same. As is manifest from the

aforesaid prayer, the petitioners have called upon this Court to

issue suitable declarations relating to democratic due process,

standards of transparency, public consultation and procedural

fairness in a project of this nature and importance.

80. In addition to grounds already urged with respect to common

prayers in previous petitions, the primary submission of the

petitioners herein is that any decision to change or renovate the

Parliament building ought to be preceded by widest public

consultation as it is an essential feature of democratic due process.

60 The petitioners contend that a project of this nature should be

backed by a legislation and even if the same is not made, the

executive Government is bound to work under the contours of a

limited Government ensuring minimum standards of stakeholder

consultation, transparency, fair competition, adequate

participation time and excellence in design. Reliance has been

placed upon State of Madhya Pradesh & Anr. v. Thakur

Bharat Singh71 to contend that there are well recognised

constitutional limitations on the Government of the day. The

manner of consultation, as envisaged by the petitioners in writ

petition and rejoinder to consolidated reply, involves two elements-

consultation with expert agencies and consultation with common

public.

81. The argument regarding lack of expert consultation states

that the respondents failed to consult Heritage Conservation

Committee72 which is an expert body in matters involving heritage

structures and ought to have been consulted right from the stage

of conception of the project. It is contended that even before the

design is freezed, the project proponent was obliged to consult

71 AIR 1967 SC 1170 72 for short, “HCC” 61 HCC. For, as it would be of no use to consult it after the procedure

is complete and development work is about to commence. It is

submitted that the respondents have violated their obligation to

protect and conserve the heritage as per globally accepted

international principles. It is submitted that principles of adaptive

re-use and minimal impact must be adhered to and any operation

of restoration or modification ought to be considered as a special

operation to be compulsorily preceded by a detailed archaeological

and historical study. It is added that non-adherence to due

procedure in the present case is also violative of Article 49 which,

being a Directive Principle, is meant to be fundamental in the

governance of the country. Similarly, consultation with other

bodies such as DUAC and CVC was not only inadequate and

arbitrary but also delayed as it ought to have been done at the plan

conception stage itself. It is urged that the tender document called

upon the consultant to make a new Master Plan for Central Vista

without undertaking any assessment by expert bodies such as

HCC or CVC. It is further contended that CPWD ought to have

conducted a physical audit of heritage structures and called for

views of special committee of Parliament. To buttress this

submission, it is further submitted in written submissions that

62 post 2015, no Parliamentary Committee has had examined the

prospects of repairing the existing structure or the need for

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 to contend that this comprehensive legislation reflects

the best practices adopted by other democracies while undertaking

projects of this nature.

83. Assailing the decision of DUAC, the petitioners have argued

that the Commission acted in a manner contrary to its statutory

scheme as per Memorandum No. 1(2)/82-DUAC dated 7.7.2005

which enjoins it with the duty of preservation. As a statutory body,

the petitioners submit, the Commission ought to have considered

the impact of this project on heritage by conducting a thorough

study and it failed to fulfil its mandate by not doing so. This

mandate is borne from Section 11 of the Delhi Urban Art

Commission Act, 197373 which enjoins the Commission with a

duty to advise the Government and lay down guidelines for the

local bodies. The petitioners submit that this duty to advise must

continue at all stages of the process including the pre-tender stage.

73 For short, “the DUAC Act” 63

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 has been set out hitherto. Hence, the same is not reiterated for

brevity. The primary submission pertains to non-application of

mind, absence of reasons, mechanical approval and abdication of

real duty envisaged for CVC.

85. In addition to arguments set forth in previous petitions

regarding need for empirical data, the petitioners herein have

placed reliance upon K.S. Puttaswamy (Retired) & Anr. (II) v.

Union of India & Anr.74 and Internet and Mobile Association

of India v. Reserve Bank of India75 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 Association76 to support the view

that empirical data is essential to understand the degree of harm

and a decision based on lack of proper studies must fail the test of

proportionality. The requirement of conducting proper scientific

studies is also borne from Article 9 and 10 of Venice Charter for

the Conservation and Restoration of Monuments and Sites, 1964.

74 (2019) 1 SCC 1 75 (2020) 10 SCC 274 76 (supra at 75) 64

86. Advancing the argument regarding direct public

consultation, the petitioners have 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. Reliance has been placed

upon Hanuman Laxman Aroskar77 and clause 1.3 of Annexure-

II of UBBL to contend that the mandate of law requires inviting

suggestions from public and consideration thereof by the expert

bodies before granting any permission. To buttress this

submission, Mr. Divan has contended that the nature of Indian

democracy envisages public participation at the most fundamental

level of decision making. Placing reliance upon Cellular

Operators Association of India & Ors. v. Telecom Regulatory

Authority of India & Ors.78, it is submitted that CPWD ought to

have followed a three-step process including – stakeholder

consultation, inviting submissions from stakeholders, full

documentation of all decisions supported with reasons. Further

77 (supra at 32) 78 (2016) 7 SCC 703 65 reliance has been placed upon K.S. Puttaswamy & Anr. (I) v.

Union of India & Ors.79 to contend that akin to privacy,

democracy is also a travelling right which travels across all tenets

and all stages of the project.

87. The written submissions of petitioners state that right to

public participation and consultation is a pre-requisite for

consequential state action and it flows from 19(1)(a) of the

Constitution. It is submitted that this requirement is born out of

reasonableness and State is under a constitutional duty to take

affirmative measures to ensure maximum participation. It is urged

that what extent of participation may be reasonable in a given case

may be determined on a case-to-case basis keeping in mind certain

parameters including – scope and public importance of State

action, urgency involved, availability of forums to engage with

public, efficacy of public participation etc.

88. The petitioners, in written submissions, have supported the

idea of wide public participation by drawing strength from

comparative constitutional position on the subject-matter in other

jurisdictions. Reliance has been placed upon Doctors for Life

79 (2017) 10 SCC 1 66 International v. Speaker of the National Assembly & Ors.80,

delivered by the Constitutional Court of South Africa, wherein an

express provision providing for public consultation was considered

to be a practical and symbolic part of the democratic process.

While describing the nature and scope of such right, the

petitioners adopt observations from para 98 of the judgment

wherein indirect participation through elected representatives and

direct participation by public are both recognized as essential

tenets of democracy. Additionally, the petitioners also submit that

in Doctors for Life International81, the right to political

participation is recognized even beyond the express provision by

referring to various international and regional human rights

instruments.

89. Mr. Divan, in order to advance the submission on public

participation, placed further reliance upon the decision of Court of

Appeal, Kenya in Kiambu County Government & Ors. v. Robert

N. Gakuru & Ors.82 wherein public participation was envisaged

both quantitatively and qualitatively. While enunciating the

concept of participatory democracy, the Court in Kiambu

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) 67 County83 further observed that arms-length democracy is not

participatory democracy.

90. The petitioners, in Rejoinder to Third Consolidated Reply filed

by the respondents, submit that public participation is premised

on the principle of democratic due process which requires the

fulfilment of at least six basic parameters:

(i) decision based upon extensive debate and discussion;

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

(iii) Budgetary control through Parliament;

(iv) Public portal for continuous exchange with public and stakeholders;

(v) No substantial alteration of heritage;

(vi) Disclosure and transparency.

91. To conclude, the petitioners have submitted a set of

principles which can be termed as essential features of

“consultation” in any such process and we reproduce the same for

clarity of thought and better consideration of the case thus:

“(a) There are two sets of parties involved – (1) the proposer, upon whom a duty to consult has been cast – in this case, the State, acting through the Respondents; and (2) the stakeholder, who has a claim to be consulted and whose input is sought – in this

83 (supra at 82) 68 case, the entire citizenry of India, represented non-exclusively through the Writ Petitioners.

(b) There must be a ‘meeting of minds’ between the proposer and the stakeholder;

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

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

(e) While a consensus is not necessary, the minimum preference is for there to be a ‘satisfactory solution’ for all concerned. It is submitted that the Central Vista Project has failed to meet these requirements.”

92. The petitioners, in written submissions, have adopted a

ground similar to that taken in T.C. (C) 230/2020 to contend that

availability of information is essential for public consultation. Mr.

Divan has submitted that the opaque manner in which various

steps of this project have proceeded has jeopardized the citizens’

right to know, which is considered to be fundamental under Article

19(1)(a) of the Constitution as per Justice K.S. Puttaswamy (I)84

and State of U.P. v. Raj Narain & Ors.85 as well as under the

broad spirit of the Constitution. Further reliance has been placed

upon Reliance Petrochemicals Ltd. v. Proprietors of Indian

84 (supra at 79) 85 (1975) 4 SCC 428 69 Express Newspapers, Bombay Pvt. Ltd. and Ors.86 to contend

that right to know is also traceable from Article 21. It is urged that

any modification/alteration/renovation with respect to structures

like Parliament that reflect living heritage of the country must be

undertaken in a manner wherein the voice of common public is

recognised. To buttress this submission, it is argued that unless

public is made aware of Government actions, it would not be in a

position to question such actions and democratically participate in

the decision-making process.

93. Regarding Respondent No. 9 (Consultant) as well, the

petitioners submit that it is an agent of the State and is duty bound

to adopt practices and procedures akin to the State including

public consultation with respect to design, architecture, heritage

impact etc.

94. In order to assail Consultation Services NIT, the petitioners

contend that it undermined the principles of fair competition and

prevented international firms from applying. The fact that six

bidders applied for the tender demonstrates unfairness of the

process. It is urged that an Open Design Competition ought to have

been organized by the project proponent as it is a standard practice

86 (1988) 4 SCC 592 70 across the world. As per global standards, the petitioners have

submitted, such competitions entail three basic norms – a two-

part open competition, competition to be judged by jury (with

citizen participation), encouragement of widest participation.

Various domestic examples were also cited – including of National

War Memorial and Indira Gandhi National Center for Arts - to

demonstrate how an open design competition is the standard

norm.

95. The petitioners contend that Consultation Services NIT was

issued in violation of existing heritage conservation regulations as

it called for redevelopment of entire area including demolition and

construction of buildings which is violative of clause 7.26, UBBL

2016 which specifies that no changes other than prolonging the

life of the heritage structures are permissible. The argument is on

similar lines with those taken already in W.P. (C) Nos. 638/2020

and 845/2020 and is not being elaborated.

96. The petitioners have further submitted that no estimated cost

of project was provided in the tender document which is not only

arbitrary but also violative of Rule 182 of General Finance Rules,

2017 which envisages for an estimation of reasonable expenditure.

It is submitted that consultation NIT sought to employ a Quality 71 and Cost Based Selection (QCBS) system while at the same time,

inviting bids on a cost percentage basis which effectively made it

impossible to rank different bids in a fair and non-discriminatory

manner. The provision regarding percentage-based fee has also

been alleged to be contrary to clause 3.4.2 of Manual of

Procurement of Consultancy & Services (Ministry of Finance)

which discourages percentage-based fee as it lacks incentive for

economic design.

97. Advancing the ground of public trust adopted in previous

petitions, in this petition as well, Mr. Divan has stoutly contended

that the respondents have compromised with the doctrine of public

trust while proceeding with this project. Placing reliance upon M.C.

Mehta v. Kamal Nath & Ors.87, it is submitted that a transient

Government holds the resources in trust for the public and they

can only be utilised for the benefit of public. It is further submitted

that under American law (Illinois Central Railroad Co. v. People

of the State of Illinois88) as well, the public trust doctrine

extends to properties which are of “special consequence” and

extending the same logic, it is urged that Central Vista is of special

87 (1997) 1 SCC 388 88 [146 US 387 : 36 L Ed 1018 (1892)] 72 consequence for the nation, thereby calling for a high threshold of

due process. To further the argument of suppression of public

trust, it is urged that the bid document reveals that the decision

of constructing a new Parliament building or to renovate the

existing building was left to be decided by the private consultant

and entrusting a private consultant with a fundamental decision

of this nature does not fall in sync with the principles of public

trust.

98. In addition to cases noted above, the petitioners have placed

reliance 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 its General Secretary v. State of Uttar

Pradesh & Ors.91, Rajeev Mankotia v. Secretary to the

President of India & Ors.92, Sushanta Tagore & Ors. v. Union

of India & Ors.93, K. Guruprasad Rao v. State of Karnataka

& Ors.94, Manohar Joshi v. State of Maharashtra & Ors.95,

Public Interest Foundation & Ors. v. Union of India & Anr.96,

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) 95 (2012) 3 SCC 619 96 (2019) 3 SCC 224 (para 99) 73 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 Chand99,

Shayara Bano v. Union of India & Ors.100, Natural Resources

Allocation, In re, Special Reference No. 1 of 2012101, Manoj

Narula v. Union of India102, Global Energy Limited & Anr. v.

Central Electricity Regulatory Commission103, Sakal Papers

(P) Ltd. & Ors. v. Union of India104, 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. Shah107, Secretary,

Ministry of Information & Broadcasting, Govt. of India & Ors.

v. Cricket Association of Bengal & Ors.108,

Chandramouleshwar Prasad v. Patna High Court & Ors.109,

Orissa Mining Corporation Limited v. Ministry of Environment

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) 102 (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 161 109 (1969) 3 SCC 56 (para 7) 74 & Forests & Ors.110, Democratic Alliance & Anr. v. Masondo

NO & Anr.111, Matatiele Municipality & Ors. v. President of

the Republic of South Africa & Ors.112, South African

Veterinary Association v. Speaker of 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 Meat Exports Pvt.

Ltd. & Ors.116, Dutta Associates Pvt. Ltd. v. Indo Merchantiles

Pvt. Ltd. & Ors.117, Meerut Development Authority v.

Association of Management Studies & Anr.118, Manohar Lal

Sharma v. Principal Secretary & Ors.119, Radha Krishna

Agarwal & Ors. v. State of Bihar & Ors.120, Uttar Pradesh

Avas Evam Vikas Parishad & Ors. v. Om Prakash Sharma121,

Akhil Bhartiya Upbhokta Congress v. State of Madhya

Pradesh & Ors.122, Harminder Singh Arora v. Union of India

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) 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 516 120 (1977) 3 SCC 457 (paras 9 and 10) 121 (2013) 5 SCC 182 (para 29) 122 (2011) 5 SCC 29 (paras 62 to 66) 75 & Ors.123, Jagdish Mandal v. State of Orissa & Ors.124 and

Ramana Dayaram Shetty v. International Airport Authority

of India & Ors.125.

99. The respondents have filed elaborate written submissions to

respond to petitioners’ arguments on the concept of democracy, as

it exists in India and democratic due process as envisaged under

the Constitution. It is contended that the manner of public

participation in India is through the representative mode, as we

have adopted the representative model of governance. It is

submitted that the public elects its representatives and the

Council of Ministers are collectively responsible to the Parliament.

To buttress this argument, the written submissions state that a

necessary element of democratic process is that directly elected

persons represent true will of the people and they must take

decisions that affect the people.

100. The respondents have contended that the principle of Rule of

Law, as envisaged in India, requires due adherence to existing

statutory and constitutional principles. To include imaginary

steps in the process of decision making by democratically elected

123 (1986) 3 SCC 247 (para 19) 124 (2007) 14 SCC 517 125 (1979) 3 SCC 489 76 representatives would be antithetical to the Rule of Law. It is urged

in written submissions that the nature of participatory process

proposed by the petitioners is akin to a referendum. Such process

is not envisaged under our Constitution.

101. To demonstrate ample consultation within Lok Sabha

Secretariat, the respondents have placed a short affidavit on

General Purpose Committee126 which states that the idea of GPC,

originally constituted for the first time on 26.11.1954, was to

enable the Presiding Officer/Speaker to take into confidence all

members of the House irrespective of party lines while considering

matters relating to the affairs of the House. Learned Solicitor

general has further submitted that the need for this project was

expressed by the then Speaker of Lok Sabha in writing vide letter

dated 9.12.2015. In 2019, another letter was addressed by the

present Speaker to the Prime Minister. Furthermore, separate

presentations were conducted by the officials of the concerned

departments before Speaker of Lok Sabha and Chairman of Rajya

Sabha i.e., Vice-President of India in order to apprise them about

the project. It is submitted in the affidavit that GPC for 17th Lok

Sabha was constituted on 21.11.2019 and present composition of

126 For short, “GPC” 77 the said Committee has representation from the following national

political parties; whose members were elected representatives in

the Parliament:

• Bhartiya Janata Party (BJP) • Dravida Munnetra Kazhagam (DMK) • All India Trinamool Congress (AITC) • Indian National Congress (INC) • Shiv Sena (SS) • Biju Janata Dal (BJD) • Bahujan Samaj Party (BSP) • Lok Jan Shakti Party (LJSP) • Revolutionary Socialist Party (RSP) • Telangana Rashtra Samiti (TRS) • Yuvajana Sramika Rythu Congress Party (YSR Congress Party) • Janata Dal (United) (JDU) • Nationalist Congress Party (NCP) • Samajwadi Party (SP)

102. It is submitted that a detailed presentation was made before

GPC on 19.3.2020. The meeting was attended by Members of

Parliament being representatives of prominent national political

parties having presence 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

78 Speaker of Lok Sabha (Chairperson of GPC). The aforesaid persons

were present during the presentation regarding the new

Parliament Building project. Furthermore, the budgetary

considerations were placed before the relevant committee

comprising of members across party lines and no objections is

placed on record. Therefore, it would be wrong to allege that

Parliament was kept in the dark regarding the project.

103. Responding to the contention that a legislation ought to have

been passed for this purpose, the respondents have submitted that

there was no constitutional requirement to adopt the legislative

route as construction projects can be carried out in discharge of

executive functions.

104. The respondents have specifically addressed in the written

submissions that extensive reliance on foreign decisions may not

be useful in the Indian context. In any case, that cannot be made

the basis to answer the matters in issue. It is urged that the

precedents relied upon by the petitioners had dealt with express

statutory provisions for public participation, as applicable in the

concerned country, and judicial opinion was rendered in that

specific context. Besides, these precedents deal with prior public

participation in legislative action. That is entirely different than 79 extending similar public participation in the matter of executive

and administrative functions such as planning and development

of a national project, in absence of any statutory requirement in

that regard.

105. As regards approval by DUAC, the respondents, in

consolidated reply, have submitted that every local body in Delhi

is required to procure approval by DUAC, which is a statutory body

meant to advise and guide the Government on matters submitted

to it. It is submitted that as per Section 11 of the DUAC Act, the

proposal must be submitted for scrutiny by DUAC in respect of

any project of building operations or engineering operations or any

development proposal. It is stated that considering different stages

for different components of the project, DUAC approval as regards

the Parliament project has been obtained whereas the approval for

rest of central vista precincts shall be taken as and when the

development activity thereat is proposed in future. As regards

application of mind, it is stated that the proposal was first

considered by the committee in its 1542nd meeting dated 5.6.2020

wherein it was deferred due to insufficient information as regards

vehicular parking plan and landscape plan. Thereafter, a revised

proposal was placed before the committee in its 1545th meeting

80 dated 1.7.2020 wherein it had been approved. It is further

submitted that the minutes of the committee reveal that all

representations concerning heritage, parking, landscape etc. were

placed before the committee and duly considered by it while

granting approval. To buttress this submission, it is urged that the

minutes were ratified by the committee in its 1547th meeting on

10.7.2020 and no amendments were suggested by any member at

the time of such ratification.

106. As regards the preservation of heritage structures and

permission of HCC, in addition to grounds already urged above,

the respondents submit that no heritage structure is being affected

in the entire project. In the written submissions, it is stated that

heritage conservation does not prohibit improving the heritage

structures by taking necessary action for increasing their life. The

genesis of this argument could be understood by reproducing the

following extract form para 150 of the written submissions:

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

107. It is further submitted that as per relevant laws, permission

would be required only for retrofitting of existing Parliament

81 building and no such prior permission is needed for the

construction of new building in the neighbouring independent plot,

without affecting the existing heritage Parliament building.

Reliance has been placed upon Annexure-II of UBBL to show that

regulations on development/redevelopment are only for listed

buildings and even for such buildings, no such approval from HCC

is needed at the planning stage. All such approvals are required at

the development stage only. To buttress this submission, it is

urged that the mandate of HCC is limited to buildings only and it

does not concern the areas adjacent to such buildings. As far as

area is concerned, DUAC is empowered to consider such changes

and grant approval and accordingly, it has already granted its

approval, as aforesaid.

108. Repelling the challenge to Consultation Services NIT on the

ground of limited competition, it is submitted that both national

and international design firms were invited to participate in the

process and widest choice was given to applicants to encourage

participation. It is urged that the requirement of prior experience

of Government work was consciously provided for to ensure that

the firm is capable of working in the administrative framework of

Government. The respondents have also contended that even if any

82 irregularity could be pointed out in the tender process, none of the

participants raised any grievance as regards the same and the

petitioners have no locus to escalate it at this stage by way of a

public interest litigation.

109. On the alleged irregularities in percentage-based fee

mechanism, it is submitted that the apprehension regarding

percentage-based fee for consultancy services is not sustainable

as the consultancy fee was consciously pegged by the Government

vide corrigendum dated 23.9.2019 and thus, there was no

incentive left for the consultant to escalate the cost of the project.

110. Addressing the contention of heightened judicial review in

this case, the respondents, in addition to grounds already urged

in T.C. (C) 229/2020, have submitted that the subject project

involves a set of policy decisions, namely – construction of new

Parliament, location of proposed structure, common Central

Secretariat, treating them as mutually independent projects and

to achieve these objectives without impinging upon heritage. It is

urged that the scope of judicial review must be limited to the

examination of violation of statutory and constitutional principles

and theoretical and academic questions need not be entertained or

invoked for striking down policy decisions otherwise in compliance 83 with the statutory 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 “procedure established by law” connotes a fair and

reasonable procedure and it cannot be equated with the due

process clause, as understood and applied in the American

constitutional scheme. Reliance has been placed upon Sunil

Batra v. Delhi Administration128 and Rajbala & Ors. v. State

of Haryana & Ors.129 to contend that this Court has expressly

rejected the existence of substantive due process under the

Constitution. To buttress this submission, it is submitted that

judicial review in India, in context of Article 13, is to be understood

in reference to actual violation of any of the provisions of Part III of

the Constitution.

111. Learned Solicitor General has submitted that the entire case

of the petitioners merely presents an alternative and to choose

between available alternatives is not within the domain of judicial

review. It is urged that when appeal is made to the Court on flimsy

and abstract grounds which are incapable of any precise

127 (supra at 74) 128 (1978) 4 SCC 494 129 (2016) 1 SCC 463 84 definition, the Court must be cautious and must interpret in line

with the language of the Constitution. Reliance has been placed

upon Keshavan Madhava Menon v. State of Bombay130 to

advance this proposition. It is also submitted that if procedure has

been complied with substantially and in a broad sense and

application of mind is duly revealed, then no minute enquiry is

called for on the basis of exposition in Lafarge Umiam Mining131.

112. Addressing the contention regarding public trust, the

respondents categorically submit that they are principally in

agreement with the notion that a Government ought to act in

accordance with public trust. However, this doctrine does not

prohibit the Government from utilising the resources held in public

trust for the advancement of public interest itself.

113. Responding to the contention that respondents compromised

with public trust by entrusting the decision of new

construction/renovation to the consultant, it is submitted that the

task of making a Master Plan or of deciding whether or not a new

building is required was never entrusted to the consultant and it

was a conscious decision taken by the Government after

130 AIR 1951 SC 128 131 (supra at 58) 85 consultation with all relevant entities. The Consultation NIT merely

called upon the prospective bidders to prepare a vision document

which could be used to understand the vision of the bidders

regarding the project and scrutinize their applications on that

basis and therefore, it cannot be said that Government abdicated

its duty. The consultant was merely to advise whether renovation

would suffice or a new structure would be imminent and final

decision regarding all aspects of the project rested with the

Government.

114. To support their position, the respondents have placed

reliance upon Narmada Bachao Andolan v. Union of India &

Ors.132, Shimnit Utsch India Private Limited & Anr. v. West

Bengal Transport Infrastructure Development Corporation

Limited & Ors.133, State of Madhya Pradesh v. Narmada

Bachao Andolan & Anr.134, Directorate of Film Festivals &

Ors. v. Gaurav Ashwin Jain & Ors.135, State of Kerala v.

Joseph Antony136, G. Sundarrajan v. Union of India & Ors.137,

University of Mysore v. C.D. Govinda Rao & Anr.138, Tata Iron

132 (2000) 10 SCC 664 (paras 226 to 235) 133 (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) 86 & Steel Co. Ltd. v. Union of India & Anr.139, Federation of

Railway Officers Association & Ors. v. Union of India140,

Avishek Goenka v. Union of India & Anr.141, Dental Council of

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 Karntaka144, Rohit Dhupar

& Ors. v. Lt. Governor & Ors.145, Cynamide India146, Canara

Bank v. V.K. Awasthy147, Haryana Financial Corporation &

Anr. v. Kailash Chandra Ahuja148, 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 Bank Ltd. & Ors.151,

Ranjan Kumar Mitra v. Andrew Yule & Co. Ltd. & Ors.152,

Jagjit Singh v. State of Haryana & Ors.153, Chairman, Board

of Mining Examination and Chief Inspector of Mines v.

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) 87 Ramjee154, Sohan Lal Gupta (Dead) through LRs. & Ors. v.

Asha Devi Gupta & Ors.155, Major G.S. Sodhi v. Union of

India156, Bhim Sen & Ors. v. State of Punjab157, Barium

Chemicals Ltd. & Anr. v. Company Law Board & Ors.158,

Rohtas Industries v. S.D. Agarwal & Ors.159, M. Jhangir

Bhatusha & Ors. v. Union of India & Ors.160, Haryana

Financial Corporation & Anr. v. Jagdamba Oil Mills &

Anr.161, Puranlal Lakhanpal v. President of India & Ors.162,

Union of India & Ors. v. E.G. Nambudiri163, Maharashtra

State Board164, Mahabir Jute Mills Ltd., Gorakhpore v.

Shibban Lal Saxena & Ors.165, Sarat Kumar Dash and Ors. v.

Biswajit Patnaik and Ors.166, Dr. Ashwani Kumar 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, Delhi

154 (1977) 2 SCC 256 (para 13) 155 (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) 159 (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) 166 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) 88 Science Forum v. Union of India170, BALCO Employees’ Union

(Regd.) v. Union of India & Ors.171, State of Madhya Pradesh

v. Narmada Bachao Andolan172, Natural Resources

Allocation173, G.B. Mahajan & Ors. v. Jalgaon Municipal

Council & Ors.174, Meerut Development Authority175, Indira

Nehru Gandhi v. Raj Narain176, State of Karnataka v. Union

of India & Anr.177, Kuldip Nayar & Ors. v. Union of India &

Ors.178, Ashoka Kumar Thakur v. Union of India & Ors.179,

Supreme Court Advocates-on-Record Association & Anr. v.

Union of India180, Council of Civil Service Unions v. Minister

for the Civil Service181, Associated Provincial Picture Houses

Ltd. v. Wednesbury Corporation182, Indian Railway

Construction Company Ltd. v. Ajay Kumar183, R v. Secretary

of State for the Home Department, Ex Parte Daly184, Regina

170 (1996) 2 SC 405 (para 7) 171 (2002) 2 SCC 333 (paras 77 to 88) 172 (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) 179 (2008) 6 SCC 1 (para 116) 180 (2016) 5 SCC 1 (para 381) 181 1984 (3) All ER 935 182 (1947) 2 All ER 680 183 (2003) 4 SCC 579 184 [2001] 3 All ER 433 89 (Mahmood) v. Secretary of State for the Home Department185,

Huang & Ors. v. Secretary of State for the Home

Department186, Asia Foundation & Construction Ltd. v.

Trafalgar House Construction (I) Ltd. and Others187, Reliance

Airport Developers (P) Ltd. v. Airports Authority of India &

Ors.188, Himachal Pradesh Housing and Urban Development

Authority v. Universal Estate & Anr.189, Villianur Iyarkkai

Padukappu Maiyam v. Union of India & Ors.190, Centre for

Public Interest Litigation & Anr. v. Union of India & Ors.191,

Jagdish Mandal192, Sterlite Industries (India) Limited & Ors.

v. Union of India & Ors.193, Municipal Corporation, Ujjain &

Anr. v. BVG India Limited & Ors.194, Lafarge Umiam Mining195,

N.D. Jayal & Anr. v. Union of India & Ors.196, Alaknanda

Hydropower Company197, M/s. Lithoferro & Ors. v. Ministry of

Environment and Forests198, Lochner v. New York199, New

185 [2001] 1 WLR 840 186 [2005] 3 All ER 435 187 (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) 90 State Ice Co. v. Liebmann200, West Coast Hotel Co. v.

Parrish201, United States v. Carolene Products Co.202,

American Federation of Labor Et. Al. v. American Sash &

Door Co.203, Ferguson, Attorney General of Kansas, Et. Al. v.

Skrupa204, Kharak Singh v. State of U.P. & Ors.205, Satwant

Singh Sawhney v. D. Ramarathnam, Assistant Passport

Officer, New Delhi & Ors.206, Wolf v. Colorado207, Rustom

Cavasjee Cooper v. Union of India208, Maneka Gandhi v. Union

of India & Anr.209, Bachan Singh v. State of Punjab210, State

of A.P. & Ors. v. McDowell & Company & Ors.211, Mohd. Arif

alias Ashfaq v. Registrar, Supreme Court of India & Ors.212,

Shayara Bano213, K.S. Puttaswamy & Anr. (I)214, Swiss

Ribbons Private Limited & Anr. v. Union of India & Ors.215,

Kesavananda Bharati Sripadagalvaru v. State of Kerala &

200 285 U.S. 262 (1932) 201 300 U.S. 379 (1937) 202 304 U.S. 144 (1938) 203 335 U.S. 538 (1949) 204 372 U.S. 726 (1963) 205 AIR 1963 SC 1295 206 AIR 1967 SC 1836 207 338 U.S. 25 (1949) 208 (1970) 1 SCC 248 209 AIR 1978 SC 597 210 (1980) 2 SCC 684 211 (1996) 3 SCC 709 212 (2014) 9 SCC 737 213 (supra at 100) 214 (supra at 79) 215 (2019) 4 SCC 17 91 Anr.216, Peerless General Finance and Investment Co. Limited

& Anr. v. Reserve Bank of India217 and Daroga Singh & Ors.

v. B.K. Pandey218.

115. Appearing for Respondent No. 9 (Consultant), Mr. Harish

Salve, learned senior counsel stoutly contends that allegations of

bias and favouritism have been made by the petitioners which

colourises this challenge as one based on malice in fact. That

allegation cannot proceed further in absence of the person against

whom such case of bias is pleaded, by name. It is submitted that

the virtue of participatory democracy is laudable but the extent

and nature of participation cannot be enforced through the

medium of judicial review. Mr. Salve argues that participatory

democracy is a two-tier process of which a major element is

Parliamentary law making which is done through the

representative mode in India and not by a referendum. It is

submitted that the nature of participation envisaged in India

requires participation without causing hindrance in the system. It

is for the Government to decide who is to be heard, for instance, in

EC issues, only local affected people are meant to be heard.

216 (1973) 4 SCC 225 (paras 634, 1436, 1437 and 1442) 217 (1992) 2 SCC 343 218 (2004) 5 SCC 26 (para 30) 92

116. It is further urged that even arguably, mere absence of

sufficient participation would not be capable of being termed as

Wednesbury unreasonableness so as to quash the whole process.

Further, the argument of participatory democracy in respect of

important decisions to be taken by the Government such as in

respect of construction of a new Parliament building, if accepted,

would be forcing the judiciary to define the type of Government

decisions where such procedure need to be followed by applying

the same logic. That will be groping in the dark and by no

standards a judicial function. In that, same logic may then be

invoked to compel the Government of the day to undertake public

participation before going for a war on the fronts due to aggression

by the neighbouring country, which is more important than a

decision to construct a new Parliament building.

117. Mr. Salve submits that the scope of judicial review should be

focussed on two enquiries only – first, whether there is any

illegality or infraction of any statutory mandate and second,

whether there is any procedural unfairness which can be checked

by judicially manageable standards. As regards the lack of

information in public domain, it is submitted that it is one thing

93 to place information in public domain, but it does not mean that

mere absence of information would render the decision as vitiated.

118. To buttress his submissions, Mr. Salve placed reliance upon

Aruna Roy219.

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 Use Zones” was modified to permit the usage of land

allocated for Public/Semi Public (PSP) usage for the purpose of

Government offices. The said notification is assailed by the

petitioners herein with the following prayer:

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

120. In addition to grounds urged in T.C. (C) 229/2020, it is

submitted that the said notification violates the tenets of

Wednesbury Principle of Reasonableness and can be assailed on

219 (supra at 30) 94 the three grounds of – illegality, irrationality and procedural

impropriety. The petitioners submit that the notification was the

result of a colourable exercise of power and no such power vested

with the respondents so as to permit the usage of land for

uncontemplated purposes.

121. To support their case, the petitioners have relied upon Syed

Hasan Rasul Numa & Ors. v. Union of India & Ors.220,

Mackinonn Mackenzie & Company Limited v. Mackinnon

Mackenzie Employees Union221, Babu Verghese & Ors. v. Bar

Council of Kerala & Ors.222, State of Uttar Pradesh v.

Singhara Singh & Ors.223, Kedar Nath Yadav v. State of West

Bengal & Ors.224, Khub Chand & Ors. v. State of Rajasthan &

Ors.225, S. Rama Rao & Ors. v. Jawaharlal Nehru

Technological University, Hyderabad & Anr.226, Aircel

Cellular Ltd. v. Union of India227 and Legg & Ors. v. Inner

London Education Authority228.

220 (1991) 1 SCC 401 (paras 11 to 14) 221 (2015) 4 SCC 544 (paras 42 and 44) 222 (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 SCCOnline AP 271 (paras 23, 24, 28 and 31) 227 2016 SCCOnline Mad 8463 (paras 141, 142, 144 and 152) 228 [1972] 1 WLR 1245 (Chancery Division) 95 W.P. (C) No. 1041/2020

122. This petition seeks to challenge various approvals including

award of tender dated 2.9.2019, EC dated 17.6.2020 and No

Objection by CVC dated 30.4.2020. The prayer reads thus:

“i. Issue a writ in the nature of order and/or direction(s) calling for the records of the various approvals/decisions granted/taken to redevelop Central Vista including the Parliament such as the tender awarded pursuant to the Notice dated 02.09.2019 NIT No. 04/CPM/RPZ/NIT/2019-20, Environmental Clearance dated 17.06.2020 in relation to the Parliament, the Central Vista Committee “No objection” dated 30.04.2020, and after reviewing the same to quash and set aside the said approvals/decisions.”

123. The grounds adopted by the petitioner herein are similar to

those 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 of

the learned counsel for the parties, we find that the same are

proffered on the hypothesis of governance by Rule of Law with

specific emphasis on the high constitutional tenets and values of

democratic polity, as adopted in India, and the principle of 96 constitutionalism. All other grounds, relating to alleged violations

of statutory and municipal laws, flow from the petitioners’

understanding of the aforesaid fundamental principles and thus,

we begin our discussion by examining this fundamental premise

so as to understand to what extent, if at all, and in what manner

policy/administrative decision-making can be overseen in

judicially manageable standards in the light of such principles.

125. To consider the matters in issue, we deem it apposite to

traverse through some illuminating discourse of founding fathers

of our country. On 9.12.1946, when the Constituent Assembly

embarked upon the journey to create the most fundamental

instrument of future governance of the country, it had two

concepts in mind – democracy and Rule of Law. The reason for this

pin-pointed emphasis reflects aptly from the words of Sir S.

Radhakrishnan, who rose to speak up as the first speaker after

election of Permanent Chairman on 11.12.1946. He said:

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

229 Constituent Assembly Debates Vol. I (9.12.1946 – 23.12.1946) 97

126. The fact that millions of Indians had struggled incessantly to

breathe in a democratic polity which treated them not as mere

subjects but as cardinal constituents on which the whole edifice of

the nation stands, was the primary reason that our Constitution

makers wanted an environment where law operates equally upon

one and all, where Rule of Law trumps over even the slightest

notion of rule by whims, where the equation between state and

citizens is not marked by imbalance and where law, as it exists,

governs all legal relationships.

127. When an effort is made to decipher the understanding of

members as regards the concept of governance by Rule of Law

during the Constituent Assembly Debates, an interesting pattern

emerges and we must delineate it henceforth. During the

discussion on Part-III, Mr. Naziruddin Ahmad emphatically stated

that democracy means rule of law. He elaborated his viewpoint by

stating thus:

“We are erecting one of the finest democracies in the world. But the implication of democracy must be squarely faced. Democracy means a rule of law as opposed to a rule of force. In autocracies and in Totalitarian States the law is not supreme. But democracy means supremacy of the law where no one, be he the highest individual, is above the law. We should therefore all respect law and should be law-abiding citizens in order to inculcate that sense of law- abidingness wherein lies the safety of democracy. We

98 should ourselves follow democratic principles, democratic methods and respect the law.230” (emphasis supplied)

On another occasion, Dr. P.K. Sen exposited that Rule of Law is

meant to save the Government from disruptive tendencies. He

said:

“…The rule of law is, in my humble judgment, the rule that should save the Government from all manner of disruptive tendencies…231”

While speaking on the administrative setup that the British left for

us, Dr. P. Subbarayan observed Rule of Law to be a concept on

which future of the country depends. He said:

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

Supreme Court of India for the independent India and expressed

an earnest hope premised on nothing but the ideal of Rule of Law.

He said:

“Sir, the British Parliament and the Privy, Council are the two great institutions which the Anglo-Saxon race has given to mankind. The Privy Council during the last few centuries has not only laid down law, but coordinated the concept of rights and obligations throughout all the Dominions and Colonies in the British Commonwealth. So far as India is concerned, the role of the Privy Council has

230 Constituent Assembly Debates Vol. VIII (16.5.1949 – 16.6.1949) 231 Constituent Assembly Debates Vol. VIII (16.5.1949 – 16.6.1949) 232 Constituent Assembly Debates Vol. XI (14.11.1949 – 26.11.1949) 99 been one of the most important. It has been a very great unifying force and for us Indians it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our Constitution.233” (emphasis supplied)

He added:

“Sir, on the 26th of January our Supreme Court will come into existence and it will join the family of Supreme Courts of the democratic world of which the Privy Council is the oldest and perhaps the greatest. I can only hope and trust that though we part with the Privy Council our Supreme Court will carry forward the traditions of the Privy Council, traditions which involve that judicial detachment, that unflinching integrity, that subordination of everything to the rule of law and that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects.” (emphasis supplied)

What emerges from this discourse is that the makers of the

Constitution envisaged a legal and political system which would be

subservient to Rule of Law.

128. Rule of Law inter alia posits four universal tenets. It is a

system of laws, institutions, norms and community commitment

that envisages – Accountability of Government and private actors

alike under the law; The laws must be just, clear, publicized and

stable and applied evenly, protect fundamental rights and human

rights; Open Government – meaning thereby the processes by

233 Constituent Assembly Debates Vol. IX (30.7.1949 – 18.9.1949) 100 which the laws are enacted, administered and enforced are

accessible, fair and efficient; and Accessible justice – to include

timely delivery of justice by competent, ethical, and independent

representations and neutrals who are accessible, have adequate

resources and mirror the traits of the communities they serve234.

129. Theoretically, the concept of Rule of Law was understood and

applied to advance even autocratic regime. Louis XIV, Napolean

and Hitler had Governments based on nothing but Rule of Law.

But with the evolution of political discourse, the expanse of Rule

of Law traversed from an autocratic to a democratic one. It

underwent a transformation from being a concept used by

autocrats to control their subjects to a living idea of governance

wherein citizens and state interact with each other on a level

playing field.

130. For the purposes of present examination, we need to provide

life and meaning to this idea as a concept capable of judicial

application with manageable standards and not just as an idea of

political rhetoric. The difference between these two approaches is

real and reflects in the introductory words of T.R.S. Allan in

“Constitutional Justice” where he notes thus:

234 worldjusticeproject.org 101 “Its rhetorical power in aid of an argument about governmental authority, individual liberty, or constitutional legitimacy, makes the rule of law an object of understandable suspicion as much as one of reverence:

its uncertain and contested content allows it to 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 – rule and

law. The two words are not only connected with each other but

also control the meanings attributable to each other. “Rule” refers

to the idea of governing the state and depending on the nature of

model adopted in a country, such rule can be effected in multiple

ways. When we gave to ourselves the Constitution, we categorically

envisioned such rule to be “DEMOCRATIC” i.e., Government of the

people, by the people and for the people. The word “law”, now, lays

down the precise contours of mode 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 fundamental rights.— (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

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

235 T.R.S. Allan, Constitutional Justice, Oxford University Press (Edn. 2001) pg. 1 102 (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 territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

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

The first written safeguard, mentioned in Article 13, categorically

prohibits the making of any law which contravenes the

fundamental rights. The legislation passed in Parliament is not

included in this definition but is covered separately in Articles 245

and 246. What is clear is that the structure of rule in India is duly

codified by the makers. It primarily means a democratic rule based

upon law as envisaged in the Constitution.

132. With passage of time, the word “law” has also been

circumscribed by a plethora of safeguards, written and unwritten,

thereby widening the array of rights which were not articulated by

the founding fathers. For, the most remarkable features of a living

and dynamic Constitution are its ability to grow and stay effective

with the growth of socio-economic structures and vicissitudes. To

elaborate further, the characteristics of reasonableness, non-

103 arbitrariness and fairness have time and again shown direction to

law and thus, to rule by such law.

133. The above discussion is instructive on at least three counts-

first, Rule of Law requires law in existence; second, such law must

qualify as law within the meaning of the Constitution and must

satisfy the standards laid therein and third, 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.

134. 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 104 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.

135. 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.

DEMOCRATIC DUE PROCESS AND JUDICIAL REVIEW

136. The petitioners have called upon this Court to apply the scale

of “democratic due process” for examining the validity of

procedures adopted by the respondents at various stages. Before

expressing our opinion on whether the concept of Rule of Law in

India envisions something akin to a democratic due process or not,

we must make an endeavour to understand the meaning of this

phrase.

137. The phrase “democratic due process” is not privy to any

reasonably acceptable definition and thus, it is relevant to

understand it in substance. Rodney A. Smolla, in his seminal work 105 “Democratic Due Process: Administrative Procedure after

Bishop v. Wood”236 explained this phrase in the form of a negative

concept i.e., one that diminishes constitutional protections rather

than enhancing them, as opposed to the petitioners’

understanding. He couched it as a phenomenon wherein:

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

138. The background story leading upto the enunciation of this

phrase can be understood by making a reference to Bishop v.

Wood237 wherein the US Supreme Court upheld the termination

of Carl Bishop, a policeman in North Carolina, who was terminated

without a prior hearing. The Court affirmed the decision on the

ground that the applicable statutory employment laws did not

mandate any prior hearing and the same could not be compelled

by the invocation of the due process clause. Upon further

examination, one would note that this decision was not an isolated

one, rather, it was a culmination of prior decisions on terminations

from public employment, as noted by Smolla in his work.

236 Duke Law Journal, Vol. 1977, No. 2, Eighth Annual Administrative Law Issue (May, 1977), pp. 453-488 237 426 U.S. 341 (1976) 106 Beginning from Arnett, Director, Office of Economic

Opportunity, Et. Al. v. Kennedy Et. Al. 238 and Board of

Regents of State Colleges Et. Al. v. Roth239, the US Supreme

Court made a conscious departure from the due process clause,

as enshrined in 14th amendment of the US Constitution. The basis

of this departure is reflected in the opinion of Justice Stewart,

writing for the Court in Roth240 wherein he observed that there are

some processes in the Government wherein due process clause

may not be imported. He relied upon the language of fourteenth

amendment which lays down that no state shall “deprive any

person of life, liberty, or property, without due process of law” to

hold that due process clause would become operative only when a

person’s life, liberty or property is at stake. The underlying idea

behind shifting the judicial eye from blanket application of due

process to enforcement of specific processes under statutes is that,

due process must be restricted to matters involving actual

deprivation of life, liberty or property. Smolla, in the aforesaid

work, notes that all administrative due process decisions were

primarily marked by two characteristics:

238 416 U.S. 134 (1974) 239 408 U.S. 564 (1972) 240 (supra at 239) 107 “….. first, a property interest is not an abstract expectation of a benefit, but a legitimately claimed entitlement; and second, in determining whether an asserted interest is a mere expectation or a matured entitlement, the Court will look not to the Constitution, but to an independent source of law, such as a state statute241.”

This conscious judicial departure from blanket application of due

process clause is understood in the American constitutional

discourse as evolution of due process into democratic due process

- as it restates giving effect to the mandate of statutes duly enacted

by elected representatives.

139. Though the petitioners have used this phrase in a manner

which is purportedly opposite to the way democratic due process

is perceived in U.S., the above discussion is relevant to understand

the thrust of the petitioners on acceptance of a procedural

standard akin to “due process” in administrative matters. The

above discussion irresistibly offers the following takeaways –

first, the requirement of due process is envisaged in

matters involving deprivation of individual rights;

second, before asserting deprivation of a right, the

claimant has to discharge the onus of proving the

entitlement to such right;

241 Duke Law Journal, Vol. 1977, No. 2, Eighth Annual Administrative Law Issue (May, 1977), pg. 454 108 third, such deprivation needs to be demonstrably proved

in order to remedy it;

fourth, even in U.S., there is judicial acceptance of the

tenet that the requirement of due process cannot be

enforced in all Government processes;

fifth, there can be situations when existence of duly

enacted and valid statutes may preclude the application of

the principle of due process in adjudication.

140. Reverting to the Indian context, the inroad of due process

clause in the Indian Constitution has a unique history of its own.

When Pandit Shri Thakur Das Bhargava, in the Constituent

Assembly, proposed an amendment to Article 15 (now Article 21)

to substitute the words “procedure established by law” with “due

process of law242”, he was supported by many other stalwarts of

the Assembly who, in one voice, considered that inclusion of the

later expression would be much more effective in safeguarding

personal liberty of persons. The proposed change, however, did not

appeal to others including Dr. B.R. Ambedkar and Mr. Alladi

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

109 Krishnaswami Ayyar. Drawing upon the origin and dubious

acceptability 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 particular case. It is just possible, some ardent democrats may have a greater faith in the judiciary than in the conscious will expressed through the enactment of a popular legislature. Three gentlemen or five gentlemen, sitting as a court of law, and stating what exactly is due process according to them in any particular case, after listening to long discourses and arguments of briefed counsel on either side, may appeal to certain democrats more than the expressed wishes of the legislature or the action of an executive responsible to the legislature. In the development of the doctrine of `due process', the United States Supreme Court has not adopted a consistent view at all and the decisions are conflicting. One decision very often reversed another decision. I would challenge any member of the Bar with a deep knowledge of the cases in the United States Supreme Court to say that there is anything like uniformity in regard to the interpretation of `due process'. One has only to take the index in the Law Reports Annotated Edition for fifteen years and compare the decisions of one year with the decisions of another year and he will come to the conclusion that it has no definite import. It all depended upon the particular Judges that presided on the occasion. Justice Holmes took a view favourable to social control. There were other Judges of a Tory complexion who took a strong view in favour of individual liberty and private property…243” (emphasis supplied)

Before the amendment was negatived by voting, Dr. B.R.

Ambedkar rose to sum up the controversy in the Assembly and

noted as to how the distinction between “due process” and

“procedure established by law” is essentially one of the extents and

243 Constituent Assembly Debates Vol. VII (4.11.1948 – 8.1.1949) 110 scope of judicial review that the Courts must be empowered to

exercise in independent India. He said:

“… The question now raised by the introduction of the phrase 'due process' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.244”

He went on to elaborate and, in a way, to reinforce the express

negation of due process clause which was to follow his speech and

said:

“The question of "due process" raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing that happens in all federal constitutions. Every law in a federal constitution, whether made by the Parliament at the Centre or made by the legislature of a State, is always subject to examination by the judiciary from the point of view of the authority of the legislature making the law. The 'due process' clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual…” (emphasis supplied)

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

111 The above discussion vividly expounds that the makers of the

Constitution expressly rejected the incorporation of a due process

clause.

141. The express deletion of “due process” from the draft

Constitution and replacement thereof by “procedure established

by law” 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 Assembly made was that the phrase “due process of law” was deleted from the text of the draft Constitution. Following B.N. Rau's meeting with Justice Frankfurter, the Drafting Committee deleted the phrase “due process of law” and replaced it with “procedure established by law”. Granville Austin refers to the interaction between Frankfurter and B.N. Rau and the reason for the deletion [Granville Austin, The Indian Constitution : Cornerstone of a Nation (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, and statesmen about the framing of the Constitution. In the United States he met Supreme Court Justice Felix Frankfurter, who told him that he considered the power of judicial review implied in the due process clause both undemocratic—because a few Judges could veto legislation enacted by the representatives of a nation—and burdensome to the Judiciary. Frankfurter had been strongly influenced by the Harvard Law School's great constitutional lawyer, James Bradley Thayer, who also feared that too great a reliance on due process as a protection against legislative oversight or misbehaviour might weaken the democratic process. Thayer's views had impressed Rau even before he met Frankfurter. In his Constitutional Precedents, Rau had pointed out that Thayer and others had ‘drawn attention

245 (supra at 79) 112 to the dangers of attempting to find in the Supreme Court—instead of in the lessons of experience—a safeguard against the mistakes of the representatives of people’.”

142. Further, the whole idea of due process was meant to

safeguard personal liberties of individuals by ensuring that the

process to be used for taking away such liberty complies with

certain standards. It was never meant to be used to circumscribe

or to question the administrative decisions by applying higher

bench mark than the statutory defined/articulated obligations.

This is not to say that administrative action was left unchecked by

the Constitution. The Constitution provides for a scheme wherein

“law” is made subject to all the provisions of Part-III depending on

the nature of action and nature of consequence on the rights. The

test of nature of action and nature of consequence is essential to

determine the nature of remedy that the Constitution can offer. For

this purpose, a line must be drawn between executive action which

has a direct bearing on personal liberty of individual; and executive

action which comprises of ministerial/administrative functions

with no direct impact on individual liberties.

143. The distinction is relevant to highlight a crucial aspect of the

growth of constitutional law in India. As regards individual

liberties, we have witnessed a wholehearted and rather expansive 113 approach by the Court. One would note that it was during the

review of an administrative action with bearing on personal liberty

that this Court mandated the procedure in “procedure established

by law” to be just, fair and non-arbitrary, as distinguished from

fanciful, arbitrary and oppressive in Maneka Gandhi246. With

unwinding of time, dimensions came to be added to increase the

fairness of procedure so as to make it more exacting for the

executive to put curbs on personal liberty of an individual. In

Mithu v. State of Punjab247 and Sunil Batra248, standards of

fairness and non-arbitrariness were held to inform the word “law”

as well in the phrase “procedure established by law” because

individual liberties were at stake. In Sunil Batra249, Desai J.

noted in para 228 thus:

“228. ... The word “Law” in the expression “procedure established by law” in Article 21 has been interpreted to mean in Maneka Gandhi case that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would no be satisfied. If it is arbitrary it would be violative of Article 14...”

However, in Rajbala and Ors. v. State of Haryana and Ors.250,

this Court succinctly observed about the non-existence of the

246 (supra at 209) 247 (1983) 2 SCC 277 248 (supra at 128) 249 (supra at 128) 250 (2016) 2 SCC 445 114 doctrine of substantive due process in the Indian Constitution

thus:

“64. From the above extract from McDowell & Co. case [State of A.P. v. McDowell & Co., (1996) 3 SCC 709, para 43] it is clear that courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of "substantive due process" employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras, AIR 1957 SC 297 declared that the doctrine of due process has no application under the Indian Constitution [Municipal Committee, Amritsar v. State of Punjab, (1969) 1 SCC 475]. As pointed out by Frankfurter, J., arbitrariness became a mantra.

(emphasis supplied)

In K.S. Puttaswamy (I)251, the Court was more categorical in

noting the dichotomy between these two expressions and observed

thus:

“290. The constitutional history surrounding the drafting of Article 21 contains an abundant reflection of a deliberate and studied decision of the Constituent Assembly to delete the expression “due process of law” from the draft Constitution when the Constitution was adopted. In the Constituent Assembly, the Drafting Committee chaired by Dr. B.R. Ambedkar had included the phrase but it came to be deleted after a careful evaluation of the vagaries of the decision-making process in the US involving interpretation of the due process clause. Significantly, present to the mind of the Framers of our

251 (supra at 79) 115 Constitution was the invalidation of social welfare legislation in the US on the anvil of the due process Clause on the ground that it violated the liberty of contract of men, women and children to offer themselves for work in a free market for labour. This model evidently did not appeal to those who opposed the incorporation of a similar phrase into the Indian Constitution ....” (emphasis supplied)

It further noted the dangers of construing substantive due process

as a rigid principle of constitutional interpretation in India and

vagaries associated with it thus:

“296. The danger of construing this as an exercise of “substantive due process” is that it results in the incorporation of a concept from the American Constitution which was consciously not accepted when the Constitution was framed. Moreover, even in the country of its origin, substantive due process has led to vagaries of judicial interpretation. Particularly having regard to the constitutional history surrounding the deletion of that phrase in our Constitution, it would be inappropriate to equate the jurisdiction of a constitutional court in India to entertain a substantive challenge to the validity of a law with the exercise of substantive due process under the US Constitution. Reference to substantive due process in some of the judgments is essentially a reference to a substantive challenge to the validity of a law on the ground that its substantive (as distinct from procedural) provisions violate the Constitution.” (emphasis supplied)

144. Therefore, 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”. Indisputably,

116 we are not dealing with a matter of personal liberty per se. 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.

145. Concededly, we are sitting in review of the process of an

administrative or so to say quasi legislative action which falls in

the latter category, namely, with no direct impact on personal

liberties as such. 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

117 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.

146. In Chief Constable of the North Wales Police v. Evans252,

Lord Brightman very succinctly observed thus:

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

Benjamin Cardozo, in his seminal work “The Nature of the

Judicial Process” elaborated as to how a Judge derives his

strength from hallowed principles thus:

“… The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains…253.”

252 [1982] 1 WLR 1155 253 The Nature of the Judicial Process, Benjamin Cardozo, New Haven: Yale University Press, 13th Edn. 1946 pg. 141 118 In Reliance Airport Developers254, this Court discussed the

scope of judicial review in administrative action and noted thus:

“56. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co. [(1988) 4 SCC 59 : AIR 1988 SC 1737] ). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classic work Judicial Review of Administrative Action, 4th Edn. at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. …” (emphasis supplied)

The Court then summed up the principles into two broad

categories thus:

254 (supra at 188) 119 “56. …These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power.

The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.”

The Court further added the grounds of non-application of mind

to relevant factors and non-existence of facts and noted thus:

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

In Council of Civil Service Unions255, Lord Diplock attempted to

sum up the grounds of judicial review of administrative action

under three broad heads and noted thus:

“… Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to 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 further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.” (emphasis supplied)

255 (supra at 181) 120 Apart from noting that judicial review is warranted only in cases of

illegality, irrationality and procedural impropriety, Lord Diplock

prophetically noted that the categories of review could not be

exhaustive in a society where administrative action is making

inroads in all spheres of human activity and that “proportionality”

could emerge as yet another ground of review in future.

147. This Court succinctly summed up the position in Tata

Cellular v. Union of India256 and observed thus:

“94. The principles deducible from the above are:

(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

…” (emphasis supplied)

148. We must note that the scope, operation and extent of judicial

review is dependent upon the nature of subject matter that a Court

is dealing with. A constitutional Court cannot devise a uniform

standard of interference particularly when nature of

administrative action may involve expediency (in relative terms) in

256 (1994) 6 SCC 651 121 execution depending on the subject matter. In Council of Civil

Service Unions257, Lord Scarman observed thus:

“… Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act, so also has the modern law, a vivid sketch of which my noble and learned friend Lord Diplock has included in his speech, extended the range of judicial review in respect of the exercise of prerogative power. Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.” (emphasis supplied)

149. Graham Aldus and John Alder in their book “Applications for

Judicial Review, Law and Practice”, as relied upon by the Court in

Reliance Airport Developers258, have identified two categories of

national security and foreign affairs to demonstrate how judicial

review can be restricted/moulded in light of the subject matter

before the Court in following words:

“57. …..There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 (HL) : (1984) 3 All

257 (supra at 181) 258 (supra at 188) 122 ER 935] this is doubtful. Lords Diplock, Scaman and Roskili appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest.” (emphasis supplied)

150. It is noteworthy that even in R v. Secretary of State for the

Home Department, Ex Parte Daly259, a case wherein Lord Cooke

criticised the Wednesbury decision by stating that it heavily

restricts the power of judicial review of a court by targeting only

those actions which can be termed as extremely unreasonable, he

made it a point to categorically note that calling for a detailed

judicial review can never be understood to translate it into a merit

review of the administrative action. He observed thus:

“[28] The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell has pointed out, the respective roles of judges and administrators are fundamentally distinct and will remain so (see [2000] PL 671 at 681). To this extent the general tenor of the observations in R (Mahmood) v Secretary of State for the Home Dept [2001] 1 WLR 840 are correct. And Laws LJ (at 847 (para 18)) rightly emphasised in Mahmood’s case ‘that

259 (supra at 184) 123 the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in cases involving Convention 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, noted with approval by this Court in R.K. Garg261 –

“that the Courts have only the power to destroy, not to reconstruct.

When these are added to the complexity of economic regulation,

the uncertainty, the liability to error, the bewildering conflict of the

experts, and the number of times the Judges have been overruled

by events – self limitation can be seen to be the path of judicial

wisdom and institutional prestige and stability.” In Premium

Granites262, even this Court restated that it is not the domain of

the Courts to embark upon unchartered ocean of public policy in

an exercise to consider as to whether a particular public policy is

wise or a better public policy can be evolved. Such exercise must

be left to the discretion of the executive and legislative authorities,

as the case may be. The Court may interfere only when the case

260 354 US 457 (1957) 261 (supra at 168) 262 (supra at 169) 124 involves infringement of fundamental rights guaranteed by the

Constitution or any other statutory right.

152. A priori, the prescription of procedure to be deployed by the

administration in taking their decisions in the ordinary course of

their business is not for the Court to decide. More particularly, in

cases where decisions are taken in tune with a duly enacted

statutory scheme, it is not open to a Court of law to disregard the

same on the specious reasoning that the governing statutory

scheme is deficient for the nature of or significance of the project.

Even if a Court finds it debatable, that can be no ground for the

Court to quash an action taken strictly in accord with the

prescribed procedure.

153. Indubitably, Rule of Law is based on the concept of

“expository jurisprudence” which requires exposition of contents

of actual legal system as it exists263. To say that in a given case

the statutory scheme laying down the procedure is not good

enough and a new standard of democratic due process ought to

have been deployed by the executive would be a classic way of

abjuring the principle of Rule of Law which requires consistency

and uniformity of approach by one and all and in particular, by a

263 Black’s Law Dictionary, 11th Edition (Page 726) 125 judicial forum. In matters which may appear to be wholesome for

accomplishing ideals of administrative efficiency including

democratisation of the decision-making process, even if a Court is

of the opinion that a different procedure (in addition to the

statutory scheme) would be more just and appropriate, it may not

attempt to implement its ideal by way of judicial review, much less

to strike it down264. In a judicial review, we do not sit in a

discussion on idealism in Government actions, rather, our domain

is to examine its legality on the touchstone of constitutional values

and the procedure prescribed by law in that regard.

154. The import of an expression like democratic due process in

an administrative matter is fraught with at least three serious

consequences – first, in a manner of speaking non-enforcement of

a statutory process without any declaration of its invalidity;

second, import of a process which is not “due” as per the

prescribed law but is deemed to be due as per the subjective

notions of the Court (or if we may borrow the exposition of Mr.

Alladi Krishnaswami Ayyar – three gentlemen or five gentlemen

sitting as a Court deciding or accepting an argument against the

264 [see: Joseph Antony (supra) – para 14 and State of M.P. v. Narmada Bachao Andolan (supra) – paras 36 and 37] 126 expressed wishes of the legislature or the action of an executive

responsible to the legislature); and third, withdrawing the task of

governance from the democratically elected representatives

including the executive thereby creating an illusory bar on the

exercise of their power to function freely despite being within the

four corners of the law.

155. We must note that neither the principle of Rule of Law nor of

judicial review envisage such a scenario. Justice J.C. Shah, in his

published lecture on “The Rule of Law and the Indian

Constitution” rightly noted that:

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

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

(2) The law itself is based on the supreme value of the human personality. For that purpose (a) protection of the individual’s rights is secured through the medium of an impartial judicial authority. By judicial it is not meant that the authority must have the paraphernalia of a trial in a civil court. An administrative tribunal infused with the requisite qualities for competently performing its functions consistently with the basic norms of the judicial process, acts judicially. When the tribunal departs from the basic norms of the judicial process or is swayed by irrelevant considerations or objects, the Rule of Law is violated; (b) the law must be designed to ensure for the individual equality of status and opportunity, in fields social, political and economic, and provide environment for development of his special forte and his capacities.265” (emphasis supplied)

265 published in 1972 at Bombay, pp. 24-25 127 Thus, to add subjective notions of the Court in statutory processes

would be antithetical to the fundamental tenet of Rule of Law

which requires “all power in the State” to be exercised in

accordance with the procedure established by law.

156. Another dimension to be kept in mind is the factum of

subjective satisfaction of the executive. The law regarding the

involvement of constitutional Courts in public interest in cases

involving subjective satisfaction is well settled. The interference of

Courts is neither warranted to look into the quality of material

relied upon by the Government to approach a decision nor to

adjudicate upon the sufficiency of such material. These matters

are of a subjective character and if legislature permits subjective

powers on one organ of the State, the other (in the name of judicial

review) is not expected to substitute its own subjective opinion in

its place. The sole concern of the Court is to look at the relevancy

of the material relied upon to take a decision in order to see that

the decision is not devoid of application of mind. It is based on the

basic idea that the structure of a subjective decision stands on the

foundation of objective reasons. The Court may interfere when a

decision is devoid of any reason or affected by malafides or when

the decision is reached in the aftermath of statutory violations. In

128 Barium Chemicals266, the Court while dealing with an order in

the exercise of statutory powers, adverted to the exposition of Privy

Council and observed thus:

“(60) ...Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion 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 Government was a purely subjective process and such an opinion could not be challenged on the ground of propriety, reasonableness or sufficiency;

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

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

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

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

266 (supra at 158) 129 (b) it was impossible for anyone to form the opinion/satisfaction based on those facts/circumstances,

for then the Government’s opinion could be challenged on the ground of non-application of mind or perversity or on the ground that it was formed on grounds extraneous to the legislation and was beyond the scope of the statute.

The aforesaid principles are restated in Rohtas Industries267

wherein this Court noted thus:

“11. …For the reasons stated earlier we agree with the conclusion reached by Hidayatullah and Shelat, JJ. in Barium Chemicals case that the existence of circumstances suggesting that the company's business was being conducted as laid down in sub-clause(1) or the persons mentioned in sub-clause (2) were guilty of fraud or misfeasance or other misconduct towards the company or towards any of its members is a condition precedent for the Government to form the required opinion and if the existence of those conditions is challenged, the courts are entitled to examine whether those circumstances were existing when the order was made. In other words, the existence of the circumstances in question are open to judicial review though the opinion formed by the Government is not amenable to review by the courts. As held earlier the required circumstances did not exist in this case.” (emphasis supplied)

157. Be it noted that the Constitution provides an effective

mechanism to review the law itself under which administrative

power is being exercised. For, the “law” in the expression “Rule of

267 (supra at 159) 130 Law” must be good law within the realm of the Constitution.

Arguendo, if the law itself is challenged and consequently struck

down, there would be no occasion for the Court to enforce such

law and in the absence of law, the Court might be in a position to

venture into areas of arbitrariness, justness and equity, so as to

do complete justice in the cause before it. Such power is well

ingrained in Article 142. However, in the absence of any challenge

to an existing law enacted by the legislature prescribing the

procedure, all actions taken thereunder and in substantial

compliance thereof must continue to be valid and the Court would

be duty bound to give true effect to it. In the present case, none of

the enacted (statutory) procedures is 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

what is due, as exposited above, 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. We must, however, make it clear that we do

131 not mean to signify a conflict between the concept of democratic

due process, as envisaged by the petitioners and constitutional

due process, as exposited by us.

NEED FOR HEIGHTENED JUDICIAL REVIEW

159. The petitioners have argued at length as to why the present

case calls for a heightened judicial review. The underlying idea is

not restricted to the aforesaid settled principles of judicial review

in administrative decisions. The argument essentially stems from

the principle of constitutionalism which informs all spheres of

public activity. We are compelled to wonder as to what could be

the circumstances, if at all any, wherein the Court not only

surpasses the boundaries reserved for its oversight in the

Constitution but also provides it an express recognition by

acknowledging a heightened review. Would it be justified for the

Court to innovate and elevate the standard of review after a

decision has already been taken by the executive in accordance

with the procedure established by law, in pursuance of a policy? If

yes, what would be the basis or benchmark for the Court to identify

the subject matters wherein such innovation or elevation is

permissible?

132

160. The petitioners contend that standards may be heightened

only for this project which is a sui generis one. Even the

respondents have at one stage called for a sui generis treatment for

this project. We must note at the very outset that we are impressed

with none. To consider a particular subject matter as sui generis

in common parlance is one thing, but to accord something with

that character in a judicial proceeding is an altogether different

thing. Concededly, exposition of any such jurisprudence would be

fraught with unforeseen consequences and replete with

uncertainties. Whether a particular development project calls for

urgency or deserves special treatment or requires maximum

attention of the Government or is to be deferred for budgetary

reasons or requires authority ‘A’ to initiate the proposal and not

authority ‘B’, is a matter of policy decision of the executive.

Moreover, there is absolutely no legal basis to “heighten” the

judicial review by applying yardstick beyond the statutory scheme

and particularly when the Government has accorded no special

status to the project and has gone through the ordinary route of

such development projects as per law.

161. In a given project, the Government may well accord a sui

generis status in its subjective wisdom provided it does not deviate

133 from the prescribed procedural standards. Once the Government

decides to construct a new space for its sitting or to construct a

highway or water dam or school or university and follows the

procedure prescribed under law commensurate with the nature of

project, then the Court cannot act as a multiplier of regulations

and add its own notion as to what ought to be additional essential

procedure for going ahead with a particular project. When a

legislature, in its wisdom, decides to enact a legal framework, it is

expected to and must be so presumed that it has undertaken a

thorough analysis as regards the involvement of stakeholders –

experts and non-experts, institutions, procedures, timelines for

approval, intra-departmental appeals, inter-department appeals

etc. A Court sitting in review does not have this machinery

available before it and the Constitution never wanted it to do so.

Therefore, when a review is brought before the Court, it cannot

choose to adopt a different (or the so-called heightened) approach

for reviewing the administrative process involved in reference to a

particular project. The role of Court is well defined and it must not

leave the administration to grapple with multiplicity of alternate

opinions by stepping into the shoes of policymakers.

134

162. A policy decision goes through multiple stages and factors in

diverse indicators including socio-economic and political justice,

before its final culmination. As per the nature of the project, the

Government executes the project by taking certain steps –

legislative, administrative etc. - and it is this which comes under

the radar of the Court. The increasing transparency in Government

functioning by means of traditional and modern media is reducing

the gap between citizens and Government and Government actions

are met with a higher level of scrutiny on a real-time basis.

163. 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

135 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.

164. As noted earlier, the Courts do not sit in appeal over the

decisions of the Government to do merit review of the subjective

decision as such. In Natural Resources Allocation268, this Court

noted that Government decisions concerning public resources

have an “intricate economic value” attached with them and to

elevate the standard of review on the basis of a subjective

understanding of the subject matter being extraordinary would be

dehors the review jurisdiction. In Narmada Bachao Andolan v.

Union of India269, this Court observed that:

“229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the

268 (supra at 101) 269 (supra at 132) 136 very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.” (emphasis supplied)

165. 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. In Shimnit Utsch India270,

this Court, in para 52, observed thus:

“52. … The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] reasonableness and free from arbitrariness, irrationality, bias and malice.” (emphasis supplied)

270 (supra at 133) 137 In State of Madhya Pradesh v. Narmada Bachao Andolan271,

the Court was dealing with an issue of rehabilitation of persons

displaced due to the construction of the dam. It went on to observe

that judicial interference in a policy matter is circumscribed, in the

following words:

“36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Singh Vijay Pal Singh v. State of U.P. [(2007) 6 SCC 44] , Villianur Iyarkkai 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 a settled legal proposition that the Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed.

The public policy can only be challenged where it offends some constitutional or statutory provisions.” (emphasis supplied)

166. In Tata Iron & Steel272, in paragraph 68, the Court noted

that whenever the issues brought before the Court are intertwined

with those involving determination of policy and a plethora of

technical issues, the Courts are very wary and must exercise

271 (supra at 134) 272 (supra at 139) 138 restraint and not trespass into policy-making. Similarly, in

Narmada Bachao Andolan v. Union of India273, in paragraph

228, the Court noted that a project may be executed

departmentally or by an outside agency as per the choice of the

Government, whilst ensuring that it is done according to some

procedure or set manner. Further, the Court should be loath to

assume that the authorities will not function properly and that the

Court should have no role to play. Later in 2007, the Court

restated the position in Directorate of Film Festivals274, as

follows:

16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary.

Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review (vide Asif Hameed v. State of J&K [1989 Supp (2) SCC 364], Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC 223], Khoday Distilleries Ltd. v. State of Karnataka [(1996) 10 SCC 304], BALCO Employees' Union v. Union of India [(2002) 2 SCC 333], State of Orissa v. Gopinath Dash [(2005) 13 SCC 495] and Akhil Bharat Goseva Sangh (3) v. State of A.P. [(2006) 4 SCC 162)].

(emphasis supplied)

273 (supra at 132) 274 (supra at 135) 139

167. To sum up the above discussion, it may be noted that 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 subject matter. For this

purpose, we often resort to doctrines of pith and substance,

harmonious construction, territorial nexus etc. 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 law-making 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

140 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. As noted above, 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.

CONSTITUTIONALISM

168. The principle of constitutionalism has been deployed by the

petitioners to justify the alteration of aforesaid standards. The 141 ideal of constitutionalism finds place in almost every constitutional

discourse involving the state and the citizen and we need to reflect

upon this ideal in the context in which it appears.

“Constitutionalism”, as an expression of political theory, holds the

distinction of receiving diverse meanings and unlike most other

concepts, the meanings are fundamentally distinct and

inexplicable beyond the specific context in which they are used.

The need for understanding this principle in its correct terminology

gets multiplied in a country with a written Constitution. What,

then, is the role of the principle of constitutionalism for a Court of

law performing functions under the umbrella of a written

Constitution?

169. A peculiar feature of the usage of this expression in

constitutional matters is that one side tries to project it as an

independent substantive rule, as opposed to it being a mere force

behind the rule, and the other side brushes it down as a redundant

theoretical concept. We must note that the true import of

constitutionalism cannot be understood by treating it as a

standalone concept of judicial application. Jurists across the

world have given different meanings to this word. Whereas some

have associated it with fundamental concepts of Rule of Law and

142 judicial review as envisaged in the Constitution, others have

considered it as a radical idea for transforming the Constitution

over and above its true import. For some, judicial supremacy over

functioning of executive and legislature is considered as essential

to constitutionalism. For others, like Prof. Barendt275, the ideal of

separation of powers is the essence of constitutionalism. Building

upon the subjectivity of this concept, Jo Eric Khushal Murkens, in

“The Quest for Constitutionalism in UK Public Law Discourse”

notes that the substantive content of any constitutional discourse

is not likely to change due to this principle thus:

“… Every scholar above is able to convey her message (the substantive concept of the rule of law, the legitimacy of government action, and the core institutional values) without requiring recourse to constitutionalism. In other words, if constitutionalism were eliminated from constitutional discourses, their substantive content would remain unchanged.276” (emphasis supplied)

170. Constitutionalism, therefore, 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

275 E Barendt, An Introduction to Constitutional Law, (Clarendon Press, Oxford 1998), pg. 6 276 The Quest for Constitutionalism in UK Public Law Discourse, Jo Eric Khushal Murkens, Oxford Journal of Legal Studies, Vol. 29, pg. 446 143 model of governance. We must state that 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.

171. In this regard, we must recall the enunciation of this Court

in Keshavan Madhava Menon277, wherein it is observed that an

argument on what is claimed to be the spirit of the Constitution is

always attractive, for it has a powerful appeal to sentiments and

emotion; but a Court of law has to gather the spirit of the

Constitution from the language of the Constitution. For, one may

believe or think to be the spirit of the Constitution cannot prevail

if the language of the Constitution does not support that view.

277 (supra at 130) 144

172. To conclude, 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.

PARTICIPATORY DEMOCRACY IN INDIA

173. An argument has been advanced as regards the absence of

sufficient public participation in the entire process. It stems from

the understanding that India is a participatory democracy.

Thereby citizens’ participation must be provisioned at all stages of

decision making. Rarely do we come across instances when the

very nature of democracy in a country becomes a subject of debate

in an administrative review action. It is, however, important to take

this debate to a logical end, as enforceable participatory rights are

alleged to flow from the nature of democracy. The question

essentially is about the meaning of the phrase “rule by the people”

as used in understanding the meaning of democracy.

145

174. Tracing the origin of mode of governance in India, one would

invariably note that we have traversed a long journey beginning

with the Indian Councils Act, 1861278. After the First War of

Independence in 1857, Viceroy’s Legislative Council was opened

up to include “non-official” members for the first time, however,

there was no representative character in the members. The

limitations of this Council were noted by Mr. S.P. Verma in

“Parliamentary Democracy in India – The Genesis” and the

same is relevant to understand the journey of Parliamentary

system in India:

“…The functions of the Legislative Council at this time were of a very limited nature. ‘It would meet only for legislative purposes and its members would have the right to speak only on some definite legislative projects. They would have no right to put questions to the members of the government and demand answers thereto. Nor would they have authority over the finances of the Government’279.”

It was followed by Indian Councils Act, 1892280 whereby indirect

elections were introduced and members of local bodies were

empowered to recommend members for the legislature. Mr. K.

Raghu Ram Reddy, in “Roots of Parliamentary System in

278 For short, “the 1861 Act” 279 Parliamentary Democracy in India (Ist Edn., 1987), pg. 5 280 For short, "the 1892 Act” 146 India”, noted the objects of this Act of which the relevant extract

reads thus:

“... “to widen the basis and expand the functions of the government of India, and to give further opportunities to the non-official and native elements in Indian society to take part in the work of the government.””281

However, the same was not acceptable to the members of Indian

National Congress and this disappointment came out in the words

of Sir Chettur Sankaran Nair, a leading jurist and Congress

President in 1897 session. He said thus:

“From our earliest school days the great English writers have been our classics. Englishmen have been our professors in colleges. English history is taught in our schools. We live now the life of the English. To deny us the freedom of the press; to deny us representative institutions, England will have to ignore those very principles for which the noblest names in her history toiled and bled.282” (emphasis supplied)

A very significant takeaway from the aforesaid observation is that

Sir Sankaran propagated what Indian freedom struggle was

striving to achieve – representative institutions. The slow journey

towards a democratic system then led to Indian Councils Act,

1909283 (popularly known as Morley-Minto Reforms) whereby

elections were introduced for 32 non-official members out of total

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” 147 68 members and representative element was introduced.

Thereafter, the Government of India Act, 1919284 (in the aftermath

of Montague-Chelmsford Reform) was introduced and this Act

opened way for a representative democracy. On 20.8.1917, British

Government made a declaration stating their policy. It read thus:

“The policy of His Majestry’s Government with which the Government of India are in complete accord, is that of increasing the association of Indians in every branch of the administration and the gradual development of self- governing institutions with a view to the progressive realisation of responsible government in India as an integral part of the British Empire.”

The 1919 Act was considered as the threshold point of

commencement of a parliamentary culture in India. Mr. Reddy

says that it was an important beginning in the “sense of transfer

of power to the people”. Afterwards, the Government of India Act,

1935285 was introduced which provided for greater right to vote

and provincial autonomy with elected representatives in the

provinces. The journey finally culminated in the Constituent

Assembly when the members deliberated upon the question of the

form of Government to be devised for independent India. The

members were certain that a democracy is desirable, however, the

exact shape that such democracy would take was not pre-decided,

284 For short, “the 1919 Act” 285 For short, “the 1935 Act” 148 as perceivable from the words of Pandit Jawaharlal Nehru who said

thus:

“Whatever system of government we may establish here must fit in with the temper of our people and be acceptable to them.... We stand for democracy but what form of democracy, what shape it might take is another matter ... for this House to determine.286”

175. In the Constituent Assembly, when the question of mode of

governance came up for deliberation, many ambitious proposals

were made by the members to suggest varying democratic

structures. Few of such proposals suggested to bring in a clause

for “recall” so as to enable the voters to vote out an elected member

owing to poor performance. Proposals for a direct democracy were

also placed for deliberation so as to establish a Government

directly run by the people. The Assembly negatived all such

proposals and adopted a representative model of democracy. It is

useful to refer to the motion moved by Pandit Jawaharlal Nehru on

21.7.1947 for the election of President. He said thus:

“... Now Sir, one thing we have to decide at the very beginning is what should be the kind of governmental structure, whether it is one system where there is ministerial responsibility or whether it is the Presidential system as prevails in the United States of America; many members possibly at first sight might object to this indirect election and may prefer an election by adult suffrage. We have given anxious thought to this matter and we came to the very definite conclusion that it would not be

286 Parliamentary Democracy in India, V. Bhaskara Rao, B. Venkateswarlu, 1987, pg. 16 149 desirable, first because we want to emphasize the ministerial character of the Government that power really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figure-head like the French President. We did not give him any real power but we have made his position one of great authority and dignity. You will notice from this draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore, if we had an election by adult franchise and yet did not give him any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result. Personally, I am entirely agreeable to the democratic procedure but there is such a thing as too much of a democratic procedure and I greatly fear that if we have a wide scale wasting of the time, we might have no time left for doing anything else except preparing for the elections and having elections. We have got enough elections for the Constitution. We shall have elections on adult franchise basis for the Federal Legislature. Now if you add to that an enormous Presidential election in which every adult votes in the whole of India, that will be a tremendous affair. In fact even financially it will be difficult to carry out and otherwise also it will upset most activities for a great part of the year. ....287” (emphasis supplied)

The predicament exposited by him of preparing for the elections

and having elections intermittently if not continually is so relevant

even after passage of over 73 years.

176. Be that as it may, we must note that our founding fathers

were limpid about their vision for the nature of democracy we need

to inherit. Further, the members of the Assembly were aware of

challenges, particularly administrative challenges, that may fall in

287 Constituent Assembly Debates Vol. IV (14.7.1947 – 31.7.1947) 150 the way of efficiency of administration due to “too much of a

democratic procedure”. Three days before the acceptance of the

draft, on 23.11.1949, T.J.M. Wilson expressed a hope for increased

public participation in future. He said thus:

“The most elementary requisite of democracy is the right of every citizen to vote and we have provided for it in our Constitution. But even this was questioned by some of our friends on the ground that they are not sufficiently educated to carry on the Government of the country. Their contention is that only intellect is necessary for the Government of the country. But the conditions and also the 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 people and the needs of people, whether they are of food and cloth or of health and education and how can anybody else claim to know these needs of people better than the people themselves? Thought is, of course necessary and intellect is really essential; but unless it is united with action, unless it is based upon the experience of the people, it will not achieve much. Therefore, the purpose of adult suffrage, the right of every person to vote is to bridge this gulf between action and thought. But is this right to vote once in five years enough? The essence of democracy is not so much the existence of what are called political parties, etc., but the essence of democracy is the effective participation of the individual in the actual government of the country. The greater and more effective the participation of the individual in the government, the greater is the democracy, because democracy is still only an ideal which has yet to be reached by humanity. Decentralisation would have done something in that direction, if we had provided for it in our Constitution.288” (emphasis supplied)

177. Article 40 in Part-IV was then made part of Directive

Principles, which reads thus:

288 Constituent Assembly Debates Vol. XI (14.11.1949 – 26.11.1949) 151 “40. Organisation of village panchayats.—The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.”

The above hope for more decentralisation and opening up of

democracy was vindicated in 1992 with the introduction of 73rd

and 74th amendments in the Constitution which resulted into the

inclusion of local self-governance in rural and urban India. This

opening up of democracy in India was a step towards enhanced

participation. It was noted by this Court in Bhanumati and Ors.

v. State of Uttar Pradesh & Ors.289, wherein it was observed

thus:

“26. What was in a nebulous state as one of the directive principles under Article 40, through the Seventy-third Constitutional Amendment metamorphosed to a distinct part of constitutional dispensation with detailed provision for functioning of panchayat. The main purpose behind this is to ensure democratic decentralisation on the Gandhian principle of participatory democracy so that the panchayat may become viable and responsive people's bodies as an institution of governance and thus it may acquire the necessary status and function with dignity by 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

participation through panchayats, had observed thus:

“56. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to

289 (2010) 12 SCC 1 290 (2010) 7 SCC 202 152 make it more participatory, inclusive and accountable to the weaker sections of society. ...”

In yet another post-independence judgment, this Court in

Mohinder Singh Gill and Anr. v. Chief Election Commissioner,

New Delhi and Ors.291, while noting how the representative model

serves as the minimum requirement of a participatory democracy,

observed thus:

“24. Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. 'The right of election is the very essence of the constitution' (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.” (emphasis supplied)

178. In fact, the very basis of inclusion of administrative details

within the Constitution, as opposed to leaving them to be

determined by ordinary enactments, was to avoid a scenario

wherein functioning of the administration is hindered by pressing

for undeclared rights and standards. On 4.11.1948, when Dr. B.R.

291 (1978) 1 SCC 405 153 Ambedkar placed the draft Constitution before the Assembly, he

spoke in unambiguous terms thus:

“As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution. What I am sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration. I agree that administrative details should have no place in the Constitution. I wish very much that the Drafting Committee could see its way to avoid their inclusion in the Constitution. But this is to be said on the necessity which justifies their inclusion.” (emphasis supplied)

179. The above discussion has vital takeaways for the purpose of

the present controversy. It reveals that a direct democracy was

never envisaged by our founding fathers as an ideal model in light

of the domestic socio-economic set-up. Right from the days of

struggle for freedom to the debates of Constituent Assembly and

afterwards in independent India, we have invariably embraced the

representative model of democracy wherein political sovereignty

vested in the People of India and legal sovereignty vested in the

Constitution of India. The rule is by the people through their

elected representatives at all levels of the Government – from

village panchayats to the Parliament.

154 180. However, we must note that mere acceptance of a

representative model did not seal the fate of the country once and

for all. In fact, over a period of time, there has been a constant

endeavour to encourage 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 legislature in that regard292.

181. The introduction of local self-governance in 1992 could be

seen as an acceptance of the above proposition. In the Indian

scenario, it would be wholly wrong to say that public participation

is limited to exercise of universal suffrage once in five years. Today,

Government invites public to participate in a series of

administrative processes as per the mandate of enacted laws

envisaging public participation in the form of inviting

representations against Government proposals. Besides, every

citizen is vested with a guaranteed right to approach the

constitutional Courts for seeking review of administrative action.

292 Such as: (1) The Panchayats (Extension to the Scheduled Areas) Act, 1996; (2) Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; (3) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; (4) Airports Economic Regulatory Authority of India Act, 2008; (5) Environmental Impact Assessment Notification, 2006;

(6) The Insolvency and Bankruptcy Code, 2016; (7) General Clauses Act, 1897; and (8) Forest Rights Act, 2006.

155 We must note that Part III of the Constitution is the pivot around

which democracy revolves as it creates an open market for diverse

political and social ideas, expression of common interests and

political associations. In King & Ors. v. Attorneys Fidelity Fund

Board of Control & Anr.293, the Supreme Court of South Africa

noted the facets of public involvement thus:

“22. … Public involvement might include public participation through the submission of commentary and representations: but that is neither definitive nor exhaustive of its content. The public may become ‘involved' in the business of the National Assembly as much by understanding and being informed of what it is doing as by participating directly in those processes. It is plain that by imposing on Parliament the obligation to facilitate public involvement in its processes, the Constitution sets a base standard, but then leaves Parliament significant leeway in fulfilling it. …” (emphasis supplied)

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 decisions morally binding is process: the people’s freely choosing representatives, those representatives’ debating and enacting policy and later standing for reelection, and administrators’ enforcing that policy.294”

293 2006 (4) BCLR 462 (South African Constitutional Court) 294 Constitutionalism and Democracy - Constitutions, Constitutionalism, and Democracy, Walter F. Murphy, Oxford University Press, pg. 4 156

183. 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 herein,

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 governance295.

184. 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. As discussed above, 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 administration. The legislature has

295 Constitutionalism and Democracy, Transitions in the Contemporary World, Oxford University Press, 1993 157 expressly provided for such public participation and the extent

thereof in the governing enactments, referred to earlier296.

185. 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.

186. 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.

296 (supra at 292) 158

187. We 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 sentiment also resonated in the

words of Thomas Jefferson when he wrote to John Taylor on

28.5.1816 that “the mass of the citizens is the safest depository of

their own rights”297.

188. 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.

297 The Works of Thomas Jefferson, Federal Edition Vol. 11 (Correspondence and Papers 1808-1816), pp. 298 159

189. Having said thus, 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.

190. The Supreme Court in Janhit Manch and Anr. v. The State

of Maharashtra and Ors.298, opined that consultative process is

always helpful. However, it went on to caution that the perspective

of elected bodies must give way to that of few individuals. The

Court observed thus:

“13. We have to keep in mind the principles of separation of powers. The elected Government of the day, which has the mandate of the people, is to take care of policy matters. There is a democratic structure at different levels, starting from the level of Village Panchayats, Nagar Palikas, Municipal Authorities, Legislative Assemblies and the elected Parliament; each of them has a role to perform. In aspects, as presented in the instant case, a consultative process is always helpful, and is one which has already been undertaken. The philosophy of Appellant 2 cannot be transmitted as a mandatory policy of the Government, which is what would happen were a mandamus to be issued on the prayers made. Perspective of individuals may vary, but if the elected bodies which have policy formulation powers, is to be superseded by the ideals of each individual, the situation would be chaotic. The policies formulated and the legislations made, unless they fall foul of the Constitution of India, cannot be interfered with, at the

298 (2019) 2 SCC 505 160 behest of the appellants. The appellants have completely missed this point.” (emphasis supplied)

191. The reliance placed by the petitioners upon Doctors for Life

International299 and Kiambu County300 may not be of much

relevance in absence of statutory regime in Indian context

mandating public participation before formulation of the policy, in

the light of principles discussed above. Despite the great

persuasive value of these decisions, we cannot escape some glaring

differences which alter the character of these decisions. In Doctors

for Life International301, the Court, in para 75, clearly noted that

its opinion is founded upon clear and express statutory provisions

mandating the National Council to facilitate public involvement. It

observed thus:

“[75] The provisions of sections 72(1)(a) and 118(1)(a) (“the public involvement provisions”) clearly impose a duty on the NCOP and the provincial legislatures to facilitate public involvement in their respective legislative processes. The question is what is the nature and scope of the duty comprehended by these provisions and to what extent is it justiciable.”

Similar position existed before the Kenyan Court of Appeal in

Kiambu County302. Secondly, the judgment of the Court

299 (supra at 80) 300 (supra at 82) 301 (supra at 80) 302 (supra at 82) 161 examines scope of public involvement in legislative processes. In

the introductory para, it notes thus:

“… The first question concerns the nature and the scope of the constitutional obligation of a legislative organ of the state to facilitate public involvement in its legislative processes and those of its committees and the consequences of the failure to comply with that obligation. …”

The petitioners have adopted a position that this judgment is not

restricted to the express public consultation provision and in

respect of legislative processes but it derives strength from

international and foreign instruments to which India is also a

signatory. However, the Court, in para 95, lays down the correct

proposition of law and observed thus:

“[95] The precise nature and scope of the international law right to participate in the conduct of public affairs is a matter for individual states to determine through their laws and policies. …” (emphasis supplied)

In conclusion, it further expounded that international law right to

political participation encompasses a “general right to participate”

and “specific right to vote”. It noted thus:

“[105] The international law right to political participation encompasses a general right to participate in the conduct of public affairs and a more specific right to vote and/or be elected into public office. The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that is not all; it includes the duty to facilitate public participation in the conduct of public affairs by ensuring

162 that citizens have the necessary information and effective opportunity to exercise the right 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 representative and participatory elements of our democracy should not be seen as being in tension with each other. They must be seen as mutually supportive. General elections, the foundation of representative democracy, would be meaningless without massive participation by the voters. The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist. [116] Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law- making processes. …”

We must note at the very outset, Doctors for Life

International303, barring the analysis on express provision on

consultation, does not operate in conflict with the views expressed

303 (supra at 80) 163 by us in this judgment. It duly recognises that precise contours of

participation in the matter of governance are dependent upon local

conditions, in particular existence of municipal laws in that regard

and the nature of subject matter. Suffice it to note that in the cited

decisions referred to above, the Court was not dealing with

challenge to administrative processes in relation to a development

project. It is justly urged by the respondents that 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.

192. It was also urged that like the approach adopted in Britain,

with regard to upgradation or construction of a new Parliament,

the Indian Parliament should enact a special legislation in that

regard including to guarantee extensive public participation at all

stages. Somewhat similar plea was dealt with in Dr. Ashwani

164 Kumar304, wherein the Court after adverting to the settled legal

position including in reference to the principles of separation of

powers of the three constituents of the State, negatived the same.

We may usefully refer to exposition in paras 26 to 28 of this

reported decision, the same reads thus:

“26. Legislating or law-making involves a choice to prioritise certain political, moral and social values over the others from a wide range of choices that exist before the legislature. It is a balancing and integrating exercise to give expression/meaning to diverse and alternative values and blend it in a manner that it is representative of several viewpoints so that it garners support from other elected representatives to pass institutional muster and acceptance. Legislation, in the form of an enactment or laws, lays down broad and general principles. It is the source of law which the judges are called upon to apply. Judges, when they apply the law, are constrained by the rules of language and by well identified background presumptions as to the manner in which the legislature intended the law to be read. Application of law by the judges is not synonymous with the enactment of law by the legislature. Judges have the power to spell out how precisely the statute would apply in a particular case. In this manner, they complete the law formulated by the legislature by applying it. This power of interpretation or the power of judicial review is exercised post the enactment of law, which is then made subject matter of interpretation or challenge before the courts.

27. Legislature, as an institution and a wing of the Government, is a microcosm of the bigger social community possessing qualities of a democratic institution in terms of composition, diversity and accountability. Legislature uses in-built procedures carefully designed and adopted to bring a plenitude of representations and resources as they have access to information, skills, expertise and knowledge of the people working within the institution and outside in the form of executive. Process and method of legislation and judicial adjudication are entirely distinct. Judicial adjudication involves applying rules of interpretation and law of precedents and notwithstanding deep understanding, knowledge and wisdom of an individual judge or the bench,

304 (supra at 167) 165 it cannot be equated with law making in a democratic society by legislators given their wider and broader diverse polity.

The Constitution states that legislature is supreme and has a final say in matters of legislation when it reflects on alternatives and choices with inputs from different quarters, with a check in the form of democratic accountability and a further check by the courts which exercise the power of judicial review. It is not for the judges to seek to develop new all-embracing principles of law in a way that reflects the stance and opinion of the individual judges when the society/legislators as a whole are unclear and substantially divided on the relevant issues. In Bhim Singh v. Union of India, while observing that the Constitution does not strictly prohibit overlapping of functions as this is inevitable in the modern parliamentary democracy, the Constitution prohibits exercise of functions of another branch which results in wresting away of the regime of constitutional accountability. Only when accountability is preserved, there will be no violation of principle of separation of powers. Constitution not only requires and mandates that there should be right decisions that govern us, but equal care has to be taken that the right decisions are made by the right body and the institution. This is what gives legitimacy, be it a legislation, a policy decision or a court adjudication.

28. It is sometimes contended with force that unpopular and difficult decisions are more easily grasped and taken by the judges rather than by the other two wings. Indeed, such suggestions were indirectly made. This reasoning is predicated on the belief that the judges are not directly accountable to the electorate and, therefore, enjoy the relative freedom from questions of the moment, which enables them to take a detached, fair and just view. The position that judges are not elected and accountable is correct, but this would not justify an order by a court in the nature of judicial legislation for it will run afoul of the constitutional supremacy and invalidate and subvert the democratic process by which legislations are enacted. For the reasons stated above, this reasoning is constitutionally unacceptable and untenable.”

193. 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 166 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. In S.P. Gupta & Ors. v. President of

India & Ors.305, this Court discussed about the common thread

running through information, transparency and accountability

and observed as under:

“63. Now it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy. "Knowledge" said James Madison, "will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it is but a prologue to a farce or tragedy or perhaps both." The citizens' right to know the facts, the true facts, about the administration of the country is thus one of the

305 AIR 1982 SC 149 167 pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.” (emphasis supplied)

In R.K. Jain v. Union of India306, the Court observed again:

“41. … It is only if the people know how the Government is functioning that they can fulfil their own democratic rights given to them and make the democracy a really effective participatory democracy. There can be little doubt that exposure to public scrutiny is one of the surest means of running a clean and healthy administration. Disclosure of information in regard to the functioning of the Government must be the rule and secrecy can be exceptionally justified only where strict requirement of public information was assumed. The approach of the court must be to alleviate the area of secrecy as much as possible constantly with the requirement of public interest bearing in mind all the time that the disclosure also serves an important aspect of public interest. ...” (emphasis supplied)

In Central Public Information Officer, Supreme Court of India

v. Subhash Chandra Agarwal307, this Court restated the

governing legal position and highlighted the importance of an

informed citizenry by drawing from the preamble of Right to

Information Act, 2005308 and observed thus:

“120. Before we proceed any further we need to have a brief reference to the scheme of the RTI Act. The Statement of Objects and Reasons envisage a noble goal of creating a democracy which is consisting of informed citizens and a transparent government. It also provides for a balance between effective government, efficient operations, expenditure of such transparent systems and requirements of confidentiality for certain sensitive information. It recognises that these principles are

306 (1993) 4 SCC 119 307 (2020) 5 SCC 481 308 For short, “the 2005 Act” 168 inevitable to create friction inter se and there needs to be harmonisation of such conflicting interests and there is further requirement to preserve the supremacy of democratic ideal. The recognition of this normative democratic ideal requires us to further expound upon the optimum levels of accountability and transparency of efficient operations of the Government. …”

The Court then highlighted how open access to information is

crucial for the participatory element of democracy thus:

“192. Bhagwati, J. expanded on the socio-political background that must inform any approach in a “democratic society wedded to the basic values enshrined in the Constitution”. He drew an interconnection between democracy, transparency and accountability to hold that a basic postulate of accountability, which is fundamental to a democratic government, is that information about the Government is accessible to the people. He held that participatory democracy is premised on the availability of information about the functioning of the Government. The right to know as a “pillar of a democratic State” imputes positive content to democracy and ensures that democracy does not remain static but becomes a “continuous process”. Thus, a limitation on transparency must be supported by more than a claim to confidentiality — it must demonstrate that the public harm arising from 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:

“39. Democracy requires an informed citizenry and transparency of information. The Right to Information Act, 2005 (“the RTI Act”) recognises the right of the citizen to secure access to information under the control of public authority, in order to promote transparency and accountability in the working of every public authority. …”

309 (2013) 15 SCC 732 169 In Anjali Bhardwaj and Ors. v. Union of India and Ors.310, this

Court recognised that right to information was traceable from

Article 19(1)(a) even before the 2005 Act came into force and

observed thus:

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

194. It is right to say that the 2005 Act 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.

195. It must be noted that the principle of “political justice” is

meant to inform all institutions of national life and is essential for

securing a just social order. Further, securing political justice is

envisioned as a step towards “welfare of the people”. The term

310 2019 (3) SCALE 447 170 “political justice” is of utmost importance, for it is not just

fundamental to governance of the country owing to its positioning

in the Directive Principles and being prominently expounded in the

PREAMBLE of the Constitution which strives

““…to secure to all its citizens:

JUSTICE, social, economic and political; …”

In Raghunathrao Ganpatrao v. Union of India311, the Court

attempted to provide a meaning to the term political justice and

observed thus:

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

196. 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 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

311 AIR 1993 SC 1267 171 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.

197. Notably, the respondents in the present case have recognised

the importance of openness and have placed elaborate data before

us 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. We shall be examining the same at

an appropriate stage.

198. Having thoroughly discussed the import, scope of application

and substantial value of the aforesaid principles for the purpose of

this case, we may now advert to specific challenges.

CHANGE IN LAND USE

199. In order to address the challenge against change in land use,

three broad questions arise for consideration, namely:

(i) Whether the change in land use of the subject plots is

permissible in law?

172 (ii) If permissible, to what extent can such change be made

within the contours of law?

(iii) Whether the parameters, procedural or otherwise, to be

followed for effecting such change have been duly followed by

the respondents?

WHAT IS MASTER PLAN AND ZONAL PLAN

200. We may first advert to the legal framework relating to Master

Plan, Zonal Plans and modifications therein, as envisaged in the

1957 Act and the Master Plan (master plan presently in force).

Admittedly, thus far three Master Plans have been made for Delhi.

Before the present plan, two master plans were in force – Master

Plan, 1962 (in force for 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 for the preparation of a 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 a civic survey of, and prepare a master plan for, Delhi. (2) The master plan shall—

(a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the

173 stages by which any such development shall be carried out; and

(b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared.

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

Primarily, the Master Plan is meant to delineate various territorial

zones within Delhi and the manner of land use in each zone. It also

acts as a basic framework or presaging for the consequent

preparation of zonal plans. Sub-Section (3) is of a residuary

character. It predicates that the master plan may also provide for

any other matter (in addition to specified in earlier part of the same

section) which is necessary for the proper development of Delhi.

201. To effectuate the master plan, the 1957 Act mandates

preparation of zonal plans for each zone created under the master

plan. A zonal plan for the concerned zone must contain a site plan

and use plan for the development of the zone in conformity with

the land use prescribed therefor in the master plan, including

other particulars referred to in sub-Section (2) of Section 8, for

ensuring proper development. It is a subset of the master plan.

Section 8 provides thus:

“8. Zonal development plans.— (1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal

174 development plan for each of the zones into which Delhi may be divided.

(2) A zonal development plan may—

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

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

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

(d) in particular, contain provisions regarding all or any of the following 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 public purposes;

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

(iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or 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 of any building to be erected on any site;

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

(viii) the amenities to be provided in relation to any site or buildings on such site whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided;

175 (ix) the prohibitions or restrictions regarding erection of shops, workshops, warehouses or factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality;

(x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained;

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

(xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such zone or area.”

A notable feature of the zonal plan is that it manifests multiple

micro aspects of decentralized planning depending on the type of

zone. It may provide for conditions and restrictions on

development as may be needed for the proper development of the

zone.

202. An understanding of the relationship between master plan

and zonal plan is relevant for further analysis. Whereas the master

plan lays down a broad vision of development for a region, the

zonal plan is meant to provide specificity to the vision expressed in

the master plan for facilitating the execution of the vision in

specified zones. A zonal plan is meant to further the vision of the

master plan. In Master Plan, a zonal plan is defined thus:

176

“2(2) Zonal Development Plan means a plan for one of the zones (divisions) of the National Capital Territory of Delhi containing detailed information regarding provision of social infrastructure, parks and open spaces, circulation system, etc.”

Chapter 16 of Master Plan titled “Land Use Plan” throws light on

the substance of a zonal plan as:

“16.1 ...The Zonal plans shall detail out the policies of the Master Plan 2021 and act as link between the Layout Plan and Master Plan. The development schemes and layout plans indicating various use premises shall conform to the Master Plan / Zonal Plans. The Zonal Plans of the areas shall be prepared under Section 8 and processed under Section 10 and simultaneously the modifications of land uses shall be processed under Section 11(A) of the Delhi Development Act, 1957. Already approved Sub Zonal (earlier Zonal) Plans in conformity with the Master Plan shall continue for the areas where the Zonal Plans have not been approved. The Zonal Plans in the form of structure plans shall be prepared within 12 months of the approval of the MPD-2021.

In absence of Zonal Plan of any area, the development shall be in accordance with the provisions of the Master Plan. No urban activity shall be permitted in the proposed Urban Extension without change of land use / modification to the Master Plan as per the Delhi Development Act, 1957” (emphasis supplied)

The zonal plan, as exposited above, acts as a link between layout

plan312 and master plan. It is also relevant to note that preparation

of a zonal plan in accordance with Section-8 is not a pre-requisite

for the operationalization of a master plan. It is clearly stated in

clause 16.1 (quoted above) that earlier zonal plan if in conformity

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

177 with the prevailing master plan, may continue in areas where a

new zonal plan has not been approved. Further, in absence of

zonal plan of any area, the development can proceed in accordance

with the contours specified in the master plan – for the specified

zone. The underlying reason is to ensure that the pace of

development does not come to a standstill in absence of a zonal

plan and at the same time is for proper development of the

concerned zone and in particular whole of Delhi. Therefore, the

scope and direction of development as envisaged in the master

plan shall remain unhindered, irrespective of whether or not it is

complemented with a new zonal plan or not.

MODIFICATION OF PLANS

203. We may now examine the statutory scheme concerning the

modification of plans. The thrust of the challenge necessitates us

to analyse the provisions for modifying the plan.

204. Section 11A of the 1957 Act is the primary provision enabling

modifications to plan. It falls under a separate chapter titled

“MODIFICATIONS TO THE MASTER PLAN AND THE ZONAL

DEVELOPMENT PLAN”. The same reads thus:

178

“11A. Modifications to plan.—(1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do not effect important alterations in the character of the plan and which do not relate to the extent of land-uses or the standards of population density. (2) The Central Government may make any modifications to the master plan or the zonal development plan whether such 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 a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.

(4) Every modification made under the provisions of this section shall be published in such manner as the Authority or the Central Government, as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Central Government may fix.

(5) When the Authority makes any modifications to the plan under sub-section (1), it shall report to the Central Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation.

(6) If any question arises whether the modifications proposed to be made by the Authority are modifications which effect important alterations in the character of the plan or whether they relate to the extent of land-

uses or the standards of population density, it shall be referred to the Central Government whose decision thereon shall be final.

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

179

205. Section 11A is a repository of both power and procedure of

modification. It bestows two entities with such power - Authority

(DDA) and the Central Government. The power of modification

vested in the Authority, is circumscribed, as specified in sub-

Section (1); but wider discretion has been given to the Central

Government in that regard. The extent of power granted to the two

entities is dissimilar and disparate. Section 11A(1) empowers the

Authority to make modifications in the master plan or the zonal

plan subject to three express fields:

(i) such modifications do not effect important alterations in the 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 of population density.

Whereas, in a marked progression from the mandate of Authority,

sub-Section (2) empowers the Central Government to effect

modifications to the master plan or zonal plan irrespective of

whether such modifications are of the nature specified in sub-

Section (1) or any other modification as may be deemed necessary

in public interest. The language used by the legislature is explicit

and commends no other meaning. In other words, sub-Section (2)

180 is widely worded and bestows expansive power upon the Central

Government. It is not constricted by placing restrictions regarding

not to alter the character or extent of the master plan or zonal plan

specified in sub-Section (1), in case the Central Government

intends to do so in public interest including for the proper

development of Delhi. This literal understanding of the provision

is in complete harmony with the text of Master Plan, as we shall

see, which also acknowledges the need for modifications in cases

of necessity based upon public interest. That, however, can be

done by following procedure prescribed for carrying out such

modification. Sub-Section (6) of the provision is also instructive. It

empowers the Central Government to decide whether the Authority

has violated the three express limitations under sub-Section (1)

while effecting modifications and that decision is final. Let us

understand the scheme further.

206. Section 41 of the 1957 Act provides for the control of the

Central Government over the Authority and advances the view that

a superior role is attributed to it under the Act. It reads thus:

“41. Control by Central Government.—(1) The Authority shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the Authority under this Act,

181 any dispute arises between the Authority and the Central Government the decision of the Central Government on such dispute shall be final.

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

Provided that the Central Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.” (emphasis supplied)

The same intent was reflected in the unamended Delhi

Development (Master Plan and Zonal Development) Rules,

1959313. Rule 12 provided for amendment of the Master Plan by

the Authority and predicated that the Authority may carry out

amendments upon the expiry of every five years in accordance with

the procedure prescribed in the 1957 Act. The requirement of

acting “in accordance with the procedure” prescribed in the 1957

Act signified that the Authority is not supposed to deviate from the

three stipulations under Section 11A(1). Rule 12 reads thus:

“12. Amendment of Master Plan.— The Authority may amend the whole or any part of the master plan, if necessary, at the expiry of every five years in accordance with the procedure prescribed by the Act and these rules as if the proposed amendment were new master plan.

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

313 For short, “1959 Rules” 182 Provided further that the Authority may, without following the aforesaid procedure, but with the prior approval of the Central Government, permit on receipt of an application in this behalf, any change in the size of public parks and recreation grounds not exceeding ten per cent either way of the approved size.”

Rule 13 being supplemental to Rule 12 mandated that every

amendment of the master plan by the Authority was subject to

approval by the Central Government. The relevant extract thereof

reads thus:

“13. Approval of Central Government to Amendment of Master Plan.— (1) Amendment of the master plan shall not take effect unless approved by the Central Government. ....

Indeed, Rules 12 and 13 came to be deleted [vide Delhi

Development (Master Plan and Zonal Development Plan)

Amendment Rules, 1966314]. However, they are useful in

understanding the intent of the law-making bodies as well as to

ascertain the relationship between the Central Government and

Authority in planning activities. A collective reading of Rules 12

and 13 signifies that the Authority is subservient to the 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 a conjoint reading of the aforesaid Rules

is that in the entire scheme (Act and Rules), there is no restriction

– be it of minimum time period after which amendments could be

314 For short, “1966 Rules” 183 made or of seeking approvals from a superior body – on the Central

Government’s power of modification of the master plan/zonal plan.

Therefore, in order to determine the validity of a modification, it is

of utmost importance to ascertain the entity which has initiated

the modification exercise. We may consider this in the light of facts

of this case at a later stage, after delineating the law clearly.

207. The permissibility of modifications in the master plan/zonal

plan includes modifications in any part of these plans. There is no

restriction on the Central Government on the scope of

modifications. For a 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 1957 Act.

Modification: Meaning

208. The Master Plan, as noted above, was notified in 2007 to

guide the direction of development in the National Capital Territory

of Delhi till 2021. In the section comprising of “Major Highlights

of the Plan”, planned development of new areas and rejuvenation

of old areas are stated to be parallel aims. Point 18 reads thus:

“18. The Master Plan incorporates several innovations for the development of the National Capital. A critical reform has been envisaged in the prevailing land policy and facilitating

184 public - private partnerships. Together with planned development of new areas, a major focus has been on incentivising the recycling of old, dilapidated areas for their rejuvenation. The Plan contemplates a mechanism for the restructuring of the city based on mass transport. The Perspective Plans of physical infrastructure prepared by the concerned service agencies should help in better coordination and augmentation of the services.” (emphasis supplied)

Point 19 indicates that the Master Plan, once freezed, is not going

to stagnate the scope of development until the completion of

duration and changing requirements of the society may call for a

modification/review of the plan. It reads thus:

“19. The Master Plan envisages vision and policy guidelines for the perspective period upto 2021. It is proposed that the Plan be reviewed at five yearly intervals to keep pace with the fast changing requirements of the society.” (emphasis supplied)

The vision of the Master Plan, as specified in the plan, succinctly

notes that blending heritage with modern patterns of development

is a key feature. It reads thus;

“VISION

3. Vision-2021 is to make Delhi a global metropolis and a world-class city, where all the people would be engaged in productive work with a better quality of life, living in a sustainable environment. This will, amongst other things, necessitate planning and action to meet the challenge of population growth and in-migration into Delhi; provision of adequate housing, particularly for the weaker sections of the society; addressing the problems of small enterprises, particularly in the unorganized informal sector; dealing with the issue of slums, up-gradation of old and dilapidated areas of the city; provision of adequate infrastructure services; conservation of the environment; preservation of Delhi's heritage and blending it with the new and complex modern patterns of development; and doing all this within a framework of sustainable development, public 185 private and community participation and a spirit of ownership and a sense of belonging among its citizens.” (emphasis supplied)

What emerges from the above extracts of Master Plan is that the

Master Plan presents a dynamic vision of development which duly

acknowledges the need for suitable modifications in light of

emergent circumstances. The dynamic nature of the plan is further

reflected in Chapter 18 titled “Plan Review and Monitoring” which

specifies that phased monitoring of the functioning of the plan is

essential to take care of emerging socio-economic changes. It

further notes that periodic review of 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 to improve the quality of life in the city. Properly phased monitoring makes the plan responsive to the emerging socio- economic forces. Implementation of the plan can be effective only when monitored and reviewed at appropriate periods.”

Resultantly, such review can take place by way of suitable

modifications in the plan. This is succinctly reflected in point 18.5

which reads thus:

“18.5 REVIEW Timely review of the plan with the help of above groups and monitoring unit shall ensure mid-term correction and modifications if needed in the Plan Policies as well as the implementation procedures, which will help to re- adjust the events in the plan that could not be foreseen or anticipated during the Plan Formulation. If the plan is timely monitored and appropriately reviewed, the policies 186 can be moulded in the right direction according to the present needs of the people of the city.” (emphasis supplied)

The above point is a reinforcement of the view that the plans can

undergo mid-course corrections and modifications to mould the

policies in the right direction for the proper development of Delhi.

The character of modifications and permissibility thereof as

envisaged in the master plan can be articulated amongst others

as:

first, modification to be necessary for meeting the present needs of the people including for better governance and proper development of Delhi;

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

The aforesaid points are not exhaustive. For, the Master Plan lays

down framework for development of the zones in prescribed

manner. It does not operate as a controlling force upon the

statutory powers of modification of the Central Government or

Authority within their respective mandates under the 1957 Act.

The idea of organic development in consonance with the evolving

needs of time is explicitly reflected in the Master Plan. The basic

principle behind the Master Plan is to tread the path of

development in the specified manner including with a purposeful

187 transformation perceived by the policy makers. The primary

consideration before the Central Government while undertaking a

modification exercise in Section 11A(2) is public interest. A pro-

development enactment cannot be read in a pedantic manner, as

the underlying purpose of all laws is to act in aid of the larger goal

of provisioning for improving quality of life of the citizens and

meaningful governance.

209. To understand further, it would be relevant to note that

development and planning enactments often carve out a

distinction between major and minor modifications. In Manohar

Joshi315, this Court analysed the provisions of Maharashtra

Regional and Town Planning Act, 1966316 and observed that a

distinction exists between major and minor modifications under

that Act. It observed thus:

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

315 (supra at 95) 316 For short, “the 1966 Act” 188 It then observed that when modifications are permissible subject

to not changing the character of the plan, it would be a case of

minor modification. 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) Where a modification of any part of or any proposal made in, a final development plan is of such a nature that it will not change the character of such development plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction.

....

....

59. As seen from this section, the minor modification under Section 37(1) has to be such that it will not change the character of the development plan. The section indicates that for setting the procedure under Section 37 into motion, the Planning Authority has to firstly form an opinion that the proposed modification will not change the character of the development plan. Such an opinion has to be formed by the Planning Authority meaning the general body of the Municipal Corporation, since this function is not permitted to be delegated to anybody else under Section 152 of the Act. Thereafter the Planning Authority has to publish a notice in the Official Gazette inviting the objections and suggestions from the public with respect to the proposed modification. It is also required to give a notice to all the persons affected by the proposed modification.

(emphasis supplied)

189 The Court then considered “modifications of a substantial nature”

and procedure in that regard stipulated in Sections 22A and 29 of

the 1966 Act and observed thus:

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

(a) If a plot is admeasuring more than 0.4 ha (i.e. 4000 sq

m) in the Municipal Corporation area or an A class municipal area a reduction of more than 50% would be considered as a substantial modification. In B and C class municipal areas such a plot has to be of 1 ha;

(b) Secondly, under clause (b) all changes which result in the aggregate to a reduction of any public amenity by more than ten per cent of the area provided in the planning unit are considered a substantial change;

(c) Where there is an actually existing site reserved for a public amenity, except for marginal area up to two hundred square metres required for essential public amenities or utility services their reduction will be a substantial modification;

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

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

(f) Alternation in the floor space index beyond ten per cent will be a substantial modification.” (emphasis supplied)

210. The exposition in Manohar Joshi317 does reveal that town

planning legislations contemplate various levels of modifications.

317 (supra at 95) 190 Depending on the nature of modification, minor or substantial,

separate procedure is prescribed under the 1966 Act. A notable

takeaway from the aforesaid analysis is that even substantial

modification, per se, is not an out-of-bounds of executive action as

long as the applicable law permits such modification. Unlike the

1966 Act applicable to Maharashtra, the 1957 Act does not

expressly use the expression “substantial modification”. However,

Section 11A provides for a similar scheme of minor and major

modification. Under the scheme of the 1957 Act read with Master

Plan, minor modifications would refer to changes within a zone

demarcated as per the master plan; and major modifications may

involve substantial modifications such as changing the zone itself

from one category to another or altering the territorial expanse of

a zone. Section 22A of the 1966 Act considers a variation of ten

percent in the area allocated to a particular zone as a substantial

variation. We reproduce the relevant extract thus:

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

211. In Machavarapu Srinivasa Rao & Anr. v. Vijayawada,

Guntur, Tenali, Mangalagiri Urban Development Authority &

191 Ors.318, this Court considered the Andhra Pradesh Urban Areas

(Development) Act, 1975 and found a similar distinction between

minor and substantial modifications and observed that the

Development Authority did not possess the power to effect

substantial modifications to the plan, however, the State

Government possessed that power. In para 20, it noted thus:

“20. An analysis of the abovenoted provisions shows that once the master plan or the zonal development plan is approved by the State Government, no one including the State Government/Development Authority can use land for any purpose other than the one specified therein. There is no provision in the Act under which the Development Authority can sanction construction of a building, etc. or use of land for a purpose other than the one specified in the master plan/zonal development plan. The power vested in the Development Authority to make modification in the development plan is also not unlimited. It cannot make important alterations in the character of the plan. Such modification can be made only by the State Government and that too after following the procedure prescribed under Section 12(3).”

212. Bearing in mind the underlying principles in aforementioned

expositions, it may be safely held that sub-Section (1) of Section

11A of the 1957 Act contemplates minor modifications by the

Authority as it prohibits changing the character of the plan.

Whereas, sub-Section (2) contemplates both minor as well as

substantial modifications of the plan in accordance with the

procedure prescribed therefor.

318 (2011) 12 SCC 154 192

213. Ordinarily, the sanctity of the plan has to be preserved whilst

exercising the power of modification or else it would no longer

qualify as a modification. In Black’s Law Dictionary, 11th 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 Lakhanpal319, this Court provided

meaning 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 vary without radical transformation.” Similarly the word "modification" means "the action of making changes in an object without altering its essential nature or character; the state of being thus 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 qualitatively alter the original identity of the plan. Indeed, any

modification entails a deviation from the prevailing plan, but it has

been permitted by the legislature as long as it coalesces with the

spirit of the original plan. The expression “or otherwise” occurring

in sub-Section (2) needs to be so construed. The deviation must

319 (supra at 162) 193 not be of a nature that virtually leads to the replacement of the

original plan. The distinctiveness, fundamental identity and basic

features of the plan must be preserved in a modification exercise

as far as possible. The real test is that the broad vision of

development envisaged in the plan stays intact. The modification

may become necessary to infuse improvement, suitability or

effectiveness into the governing plan, due to supervening

circumstances including to address the dynamic factors and

contemporary overlapping needs of the public and effective

governance. That, however, in a country governed by Rule of Law

must be exercised in public interest and meet the tests of

reasonableness, non-arbitrariness and fairness. It is not an

untrammelled power in that sense. This hallowed promise is so

cardinal to the sustenance of Rule of Law that the legislature

hardly considers it essential to make it express in every enactment.

216. We may now see whether change in land use forms part of

permissible modifications under the 1957 Act. As noted above,

master plan and zonal plans contain a land use plan. Rule 4 of

the 1959 Rules titled “Form and contents of Master Plan”

specifically provides that a land use plan forms part of the master

plan. Since Section 11A categorically allows modifications in both

194 these documents, it naturally signifies that such modifications can

relate to land-use as well, apart from modifications in other

elements of the plan.

217. It is well established by now that existence of power and

exercise of power are two different things. Having found that the

change in land use, in principle, is permissible, we now proceed to

examine the changes effected in the present case and the

procedure adopted therefor.

218. The proposal for change in land use of seven plots involved

in the Project was initiated by the Deputy Land and Development

Officer, MoHUA, Government of India i.e., by the Central

Government. Thus, we note at the very outset that modifications

in the present case are carried out under sub-Section (2) of Section

11A of the 1957 Act and therefore, any reliance upon the

stipulations of sub-Section (1) to control the power of modification

is wholly misplaced and out of purview of our examination. As per

the proposal, the details of plots and corresponding changes

therein can be enumerated thus:

A. Plot No.1 is located on Church road near DTC Central Secretariat Bus Terminal, New Delhi. As per Master Plan, the Land Use of the Site is under

195 Transportation (Bus Terminal/Parking). The proposed land use of the site is Government Office.

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

C. Plot No.3 is located on Dr. Rajendra Prasad Road and houses National Archives. As per Master Plan, the land use of the site is under Public and Semi-Public facilities. The proposed land use of the site is Government Office and Recreational (District Park).

D. Plot No.4 is located on Dr. Rajendra Prasad Road and is occupied by Indira Gandhi National Centre for Art and Culture. As per Master Plan, the land use of the site is under Public and Semi-Public Facilities (SC). The proposed land use of the site is under Government Office and Recreational (District Park).

E. Plot No.5 is located between Man Singh Road, Ashoka Road and India Gate Hexagon in a Triangular formation. As Master Plan, the land use of the site is under Public and Semi-Public facilities. The proposed land use of the site is Government Office.

F. Plot No.6 is located on Maulana Azad Road and Consists of VP house, Vigyan Bhavan and National Museum. As per Master Plan, the land use of the site is under Public and Semi-Public facilities (SC). The proposed land use of the site is under Government Office.

196 G. Plot No.7 is located on Dara Shikoh Marg. As per Master Plan 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 and part of Planning Zone C. As per Master Plan the land use of the site is under Public and Semi-Public Facilities. The proposed land use of the site is recreational (District Park).

219. In order to comprehensively understand the impact of the

proposed changes, it is necessary to pitch deeper and examine the

extent of changes proportionally. This must be understood in light

of the entire master plan which has been divided into 15 zones

(divisions) of the National Capital Territory of Delhi. The said zones

along with their respective area can be delineated thus:

ZONE NAME OF ZONE AREA (Ha.) A Old City 1159 B City Extn. (Karol Bagh) 2304 C Civil Line 3959 D New Delhi 6855 E Trans Yamuna 8797 F South Delhi-I 11958 G West Delhi-I 11865 H North West Delhi-I 5677 J South Delhi-II 15178 K K-I West Delhi-II 5782 K-II Dwarka 6408 L West Delhi-III 22840 M North West Delhi-II 5073 N North West Delhi-III 13975 O River Yamuna / River Front 8070

197 P P-I Narela 9866 P-II North Delhi 8534

The Land Use Plan identifies 27 land use zones across the capital

territory which have further been clubbed into 9 categories

namely:

i. Residential;

ii. Commercial;

iii. Industrial;

iv. Recreational;

v. 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-D320 (plots no. 2-7) and Zone-C321 (plot no. 8) out of 15 zones

and broadly touches upon three land use categories – recreational,

government and public & semi-public facilities. The total area of

Zone D is 6855 Ha. which roughly translates to 16938 .71 acres

320 New Delhi Zone 321 Civil Line Zone 198 (using the equivalent of 1 Ha. = 2.471 acres), and the total area

under consideration in this project is 86.1 acres.

220. Therefore, it is incomprehensible as to how the proposed

changes could be termed as substantial enough to alter the basic

identity of the plan or for that matter, of the zone concerned. The

effect is negligible in contrast to the expanse of the zone. The word

“plan” represents a wider area and is not represented by one or

two zones of the city much less individual plots therein. The case

on hand is certainly not one of a wholesale changes so as to be

called as drastically or radically altering the existing plan. The

determination of the true character of a development plan is to be

judged on the basis of facts and circumstances of each case. The

public interest in holistic and orderly development cannot be

undermined by taking a pedantic view of the phrase “character of

the plan”. By its very nature, character of the plan manifests its

identity as a whole and not portion of one of the elements therein.

Even from the perspective of land allocated for a particular usage,

the proposed plan does not affect the extent of land allocated for

different uses in any material sense and overall nature and extent

of respective usages in the central vista area remains the same, as

already discussed above. Moreover, the proposed changes are

199 essentially in the nature of swapping of the uses of the concerned

Government plots. It does not pertain to any private ownership

plot at all.

221. Pertinently, Plot no. 8, which is a part of Zone C, is not a part

of the central vista region. Furthermore, it is crucial to note that

there is a marked distinction between central vista region and

central vista precincts. The central vista region, wherein all seven

plots except plot no. 8 fall, refers to the entire regional expanse as

per the master plan. Within the central vista region, there is a

listed space (for heritage purpose) referred to as “Central Vista

Precincts at Rajpath”. The demarcation is clear and central vista

precincts at Rajpath have been accorded a special status in the list

of heritage buildings/precincts. Out of the subject plots involved

in the project, plot no. 3 (National Museum) is the only plot which

forms part of the central vista precincts. The remaining plots,

despite being a part of the central vista region, are not a part of the

listed heritage precincts.

222. Further, it is common knowledge that plot no. 2 admeasuring

10.5 acres (for proposed Parliament House) earlier shown as for

Recreational use (District Park) is inaccessible to the public for the

last 44 years (since 1976), due to logistical and security reasons. 200 Post Parliament attack in 2001, the security arrangements have

been intensified and public access to this space has been

restricted. It is quite evident that despite the official earmarked

purpose, the objective of recreation and availability of the said

space as a public park is not being fulfilled. Thus, it is important

to underscore that the change in land use of this plot from

recreational use to Government use is not going to result in any

actual reduction of area available for public usage. Nevertheless,

to compensate this change, the proposed change in land use

provides for recreational space at three different locations in the

neighbourhood. In Zone D, three pockets of 1.88 acres each at

plots no. 3, 4 and 6 have been earmarked for recreational use.

Additionally, land use of 3.5 acres of space at plot no. 8 is being

altered from Public and Semi-Public Facilities to Recreational

(District Park) use. The underlying idea is to provision recreational

spaces in a diversified manner at locations where public can

actually access such spaces meaningfully. Recreational use entails

use of public space by common public for amusement, relaxation

and leisure. The proposed recreational spaces, therefore, not only

fully compensate for the loss of recreational space of plot No. 2,

but also provide for accessible recreational spaces elsewhere in the

201 surrounding vicinity, thereby ensuring meaningful public access

to green spaces.

223. Upon further examination, it can be noted that the proposed

plan seeks to change the land use of certain Government plots in

the central vista area in order to use them for similar purposes –

Government offices, public and semi-public use and recreation.

The underlying nature 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 usage of space for a

legitimate public purpose including for official use, something

which is antithetical to private use. Such public use could be

effected in multiple ways. No doubt, Government use and semi-

public use may overlap in certain circumstances. For, Government

use is one of the facets of public use itself. It will depend upon

specific facts and circumstances of the case. It was in this spirit

that S.O. 3348(E) dated 17.10.2017 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 this overall pattern of

use is preserved with broadly the same character.

202

224. Notably, the challenge to above noted S.O. dated 17.10.2017

needs to be negatived for the reasons already mentioned while

testing the validity of notifications regarding change in land use,

as being repetitive. In any case, the challenge to this S.O. is being

raised by the petitioners after the expiry of three years, that too

after it was relied upon by the respondents in their reply. This

particular challenge must fall on the ground of laches itself. It is

not the case of the petitioners that the impugned notification was

beyond access for the period of three years and they could not have

assailed it at any prior stage. Merely because the notification has

now come handy in favour of the responding party, the petitioners

cannot jump upon it and multiply the scope of challenge without

any sound basis. Strictly speaking, it is not in consonance with

the principle of good faith. In Prabhakar v. Joint Director,

Sericulture Department and Anr.322, the Court rightly noted

thus:

“38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay.

322 (2015) 15 SCC 1 203 Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".”

A substantive writ petition is entertained by the Court in the light

of certain specific facts and circumstances and it is not an

occasion for the petitioners to call upon the Court to reopen remote

government decision taken in the past. Even on merits, as already

noted above, the challenge deserves to be negatived. For, the

procedure followed meets statutory requirements and does not

warrant judicial interference.

225. The total area of plots being subjected to change in land use

is 86.1 acres, out of which 61.6 acres of area involves change from

public and semi-public use to Government use. In light of the

above, as actual usage of spaces earmarked for PSP Use, the

proposed changes cannot be treated as a substantial deviation

from the nature of land use in the region. Furthermore, use of plot

no. 7 presently earmarked for Government office alone would be

converted to residential in place of Government office to provide

official quarters – which again is public premises (Government

owned). The remaining proposed changes are largely in tune with

the usage generally followed in this region. Taking any view of the

matter, the exercise of power by the Central Government is in

conformity with the purport of sub-Section (2) of Section 11A, 204 enabling “modification” as no change of a substantial or radical

character is envisaged as far as land use is concerned.

226. The petitioners have raised concerns regarding the change in

standards of population density. However, the test of alteration in

standard of population density is applicable to modifications

initiated by the Authority under sub-Section (1). The same falls

outside our consideration. Further, the subject area caters to a

floating footfall of employees and visitors who may visit for

attending to their responsibilities/work in the Government offices

situated herein. Except plot no. 7, no residential usage is being

contemplated in this area and the petitioners have not

demonstrated any special circumstance which points towards the

fact that standards of population density would stand immensely

altered as a result of the proposed plan. We need not dilate further

on this aspect.

227. Before parting with this point, we may gainfully advert to

Point 8.2 titled “Optimum Utilization of Government Land” of

Master Plan which reads thus:

“8.2. OPTIMUM UTILIZATION OF GOVERNMENT LAND Government of India, Govt. of NCTD and local bodies are occupying prime land in Delhi for their offices. Most of the offices have been setup immediately after Independence. Large areas are underutilized and have completed their economic life. Due to downsizing of government 205 employment and need for generation of resources by the ministries, optimum utilization of existing government offices / land could be achieved by the following measures:

i) Intensive utilization of existing government offices/land.

ii) Utilization of Surplus land by the government for residential development.

iii) Utilization of 10% of total FAR for commercial uses to make the restructuring process financially feasible. This shall be subject to approval of land owning agency and concerned local body.” (emphasis supplied)

What emerges from the aforesaid extract of Master Plan is that the

master plan itself envisages intensive utilization of existing

Government land and utilization of surplus land by the

Government as essential components of optimum utilization of

Government land resource. The public trust doctrine obligates the

Government to use the available resources prudently and to

subserve the common good. The proposed use is not to bestow

largesse on private persons but for assets creation and for public

use. Naturally, if such optimum utilization requires changing the

land use of Government lands, that must follow in public interest.

Further, the afore-quoted extract of the master plan is in line with

the objectives stated by the L&DO while proposing change in land

use and more so there is no basis to label the proposed changes

as contravening the master plan. On a comprehensive

understanding of the plan, we are of the view that the proposed 206 changes fully gel with the vision of the master plan including the

zonal plan. Modernity, technological advancements and protection

of historicity are subjects of parallel concern today. They can

neither overstep or dispense each other nor prohibit each other’s

advance. This is the shared spirit of the master plan and the

subject project.

228. We now advert to the final assail regarding the procedure

followed while effecting the change in land use. Our enquiry at this

point would traverse through the procedure to be followed for

effecting the subject changes – before decision making process

begins, during the process of decision making until the final

notification to bring the changes in force.

PROCEDURE BEFORE DECISION

229. Before the decision, a proposal was floated by the land-

owning agency (Central Government) on 4.12.2019 for change in

land use regarding eight plots located within the Central Vista

area. The same was considered by the Technical Committee in a

meeting attended by the Chief Town Planner (TCPO), Chief

Architect (NDMC), Town Planner (MCD), representatives from all

stakeholders like DDA, DUAC, Delhi Metro Rail Corporation, Delhi 207 Police, Fire Department, Delhi Electric Supply Undertaking etc.

We deem it apposite to highlight the composition 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

i. 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)

208 x. Representative of Fire Department xi. Director PPR”

The Technical Committee recommended the proposal with the

following observation:

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

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

(ii) The heritage buildings shall be dealt as per the relevant heritage provisions.” (emphasis supplied)

After the approval of the Technical Committee, the proposal was

considered by the Authority in its meeting dated 11.12.2019. The

purpose of this meeting was to consider the issuance of public

notice inviting objections from general public and commence the

decision-making process. The meeting was attended by the

following members of the Authority in accordance with Section 3

of the Act:

“CHAIRMAN

Shri Anil Baijal Lt. Governor, Delhi

VICE CHAIRMAN

Shri Tarun kapoor

209 MEMBERS

1. Shri K Vinayak Rao Finance Member, DDA

2. Shri Shailendra Sharma Engineer Member, DDA

3. Shri Vijender Gupta, MLA & Leader of Opposition in the Legislative 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 Delhi Municipal Corporation

8. Smt. Bhawna Malik, Municipal Councillor, East Delhi Municipal Corporation

SECRETARY

Shri D Sarkar, Commissioner-cum-Secretary, DDA

SPECIAL INVITEES

1. Dr. Rajesh Kumar, Principal Commissioner (Housing, CWG and 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 Municipal Corporation

5. Shri Amit Kataria, Land & Development Officer, MoHUA, Govt. Of India

LT. GOVERNOR’S SECRETARIAT

1. Shri Vijay Kumar 210 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

of business 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. Public notice inviting objections/suggestions under Section 11 A of DD Act, 1957 be issued.”

PROCEDURE DURING DECISION-MAKING PROCESS AND PUBLIC HEARING UNDER SECTION 11A

230. As a result of the approval accorded by the Authority, a public

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 Delhi Development Authority / Central Government proposes to make 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 Section 11-A of DD Act, 1957, is hereby published for public information. Any person having any objection/suggestion with respect to the proposed modification may send the objection/suggestion in writing to the Commissioner-cum- Secretary, Delhi Development Authority, ‘B’ Block, Vikas Sadan, New Delhi-110023 within a period of thirty (30) days from the date of this Public Notice. The person making the objection or suggestion should also give his/her name and

211 address in addition to telephone No./contact number and e- mail ID which should be legible.

Proposed Modification:

S.No. Location Area Land use as per Land use Boundaries (in acres) MPD 2021/ZDP Changed to 2001

1. Plot No.1 15 MPD-2021 – Govt. Office North:

Located on Transportation Church Road Church (Bus South: Road near Terminal/Parking) Rashtrapati DTC ZDP Zone-D, 2001 Bhavan and Central Part-Recreational North Block Secretariat (Neighbourhood East: Part of Bus Play Area) Part- North Block Terminal, Transportation West: New Delhi (Bus Rashtrapathi Terminal/Parking) Bhavan

2. Plot No.2 9.5 Recreational Parliament North: Red Opposite (District Park) House Cross Road to South: Parliament Raisina Road house West: Parliament of India

3. Plot No.3 7.7 Public and Semi Govt. Office North: Dr. Located on Public Facilities (5.8 acres) Rajendra south of and Prasad Road Dr. Recreational South: Rajendra (District Green area Prasad Park) (1.88 and Rajpath Road and acres) East: houses Janpath National West: Archives Shastri Bhavan

4. Plot No.4 24.7 Public and Semi Govt. Office North: Dr. Located on Public Facilities (22.82 Rajendra South of (SC) acres) and Prasad Road Dr. Recreational South: Rajendra (District Green area Prasad Park) (1.88 and Rajpath Road and acres) East: East of Man Singh Janpath Road West: Janpath

5. Plot No.5 4.5 Public and Semi Govt. Office North: Located on Public Facilities Ashoka Road east of (SC) South: Man Singh Green area Road and and Rajpath 212 south of East: Ashoka C-Hexagon Road West: Man Singh Road

6. Plot No.6 24.7 Public and Semi Govt. Office North: Green Located on Public Facilities (22.82 area and North of (SC) acres) and Rajpath Maulana Recreational South: Azad Road (District Maulana and East Park) (1.88 Azad Road of Janpath acres) East: Man Singh Road West: Janpath 7. Plot No.7 15 MPD-2021 – Residential North: South Located on Government office Block North of South: Dara Dalhausi ZDP Zone-D-2001 Shikoh Road Road near Recreational East: Part of South (Neighbourhood South Block Block Play Area) West: Rashtrapati Bhavan

8. Plot No.8 3.9 Land Use as per Recreational North: CGHS Located on ZDP of Zone-C- (District Dispensary Lucknow 2021 Park) South: Road near Public and Semi Government Timarpur Public Facilities Land (Falls in East: Zone-C) Lucknow Road West: Government Land

The text/Plan indicating the proposed modifications shall be 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 also available 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 a revised proposal to

the Authority in respect of plot No. 1 (out of the eight plots), vide

213 communication dated 31.1.2020. Be that as it may, the issuance

of public notice by the Authority commences the statutory process

under Section 11A of the 1957 Act. In the present case, the

respondents have adopted the procedure analogous to one under

Chapter-III of the 1959 Rules along with Section 11A for effecting

the subject modifications in the master 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. We

reproduce sub-Section (3) for easy reference:

“(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.” (emphasis supplied)

It mandates publication of a notice in prescribed form and manner

under the rules made in that regard in order to invite objections

and suggestions from any person with respect to the proposed

modifications. It further enjoins the Authority to “consider” all

objections and suggestions that may be received.

214 233. Incontrovertibly, no rules have been framed in furtherance of

Section-11A(3) to prescribe the form and manner of notice.

However, on 28.5.1966, the Ministry of Works Housing & Urban

Development (as it then was) released a notification to amend the

1959 Rules in exercise of powers under Section-56 of the 1957 Act.

By way of this notification, Chapter V titled “Modification to the

Master Plan and the Zonal Development Plan” was inserted in the

1959 Rules. Rule 16 was inserted with the headnote “Form of

notice under Section 11A(3)” and it reads as:

“16. The notice referred to in sub-section (3) of section 11A of the Act shall be in Form B appended to these rules.”

Form B appended with the notification clearly specifies that public

notice shall be issued under the signature of “Secretary, Delhi

Development Authority”. Furthermore, form and manner of notice

can also be determined as per Section 44 which is the general

provision in this behalf. Section 44 specifies the manner of

publishing the public notice and requires that “every public notice

given under this Act shall be in writing under the signature of the

secretary to the Authority”. It reads thus:

“44. Public notice how to be made known. — Every public notice given under this Act shall be in writing over the signature of the secretary to the Authority and shall be widely made known in the locality to be affected thereby by affixing copies thereof in conspicuous public places within

215 the said locality, or by publishing the same by beat of drum or by advertisement in local newspaper or by any two or more of these means, and by any other means that the secretary may think fit.”

No challenge has been set up qua any of these statutory provisions.

Further, to supplement this provision, on 24.9.2012, a gazette

notification was published by the Ministry of Urban Development

(as it then was) whereby the Central Government directed that “the

power exercisable by it under sub-section 11A of the said Act for the

purpose of review/modification of Master Plan for Delhi, 2021 shall

also be exercisable by the Vice-Chairman, Delhi Development

Authority in so far as it relates to issuing public notice for inviting

objections and suggestions”. Furthermore, Rule 6 of the 1959

Rules also requires the public notice to be published by the

Authority in accordance with Section 44. It reads thus:

“6. Mode of Publication of Public Notice. - The Authority shall 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 in the Official Gazette.”

234. In this backdrop, the notice under sub-Section (3) was issued

by the Authority on 21.12.2019 under the signature of the Deputy

Secretary with a chart disclosing the proposed modifications with

locations of all the plots to be subjected to change in land use and

the specific change in usage. This was, indisputably, at the behest

216 of and for and on behalf of the Central Government to take the

modifications proposed to its logical end. The notice called upon

to send all objections/suggestions to the specified authority within

a period of 30 days i.e., till 20.1.2020. The stated public notice was

in conformity with the prescribed format for such notice as in the

1959 Rules (post 1966 amendment); and the DDA was well within

its powers to issue such notice for inviting objections as per

amended rules. The petitioners’ submission that the Authority had

no jurisdiction to issue the notice is ex facie tenuous.

235. The notice further stated that the plan indicating the

proposed modifications would be available for inspection at the

Office of Deputy Director (MP), DDA as well as on the official

website of the Authority. We are impelled to re-extract the relevant

part of public notice dated 21.12.2019 thus:

“The text/Plan indicating the proposed modifications shall be 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 also available on DDAs website i.e. www.dda.org.in.”

The availability of proposal for inspection by general public is in

line with the mandate of Rule 5 of 1959 Rules. That Rule ensures

general public participation and opportunity to raise objections, if

217 any, after carefully studying the proposed changes. Relevant

extract of Rule 5 reads thus:

“5. Public Notice regarding preparation of Master Plan.— (1) As soon as may be after the draft master plan has been prepared, the Authority shall publish a public notice stating that -

(a) the draft Master Plan has been prepared and may be inspected by any person at such time and place may be specified in those notice;

(b) suggestions and objections in writing, if any, in respect of the draft master plan may be filed by any person with the secretary of the Authority within 90 days from the date of first publication of the notice.”

236. The public notice was followed by receipt of 1292 objections

and constitution of the BoEH for considering the said objections.

The appointment of BoEH was in accordance with Rule 8 of the

1959 Rules which states thus:

“8. Appointment of Board for enquiry and hearing.—(1) The Authority shall, for hearing and considering any representation, objection and suggestion to the draft master plan, appoint a Board consisting of not less than 3 and not more than 5 members of the Authority. Provided that such Board shall have powers to co-opt not more than 2 members from amongst the members of the Advisory Council.

(2) No business of the Board shall be transacted at any meeting unless at least three members are present from the beginning to the end of the hearing.” (emphasis supplied)

237. Intimation was sent to the objectors regarding the date of

hearing before the BoEH. In addition, paper publication was also

218 done on 5.2.2020, regarding the hearing scheduled on 6/7.2.2020

at the specified place and time. The public notice reads thus:

“DELHI DEVELOPMENT AUTHORITY PUBLIC NOTICE

Delhi Development Authority issued public notice vide Gazette notification S.O. 4587 (E) dated 21.12.2019 and also published in the newspapers for inviting objections/suggestions from the public regarding 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 within the stipulated time period of 30 days i.e. up to 19.1.2020, will be placed 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, Conference Hall, 8-Block, Ground Floor, Vikas Sadan, INA.

Any person who has filed objection/suggestion and wants to present his/her oral evidence in person before the Board, may come to the abovementioned venue on 06.02.2020 & 07.02.2020 to present his/her views, as per the proposed scheduled, which shall be available 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/SMS as per details provided in their representations.

In case any person who has filed objection/suggestion but does not find his/her name in the schedule or has not received any e-mail/SMS, may present his/her oral submission before the Board on the said date i.e. 07.02.2020 (Friday) from 1:00 P.M. to 1:30 P.M. All persons are requested to carry a valid Identity Proof.”

238. As notified to all concerned, the hearing was conducted in

accordance with Rule 9 for considering any suggestion/objection

by the general public. Rule 9 reads thus:

“9. Enquiry and hearing.— The secretary shall, after the expiry of the period allowed under these rules for making 219 objections, representations and suggestions fix a date or dates for hearing by the Board of any person, or local authority in connection with any objection, representation or suggestion made by such person or local authority in respect of the draft master plan and shall serve on the local authority or any person who may be allowed a personal hearing in connection with such representation, objection or suggestion to the draft master plan, a notice intimating the time, date and place of the hearing.

Provided that the Board may disallow personal hearing to any person, if it is of the opinion that the objection or suggestion made by such person in inconsequential, trivial or irrelevant.” (emphasis supplied)

After the hearing, the recommendations of BoEH were submitted

to the Authority in accordance with Rule 10 which reads thus:

“10. Report of Enquiry.— The Board shall after the conclusion of its enquiry, submit to the Authority a report of its recommendations.”

The BoEH took note of all the suggestions/objections of the

concerned representationist and after interacting with those in

attendance (42 objectors), made its recommendations as follows:

“i. Regarding proposal of change of land use of Plot No.1, it is recommended that the revised proposal for change of land use must be taken afresh under Section 11-A of DD Act, 1957.

ii. Among the respondents, majority of whom are Planners/Architects, there appears to be a feeling that authentic technical information on this iconic project of Centra Vista is not available in public domain, which is leading to avoidable misgivings. Board recommends that all concerned departments need to address this concern.

iii. Keeping in view the strong reservation of the respondents, it is suggested that impact assessment

220 studies on traffic, environment and heritage may be commissioned at the earliest.

iv. From the responses received during public hearing, it appears that the present project has not been referred to the Central Vista Committee, although in the past any such project has always been referred to the Central Vista Committee. Authority may like to take a view on this issue and make suitable recommendations to Government of India.” (emphasis supplied)

Needless to underscore that the role of BoEH is limited to

submitting its report to the Authority of its recommendations.

There is nothing in the Act and Rules mandating the BoEH to

record reasons or for accepting and rejecting the objections

received by it. As per the prescribed procedure, the decision in

that regard is that of the Authority. Notably, there is no statutory

requirement obligating Authority/Central Government to give

personal hearing to the objectors before taking final decision. The

competent authority, however, is obliged to take into account the

objections and the recommendations of BoEH before taking final

decision.

239. Accordingly, the recommendations of BoEH were considered

by a committee of the Authority comprising of Lt. Governor, expert

members from various agencies, elected representatives of the

Government as well as of the opposition, along with Special

Invitees from the MoHUA. This meeting held on 10.2.2020, was 221 organized in accordance with Rule 11 with the purpose of finalizing

the plan for the approval of the Central Government. Rule 11 reads

thus:

“11. Preparation of final draft Master Plan and its submission to Central Government.— The Authority shall, after considering the report of the Board and any other matter it thinks fit, finally prepare the master plan and submit it to the Central Government for its approval.”

The Authority in its meeting held on 10.2.2020, after due

deliberations, accorded approval to the proposal regarding change

in land use of plot nos. 2 to 8 only, on following terms. The

minutes of the meeting read thus:

“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 Special Invitee. She apprised the details 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 Lutyens and Herbert Baker had prepared an urban design plan for entire New Delhi in such a way that all the important Government offices would come along the Central Vista (Rajpath). However, by the year 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 the National Archives. She assured that the heritage buildings in the Central Vista shall be conserved.

c) She further informed that for this Project, the following measures are being taken up:

i. No trees shall be cut during the implementation of the project. However, 222 some trees may be transplanted for which techniques are available.

ii. Total tree cover shall increase with new plantation.

iii. 100% C&D waste shall be re-cycled and utilized within the project.

iv. All the green building features will be followed by making most efficient use of resources and adopting modern day construction technologies.

v. Rain Water Harvesting (RWH) structures and water conservation measures will be undertaken.

vi. Proposed development has been integrated with two metro stations in the Vista namely, Udyog Bhawan and Central Secretariat for commuting public/government employees through an underground shuttle.

vii. In the proposed scheme, the Central Government Ministries/Offices will be moved to the Central Vista thereby cutting down large scale travel across 47 Central Government Ministries/Offices’ Buildings spread in different parts of Delhi. The proposal, once implemented shall result in easing traffic flow in Lutyens’ Bunglow Zone (LBZ) and in the city. This will result in reduction of 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, were deliberated in the Authority meeting. Member Engineering, DDA-cum-Chairman or BoE&H explained that as has been clarified by JS, MoHUA, the proposed project addresses all issues raised by the public in a comprehensive manner. He informed that all objections and suggestions given by the public were duly considered by the BoE&H. Various objections and suggestions which were pertaining to L&DO and Planning Department of DDA were replied to by the representatives of these respective agencies and the details are available on the record. Based on the detailed deliberations, BoE&H has recommended for issuing public notice for plot no.1 and consideration

223 of allowing change of land 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 by almost 100 acres. This constitutes the following:

A National Bio-diversity Arboretum in 48.6 acres land on the western end of the President’s Estates is proposed to house 1,236 endangered species in 11 different phytological zones. This facility will be open to the researchers as well as to the public.

North and South Blocks which cover nearly 27 acres is proposed to be converted into National Museums showcasing India prior to and after 1857.

Nearly 25 acres of land on the Western Bank of River Yamuna is proposed to be developed as New India Garden with an iconic structure to commemorate 75 years of India’s independence.

ii. The project also proposes to develop/re-develop the Central Vista with proper public utilities, green spaces, water bodies, landscaping etc. whose total area will be more than the existing area as 5.6 acres from the existing buildings will be added to the greenspace. Further, plot no.8 located at Timarpur in Planning Zone-Chaving an area of 3.9 acres is also being added to green spaces of Delhi.

iii. The area of over 90 acres currently under Hutments will be properly planned and developed into organized urban spaces.

iv. All necessary approvals for buildings and the facilities will be taken from the competent authorities as and when required.

f) Vice Chairman, DDA apprised that a notification number SO 3348 (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 ‘Public and Semi Public

224 facilities’ (PSP) land use zones. Therefore, Authority is competent to allow Plot No.3,4,5, & 6 which are currently under PSP land use for housing ‘Central Government Offices’ with 1.88 acres each in the plot no.3, 4 and 6 earmarked as Recreational (District Park).

g) Additional Secretary (D), MoHUA and Member, Delhi Development Authority, explained that the Authority is competent to make the proposed modification in the Master Plan for the land uses as these will not alter the character of the Master Plan since they are in line with the Lutyen & Bakers’ plan of housing Government buildings in the Central Vista. Further, the proposal does not impact the extent of the land uses and the standards of population density as has been envisaged in the Master Plan for Delhi, (MPD) – 2021. Hence, Section 11(A) (1) or Delhi Development Act, 1957, empowers the Authority to make proposed changes under consideration. Vice- Chairman DDA further corroborated this and stated that only after being satisfied that the Authority is competent under 11(A)(1) of the Act, that the proposal has been considered and submitted for Authority’s approval.

Decision: After detailed deliberations, the proposal is approved as follows:

i. A public notice shall be issued for change of land use for plot number 01 from ‘Transportation’ (Bus Terminal/parking) and ‘Recreational’ to ‘Residential’ and to be processed under Section 11-A of DD Act 1957.

ii. With respect to plot Nos 02 to 07; the proposal of land use change of L&DO is approved. The proposal be submitted to MoHUA for approval/notification.

iii. Change of Land Use for plot No 8 is approved and the 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 Central

Government for its further consideration. Upon receipt of the

225 same, the Central Government processed the proposal and after

considering all aspects of the matter proceeded to notify the

modification of change in land 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 Central Government proposed to make in the Master Plan 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 published in the Gazette of India, Extraordinary, as Public Notice vide No. S.O. 4587(E) dated 21.12.2019 by the Delhi Development Authority in accordance with the provisions of Section 44 of the Delhi Development Act, 1957 (61 of 1957) inviting objections/suggestions as required by sub-section (3) of Section 11-A of the said Act, within thirty days from the date of the said notice;

2. Whereas, 1,292 objections/suggestions received with regard to the proposed modifications have been considered by the Board of Enquiry and Hearing, set up by the Delhi Development Authority and the proposed modifications were recommended in the meeting of Delhi Development Authority held on 10.02.2020.

3. Whereas, the Central Government have after carefully considering all aspects of the matter, have decided to modify the Master Plan for Delhi-2021 / Zonal Development Plan of Zone-D & Zone-C;

4. Now, therefore, in exercise of the powers conferred under Sub-section (2) of Section 11-A of the said Act, the Central Government hereby makes the following modifications in the said Master Plan for Delhi-2021 / Zonal Development Plan of Zone [sic]-D & Zone [sic]-C, with effect from the date of Publication of this Notification in the Gazette of India.

226 Modifications:

The land use of the following area of land falling in Zone-D and Zone-C is changed as per description listed below:

S.No. Location Area Land use as per MPD Land use Boundaries (in 2021/ZDP Zone D Changed to acres) 2001

1. Plot No.2 9.5 Recreational Government North: Red Opposite to (District Park) (Parliament Cross Road Parliament House) South:

House West: Raisina Road Parliament of India

2. Plot No.3 7.7 Public and Semi Govt. Office North: Dr. Located on Public Facilities (5.88 acres) Rajendra south of Dr. and Prasad Rajendra Recreational Road Prasad Road (District Park) South: and houses (1.88 acres) Green area National and Rajpath Archives East: Janpath West: Shastri Bhavan

3. Plot No.4 24.7 Public and Semi Govt. Office North: Dr. Located on Public Facilities (SC) (22.82 acres) Rajendra South of Dr. and Prasad Rajendra Recreational Road Prasad Road (District Park) South: and East of (1.88 acres) Green area Janpath and Rajpath East: Man Singh Road West: Janpath

4. Plot No.5 4.5 Public and Semi Govt. Office North: Located on Public Facilities (SC) Ashoka East of Man Road Singh Road South: and South of Green area Ashoka and Rajpath Road East: C-Hexagon West: Man Singh Road

5. Plot No.6 24.7 Public and Semi Govt. Office North: Located on Public Facilities (SC) (22.82 acres) Green area North of and and Rajpath 227 Maulana Recreational South: Azad Road (District Park) Maulana and East of (1.88 acres) Azad Road Janpath East: Man Singh Road West: Janpath

6. Plot No.7 15 MPD-2021 – Residential North: Located on Government office South Block North of ZDP Zone-D-2001 South: Dara Dalhausi Recreational Shikoh Road near (Neighborhood Play Road South Block Area) East: Part of South Block West: Rashtrapati Bhavan

7. Plot No.8 3.9 Public and Semi Recreational North: Located on Public Facilities (District Park) CGHS Lucknow Dispensary Road near South: Timarpur Government Land East: Lucknow Road West: Government Land

[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 final

decision is taken by the Central Government and it is so notified

in exercise of its powers under sub-Section (2) of Section 11A of

the 1957 Act. Being a case of minor modification and as we have

held, it does not alter the character of the plan in question

including it does not relate to the extent of the land-uses or the

standards of population density. The Authority itself could have 228 given effect to its approval in terms of Section 11A(1) of the 1957

Act, as it was competent to do so in that regard and report to the

Central Government within thirty days of the date on which such

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 21.12.2019 and was of national importance, the Authority

opted to forward the proposal along with its approval to the Central

Government for taking appropriate decision. This step taken by

the Authority is ascribable to Section 11A(6) of the 1957 Act, which

predicates that if any question arises whether the modifications

proposed to be made by the Authority are likely to effect important

alterations in the character of the plan or whether they relate to

the extent of land-uses or the standards of population density, it

shall be referred to the Central Government whose decision

thereon shall be final. The Central Government then took the

proposal forward and acted upon it by issue of notification which

it did in exercise of powers under Section 11A(2) of the 1957 Act.

For that, there was no need for the Central Government to issue

public notice itself or to constitute its own BoEH to grant hearing

to the objectors. As that process had already been completed by

229 the Authority and the Central Government had acted upon the

proposal received by it from the Authority, in exercise of powers

vested in it ascribable to Section 11A(6) and notified its decision

thereon under Section 11A(2) in due course. Under the legislative

scheme predicated in Section 11A for modification of plans, the

Central Government has the complete authority including to

disapprove the decision of the Authority taken under sub-Section

(1) and to issue directions under sub-Section (6). The Central

Government has ample power to take a decision on all aspects

covered by the subject of modifications of plans in terms of Section

11A. Further, its decision under sub-Section (6) is final.

Pertinently, Section 11A is an enabling provision giving limited

power to the Authority and complete power to the Central

Government in respect of modifications of the plans. The

procedure adopted in the present case, considering the totality of

the scope of Section 11A of the Act would be legitimate exercise of

power by the Central Government including under sub-Section (2)

of Section 11A of the 1957 Act. By no standards, it can be labelled

as having been taken in violation thereof or failure of the

authorities to follow the prescribed procedure under Section 11A

of the Act. There is substantial compliance of the prescribed

230 procedure and the final decision is the consequence or outcome of

involvement of all the planning authorities referred to under the

1957 Act. These steps taken by the State authorities and the

Central Government in collaboration and after due consideration

of all the objections cannot be undermined much less labelled as

an illegality. It is not a case of exercise of power by an Authority

not competent to do so. At best, it can be said that because of the

nature of the project of national importance, a guarded procedure

had been adopted by the Authorities concerned albeit within the

framework of Section 11A of the Act. Suffice it to observe that the

final decision of the Central Government as manifested in the

notification dated 20.3.2020 clinchingly points towards

substantial compliance of the procedure prescribed for effecting

such modifications under the 1957 Act and the 1959 Rules framed

thereunder.

240. The land-owning agency had simultaneously referred the

proposal to CVC, who in turn, had already accorded its approval

thereto on 9.3.2020 in its 4th meeting. It noted thus:

“After detailed deliberation the Committee decided to accord approval in principle as the process of change of land use had been taken up by the competent authorities. Accordingly, the final approval of change of land use may be communicated to the Committee.”

231 For clarity of record, we note that CVC was engaged on another

occasion as well when the proposal for obtaining “no objection” to

the Parliament project was sent for its consideration on

11.04.2020. The said “no objection” was granted by CVC on

23.4.2020 in its 5th meeting. We shall be dealing with the

challenge even to this “no objection” of CVC a little later.

241. Before proceeding further, we deem it pertinent to note that

the petitioners’ argument that the Parliament was kept out of the

purview of consultative exercise is unfounded on facts. In fact, the

proposal regarding the new Parliament Building was placed before

the GPC at the inception stage. The GPC, of which the Speaker of

the Lok Sabha is the Chairman, is constituted by Members of

Parliament being representatives of major national political parties

having presence in the Parliament. The committee had met on

19.3.2020 to witness the presentation given by the case proponent

through the consultant wherein the members interacted and gave

diverse suggestions to be incorporated in the proposal. Detailed

presentations explaining the concept as well as the need for the

Project were made for all the members. The members made

suggestions/comments relating to design, central hall, interiors,

access to public, auditorium, lounge rooms, rainwater harvesting

232 etc. The members were also apprised of various formal

developments relating to the Project. Thereafter, budgetary

estimate and concept plan were also placed before the Lok Sabha

Secretariat and approved by it, as already noted above. We need

not dilate on this aspect any further.

242. Reverting to the issue under consideration, the procedure

prescribed under Chapter III of the 1959 Rules is applicable to

preparation of new master plan/zonal plan. The expression “draft

master plan”, used throughout in this chapter, makes it amply

clear and leaves nothing to be imagined. The distinction between

the two is clear. Strictly speaking, Chapter III does not apply to

procedure for modification of plans under Section 11A. In the

absence of Chapter III, only Section 11A would determine the

procedure for modification of master plan and the procedure under

Section 11A is less cumbersome and merely envisages publication

of notice and inviting objections for being considered before taking

a final decision. It does not prescribe personal hearing to the

objectors as such, much less by the Authority or the Central

Government, as the case may be. Whereas, even Rule 9 provisions

for hearing before BoEH only. Despite this clear position of law,

the respondents followed the extensive procedure analogous to

233 under Chapter III of the 1959 Rules even for the subject

modifications. It was certainly not a case of preparation of new

master plan or a draft master plan. The compliance with building

byelaws shall be dealt later.

243. Notably, on 7.4.2015, a letter captioned as “DDA’s proposal

for amendment to MPD-2021 and change of land use cases-reg.”

was addressed by MoHUA to Vice Chairman, DDA requiring the

Authority to provide separate information on a set of parameters

while sending any proposal for amendment to the master plan. The

subject proposal contained all the information as per the aforesaid

letter and is found to be in accordance thereof. No procedural

infirmity is found on this count. The aforesaid letter is reproduced

for ready reference: -

“To Dated 7th April, 2015 The Vice Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi

Subject: DDA’s proposal for amendment to MPD-2021 and change of land use cases-reg.

Sir,

DDA has been sending proposals for amendment to MPD- 2021 and change of land use cases for final notification under Section 11-A of DD Act 1957. It is being observed that DDA has been sending proposals without self contained note/proposals and certain necessary documents such as recommendations of Board of Enquiry & Hearing, Site Map,

234 details of enquiry, details of any ongoing Court Cases etc. are also found missing. As a result, it takes considerable time for examining these cases and extracting the relevant details from the documents annexed to such proposals.

2. Therefore, in order to minimize the time taken for disposal of such cases, DDA is directed to send the proposals containing a self contained note/proposal alongwith the justification which should be complete in all respects. While sending the proposals following information under separate headings should definitely be provided:

(i) Whether the land is government or private and who is the land owning agency?

(ii) On whose request the change of land use case or modification to MPD-2021 has been initiated?

(iii) Whether a responsible officer from DDA (give details) was deputed for inspection of site and a copy of inspection report be provided.

(iv) What is the public purpose proposed to be served by modification of MPD and/or change of land use?

(v) What will be impact of proposal on the ZDP/MPD and whether the changes are in consonance with the approved plans and policies?

(vi) What will be proposal’s impact/implications on general public eg. Law & Order etc.?

(vii) Whether any court cases are ongoing on the land mentioned in proposal? Full details be attached.

3. It is, therefore, requested that the proposals should contain above stated information otherwise the proposals would not be considered.

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 by

the project proponent was not in accord with the stated

requirements.

235

244. The procedure followed by the respondents in the present

case for change in land use can be delineated in the following chart

furnished by the respondents:

PROCEDURE FOLLOWED FOR CHANGE IN LAND USE S.NO. REQUIREMENT RELEVANT DATE PROVISION

1. Proposal by L&DO, Ministry of Housing & Section-11A, DD 04.12.2019 Urban Affairs, Government of India Act, 1957

2. Meeting and consideration of proposal by Section-5A, DD 05.12.2019 Technical Committee of DDA Act, 1957

3. DDA meeting chaired by Lt. Governor, Section-5, DD Act, 11.12.2019 Delhi 1957

4. Inviting public objections and Section-11A, DD 21.12.2019 suggestions by DDA Act, 1957

5. Consideration of objections and Section-11A, DD 06.02.2020 suggestions by Board of Enquiry & Act, 1957 Hearing

6. Recommendations by Board of Enquiry Rule 10, 1959 07.02.2020 and Hearing Rules

7. Consideration of recommendations by Rule 11, DD Act, 10.02.2020 DDA 1957

8. Recommendation to Central Government Rule 11, 1959 10.02.2020 for notifying the changes Rules

9. Notification of change in land use in Section-11A, DD 20.03.2020 Official Gazette Act, 1957

245. According to the petitioners, the entire process followed is

replete with undue haste, particularly in calling for

personal/public hearing. However, the facts reveal otherwise.

Taking legitimate steps/actions swiftly and as per the timelines

because of the nature of the proposal cannot be termed as having

been done in a haste. Concededly, no allegation of mala fide in

fact has been set out nor the facts of this case commend us to hold 236 it as a mala fide in law. Further contrary to the petitioner’s

argument that the window of objections/suggestions was closed

before the period of 30 days specified in the notice, upon enquiry

of the original records supplied by the respondents, we found that

despite 20.1.2020 being the last date for receiving

objections/suggestions, the same were received even beyond the

period of 30 days. The last recorded objection was received on

21.1.2020 and entered into diary on 22.1.2020. Each one of these

objections/suggestions were duly proceeded as if filed in time.

246. We may now examine the legal position as regards the

requirement of personal/public hearing. As noticed earlier, sub-

Section (3) merely requires the Authority “to consider” the

objections and suggestions received from the public. The

legislature has not thought it fit to specify any particular manner

of consideration in the governing provision of modification. No

strict proposition can be laid down in an enquiry of this nature

when the legislature has consciously chosen not to provision for

personal/public hearing during consideration of the proposal.

But only in the form of written suggestions/objections. The

petitioners have stated that personal/public hearing is usually

given in such cases.

237

247. We wonder whether such a requirement can be read in this

provision by way of necessary implication. The test of necessary

implication usually comes into the picture when there is a danger

that failure to so infer would necessarily render the provision

otiose. It is not a tool used to substitute an opinion out of

convenience or out of an uncontrolled exercise of the power of the

judicial pen, rather, it is used to preserve an enactment from

reaching an unconscionable conclusion. In Superintendent and

Remembrancer of Legal Affairs, West Bengal v. Corporation

of Calcutta323, a nine-Judge bench of this Court examined the

usage of the interpretative tool of necessary implication and

observed thus:

“(51)… In Sri Venkata Seetaramanjaneya Rice and Oil Mills and others v. State of Andhra Pradesh, [1964] 7 SCR 456 this Court held that an inference of necessary implication binding the State may be drawn if "the conclusion that the State is not bound by the specific provision of a given statute would hamper the working of the statute, or would lead to the anomalous position that the statute may lose its efficacy". …”

It further observed:

“(57) … If the application of the Act leads to some absurdity, that may be a ground for holding that the State is excluded from its operation by necessary implication. …”

323 AIR 1967 SC 997 238

248. To read a strict and absolute requirement of personal/public

hearing in a particular form and manner in the present case would

be to rewrite the provisions altogether. That is uncalled for. The

power of judicial review cannot be converted into a power to

legislate and the law as regards this proposition is settled. No

doubt, had it been a case of preparation of new master plan,

Chapter III of the 1959 Rules explicitly denotes the need for

hearing the objections and thus mandatory. That is not the

requirement for modification of the plan in exercise of powers

under 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 public

consultation in accordance with the quantum and quality of

changes being proposed strictly on a case-to-case basis. The

legislature has entrusted this duty on the executing body so as to

enable it to mould the manner of consideration as per the

prevailing ground realities of a project. The word “consider” is a

phrase mandating the competent authority to look into the

objections received post public notice, and then take appropriate

decision. The designated authority may determine the manner of

consideration in accordance with the nature of changes being

239 proposed. Convention is the true guide in such matters. And in

the present case, admittedly personal/public hearing was provided

in tune with the convention. But the Court need not elevate the

convention to a statutory requirement of affording personal

hearing to every objection.

250. In Cynamide India324, this Court has had an occasion to

examine the purport of expression “such enquiry by the

government as it thinks fit” in reference to the Drug (Prices

Control) Order. It went on to observe that such a provision is only

an enabling provision to facilitate the subordinate legislating body

to obtain relevant information from any source and it is not

intended to vest any right in anybody other than the subordinate

legislating body. That process is an enquiry leading to a legislative

activity, and no implications of natural justice can be read into it

unless it is a statutory condition to afford personal hearing.

251. A priori, we are of the view that no uniform formula can be

evolved by the Court on its own in matters like these where larger

aspects of town planning and infrastructure are involved, and

concerns of geography, economy, social conditions, time-frame etc.

pose variable challenges across the national spectrum. It is

324 (supra at 17) 240 precisely in the same spirit that even in the process of preparation

of new master plan, the proviso to Rule 9 of the 1959 Rules

empowers the BoEH to deny personal hearing to any person if it is

considered to be irrelevant or trivial in light of the objection raised

by that person. It reads thus:

“9. Enquiry and hearing -

...

...

Provided that the Board may disallow personal hearing to any person, if it is of the opinion that the objection or suggestion made by such person in inconsequential, trivial or irrelevant.”

252. An argument has been advanced by the petitioners that Rules

8 and 9 of Chapter III of the 1959 Rules, which provide for

appointment of BoEH and personal hearing are part of the

mandatory procedure of modification. We have already made it

clear that Chapter III of the 1959 Rules applies to preparation of

“new master plan” and not to modifications under Section 11A.

253. The stated Rules have been framed in furtherance of Section

56(1) and are divided into five chapters. Chapter III relates to the

“Procedure for Preparation of Master Plan” and Chapter V, which

was inserted vide 1966 amendment of the 1959 Rules, relates to

“Modification to the Master Plan and the Zonal Development Plan”.

The subject of modifications, therefore, is dealt under a separate

chapter i.e., Chapter V. In the Act also, preparation of master plan 241 is dealt under Chapter III and modifications are dealt under

Chapter IIIA which was added later by Act 56 of 1963 by way of an

amendment.

254. Thus, the legislature has demarcated the subjects of

preparation and modification in two separate chapters, both in the

Act as well as the Rules. And there is a clear distinction between

the two in terms of procedure. More importantly, the provisions

regarding modification were added later by way of amendments in

1963 (in the Act) and 1966 (in the Rules) and we cannot lose sight

of the fact that the legislature was well aware of the pre-existing

requirements of personal/public hearing in case of preparation of

new plan. Despite such knowledge, it chose not to extend the same

standard of public consultation in the process of modification and

confined itself to the expression “shall consider all objections and

suggestions” as used in Section 11A. No other manner of

consultation is prescribed in the 1959 Rules.

255. It has been stated by the petitioners that even the act of

preparation of a new master plan is done by way of a modification

and therefore, the requirement of personal/public hearing would

be implicit at the time of modification as well. As discussed, it is

beyond doubt that the Act as well as the Rules treat these two 242 subjects in separate compartments and it is also beyond doubt

that the objective of such separate treatment is to ensure that the

process of modification is not subjected to the same rigours as the

process of preparing a new plan. Moreover, the language deployed

in the notification S.O. 141 dated 7.2.2007 for the new Master Plan

and that deployed in S.O. 1192(E) dated 20.3.2020 (the impugned

notification for modification) is also of guiding value to answer the

argument under consideration. While preparing the new master

plan, the expression used is “extensive modifications”, whereas

while notifying the present changes (which we have held as minor

in nature and not substantive or radical changes to the master

plan or for that matter to the zonal plan), the expression used is

simpliciter “modification”. The usage of the word “extensive”

signifies that despite being modification, the preparation of new

master plan proposes extensive changes as it is meant to replace

the previous plan once and for all. Accordingly, the scrutiny is

higher and is placed in a separate chapter. The same cannot be

said about a modification under Section 11A unless it is shown to

be substantial or radical which is not the case here.

256. A case of replacement of the original plan with a new one and

that of modification in an existing plan cannot be placed on the

243 same footing. This carefully crafted scheme cannot be turned on

its head by accepting the submission under consideration.

257. The counsel for the petitioner, owing to inadvertence or lack

of research, had built up his case by placing reliance on the deleted

Rules 12 and 13 of the unamended 1959 Rules to support their

argument as regards the requirement of personal/public hearing

in case of modification. We are pained to note that the said rules

were deleted by 1966 amendment dated 28.5.1966 and no reliance

whatsoever can be placed on the said rules in the present subject

matter. Rather, the deletion is indicative of legislative intent of

doing away with the dispensation provided thereunder for the

purposes of modification. The relevant extract of the said

notification reads thus:

“2. In the Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959,—

(a) rules 12 and 13 shall be omitted;

...

...”

258. The petitioners have placed reliance upon a decision of the

High Court of Delhi on Section-11A in Friends of Rajouri Garden

Environment & Anr. v. South Delhi Municipal Corporation325.

The judgment merely explains the intent behind the provision and

325 2020 SCCOnline Del 458 (paras 30 and 33) 244 lays out the requirement of inviting objections and suggestions

from “any person”, particularly locally affected persons. In this

case, the said objections and suggestions have been invited.

Furthermore, that case involved construction activity of a nature

different from the use zone of the area without effecting the change

in land use prior thereto. The reliance, therefore, is of no

significance in this case. Similarly, the decisions relied upon by

the petitioners in support of the argument under consideration

including Syed Hasan Rasul Numa326 does not take the matter

any further. Indeed, decision in Syed Hasan Rasul Numa327

pertains to the 1957 Act. It was, however, a case of objection(s)

taken by the concerned person having gone unnoticed by the BoEH

and also the Authority. The Court found as of fact that the

objection taken by the appellants was not listed in the agenda of

the meeting convened for consideration and any justification given

by the Authority cannot validate the final decision which otherwise

suffered from the vice of principles of natural justice qua the

appellants. Further, in that case the appellants were directly

affected by the proposed modification.