A three-judge bench of the Supreme Court on Tuesday, in a 2:1 verdict, upheld the change of land use in Lutyens’ Delhi and the environmental clearance, giving the go-ahead to the re-development for the Central Vista. However, Justice Sanjiv Khanna penned a dissenting judgment, where he disagreed with the opinion of Justices A. M. Khanwilkar and Dinesh Maheshwari…reports Sumit Saxena.
Penning a 179-page separate dissenting judgment, Justice Khanna said he has reservations with the opinion expressed by Justice Khanwilkar, on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee (HCC) and the order passed by the Expert Appraisal Committee (EAC).
On the aspect of HCC, Justice Khanna said the Centre could not have notified the modified the land use changes, without following the procedure and without prior approval/permission from the committee. “The local body i.e. NDMC should have approached the Heritage Conservation Committee for clarification/confirmation and proceed on their advice,” he added.
On the aspect of EAC grant of EC for the project, Justice Khanna said proceedings before the EAC are not adversarial in nature. EAC acts both as a fair investigator and an independent objective adjudicator when deciding whether or not to grant environmental clearance.
“There must be application of mind which is reflected when reasons justifying the conclusion are recorded. Mere reproduction of the contesting stands is not sufficient. On the contrary it would reflect mechanical grant without application of mind,” he added.
In the view of access to information regarding the Central Vista Project, Justice Khanna said the citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections.
Stressing on public consultation, Justice Khanna added that the Centre has not placed on record even a single document or minutes to show that the objections and suggestions were considered by it. “Albeit they place reliance on the gazette notification of 20th March, 2020 which does not specifically talk about considerations of objections and suggestions but states ‘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 for Zone D and Zone C,” he said.
Justice Khanna noted that while the Centre claimed that modifications to the Master Plan of Delhi would not result in change in character of the plan, a reading of the notice inviting tenders published by the CPWD inviting design and planning firms indicates that the proposed project does envisage extensive change to the landscape.
The court noted that there was violation of the Section 45 as public notice of hearing fixed on February 6 and 7, 2020 was issued by way of public notice dated February 3, 2020 published on February 5, 2020. “SMS and email were issued at the last moment. Lack of reasonable time, therefore, prevented the persons who had filed objections and given suggestions to present and appear orally state their point of view,” said Justice Khanna.
Citing minutes of March 9 meeting of Central Vista Committee last year, he added that the minutes do not show fair and independent application of mind. “The committee had decided to accord approval in principle “as the process for change of land use had been taken up by the competent authorities” and then records “accordingly, the final approval for change of land use may be communicated”, he said.
Justice Khanna observed that the contention that the meeting was a premeditated effort to ensure approval without the presence and participation of representatives of professional bodies is apparent and hardly needs any argument.
However, on the aspects of notice inviting bids, award of consultancy and the approval by the Delhi Urban Arts Commission, as a standalone and independent order, Justice Khanna agreed with the final conclusions in the judgment authored by Justice Khanwilkar.