January 6, 2021 4:03:41 am
Rejecting arguments of petitioners who “enthusiastically called upon us to venture into territories that are way beyond the contemplated powers of a constitutional court”, the Supreme Court Tuesday gave its go-ahead to the government’s Central Vista redevelopment plan, upholding modifications in land use for the project and environmental clearance recommendations.
The project in the heart of New Delhi envisages construction of a new Parliament complex, buildings for central ministries, a new enclave for the Vice President, a new office and residence for the Prime Minister, among others.
In a 2-1 ruling while disposing of a clutch of petitions which had raised objections, Justices A M Khanwilkar and Dinesh Maheshwari, in their majority decision, said: “We hold that there is no infirmity in the grant of: (a) “No Objection” by the Central Vista Committee (CVC); (b) “Approval” by the Delhi Urban Art Commission (DUAC) as per the DUAC Act, 1973; and (c) “Prior approval” by the Heritage Conservation Committee (HCC) under clause 1.12 of the Building Byelaws for Delhi, 2016.”
The two judges said “the exercise of power by the Central Government under… the DDA (Delhi Development Authority) Act, 1957 is just and proper and thus the modifications regarding change in land use of plot Nos. 2 to 8 in the Master Plan of Delhi, 2021/Zonal Development Plan for Zone-D and Zone-C vide impugned notification dated 20.3.2020 stands confirmed”.
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They also upheld the Environmental Clearance (EC) recommendation for the project by the Expert Appraisal Committee (EAC) and grant thereof by the Ministry of Environment and Forests (MoEF) as “just, proper and in accordance with law”.
Justice Sanjiv Khanna, the third judge on the bench who had a dissenting view, too underlined that “if we consider and examine the merits of the pleas, we would be directly encroaching their jurisdiction and exceeding the power of judicial review”.
Noting that the respondents (the authorities) “without doubt do verily believe that redevelopment of Central Vista and new Parliament building is an imperative necessity… Central Vista requires a makeover,” Justice Khanna cited procedural illegalities to set aside the final notification of modification/change of land use as well as the environmental clearance. He directed that the process be done afresh.
Justice Khanna, in his order, said: “Heritage Conservation Committee would decide all contentions in accordance with the Unified Building Bye Laws and the Master Plan of Delhi. Heritage Conservation Committee would be at liberty to also undertake the public participation exercise if it feels appropriate and necessary.”
The majority decision of Justices Khanwilkar and Maheshwari noted: “We are compelled to wonder if we, in the absence of a legal mandate, can dictate the government to desist from spending money on one project and instead use it for something else, or if we can ask the government to run their offices only from areas decided by this Court, or if we can question the wisdom of the government in focusing on a particular direction of development. We are equally compelled to wonder if we can jump to put a full stop on execution of policy matters in the first instance without a demonstration of irreparable loss or urgent necessity, or if we can guide the government on moral or ethical matters without any legal basis. In light of the settled law, we should be loath to venture into these areas.”
“We need to say this because in the recent past, the route of public/social interest litigation is being increasingly invoked to call upon the Court to examine pure concerns of policy and sorts of generalised grievances against the system,” they said.
“No doubt, the Courts are repositories of immense public trust and the fact that some public interest actions have generated commendable results is noteworthy, but it is equally important to realise that Courts operate within the boundaries defined by the Constitution. We cannot be called upon to govern. For, we have no wherewithal or prowess and expertise in that regard,” they said.
The “constitutionally envisaged system of ‘checks and balances’ has been completely misconstrued and misapplied in this case… Whereas the former finds a manifestation in the concept of judicial review, the latter is derived from the well enshrined principle of separation of powers. The political issues including regarding development policies of the Government of the day must be debated in Parliament, to which it is accountable. The role of Court is limited to examining the constitutionality including legality of the policy and Government actions,” they said.
The “right to development”, they said, is “a basic human right and no organ of the State is expected to become an impediment in the process of development as long as the government proceeds in accordance with law”.
The two judges said “as long as there is fair play in Government action, it is no one’s concern to assail a commercial transaction by levelling vague and unsubstantiated allegations”.
“Judicial time is not meant for undertaking a roving enquiry or to adjudicate upon unsubstantiated flaws or shortcoming in policy matters of Government of the day and politicise the same to appease the dissenting group of citizens — be it in the guise of civil society or a political outfit,” they said.
The petitioners, the majority ruling stated, “have not been able to demonstrate any case of denial of natural justice. For, the prescribed procedure, both by statute and convention, seems to have substantially been followed”.
Overruling objections to the modifications made to the Delhi Master Plan and Zonal Development Plan, the two judges said 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”.
They rejected the argument that the CVC had not acted in “legitimate expectations of the public” while looking into the tender conditions. They said it was not the case of the petitioners that no consultation had taken place and the stand “is ripe with ambiguity”.
Regarding clearance by the Heritage Conservation Committee (HCC) for the new Parliament building, the judges pointed out that “minutes of the February 10, 2020 DDA meeting wherein the project proposal was approved for final notification reveal that Shri Kamran Rizvi, Additional Secretary, MOHUA (Ministry of Housing and Urban Affairs)… who is also the designated Chairman of the Heritage Conservation Committee (HCC), was present… and had unreservedly joined in the approval of the HCC to the proposed change in land use”.
Other members of the HCC had also participated in the meeting of the Technical Committee in December, 2019, they said.
Despite this “prior approval”, the judges said, a formal written “prior permission” of the HCC would still be essential, “before commencing the development work on listed heritage buildings/sites and that stage is yet to arrive”.
In matters of balancing between competing environmental and development concerns, the judges said that the court has to be “project-specific”.
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