Dissenting judge laments lack of public consultation

Justice Sanjiv Khanna delivered a dissenting judgment on Tuesday regarding approval of the Central Vista redevelopment plan, raising questions over whether the government fulfilled its duty to consult citizens and accord them the right to participate in a project of national importance.

Even as he agreed with the majority view of justices AM Khanwilkar and Dinesh Maheshwari on the issues of inviting the bid for consultant for the project, and award of tender, he differed on more fundamental aspects of change in land use, inadequate consultation and public participation.

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The arguments by the Centre did not convince Justice Khanna with respect to the authorities’ compliance with the laws in letter and spirit for a project, which he said, involved the right to participate and the duty to consult.

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“I have agreed on the aspect of notice inviting bid, award and order of Urban Commission with the opinion of respected Brother Justice Khanwilkar. However on the aspect of change of land use, I have held that the same was initiated as being bad in law,” he said.

While the majority held that it was not incumbent upon the government to give each and every detail of the project while issuing the public notice of the proposed modification in the master plan, Justice Khanna said that it was necessary for the authorities to put the redevelopment plan and layouts in public domain with explanatory memorandum relating to their need and necessity, as well as studies and reports.

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The judge highlighted that the Delhi Development Rules, 1959, required authorities to furnish summary of the proposals to enable the public to raise informed objections.

“To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would defeat the benefic objective of exercise of deliberation. Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements,” he said.

Justice Khanna maintained that mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance.

“In the present case, there is no contestation between transparency and the right to know on the one hand, and the concerns of privacy, confidentiality and national security on the other. Further, the Development Act and Development Rules demand and require openness and transparency, and embody without exception the right to know which is implicit in the right to participate and duty to consult,” he held.

He also noted that the sanctioning and approving authorities in the central government never examined whether the change in land use was sufficient for the redevelopment project or a conservation plan had to be put in place since the Central Vista area included heritage structures.

He also did not accept the majority view that the change in the land use was “minor” and emphasised that what is envisaged is complete redevelopment of the entire Central Vista, with site development infrastructure, landscape design, engineering design and services, mobility plan etc.

He faulted the government for issuing the March 20, 2020 notification on change in land use of the seven plots without obtaining prior permission from the Heritage Conservation Committee (HCC) because the Central Vista is declared as a heritage zone under the Unified Building Bye-laws as also under the master plan of Delhi.

Justice Khanna opted to quash the March 20 notification, preferring a review by the HCC regarding the change in land use and restrictions to apply.

He opted to set aside the environmental clearance for the new Parliament building, saying the recommendation by the Expert Appraisal Committee (EAC) on April 22, 2020 did not give reasons on whether clearance could be granted for the Parliament building alone without taking into account the entire redevelopment project. The majority judgment has held that there was no fault in giving a clearance to the new Parliament building after the government chose to segregate the two projects.