[Central Vista] Why Justice Sanjiv Khanna dissented from the majority judgment?

The Supreme Court on Tuesday upheld the decision of the Central government to redevelop the Central Vista area of Lutyen’s Delhi, a project involving mammoth costs and one which is likely to change the face of Central Delhi..However, the judgment by three-judge Bench of the top court was not unanimous with Justice Sanjiv Khanna penning a dissenting judgment disagreeing with the other two judges on the Bench.The third paragraph in Justice Khanna’s dissenting opinion gave a broad picture of why and on what aspects he disagreed with the majority..“Since I have reservations with the opinion expressed by my esteemed brother A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee, I have penned down a separate dissenting judgment,” it said..However, he went on to add that “on the aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order, I respectfully agree with the final conclusions in the judgment authored by respected brother Justice AM Khanwilkar.”.Below are the seven grounds on which Justice Khanna dissented from the majority judgment. .Justice Khanna ruled that the Delhi Development Act (Act) and Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959 prescribe an elaborate procedure for preparation and modifications to be made to Master Plan and Zonal development plans in Delhi.These, the Court noted, can be found in sections 7 to 11A of the Act and Rules 4, 8, 9 and 10 of the Development Rules..As per the same, every local authority within whose limit any land, as per the plan, is situated is to be given a reasonable opportunity to make representation. Only on considering all representations, suggestions and objections, the Delhi Development Authority, can prepare a final plan and submit it to the Central government for its approval.Rule 4 of the Development Rules elucidates the form and contents of the draft Master Plan to be made public to invite objections, suggestions and representations. As per the same, draft plan is to consist of such maps, diagrams, charts, reports, and other written matter of explanatory or descriptive nature..These were absent in the present case, Justice Khanna said.Mere uploading of the gazette notification giving the present and the proposed land use with plot numbers will not be sufficient, he ruled.There should have been an intelligible disclosure of the proposed redevelopment which would enable public to have an informed voice so that public participation is fruitful and constructive and not merely a mechanical exercise or formality.“Intelligible and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections,” Justice Khanna said..It was, therefore, necessary for the respondents to inform and put in public domain the redevelopment plan, layouts, etc. with justification and explanatory memorandum relating to the need and necessity, with studies and reports, the dissenting judgment held. .Another aspect noted by Justice Khanna was that the project involved a complete redevelopment of the Central Vista area and the impact of the changes envisaged would not be “minor”.While the Central government claimed that modifications to the Master Plan of Delhi for the purpose of redeveloping Central Vista would not result in change in character of the plan, Justice Khanna did not agree..“A reading of the notice inviting tenders published by the Central Public Works Department inviting design and planning firms for the 'Development/ Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi' indicates that the proposed project does envisage extensive change to the landscape,” he said..This he opined would mean that mere change in the land use would not be sufficient and a special conservation plan under paragraph 10.5 of the Master Plan was needed..Once it is established that there are important alterations/changes to the Master Plan, then it is the Central government which is the competent authority to make such alterations as per sub-section (2) of Section 11A of the Act. If the modifications are minor, then it is the DDA that is the competent authority as per sub-section 1 of Section 11A.In case of modifications covered by sub-section (2) to Section 11-A, it is automatically the Central Government that has to considers the objections and suggestions and thereafter notify the proposed modification in entirety or in part..Justice Khanna noted that in the instant case, the Central government did accept this position when it issued the notification dated March 20, 2020, approving the proposal stating that the Ministry of Housing and Urban Affairs, in the exercise of powers conferred under sub-section (2) to Section 11- A, had made the modifications in the Master Plan of Delhi and Zonal Development Plan.However, the judge also noted that the procedure that was followed was one applicable to modifications under sub-section (1) to Section 11-A and not sub-section (2)..This discrepancy and the “fatal flow to follow the procedure” was attempted to be addressed in the written note submitted to the Court wherein it was stated that the modifications were covered by Section 11-A(2) and not Section 11-A(1) of the Act. However, the written submissions also pleaded that the notification may also be considered to have been issued under sub-section (1) to Section 11-A as the present land use does not impinge upon the conditionalities of the sub-section which have been dealt with independently. Interestingly, a different version was given in the list of dates wherein it was stated that the Land & Development Officer (L&DO) applied its mind to the objections and suggestions on February 6 and that the L&DO and the Central government are one and the same. Justice Khanna, however, noted that the public hearing was slated on February 6 and February 7. Thus, he asked how L&DO could apply his mind even before the public hearing was over. .“It would be hypothetical and incongruous to accept that L&DO had applied its mind to the objections and suggestions even before the public hearing, and therefore, the court should assume that the Central Government had considered the objections and suggestions. Final decision must be conscientiously and objectively taken by the competent authority post the hearing. This plea must be rejected, as the public hearing was slated on 6th and 7th of February 2020,” the dissenting judgment said..Justice Khanna also adverted to Section 45 of the Act which mandates that where any notice, order or document issued or made under the Act or any rule, regulation made thereunder requires anything to be done for which no time is fixed under the Act, the notice, order or document shall specify a reasonable time for doing so..In the instant case, there was a 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,” he ruled. .The dissenting judgment also ruled that Central Vista Committee did not apply its mind to the proposal and its decision of March 9, 2020, to accord permission to the proposal was pre-meditated.“Reading of the aforesaid minutes does 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”. Member representing Indian Institute of Architects had wanted detailed facts on the matter. His request was ignored,” Justice Khanna noted..Opinion and advise of the Central Vista Committee is certainly of great value and importance and their advice has been uniformly taken and followed for any redevelopment/changes in the Central Vista, he added..“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. This was notwithstanding that the project in question is extremely significant and of great importance for the Central Vista Committee,” the judgment said about a second meeting of the Committee which was held on April 23..One of the aspects discussed at length by Justice Khanna was regarding the absence of approval by the Heritage Conservation CommitteeThe Unified Building Bye-laws of Delhi, 2016, issued by the Authority under Section 57 of the Development Act, vide paragraph 2.3.3 refers to need for prior approval/no objections from external agencies including Heritage Conservation Committee when it comes to heritage sites or buildings..By a notification dated October 1, 2009, a list of 147 heritage sites, including heritage buildings, heritage precincts and listed natural feature areas prepared by the Chairperson, New Delhi Municipal Council (NDMC) on the advice of the Heritage Conservation Committee, was published. This included the Parliament House, National Archives, North Block, South Block, as well as the Central Vista precincts which were specifically graded as Grade-I buildings..Several bars and restrictions apply with respect to these buildings. Whether such restrictions would kick in when it comes to the present project is something which the Heritage Conservation Committee has to decide, Justice Khanna said..“Neither this Court nor government including local bodies can answer these questions. Central Government could not have notified the modified the land use changes, without following the procedure and without prior approval/permission from the Heritage Conservation Committee. Further, the local body is expressly interdicted from issuing building permits in respect of the listed heritage buildings/precincts. The local body i.e. NDMC should have approached the Heritage Conservation Committee for clarification/confirmation and proceed on their advice,” the judgment said..Another important ground on which Justice Khanna’s dissenting judgment was based was the invalidity of the order passed by Expert Appraisal Committee recommending Environmental Clearance for the project.The order passed by EAC on April 22 was mechanical without any application of mind, he said.“What is of concern is lack of discussion, reasons or even the conclusion or finding on the aspect of slicing or inclusion. 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,” the judgment noted.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, he added..[Read Dissenting Judgment]