Justice Sanjiv Khanna dissented with the majority verdict of the Supreme Court giving a go-ahead to the Central Vista project on the question of the manner in which changes in land use were made. His dissenting judgment deals with the issue of inadequate consultation and public participation.
Khanna also conveys a concern for the procedure adopted by the authorities in giving clearances to the project, stating that it is not in keeping with the scope and scale of the changes that the plan envisages.
“At a deeper and conceptual level, the question relates to the government’s duty to consult and the scope and ambit of the citizen’s right to participate in the quasi-legislative exercise. Connected with the two issues is the third question of scope and amplitude of the power of judicial review,” writes Khanna at the very outset.
He states that he has written a separate judgment since he has reservations with the majority verdict penned by Justice A.M. Khanwilkar 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.
However, on the aspects of the notice inviting bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order, Khanna says he agrees with the majority decision.
Noting the historic and iconic nature of the Central Vista, Khanna says questions would arise whether a mere change in the land use would be sufficient or the authorities were required to draw out a special conservation plan. He says these aspects have not been examined by the sanctioning and approving authorities.
“Suffice would be to notice and record merit in the contention raised by the petitioners that mere change in land use of the six plots in the Central Vista would not be sufficient without specific amendments and modifications of the Master Plan of Delhi,” Khanna writes.
He finds a flaw in the government's contention that the modifications to the Master Plan of Delhi would not result in change in character of the plan, saying 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.
However, while refraining from going into the merits of the project, Khanna says the core issue in the present case is whether or not the authorities have performed their duty to consult the public, followed the prescribed procedure and the authority competent acted to modify or amend in terms of the Development Act and the Development Rules.
Khanna writes that sufficient notice was not given for the public hearing that was fixed on February 6 and 7, 2020, since the public notice dated February 3, 2020, was published on February 5, 2020.
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He states that the minutes of the March 9, 2020, meeting of the Central Vista Committee in which the project was given in-principle approval does not show fair and independent application of mind.
With regard to the meeting of the committee held on April 23, 2020, held through videoconferencing in which no objection was granted to the new Parliament building, Khanna says that the minutes do not mention any details of the material considered and the discussion held. Noting that the non-governmental members of the committee were not present in the meeting, he writes 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.
Khanna writes that given the nature and magnitude of the entire re-development project, undoubtedly prior approvals and permissions from the Heritage Conservation Committee were required and necessary. “Prior approval/no-objection certificate from the Heritage Conservation Committee was mandatory and necessary before notifying the ‘land use’ changes of the six plots within the Central Vista, provided the plots/area were falling with the ‘Listed Buildings’,” he says.