Rajiv Suri v. Delhi Development Authority & Ors.
Transferred Case (Civil) No. 230 of 2020 decided on 05.01.2021.
Bench: AM Khanwilkar, Dinesh Maheshwari, Sanjeev Khanna, JJ.
A batch of petitions were filed challenging the 20,000 crore Central Vista Project, which involves renovation and redevelopment of about 86 acres land in the heart of Lutyens Delhi. The project was challenged on several grounds such as violations of municipal law, change of land use, violations of environmental law, non-observance of Rule of Law, democratic due process, participatory democracy etc.
The court has reserved judgement on these petitions on Nov 5, 2020. The judgement has been delivered with 2:1 majority.
The majority judgement delivered by Justices AM Khanwilkar and Dinesh Maheshwari upheld the Centre’s proposed plan for Central Vista and probed into larger questions of jurisprudence apart from the technicalities.
Key jurisprudential observations from the majority opinion are as follows:
- Rule of Law and democratic due process.
The petitioners called upon the court to apply the scale of “democratic due process” for examining the validity of the procedures adopted by the respondents at various stages.
The court noted that the petitioners have not been able to demonstrate a case of deprivation of life or personal liberty of any individual on account of any of the impugned executive action. To invoke the due process argument it is necessary for the petitioners to demonstrate a real and direct impact or restriction on their core fundamental right due to the impugned executive action. A cause-effect relationship is essential.
The court held that here we are sitting in review of the process of quasi legislative action with no direct impact on personal liberty as such. The rule of law with regard to judicial interference in administrative and executive or policy matters is no more res integra. The judicial organ is not meant to impose the citizens or even its own version of good governance upon the Government in the name of Rule of Law in exercise of its power of judicial review.
The prescription of procedure to be deployed by the administration in taking their decisions in the ordinary course of business is not for the Court to decide where decisions are taken in tune with a duly enacted statutory scheme.
The sole concern of the Court is to look at the relevancy of the material relied upon to take a decision in order to see that the decision is not devoid of application of mind. In India “constitutional due process” prevails i.e., the process which is due under the constitutional scheme.
- Heightened Judicial Review
The petitioners had argued that the present case calls for heightened judicial review. On this point the Court held that there is absolutely no legal basis to “heighten” the judicial review by applying yardstick beyond the statutory scheme and particularly when the Government has accorded no special status to the project and has gone through the ordinary route of such development projects as per law. The role of Court is well defined and it must not leave the administration to grapple with multiplicity of alternate opinions by stepping into the shoes of policymakers. It is important for the Courts to not interfere merely because another option as in the perception of the aggrieved/ dissenting section of public would have been better option.
Few petitioners have deployed the principle of constitutionalism to justify the alteration of the standards in the project. Court noted that, Constitutionalism is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach up to the ultimate goal of constituionalization of governance and it cannot be deployed to present an alternative model of governance. It would be absurd and fraught with dangers of overreach and ambiguity if subjective principles of interpretation are applied by detaching them from the textual scheme of the Constitution, particularly when the textual scheme lays down an elaborate structure of administration.
- Participatory Democracy
The argument of the petitioners stated that the concept of participatory democracy demand that a project of this nature must involve the common public as they are the real stakeholders of national heritage and must be consulted at every stage of the project.
On this point the Court held that direct democracy was never envisaged by the founding members of the Constitution. We have embraced the representative model of democracy wherein political sovereignty is vested in the People of India and legal sovereignty is vested in the Constitution of India. However, the court noted that representative democracy did not completely exclude public participation. Over the period of time there has been constant endeavour to encourage wider participation keeping in view the efficiency of administration and Rule of Law. The court cited the adoption of the local governance system in 1992 as an example of public participation model.
The Court held that we are a representative democracy with string elements of participatory democracy embedded in it. But, no country with a sizeable population like ours can give a promise of direct participation to every individual in the decision making process in administrative matters unless the law so prescribes.
- Change of Land Use
The petitioners alleged the change in land use by the government for the Central Vista Project was not in accordance with law. The Court noted that Section 11A(2) of the Delhi Development Authority Act bestows expansive power upon the Central Government to alter the character or extent of the master plan or zonal plan in public interest and for the proper development of Delhi. The court held that the power of Central Government is not an untrammelled power in that sense, it should be exercised in public interest and meet the tests of reasonableness, non-arbitrariness and fairness. And the proposed use in this case is for asset creation and for public use, naturally if such optimum utilization requires changing land use of Government lands, that must follow in public interest.
- Environmental Clearance
The petitioners had urged that there has been gross violation of Environmental law in obtaining the clearance. On this point, the Court held that the facts of the case do not reveal any deliberate concealment of fact/ information from the EAC or supply of any misinformation.
- Public Trust doctrine
Some petitioners alleged that the project is a violation of public trust, the court negative this and held that, for proving the violation of public trust the petitioners need to establish that public resources are being squandered and uses in a manner which cannot be termed as beneficial. Here, Central Government has elaborately demonstrated the imminent need for the Central Vista Project. The change in land use would result into optimisation and greater access to open spaces including entail in assets creation.
Justice Sanjeev Khanna expressed his dissent in his separate opinion.
- Justice Khanna noted that the matter has to be remitted back to public hearing as there was no prior approval of the Heritage Conservation Committee. Justice Khanna rejected the contention that the construction of the new Parliament being on a vacant plot adjacent to the existing Parliament building does not require approval/ no objection from the Heritage Conservation Committee.
- The order granting the Environmental Clearance is non-speaking order. There must be application of mind which is reflected when reasons justifying the conclusion are recorded
- On the point of public participation, Hon’ble Justice held that there has been no disclosure for public participation. 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. The citizenry clearly has the right to know intelligible details explaining the proposal to participate and express themselves, give suggestion and submit objections. Right to make objections and suggestion in the true sense, would include right to intelligible and adequate information regarding the proposal.