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Why did J. Sanjiv Khanna dissent from the Central Vista majority judgment?

While the top court upheld the Central Vista Redevelopment Project, the decision was split 2:1 with Justice Khanna giving his distinct and separate opinion

Adeeti Singh 07 Jan 2021

J. Sanjiv Khanna dissent

The Supreme Court’s green signal to the Central Vista Project was not unanimous as Justice Sanjiv Khanna provided his own judgment on matters 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.

He said, “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.”

However, he did agree with the majority judgment on a few aspects and noted, “On 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 A.M. Khanwilkar J.”

Let us now have a closer look on the grounds on which Justice Khanna dissented.

Public Consultation of the Development Plan

Justice Khanna referred to sections 7 to 11-A of the Delhi Development Act and Rules 4, 8, 9 and 10 of the Delhi Development (Master Plan and Zonal Development Plan) Rules which provides a detailed procedure for preparation, modification of a Master Plan and the Zonal Development Plans in Delhi.

Every local authority within whose limit any land, as per the plan, is situated, is to be given a reasonable opportunity to make representation and only on considering all representations, suggestions and objections, the Delhi Development Authority, can go ahead with a final plan and submit it to the Central government for its approval.

For instance, Rule 4 of the Development Plan lays down the draft plan which is to consist of such maps, diagrams, charts, reports, and other written matter of explanatory or descriptive nature as pertained to the development of whole or any part of Delhi. It also elucidates the form and contents of the draft Master Plan to be made public to invite objections, suggestions and representations. Justice Khanna found discrepancies in the entire process.

He said that the mere uploading of the gazette notification explaining the present and the proposed land use with plot numbers was not sufficient. He stressed on the importance of public participation in the entire process of coming up with a developmental plan to enable them to have an informed voice in the process.

After noting that there was serious lapse and failure, he further said, “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. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments.”

Centre defaulted on suggestions

According to due process, sub-section (2) of Section 11A of the Delhi Development Act provides that the Central government which is the competent authority shall make alterations to the Master Plan once its established that those alterations are needed to be made. Incases of minor modifications, the Delhi Development Authority(DDA)is the competent authority to take charge as per sub-section (1) of Section 11A.

So, according to the modifications, the appropriate competent authority has to consider the objections and suggestions and thereafter notify the proposed modification in entirety or in part. But the minority judgment noted that in the present case, the Central government had issued a notification dated March 20, 2020, approving the proposal exercising power under sub-section (2) to Section11A, but actually relying upon sub-section (1) to Section 11A.

So, the procedure for modification that was followed was the one applicable to modifications under sub-section (1) to Section 11-A and not sub-section (2) making the DDA the competent authority and not the Centre. Justice Khanna further noted that following the “fatal failure to follow the procedure prescribed under sub-section (2) to section 11A of the Development Act”, in the written submissions filed by the respondents, a different version has been given in the list of dates and events.

The written submission stated that the Land & Development Officer (L&DO) applied its mind to the objections and suggestions on February 6, 2020 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 so he wondered how L&DO applied his mind even before the public hearing was over.

He also noted that the list of dates was not supported by an affidavit on record. “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,” he said.

No reasonable time provided

Justice Khanna also noted the violation of section 45 of the Delhi Development Act which provides that any notice or order relevant to the act shall specify a reasonable time. Hence, the judge said, “There is 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.”

Heritage Conservation Committee disapproval

This aspect was discussed by Justice Khanna at length, noting that that Technical Committee of the Authority in its meeting held on December 5,2019 while examining the proposal hadstated that steps would be taken to seek approval of the Heritage Conservation Committee.

However,“However Heritage Conservation Committee was never moved to secure approval/permission. No approval/permission has been taken.” He noted that the Government in their written submissions had stated that the permission or approval from the Heritage Conservation Committee “would be sought as and when the stage reaches for the same as the same may not be pre-requisite for the purposes of change in land use.”

The use of the term ‘may’ itself represented the doubt in the mind of the Government (respondents) according to Justice Khanna, whereas the Technical Committee had not expressed any doubts and was firm that approval or clearance from the Heritage Conservation Committee is “mandatory and required”.

The respondents contended 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. But Justice Khanna observed otherwise. He held, “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.”

Environmental Clearance

The dissenting judgment also pointed at the lack of discussion, reasons or even the conclusion or finding on the aspect of slicing or inclusion. The Judge raise his disappointment at the Expert Appraisal Committee’s (EAC) order dated April 22, 2020 granting clearance to the Project. He said, “EAC acts both as a fair investigator and an independent objective adjudicator when deciding whether or not to grant environmental clearance. 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.”

Justice Sanjiv Khanna also rejected the contention that the Environmental Impact Assessment Notification of 2006 does not require giving reasons when environment clearance is granted. He referred to Gau Raxa Hit raxak Manch v. Union of India(2013) SCC Online NGT 85, that held that the apprising body, which includes EAC as well as the Ministry,has to make categorical recommendations to the regulatory authority either for grant of clearance or rejection, together with reasons for the same.

Any order passed by the EAC are subject to appeal before the National Green Tribunal. The appellate forum would not be able to decipher and adjudicate unless reasons are set out and stated in the order under challenge. Justice Khanna said that the whole purpose of outsourcing the task to EAC, comprised of experts and specialists, is to have a proper evaluation on the basis of some objective criteria. EAC is a body that has to apply its collective mind and not to record conclusions. It must justify and give basis for its conclusions, which in this case, did not happen.

While concluding, he said that the petitioners challenging the project are not completely averse to the idea of partial and regulated redevelopment for functionality and that the Central Vista and Parliament House is a heritage site that belongs to the Nation and the people. “Their primary grievance is lack of information and details”, he noted.

A legacy of Dissent

Interestingly, Justice Sanjiv Khanna is the nephew of the late Justice Hans Raj Khanna, a former Supreme Court judge who was the sole dissenting voice in the Emergency case of ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, in which he held that fundamental rights cannot be curtailed during an Emergency.

On August 24, 2017, a nine-judge bench of the Supreme Court while declaring the right to privacy as a fundamental right, overruled the ADM Jabalpur decision and corrected a historical blunder recognising the stature of Justice H.R Khanna.

In his autobiography titled Neither Roses Nor Thorns, he wrote that before the pronouncement of the judgment he along with his family went to Haridwar. While sitting on the banks of river Ganga, he told his sister, “‘I have prepared the judgment which is going to cost me the Chief Justiceship of India”, which ultimately was true as Justice MH Beg superseded him in 1977.

The judgment may be read here: 

 

Related:

SC greenlights Central Vista project, decision split 2:1

Central Vista Project: SC bars Centre from construction, allows paperwork and foundation stone ceremony

Withdraw hasty Environment Clearance to Central Vista Project: NAPM

 

Why did J. Sanjiv Khanna dissent from the Central Vista majority judgment?

While the top court upheld the Central Vista Redevelopment Project, the decision was split 2:1 with Justice Khanna giving his distinct and separate opinion

J. Sanjiv Khanna dissent

The Supreme Court’s green signal to the Central Vista Project was not unanimous as Justice Sanjiv Khanna provided his own judgment on matters 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.

He said, “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.”

However, he did agree with the majority judgment on a few aspects and noted, “On 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 A.M. Khanwilkar J.”

Let us now have a closer look on the grounds on which Justice Khanna dissented.

Public Consultation of the Development Plan

Justice Khanna referred to sections 7 to 11-A of the Delhi Development Act and Rules 4, 8, 9 and 10 of the Delhi Development (Master Plan and Zonal Development Plan) Rules which provides a detailed procedure for preparation, modification of a Master Plan and the Zonal Development Plans in Delhi.

Every local authority within whose limit any land, as per the plan, is situated, is to be given a reasonable opportunity to make representation and only on considering all representations, suggestions and objections, the Delhi Development Authority, can go ahead with a final plan and submit it to the Central government for its approval.

For instance, Rule 4 of the Development Plan lays down the draft plan which is to consist of such maps, diagrams, charts, reports, and other written matter of explanatory or descriptive nature as pertained to the development of whole or any part of Delhi. It also elucidates the form and contents of the draft Master Plan to be made public to invite objections, suggestions and representations. Justice Khanna found discrepancies in the entire process.

He said that the mere uploading of the gazette notification explaining the present and the proposed land use with plot numbers was not sufficient. He stressed on the importance of public participation in the entire process of coming up with a developmental plan to enable them to have an informed voice in the process.

After noting that there was serious lapse and failure, he further said, “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. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments.”

Centre defaulted on suggestions

According to due process, sub-section (2) of Section 11A of the Delhi Development Act provides that the Central government which is the competent authority shall make alterations to the Master Plan once its established that those alterations are needed to be made. Incases of minor modifications, the Delhi Development Authority(DDA)is the competent authority to take charge as per sub-section (1) of Section 11A.

So, according to the modifications, the appropriate competent authority has to consider the objections and suggestions and thereafter notify the proposed modification in entirety or in part. But the minority judgment noted that in the present case, the Central government had issued a notification dated March 20, 2020, approving the proposal exercising power under sub-section (2) to Section11A, but actually relying upon sub-section (1) to Section 11A.

So, the procedure for modification that was followed was the one applicable to modifications under sub-section (1) to Section 11-A and not sub-section (2) making the DDA the competent authority and not the Centre. Justice Khanna further noted that following the “fatal failure to follow the procedure prescribed under sub-section (2) to section 11A of the Development Act”, in the written submissions filed by the respondents, a different version has been given in the list of dates and events.

The written submission stated that the Land & Development Officer (L&DO) applied its mind to the objections and suggestions on February 6, 2020 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 so he wondered how L&DO applied his mind even before the public hearing was over.

He also noted that the list of dates was not supported by an affidavit on record. “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,” he said.

No reasonable time provided

Justice Khanna also noted the violation of section 45 of the Delhi Development Act which provides that any notice or order relevant to the act shall specify a reasonable time. Hence, the judge said, “There is 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.”

Heritage Conservation Committee disapproval

This aspect was discussed by Justice Khanna at length, noting that that Technical Committee of the Authority in its meeting held on December 5,2019 while examining the proposal hadstated that steps would be taken to seek approval of the Heritage Conservation Committee.

However,“However Heritage Conservation Committee was never moved to secure approval/permission. No approval/permission has been taken.” He noted that the Government in their written submissions had stated that the permission or approval from the Heritage Conservation Committee “would be sought as and when the stage reaches for the same as the same may not be pre-requisite for the purposes of change in land use.”

The use of the term ‘may’ itself represented the doubt in the mind of the Government (respondents) according to Justice Khanna, whereas the Technical Committee had not expressed any doubts and was firm that approval or clearance from the Heritage Conservation Committee is “mandatory and required”.

The respondents contended 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. But Justice Khanna observed otherwise. He held, “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.”

Environmental Clearance

The dissenting judgment also pointed at the lack of discussion, reasons or even the conclusion or finding on the aspect of slicing or inclusion. The Judge raise his disappointment at the Expert Appraisal Committee’s (EAC) order dated April 22, 2020 granting clearance to the Project. He said, “EAC acts both as a fair investigator and an independent objective adjudicator when deciding whether or not to grant environmental clearance. 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.”

Justice Sanjiv Khanna also rejected the contention that the Environmental Impact Assessment Notification of 2006 does not require giving reasons when environment clearance is granted. He referred to Gau Raxa Hit raxak Manch v. Union of India(2013) SCC Online NGT 85, that held that the apprising body, which includes EAC as well as the Ministry,has to make categorical recommendations to the regulatory authority either for grant of clearance or rejection, together with reasons for the same.

Any order passed by the EAC are subject to appeal before the National Green Tribunal. The appellate forum would not be able to decipher and adjudicate unless reasons are set out and stated in the order under challenge. Justice Khanna said that the whole purpose of outsourcing the task to EAC, comprised of experts and specialists, is to have a proper evaluation on the basis of some objective criteria. EAC is a body that has to apply its collective mind and not to record conclusions. It must justify and give basis for its conclusions, which in this case, did not happen.

While concluding, he said that the petitioners challenging the project are not completely averse to the idea of partial and regulated redevelopment for functionality and that the Central Vista and Parliament House is a heritage site that belongs to the Nation and the people. “Their primary grievance is lack of information and details”, he noted.

A legacy of Dissent

Interestingly, Justice Sanjiv Khanna is the nephew of the late Justice Hans Raj Khanna, a former Supreme Court judge who was the sole dissenting voice in the Emergency case of ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, in which he held that fundamental rights cannot be curtailed during an Emergency.

On August 24, 2017, a nine-judge bench of the Supreme Court while declaring the right to privacy as a fundamental right, overruled the ADM Jabalpur decision and corrected a historical blunder recognising the stature of Justice H.R Khanna.

In his autobiography titled Neither Roses Nor Thorns, he wrote that before the pronouncement of the judgment he along with his family went to Haridwar. While sitting on the banks of river Ganga, he told his sister, “‘I have prepared the judgment which is going to cost me the Chief Justiceship of India”, which ultimately was true as Justice MH Beg superseded him in 1977.

The judgment may be read here: 

 

Related:

SC greenlights Central Vista project, decision split 2:1

Central Vista Project: SC bars Centre from construction, allows paperwork and foundation stone ceremony

Withdraw hasty Environment Clearance to Central Vista Project: NAPM

 

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