RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & ORS

A the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided. (2) A zonal development plan may— (a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land- uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses; (b) specify the standards of population density and building density; (c) show every area in the zone which may, in the opinion of the Authority, be required or declared for development or re- D development; (d) in particular, contain provisions regarding all or any of the following matters, namely: — (i) the division of any site into plots for the erection of buildings; E (ii) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; (iii) the development of any area into a township or colony and the restrictions and conditions subject to which such F development may be undertaken or carried out; (iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings; (v) the alignment of buildings on any site; G (vi) the architectural features of the elevation or front age of any building to be erected on any site; (vii) the number of residential buildings which may be erected on any plot or site; H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 435 ORS. [A. M. KHANWILKAR, J.]

(viii) the amenities to be provided in relation to any site or buildings on such site whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided; (ix) the prohibitions or restrictions regarding erection of shops, workshops, warehouses or factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality; (x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained; C (xi) the restrictions regarding the use of any site for purposes other than erection of buildings; and (xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such D zone or area.” A notable feature of the zonal plan is that it manifests multiple micro aspects of decentralized planning depending on the type of zone. It may provide for conditions and restrictions on development as may be needed for the proper development of the zone. E

202Copy pinpoint202. An understanding of the relationship between master plan and zonal plan is relevant for further analysis. Whereas the master plan lays down a broad vision of development for a region, the zonal plan is meant to provide specificity to the vision expressed in the master plan for facilitating the execution of the vision in specified zones. A zonal plan is meant to further the vision of the master plan. In Master Plan, a zonal F plan is defined thus: “2(2) Zonal Development Plan means a plan for one of the zones (divisions) of the National Capital Territory of Delhi containing detailed information regarding provision of social infrastructure, parks and open spaces, circulation system, etc.” G Chapter 16 of Master Plan titled “Land Use Plan” throws light on the substance of a zonal plan as: “16.1 ...The Zonal plans shall detail out the policies of the Master Plan 2021 andact as link between the Layout Plan H

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A and Master Plan. The development schemes and layout plans indicating various use premises shall conform to the Master Plan / Zonal Plans. The Zonal Plans of the areas shall be prepared under Section 8 and processed under Section 10 and simultaneously the modifications of land uses shall be processed under Section 11(A) of the Delhi Development Act, 1957. Already B approved Sub Zonal (earlier Zonal) Plans in conformity with the Master Plan shall continue for the areas where the Zonal Plans have not been approved. The Zonal Plans in the form of structure plans shall be prepared within 12 months of the approval of the MPD-2021. C In absence of Zonal Plan of any area, the development shall be in accordance with the provisions of the Master Plan. No urban activity shall be permitted in the proposed Urban Extension without change of land use / modification to the Master Plan as per the Delhi Development Act, 1957" D (emphasis supplied) The zonal plan, as exposited above, acts as a link between layout plan312 and master plan. It is also relevant to note that preparation of a zonal plan in accordance with Section-8 is not a pre-requisite for the operationalization of a master plan. It is clearly stated in clause 16.1 (quoted above) that earlier zonal plan if in conformity with the prevailing master plan, may continue in areas where a new zonal plan has not been approved. Further, in absence of zonal plan of any area, the development can proceed in accordance with the contours specified in the master plan – for the specified zone. The underlying reason is to ensure that the pace of development does not come to a standstill in absence of a zonal plan and at the same time is for proper development of the concerned zone and in particular whole of Delhi. Therefore, the scope and direction of development as envisaged in the master plan shall remain unhindered, irrespective of whether or not it is complemented with a new zonal plan or not. MODIFICATION OF PLANS G

203Copy pinpoint203. We may now examine the statutory scheme concerning the modification of plans. The thrust of the challenge necessitates us to analyse the provisions for modifying the plan. 312 Layout Plan means a Plan indicating configuration and sizes of all Use Premises. Each Use Zone may have one or more than one Layout Plan depending upon the extensiveness of the area under the specific Use Zones and vice-versa.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 437 ORS. [A. M. KHANWILKAR, J.]

204Copy pinpoint204. Section 11A of the 1957 Act is the primary provision enabling modifications to plan. It falls under a separate chapter titled “MODIFICATIONS TO THE MASTER PLAN AND THE ZONAL DEVELOPMENT PLAN”. The same reads thus: “11A. Modifications to plan.—(1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do not effect important alterations in the character of the plan and which do not relate to the extent of land-uses or the standards of population density. (2) The Central Government may make any modifications to the master plan or the zonal development plan whether such modifications are of the nature specified in sub-section (1) or otherwise. (3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government. E

(4) Every modification made under the provisions of this section shall be published in such manner as the Authority or the Central Government, as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Central Government F may fix. (5) When the Authority makes any modifications to the plan under sub-section (1), it shall report to the Central Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation. G (6) If any question arises whether the modifications proposed to be made by the Authority are modifications which effect important alterations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to H

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A the Central Government whose decision thereon shall be final. (7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or the zonal development plan as B modified under the provisions of this section.” (emphasis supplied)

205Copy pinpoint205. Section 11A is a repository of both power and procedure of modification. It bestows two entities with such power - Authority (DDA) and the Central Government. The power of modification vested in the C Authority, is circumscribed, as specified in sub-Section (1); but wider discretion has been given to the Central Government in that regard. The extent of power granted to the two entities is dissimilar and disparate. Section 11A(1) empowers the Authority to make modifications in the master plan or the zonal plan subject to three express fields: D (i) such modifications do not effect important alterations in the character of the plan; (ii) such modifications do not relate to the extent of land-uses; (iii) such modifications do not relate to the standards of population density. E Whereas, in a marked progression from the mandate of Authority, sub-Section (2) empowers the Central Government to effect modifications to the master plan or zonal plan irrespective of whether such modifications are of the nature specified in sub-Section (1) or any other modification as may be deemed necessary in public interest. The F language used by the legislature is explicit and commends no other meaning. In other words, sub-Section (2) is widely worded and bestows expansive power upon the Central Government. It is not constricted by placing restrictions regarding not to alter the character or extent of the master plan or zonal plan specified in sub-Section (1), in case the Central G Government intends to do so in public interest including for the proper development of Delhi. This literal understanding of the provision is in complete harmony with the text of Master Plan, as we shall see, which also acknowledges the need for modifications in cases of necessity based upon public interest. That, however, can be done by following procedure prescribed for carrying out such modification. Sub-Section (6) of the H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 439 ORS. [A. M. KHANWILKAR, J.]

provision is also instructive. It empowers the Central Government to A decide whether the Authority has violated the three express limitations under sub-Section (1) while effecting modifications and that decision is final. Let us understand the scheme further.

206Copy pinpoint206. Section 41 of the 1957 Act provides for the control of the Central Government over the Authority and advances the view that a B superior role is attributed to it under the Act. It reads thus: “41. Control by Central Government.—(1) The Authority shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act. C (2) If in, or in connection with, the exercise of its powers and discharge of its functions by the Authority under this Act, any dispute arises between the Authority and the Central Government the decision of the Central Government on such dispute shall be final. D (3) The Central Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue E such direction in relation thereto as it may think fit: Provided that the Central Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.” (emphasis supplied) F The same intent was reflected in the unamended Delhi Development (Master Plan and Zonal Development) Rules, 1959313. Rule 12 provided for amendment of the Master Plan by the Authority and predicated that the Authority may carry out amendments upon the expiry of every five years in accordance with the procedure prescribed G in the 1957 Act. The requirement of acting “in accordance with the procedure” prescribed in the 1957 Act signified that the Authority is not supposed to deviate from the three stipulations under Section 11A(1). Rule 12 reads thus: 313 For short, “1959 Rules” H

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A “12. Amendment of Master Plan.—The Authority may amend the whole or any part of the master plan, if necessary, at the expiry of every five years in accordance with the procedure prescribed by the Act and these rules as if the proposed amendment were new master plan. B Provided that if the Authority is of opinion that having regard to the circumstances prevailing at any particular time it is necessary so to do, it may amend the master plan or any part thereof at any time prior to the expiry of the said period, in accordance with the aforesaid procedure. C Provided further that the Authority may, without following the aforesaid procedure, but with the prior approval of the Central Government, permit on receipt of an application in this behalf, any change in the size of public parks and recreation grounds not exceeding ten per cent either way of the approved size.”

D Rule 13 being supplemental to Rule 12 mandated that every amendment of the master plan by the Authority was subject to approval by the Central Government. The relevant extract thereof reads thus: “13. Approval of Central Government to Amendment of Master Plan.— (1) Amendment of the master plan shall not take effect unless approved by the Central Government. .... Indeed, Rules 12 and 13 came to be deleted [vide Delhi Development (Master Plan and Zonal Development Plan) Amendment Rules, 1966314]. However, they are useful in understanding the intent of the law-making bodies as well as to ascertain the relationship between the Central Government and Authority in planning activities. A collective reading of Rules 12 and 13 signifies that the Authority is subservient to the Central Government as far as modifying the master plan is concerned. Its powers are controlled by the Central Government. At the same time, a key takeaway from a conjoint reading of the aforesaid Rules is that in the entire scheme (Act and Rules), there is no restriction – be it of minimum time period after which amendments could be made or of seeking approvals from a superior body – on the Central Government’s power of modification of the master plan/zonal plan. Therefore, in order 314 For short, “1966 Rules” H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 441 ORS. [A. M. KHANWILKAR, J.]

to determine the validity of a modification, it is of utmost importance to ascertain the entity which has initiated the modification exercise. We may consider this in the light of facts of this case at a later stage, after delineating the law clearly.

207Copy pinpoint207. The permissibility of modifications in the master plan/zonal plan includes modifications in any part of these plans. There is no restriction on the Central Government on the scope of modifications. For a qualitative examination of the extent of permissible modifications, however, we may now advert to the meaning of the word “modification” as envisioned in the applicable provisions of Master Plan and the 1957 Act. Modification: Meaning C

208Copy pinpoint208. The Master Plan, as noted above, was notified in 2007 to guide the direction of development in the National Capital Territory of Delhi till 2021. In the section comprising of “Major Highlights of the Plan”, planned development of new areas and rejuvenation of old areas are stated to be parallel aims. Point 18 reads thus: D “18. The Master Plan incorporates several innovations for the development of the National Capital. A critical reform has been envisaged in the prevailing land policy and facilitating public - private partnerships. Together with planned development of new areas, a major focus has been on incentivising the E recycling of old, dilapidated areas for their rejuvenation. The Plan contemplates a mechanism for the restructuring of the city based on mass transport. The Perspective Plans of physical infrastructure prepared by the concerned service agencies should help in better coordination and augmentation of the services.” F (emphasis supplied) Point 19 indicates that the Master Plan, once freezed, is not going to stagnate the scope of development until the completion of duration and changing requirements of the society may call for a modification/ review of the plan. It reads thus: G “19. The Master Plan envisages vision and policy guidelines for the perspective period upto 2021. It is proposed that the Plan be reviewed at five yearly intervals to keep pace with the fast changing requirements of the society.” (emphasis supplied) H

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A The vision of the Master Plan, as specified in the plan, succinctly notes that blending heritage with modern patterns of development is a key feature. It reads thus; “VISION

3. Vision-2021 is to make Delhi a global metropolis and a world- B class city, where all the people would be engaged in productive work with a better quality of life, living in a sustainable environment. This will, amongst other things, necessitate planning and action to meet the challenge of population growth and in-migration into Delhi; provision of adequate housing, particularly for the weaker sections of the society; addressing the problems of small enterprises, particularly in the unorganized informal sector; dealing with the issue of slums, up-gradation of old and dilapidated areas of the city; provision of adequate infrastructure services; conservation of the environment; preservation of Delhi’s heritage and blending it with the new and complex modern patterns of development; and doing all this within a framework of sustainable development, public private and community participation and a spirit of ownership and a sense of belonging among its citizens.” (emphasis supplied) What emerges from the above extracts of Master Plan is that the E Master Plan presents a dynamic vision of development which duly acknowledges the need for suitable modifications in light of emergent circumstances. The dynamic nature of the plan is further reflected in Chapter 18 titled “Plan Review and Monitoring” which specifies that phased monitoring of the functioning of the plan is essential to take care of emerging socio-economic changes. It further notes that periodic review of the plan is essential for effective implementation. It reads thus: “18.0 PLAN REVIEW AND MONITORING Plan Monitoring is essential to evaluate the changes required to improve the quality of life in the city. Properly phased monitoring makes the plan responsive to the emerging socio-economic forces. Implementation of the plan can be effective only when monitored and reviewed at appropriate periods.” Resultantly, such review can take place by way of suitable modifications in the plan. This is succinctly reflected in point 18.5 which reads thus:

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 443 ORS. [A. M. KHANWILKAR, J.]

“18.5 REVIEW A Timely review of the plan with the help of above groups and monitoring unit shall ensure mid-term correction and modifications if needed in the Plan Policies as well as the implementation procedures, which will help to re-adjust the events in the plan that could not be foreseen or anticipated B during the Plan Formulation. If the plan is timely monitored and appropriately reviewed, the policies can be moulded in the right direction according to the present needs of the people of the city.” (emphasis supplied) C The above point is a reinforcement of the view that the plans can undergo mid-course corrections and modifications to mould the policies in the right direction for the proper development of Delhi. The character of modifications and permissibility thereof as envisaged in the master plan can be articulated amongst others as: D first, modification to be necessary for meeting the present needs of the people including for better governance and proper development of Delhi; second, modifications can be effected in the wake of unforeseen and unanticipated circumstances; E The aforesaid points are not exhaustive. For, the Master Plan lays down framework for development of the zones in prescribed manner. It does not operate as a controlling force upon the statutory powers of modification of the Central Government or Authority within their respective mandates under the 1957 Act. The idea of organic development F in consonance with the evolving needs of time is explicitly reflected in the Master Plan. The basic principle behind the Master Plan is to tread the path of development in the specified manner including with a purposeful transformation perceived by the policy makers. The primary consideration before the Central Government while undertaking a G modification exercise in Section 11A(2) is public interest. A pro- development enactment cannot be read in a pedantic manner, as the underlying purpose of all laws is to act in aid of the larger goal of provisioning for improving quality of life of the citizens and meaningful governance. H

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209Copy pinpoint209. To understand further, it would be relevant to note that development and planning enactments often carve out a distinction between major and minor modifications. In Manohar Joshi315, this Court analysed the provisions of Maharashtra Regional and Town Planning Act, 1966316 and observed that a distinction exists between major and minor modifications under that Act. It observed thus: B “55. There are only two methods by which modifications of the final development plan can be brought about. One is where the proposal is such that it will not change the character of the development plan, which is known as minor modification and for which the procedure is laid down under Section 37 of the Act. C The other is where the modification is of a substantial nature which is defined under Section 22-A of the Act. In that case the procedure as laid down under Section 29 is required to be followed ...” It then observed that when modifications are permissible subject to not changing the character of the plan, it would be a case of minor D modification. In para 58, it was observed thus: “Minor modifications

58. Section 37 of the MRTP Act, reads as follows: “37.Modification of final development plan.—(1) Where E a modification of any part of or any proposal made in, a final development plan is of such a nature that it will not change the character of such development plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. .... 315 (supra at 95) 316 For short, “the 1966 Act” H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 445 ORS. [A. M. KHANWILKAR, J.]

59. As seen from this section, the minor modification under Section 37(1) has to be such that it will not change the character of the development plan. The section indicates that for setting the procedure under Section 37 into motion, the Planning Authority has to firstly form an opinion that the proposed modification will not change the character of the development plan. Such an opinion has to be formed by the Planning Authority meaning the general body of the Municipal Corporation, since this function is not permitted to be delegated to anybody else under Section 152 of the Act. Thereafter the Planning Authority has to publish a notice in the Official Gazette inviting the objections and suggestions from the public with respect to the proposed modification. It is also required to give a notice to all the persons affected by the proposed modification. (emphasis supplied) D The Court then considered “modifications of a substantial nature” and procedure in that regard stipulated in Sections 22A and 29 of the 1966 Act and observed thus: “66. As seen from Section 22-A, it treats modifications of six types as substantial modifications. They are as follows: E (a) If a plot is admeasuring more than 0.4 ha (i.e. 4000 sq m) in the Municipal Corporation area or an A class municipal area a reduction of more than 50% would be considered as a substantial modification. In B and C class municipal areas such a plot has to be of 1 ha; (b) Secondly, under clause (b) all changes which result in the aggregate to a reduction of any public amenity by more than ten per cent of the area provided in the planning unit are considered a substantial change; (c) Where there is an actually existing site reserved for a public amenity, except for marginal area up to two hundred square metres required for essential public amenities or utility services their reduction will be a substantial modification; (d) Shifting of the allocation of use of land from zone to zone which results in increasing the area in the other zone by ten per cent in the same planning unit will be a substantial modification; H

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A (e) Any new reservation made in a draft development plan which is not earlier published will be a substantial modification; and (f) Alternation in the floor space index beyond ten per cent will be a substantial modification.” (emphasis supplied) B

210Copy pinpoint210. The exposition in Manohar Joshi317 does reveal that town planning legislations contemplate various levels of modifications. Depending on the nature of modification, minor or substantial, separate procedure is prescribed under the 1966 Act. A notable takeaway from the aforesaid analysis is that even substantial modification, per se, is not C an out-of-bounds of executive action as long as the applicable law permits such modification. Unlike the 1966 Act applicable to Maharashtra, the 1957 Act does not expressly use the expression “substantial modification”. However, Section 11A provides for a similar scheme of minor and major modification. Under the scheme of the 1957 Act read with Master Plan, D minor modifications would refer to changes within a zone demarcated as per the master plan; and major modifications may involve substantial modifications such as changing the zone itself from one category to another or altering the territorial expanse of a zone. Section 22A of the 1966 Act considers a variation of ten percent in the area allocated to a particular zone as a substantial variation. We reproduce the relevant E extract thus: “(d) Shifting of the allocation of use of land from zone to zone which results in increasing the area in the other zone by ten per cent in the same planning unit will be a substantial modification;”

211Copy pinpoint211. In Machavarapu Srinivasa Rao & Anr. v. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority & Ors. 318, this Court considered the Andhra Pradesh Urban Areas (Development) Act, 1975 and found a similar distinction between minor and substantial modifications and observed that the Development Authority did not possess the power to effect substantial modifications G to the plan, however, the State Government possessed that power. In para 20, it noted thus: “20. An analysis of the abovenoted provisions shows that once the master plan or the zonal development plan is approved by the 317 (supra at 95) 318 H (2011) 12 SCC 154

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 447 ORS. [A. M. KHANWILKAR, J.]

State Government, no one including the State Government/ A Development Authority can use land for any purpose other than the one specified therein. There is no provision in the Act under which the Development Authority can sanction construction of a building, etc. or use of land for a purpose other than the one specified in the master plan/zonal development plan. The power vested in the Development Authority to make modification in the development plan is also not unlimited. It cannot make important alterations in the character of the plan. Such modification can be made only by the State Government and that too after following the procedure prescribed under Section 12(3).”

212Copy pinpoint212. Bearing in mind the underlying principles in aforementioned expositions, it may be safely held that sub-Section (1) of Section 11A of the 1957 Act contemplates minor modifications by the Authority as it prohibits changing the character of the plan. Whereas, sub-Section (2) contemplates both minor as well as substantial modifications of the plan in accordance with the procedure prescribed therefor. D

213Copy pinpoint213. Ordinarily, the sanctity of the plan has to be preserved whilst exercising the power of modification or else it would no longer qualify as a modification. In Black’s Law Dictionary, 11th Edition, the word “modify” is defined as: “To make somewhat different; to make small changes to E (something) by way of improvement, suitability, or effectiveness.”

214Copy pinpoint214. Moreover, in Puranlal Lakhanpal319, this Court provided meaning to the word “modification” on similar lines and observed thus: “(4) …In the Oxford English Dictionary (Vol. VI) the word F “modify” means inter alia “to make partial changes in; to change (as object) in respect of some of its qualities; to alter or vary without radical transformation.” Similarly the word “modification” means “the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration”. …” G (emphasis supplied)

215Copy pinpoint215. The legislature has consciously used the term “modification”. It implies that the changes contemplated under Section 11A must not 319 (supra at 162) H

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A qualitatively alter the original identity of the plan. Indeed, any modification entails a deviation from the prevailing plan, but it has been permitted by the legislature as long as it coalesces with the spirit of the original plan. The expression “or otherwise” occurring in sub-Section (2) needs to be so construed. The deviation must not be of a nature that virtually leads to the replacement of the original plan. The distinctiveness, fundamental identity and basic features of the plan must be preserved in a modification exercise as far as possible. The real test is that the broad vision of development envisaged in the plan stays intact. The modification may become necessary to infuse improvement, suitability or effectiveness into the governing plan, due to supervening circumstances including to address the dynamic factors and contemporary overlapping needs of the public and effective governance. That, however, in a country governed by Rule of Law must be exercised in public interest and meet the tests of reasonableness, non-arbitrariness and fairness. It is not an untrammelled power in that sense. This hallowed promise is so cardinal to the sustenance of Rule of Law that the legislature hardly considers it essential to make it express in every enactment.

216Copy pinpoint216. We may now see whether change in land use forms part of permissible modifications under the 1957 Act. As noted above, master plan and zonal plans contain a land use plan. Rule 4 of the 1959 Rules titled “Form and contents of Master Plan” specifically provides that a E land use plan forms part of the master plan. Since Section 11A categorically allows modifications in both these documents, it naturally signifies that such modifications can relate to land-use as well, apart from modifications in other elements of the plan.

217Copy pinpoint217. It is well established by now that existence of power and F exercise of power are two different things. Having found that the change in land use, in principle, is permissible, we now proceed to examine the changes effected in the present case and the procedure adopted therefor.

218Copy pinpoint218. The proposal for change in land use of seven plots involved in the Project was initiated by the Deputy Land and Development Officer, MoHUA, Government of India i.e., by the Central Government. Thus, G we note at the very outset that modifications in the present case are carried out under sub-Section (2) of Section 11A of the 1957 Act and therefore, any reliance upon the stipulations of sub-Section (1) to control the power of modification is wholly misplaced and out of purview of our examination. As per the proposal, the details of plots and corresponding H changes therein can be enumerated thus:

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 449 ORS. [A. M. KHANWILKAR, J.]

A. Plot No.1 is located on Church road near DTC Central A Secretariat Bus Terminal, New Delhi. As per Master Plan, the Land Use of the Site is under Transportation (Bus Terminal/Parking). The proposed land use of the site is Government Office. B. Plot No.2 is located opposite to the Parliament House, New B Delhi. As per Master Plan, the land use of the site is under Recreational (District Park). The proposed land use of the site is Government Office. C. Plot No.3 is located on Dr. Rajendra Prasad Road and houses National Archives. As per Master Plan, the land C use of the site is under Public and Semi-Public facilities. The proposed land use of the site is Government Office and Recreational (District Park). D. Plot No.4 is located on Dr. Rajendra Prasad Road and is occupied by Indira Gandhi National Centre for Art and D Culture. As per Master Plan, the land use of the site is under Public and Semi-Public Facilities (SC). The proposed land use of the site is under Government Office and Recreational (District Park). E. Plot No.5 is located between Man Singh Road, Ashoka Road and India Gate Hexagon in a Triangular formation. As E Master Plan, the land use of the site is under Public and Semi-Public facilities. The proposed land use of the site is Government Office. F. Plot No.6 is located on Maulana Azad Road and Consists of VP house, Vigyan Bhavan and National Museum. As F per Master Plan, the land use of the site is under Public and Semi-Public facilities (SC). The proposed land use of the site is under Government Office. G. Plot No.7 is located on Dara Shikoh Marg. As per Master Plan the land use of the site is under Government office. G The proposed land use of the site is Residential. H. Plot No.8 is located on Lucknow Road near Timarpur and part of Planning Zone C. As per Master Plan the land use of the site is under Public and Semi-Public Facilities. The proposed land use of the site is recreational (District Park). H

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219Copy pinpoint219. In order to comprehensively understand the impact of the proposed changes, it is necessary to pitch deeper and examine the extent of changes proportionally. This must be understood in light of the entire master plan which has been divided into 15 zones (divisions) of the National Capital Territory of Delhi. The said zones along with their respective area can be delineated thus: B ZONE NAME OF ZONE AREA (Ha.) A Old City 1159 B City Extn. (Karol Bagh) 2304

C C Civil Line 3959 D New Delhi 6855 E Trans Yamuna 8797 F South Delhi-I 11958 G West Delhi-I 11865 D H North West Delhi-I 5677 J South Delhi-II 15178 K K-I West Delhi-II 5782 K-II Dwarka 6408 E L West Delhi-III 22840 M North West Delhi-II 5073 N North West Delhi-III 13975 O River Yamuna / River Front 8070 F P P-I Narela 9866 P-II North Delhi 8534

The Land Use Plan identifies 27 land use zones across the capital territory which have further been clubbed into 9 categories namely: i. Residential; G ii. Commercial; iii. Industrial; iv. Recreational;

H v. Transportation;

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 451 ORS. [A. M. KHANWILKAR, J.]

vi. Utility; A vii. Government; viii. Public & Semi - Public Facilities; and ix. Agriculture & Water Body. The proposed plan herein caters only to two territorial zones i.e., B Zone-D320 (plots no. 2-7) and Zone-C321 (plot no. 8) out of 15 zones and broadly touches upon three land use categories – recreational, government and public & semi-public facilities. The total area of Zone D is 6855 Ha. which roughly translates to 16938 .71 acres (using the equivalent of 1 Ha. = 2.471 acres), and the total area under consideration in this project C is 86.1 acres.

220Copy pinpoint220. Therefore, it is incomprehensible as to how the proposed changes could be termed as substantial enough to alter the basic identity of the plan or for that matter, of the zone concerned. The effect is negligible in contrast to the expanse of the zone. The word “plan” represents a D wider area and is not represented by one or two zones of the city much less individual plots therein. The case on hand is certainly not one of a wholesale changes so as to be calledas drastically or radically altering the existing plan. The determination of the true character of a development plan is to be judged on the basis of facts and circumstances of each case. The public interest in holistic and orderly development cannot be undermined by taking a pedantic view of the phrase “character of the plan”. By its very nature, character of the plan manifests its identity as a whole and not portion of one of the elements therein. Even from the perspective of land allocated for a particular usage, the proposed plan does not affect the extent of land allocated for different uses in any material sense and overall nature and extent of respective usages in the central vista area remains the same, as already discussed above. Moreover, the proposed changes are essentially in the nature of swapping of the uses of the concerned Government plots. It does not pertain to any private ownership plot at all. G

221Copy pinpoint221. Pertinently, Plot no. 8, which is a part of Zone C, is not a part of the central vista region. Furthermore, it is crucial to note that there is a marked distinction between central vista region and central vista precincts. The central vista region, wherein all seven plots except plot 320 New Delhi Zone 321 Civil Line Zone H

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A no. 8 fall, refers to the entire regional expanse as per the master plan. Within the central vista region, there is a listed space (for heritage purpose) referred to as “Central Vista Precincts at Rajpath”. The demarcation is clear and central vista precincts at Rajpath have been accorded a special status in the list of heritage buildings/precincts. Out of the subject plots involved in the project, plot no. 3 (National Museum) is the only plot B which forms part of the central vista precincts. The remaining plots, despite being a part of the central vista region, are not a part of the listed heritage precincts.

222Copy pinpoint222. Further, it is common knowledge that plot no. 2 admeasuring 10.5 acres (for proposed Parliament House) earlier shown as for C Recreational use (District Park) is inaccessible to the public for the last 44 years (since 1976), due to logistical and security reasons. Post Parliament attack in 2001, the security arrangements have been intensified and public access to this space has been restricted. It is quite evident that despite the official earmarked purpose, the objective of recreation and availability of the said space as a public park is not being fulfilled. Thus, it is important to underscore that the change in land use of this plot from recreational use to Government use is not going to result in any actual reduction of area available for public usage. Nevertheless, to compensate this change, the proposed change in land use provides for recreational space at three different locations in the neighbourhood. In Zone D, three pockets of 1.88 acres each at plots no. 3, 4 and 6 have been earmarked for recreational use. Additionally, land use of 3.5 acres of space at plot no. 8 is being altered from Public and Semi-Public Facilities to Recreational (District Park) use. The underlying idea is to provision recreational spaces in a diversified manner at locations where public can actually access such spaces meaningfully. Recreational use entails use of public space by common public for amusement, relaxation and leisure. The proposed recreational spaces, therefore, not only fully compensate for the loss of recreational space of plot No. 2, but also provide for accessible recreational spaces elsewhere in the surrounding vicinity, thereby ensuring meaningful public access to green spaces.

223Copy pinpoint223. Upon further examination, it can be noted that the proposed plan seeks to change the land use of certain Government plots in the central vista area in order to use them for similar purposes – Government offices, public and semi-public use and recreation. The underlying nature H

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of usage of land in this area is not being altered in any substantial manner. A By its very nomenclature, Public and Semi-Public use refers to the usage of space for a legitimate public purpose including for official use, something which is antithetical to private use. Such public use could be effected in multiple ways. No doubt, Government use and semi-public use may overlap in certain circumstances. For, Government use is one B of the facets of public use itself. It will depend upon specific facts and circumstances of the case. It was in this spirit that S.O. 3348(E) dated 17.10.2017 permitted the usage of PSP spaces for Government offices. In the subject region, various spaces earmarked for Public and Semi- Public Use are already being used for Government purposes and this overall pattern of use is preserved with broadly the same character. C

224Copy pinpoint224. Notably, the challenge to above noted S.O. dated 17.10.2017 needs to be negatived for the reasons already mentioned while testing the validity of notifications regarding change in land use, as being repetitive. In any case, the challenge to this S.O. is being raised by the petitioners after the expiry of three years, that too after it was relied upon by the respondents in their reply. This particular challenge must fall on the ground of laches itself. It is not the case of the petitioners that the impugned notification was beyond access for the period of three years and they could not have assailed it at any prior stage. Merely because the notification has now come handy in favour of the responding party, the petitioners cannot jump upon it and multiply the scope of challenge without any sound basis. Strictly speaking, it is not in consonance with the principle of good faith. In Prabhakar v. Joint Director, Sericulture Department and Anr.322,the Court rightly noted thus: “38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity “delay defeats equities”.” A substantive writ petition is entertained by the Court in the light of certain specific facts and circumstances and it is not an occasion for 322 (2015) 15 SCC 1 H

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A the petitioners to call upon the Court to reopen remote government decision taken in the past. Even on merits, as already noted above, the challenge deserves to be negatived. For, the procedure followed meets statutory requirements and does not warrant judicial interference.

225Copy pinpoint225. The total area of plots being subjected to change in land use B is 86.1 acres, out of which 61.6 acres of area involves change from public and semi-public use to Government use. In light of the above, as actual usage of spaces earmarked for PSP Use, the proposed changes cannot be treated as a substantial deviation from the nature of land use in the region. Furthermore, use of plot no. 7 presently earmarked for Government office alone would be converted to residential in place of C Government office to provide official quarters – which again is public premises (Government owned). The remaining proposed changes are largely in tune with the usage generally followed in this region. Taking any view of the matter, the exercise of power by the Central Government is in conformity with the purport of sub-Section (2) of Section 11A, D enabling “modification” as no change of a substantial or radical character is envisaged as far as land use is concerned.

226Copy pinpoint226. The petitioners have raised concerns regarding the change in standards of population density. However, the test of alteration in standard of population density is applicable to modifications initiated by the Authority under sub-Section (1). The same falls outside our consideration. Further, the subject area caters to a floating footfall of employees and visitors who may visit for attending to their responsibilities/ work in the Government offices situated herein. Except plot no. 7, no residential usage is being contemplated in this area and the petitioners have not demonstrated any special circumstance which points towards the fact that standards of population density would stand immensely altered as a result of the proposed plan. We need not dilate further on this aspect.

227Copy pinpoint227. Before parting with this point, we may gainfully advert to Point 8.2 titled “Optimum Utilization of Government Land” of Master G Plan which reads thus: “8.2. OPTIMUM UTILIZATION OF GOVERNMENT LAND Government of India, Govt. of NCTD and local bodies are occupying prime land in Delhi for their offices. Most of the offices H

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have been setup immediately after Independence. Large areas A are underutilized and have completed their economic life. Due to downsizing of government employment and need for generation of resources by the ministries, optimum utilization of existing government offices / land could be achieved by the following measures: B i) Intensive utilization of existing government offices/ land. ii) Utilization of Surplus land by the government for residential development. iii) Utilization of 10% of total FAR for commercial uses to C make the restructuring process financially feasible. This shall be subject to approval of land owning agency and concerned local body.” (emphasis supplied) D What emerges from the aforesaid extract of Master Plan is that the master plan itself envisages intensive utilization of existing Government land and utilization of surplus land by the Government as essential components of optimum utilization of Government land resource. The public trust doctrine obligates the Government to use the available resources prudently and to subserve the common good. The proposed use is not to bestow largesse on private persons but for assets creationand for public use. Naturally, if such optimum utilization requires changing the land use of Government lands, that must follow in public interest. Further, the afore-quoted extract of the master plan is in line with the objectives stated by the L&DO while proposing change in land use and more so there is no basis to label the proposed changes as contravening the master plan. On a comprehensive understanding of the plan, we are of the view that the proposed changes fully gel with the vision of the master plan including the zonal plan. Modernity, technological advancements and protection of historicity are subjects of parallel concern today. They can neither overstep or dispense each other nor prohibit each other’s advance. This is the shared spirit of the master plan and the subject project.

228Copy pinpoint228. We now advert to the final assail regarding the procedure followed while effecting the change in land use. Our enquiry at this point would traverse through the procedure to be followed for effecting the H

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A subject changes – before decision making process begins, during the process of decision making until the final notification to bring the changes in force. PROCEDURE BEFORE DECISION

229Copy pinpoint229. Before the decision, a proposal was floated by the land- B owning agency (Central Government) on 4.12.2019 for change in land use regarding eight plots located within the Central Vista area. The same was considered by the Technical Committee in a meeting attended by the Chief Town Planner (TCPO), Chief Architect (NDMC), Town Planner (MCD), representatives from all stakeholders like DDA, DUAC, C Delhi Metro Rail Corporation, Delhi Police, Fire Department, Delhi Electric Supply Undertaking etc. We deem it apposite to highlight the composition of the broad-based Technical Committee: “DDA i. Vice Chairman – Chairman D ii. Engineer Member iii. Principal Commissioner iv. Commissioner (Plg) v. Commissioner (LD) E vi. Commissioner (LM) vii. Chief Architect viii. Chief Engineer (Electrical)

F ix. Additional Commissioners (Planning)- I, II, III & MPMR x. Director (Landscape) xi. Director (Building) OTHER GOVERNMENT DEPARTMENTS G i. Chief Town Planner (TCPO) ii. Chief Architect, NDMC iii. Town Planner, MCD iv. Secretary, DUAC H

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v. Land & Development Officer L&DO A vi. Sr. Architect, H&T Nirman Bhawan vii. Dy. Commissioner of Police (T) MSO Building viii. Chief Engineer (Plg.), DESU ix. Representative of Delhi Metro Rail Corporation (DMRC) B x. Representative of Fire Department xi. Director PPR” The Technical Committee recommended the proposal with the following observation: C “After detailed deliberation, the proposal as contained in Para 4.0 of the agenda with the above modification in landuse for Plot No. 1 was recommended by the Technical Committee for further processing under Section-11A of DD Act, 1957. With the following conditions: D (i) The clearances from the PMO, Heritage Conservation Committee and Central Vista Committee shall be taken by L&DO. (ii) The heritage buildings shall be dealt as per the relevant heritage provisions.” E

(emphasis supplied) After the approval of the Technical Committee, the proposal was considered by the Authority in its meeting dated 11.12.2019. The purpose of this meeting was to consider the issuance of public notice inviting F objections from general public and commence the decision-making process. The meeting was attended by the following members of the Authority in accordance with Section 3 of the Act: “CHAIRMAN Shri Anil Baijal G Lt. Governor, Delhi VICE CHAIRMAN Shri Tarun kapoor H

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A MEMBERS

1. Shri K Vinayak Rao Finance Member, DDA

2. Shri Shailendra Sharma B Engineer Member, DDA

3. Shri Vijender Gupta, MLA & Leader of Opposition in the Legislative Assembly of NCT of Delhi

4. Shri Somnath Bharti, MLA

C 5. Shri SK Bagga, MLA

6. Shri OP Sharma, MLA

7. Shri Manish Aggarwal, Municipal Councillor, South Delhi Municipal Corporation

D 8. Smt. Bhawna Malik, Municipal Councillor, East Delhi Municipal Corporation SECRETARY Shri D Sarkar, Commissioner-cum-Secretary, DDA SPECIAL INVITEES E

1. Dr. Rajesh Kumar, Principal Commissioner (Housing, CWG and Sports), DDA

2. Shri Manish Kumar Gupta, Principal Commissioner (LD, LM, Systems & Coordination), DDA

F 3. Dr. Rajeev Kumar Tiwari, Principal Commissioner (Pers., Hort. & Landscape), DDA

4. Smt. Varsha Joshi, Commissioner, North Delhi Municipal Corporation

G 5. Shri Amit Kataria, Land & Development Officer, MoHUA, Govt. Of India LT. GOVERNOR’S SECRETARIAT

1. Shri Vijay Kumar Principal Secretary to Lt. Governor H

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2. Smt. Chanchal Yadav A Special Secretary to Lt. Governor” The subject proposal was considered in this meeting as Item No. 130/2019 along with seventeen other proposals in ordinary course of business and was approved thus: B “Item No. 130/2019 Regarding proposed change of land use of Plot Nos. 1,2,3,4,5,6,7 and 8. F.20(12)2019/MP C The proposal contained in the agenda item was approved. Public notice inviting objections/suggestions under Section 11 A of DD Act, 1957 be issued.” PROCEDURE DURING DECISION-MAKING PROCESS AND PUBLIC HEARING UNDER SECTION 11A D

230Copy pinpoint230. As a result of the approval accorded by the Authority, a public notice came to be issued on 21.12.2019. The same reads thus: “DELHI DEVELOPMENT AUTHORITY (Master Plan Section) E PUBLIC NOTICE New Delhi, the 21st December, 2019 S.O. 4587(E).— The following modification which the Delhi Development Authority / Central Government proposes to make to the Master Plan-2021/Zonal Development Plan of Zone F ‘D’ (for Plot No.1 to 7) and Zone ‘C’ (for Plot No.8) under Section 11-A of DD Act, 1957, is hereby published for public information. Any person having any objection/suggestion with respect to the proposed modification may send the objection/suggestion in writing to the Commissioner-cum-Secretary, Delhi Development G Authority, ‘B’ Block, Vikas Sadan, New Delhi-110023 within a period of thirty (30) days from the date of this Public Notice. The person making the objection or suggestion should also give his/her name and address in addition to telephone No./contact number and e-mail ID which should be legible. H

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A Proposed Modification:

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The text/Plan indicating the proposed modifications shall A be available for inspection at the office of Deputy Director (MP), Delhi Development Authority, 6th Floor, Vikas Minar, I.P. Estate, New Delhi on all working days during the period referred above. The text/plan indicating the proposed modifications is also available on DDA’s website i.e. www.dda.org.in. B [F.No.F.20(12)2019/MP] D. SARKAR, Dy. Secy.” (emphasis supplied)

231Copy pinpoint231. The land-owning agency later submitted a revised proposal to the Authority in respect of plot No. 1 (out of the eight plots), vide communication dated 31.1.2020. Be that as it may, the issuance of public notice by the Authority commences the statutory process under Section 11A of the 1957 Act. In the present case, the respondents have adopted the procedure analogous to one under Chapter-III of the 1959 Rules along with Section 11A for effecting the subject modifications in the master plan and therefore, we may consider the same in our analysis.

232Copy pinpoint232. Sub-Section (3) of Section 11A of the Act (produced above) specifies the procedure to be followed before the final decision. We reproduce sub-Section (3) for easy reference: “(3) Before making any modifications to the plan, the E Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.” (emphasis supplied) It mandates publication of a notice in prescribed form and manner underthe rules made in that regard in order to invite objections and suggestions from any person with respect to the proposed modifications. It further enjoins the Authority to “consider” all objections and suggestions that may be received.

233Copy pinpoint233. Incontrovertibly, no rules have been framed in furtherance of Section-11A(3) to prescribe the form and manner of notice. However, H

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A on 28.5.1966, the Ministry of Works Housing & Urban Development (as it then was) released a notification to amend the 1959 Rules in exercise of powers under Section-56 of the 1957 Act. By way of this notification, Chapter V titled “Modification to the Master Plan and the Zonal Development Plan” was inserted in the 1959 Rules. Rule 16 was inserted with the headnote “Form of notice under Section 11A(3)” and it reads as: “16. The notice referred to in sub-section (3) of section 11A of the Act shall be in Form B appended to these rules.” Form B appended with the notification clearly specifies that public notice shall be issued under the signature of “Secretary, Delhi Development Authority”. Furthermore, form and manner of notice can also be determined as per Section 44 which is the general provision in this behalf. Section 44 specifies the manner of publishing the public notice and requires that “every public notice given under this Act shall be in writing under the signature of the secretary to the Authority”. It D reads thus: “44. Public notice how to be made known. — Every public notice given under this Act shall be in writing over the signature of the secretary to the Authority and shall be widely made known in the locality to be affected thereby by affixing copies thereof in E conspicuous public places within the said locality, or by publishing the same by beat of drum or by advertisement in local newspaper or by any two or more of these means, and by any other means that the secretary may think fit.” No challenge has been set up qua any of these statutory provisions. F Further, to supplement this provision, on 24.9.2012, a gazette notification was published by the Ministry of Urban Development (as it then was) whereby the Central Government directed that “the power exercisable by it under sub-section 11A of the said Act for the purpose of review/ modification of Master Plan for Delhi, 2021 shall also be exercisable by the Vice-Chairman, Delhi Development Authority in so far as it G relates to issuing public notice for inviting objections and suggestions”. Furthermore, Rule 6 of the 1959 Rules also requires the public notice to be published by the Authority in accordance with Section

44. It reads thus: “6. Mode of Publication of Public Notice. - The Authority H shall cause the said notice to be published in the manner prescribed

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by section 44 of the Act and may also cause it to be published in the Official Gazette.”

234Copy pinpoint234. In this backdrop, the notice under sub-Section (3) was issued by the Authority on 21.12.2019 under the signature of the Deputy Secretary with a chart disclosing the proposed modifications with locations of all the plots to be subjected to change in land use and the specific change in usage. This was, indisputably, at the behest of and for and on behalf of the Central Government to take the modifications proposed to its logical end. The notice called upon to send all objections/suggestions to the specified authority within a period of 30 days i.e., till 20.1.2020. The stated public notice was in conformity with the prescribed format for such notice as in the 1959 Rules (post 1966 amendment); and the C DDA was well within its powers to issue such notice for inviting objections as per amended rules. The petitioners’ submission that the Authority had no jurisdiction to issue the notice is ex facie tenuous.

235Copy pinpoint235. The notice further stated that the plan indicating the proposed modifications would be available for inspection at the Office of Deputy D Director (MP), DDA as well as on the official website of the Authority. We are impelled to re-extract the relevant part of public notice dated 21.12.2019 thus: “The text/Plan indicating the proposed modifications shall be available for inspection at the office of Deputy Director (MP), E Delhi Development Authority, 6th Floor, Vikas Minar, I.P. Estate, New Delhi on all working days during the period referred above. The text/plan indicating the proposed modifications is also available on DDAs website i.e. www.dda.org.in.” The availability of proposal for inspection by general public is in F line with the mandate of Rule 5 of 1959 Rules. That Rule ensures general public participation and opportunity to raise objections, if any, after carefully studying the proposed changes. Relevant extract of Rule 5 reads thus: “5. Public Notice regarding preparation of Master Plan.— G (1) As soon as may be after the draft master plan has been prepared, the Authority shall publish a public notice stating that - (a) the draft Master Plan has been prepared and may be inspected by any person at such time and place may be specified in those notice; H

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A (b) suggestions and objections in writing, if any, in respect of the draft master plan may be filed by any person with the secretary of the Authority within 90 days from the date of first publication of the notice.”

236Copy pinpoint236. The public notice was followed by receipt of 1292 objections and constitution of the BoEH for considering the said objections. The appointment of BoEH was in accordance with Rule 8 of the 1959 Rules which states thus: “8. Appointment of Board for enquiry and hearing.—(1) The Authority shall, for hearing and considering any representation, objection and suggestion to the draft master plan, appoint a Board consisting of not less than 3 and not more than 5 members of the Authority. Provided that such Board shall have powers to co-opt not more than 2 members from amongst the members of the Advisory D Council. (2) No business of the Board shall be transacted at any meeting unless at least three members are present from the beginning to the end of the hearing.” (emphasis supplied) E

237Copy pinpoint237. Intimation was sent to the objectors regarding the date of hearing before the BoEH. In addition, paper publication was also done on 5.2.2020, regarding the hearing scheduled on 6/7.2.2020 at the specified place and time. The public notice reads thus: “DELHI DEVELOPMENT AUTHORITY F PUBLIC NOTICE Delhi Development Authority issued public notice vide Gazette notification S.O. 4587 (E) dated 21.12.2019 and also published in the newspapers for inviting objections/suggestions from the public G regarding proposed change of land use of Plot No.1 to 7 (Zone- D) and Plot No.8 (Zone-C). As per procedure all the objections/suggestions received within the stipulated time period of 30 days i.e. up to 19.1.2020, will be placed before the Board of Enquiry and Hearing (BoEH). The H

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Board Hearing will be held on 06.02.2020 (Thursday) & 07.02.2020 A (Friday) from 10.30 A.M. onwards at DDA Office, Conference Hall, 8-Block, Ground Floor, Vikas Sadan, INA. Any person who has filed objection/suggestion and wants to present his/her oral evidence in person before the Board, may come to the abovementioned venue on 06.02.2020 & 07.02.2020 to present B his/her views, as per the proposed scheduled, which shall be available on the DDA website i.e. www.dda.org.in (under head ‘HOTLINKS’/’PUBLIC NOTICES’) on 05.02.2020 (12 pm). Concerned persons shall also be informed through E-mail/SMS as per details provided in their representations. C In case any person who has filed objection/suggestion but does not find his/her name in the schedule or has not received any e- mail/SMS, may present his/her oral submission before the Board on the said date i.e. 07.02.2020 (Friday) from 1:00 P.M. to 1:30 P.M. All persons are requested to carry a valid Identity Proof.” D

238Copy pinpoint238. As notified to all concerned, the hearing was conducted in accordance with Rule 9 for considering any suggestion/objection by the general public. Rule 9 reads thus: “9. Enquiry and hearing.— The secretary shall, after the expiry of the period allowed under these rules for making objections, representations and suggestions fix a date or dates for hearing by the Board of any person, or local authority in connection with any objection, representation or suggestion made by such person or local authority in respect of the draft master plan and shall serve on the local authority or any person who may be allowed a personal hearing in connection with such representation, objection or suggestion to the draft master plan, a notice intimating the time, date and place of the hearing. Provided that the Board may disallow personal hearing to any person, if it is of the opinion that the objection or suggestion made by such person in inconsequential, trivial or irrelevant.” (emphasis supplied) After the hearing, the recommendations of BoEH were submitted to the Authority in accordance with Rule 10 which reads thus: H

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A “10. Report of Enquiry.— The Board shall after the conclusion of its enquiry, submit to the Authority a report of its recommendations.” The BoEH took note of all the suggestions/objections of the concerned representationist and after interacting with those in attendance B (42 objectors), made its recommendations as follows: “i. Regarding proposal of change of land use of Plot No.1, it is recommended that the revised proposal for change of land use must be taken afresh under Section 11-A of DD Act, 1957. ii. Among the respondents, majority of whom are Planners/ C Architects, there appears to be a feeling that authentic technical information on this iconic project of Centra Vista is not available in public domain, which is leading to avoidable misgivings. Board recommends that all concerned departments need to address this concern. iii. Keeping in view the strong reservation of the respondents, it is suggested that impact assessment studies on traffic, environment and heritage may be commissioned at the earliest. iv. From the responses received during public hearing, it appears that the present project has not been referred to the Central Vista Committee, although in the past any such project has always been referred to the Central Vista Committee. Authority may like to take a view on this issue and make suitable recommendations to Government of India.” (emphasis supplied) Needless to underscore that the role of BoEH is limited to submitting its report to the Authority of its recommendations. There is nothing in the Act and Rules mandating the BoEH to record reasons or for accepting and rejecting the objections received by it. As per the prescribed procedure, the decision in that regard is that of the Authority. Notably, there is no statutory requirement obligating Authority/Central Government to give personal hearing to the objectors before taking final decision. The competent authority, however, is obliged to take into account the objections and the recommendations of BoEH before taking final decision.

239Copy pinpoint239. Accordingly, the recommendations of BoEH were considered by a committee of the Authority comprising of Lt. Governor, expert H

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members from various agencies, elected representatives of the A Government as well as of the opposition, along with Special Invitees from the MoHUA. This meeting held on 10.2.2020, was organized in accordance with Rule 11 with the purpose of finalizing the plan for the approval of the Central Government. Rule 11 reads thus: “11. Preparation of final draft Master Plan and its submission to Central Government.— The Authority shall, after considering the report of the Board and any other matter it thinks fit, finally prepare the master plan and submit it to the Central Government for its approval.” The Authority in its meeting held on 10.2.2020, after due deliberations, accorded approval to the proposal regarding change in land use of plot nos. 2 to 8 only, on following terms. The minutes of the meeting read thus: “Item No.18/2020 Regarding proposed change of land use of Plot Nos.1,2,3,4,5,6,7 D and 8.F.20(12)2019/MP a) The proposal was presented by Joint Secretary (L&E), MoHUA, In-charge of Central Vista Development/Redevelopment Project, who was present as Special Invitee. She apprised the details of the Project to the members of the Authority. E b) JS, MoHUA informed that during the planning of Capital City- New Delhi, the architects and urban designers – Edward Lutyens and Herbert Baker had prepared an urban design plan for entire New Delhi in such a way that all the important Government offices would come along the Central Vista (Rajpath). However, by the F year 1931, when Delhi officially became capital of India, only five (05) buildings were constructed namely, Rashtrapati Bhawan, Sansad Bhawan, North and South Blocks and first building of the National Archives. She assured that the heritage buildings in the Central Vista shall be conserved. G c) She further informed that for this Project, the following measures are being taken up: i. No trees shall be cut during the implementation of the project. However, some trees may be transplanted for which techniques are available. H

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A ii. Total tree cover shall increase with new plantation. iii. 100% C&D waste shall be re-cycled and utilized within the project. iv. All the green building features will be followed by making most efficient use of resources and adopting modern day construction technologies. v. Rain Water Harvesting (RWH) structures and water conservation measures will be undertaken. vi. Proposed development has been integrated with two metro stations in the Vista namely, Udyog Bhawan and Central Secretariat for commuting public/government employees through an underground shuttle. vii. In the proposed scheme, the Central Government Ministries/ Offices will be moved to the Central Vista thereby cutting down large scale travel across 47 Central Government Ministries/ Offices’ Buildings spread in different parts of Delhi. The proposal, once implemented shall result in easing traffic flow in Lutyens’ Bunglow Zone (LBZ) and in the city. This will result in reduction of vehicular trips thereby reducing carbon footprint, congestion, pollution and accidents. E d) The recommendations of Board of Enquiry & Hearing (BoE&H) and the issues raised by the public in the meeting held on 06.02.2020 and 07.02.2020, were deliberated in the Authority meeting. Member Engineering, DDA-cum- Chairman or BoE&H explained that as has been clarified by JS, MoHUA, the proposed project addresses all issues raised by the public in a comprehensive manner. He informed that all objections and suggestions given by the public were duly considered by the BoE&H. Various objections and suggestions which were pertaining to L&DO and Planning Department of DDA were replied to by the representatives of these respective agencies and the details are available on the record. Based on the detailed deliberations, BoE&H has recommended for issuing public notice for plot no.1 and consideration of allowing change of land use with respect to plot no.2 to 8. H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 469 ORS. [A. M. KHANWILKAR, J.]

e) The following facts were further elaborated by JS, MoHUA: A i. Under the proposed Development / Redevelopment, total public space in the Central Vista is increasing by almost 100 acres. This constitutes the following: A National Bio-diversity Arboretum in 48.6 acres land on the western end of the President’s Estates is proposed to house 1,236 endangered species in 11 different phytological zones. This facility will be open to the researchers as well as to the public. North and South Blocks which cover nearly 27 acres is proposed to be converted into National Museums showcasing India prior to and after 1857. Nearly 25 acres of land on the Western Bank of River Yamuna is proposed to be developed as New India Garden with an iconic structure to commemorate 75 years of India’s independence. D

ii. The project also proposes to develop/re-develop the Central Vista with proper public utilities, green spaces, water bodies, landscaping etc. whose total area will be more than the existing area as 5.6 acres from the existing buildings will be added to E the greenspace. Further, plot no.8 located at Timarpur in Planning Zone-Chaving an area of 3.9 acres is also being added to green spaces of Delhi. iii. The area of over 90 acres currently under Hutments will be properly planned and developed into organized urban spaces. F iv. All necessary approvals for buildings and the facilities will be taken from the competent authorities as and when required. f) Vice Chairman, DDA apprised that a notification number SO 3348 (E) has been issued by the Government of India on 17/10/ G 2017, whereby as per Master Plan for Delhi (MPD) – 2021, ‘Central Government Offices’ are permitted use premise in ‘Public and Semi Public facilities’ (PSP) land use zones. Therefore, Authority is competent to allow Plot No.3,4,5, & 6 which are currently under PSP land use for housing ‘Central Government H

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A Offices’ with 1.88 acres each in the plot no.3, 4 and 6 earmarked as Recreational (District Park). g) Additional Secretary (D), MoHUA and Member, Delhi Development Authority, explained that the Authority is competent to make the proposed modification in the Master Plan for the land B uses as these will not alter the character of the Master Plan since they are in line with the Lutyen & Bakers’ plan of housing Government buildings in the Central Vista. Further, the proposal does not impact the extent of the land uses and the standards of population density as has been envisaged in the Master Plan for C Delhi, (MPD) – 2021. Hence, Section 11(A) (1) or Delhi Development Act, 1957, empowers the Authority to make proposed changes under consideration. Vice-Chairman DDA further corroborated this and stated that only after being satisfied that the Authority is competent under 11(A)(1) of the Act, that the proposal has been considered and submitted for Authority’s approval. D Decision: After detailed deliberations, the proposal is approved as follows: i. A public notice shall be issued for change of land use for plot number 01 from ‘Transportation’ (Bus Terminal/ E parking) and ‘Recreational’ to ‘Residential’ and to be processed under Section 11-A of DD Act 1957. ii. With respect to plot Nos 02 to 07; the proposal of land use change of L&DO is approved. The proposal be submitted to MoHUA for approval/notification. F iii. Change of Land Use for plot No 8 is approved and the proposal be forwarded to MoHUA for approval/ notification.” (emphasis supplied) G As the proposal had originated from the land-owning agency (Central Government), the minutes were forwarded to the Central Government for its further consideration. Upon receipt of the same, the Central Government processed the proposal and after considering all aspects of the matter proceeded to notify the modification of change in H land use vide notification dated 20.3.2020. The same reads thus:

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 471 ORS. [A. M. KHANWILKAR, J.]

“MINISTRY OF HOUSING AND URBAN AFFAIRS A (Delhi Division) NOTIFICATION New Delhi, the 20th March, 2020 B S.O. 1192(E).— Whereas, certain modifications which the Central Government proposed to make in the Master Plan for Delhi-2021/ Zonal Development Plan of Zone-D (for Plot No.02 to 07) and Zone-C (for Plot No.08) regarding the area mentioned here under were published in the Gazette of India, Extraordinary, as Public C Notice vide No. S.O. 4587(E) dated 21.12.2019 by the Delhi Development Authority in accordance with the provisions of Section 44 of the Delhi Development Act, 1957 (61 of 1957) inviting objections/suggestions as required by sub-section (3) of Section 11-A of the said Act, within thirty days from the date of the said notice; D

2. Whereas, 1,292 objections/suggestions received with regard to the proposed modifications have been considered by the Board of Enquiry and Hearing, set up by the Delhi Development Authority and the proposed modifications were recommended in the meeting E of Delhi Development Authority held on 10.02.2020.

3. Whereas, the Central Government have after carefully considering all aspects of the matter, have decided to modify the Master Plan for Delhi-2021 / Zonal Development Plan of Zone-D & Zone-C; F

4. Now, therefore, in exercise of the powers conferred under Sub-section (2) of Section 11-A of the said Act, the Central Government hereby makes the following modifications in the said Master Plan for Delhi-2021 / Zonal Development Plan of Zone [sic]-D & Zone [sic]-C, with effect from the date of G Publication of this Notification in the Gazette of India. Modifications: The land use of the following area of land falling in Zone-D and Zone-C is changed as per description listed below: H

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RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 473 ORS. [A. M. KHANWILKAR, J.]

[F.No.K-13011/6/2019-DD-I] A VIRENDRA KUMAR KUSHWAHA, Under Secy.” (emphasis supplied) On bare perusal of this notification, it is evinced that the final decision is taken by the Central Government and it is so notified in exercise of its powers under sub-Section (2) of Section 11A of the 1957 Act. Being a case of minor modification and as we have held, it does not alter the character of the plan in question including it does not relate to the extent of the land-uses or the standards of population density. The Authority itself could have given effect to its approval in terms of Section 11A(1) of the 1957 Act, as it was competent to do so in that regard and report to the Central Government within thirty days of the date on which such notification came into force as provided by Section 11A(5). However, since the proposal had originated from the land-owning agency (Central Government) as mentioned in the public notice dated 21.12.2019 and was of national importance, the Authority opted to forward the proposal along with its approval to the Central Government for taking appropriate decision. This step taken by the Authority is ascribable to Section 11A(6) of the 1957 Act, which predicates that if any question arises whether the modifications proposed to be made by the Authority are likely to effect important alterations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to the Central Government whose decision thereon shall be final. The Central Government then took the proposal forward and acted upon it by issue of notification which it did in exercise of powers under Section 11A(2) of the 1957 Act. For that, there was no need for the Central Government to issue public notice itself or to constitute its own BoEH to grant hearing to the objectors. As that process had already been completed by the Authority and the Central Government had acted upon the proposal received by it from the Authority, in exercise of powers vested in it ascribable to Section 11A(6) and notified its decision thereon under Section 11A(2) in due course. Under the legislative scheme predicated in Section 11A for modification of plans, the Central Government has the complete authority including to disapprove the decision of the Authority taken under sub-Section (1) and to issue directions under sub-Section (6). The Central Government has ample power to take a decision on all aspects covered by the subject of modifications of plans in terms of Section 11A. Further, its decision H

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A under sub-Section (6) is final. Pertinently, Section 11A is an enabling provision giving limited power to the Authority and complete power to the Central Government in respect of modifications of the plans. The procedure adopted in the present case, considering the totality of the scope of Section 11A of the Act would be legitimate exercise of power by the Central Government including under sub-Section (2) of Section B 11A of the 1957 Act. By no standards, it can be labelled as having been taken in violation thereof or failure of the authorities to follow the prescribed procedure under Section 11A of the Act. There is substantial compliance of the prescribed procedure and the final decision is the consequence or outcome of involvement of all the planning authorities referred to under the 1957 Act. These steps taken by the State authorities and the Central Government in collaboration and after due consideration of all the objections cannot be undermined much less labelled as an illegality. It is not a case of exercise of power by an Authority not competent to do so. At best, it can be said that because of the nature of the project of national importance, a guarded procedure had been adopted by the Authorities concerned albeit within the framework of Section 11A of the Act. Suffice it to observe that the final decision of the Central Government as manifested in the notification dated 20.3.2020 clinchingly points towards substantial compliance of the procedure prescribed for effecting such modifications under the 1957 Act and the 1959 Rules E framed thereunder.

240Copy pinpoint240. The land-owning agency had simultaneously referred the proposal to CVC, who in turn, had already accorded its approval thereto on 9.3.2020 in its 4th meeting. It noted thus: “After detailed deliberation the Committee decided to accord F approval in principle as the process of change of land use had been taken up by the competent authorities. Accordingly, the final approval of change of land use may be communicated to the Committee.” For clarity of record, we note that CVC was engaged on another occasion as well when the proposal for obtaining “no objection” to the G Parliament project was sent for its consideration on 11.04.2020. The said “no objection” was granted by CVC on 23.4.2020 in its 5 th meeting. We shall be dealing with the challenge even to this “no objection” of CVC a little later.

241Copy pinpoint241. Before proceeding further, we deem it pertinent to note that the petitioners’ argument that the Parliament was kept out of the purview

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 475 ORS. [A. M. KHANWILKAR, J.]

of consultative exercise is unfounded on facts. In fact, the proposal regarding the new Parliament Building was placed before the GPC at the inception stage. The GPC, of which the Speaker of the Lok Sabha is the Chairman, is constituted by Members of Parliament being representatives of major national political parties having presence in the Parliament. The committee had met on 19.3.2020 to witness the presentation given by the case proponent through the consultant wherein the members interacted and gave diverse suggestions to be incorporated in the proposal. Detailed presentations explaining the concept as well as the need for the Project were made for all the members. The members made suggestions/comments relating to design, central hall, interiors, access to public, auditorium, lounge rooms, rainwater harvesting etc. C The members were also apprised of various formal developments relating to the Project. Thereafter, budgetary estimate and concept plan were also placed before the Lok Sabha Secretariat and approved by it, as already noted above. We need not dilate on this aspect any further.

242Copy pinpoint242. Reverting to the issue under consideration, the procedure prescribed under Chapter III of the 1959 Rules is applicable to preparation of new master plan/zonal plan. The expression “draft master plan”, used throughout in this chapter, makes it amply clear and leaves nothing to be imagined. The distinction between the two is clear. Strictly speaking, Chapter III does not apply to procedure for modification of plans under Section 11A. In the absence of Chapter III, only Section 11A would determine the procedure for modification of master plan and the procedure under Section 11A is less cumbersome and merely envisages publication of notice and inviting objections for being considered before taking a final decision. It does not prescribe personal hearing to the objectors as such, much less by the Authority or the Central Government, as the case may be. Whereas, even Rule 9 provisions for hearing before BoEH only. Despite this clear position of law, the respondents followed the extensive procedure analogous to under Chapter III of the 1959 Rules even for the subject modifications. It was certainly not a case of preparation of new master plan or a draft master plan. The compliance with building byelaws shall be dealt later. G

243Copy pinpoint243. Notably, on 7.4.2015, a letter captioned as “DDA’s proposal for amendment to MPD-2021 and change of land use cases-reg.” was addressed by MoHUA to Vice Chairman, DDA requiring the Authority to provide separate information on a set of parameters while sending any proposal for amendment to the master plan. The subject proposal H

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A contained all the information as per the aforesaid letter and is found to be in accordance thereof. No procedural infirmity is found on this count. The aforesaid letter is reproduced for ready reference: - “To Dated 7th April, 2015 The Vice Chairman, B Delhi Development Authority, Vikas Sadan, INA, New Delhi Subject: DDA’s proposal for amendment to MPD-2021 and change of land use cases-reg. C Sir, DDA has been sending proposals for amendment to MPD- 2021 and change of land use cases for final notification under Section 11-A of DD Act 1957. It is being observed that DDA has been sending proposals without self contained note/proposals and certain necessary documents such as recommendations of Board of Enquiry & Hearing, Site Map, details of enquiry, details of any ongoing Court Cases etc. are also found missing. As a result, it takes considerable time for examining these cases and extracting the relevant details from the documents annexed to such proposals.

2. Therefore, in order to minimize the time taken for disposal of such cases, DDA is directed to send the proposals containing a self contained note/proposal alongwith the justification which should be complete in all respects. While sending the proposals following information under separate headings should definitely be provided: (i) Whether the land is government or private and who is the land owning agency? (ii) On whose request the change of land use case or modification to MPD-2021 has been initiated? (iii) Whether a responsible officer from DDA (give details) was deputed for inspection of site and a copy of inspection report be provided. (iv) What is the public purpose proposed to be served by modification of MPD and/or change of land use? (v) What will be impact of proposal on the ZDP/MPD and whether the changes are in consonance with the approved plans and policies?

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 477 ORS. [A. M. KHANWILKAR, J.]

(vi) What will be proposal’s impact/implications on general public eg. Law & Order etc.? (vii) Whether any court cases are ongoing on the land mentioned in proposal? Full details be attached.

3. It is, therefore, requested that the proposals should contain above stated information otherwise the proposals would not be considered.

4. There instruction will came into force with immediate effect. Yours faithfully,

(Sunil Kumar) C Under Secretary (DD-I)” It is not the case of the petitioners that the proposal submitted by the project proponent was not in accord with the stated requirements.

244Copy pinpoint244. The procedure followed by the respondents in the present case for change in land use can be delineated in the following chart D furnished by the respondents:

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245Copy pinpoint245. According to the petitioners, the entire process followed is replete with undue haste, particularly in calling for personal/public hearing. However, the facts reveal otherwise. Taking legitimate steps/actions swiftly and as per the timelines because of the nature of the proposal cannot be termed as having been done in a haste. Concededly, no allegation of mala fide in fact has been set out nor the facts of this case commend us to hold it as a mala fide in law. Further contrary to the petitioner’s argument that the window of objections/suggestions was closed before the period of 30 days specified in the notice, upon enquiry of the original records supplied by the respondents, we found that despite 20.1.2020 being the last date for receiving objections/suggestions, the same were received even beyond the period of 30 days. The last recorded objection was received on 21.1.2020 and entered into diary on 22.1.2020. Each one of these objections/suggestions were duly proceeded as if filed in time.

246Copy pinpoint246. We may now examine the legal position as regards the requirement of personal/public hearing. As noticed earlier, sub-Section (3) merely requires the Authority “to consider” the objections and suggestions received from the public. The legislature has not thought it fit to specify any particular manner of consideration in the governing provision of modification. No strict proposition can be laid down in an enquiry of this nature when the legislature has consciously chosen not to provision for personal/public hearing during consideration of the proposal. But only in the form of written suggestions/objections. The petitioners have stated that personal/public hearing is usually given in such cases.

247Copy pinpoint247. We wonder whether such a requirement can be read in this provision by way of necessary implication. The test of necessary implication usually comes into the picture when there is a danger that failure to so infer would necessarily render the provision otiose. It is not a tool used to substitute an opinion out of convenience or out of an uncontrolled exercise of the power of the judicial pen, rather, it is used to preserve an enactment from reaching an unconscionable conclusion. In G Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta 323, a nine-Judge bench of this Court examined the usage of the interpretative tool of necessary implication and observed thus: 323 AIR 1967 SC 997 H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 479 ORS. [A. M. KHANWILKAR, J.]

“(51)… In Sri Venkata Seetaramanjaneya Rice and Oil Mills and others v. State of Andhra Pradesh, [1964] 7 SCR 456 this Court held that an inference of necessary implication binding the State may be drawn if “the conclusion that the State is not bound by the specific provision of a given statute would hamper the working of the statute, or would lead to the anomalous position that the statute may lose its efficacy”. …” It further observed: “(57) … If the application of the Act leads to some absurdity, that may be a ground for holding that the State is excluded from its operation by necessary implication. …” C

248Copy pinpoint248. To read a strict and absolute requirement of personal/public hearing in a particular form and manner in the present case would be to rewrite the provisions altogether. That is uncalled for. The power of judicial review cannot be converted into a power to legislate and the law as regards this proposition is settled. No doubt, had it been a case of D preparation of new master plan, Chapter III of the 1959 Rules explicitly denotes the need for hearing the objections and thus mandatory. That is not the requirement for modification of the plan in exercise of powers under Section 11A.

249Copy pinpoint249. The true import of the phrase “shall consider” used in sub- E Section (3) of Section 11A, would be to decide the manner of public consultation in accordance with the quantum and quality of changes being proposed strictly on a case-to-case basis. The legislature has entrusted this duty on the executing body so as to enable it to mould the manner of consideration as per the prevailing ground realities of a project. The word “consider” is a phrase mandating the competent authority to look into the objections received post public notice, and then take appropriate decision. The designated authority may determine the manner of consideration in accordance with the nature of changes being proposed. Convention is the true guide in such matters. And in the present case, admittedly personal/public hearing was provided in tune with the convention. But the Court need not elevate the convention to a statutory requirement of affording personal hearing to every objection.

250Copy pinpoint250. In Cynamide India324, this Court has had an occasion to examine the purport of expression “such enquiry by the government as 324 (supra at 17) H

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A it thinks fit” in reference to the Drug (Prices Control) Order. It went on to observe that such a provision is only an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in anybody other than the subordinate legislating body. That process is an enquiry leading to a legislative activity, and no implications of natural justice can be read into it unless it is a statutory condition to afford personal hearing.

251Copy pinpoint251. A priori, we are of the view that no uniform formula can be evolved by the Court on its own in matters like these where larger aspects of town planning and infrastructure are involved, and concerns of geography, economy, social conditions, time-frame etc. pose variable challenges across the national spectrum. It is precisely in the same spirit that even in the process of preparation of new master plan, the proviso to Rule 9 of the 1959 Rules empowers the BoEH to deny personal hearing to any person if it is considered to be irrelevant or trivial in light of the objection raised by that person. It reads thus: D “9. Enquiry and hearing - ... ... Provided that the Board may disallow personal hearing to any person, if it is of the opinion that the objection or suggestion made E by such person in inconsequential, trivial or irrelevant.”

252Copy pinpoint252. An argument has been advanced by the petitioners that Rules 8 and 9 of Chapter III of the 1959 Rules, which provide for appointment of BoEH and personal hearing are part of the mandatory procedure of modification. We have already made it clear that Chapter III of the 1959 F Rules applies to preparation of “new master plan” and not to modifications under Section 11A.

253Copy pinpoint253. The stated Rules have been framed in furtherance of Section 56(1) and are divided into five chapters. Chapter III relates to the “Procedure for Preparation of Master Plan” and Chapter V, which was inserted vide 1966 amendment of the 1959 Rules, relates to “Modification to the Master Plan and the Zonal Development Plan”. The subject of modifications, therefore, is dealt under a separate chapter i.e., Chapter V. In the Act also, preparation of master plan is dealt under Chapter III and modifications are dealt under Chapter IIIA which was added later by Act 56 of 1963 by way of an amendment.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 481 ORS. [A. M. KHANWILKAR, J.]

254Copy pinpoint254. Thus, the legislature has demarcated the subjects of preparation and modification in two separate chapters, both in the Act as well as the Rules. And there is a clear distinction between the two in terms of procedure. More importantly, the provisions regarding modification were added later by way of amendments in 1963 (in the Act) and 1966 (in the Rules) and we cannot lose sight of the fact that the legislature was well aware of the pre-existing requirements of personal/public hearing in case of preparation of new plan. Despite such knowledge, it chose not to extend the same standard of public consultation in the process of modification and confined itself to the expression “shall consider all objections and suggestions” as used in Section 11A. No other manner of consultation is prescribed in the 1959 Rules. C

255Copy pinpoint255. It has been stated by the petitioners that even the act of preparation of a new master plan is done by way of a modification and therefore, the requirement of personal/public hearing would be implicit at the time of modification as well. As discussed, it is beyond doubt that the Act as well as the Rules treat these two subjects in separate compartments and it is also beyond doubt that the objective of such separate treatment is to ensure that the process of modification is not subjected to the same rigours as the process of preparing a new plan. Moreover, the language deployed in the notification S.O. 141 dated 7.2.2007 for the new Master Plan and that deployed in S.O. 1192(E) dated 20.3.2020 (the impugned notification for modification) is also of guiding value to answer the argument under consideration. While preparing the new master plan, the expression used is “extensive modifications”, whereas while notifying the present changes (which we have held as minor in nature and not substantive or radical changes to the master plan or for that matter to the zonal plan), the expression used is simpliciter “modification”. The usage of the word “extensive” signifies that despite being modification, the preparation of new master plan proposes extensive changes as it is meant to replace the previous plan once and for all. Accordingly, the scrutiny is higher and is placed in a separate chapter. The same cannot be said about a modification under Section 11A unless it is shown to be substantial or radical which is not the case here.

256Copy pinpoint256. A case of replacement of the original plan with a new one and that of modification in an existing plan cannot be placed on the same footing. This carefully crafted scheme cannot be turned on its head by accepting the submission under consideration. H

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