RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & ORS

A does not detract from) the existing heritage building(s) or precincts especially in terms of height and façade; (iii) Internal changes and adaptive re-use may by and large be allowed. Changes an include extensions and additional buildings in the same plot or compound. However, any B changes should be such that they are in harmony with and should be such that they do not detract from the existing heritage building/precinct.

329Copy pinpoint329. It is clear that restricted development to the extent of repairs and improvements is permissible even on Grade-I building. The C respondents have categorically submitted that none of the listed heritage structures is being touched in violation of the aforesaid restrictions. Furthermore, it has been submitted that the proposed new building (Parliament building) falls outside the domain of HCC as it is situated on a separate plot (plot No. 118).

330Copy pinpoint330. However, in light of the meaning of expression “heritage building”, as provided in 2016 Byelaws, the respondents were asked as to whether plot no. 118 would come within the expression “land adjoining such building”, thereby making it liable for the same level of scrutiny as a Grade-I structure. The respondents maintain that plot no. 118 would fall outside the purview of HCC. That issue needs to be examined by E the HCC in the first place. We need not answer the same in these proceedings. If and when the project proponent seeks clarification/ permission of HCC before commencing work on plot No. 118, the HCC is free to examine the same on its own merits by following procedure prescribed therefor.

331Copy pinpoint331. Having stated the principles relating to the scope of permissible development, we make it clear that we are neither delving further into the question of development of new Parliament building, nor into the question of whether or not the interpretation of the expression “heritage building” would take within its sweep plot no. 118 as well (being situated on adjacent land). For, the 2016 Byelaws clearly state that the respondents G are obliged to obtain “prior permission” of the Commissioner, MCD, Vice Chairman, DDA and Chairman, NDMC before development work commences and the same may be sought (if already not done) as and when the project proponent decides to commence development work upon plot No. 118 for the new Parliament building. The HCC is free to H

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decide that proposal in accordance with law. We do not wish to dilate on this aspect any further and leave all questions in that regard open.

332Copy pinpoint332. For the completion of record, we note that prior “approval” or “permission” of HCC, as the case may be, becomes essential at two different stages. As per clause 1.12 what is required is “prior approval” before processing the proposal for change of use of the listed heritage building/listed precincts. Not for other buildings/sites. Whereas, “prior permission” of the designated Authority is required to be obtained under clause 1.3 before the commencement of development/redevelopment etc. work by the project proponents of the listed heritage buildings/listed precincts including on lands adjoining thereto. The stages and purpose of each of these is distinct. The two do not overlap. In the present case, the former i.e., “prior approval” under clause 1.12 for change in land use of the concerned listed buildings/listed precincts has been granted by the HCC, as recorded in the form of minutes of the Authority concerned, referred to earlier. Thus, what is now needed is “prior permission” of the designated Authority under clause 1.3 before the development/redevelopment etc. work by the project proponent is commenced on the listed heritage buildings/precincts/natural feature areas including on plot No. 118 (for construction of new Parliament building) being a land adjoining to a Grade I listed heritage building, if already not obtained. ENVIRONMENTAL CLEARANCE (EC) E

333Copy pinpoint333. We may now examine the validity of EC granted to the proposed Parliament project on plot no. 118 by MoEF. On a thorough perusal of the submissions and documents on record, the following questions emerge for our consideration in this part: (i) Whether the respondents have acted in violation of 2006 F Notification and O.M. dated 24.12.2010 by not submitting the entire Project i.e., Central Vista Project as conceived by the Government of India, for EC at the same time? (ii) Whether the applicant misdescribed/miscategorised the Parliament project as Category B2 (Building & Construction) G project in item 8(a) as per the 2006 Notification so as to reduce the level of scrutiny? (iii) Whether the grant of EC by MoEF and recommendation thereof by EAC stands vitiated on account of non-application of mind and failure to discharge their mandate as per law? H

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334Copy pinpoint334. We may begin this discussion by briefly examining the law relating to the requirement of EC under 2006 Notification. For the purpose of clearance, clause 4 of the Notification requires categorisation of the project/activity either as category or category depending upon the spatial extent and potential impacts on human health, natural and manmade resources. It states thus: B “4. Categorization of projects and activities: - (i) All projects and activities are broadly categorized in to two categories – Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources. …” Clause 6 provides for the application of prior EC to be made by the project proponent. Notably, this clause makes it clear that such application must be made after identification of the prospective site for the project and before actual commencement of the construction activity or preparation of land. It states thus: “6. Application for Prior Environmental Clearance (EC):- An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and E Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a F copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility report.” G Along with the application in Form I and Form IA, a pre-feasibility report is to be prepared and attached by the project proponent. However, in cases falling under item 8 of the schedule, instead of a pre-feasibility report, a conceptual plan is to be supplied along with Form I and Form IA. The petitioners had advanced an argument that the respondents failed to submit a pre-feasibility report while making the application for H

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clearance for construction of new Parliament building. The same is turned A down in light of the position of law as aforesaid.

335Copy pinpoint335. While making application on 12.2.2020, the project proponent had submitted three documents to the EAC, including the conceptual plan and no infirmity is found on this count. The application letter states thus: B “… We are enclosing the following documents for your kind perusal.

1. Form 1 as per EIA Notification 2006.

2. Form 1 A as per EIA Notification 2006 duly filled with all requisite Annexure Drawings/Plans. C

3. Conceptual Plan.”

336Copy pinpoint336. After the submission of application, the scrutiny process goes through four broad stages as per clause 7. Notably, the clause makes it clear that all four stages may not be warranted in all projects and the same would depend upon a host of other factors as we shall see. The D four stages are sequenced thus: “I. Stage (1) – Screening: In case of Category ‘B’ projects or activities, this stage will entail the scrutiny of an application seeking prior environmental clearance made in Form 1 by the concerned State level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant of environmental clearance depending up on the nature and location specificity of the project. The projects requiring an Environmental Impact Assessment report shall be termed Category ‘B1’ and remaining projects shall be termed Category ‘B2’ and will not require an Environment Impact Assessment report. For categorization of projects into B1 or B2 except item 8 (b), the Ministry of G Environment and Forests shall issue appropriate guidelines from time to time.” (emphasis supplied) The underlying idea of this stage is to analyse the level of scrutiny that a particular project ought to go through and whether further stages H

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A would be attracted or not. At the stage of screening, the EAC decides whether an impact assessment report is required for further appraisal or such appraisal would be permissible without an impact assessment report. It further makes it clear that once a project is categorized as B2 project after screening stage, no Environment Impact Assessment Report361 shall be required. B Thereafter, the second stage of “Scoping” comes in, which is defined as: “II. Stage (2) – Scoping: (i) “Scoping”: refers to the process by which the Expert Appraisal C Committee in the case of Category ‘A’ projects or activities, and State level Expert Appraisal Committee in the case of Category ‘B1’ projects or activities, including applications for expansion and/ or modernization and/or change in product mix of existing projects or activities, determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought ...” This definition then makes it clear that no scoping is mandated for projects categorized as category B2 in item 8 of the Schedule and appraisal of such projects shall take place on the basis of Form I and Form IA. It is noted that: “…All projects and activities listed as Category ‘B’ in Item 8 of the Schedule (Construction/Township/Commercial Complexes / Housing) shall not require Scoping and will be appraised on the basis of Form 1/ Form 1A and the conceptual plan.” F S.O. 996(E) dated 10.4.2015 published in the Gazette of India also makes it clear that projects falling under category B against item 8(a) do not require scoping. The relevant extract thereof notes thus: “Provided also that the following shall not require Scoping- G (i) all projects and activities listed under Category ‘B’, against Item 8(a) of the Schedule; ... ...”

361 For short, “EIA Report” H

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It further notes that the projects/activities referred in the aforesaid clause shall be appraised on the basis of Form I, Form IA and the conceptual plan thus: “Provided also that- (A) the project and activities referred to in clause (I) shall be appraised on the basis of Form I or Form IA and the conceptual plan; ...” The third stage is of public consultation which is defined as: “III. Stage (3) – Public Consultation: C (i) “Public Consultation” refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category ‘A’ and Category B1 projects or activities shall undertake D Public Consultation, except the following: - ... ... (d) all Building /Construction projects/Area Development E projects and Townships (item 8). (e) all Category ‘B2’ projects and activities. ...” (emphasis supplied) F

337Copy pinpoint337. Without a doubt, there is no requirement of public consultation in category B2 projects and building or construction projects in item 8(a). It is also made clear that such consultation, wherever required, is to cater to the concerns of locally affected persons and others who have a plausible stake in the environmental impacts of the project or activity. G

338Copy pinpoint338. The fourth and most prominent stage is of appraisal. This is the stage of actual scrutiny of the proposal by the expert committee. The definition itself makes it clear that there is no uniform and unalterable standard of scrutiny for all projects, irrespective of their expanse and nature. Appraisal is defined as: H

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A “IV. Stage (4) – Appraisal: (i) Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, B submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. C On conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior D environmental clearance, together with reasons for the same.” At the cost of repetition, albeit with the benefit of clarity on the legal position, we note that clause (ii) reiterates the same legal position as regards the material on the basis of which appraisal of category B item 8(a) projects (projects not requiring public consultation) is to be done. It is stated that: “(ii) The appraisal of all projects or activities which are not required to undergo public consultation, or submit an Environment Impact Assessment report, shall be carried out on the basis of the prescribed application Form 1 and Form 1A as applicable, any other relevant validated information available and the site visit wherever the same is considered as necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned.”

339Copy pinpoint339. The aforesaid legal position makes it clear that both basis as well as level of scrutiny of a proposal strictly depends upon the categorization of project. The 2006 Notification draws a clear balance and does not prescribe equal level of scrutiny for all projects.

340Copy pinpoint340. We may now examine the basis of categorization of projects/ activities. The Schedule attached with the Notification incorporates a “List of Projects or Activities Requiring Prior Environmental Clearance”. H

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Item 8 in category is divided into two sub-categories – item 8(a) titled A “Building and Construction projects” and item 8(b) titled “townships and Area Development projects”. The distinction lies in the expanse of built- up area of the proposed project. The Schedule specifies that a project with built-up area falling between 20,000 sq.m. and 1,50,000 sq.m. would be categorized as building and construction project in item 8(a). Notably, B the term “built-up area” is defined as: “... the built up or covered area on all the floors put together, including its basement and other service areas, which are proposed in the building or construction projects.”

341Copy pinpoint341. As per the Form I and Form IA submitted by the project proponent and final EC, it is a matter of record that plot no. 116 (which houses the existing Parliament building) has a built-up area of 44,940 sq.m. and proposed built-up area on plot no. 118 is 65,000 sq.m. Therefore, total built-up area covered in the proposed project is 1,04,740 sq.m. and as per the specification provided in 2006 Notification, the project is to be categorized as category B project in item 8(a). In light of the legal position enunciated above, the appraisal of this project is mandated on the basis of Form I and Form IA. Contrary to the petitioner’s argument, the requirements of scoping and public consultation are not warranted for the subject project.

342Copy pinpoint342. The petitioners have advanced an argument that the respondents resorted to foul play in misdescribing/miscategorising the project by carving out the Parliament project from the Central Vista Project. However, on a closer and comprehensive examination, we are of the view that the argument lacks merit. The argument draws support from the fact that in tender for consultancy services and public notice dated 21.12.2019 inviting objections to change in land use, the respondents had referred to the project as a uniform whole.

343Copy pinpoint343. Principally speaking, in a matter of planning and development activity, the Government has the sole prerogative to decide the nature, expanse and timeline of development work. The Government may choose to begin the development of an entire region at once or do it in a phased manner. We hasten to add that this prerogative of the Government is subject to due observance of rules, regulations and other procedures. The scrutiny of the Court is to ensure that the Government does not transgress its boundaries in the task of governance. For the purpose of inviting a consultant and changing use of land involved in the project, it is H

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A understandable, rather desirable, that the entire project is treated as one. It would be absurd to invite different consultants for different components of a project, the very idea behind which is to ensure uniformity of design and efficiency. It would be a never-ending spiral. The job of consultant herein was to present a vision document for the whole project at once so that the Government is in a position to plan further course of action as B per the approved design. It could not have been expected to seek such consultancy services in a piece-meal manner. Therefore, merely because the project was presented as a cumulative one for the aforesaid purposes, it cannot be inferred that the Government intended or is legally obliged to treat it as such from the stage of conception to the stage of execution.

344Copy pinpoint344. Be that as it may, once the Government has ensured that the proposed usage of land is in sync with the desired purposes as also the existing usage and has finalized a uniform vision of development, it would be well within its domain of policy to timeline the project in a phased manner for the purpose of actual execution. Such phasing may take D place on the basis of various factors, including but not limited to, the source of financing for different components, purpose of different components, operational requirements, imminence of need including owner or authorized user of land. Thus, a relevant factor to be kept in mind is the factum of land ownership or control. In this case, the land involved in the Parliament project is under the control of Lok Sabha E Secretariat and other plots involved in the common central secretariat project are owned by L&DO, MoHUA. Furthermore, it is pertinent to note that the Parliament project is being financed by the Lok Sabha Secretariat, whereas the remaining projects shall be financed by different Ministries. Thus, the ownership of the structures would be in different entities, albeit being part of Government of India. Notably, the Parliament project is meant to serve a different organ of the State i.e., Legislature, whereas the remaining projects are intended to cater to the needs of Executive in general and different departments of the Government of India in particular. It is also a matter of record that the timeline proposed for the Parliament project culminates in 2022, whereas the remaining projects shall go on till 2026.

345Copy pinpoint345. Apart from the aforesaid differences, we must note that there is no similarity of design between the proposed Parliament complex and central secretariat. From an operational point of view as well, the two projects have separate operational concerns and are not dependent upon H

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each other for any purpose. The functioning of the Parliament is not in A any way dependent upon the availability of new central secretariat. The Parliament functions at limited intervals during the year, whereas the offices of central ministries continue their functioning throughout the year and therefore, the footprint and utility of both these projects are distinct. B

346Copy pinpoint346. It would not be out of place to note that even change of policy is well recognized as a function integral to governance. In Col. A.S. Sangwan v. Union of India & Ors.362, the Court rightly noted the possibility of changes in policy matters and noted thus: “4. ...A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and imperatives of national considerations. We cannot, as Court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. In this view, we agree with the submission of the Union of India that there is no bar to its changing the policy formulated in 1964 if there are good and weighty reasons for doing so. We are far from suggesting that a new policy should be made merely because of the lapse of time, nor are we inclined to suggest the manner in which such a policy should be shaped. It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or give it up. But one imperative of the Constitution implicit in Art. 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. …” (emphasis supplied) In Secretary, Ministry of Chemicals and Fertilizers, G Government of India v. Cipla Ltd. & Ors.363, the Court expounded the correct approach to deal with policy documents in a judicial review and noted thus: 362 1980 Supp. SCC 559 363 (2003) 7 SCC 1 H

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A “4.1. It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go- by to the policy guidelines evolved by itself in the matter of selection of drugs for price control. The Government itself stressed on the need to evolve and adopt transparent criteria to be applied across the board so as to minimize the scope for subjective approach and therefore came forward with specific criteria. It is nobody’s case that for any good reasons, the policy or norms have been changed or have become impracticable of compliance. That being the case, the Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14.” (emphasis supplied)

347Copy pinpoint347. In Sooraram Pratap Reddy & Ors. v. District Collector, Ranga Reddy Distt. & Ors.364,the Court has categorically noted that the determination of what is mandated for public purpose is a domain of the government and until and unless such decision is found to be ultra vires a statute or irrational or unreasonable or vitiated by fraud, there is no occasion for the courts to interfere. In Sooraram Pratap Reddy365, F the Court noted the dynamic nature of public purpose thus: “108. … It was also observed: (Motibhai case AIR, 1961 Guj 93 AIR p. 104, para 43) “43. Public purpose is not a constant. The scope of an G expression which conjugates general interest of the public must necessarily depend inter alia on social and economic needs and broad interpretation of the democratic ideal. It must alter as social and economic conditions alter. The social and economic theorist may contend for an extremely wide 364 (2008) 9 SCC 552 H 365 (supra at 363)

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application of this concept of public purpose and overemphasise the element of the general interest of the public. The reactionary on the other hand may strive for stringent restraints on its shifting boundaries and oppose any shift in emphasis. The true rule of the matter would seem to lie midway. The Court will not attach too much weight to the apparent character of the activity or agency but would prefer to lean in favour of an application of the rule which has regard to the substance of the matter and embraces activities, engagements and operations which would serve the common good as being affected with public interest. The application of the rule must rest on the modern economic system of a welfare State having its own requirements and problems. C The application of the rule would not be governed by right distinctions nor would the economic principle be allowed to be blurred by the blending of forms and interests.” …..” (emphasis supplied)

348Copy pinpoint348. It is true that the 2006 Notification prescribes for a cumulative D impact assessment. We are in agreement with the proposition that the basic purpose of an environmental impact assessment is to determine and mitigate the cumulative impact of a project - if the project proponent intends to commence development together or within reasonable time space. However, the meaning of the expression “cumulative impact/ E effect’ is not to be understood as an expression of art. It does not shun segregating an independent project. In an examination of this nature, the foremost requirement is to identify the precise expanse of a project. For this purpose, the first source is the information supplied by the project proponent in Form I as it expressly requires information on any interlinked projects. Upon the receipt of that information, it falls upon the EAC to check and scrutinize whether there is more to the project which has been left out of its scrutiny. This latter scrutiny is dependent upon the nature of the project as it would involve collective consideration of all operational aspects of a project. It does not mean connecting independent projects upon a subjective notion that it is necessary to do so for a collective appraisal merely because such projects fall in the same region. The word ‘cumulative’ is to be read in conjunction with the word ‘project’ and idea behind examination of cumulative impact is to assess the impact of the project including all its functional components, and not of all development activities going on in a region. H

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349Copy pinpoint349. In the light of 2006 Notification read with Office Memorandum dated 7.10.2014 issued by MoEF, it is settled that environmental clearance is always site specific and is required to be obtained only before the actual commencement of work on the project and not before that. Thus, there is no sound basis for the argument that the Central Secretariat project must be assessed with the Parliament project. For, the stage of commencement of work in respect of the former Project has not reached yet and indisputably the same will be on a different site altogether.

350Copy pinpoint350. Once the project proponent frames a conscious timeline of completion of various projects which broadly fall under the umbrella of a common vision for the region, the same cannot be disturbed on the notion that the whole vision should go through the regulatory compliances at once. That would defeat the whole purpose of advance planning of a development activity. Planning involves in-depth consideration of a wide range of concerns including regulatory requirements. The decision to attribute different timelines and purposes to different projects is a domain of planning and the Court cannot readily attribute the label of mala fides to such informed decision until and unless there is a clear attempt to evade the requirements of law. Noticeably, the Parliament project involves two components – renovation of existing building and construction of new building on adjacent plot – and both these components have been submitted for collective assessment by the project proponent. If these components would have been separated and submitted for clearance in a piece-meal manner, it would have been a case of “cake-slicing” the project. For, these two components are functionally and intrinsically connected and must be considered cumulatively.

351Copy pinpoint351. The petitioners’ reliance upon O.M. dated 24.12.2010 titled F “Consideration of Integrated and Inter-linked projects – Procedure Regarding” is misplaced. The real purport of this O.M. is to ensure that projects which entail multi-sectoral components are not dissected by the project proponent in a sectoral manner, thereby rendering the EAC incapable of assessing the multi-dimensional aspects of a project. The G first and foremost requirement for the applicability of this O.M. is that the subject project should involve multi-sectoral components. The case on hand does not involve multi-sectoral components to it as it is a simpliciter construction project. If a project does not involve multi-sectoral components, there is no occasion for the EAC to examine this aspect. The words “integrated” and “inter-linked” offer guidance on this count. H

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Any two activities/projects could be said to be integrated or inter-linked when they are functionally connected in the manner that operability of one is intrinsically dependent on the operability of another. It is a scientific and functional connection, not a hypothetical or theoretical connection. The above discussion on cumulative impact supplements this position. In Dictionary of Environment & Ecology366, the approach of integrated pollution control is defined as one which takes into account all inputs and outputs from “a process”. It signifies that the strategy ought to be to regulate and monitor the effects of the process in question and the process which is “actually going on”. For, the real concern must be to regulate an ongoing process by mitigating its effects, if any, and not to anticipate effects of those processes which are not ongoing at the moment but are merely future processes. Such cannot be the import of cumulative assessment. It reads thus: “Integrated pollution control, integrated pollution prevention and control. an approach which looks at all inputs and outputs from a D process that is likely to cause pollution and regulates other factors as well as emissions.” (emphasis supplied) In Dictionary of Architecture and Construction 367, the expression “building system” is defined thus: “Building system.

2. An assembly of integrated building subsystems satisfying the functional requirements of a building.” (emphasis supplied) The aforesaid definition provides that functionality is the core element in deciding what comprises of a building system. Thus, different components which are not only separated by area but also do not depend upon each other for functional needs cannot be treated as a part of one building system. This is corroborative of the legal position exposited above in the discussion. 366 Dictionary of Environment & Ecology, Bloomsbury, P.H. Collin, 5 th Edn., page 116 367 Dictionary of Architecture and Construction, McGraw-Hill, Cyril M. Harris, 4 th edn, page 150 H

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352Copy pinpoint352. Irrefutably, any exposition on what could amount to an integrated project, thereby calling for a cumulative assessment, has to be done with circumspection. For, the 2006 Notification would apply equally to other public projects including private projects without variation in the legal standard. The question here is whether a common builder/ developer undertaking construction work on ten different plots totalling B upto thousand acres scattered in different areas of a region/state/country and not adjoining or contiguous could be subjected to the rigours of cumulative assessment equivalent to an integrated project merely because the total area across which the projects are spread, when added up, turns out to be beyond permissible limits warranting such assessment. C That is not the dispensation prescribed by law as of now. In our considered opinion, this interpretation would be counter-productive to the very idea of sustainable development. To be considered as integrated, the plots must involve multi-sectoral components in close proximity if not contiguous and fulfil other specifications under the notification.

353Copy pinpoint353. The tenor of the 2006 Notification shows that the grant of environmental clearance is project as well as owner/builder specific. Appendix I attached with the notification contains the format of Form I. The terminology used in the format includes expressions such as “Name of the Project/s”, “Name of the applicant”, “Designation (Owner/Partner/ CEO), “Address”, “Location, Plot/Survey/Khasra No.” etc. which reveal that the application for grant of clearance initiates from the owner of the subject land and is a site-specific exercise. Merely because the proponent (Central Public Works Department – CPWD) undertakes multiple independent projects/activities of similar type, that by itself cannot be the basis to assess the category applicable for the purpose of the notification under consideration. Furthermore, item 8 in the Schedule attached with the 2006 Notification providing for “List of Projects or Activities Requiring Prior Environmental Clearance” provides that environmental clearance is warranted only when the built-up area (project- specific) is equal to or exceeds 20,000 sq.m. Thus, if the built-up area of a particular owner does not exceed the aforesaid minimum threshold, there would be no occasion for such owner to apply for any clearance. This ought to be even if the common builder engaged by such owner is working on other projects in the same region. That would not ipso facto subject the owner to the 2006 Notification.

354Copy pinpoint354. As discussed above, the factum of land ownership is equally pertinent in such enquiry. If ownership or control over the land to be

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developed vests in different entities, then merely because the common builder (CPWD) is developing different projects, cannot be assessed as a uniform or as an integrated/interlocked project. It would be anomalous to press different owners for a collective environmental appraisal (of higher standard) merely due to location of their sites in close proximity despite the fact that development thereof is yet to commence and do not involve multi-sectoral components.

355Copy pinpoint355. Furthermore, it is relevant to note that the 2006 Notification is not toothless in the face of misinformation in Form I. Clause 8 of the 2006 Notification, in clause (vi), provides for appropriate recourse in case any information in Form I is found to be false and misleading (including information relating to interlinked projects). It states thus: C

“8. Grant or Rejection of Prior Environment Clearance (EC): … (vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice.” We find merits in the plea taken by the respondents that the Parliament project cannot be regarded as inter-linked or inter-dependent with the central secretariat project. The differences relating to functionality, budgeting, timelines and purpose are glaring and substantial.

356Copy pinpoint356. Notably, the argument of the petitioners alleging fraud in segregation of the project is also devoid of merit. For, it completely blurs the line between a conscious policy decision to separate the development project need-based and concealment, misrepresentation or fraud. Fraud stands on the foundation of a fraudulent mental intent and culling out that specific intent is a pre-requisite for establishing the ground of fraud in a court of law. The petitioners’ argument of fraud lacks a judicial sustainable basis. H

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357Copy pinpoint357. The information supplied by the proponent in Form I is the pivot around which our examination revolves. The form has supplied information on various aspects, as required. We may now advert to certain specific aspects for the purpose of this examination: (i) Change in land use, land cover and topography – It is B informed that land use is being changed from recreational use to Government use/Parliament. (ii) Clearance of existing land, vegetation and buildings – It is informed that there are 250 trees on plot no. 116 and 326 trees on plot no. 118. The trees on plot no. 116 are not being touched in the process, however, 194 trees out of 250 C trees on plot no. 118 are proposed to be translocated for clearing the space for the new structure. It is further informed that 250 new trees are proposed to be planted in plot no. 118. (iii) Pre-construction investigations – it is informed that pre- D construction investigations have been done. (iv) Temporary sites to be used during construction and housing of workers – it is informed that around 3200 workers are to be engaged for the construction activity and they will be housed in earmarked camps. E (v) Earthworks - It is informed that the project involves earthworks for which cut and fill shall be done, and additional earthwork shall be utilized for Government construction projects in NCT and nearby areas. (vi) Facilities for storage of goods or materials – It is informed that provisions have been made for separate warehouses and storage spaces. (vii) Treatment/disposal of solid waste or liquid effluents – It is submitted that the project will generate solid waste both during construction as well as operational phase. A comprehensive plan has been prepared for the disposal of said waste. During the construction phase, a “Construction and Demolition (C&D) Waste” management plan has been made which primarily covers: (a) Proper collection to avoid spillage, nuisance, traffic congestion, choking of drains and covering of storage spaces.

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(b) Segregation of generated waste into concrete, soil, steel, wood, plastic, bricks and mortar. (c) Re-use and recycling at C&D waste management facility. It is further informed that for the management of municipal solid waste, a different approach has been devised which includes: B

(a) Segregation of municipal solid waste into bio- degradable, non-bio-degradable, hazardous waste and garden waste, and supplying this waste to authorized personnel as per NDMC norms. C (b) Organic wastes to be composted through an in-house mechanism. During the operational phase, it is informed that waste would be generated in the same manner as in the construction phase and estimates state that maximum solid waste generation could be 4826.35 kg per day including the waste generation during Parliament session. (viii) Wastewater generation – It is informed that wastewater generation shall take place both during construction phase and operational phase. The management approach regarding both these phases is provided thus: “Construction Phase During construction phase, liquid effluents will be collected, stored, treated in a wastewater/sewage treatment plant and re-used for either gardening, construction related needs such as curing or flushing or sprinkling as per the guidance of the Delhi Pollution Control Committee after securing necessary Consents. Operation Phase It is estimated that ~438 KLD of wastewater will be generated from the project (including the existing and proposed parliament buildings) during operation phase, which will be treated in wastewater/sewage treatment plant to comply with the requirements of the Consent to Operate issued by the Delhi Pollution Control Committee H

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A (DPCC). Thereafter, the water will be re-used for flushing (a dual plumbing system will be installed in the new building) or in the Heating, Ventilation and Air- conditioning (HVAC) systems.” (ix) Increase in traffic – It is informed that road traffic will B increase during the construction phase and of visitors during the operational phase. (x) Dismantling of existing structures – It is informed that existing structures on plot no. 118 (proposed land for new Parliament House) will be dismantled. C (xi) Influx of population (temporarily or permanently) – It is informed that 3200 workers would be engaged during the construction phase and during the operational phase, approximately 9500 people (inclusive of 4500 permanent employees and 5000 temporary staff/visitors) would be present at the site. (xii) Water management and source of water – It is informed that a water management plan has been devised for construction phase and operational phase. During the construction phase, 180 KLD water will be required which will be generated through recycling of available sewage waste water and other sources. Additionally, 45 KLD of water will be outsourced from NDMC supply for domestic usage. For the operational phase, water management is prepared for both existing and proposed project.

F (xiii) Involvement of hazardous substances – It is informed that there shall be no storage of hazardous substances except diesel for operational needs. (xiv) Hazardous wastes – It is informed that hazardous wastes generated during the project shall be dealt in accordance with Hazardous and Other wastes (Management and G Transboundary Movement) Rules, 2016 and handling, storing, recycling, transporting, disposal shall be in accordance with the orders/approvals from DPCC. (xv) Emissions – It is expected that fugitive emissions from handling, loading, unloading shall be released during the H

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construction phase. To minimize such emissions, the following steps are proposed: (a) loading/unloading to be done under covered area; (b) proper barricading to reduce offsite dust generation; (c) transportation of material to be done under covered means of transport; (xvi) Dust/odours – To prevent emergence of dust and foul odour, it is proposed that a comprehensive plan shall be made to be operative in construction phase and operational phase. During the construction phase, the following steps are proposed: (a) water sprinkling for dust suppression; (b) mobile/temporary toilets; (c) temporary solid waste storage on the site; D For the operational phase, it is informed that owing to landscaped nature of the site, there will be minimum dust generation including that from vehicular emissions. (xvii) Deposition of pollutants – It is informed that there will be some dry deposition due to air emissions near the E proposed site and special care will be taken during the construction phase to prevent the same.

358Copy pinpoint358. In Form I-A, the project proponent has submitted a detailed checklist of environmental impacts on land environment, water supply, waste handling, water environment, fauna, air environment, socio- F economic impacts, energy conservation. Furthermore, an elaborate Environment Management Plan368 has also been submitted. The EMP is prepared in a phased manner to take care of a myriad set of concerns anticipated during the construction phase and operational phase. The purpose of EMP is noted in the following terms: G “Purpose of EMP The environment management plan is prepared with a view to facilitate effective environmental management of the project, in general and implementation of the mitigation measures in particular. 368 For short, “EMP” H

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A The EMP provides a delivery mechanism to address potential adverse impacts and to introduce standards of good practice to be adopted for all project works. For each stage of the programme, the EMP lists all the requirements to ensure effective mitigation of every potential biophysical and socio-economic impact. For each impact or operation, which could otherwise give rise to impact the following information is presented: • A comprehensive listing of the mitigation measures (actions) that the project proponent will implement; • The parameters that will be monitored to ensure effective implementation of the action; • The timing for implementation of the action to ensure that the objectives of mitigation are fully met.” The EMP is produced hereinbefore for better appraisal: -

D Table 1: Environmental Management Plan

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359Copy pinpoint359. The EAC (Infra-2), in its 49th Meeting on 25-26.2.2020, considered the application for grant of EC. The minutes of the meeting reflect that the committee took note of various aspects of the project including need of the project, present use, preservation and expansion of green spaces and measures to reduce environmental impact during construction phase. The committee also noted that a large number of representations have been received whereby various objections have been raised on the project. Upon deliberation, EAC found the application to have inadequate information and returned the same noting thus: “… The EAC deliberated upon the proposal and noted that the project will provide a larger parliament building for the nation for better functioning of the legislature. Additionally, the project will also provide short term and long term employment opportunities. The proposed project will also make a positive contribution to social infrastructure and overall development of the region. There may be some environmental impacts (e.g. on soil, ambient noise levels, traffic, etc.) which can be mitigated by taking preventive measures during operation. The EAC also took note of the issues raised in the representation(s) and response given by the project proponent in its submission and conceptual plan and Environment Management Plan submitted. The Committee after detailed deliberation asked the project proponent to submit the following for further deliberation: H

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(i) Revised Form-1/1-A along with details of total built-up area A proposed for expansion. (ii) Scope of renovation of existing Parliament Building. (iii) Status of Court Case(s) pending in Courts/Tribunals related to the project. (iv) Traffic Management Plan. B (v) Point wise reply to the representations received. (vi) Updated Master Plan of Delhi showing land-use of plot no. 118. The proposal thus stood deferred. C

360Copy pinpoint360. The requisite documents were supplied by the project proponent to EAC along with modified Form I/I-A. A detailed conceptual plan titled “Conceptual Plan for Environmental Clearance of Expansion and Renovation of Existing Parliament Building” was also prepared and submitted by the proponent for appraisal by EAC. The conceptual plan consists of details on various environmental aspects which can be D summarized thus: (i) Environmental sensitivity; (ii) Connectivity with national highways, railway stations, airports and state boundaries; (iii) Project cost; E (iv) Project details covering information relating to plot area, built-up area, permissible ground coverage, proposed ground coverage, proposed construction area, area to be demolished, power requirements, fresh water requirements, waste water generation, number of trees to be translocated and number of trees to be planted.; (v) Population density; (vi) Complete layout of sewage treatment plant; (vii) Storm water drainage system; (viii) Flow charts for solid waste management and composting systems; (ix) Power backup, firefighting system and landscaping.

361Copy pinpoint361. To assuage the concerns relating to traffic management, a comprehensive “Traffic Circulation & Management Plan for New H

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A Parliament Building” has been released. The preamble of the plan reads thus: “1.1PREAMBLE ... Traffic circulation and management plan is the outcome of proposed redevelopment of Parliament in Central Vista addressing road blockage issue during movement of President of India, PM & VIPs. With the new proposed Parliament building, internal circulation of vehicular traffic for self-driven cars, pickup and drop-off locations for VIPs needs to be addressed in regards with efficient vehicular access & circulation with associated security measures. Construction activity for proposed redevelopment of Central Vista includes large number of movements of construction machinery & equipment. With consideration of construction phasing, hindrance to traffic and road restriction on movement of heavy vehicles during day time, provision of temporary road construction and work zone planning shall be decided. …”

362Copy pinpoint362. Furthermore, a copy of representations received by the project proponent along with point-wise replies was placed before the EAC. Mr. Ashwani Mittal, Executive Engineer, CPWD submitted a E comprehensive chart on “Key Issues Pertaining to Project, Pollution Sources, Assessment Methods and Mitigation/Management Suggested”. The chart lays down possible concerns and planned mitigation/ management measures on ten functional areas of the project, namely - a. Air Pollution; F b. Noise Pollution; c. Water; d. Solid Waste (mainly municipal); e. Risk Assessment; f. Ecology and biodiversity; G g. Land use; h. Socio-economic impacts; i. Hydrogeology and Geology; j. Soil Conservation. H

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The same are reproduced for better appraisal: - A KEY ISSUES PERTAINING TO PROJECT, POLLUTION SOURCES, ASSESSMENT METHODS AND MITIGATION/MANAGEMENT SUGGESTED

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363Copy pinpoint363. The revised application along with the aforesaid details and documents was reconsidered by the EAC in its 50th Meeting on 22- 24.4.2020. The committee considered the relevant information on record and considered the application in light of the representations/objections received. The committee noted that more representations have been received ahead of the 50th meeting and considered the same during appraisal. The committee then took into account the information on record and mitigation measures, wherever applicable, and recommended the project for grant of EC, with fifteen specific conditions. We may now analyse the conditions: - I. For operationalizing the project, the committee recommended that Consent to Operate be obtained thus: C “(ii) Consent to Establish/Operate for the project shall be obtained from the Delhi Pollution Control Committee as required under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974.” D II. To ensure adequate fire safety measures, the committee recommended to install proper measures and equipment in accordance with National Building Code and noted thus: “(iii) The project proponent shall provide for adequate fire safety measures and equipment as per National Building Code/ required by Fire Service Act of the State and instructions issued by the local Authority/Directorate of fire, from time to time. Further, the project proponent shall take necessary permission/ NOC regarding fire safety from Competent Authority as required.” III. The committee put a cap on the fresh water requirement and stated that the Consent to Operate shall not be granted before requisite permissions relating to water requirements have been obtained. It recommended thus: “(v) As proposed, fresh water requirement from NDMC shall not exceed 210 KLD. Consent to Operate (CTO)/Occupancy G Certificate shall be issued only after getting necessary permission for required water supply from NDMC/concerned authority.” IV. As regards sewage treatment, the committee recommended the use of Membrane Bioreactor (MBR) technology for sewage H

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A treatment. It further recommended that treated effluent be re- used for flushing and HVAC Cooling thus: “(vi) Sewage shall be treated in the STP based on MBR Technology with tertiary treatment i.e. Ultra-Filtration. The treated effluent from STP shall be recycled/re-used for flushing B and HVAC cooling. As proposed, no treated water shall be discharge to Municipal drain.” V. The committee further recommended a monitoring plan for continuous monitoring of the proper use of treated waste water. It recommended thus: C “(vii) The project proponents would devise a monitoring plan to the satisfaction of the State Pollution Control Board so as to continuously monitor the treated waste water being used for flushing in terms of faecal coliforms and other pathogenic bacteria.” D VI. The committee recommended that for proper implementation of conditions relating to quality and quantity of recycled waste water, a third-party study may be commissioned and stated thus: “(viii) The project proponents would commission a third party study on the implementation of conditions related to quality and quantity of recycle and reuse of treated water, efficiency of treatment systems, quality of treated water being supplied for flushing (specially the bacterial counts), comparative bacteriological studies from toilet seats using recycled treated waters and fresh waters for flushing, and quality of water being supplied through spray faucets attached to toilet seats.” VII. The committee suggested compliance with rainwater harvesting laws and recommended thus: “(ix) The local bye-law provisions on rain water harvesting should be followed. If local byelaw provision is not available, adequate provision for storage and recharge should be followed as per the Ministry of Urban Development Model Building Byelaws, 2016. As proposed, one rain water harvesting tank shall be provided for rain water harvesting after filtration as per CGWB guidelines.” H

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VIII. The committee recommended separate treatment for wet and dry waste and earmarking of adequate area for solid waste management within the premises. The recommendation reads thus: “(x) Separate bins for dry and wet waste must be provided in each unit and at appropriate places for facilitating segregation of waste. Solid waste shall be segregated and managed as per the rules notified under the E.P. Act, 1986. Wet garbage shall be composted in Organic Waste Converter. Adequate area shall be provided for solid waste management within the premises which will include area for segregation, composting. The inert waste from project will be sent to dumping site.” C IX. The committee then recommended proper storage and disposal of demolition debris in accordance with Construction and Demolition Waste Management Rules 2016. The committee then gave pin-pointed recommendations regarding solid waste disposal and we reproduce the same for their sheer importance: D “a) The project proponent shall prima-facie be responsible for collection, segregation of concrete, soil and others and storage of construction and demolition waste generated, as directed or notified by the concerned local authority in consonance with these rules. E b) The project proponent shall ensure that other waste (such as solid waste) does not get mixed with this waste and is stored and disposed separately. c) The project proponent if generate more than 20 tons or more in one day or 300 tons in a month shall segregate the waste into four streams such as concrete, soil, steel, wood and plastics, bricks and mortar and shall submit waste management plan and get appropriate approvals from the local authority before starting construction or demolition or re-modelling work and keep the concerned authorities informed regarding the relevant activities from the planning stage to the implementation stage and this should be on project to project basis. d) The project proponent shall keep the construction and demolition waste within the premise or get the waste deposited at collection centre so made by the local body or handover it to the authorized processing facilities of construction and H

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A demolition waste; and ensure that there is no littering or deposition of construction and demolition waste so as to prevent obstruction to the traffic or the public or drains. e) The project proponent shall pay relevant charges for collection, transportation, processing and disposal as notified by the concerned authorities. The project proponent if generate more than 20 tons or more in one day or 300 tons in a month shall have to pay for the processing and disposal of construction and demolition waste generated, apart from the payment for storage, collection and transportation as per the rate fixed by the concerned local authority or any other authority designated by the State Government.” X. The committee then recommended that along with the current traffic management plan, a detailed traffic decongestion plan be prepared on the basis of cumulative impact of all development and increased habitation consequent thereto. It noted that: D “(xii) Traffic Management Plan as submitted shall be implemented in letter and spirit. Further, a detailed traffic management and traffic decongestion plan shall be drawn up to ensure that the current level of service of the roads within 5 kms radius of the project is maintained and improved upon E after the implementation of the project. This plan should be based on cumulative impact of all development and increased habitation being carried out or proposed to be carried out by the project or other agencies in this 5 Kms radius of the site in different scenarios of space and time. Traffic management plan shall be duly validated and certified by the State Urban F Development department or competent authority for road augmentation and shall also have their consent to the implementation of components of the plan which involve the participation of these departments.” XI. The committee then considered the aspect of cutting of trees and noted that such action may be taken only where it is absolutely necessary, that too after prior permission from the Tree Authority constituted as per the Delhi Preservation of trees Act, 1994. it noted that: “(xiii) As committed by the proponent, there shall be no cutting of trees. Where absolutely necessary, tree

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transplantation shall be carried out with prior permission from the Tree Authority constituted as per the Delhi Preservation of Trees Act, 1994 (Delhi Act No. 11 of 1994). Old trees should be retained based on girth and age regulations and as prescribed by the Delhi Forest Department. In case of non-survival of any transplanted tree, compensatory plantation in the ratio of 1:10 (i.e. planting of 10 trees for every one tree) shall be done and maintained.” (emphasis supplied) XII. The committee then recommended that landscape planning should involve plantation of native species and water intensive species may not be used for landscaping. It noted thus: “(xiv) A minimum of 1 tree for every 80 sqm of land should be planted and maintained. The existing trees will be counted for this purpose. The landscape planning should include plantation of native species. The species with heavy foliage, broad leaves and wide canopy cover are desirable. Water intensive and/or invasive species should not be used for landscaping. As proposed, 4,500 sqm area shall be provided under landscaping in proposed parliament building in addition to existing green area of 16,136 sqm in existing building.” (emphasis supplied)

364Copy pinpoint364. Upon a close scrutiny of the information supplied in Form I and I-A, documents supplied by the project proponent and appraisal made by the EAC, we are of the view that the grant of EC is in conformity with the mandate of the competent authority and is just and proper. The project proponent has undertaken various expert studies to prepare a comprehensive traffic management plan, solid waste management plan, water management plan and waste disposal plan. There is ample information on record to show that the project proponent has adequately addressed various facets of the project including source of water, disposal of water, generation of concrete, disposal of concrete, power availability, concerns relating to landscape etc. and the petitioners have outrightly failed to substantiate their apprehensions by placing material on record to the contrary. H

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365Copy pinpoint365. As regards the transplantation of trees, wherever imminent, the committee has rightly noted that any such action must be taken after prior permission from the statutory authority under the 1994 Act. Understandably, the exercise of transplantation is to be carried out strictly in circumstances when the project cannot be carried forward in its actual form unless the trees are relocated. In environmental jurisprudence, the uppermost consideration is to secure the vision of sustainable development. The existence of an expert statutory authority to regulate this phenomenon is a legal safeguard to ensure that harmony is maintained between need for beneficial development in public interest and protection of trees - the guardians of our lungs. No decision of the competent authority under the 1994 Act is put in issue before us. We, therefore, need not dilate on this aspect any further.

366Copy pinpoint366. The minutes of the two meetings of EAC are self-explanatory and reveal due application of mind, in light of the principles relating to application of mind enunciated above. We do not wish to repeat the same to avoid prolixity. EAC is an expert body and it is amply clear that it has been made aware of all relevant information relating to the project and it has applied its mind to the proposal. Even on settled principles of judicial review, it is clear that relevant material has been considered by the committee and no reliance has been pointed out on any irrelevant material. The specific recommendations given by the committee do indicate that the committee was aware of the need for precautionary measures in environmental matters and accordingly, it suggested requirement of further permissions on certain counts.

367Copy pinpoint367. Once an expert committee has duly applied its mind to an application for EC, any challenge to its decision has to be based on concrete material which reveals total absence of mind. Absent that material, due deference must be shown to the decisions of experts. The facts of the case do not reveal any deliberate concealment of fact/ information from the EAC or supply of any misinformation. The petitioners’ extensive reliance upon Hanuman Laxman Aroskar369 is misdirected and will not be of any avail in advancing their cause. We are in complete agreement with the dictum that full and correct disclosure and highest level of transparency are warranted in any application for EC. However, the present case is fundamentally different. The landscape of this project does not involve a greenfield component surrounded by 369 H (supra at 32)

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forests and significant wildlife. It does not involve complete non-application of mind regarding a crucial aspect of the project, such as Ecologically Sensitive Zones. The entire basis of scrutiny and appraisal in Hanuman Laxman Aroskar370 was different. For, it involved a project which mandated compliance with all four stages of EC i.e., screening, scoping, public consultation and appraisal. Whereas, the present project, as already discussed above, is not subject to scoping procedure. In Hanuman Laxman Aroskar371, various details in Form I/I-A were left blank, information regarding trees was actively concealed and absence of reasons coupled with cursory analysis of the application raised substantial concerns of non-application of mind. The fact situation in that case was enough for shaking the judicial conscience and invocation of powers of review.

368Copy pinpoint368. The petitioners have urged that the respondents have deliberately kept the Parliament annexe building and library out of the total built-up area so as to reduce the scrutiny level. Upon examination, we note that this argument is also devoid of substance. We note at the very outset the respondents’ submission that the aforesaid structures are not a part of the proposal. In Written Submissions – Part I, it is stated in clear terms that no work is proposed with respect to the said buildings (Parliament annexe and Library). The submission in para 9 reads thus: E “9. The aforesaid 44940 sq.m. + 5200 sq.m. do not contain or include “Annexe building”, which is not being touched. A copy of the map showing the existing parliament building and the proposed parliament complex [Plot No. 118] is enclosed for ready reference.” The petitioners’ argument, therefore, overlooks the factual position stated by the respondents and stands rejected. As noted above, the requirement of obtaining prior environmental clearance is a site-specific exercise. The objective is to prevent any adverse impact by the proposed activity. Thus, it is necessary to understand the scope of the work before considering the impact thereof. The essential question is whether the scope of work involves physical activity on a structure which has been kept out of impact assessment. The project, as noted above, involves two dimensions – construction of new Parliament Building and renovation of existing Parliament Building. Furthermore, the MoEF, while granting 370 (supra at 32) 371 (supra at 32) H

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A clearance on 17.6.2020, noted the scope of renovation of existing Parliament Building thus: “2. (vi) … Scope of renovation of existing Parliament Building will be (a) Condition Survey to assess the structure of the existing Parliament Building; (b) Structural Strengthening; and (c) B Renovation of interiors and utilities.” Thus, the scope of work is limited to improving the functionality and life of the existing building, and not to carry out changes in all the structures annexed with the building. We may gainfully refer to S.O. 695(E) dated 4.4.2011 which defined “built-up area” for the purpose of C environmental clearance under the 2006 Notification as: “The built up area for the purpose of this Notification is defined as “the built up or covered area on all the floors put together including basement(s) and other service areas, which are proposed in the building/construction projects”.” D The above definition further clarifies that the built-up area is to be deduced in the context of the proposed construction project. Once a particular building is involved in the project, the covered area of all the floors, basement and services areas thereof must be included in the total built-up area. As a corollary, until and unless a building or site is involved E in the project and is the subject of any development, there would be no occasion for the EAC to include its area in the total area of the project. For, there can be no question of any environmental impact from such building. MERITS REVIEW BY NGT

369Copy pinpoint369. Before we delve into the analysis further, we would address the call for a merits review in this challenge to EC. The expression “merits review” needs to be put into its correct perspective. For that we must immediately advert to Section 16 of the National Green Tribunal Act, 2010372. Itprovides for the appellate jurisdiction of NGT thus: G “16. Tribunal to have appellate jurisdiction. —Any person aggrieved by, — ... ... 372 For short, “2010 Act” H

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(h) an order made, on or after the commencement of the A National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 B of 1986); ... ... may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:” The provision empowers “any aggrieved person” to file an appeal against the grant of EC for the scrutiny of NGT. The scheme of 2010 Act, as found in Sections 17-19, provides for a host of remedies to the aggrieved persons, including compensation and other reliefs depending on the injury. Section 20 lays down the basic principle on which the tribunal is expected to exercise its jurisdiction. It states thus: “20. Tribunal to apply certain principles. —The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.”

370Copy pinpoint370. The expression “merits review” signifies that the tribunal must scrutinize the merits of the decision and must not restrict itself to a cursory examination of the process of decision making. Section 20 makes it amply clear that the principles of sustainable development, precautionary principle and polluter pays principle must inform its examination. The requirement of merits review is to be understood in the light of the statutory jurisdiction of NGT under the 2010 Act and not beyond it. Statutorily, NGT is vested with a limited mandate to hear an appeal before it in light of the aforesaid principles and grant limited reliefs as provided in the 2010 Act. Section 16 specifies that the jurisdiction of NGT may be invoked when any person either feels that the project should not be carried forward or should be subjected to certain safeguards under the Environment Protection Act, 1986. The NGT, therefore, is a body meant for the assessment of a limited facet of the project i.e., environmental facet and is not meant to be a panacea for all ills. The requirement of merits review, H

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A as exposited in Hanuman Laxman Aroskar373, is to be understood as a review within the statutory jurisdiction of NGT.

371Copy pinpoint371. NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its B consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.

372Copy pinpoint372. We deliberated upon whether the question of EC needs to be sent for consideration of NGT. However, none of the issues raised before us demonstrate a requirement of in-depth technical analysis in this case. Mere suspicion cannot become a ground for parting away with a subject matter which is pending for this Court’s consideration and deserves complete justice in the cause. D

373Copy pinpoint373. No doubt, by way of the exclusive jurisdiction clause in Section 29, the jurisdiction of civil Courts is barred on these subject matters, but there is no impact whatsoever on the jurisdiction of this Court, being a Court of record and bestowed with original and appellate jurisdiction including superior powers to do complete justice under Article 142 in special circumstances. In other words, the jurisdiction of this Court is not controlled or guided by the form of jurisdiction vested in NGT in terms of the 2010 Act. The considerations before this Court can be diverse and expansive and the moment a lis comesbefore this Court, the subject matter comes out of the ambit of limited statutory consideration and falls in the realm of plenary constitutional consideration - wherein the duty of the Court is to do complete justice between the parties before it and in public interest jurisdiction to a class of persons.

374Copy pinpoint374. Indubitably, environment and development are not sworn enemies of each other. It would be an anomalous approach to consider environment as a hurdle in development and vice-versa. The entities like G EAC and NGT are created to strike a just balance between two competing interests and a time-tested principle of striking this balance is timely invocation of mitigating environmental measures amidst a development activity. True that mere application of certain mitigating measures may not alleviate environmental concerns in all matters and in some 373 H (supra at 32)

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circumstances, the project is simply incomprehensible with the environment. But as long as a legitimate development activity can be carried on in harmony with the idea of environmental protection and preservation including sustainable development, the Courts as well as expert bodies should make their best endeavour to ensure that harmony is upheld and hurdles are minimized by resorting to active mitigating measures.

375Copy pinpoint375. The principle of sustainable development and precautionary principle need to be understood in a proper context. The expression “sustainable development” incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. C It would not be without significance to note that sustainable development is indeed a principle of development – it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental D rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are to an environmentally secure society. By Declaration on the Right to Development, 1986, the United Nations has given express recognition to a right to development. Article 1 of the E Declaration defines this right as: “1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

376Copy pinpoint376. The right to development, thus, is intrinsically connected to the preservance of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense inter-dependence between right to development and right to natural environment. In International Law and Sustainable Development, Arjun Sengupta in the chapter “Implementing the Right to Development374” notes thus: 374 International Law and Sustainable Development – Principles and Practice, Edn. 2004, pg. 354 H

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A “… Two rights are interdependent if the level of enjoyment of one is dependent on the level of enjoyment of the other...” The concern of the regulatory agencies is to weed out the unsustainable from the development plan and to parallelly ensure that right to development is not trumping upon any other right. Sengupta further B notes: “… There is an improvement in the right to development only if at least one of the constituent rights improves and no other right deteriorates or is violated, which means the right to development conforms to the principle of the indivisibility of human rights…375.”

377Copy pinpoint377. The precautionary principle duly mandates that all agencies of the State, including Courts, must make their best endeavour to ensure that precaution is instilled in the process of development. The very requirement of prior EC is born out of this need for precaution. It is a manifestation of the precautionary principle in India and if development D work is carried out in furtherance of prior EC and such EC is not vitiated by illegality, it would be a case of proper adherence with the precautionary principle.

378Copy pinpoint378. In matters of balancing between competing environmental and development concerns, the Court has to be project-specific. In E environmental matters, even one fact here or there may have the effect of attributing a totally distinct character to the project and accordingly, the scope of judicial review may vary. This sentiment is best reflected in the following words of Professor Schotland376 who proposed ranking of standards of judicial review according to strictness:

F “3. ….. I have always thought of scope of review as a spectrum, with de novo at one end, with unconstitutionality at the other end, and in between a number of what I will call “mood-points” or degrees of judicial aggressiveness or restraint, such as preponderance of the evidence, clearly erroneous, substantial evidence on the whole record, scintilla of evidence, abuse of G discretion and last, right next to or even into unconstitutionality, arbitrary and capricious. And since these are only “mood-points”, there is considerable room within each for difference.” 375 International Law and Sustainable Development – Principles and Practice, Edn. 2004, pg. 354 376 D.C. Circuit Judicial Conference, Environmental Protection: Law and Policy, 2nd H Edn., pg. 122

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 569 ORS. [A. M. KHANWILKAR, J.]

379Copy pinpoint379. The proper balance of judicial review in environmental matters in a constantly developing society is a matter of great debate across all jurisdictions. In Ethyl Corporation v. EPA377, the observations of Judge Wright present a just balance. He observed thus: “There is no inconsistency between the deferential standard of review and the requirement that the reviewing court involve itself in even the most complex evidentiary matters; rather, the two indicia of arbitrary and capricious review stand in careful balance. The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices open to the agency and those made. The more technical the case, the more intensive the court’s effort to understand the evidence, for without an appropriate understanding of the case before it the court cannot properly perform its appellate function. …” D He then notes the need for realising the limits of judicial function thus: “But the function must be performed with conscientious awareness of its limited nature. The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency’s expert decision-maker. To the contrary, the court must give due deference to the agency’s ability to rely on its own developed expertise. The immersion in the evidence is designed solely to enable the court to determine whether the agency decision was rational and based on consideration of the relevant factors. It is settled that we must affirm decisions with which we disagree so long as this test is met . . .” (emphasis supplied) G

380Copy pinpoint380. They must always look for a careful balance when two equally relevant interests compete with each other. The task may not be easy, but is the only reasonable recourse. For the proper application of these principles, the first and foremost thing to be kept in mind is the nature of 377 426 U.S. 941 (1977) : 541 F.2d 1 (1977) H

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A the project. In the present case, the subject project is an independent building and construction project wherein one-time construction activity is to be carried out. It is not a perpetual or continuous activity like a running industry. It is absolutely incomprehensible to accept that a project of this nature would be unsustainable with the needs and aspirations of future generations. Furthermore, the increase in footprint is not shown to be substantial and the inclusion of new members of Parliament after the delimitation exercise is anyway going to lead to an inevitable increase in footprint (floating though) that cannot be countenanced as a concern here.

381Copy pinpoint381. We, therefore, upon a thorough examination, decline to interfere in the grant of EC. The expertise developed by the EAC cannot be undermined in a light manner and as noted above, due deference must be accorded to expert agencies when their decisions do not attract the taint of legal unjustness378. We, however, feel the need to record that the mitigating measures must be observed by the project proponent in letter and spirit during the construction and operational phase. Waste management methods, inclusive of hazardous wastes, must be subject to regular monitoring. The construction debris must be subjected to immediate removal as per the Construction & Development Plan. The project proponent may also install permanent high-capacity smog tower as part of the Project and use adequate number of smog guns to minimise pollution levels during the construction activity is in progress on the site.

382Copy pinpoint382. We deem it fit to call upon the respondent MoHUA to consider issuing appropriate general directions so as to ensure that adequate use of smog guns during the construction of development projects and setting up smog towers is made a mandatory requirement, particularly involving government buildings, townships or other major private projects. Time has come to advance the intent behind improving air quality a mandatory feature for modern buildings and more particularly during the phase of construction of such major projects in the cities most affected by air pollution. In other words, directions be issued for the areas with deteriorating air quality index. We call upon the respondents (MoEF) to finalise the nuances in this regard and issue appropriate directions. CONSULTATION SERVICES NIT 378 [See: G. Sundarrajan (supra) – paras 209 and 212;University of Mysore (supra) – H para 12; Basavaiah (Dr.) (supra) – paras 21 and 38; and K.T. Plantation (supra)]

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 571 ORS. [A. M. KHANWILKAR, J.]

SELECTION PROCESS A

383Copy pinpoint383. The petitioners have challenged the selection/appointment of consultant on various counts including due to following usual best price method instead of best design competition of international standards for such an eminent project of national importance. At the outset, we must deal with the challenge to the method preferred by the Government B for selection/appointment of Consultant for the stated project. In light of our analysis whilst dealing with other larger issues (other than based on statutory violations) for the same reasons or principle underlying thereto, even the challenge under consideration must be negatived being devoid of merits. For, in absence of any statutory mandate to adopt a particular method for selection/appointment of Consultant for projects of national importance, it would result in deciding the challenge on the principle of second guess by the Court in exercise of powers of judicial review. That is certainly uncalled for and beyond the scope of permissible enquiry. What method is good or must be adopted for appointment of Consultant is the exclusive prerogative of the executive and in the nature of a policy matter – where the Courts should not venture upon when even angels would fear to tread. The mandate of Consultant is only to present a vision document. The nitty-gritty of the design and floor plans is the mandate of the project proponent and the Government (concerned departments being the stakeholders). Further, just because the Government has followed a particular method of selection/appointment of the Consultant for the stated project and another one would have been a better option cannot be the basis to quash the appointment already made after following a fair procedure consequent to inviting tenders from eligible persons similarly placed.

384Copy pinpoint384. Having said thus, what remains for consideration is essentially an assail against a contractual relationship between two entities by a third party to the contract, that too by way of a public interest litigation. Nevertheless, we may proceed to dissect this assail as well.

385Copy pinpoint385. On 2.9.2019, a notice was issued by CPWD inviting bids for the appointment of consultant from national/international design and planning firms. The invitation document specified initial eligibility criteria and minimum eligibility criteria for prospective bidders. The criteria specified elaborate requirements relating to prior experience, historical area redevelopment projects, minimum annual turnover, earnest money and minimum experience. Thereafter, a technical evaluation criterion H

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A was specified to evaluate financial strength, project capabilities, core project team and approach and methodology. The scope of consultancy work was specified as: “4. Scope of Consultancy Work: The Firms/Consultants shall provide comprehensive consultancy services in Project Conceptualization covering Topographical and Contour Survey by using Total Stations, prepare survey site plan showing existing structures, trees, electric poles etc. with geo-coordinates, Geotechnical investigations along with reports, survey space utilization, functional relations, preparation of master plan including obtaining its statutory and local bodies approval, preliminary project report preliminary estimate, detailed architectural drawings, detailed structural design and detailing including designing and detailing of all services, their drawings & approval, external development works, landscaping, BIM Modeling, detailed project report and preparation of all Bid/Tender documents etc. Consultant should adhere to the Central Vista Committee Guidelines and Lutyens Bungalow Zone Guidelines while carrying out the consultancy work for the Redevelopment of Central Vista.” (emphasis supplied) E The scope of consultancy work clearly specifies that the consultant is required for the purpose of “project conceptualization” by assisting the project proponent in various activities. It further specifies that the consultant is bound to adhere to CVC guidelines and Lutyens Bungalow Zone guidelines, which goes on to show that the consultant is not entrusted F with any independent function of making a new master plan and is only bound to work within the four corners of legal framework governing the region.

386Copy pinpoint386. The Terms of Reference (TOR) further specify the scope of work and state thus: G “1.1 Scope of Work i) The scope of work shall be as follows: a) Inception Report and Master Plan b) Comprehensive detailed Design & Periodic Supervision of H Workmanship.”

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 573 ORS. [A. M. KHANWILKAR, J.]

The petitioners have used the above specification to contend that the project proponent has been delegated the function of preparation of Master Plan to the private consultant. The argument deserves to be rejected at the very outset. Clause 1.2 of TORs is instructive on this count as it notes the “Detailed Scope of Work”. The expression “master plan” as used in the TORs is absolutely different from the statutory meaning of this expression. In this document, master plan is broadly used to denote the vision document for the final design of the project. Point (a) in clause 1.2 (Detailed Scope of Work) notes: “i) Inception Report and Master Plan a) Preparation and finalisation of design brief in consultation with the Client.” Point (h) provides more clarity as it notes: “h) Preparation of Conceptual Master Plan including affected area/ buildings, circulation, land use, proposed building blocks, type of works, phasing etc.” D

387Copy pinpoint387. The selection of consultant was based upon a pre-decided Quality and Cost Based Selection379 process wherein 80% weightage was given to technical evaluation and 20% weightage was given to financial evaluation. Out of the four components of technical evaluation, as noted above, the last component of Approach and Methodology carried maximum weightage and was to be evaluated by a Jury of Experts. After the submission of bids, a pre-bid meeting was organized for removal of doubts of prospective bidders. A total of 18 firms participated in the pre-bid meeting and six firms finally submitted their technical and financial bids for evaluation. These firms gave a presentation on their approach and methodology before a designated Jury of Experts on 11.10.2019. The jury comprised of one Chairman, five Members and one Member Secretary. The composition of the jury is relevant and we reproduce the same for better understanding: (i) Prof. PSN Rao, Director, School of Planning and G Architecture, New Delhi - Chairman (ii) Prof. Dr. Rama Subramanian, Principal of Dayanand Sagar College of Architecture, KS Layout, Bengaluru - Member (iii) Shri Ashok Malik, Retd. Chief Architect, NDMC – Member 379 For short, “QCBS” H

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A (iv) Shri Navneet Kumar, ADG (Works), CPWD – Member (iv) Shri Vikas Bhosekar, Land Scape Architect, Plot No. 13, No. 136, New CDSS, Pune – Member (vi) Shri Ramesh Dangle, Urban Designer, Chief Architect Planner, CIDCO, Navi Mumbai – Member B (vii) Shri Vijay Prakash Rao, Senior Architect, Region Delhi, CPWD – Member Secretary

388Copy pinpoint388. A tender is essentially a contract between two parties and merely because one party to the contract is the State, the basic character of the transaction does not change. In India, we follow the principle of privity of contract and the law relating to contracts and specific relief provides ample remedy to an aggrieved party to the contractual transaction. The principle of privity of contract has sound basis in law. It is owing to the basic character of a commercial relation wherein two parties of sound mind choose to enter into a legal relationship with each other and decide mutual rights and liabilities in accordance with the needs of the transaction with their free consent. There is an element of consensus ad idem. In a free commercial transaction, itis the foremost desire of the parties to keep third person interference away.

389Copy pinpoint389. As a general rule, there is no locus for a third person to question a free contractual relationship. In special circumstances, no doubt, the Specific Relief Act, 1963380 provides for circumstances when “any person” could initiate action for recission of contracts or cancellation of instruments. However, this action is available only if the initiator is able to show that the contract/instrument is detrimental to its interests. F Moreover, that is a remedy to be pursued in civil Court or the Court of first instance. There is no basis in law to permit an absolutely unaffected person to shake a settled transaction between two parties.

390Copy pinpoint390. No doubt, it is settled that an award of tender by the Government, though a contract, stands on a slightly different footing. It is so because when a Government chooses to engage with a citizen, it is G expected to extend a fair treatment to all those persons who choose to engage with the Government. This requirement of fairness brings in the element of equality of treatment and absence of favouritism and thus, the requirements of Article 14 cannot be ousted. The question here is about the scope of interference by a writ Court in a challenge against an 380 H For short, “1963 Act”

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 575 ORS. [A. M. KHANWILKAR, J.]

award of tender at the instance of a third party to the transaction. A Undisputedly, none of the petitioners before us had participated in the tender process and they cannot be termed as aggrieved as they do not satisfy the requirement of privity of contract in conventional terms. We have before us a bunch of public-spirited individuals who wish to question the award of tender, not because of the ineligibility of the duly selected/ B appointed Consultant or unfair advantage given to him but on other grounds by invoking high constitutional principles, which we have already negatived hitherto.

391Copy pinpoint391. In that view of matter, the primary concern of the Court is to see whether the selection has been made by using a formalised system of selection or by an arbitrary pick and choose mechanism. In this case, the process of tender was used to select the consultant wherein uniform conditions were prescribed for all the participants who were eligible and free to participate in the process. Upon submission of bids, their applications were analysed on pre-determined set of objective parameters which were duly notified to all the participants beforehand. An opportunity was given to all the participants to clarify any doubts and the final technical evaluation was done by a Jury of Experts. The petitioners have not raised any allegation against the neutrality of jury members. Moreover, it is also not the case of the petitioners that the jury members failed to apply their mind during evaluation. The petitioners primarily assail the conditions of tender. As aforesaid, it is not for the Court to determine the suitability of conditions under which the Government wants to enter into commercial relationships with private persons or the manner in which it intends to execute the Project absent any statutory regime in that regard. The Government with the aid of its various agencies, is free to determine its rules of engagement with other entities. F

392Copy pinpoint392. In such matters, illegality in decision-making is the primary concern of this Court. The petitioners have not shown that the conditions of tender were deliberately crafted in a manner to make them suitable for a particular participant. Nor, have they shown that the conditions were violative of any mandatory requirement. Even as regards the G process of selection, it is not enough to allege mala fide conduct by pitching the argument of favouritism until and unless that allegation is directed against specified persons who ought to be made parties to the proceedings. There cannot be an allegation of institutional mala fide in fact. Furthermore, it is settled that an allegation of favouritism is H

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A essentially a question of fact which is to be mandatorily supported by hard evidence. The Court is not expected to buy an argument of this nature on face value and enter upon a wandering investigation or roving enquiry merely because the petitioners allege favouritism. Apart from pure suspicion, the petitioners have not been able to assist the Court in proceeding in any logical direction which would demonstrate favouritism in the selection of consultant. Suspicion cannot be a guide for the Court in a judicial enquiry. The argument that the participants were less in number would be of no significance unless it is shown that the conditions of tender or other circumstances attributable to the respondents had prevented others from participating. It is not even the case of the petitioners, at least those who claim to be in the same profession, that they had a desire to participate and were prevented from doing so. The law regarding interference by the Court in award of tender is well settled. In Michigan Rubber (India) Limited v. State of Karnataka and Ors.381, the Court observed thus: D “35. ...As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre-qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide.” The Court, in Michigan Rubber382, summed up certain parameters to be kept in mind while considering a challenge of this nature and observed thus: “23. From the above decisions, the following principles emerge: ….. 381 (2012) 8 SCC 216 H 382 (supra at 380)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 577 ORS. [A. M. KHANWILKAR, J.]

(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and D (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government.” (emphasis supplied) E The above proposition may be read with our discussion on judicial interference in policy matters in the initial part of this judgment. We are not reiterating the settled position to avoid prolixity. The above proposition has been expounded in a case wherein the challenge was raised by a participant in the same tender process and not a third party. F

393Copy pinpoint393. It is relevant to note that the question of locus in considering an argument of this nature cannot be side lined. For, such arguments call upon the Court to expand the contours of its jurisdiction to venture into strictly private commercial matters. A litigant, not being a party to the transaction, cannot be heard in ordinary circumstances. What needs to G be established is substantial and demonstrable public interest on the basis of a concrete factual position. The jurisprudence evolved by this Court in such matters looks for substantial public interest, to be shown on the basis of violation of Part III or arbitrariness in Government action. In the absence thereof, it becomes the duty of the Court to preserve free commercial relations. Law has a substantial interest in preserving the H