RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & ORS

A at it, and with the question of jurisdiction. The question of procedure can be categorised under three principal heads – illegality, procedural impropriety and irrationality. Illegality occurs when the decision-maker acts in excess of his powers such as when he acts ultra vires or in error of law and/or fact, unauthorisedly delegates his power, acts for improper purpose or in bad faith or fails to act, considers irrelevant factors, imposes onerous conditions etc. Procedural impropriety may be due to failure to comply with the mandatory procedure of law or breach of principles of natural justice such as audi alteram partem, rule against bias, duty to act fairly, duty to give reasons, respecting legitimate expectation, etc. Irrationality takes into its umbrella Wednesbury unreasonableness,1 which considers a decision as unreasonable if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person, applying his mind to the question, could have arrived at it.2 Another ground for review is the test of proportionality, considered by many as more intensive, and distinct from Wednesbury unreasonableness. To some jurists it requires the court to make a value judgment, independent of the decision- D maker, based on factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. We would subsequently refer to and elaborate on the test of proportionality as judicially accepted and applied in India. Presently, it would suffice to state that proportionality incorporates and effectuates reasonableness. Proportionality is based on the principle that administrative or even E legislative action ought not to go beyond what is necessary to achieve its desired aims or objectives. Even while examining the question of Wednesbury unreasonableness the court can ask whether the decision was within the range of rational balances that may be struck.3

8. In Anuradha Bhasin v. Union of India,4 reference was made to the earlier decision of this Court in Modern Dental College and F Research Centre v. State of Madhya Pradesh and Others,5 wherein reliance was placed on Aharon Barak’s work on proportionality6, to observe: 1 Associated Provincial Picture Houses v. Wednesbury Corporation1947 (2) All ER 680 (CA) G 2 All India Recruitment Board and Another v. K. Shyam Kumar and Others, (2010) 6 SCC 614 3 The Nature of Reasonableness Review (by Paul Craig) 4 (2020) 3 SCC 637 5 (2016) 7 SCC 353 6 Proportionality: Constitutional Rights and its Limitations, Cambridge University H Press (2012)

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“60...a limitation of a constitutional right will be constitutionally A permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; B (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation proportionality strictosensu balancing between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” This court in Anuradha Bhasin held that the principle of proportionality is inherently embedded in the Indian Constitution under the doctrine of reasonable restriction, which means the limitation imposed on a person should not be arbitrary or of an excessive nature beyond what is required in the interest of public. Thereupon, reference was made to works of scholars/jurists and judgment of the Canadian Supreme Court in R. Oakes,7 to observe that some jurists have argued that if the necessity stage is interpreted strictly, the legislation and policies, no matter how well intended, will fail to pass the proportionality enquiry if any other slightly less drastic measure exists. Therefore, David Bilchitz has suggested a moderate interpretation of the necessity test by stating that necessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. The process thus requires courts to reason through the various stages of moderate interpretation of necessity in the following manner: “(MN1) All feasible alternatives need to be identified, with courts being explicit as to criteria of feasibility; (MN2) The relationship between the government measure under consideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined. An attempt must be made to retain only those alternatives to the measure that realise the objective in a real and substantial manner; 7 1986 1 SCR 103 H

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A (MN3) The differing impact of the measure and the alternatives (identified in MN2) upon fundamental rights must be determined, with it being recognised that this requires a recognition of approximate impact; and (MN4) Given the findings in MN2 and MN3, an overall comparison B (and balancing exercise) must be undertaken between the measure and the alternatives. A judgment must be made whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights (“the comparative component”).” C This approach was also adopted and preferred by A.K. Sikri, J. in K.S. Puttaswamy (Aadhaar-5J).8 D.Y. Chandrachud, J., in the same judgment, had referred to the threefold requirement of legality which postulates the existence of law; need defined in terms of a legitimate state action; and proportionality which ensures rational nexus between the objects and means adopted to achieve them. The third principle, it was held, is the essential role of test of proportionality. Anuradha Bhasin also refers to the four-pronged test suggested by Sanjay Kishan Kaul, J. in his concurring opinion in the Aadhar (5 Judge Bench) judgment, to elucidate that the action must be sanctioned by law; the proposed action must be necessary in a democratic society for legitimate aim; the extent of interference must be proportionate to need for such interference; and there must be procedural guarantees against abuse of such interference. Accordingly, in Anuradha Bhasin it is observed that the current state of doctrine of proportionality, as it exists in India, is the key tool to achieve judicial balance. But scholars are not agreeable to recognise proportionality equivalent to that of balancing.

9. However the exercise of balancing involved in the proportionality or reasonableness, in the context of the statutory provisions quoted above and as noticed below, necessitates knowledge of various alternatives available to the Authority/Central Government, and this is a mandate enabled inter alia by the process requiring public consultation. Legislation is often an exercise to select between options. Therefore issue of choice between alternatives, when public participation in quasi legislative or statutory exercise is mandated by law, has different implications, for 8 (2019) 1 SCC 1 H

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example under the Environment Protection Act. This aspect would be considered subsequently.

10. In Gwalior Rayon Silk Mfg. Co. Ltd. v. Assistant Commissioner of Sale Tax,9 the Constitutional Bench of this Court had referred to the precedents on constitutional limitation on delegation, including the decision in In Re.: The Delhi Laws Act.10 It observed that there are limits to delegation which flow from the rule and necessary postulate of the sovereignty of the people and, therefore, it is not permissible in the matter of legislative policy to substitute the views of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people in the primary legislation. Nevertheless the court accepted that growth of legislative powers of the executive is a significant development of the last century consequent to need and necessity, as delegated legislation gives flexibility, elasticity, expedition and opportunity for experimentation. However, it was emphasised that constitution-makers have entrusted the power of legislation to the representative legislature so that the legislative power may be exercised not only in the name of the people, but also by the people speaking through their representatives.

11. Indian Express Newspapers v. Union of India11 holds that subordinate legislation does not carry the same degree of immunity as enjoyed by a statute passed by a competent legislature. In addition to the grounds on which primary legislation may be contested, subordinate legislation can also be questioned on the ground that it does not conform to the statute under which it was made, it is contrary to some other statute, or that it was not formed in consonance with the legislative intent as reflected in the rule making power given under the statute. Under Article 14 of the Constitution of India, administrative decisions and subordinate legislations can be challenged and struck down when an action exhibits manifest arbitrariness. Quoting Diplock, L.J. in Mixnam’s Properties Ltd. v. Chertsey Urban District Council,12 this court noted that subordinate legislation can be questioned on the ground of unreasonableness – not in the sense in which this expression is used in common law – but manifest arbitrariness, injustice or partiality when the court finds that the legislature would have never intended and given 9 (1974) 4 SCC 98 10 AIR 1951 SC 332 11 (1985) 1 SCC 641 12 (1632) 2 All ER 787 H

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A authority to make the rules under challenge or when there is uncertainty (as distinct from unenforceability) that it can be said that the legislature had not intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain. In Kruse v. Johnson,13 Lord Russell, C.J. observed that by-laws can be held illegal on account of being unreasonable – in the sense that if they are found to be partial B and unequal in their operation as between different classes; if they were manifestly unjust; if they disclose bad faith; if they involve such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men. Referring to the said aspects, in Kerala Samsthana Chetu Thozhilali Union v. State C of Kerala & Ors.,14 it was observed that subordinate legislation it is trite must be reasonable, in consonance with the legislative policy and also give effect to the purport in the main enactment and in good faith. The reason being that the subordinate law making body is bound by the terms of the delegative and the derived authority and the court, as a general rule, shall not give effect to the rules except where it is satisfied that all the conditions precedent for validity of the rules have been fulfilled. Reference was made to the 7th Edition of Craies on Statute Law at pages 297-298 wherein it is observed: “31...The courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation; and it follows that the court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials.”

12. Similarly, G.P. Singh in Principles in Statutory Interpretation G (14th edition) at page 916 observes that delegated legislations are open to scrutiny of courts and may be declared as invalid particularly on two grounds – (i) violation of the constitution; and (ii) violation of the enabling act. The second ground includes not only cases of violation of substantive 13 1898, Divisional Court 14 (2006) 4 SCC 327 H

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provisions of the enabling act but also cases of violation of the mandatory procedure prescribed. Compliance with the laying down requirement which includes approval of the Parliament through a resolution would not confer any immunity to delegated legislation though it may be a circumstance to be taken into account along with other factors to uphold validity though it has been held that laying down clause may prevent the subordinate legislation from being declared invalid for excessive delegation.

13. In Ispat Industries Limited v. Commissioner of Customs,15 reference was made to pure theory of law and that in every legal system there is hierarchy of laws, and whenever there is conflict between a norm in a higher layer in this hierarchy and the norm in the lower layer, the norm in the higher layer will prevail. In India, the hierarchy puts the Constitution at the highest level followed by statutory law either by the Parliament or the State Legislature, delegated or subordinate legislation which are in the form of rules made under the Act, regulations made under the Act and then at the lowest level are the administrative orders or executive instructions without any statutory backing.

14. It has been argued before us that formulation or amendment/ modification of a city’s Master Plan is not an administrative but a legislative exercise. Relying on the decisions in Union of India v. Cynamide India Ltd.,16 and Pune Municipal Corporation v. Promoters and Builders’ Association,17 the respondents submit that the distinction is that a legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases and usually operates in future; whereas administrative act applies to specific individuals or situations or making decisions by applying general rules to particular cases. F

15. In Cynamide, this Court observed that price fixation under the Essential Commodities Act and the Drugs (Price Control) Order, 1979 is neither the function nor forte of the court but that of experts and is more or less legislative in character. Nevertheless, the court would not totally deny jurisdiction to inquire into the question whether relevant G considerations have been gone into and irrelevant considerations have been kept out of the determination of the price, especially when the legislature has decreed the pricing policy and prescribed the factors which 15 (2006) 12 SCC 583 16 (1987) 2 SCC 720 17 (2004) 10 SC 796 H

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A should guide the determination. Observations of Chinnappa Reddy, J., quoted with approval in State of U.P. and Others v. Renusagar Power Co. and Others,18 refers to proliferation of delegated legislation, due to which there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative and quasi-judicial actions tend to merge into legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or a quasi-judicial activity. Chinnappa Reddy, J. insisted that it may be necessary that a line must sometimes be drawn as different legal rights and consequences may ensue. Nevertheless, such decision must be arrived at objectively and in consonance with the principles of natural justice.

16. In Cynamide, this court while accepting that legislative action, preliminary or subordinate, is not subject to rules of natural justice, nevertheless held that there are several instances of the legislation requiring the subordinate legislating authority to give notice and conduct public hearing before they legislate. Occasionally, legislature directs the subordinate legislating body to make ‘such enquiry as it thinks fit’ before making the subordinate legislation. In such situations, the nature and extent of inquiry is in the discretion of the subordinate legislating body and is not open to question on the ground that the inquiry was not as full as it might have been. This would not confer any right on anyone.19 The E position, however, would be different where the legislature specifically directs the subordinate legislating body to invite objections and suggestions from the general public which must be considered before the subordinate legislation is made and enacted. Therefore, decision in Cynamide while observing that rules of natural justice are not applicable to legislative F action, primary or subordinate, draws a clear caveat, that this dictum is not applicable when the legislation has itself provided for duty and obligation to consult. When the legislation stipulates such a right, then the ordinary rule of non-application of right to consult for a legislative action is irrelevant. In such a case, obligation to consult and right to hearing may be a substantive right.

G 17. In Cellular Operators Association of India and Others v. Telecom Regulatory Authority of India and Others,20 the dictum in 18 (1988) 4 SCC 59 19 See - Rayalaseema Paper Mills Limited and Another v. Government of A.P. and Others, (2003) 1 SCC 341 20 (2016) 7 SCC 703 H

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Cynamide India Ltd. was followed. Section 11(4) of the Telecom A Regulatory Authority of India Act, 1997, it was held, requires that the authority (i.e. TRAI) shall ensure transparency in exercise of its power in discharging the functions. In the said case, the authority had failed to hold consultation with all stakeholders and had not allowed stakeholders to make their submissions to the authority. Further, there was no discussion or reasoning dealing with the arguments put forward by the service providers that call drops occurred for a variety of reasons, some of which were beyond the control of the service provider and were because of the consumer himself. Therefore, the conclusion that the service providers alone were to be blamed and consequently deficiency in service was not a conclusion which a reasonable person can reasonably arrive at.

18. On the question of transparency, Cellular Operators Association of India observes that these are fundamental questions relating to openness of governance. Right to Information Act, 2005 has gone a long way to strengthen democracy by requiring that the government be transparent and open in its actions. Only then an informed citizenry would be able to contain corruption and hold the government and its’ instrumentalities accountable to the people. Preamble of the Right to Information Act echoes this sentiment stating that informed citizenry and transparency of information are vital for functioning of the government and its’ instrumentalities. On the question of open governance, observations by Mathew, J., in State of U.P. v. Raj Narain,21 was reproduced: “74...The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired.” Thereafter, it was observed that right to information is basically founded on the right to know which is an intrinsic part of the fundamental right to free speech and expression. Reference was also made to decisions in Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal,22Reliance Petrochemicals Ltd. v. Proprietors 21 (1975) 4 SCC 428 22 (1995) 2 SCC 161 H

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A of Indian Express Newspapers, Bombay Pvt. Ltd.23and People’s Union for Civil Liberties v. Union of India.24 The decision in Reliance Petrochemicals recognised the right to information as a fundamental right under Article 21 of the Constitution. Sabyasachi Mukharji, J., as His Lordship then was, has held: B “34…We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. C That right puts greater responsibility upon those who take upon themselves the responsibility to inform.”

19. Earlier, in Central Board of Secondary Education v. Aditya Bandopadhyay, 25 this Court had divided information into three categories, namely, (i) information, that promotes transparency and accountability in the working of every public authority, and may also help contain or discourage corruption, enumerated in clauses (b) and (c) of Section 4(1) of the Right to Information Act; (ii) other information, that is, information not falling within clauses (b) and (c) of Section 4(1) of the Right to Information Act; and (iii) information not held by, or under the control of the public authority, which cannot be accessed by a public authority under the law for the time being in force. The third category information is excluded and does not fall within the scope of the Right to Information Act. Significant for our purpose are observations that there is also a special responsibility upon the public authorities to suo moto publish and disseminate information falling in the first category so that they will be easily and readily accessible to public without any need to assess them through recourse of Section 6 of the Right to Information Act. This is a statutory obligation imposed by Section 4(1)(b) and (c) as also sub-sections (2), (3) and (4) of Section 4 relating to dissemination of information. Thereupon, reference was made to section G 19(8) of the Right to Information Act which entrusts the Information Commissions with the power to require any public authority to take any steps as may be necessary to secure compliance with the provisions of 23 (1988) 4 SCC 592 24 (2004) 2 SCC 476 25 H (2011) 8 SCC 497

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the Right to Information Act. It states that every public authority shall maintain its records duly catalogued and indexed in the manner and form which facilitates the right to information so as to ensure that information enumerated in clauses (d) and (e) of Section 4(1) of the Right to Information Act are published, disseminated and periodically updated. This, it was observed, would ensure transparency and accountability and enable the citizens to have access to relevant information and avoid unnecessary applications qua information under the Right to Information Act.

20. Public consultation in a legislation as a statutory mandate was examined by a Constitutional Bench in Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur26 to observe that the procedure for imposition of tax by the Municipal Board which required framing of a proposal and permitted any inhabitant of a municipality to submit an objection to all or any of the proposals within a fortnight, and the Board upon consideration could pass orders, was necessary or mandatory. The Constitutional Bench elucidated that while use of the word ‘shall’ in the statute, whether mandatory or directory, cannot be resolved by laying down general rule; the object of the statute in making the provision is a determining factor. The intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have to be taken into account for arriving at the conclusion whether the provision is directory or mandatory. The majority judgment thereafter referred to the statutory position and the facts of the case at hand to observe that publication of proposals was obviously to further the democratic process and to provide reasonable opportunity of being heard to those who are likely to be affected by the tax proposal. The object behind the publication was to elicit the reaction of the taxpayers, and the Board could even drop the proposal altogether if reaction of tax payers in general merited disapprobation. However, another provision of the statute relating to manner of publication, it was observed, was not mandatory and therefore so long as substantial compliance of the manner as provided was observed, it would be sufficient. The contention that the publication as per the mandate of the statute needs to be in Hindi 26 AIR 1965 SC 895 H

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A though the paper itself was published in Urdu was not a good ground to strike down the delegated legislation.

21. In Lachmi Narain v. Union of India27 in the context of legislation requiring publication of notice and public consultation three observations were made. Firstly, the requirement for publication of notice of not less than three months before amending the Second Schedule of the Sales Tax Act was held to be mandatory and not directory as the intention of the law makers was expressed in the law itself – the word ‘must’ instead of ‘shall’ had been used. When the provision is couched in prohibitive or negative language it can rarely be directory; pre-emptory language in negative form is per se indicative of the intent that the provision is mandatory. Secondly, the period fixed in the notice, was mandatory keeping in view several factors such as the imposition of new tax burden or exemption from taxes should cause least dislocation or inconvenience to the dealer in collecting tax for the government, keeping accounts and filing proper returns, and to the Revenue in assessing and collecting the same. Thirdly, dealers and others likely to be affected by the amendment, must get sufficient time and opportunity for making representation, objection, suggestion, in respect of the intended amendment. Accordingly, period of not less than three months was absolute and the span of the notice was thus the essence of the legislative mandate.

E 22. In Bhausaheb Tavanappa Mahajan v. State of Maharashtra,28 Madan, J., as His Lordship’s then was, observed that the mode of publication under the Maharashtra Agricultural Produce Marketing Act was mandatory as the word ‘shall’ prima facie requires strict compliance and when read with the other provisions, and, the consequences which flow from construing the word one way or the other as it would affect the trade and business of several persons, including agriculturists, it would be proper to hold that the legislative intent was to make the requirement of publication mandatory and not leave it to individual notice of different officers of the State.

23. On general observations and need for public consultation in delegated legislation in Harvinder Singh and Others v. State of Punjab,29 reference was made to a working paper presented by Professor Upendra Baxi that executive law making gives exclusive 27 (1976) SCC 2 953 28 AIR 1982 Bom 284 29 H (1979) 1 SCC 137

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prerogative to a small cross-section of people which necessarily effects both the quality of law making as well as its social communication, acceptance and effectiveness, resulting in a highly centralised system of power. He observed that it is time that India considered desirability and feasibility of building into public law-making process a substantial amount of public participation. Mr. Justice Krishna Iyer in rather strong words in paragraph 52 and 53 observed that subordinate legislation being bureaucratic driven, even when well-meaning and well-informed, could sometimes be para-babel to local self-government. Further, doctrine of delegation in its extreme proportions is fraught with danger which we in naivety may not be fully cognizant. The system of government needs careful, yet radical restructuring, if participative and pluralistic government by the people is to be jettisoned. Similarly, in Cellular Operators Association of India, this court consciously referred to U.S. Administrative Procedure Act and Corpus Juris Secundum to observe that it would be a healthy function of our democracy, if all subordinate legislation, subject to some well-defined exceptions, are made by transparent process together with explanatory memorandum; after due consultation is held and the rule and regulation making power is exercised after due consideration and by giving reasons for agreeing and disagreeing with the concerns. This would be conducive to openness, improved governance, and would also take care of most grievances and thereby reduce litigation. These observations may not be binding dictums enforceable in law, but should be effectively applied when the legislation itself mandates and requires public participation, thereby making it a worthy and meaningful exercise.

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A formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third,… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” B Lord Wilson observed that it was hard to see how any of the four requirements could be rejected or indeed improved. It was also observed that the public authority’s duty to consult those interested before taking a decision may arise in variety of ways – most commonly where the duty is generated by a statute. It can also arise under common law duty of procedural fairness in the form of doctrine of legitimate expectation. But, irrespective of how the duty to consult has arisen, it is the common law duty of procedural fairness to inform the manner in which the consultation should be conducted. Fairness is a protean concept not susceptible to much generalised enlargement, but its requirements in the context must be linked to the purposes of consultation. The first objective obviously is to address the common law duty of procedural fairness in determination of a person’s legal right. Three other underlying purposes are: (i) that consultation results in better decisions by ensuring that the decision maker receives all relevant information and is properly tested; (ii) it avoids the sense of injustice which the person who is the subject of the decision will otherwise feel; and (iii) it is reflective of democratic principle at the heart of our society. At the same time, it was observed that the degree of specificity with which the public authority should conduct its consultation exercise may be influenced by the identity of those it is consulting and the effect which the proposal has. In a given case, it may also include information relatable to arguable yet discarded alternative options, though consulting about a proposal may not inevitably involve inviting and considering use of possible alternatives. Therefore, it would be situation specific. Lord Reed observed that the common law imposes a general duty of procedural fairness upon public authorities exercising a wide range of functions which affect the interest of individuals, but the content of that duty varies almost infinitely depending upon the circumstances. Duty to consult, though not a general common law duty, can exist in circumstances where there is legitimate expectation of such consultation which is founded on an expectation, or from a practice of consultation. It may also arise from statutory duty of consultation. In some cases, the statute may give discretion to the public

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authority to restrict such consultation to a particular consultancy or may involve general public. The consultation may take the form of taking views of the public or holding public meetings etc. A mechanistic approach to the requirement of consultation should be avoided. Depending upon circumstances, issues of fairness may be relevant to the explication of the duty to consult. The purpose of this statutory duty to consult is to ensure public participation in the local authority’s decision-making process. In order for the consultation to achieve that objective it must fulfil certain minimum requirements to ensure meaningful public participation in the particular decision-making process. Thus, the public should be provided not only with information about the draft scheme but also an outline of realistic alternatives and indication of main reasons for the authority’s C adoption of the draft scheme. It is a general obligation to inform as to what the proposal is and exactly why it is under positive consideration. It should tell enough to enable the public to make an intelligent response. (We have subsequently discussed the principle of procedural legitimate expectation.) D

25. Gunning principles, first established in 1985, can be crystallised as under: a. consultation must occur when the proposals are still at a formative stage; b. the proponent must give sufficient reasons for the proposal that permit intelligent consideration and response; c. adequate time must be given for consideration and response; and d. the product of consultation must be conscientiously taken into account in finalising any statutory proposals. These principles reflect the basic requirements essential if the public consultation process is to be sensible and meaningful. They would normally form the basis and foundation for proper application of the duty to consult and right to be consulted. Nevertheless, these principles should not be put in a strait-jacket and the degree of application would depend upon the factual matrix and is situation specific. In United Kingdom grant of relief is now covered by Criminal Justice and Courts Act, 2015 which defines the circumstances in which the court must refuse relief. One of the grounds is when it appears to the court that it is highly unlikely that the outcome for the applicant would have been substantially different H

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A if the conduct complained of had not occurred. However, the court may not apply the ‘no difference test’ where it considers it appropriate to do so for exceptional public interest. There are similar principles relating to undue delay in making a claim for judicial review; extent of sufficient interest of the claimant; whether or not no harm is suffered or prejudice is caused by an unlawful act; the courts’ discretion not to provide a B remedy to make an order would serve no practical purpose; financial implications of the remedy, etc. are to be taken into consideration. Referring to the relief aspect, in Stephen Viera v. London Borough of Camden,32 it was observed as follows: “106. A quashing order should only be refused if it is inevitable C that the outcome would have been the same had the correct procedures been followed (see R (Copeland) v. London Borough of Tower Hamlets (2011) J.P.L. 40 at para 36, 37 citing Smith v. North Derbyshire Primary Care Trust (2006) EWCA Civ 1291, per May LJ at (10): D “...Probability is not enough. The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision...”

E 26. In Cellular Operators Association, this Court had quoted the decision of Court of Appeal in England, R. v. North and East Devon Health Authority, ex p Coughlan33 as to the meaning of the term ‘consultation’: “108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken...” (emphasis as originally supplied) 32 (2012) EWHC 287 33 H 2001 QB 213 : (2000) 2 WLR 622 (CA)

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27. We have already referred to Sections 7 to 11-A of the A Development Act which decree detailed procedure for preparation of a Master Plan and the Zonal Development Plan(s) including direction that the Authority shall prepare a draft and make a copy available for inspection to general public and invite objections and suggestions from any person. Every local authority within whose limit any land, as per the plan, is B situated is to be given a reasonable opportunity to make representation. Only on considering all representations, suggestions and objections, the Authority, under sub-section (3) to Section 10, can prepare a final plan and submit it to the Central Government for its approval. Sub-section (4) to Section 10 makes provisions of the rules made in this behalf with respect to form and content of the plan(s) and the procedure binding. C Consequently, the Development Rules, which are the subordinate legislation, are a part of the Development Act. The Authority, Central Government and common public are bound by the Development Rules, as they are bound to follow and abide by the Development Act. This Court in Rajasthan State Road Transport Corporation v. Bal Mukund D Bairwa 34 and Annamalai University v. Secretary to Government, Information and Tourism Department,35 has held that subordinate legislation when validly framed becomes a part of the main enactment. The consequence thereof clearly is that the Development Rules should be read as part and are equally enforceable as the Development Act. In this context, we would refer to Rule 4 of the Development Rules as it E elucidates the form and contents of the draft Master Plan to be made public to invite objections, suggestions and representations. As per sub- rule (1) to Rule 4, the draft plan is to consist of such maps, diagrams, charts, reports, and other written matter of explanatory or descriptive nature as pertained to the development of whole or any part of Delhi. F Sub-rule (2) to Rule 4 states that the written matter forming part of the Master Plan shall include such summary of main proposals and such descriptive matter as the Authority may consider necessary to illustrate and/or explain the proposal indicated by maps, charts, diagrams and other documents. Clauses (a) to (j) of sub-rule (3) to Rule 4 list out other details which may be included. For the purpose of record, we must state G that the expression ‘Master Plan’ as per sub-section (1) to Section 9, for purposes of Sections 10, 11, 12 and 14, would also mean the Zonal Development Plan for a zone. 34 (2009) 4 SCC 299 (see paragraph 39) 35 (2009) 4 SCC 590 (see paragraph 42) H

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A 28. Gunning principles can be substantially read as resonating in Sections 10, 11 and 11-A of the Development Act and Rules 4, 8, 9 and 10 of the Development Rules. To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would be defeat the benefic objective of exercise of deliberation. Public B participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements. Thus, mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure. This condition also flows from the common law general duty of procedural fairness. Doctrine of procedural legitimate expectation as explained below would be attracted. Intelligible and adequate disclosure of information in the context of the Development Act and the Development Rules means and refers to the degree to which information should be available to public to enable them to have an informed voice in the deliberative decision making legislative exercise before a final decision is taken on the proposals. In the present matter this lapse and failure was acknowledged and accepted by the BoEH, which had recommended disclosure and furnishing of details. Intelligible E and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments. They have far more permanent consequences. It was therefore necessary for the respondents to inform and put in public domain the redevelopment plan, layouts, etc. with justification and explanatory memorandum relating to the need and necessity, with studies and reports. Of particular importance is whether by the changes, the access of the common people to the green and other areas in the Central Vista would be curtailed/restricted and the visual and integrity impact, and proposed change in use of the iconic and heritage buildings. H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 643 ORS. [SANJIV KHANNA, J.]

29. In Hanuman Laxman Aroskar v. Union of India,36 on the question of public consultation in the case of environment clearance had observed: “112.8... Public consultation cannot be reduced to a mere incantation or a procedural formality which has to be completed to move on to the next stage. Underlying public consultation is the important constitutional value that decisions which affect the lives of individuals must, in a system of democratic governance, factor in their concerns which have been expressed after obtaining full knowledge of a project and its potential environmental effects.

30. Similarly, in M.C. Mehta v. Union of India,37 on the question of amendment of Master Plan and the need for proper public participation, this Court had held: “15. We may mention that it has been recorded that Delhi is being ravaged by unauthorised encroachments and illegal constructions with impunity and none of the civic authorities including the Delhi D Development Authority was sincerely carrying out its statutory duties. It is painful to require the issuance of directions to statutory authorities to carry out their mandatory functions in accordance with the law enacted by Parliament. Unfortunately, the situation in Delhi warranted such a direction due to the apathy of the civic authorities. E

16. Again unfortunately, instead of taking the people of Delhi into confidence with regard to amendments to the Master Plan, a bogey of public order and rioting has been sought to be communicated to us as if the law and order situation in Delhi was getting out of control. We are at a loss to understand the hyper reaction and F how changes in the Master Plan are sought to be brought about without any meaningful public participation with perhaps an intent to satisfy some lobbies and curtailing a period of 90 days to just 3 days on some unfounded basis. It must be appreciated that the people of Delhi come first. G

17. It is for the purpose of taking the public in Delhi into confidence and working for their benefit that an opportunity was granted to make suggestions and raise objections to the proposed amendments 36 (2019) 15 SCC 401 37 (2019) 12 SCC 720 H

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A to the Master Plan and which were not objected to by the learned Attorney General on 15-5-2018 keeping in view the spirit behind the invitation to object and make suggestions and curtailment of the normal statutory period.

18. In view of the above, the oral request of the learned Attorney B General to modify the order dated 15-5-2018 is rejected. The Central Government should expeditiously implement the order dated 15-5-2018 in letter and spirit keeping the interest of the public of Delhi in mind.”

31. In R.K. Mittal v. State of Uttar Pradesh,38 this Court dealing with the action taken by the development authority and the allegation that it was not in conformity with the Master Plan, the regulations and the statutory enactment, this Court observed: “49. The Development Authority is inter alia performing regulatory functions. There has been imposition of statutory duties on the power of this regulatory authority exercising specified regulatory functions. Such duties and activities should be carried out in a way which is transparent, accountable, proportionate and consistent. It should target those cases in which action is called for and the same be exercised free of arbitrariness. The Development Authority is vested with drastic regulatory powers to investigate, make regulations, impute fault and even to impose penalties of a grave nature to an extent of cancelling the lease. The principles of administrative justice squarely apply to such functioning and are subject to judicial review. The Development Authority, therefore, cannot transgress its powers as stipulated in law and act in a discriminatory manner. The Development Authority should always be reluctant to mould the statutory provisions for individual, or even for public convenience as this would bring an inbuilt element of arbitrariness into the action of the authorities. Permitting mixed user, where the Master Plan does not so provide, would be glaring example of this kind.” G

32. Similar are the observations in Rajendra Shankar Shukla v. State of Chhattisgarh39, wherein with regard to town planning and development reference was made to the ‘principles of natural justice’, 38 (2012) 2 SCC 232 39 (2015) 10 SCC 400 H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 645 ORS. [SANJIV KHANNA, J.]

when the town planning and development authority wanted to reconstitute A the plots and change the land use. Referring to the functioning of the committee which had to hear the objections of the parties, it was observed: “103. The functioning of the Committee under Section 50(5) of the 1973 Act is dissatisfactory and required the process to be followed afresh. The Committee constituted under the aforesaid B Act to hear objections of the desirous parties, was a mere eyewash. The Committee rejected the objections submitted by the appellants without providing any reasons for the same and not even providing any hearing opportunities to put forth their objections before the said Committee. Therefore, the recommendations of the Committee did not carry any weight. This action of the State C Government is vitiated in law and therefore liable to be set aside.”

33. Reference can also be made to Indore Development Authority v. Madan Lal,40 wherein it has been held as follows: “10. We do not think that the Development Authority was justified in following a short cut in this case. The procedure followed under the Trust Act could not be sufficient to dispense with all the requirements of Section 50 of the Adhiniyam. As earlier noticed that Section 50 of the Adhiniyam provides procedure for preparation and approval of scheme for development. After preparing a draft scheme, the Development Authority must invite objections and suggestions from the public. There must be due consideration of the objections and suggestions received in the light of the Master Plan of Indore. Indeed, the public must also have an opportunity to examine the scheme and file objections in the light of the Master Plan if the Development Authority wants to adopt the scheme. Since the scheme in question was not an approved scheme under the Trust Act, the Development Authority could not have dispensed with the procedure prescribed under Section 50 of the Adhiniyam.”

34. More direct and relevant is the decision in Syed Hasan Rasul G Numa v. Union of India41 in which this Court had interpreted Section 44 of the Development Act requiring issue of public notice inviting objections to the proposed modifications in the Master Plan. On the 40 (1990) 2 SCC 334 41 (1991) 1 SCC 401 H

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A aspect of consideration of objections, reliance was placed on the affidavit filed by the Secretary of the Authority stating that the objections were transmitted to the Central government for consideration as in the case it was the Central Government alone that was competent to consider the objections received from the interested persons. However, it was held that in the absence of any discussion in the minutes of the meeting it was difficult to accept that objections of the appellant before this Court like other objections were considered by the Central Government. Accordingly, the High Court was in error in assuming that no prejudice has been caused to the persons who had filed objections and suggestions. On the question of consideration of the objections, this Court has observed: “It is evident from these averments that the appellants’ statement of objections was not listed in the agenda of the meeting convened for consideration of all the objections received. It is, however, claimed that the appellants’ objection was read and ruled out in the meeting. But there is no record to indicate that it was considered and rejected. At any rate, it is not borne out from the proceedings of the meeting. In fact, it is admitted that there is no record with regard to disposal of the objection in question. It is not as if the proceedings of the meeting are not recorded and maintained. It is very much there, but it is confined only to the listed items in the agenda of the meeting. When the proceedings of the meeting are recorded, one would naturally expect that all that transpired in the meeting should find a place in the minutes of the meeting. In the absence of any such record, we find it difficult to accept the mere allegation of the respondents that the appellants’ F objection like any other objection was considered by the authorities. The High Court therefore, seems to be in error in assuming that there was no prejudice to the appellants. We do not however, mean to say that the appellants have a right to have their belated objection considered by the authorities. If there was valid publication of the notice as prescribed under the law, they ought to have filed the objection within the period specified in the notice. They could not file their objection after the prescribed period and complain that they have been prejudiced by the non-consideration of the objection. The prejudice could be presumed only when the objection filed within the prescribed period is not considered by the competent authorities.”

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 647 ORS. [SANJIV KHANNA, J.]

Secondly, with reference to Section 44 which requires issuance of a public notice, it was observed that the provision though not happily worded, the case for violation has been made out as the authorities had to follow two out of the three alternative methods prescribed. This is mandatory. Thereafter, it was held: “Section 11-A of the Act provides procedure for modification to the Master Plan and the zonal development plan. Sub-section (3) thereof provides that before making any modifications to any plan, the Authority or, as the case may be, the Central Government shall publish a notice inviting objections and suggestions from persons with respect to the proposed modification before the date specified in the notice. This is to give an opportunity to persons who are likely to be affected by the modification of the Plan to file objections and suggestions. Indeed, the interested persons or the persons who are likely to be affected have a right to file their objections and representations within the time specified. They have further right to have the objections considered by the competent authorities. In order to effectuate these rights, the prescribed means of publication must be faithfully followed giving the persons clear notice as specified in the statute. The provision providing such notice to persons whose rights or interests are likely to be impaired must always be considered as mandatory. As otherwise, it would defeat the very purpose of giving public notice inviting objections and suggestions against the proposed action.” In the said case, only one out of three means for publication provided in Section 44 was adopted, which it was observed falls short of the mandatory requirement. The public notice was therefore quashed with costs. This decision would be also relevant when we examine the question of failure of the Central Government to pass an order under sub-section (6) to Section 11-A and apply its mind to the objections and suggestions received from the public in respect of the proposed modifications. Instead, as noticed below the exercise was undertaken by the Authority. G

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A mandatory or directory must be made not only in the light of the language of the provision but also based on whether the provisions of the statute relate to performance of public duty and the case is such that to hold null and void acts done in neglect of this duty would work against serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main objective of the legislation. This is not so in the present case. Further, it is the duty of the courts to get at the real intention of the legislature by carefully attending to the scope of the statute considered and not merely upon the language in which the intent is clothed. This can be done by considering the phraseology of the provision, its nature, its design and consequences that would follow from construing it one way or the other. The court can also take into account that if the necessity of complying with the provision in question is avoided, whether the statute provides for contingency for non-compliance and whether or not the same is visited with some penalty, the serious or trivial consequences that flow therefrom and above all whether the object of the legislation would be defeated or furthered (See State of U.P. v. Babu Ram Upadhyay44). If the provision is mandatory the breach whereof will make the action invalid. If it is directory, the act will be valid although non-compliance may give rise to other penalty provided by the statute. The correct proposition appears to be that substantial compliance of the enactment is insisted, where mandatory and directory requirements are clubbed together for in such case if the mandatory requirements are complied with, it will be proper to say that enactment has been substantially complied with notwithstanding the non-compliance of the directory requirements.45

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 649 ORS. [SANJIV KHANNA, J.]

by the Act”. In Assessing the importance of the provision, particular regard should be given to its significance as a protection of individual rights; the relative value that is normally attached to the rights that may be adversely affected by the decision, and the importance of the procedural requirement in the overall administrative scheme established by the statute. Breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced. But the requirement will be treated as “fundamental” and “of central importance” if members of the public might suffer from its breach. C Another factor influencing the categorisation is whether there may be another opportunity to rectify the situation; of putting right the failure to observe the requirement.” De Smith however records that the courts in appropriate cases and on accepted grounds may, in their discretion, refuse to strike down a D decision or action or award any other remedy. This principle does not so much relate to determination of whether a particular provision or statutory obligation is itself mandatory or directory; rather, they are relevant for the question that if the statutory provision is mandatory and is not fulfilled, what should be the nature of relief to be granted by the court [See – Regina v. Secretary of State for Social Services47]. The general approach is that a complainant who succeeds in establishing unlawfulness of an action is entitled to a remedial order, but the court has discretion in the sense of determining what is fair and just to do in the particular case, and therefore could restrict or withhold the relief or grant a declaration rather than more coercive quashing, prohibiting, or mandatory order or injunction.

37. In the context of the present case, given the nature and importance the statutory provisions which emphasise on fair participation of the public in the deliberations, and the importance and significance of Central Vista, we do not think it would be appropriate and correct to ignore failure on the part of the respondents to ascribe to the principle of intelligible and adequate disclosure to fulfil the requirement of public participation. Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regarding the 47 1986 WLR Vol. 1 pg. 1 (at pg.6) H

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A proposal. Formative and constructive participation forms the very fulcrum of the legislative scheme prescribed by the Development Act and the Development Rules. Every effort must be made to effectuate and actualise the participatory rights to the maximum extent, rather than read them down as mere irregularity or dilute them as unnecessary or not mandated. B

38. Deliberative democracy accentuates the right of participation in deliberation, in decision-making, and in contestation of public decision- making. Contestation before the courts post the decision or legislation is one form of participation. Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision- making stage. In a republican or representative democracy, citizens delegate the responsibility to make and execute laws to the elected government, which takes decisions on their behalf. This is unavoidable and necessary as deliberation and decision-making is more efficient in smaller groups. The process requires gathering, processing and drawing inferences from information especially in contentious matters. Vested interests can be checked. Difficult, yet beneficial decisions can be implemented. Government officers, skilled, informed and conversant with the issues, and political executive backed by the election mandate and connected with electorate, are better equipped and positioned to take decisions. This enables the elected political executive to carry out their policies and promises into actual practice. Further, citizens approach elected representatives and through them express their views both in favour and against proposed legislations and policy measures. Nevertheless, when required draft legislations are referred to F Parliamentary Committees for holding elaborate consultation with experts and stakeholders. The process of making primary legislation by elected representatives is structured by scrutiny, consultation and deliberation on different views and choices infused with an element of garnering consensus.

G 39. Indirect participation of the citizens is critical to democracy and this thought has been appropriately expressed by Justice Sachs in

Doctors for Life International v. Speaker of the National Assembly 48

in the following words: 48 2006 (12) BCLR 1399 H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 651 ORS. [SANJIV KHANNA, J.]

““The Constitution predicates and incorporates within its vision the existence of a permanently engaged citizenry alerted to and involved with all legislative programmes. The people have more than the right to vote in periodical elections, fundamental though that is. And more is guaranteed to them than the opportunity to object to legislation before and after it is passed, and to criticise it from the sidelines while it is being adopted. They are accorded the right on an ongoing basis and in a very direct manner, to be (and to feel themselves to be) involved in the actual processes of law-making. Elections are of necessity periodical. Accountability, responsiveness and openness, on the other hand, are by their very nature ubiquitous and timeless. They are constants of our democracy, to be ceaselessly asserted in relation to ongoing legislative and other activities of government ... thus it would be a travesty of our Constitution to treat democracy as going into a deep sleep after elections, only to be kissed back to short spells of life every five years (paragraph 230).” D It is no doubt true that the South African Constitution obligates the duty to inform and consult; albeit it would be wrong to state that this obligation and the right is a utopian and an impractical proposition in electoral democracies. India itself is a shining exemplar of how the citizens have been indirect participants in primary legislations. E By contrast, indirect public participation in delegated legislation gets restricted, an aspect highlighted with reservations in earlier judgments of this court49. Traditionally this has passed judicial acceptance for several reasons, including exercise of keen legislative oversight over the executive agencies thereby ensuring integrity of the collective rule. This concern can be however addressed by adopting good governance principles, or by way of legislative mandate in the enacted statutes, rules and regulations. In fact, we have several legislations which mandate pubic participation in the form of consultation and even hearing, with an objective that the decisions and policies take into account people’s concerns and opinions. Public participation in this manner is more direct and of a higher order, than primary legislations enacted by elected representatives.

40. However, delegation of the power to legislate and govern to elected representatives is not meant to deny the citizenry’s right to know and be informed. Democracy, by the people, is not a right to periodical 49 See paragraphs 10 and 23 of this judgment. H

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A referendum; or exercise of the right to vote, and thereby choose elected representatives, express satisfaction, disappointment, approve or disapprove projected policies. Citizens’ right to know and the government’s duty to inform are embedded in democratic form of governance as well as the fundamental right to freedom of speech and expression. Transparency and receptiveness are two key propellants as even the most competent and honest decision-makers require information regarding the needs of the constituency as well as feedback on how the extant policies and decisions are operating in practice. This requires free flow of information in both directions. When information is withheld/ denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility.50

41. This is not to say that consultation should be open ended and indefinite, or the government must release all information, as disclosure of certain information may violate the right to privacy of individuals, cause breach of national security, impinge on confidentiality etc. Information may be abridged or even denied for larger public interest. D This implies that there should be good grounds and justification to withhold information. Boundaries of what constitutes legitimate with holding can at times be debatable; but in the present case, there is no contestation between transparency and the right to know on the one hand, and the concerns of privacy, confidentiality and national security on the other. E Further, the Development Act and Development Rules demand and require openness and transparency, and embody without exception the right to know which is implicit in the right to participate and duty to consult.

42. The historic and iconic nature of the Central Vista is too apparent to even consider any counter argument. This is evident from F the formation of the Central Vista Committee, 1962, declaration of the entire Central Vista as a heritage zone in the Master Plan of Delhi as well as Annexure-II of the Unified Building Bye-Laws, which we would be referring to subsequently. Paragraph 10.2 of the Master Plan as per the heading ‘Conservation Strategy’ reads: G “10.2 Built heritage of Delhi needs to be protected, nourished and nurtured by all citizens and passed on to the coming generations. It is suggested that with the aim of framing policies and strategies for conservation, appropriate action plans may be prepared by all the agencies. These should include promotion of conservation of 50 With reference to Olson 7 th implication, distribution collision ... reduce the rate of growth. ‘The Rise and Decline of Nations’ and subsequent studies.

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 653 ORS. [SANJIV KHANNA, J.]

the civic and urban heritage, architecturally significant historical landmarks, living monuments, memorials and historical gardens, riverfront, city wall, gates, bridges, vistas, public places, edicts and the ridge.” Paragraph 10.3 of the Master Plan, which relates to heritage zones, reads: B Heritage Zone is an area, which has significant concentration, linkage or continuity of buildings, structures, groups or complexes united historically or aesthetically by plan or physical development. The following areas have been identified as Heritage Zones as indicated in the Zonal Plan: C (ii) Specific heritage complex within Lutyens Bungalow Zone. xx xx xx” Paragraph 10.5 of the Master Plan reads: “Each local body/land owning agency should formulate “Special D Development Plans” for the conservation and improvement of listed heritage complexes and their appurtenant areas. Alternation or demolition of any listed heritage building is prohibited without the prior approval of the Competent Authority. The development plans/schemes for such areas shall conform to the provisions, in respect of Conservation of Heritage Sites including Heritage Buildings, Heritage Precincts and Natural Feature Areas.”

43. Questions would, therefore, arise whether mere change in the land use would be sufficient or the respondents were required to draw out a special conservation plan under paragraph 10.5 of the Master Plan. These aspects have not been examined by the sanctioning and approving authorities. Suffice would be to notice and record merit in the contention raised by the petitioners that mere change in land use of the six plots in the Central Vista would not be sufficient without specific amendments and modifications of the Master Plan of Delhi, including the following stipulation: “8.1 DECENTRALIZATION OF OFFICES As per NCR Plan, no new Central Government and Public Sector Undertaking offices should be located in NCTD. However, the H

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A issue of shifting existing Government / PSU offices from Delhi as well as restricting the setting up of new offices would only be possible after a time bound action plan is prepared together with suitable incentives and disincentives. 8.2 OPTIMUM UTILIZATION OF GOVERNMENT B LAND Government of India, Govt. of NCTD and local bodies are occupying prime land in Delhi for their offices. Most of the offices have been setup immediately after Independence. Large areas are underutilized and have completed their economic life. Due to C downsizing of government employment and need for generation of resources by ministries, optimum utilization of existing government offices/ land could be achieved by the following measures: (i) Intensive utilization of existing government offices/land. D (ii) Utilization of surplus land by the government for residential development. (iii) Utilization of 10% of total FAR for commercial uses to make the restructuring process financially feasible. This shall be subject to approval of land owning agency and concerned local body. E XX XX XX”

44. The Government of India, Ministry of Housing and Urban Affairs, Central Public Works Department in September 2019 had published a handbook called “Conservation and Audit of Heritage F Buildings”. The handbook emphasises on the need to protect and conserve heritage which was described as tangible and intangible values passed on to us from the past. Conservation of built heritage is generally perceived to be in long term interest of the society. On the question of identifying heritage properties, specific reference is made to the Parliament House at New Delhi being a building associated with historical events, activities or patterns. Reference is also made to the model building by-laws of 2016 which have specific provisions relating to heritage buildings, heritage precincts and natural feature areas identical to the unified building by-laws as applicable to Delhi. The process of identification of heritage buildings is determined by three concepts, namely, significance, integrity and context and observes as under:

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 655 ORS. [SANJIV KHANNA, J.]

Significantly, the handbook on the basis of criteria identifies Rajpath in Lyutens’ New Delhi as a heritage building/precinct because of its G distinct town planning features like squares, streets and avenues.

45. While the Respondents have claimed that modifications to the Master Plan of Delhi would not result in change in character of the plan, a reading of the notice inviting tenders published by the Central Public Works Department inviting design and planning firms for the H

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A “Development / Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi” indicates that the proposed project does envisage extensive change to the landscape. The scope of the project has been described as – “The objective of this bid document is to replan the entire Central Vista area…” The Terms of Reference of the bid similarly states: B “There is a need for a visionary Master Plan to be drawn up for the entire Central Vista area. The new Master Plan shall be a blue-print for the redevelopment of the entire area – locating modern government office building blocks complete with building design, engineering services design, site development infrastructure, landscape, water bodies, lighting amongst other components. The Master Plan shall also provide intelligent and sustainable solutions for present issues pertaining to inefficient land-use, traffic congestion, pollution etc. The new Master Plan shall identify and detail out all works including building design, engineering services and infrastructure design, site development, landscape design, engineering services and infrastructure design, site development, landscape design, mobility plan, lighting design, water bodies etc.” The impact of the changes envisaged are not minor and what is envisaged is complete redevelopment of the entire Central Vista, with site development infrastructure, landscape design, engineering design and services, mobility plan etc. The expenditure to be incurred and demolition and constructions as proposed indicate the expansive and sweeping modifications/changes purposed.

46. We have noticed the marked difference between the scope and amplitude of power conferred on the Authority under sub-section (1) and the power conferred on the Central Government under sub- section (2). Sub-section (1) grants restricted and limited power to the Authority to make modifications to the Master Plan and the Zonal Development Plan as it thinks fit, which in the Authority’s opinion do not: (i) effect important alterations in the character of the plan, i.e. the Master G Plan or the Zonal Development Plan; and (ii) relate to the extent of the land-uses or the standards of population density. Sub-section (2) confers a separate and wider power on the Central Government to make any modification to the Master Plan or the Zonal Development Plan, whether such modifications are of the nature which the Authority (i.e. the DDA) H is authorised to do or otherwise. Sub-section (3) to Section 11A mandates

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 657 ORS. [SANJIV KHANNA, J.]

that the Authority or the Central Government, as the case may be, shall publish a notice as per prescribed rules inviting objections/suggestions from any person with regard to the proposed modification before a specified date and that the Authority or the Central Government shall consider all the objections/suggestions that may be received. Thus, sub- section (3) to Section 11-A proceeds on the distinction between the power conferred on the Authority and the Central Government under sub- sections (1) and (2) of Section 11-A of the Development Act. It states that the objections and suggestions can be received by the Authority or the Central Government. Sub-section (4) to Section 11-A states that every modification shall be published in the manner as the Authority or the Central Government, as the case may be, shall specify and the modification shall come into operation on the date of publication or such other date as the Authority or Central Government may fix. Sub-section (5) to Section 11-A states that where an Authority makes modifications to the plan under sub-section (1), it shall report to the Central Government full particulars of such modifications within thirty days of the date on which such modifications come into operation. In other words, in modifications covered by sub-section (1), the requirement is that the Authority post the approval shall report to the Central Government within thirty days from the date on which modifications have come into operation. In case of modifications covered by sub-section (2) to Section 11-A, it is the Central Government which considers the objections and suggestions and thereafter may notify the proposed modification in entirety or in part. Central Government on consideration may even drop and not notify the proposed modifications. It is in this context that the judgment of this Court in Syed Hasan Rasul Numa quoted above, had quashed the modifications as there was no record of the objections/suggestions to the modifications being considered and decided by the Central Government.

47. The respondents have placed on record the notification dated 27th September 2012, SO No. 2318(E) published in the Gazette of India on 27th September 2012 whereby, in exercise of powers conferred by sub-section (2) of Section 52 of the Act, the Central Government has directed that the power exercisable by it “under Section 11-A for the purpose of review/modification of the Master Plan of Delhi 2021 shall be exercisable by the Vice Chairman of DDA insofar as it relates to issue of public notice for inviting objections and suggestions from any person”. Clearly, the Central Government recognises and accepts the H

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A difference between the power under sub-section (1) and (2) to Section 11-A and that the Central Government alone has the power to consider the objections/suggestions and make modifications which are excluded from the ambit of sub-section (1).

48. Two other aspects need to be noticed before we elucidate B and refer to other lapses in the decision-making process. Given the nature of changes in the proposal, sub-section (2) to Section 11-A applies. Indeed, the notification dated 20th of March, 2020 approving the proposal states that the Ministry of Housing and Urban Affairs, in exercise of powers conferred under sub-section (2) to Section 11-A, had made the modifications in the Master Plan of Delhi and Zonal Development Plan C of Zone B and C (see paragraph 17). However, it is clear that the procedure followed is the one applicable to modifications under sub- section (1) to Section 11-A. Secondly, the Central Government in the present case has not passed an order under sub-section (6) to Section 11-A of the Development Act.

D 49. The Respondents in the consolidated affidavit dated 24th July 2020 have pleaded that there is no change in the character of the plan, i.e. the Master Plan, and the Zonal Development Plan for Zone D and C. Accordingly, contrary to the Notification dated 20th March,2020 which specifically refers to the Central Government exercising power under sub-section (2) to Section11A, they have relied upon sub-section (1) to Section 11A. Relevant portion of the consolidated affidavit of the Respondents reads:- “No Change in the Character of Plan

39. it is submitted that change in land use is in the direction of aligning the existing land use with the proposed Central Vista Development / Redevelopment Plan and it is not going to alter any fundamental character or historicity of this area. It is only a readjustment / reorganization of the Central Government Ministry offices. The present District Park area of 9.5 acre has been compensated by providing 5.64 acre in D Zone (Central Vista) and 3.9 acre in C Zone, thereby keeping the green spaces intact. It is pertinent to mention that as per modified Plan the green area along the Rajpath will increase by 5.64 acre. It is submitted that after the land use modification of six plots, the character of the plan is not changing as they shall be utilised for Government offices as already functional in the area. Therefore, there is no change in

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 659 ORS. [SANJIV KHANNA, J.]

the character of usage, rather it will be more organised and planned. A The Government funds which are being utilised for maintenance shall now be utilised to construct state of the art buildings, with provisions of modern infrastructure, architecture and structurally safe buildings. The buildings currently are more than 60 years old and as per civil engineering design norms have completed their life.” The Authority in its affidavit has pleaded somewhat similarly, stating: “No Change in the Character of Plan / Extent of Land Use The Change in land use is in the direction of aligning the existing land use with the proposed Central Vista Development / Redevelopment Plan and it is not going to alter any fundamental character or historicity of this area. It is only a readjustment / reorganisation of the Central Government Ministry offices. The present District Park area of 9.5 acre has been compensated by providing 5.64 acre in D Zone (Central Vista) and 3.9 acre in C Zone, thereby keeping the green spaces intact. It is pertinent to mention that as per modified Plan the green area along the Rajpath will increase by 5.64 acres.” At another place in the consolidated affidavit filed by the E Respondents with reference to the power of the Authority under Section 11-A, it is pleaded : “...Section 11A, Chapter IIIA of the Delhi Development Act, 1957 empowers the Delhi Development Authority (DDA) to modify the Master Plan or the Zonal Development Plan as it things fit; and as such answering Respondent DDA was empowered and fully competent to issue the said Public Notice and the subsequent modification. It is further submitted that in the context of the subject Notification dated 21.12.2019, it is submitted that the proposal did not make any important alteration in the character of the plan, extent of land use or standards of population density.”

50. In the written submissions filed by the respondents on issues of change of land use, with reference to sub-section (1) and (2) of Section 11-A, it is stated as under: H

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A “23. In light of the above, it is unequivocally submitted that the present process culminating in to the notification dated 20.03.2020, is issued under sub-section 2 of Section 11-A the DDA Act. It is submitted that as stated above, the power of the Central Government under sub section 2 are untrammelled and uninhibited by the conditionalities of sub-section 1. It is submitted that following language in the present impugned notification represents a clear application of mind by the Central Government to the material presented by the specialised body and therefore, is clearly a decision taken after due consideration and after due analysis of the material. The said part of the notification dated 20.03.2020 is as under: “S.O. 1192(E).—Whereas, certain modifications which the Central Government proposed to make in the Master Plan for Delhi-2021/ Zonal Development Plan of Zone-D (for Plot No. 02 to 07) and Zone-C (for Plot No. 08) regarding the area mentioned here under were published in the Gazette of India, Extraordinary, as Public Notice vide No. S.O. 4587(E) dated 21.12.2019 by the Delhi Development Authority in accordance with the provisions of Section 44 of the Delhi Development Act, 1957 (61 of 1957) inviting objections/ suggestions as required by sub-section (3) of Section 11-A of the said Act, within thirty days from the date of the said notice;

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

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

4. Now, therefore, in exercise of the powers conferred under Sub-section (2) of Section 11-A of the said Act, the Central Government hereby makes the following modifications in the said Master Plan for Delhi-2021 / Zonal Development Plan of Zone- D & Zone-C, with effect from the date of Publication of this H Notification in the Gazette of India.

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24. Therefore it is submitted that the challenge to the process and the notification, as presented by the Petitioners, is meritless. It is submitted that without prejudice to the above, it is submitted that even if the present notification is considered to be one issued under sub-section 1 of Section 11-A, the present change of land use does not after the conditionalities of the said sub-section which will be dealt with separately.” Paragraph 23 makes an interesting reading as it accepts that the modifications were covered by Section 11-A(2) and not Section 11-A(1) of the Development Act. However, in paragraph 24, it is pleaded that the notification may also be considered to have been issued under sub- section (1) to Section 11-A as the present land use does not impinge upon the conditionalities of the sub-section which have been dealt with independently. This ambiguous and oscillating stand, which is also contradictory, goes to the root of the issue and question of the authority empowered and competent to legislate. First there is failure of the Central Government to pass any order under sub-section (6) to Section 11A. D Secondly, this oscillation is for a reason; fatal failure to follow the procedure prescribed under sub-section (2) to section 11A of the Development Act as explained and elucidated in paragraph 51 below. Faced with this situation in the written submissions filed by the respondents, a different version has been given in the list of dates and events, wherein it has been stated as under: E

“06.02.2020 – A background note was placed by the L&DO in response to the objections raised. Note 1: It is clear that the L&DO being the Central Government, at this stage, applied its mind to the objections and suggestions F made before the DDA.” This assertion in the list of dates is not supported by an affidavit on record. It would be hypothetical and incongruous to accept that L&DO had applied its mind to the objections and suggestions even before the public hearing, and therefore, the court should assume that the Central G Government had considered the objections and suggestions. The stands would fall foul of duty to follow procedural fairness and legitimate expectation expected from a public authority required to comply with the statutory duty of consultation in the decision making process. Final decision must be conscientiously and objectively taken by the competent authority post the hearing. This plea must be reject, as the public hearing H

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A was slated on 6th and 7th of February 2020. Cellular Operators Association of India and others holds that public consultations must be undertaken when the proposals are at a formative stage. Further, the assertion is contrary to the minutes of the meeting of the Authority, i.e. the DDA, on 10th February 2020 in which the Additional Secretary (G), MoHUA and Member of the Delhi Development Authority had participated. A perusal of the note dated 6th February 2020 also affirms the position that particulars and details of the proposal were not uploaded and made available for the public. The letter written by the L&DO dated 6th February 2020 with reference to the background note does not reflect consideration of the objections and suggestions but inter alia states that by an earlier letter dated 4th December 2019, agenda for change of land use of eight blocks has been forwarded for placing before the technical committee of the Authority and a background note was being enclosed. Authority was requested to take necessary action accordingly. This is not a letter or communication showing consideration of the suggestions and objections. D

51. The Central Government has not placed on record even a single document or minutes to show that the objections and suggestions were considered by the Central Government, albeit they place reliance on the gazette notification 20th March, 2020 which does not specifically talk about considerations of objections and suggestions but states ‘whereas the Central Government have after carefully considering all aspects of the matter, have decided to modify the Master Plan for Delhi 2021/ Zonal Development Plan for Zone D and Zone C’.

52. Relevant also on the said aspect are the minutes of the meeting of the Authority held on 10th February 2020 at Raj Niwas, Delhi wherein it is observed as under: “(g) Additional Secretary (D), MoHUA and Member, Delhi Development Authority, explained that the Authority is competent to make the proposed modification in the Master Plan for the land uses as these will not alter the character of the Master Plan sine they are in line with the Lutyens & Bakers’ plan of housing Government buildings in the Central Vista. Further, the proposal does not impact the extent of the land uses and the standards of population density as has been envisaged in the Master Plan for Delhi, (MPD) – 2021. Hence, Section 11(A)(1) of Delhi Development Act, 1957, empowers the Authority to make proposed H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 663 ORS. [SANJIV KHANNA, J.]

changes under consideration. Vice-Chairman DDA further corroborated this and stated that only after being satisfied that the Authority is competent under section 11(A)(1) of the Act, that the proposal has been considered and submitted for Authority’s approval.” Clearly, therefore, the Authority and the Central Government were of the view that sub-section (1) to Section 11-A would apply and the procedure as applicable should be followed, but notwithstanding objections and challenge no order under sub-section (6) to Section 11-A of the Development Act was passed. Indeed, if there had been an order under sub-section (6) to Section 11-A, it would have been filed as part of the pleadings with liberty to the petitioners to challenge the same in accordance with law which would include unreasonableness as covered by Wednesbury principles. Sub-section (6) to Section 11-A of the Development Act in our opinion are mandatory. Sub-sections (1) to (6) to Section 11-A envision the Authority and the Central Government as two separate and distinct authorities with limited and broader powers for ‘legislating’ proposals for modifications of the Plans.

53. Faced with the aforesaid position, the respondents had argued that Development Rules 4, 8, 9 and 10, would not be applicable as they relate to preparation of Master Plan or the Zonal Development Plan and not to the amendment or modifications envisaged by sub-section (2) or even (1) to Section 11-A of the Development Act. Our attention was drawn to Rule 12, which stands deleted. Rule 12 had stipulated that amendments to whole or any part of the Master Plan, if necessary, after expiry of five years can be undertaken by the Authority in accordance with the procedure prescribed by the Development Act and Development Rules as if the proposed amendment were a new Master Plan. Therefore F on deletion of Rule 12 in 1966, Rules 4,8,9 and 10 of the Development Rules do not apply to modification of the Master Plan or Zonal Development Plans. This contention, through attractive, must be rejected for several reasons. In any case, it cannot be denied that Section 11A and Rule 16 mandate issue of public notice for inviting objections and G suggestions from the public and due consideration by the Authority or the Central Government, as the case may be. As elucidated above this requires intelligible and adequate disclosure to enable public to make suggestions/objections. We would now elucidate reasons why the procedure as per Rules 4, 7, 8 to 10 of the Development Rules is necessary: - H

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A a. Sub-section (4) to Section 10 states that provisions can be made by the rules in respect of form and content of the plan and with regard to the procedure to be followed and any other matter in connection with the preparation, submission and approval of the plan. This sub-section could equally apply to modification of a plan. Sub-section (3) to B Section 11-A is similarly worded as it states that the Authority or the Central Government, as the case may be, shall publish a notice in such form and manner as may be prescribed in this behalf and thereby invite objections and suggestions from any person in respect of the proposed C modifications before such date as may be specified in the notice. It mandates that the Authority or the Central Government, as the case may be, shall consider the objections and suggestions. The sub-section (3) to Section 11-A makes reference to the rules which are applicable, i.e. the Delhi Development (Master Plan and Zonal D Development Plan) Rules, 1959. Therefore, the modification of the Plan as per Section 11-A of the Development Act has to be done as per the procedure prescribed by the Development Rules and not de hors these rules. As per Rule 15, Rules 5 to 11 relating to the Master Plan apply mutatis mutandis to the Zonal Development Plan. There are several good reasons why this interpretation is more acceptable and should be adopted. b. In Superintendent and Legal Remembrancer, State of West Bengal v. Corporation of Calcutta51 , a nine judges bench of this Court had held that the interpretative tool of necessary implication can be drawn when it would hamper the working of the statute or would lead to the anomalous position that the statute may lose its efficacy. It is also well settled that provisions have to be read harmoniously to effectuate them and give effect to the legislative intention. G In the present case, the said interpretative tool of necessary implication would apply as modifications, which can be major or substantive in nature as in the present case, should follow and comply with Rules 4, 8,9 and 10 of the Development Rules. Otherwise, an anomalous position would arise 51 H AIR 1967 SC 997

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 665 ORS. [SANJIV KHANNA, J.]

permitting modifications that have a far reaching impact A being made post the enactment of the plan without following the rigours prescribed for the original enactment of the plan. c. Section 21 of the General Clauses Act reads: “Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws B — Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind C any notifications, orders, rules or bye-laws so issued.” Mandate of this section would apply as there is nothing expressly or impliedly in Section 11-A that seeks to obliterate or even limit the need for public hearing. Silence does impede applicability of Rules 4,8,9 and10 of the Development D Rules. Rather in terms of Section 21, silence enforces applicability of these rules. Inconsistency is the test. In other words, the power to add to, amend, verify or rescind the Master Plan under Section 11A are subject to the condition of public hearing as required by the Development Act, and Development Rules, as they prescribe to enactment of the E Master Plan or Zonal Development Plan. The procedure to modify the plan has to follow procedure as it would apply to approve and modify the initial plan. Therefore for modification of a plan, the BoEH has to be constituted and hearing has to be afforded to those who have submitted F representations, suggestions and objections to the proposal under consideration. Any amendment or modification of a plan under Section 11-A of the Development Act contrary to or de hors the procedure prescribed in Rules 4, 8 and 9 will be contrary to law. Referring to Section 21 of the General Clauses Act, in Kamla Prasad Khetan v. Union G of India,52 this Court had observed that the power to issue an order under the Central Act includes the power to amend an order, but this power is subject to an important qualification contained in the words ‘exercisable in the like 52 AIR 1957 SC 676 H

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A manner and subject to the like sanction and conditions (if any)’. Therefore, the amending or modifying order has to be made in the same manner as the original order and is subject to the same conditions that govern the making of the original order. In Scheduled Caste and Weaker Sections Welfare Association v. State of Karnataka,53 B this Court struck down a notification issued under the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 which had rescinded the original notification and had thereby reduced the slum area. After referring to earlier decisions, it was observed that Section 21 of the General C Clauses Act would apply as there was nothing in the subject matter, context or effect of the concerned provision so as to be inconsistent with the application of Section 21 as the procedure for issue of notification had required and could be exercised only after hearing the affected parties. It was held that the amendment and redeclaration would also D require the same procedure to be followed. The rule of personal hearing, it was observed, was incorporated to protect every citizen against arbitrary power of the State or its officers and is mandated by law as it is the duty of the State to act judicially. E d. Doctrine of contemporanea expositio is applicable as the respondents have in the past followed and applied Development Rules 4, 8, 9 and 10 while considering proposals for modification of plan (s) under Section 11-A of the Development Act. Authorities on interpretation of F Section 11A have held that Rules 4, 8, 9 and 10 would be applicable to modifications undertaken in terms of Section 11-A of the Act. The maxim ‘Contemporanea exposition est optima et fortissimo in lege’ means that the best way to construe a provision or document is to read it as it would have been read when it was made. Explaining this principle G of interpretation, it has been held that contemporaneous construction placed by the authorities charged with executing the statute should be accepted by giving weight unless it is clearly wrong, in which case it should be overturned. The construction given by the authorities whose H 53 (1991) 2 SCC 604

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duty is to construe, execute and apply an enactment is highly persuasive though when the court feels that this is a case of an error, it may refuse to follow such construction. G.P. Singh, in The Principles of Statutory Interpretation (14th edition) has explained that usage and practice developed under the statute is indicative of the meaning ascribed to its words by contemporary opinion as an external interpretive aid to construction. However, it is subject to the condition that the court is not prevented from giving the true construction as interpretation received from contemporary authority is not binding on the court, which may even disregard such interpretation if it is clearly wrong. Suffice C to say, in the present case, reject the interpretation that Rules 4, 8, 9 and 10 do not apply to the process of modification of the Master Plan, as inimical to the language as well as the spirit of the Development Act. On the contrary, application of Rules 4, 8, 9 and 10 has been accepted by contemporanea expositio by the Authority and the Central Government. We agree there are limitations to the principle of contemporanea expositio when the statutes are old as this principle has not been applied to the Evidence Act, 1872 and the Telegraph Act, 1885. Nevertheless, in the present case, the interpretation given above is in consonance with the interpretation given by the Respondents, i.e. the authorities who had made the Development Rules. e. Any change or modification in the practice adopted by the respondents viz. Rules 4, 8, 9 and 10 and their application to modifications under Section 11-A of the Act would also be governed by the principle of procedural legitimate expectation which has special application in planning law. Recently, this Court in State of Jharkhand v. Brahmputra Metallics Limited Civil ,54 has elaborately referred to the doctrine of legitimate expectation by referring to the English G Law, some of which has been quoted below, to observe that in Indian jurisprudence there appears certain doctrinal confusion which needs to be corrected. The doctrine means that the public authorities should be held bound by the 54 Appeal No. 3860 of 2020 decided on 1 st December 2020 H