RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & ORS

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A representations since citizens continue to live their lives based on the trust they repose in the State. When public authorities fail to adhere to their representations without providing adequate reasons, it violates the trust reposed by the citizens in the State. The basis of the doctrine of legitimate expectation is reasonableness and fairness, the denial of which may amount to abuse of power. The remedies against public authority must also take into account the interest of general public which the authority seeks to promote. There is denial of legitimate expectation when in a given case it amounts to denial of a right that is guaranteed, or is arbitrary, discriminatory, unfair or biased or gross abuse of power or in violation of principles of natural justice so as to attract Article 14 of the Constitution. However, mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. This means that public authorities cannot play fast and loose with the powers vested in them which have to be exercised in the larger public and social interests. Every authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which powers were conferred. In this context, good faith for legitimate reasons, that is, bona fide for the purpose and none other. In this way, legitimate expectation is a way in which the constitutional law guarantees non-arbitrariness enshrined under Article 14. Procedural legitimate expectation is distinct from substantive legitimate expectation as explained in R (Bhatt Murphy) and Others v. Independent Assessor55, F as procedural expectation arises where a public authority has provided an unequivocal assurance, whether by means of express promise or established practice that it will give notice and a chance of hearing to the affected party before it changes an existing substantive policy. In such cases, the G court will not allow the decision maker to effect proposed change without notice or consultation, as the case may be, unless there is overriding legal duty to the contrary or countervailing public interest which requires departure from the express promise or established practice. In the latter 55 H (2008) EWCA Civ 755

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case, i.e. in case of departure, the onus would be on the authority to justify such departure. The reason for applying the principle of procedural legitimate expectation is not only to check the decisions which may have harsh impact, or to prevent unfairness or abuse of power, but to enforce the principle of good governance, i.e. the public bodies ought to deal straight forwardly and consistently with the public. This is an objective standard of public decision making on which the courts would insist. Procedural legitimate expectation does not suffer and have the same constraints in application which the courts are faced when parties invoke substantive legitimate expectation against the Government or public authority challenging the change or abolition of the earlier policy. It is generally agreed that ordinarily every government or authority, has the right to change the existing policy unless such change is hit by Wednesbury principle of unreasonableness, etc.. Therefore, normally substantive legitimate expectation rarely results in a relief unless there is a specific undertaking directed to a particular individual or a group by which the relevant policy’s continuance is assured. Even in such cases, substantive promise cannot be binding if it is ultra vires or inconsistent with the statutory duties imposed on the authority. The third category of legitimate expectation is related to the second and was described in Bhatt Murphy’s case as ‘secondary case of procedural expectation’ which applies in situations where, without any express promise, the public authority has established a policy substantially affecting a person or persons who have reasonably relied on its continuance, can well claim a right to present their views and contest the proposed change before it is withdrawn. In the present case, we are not concerned with the second and third category but with the first category, i.e. procedural legitimate expectation. This principle has often been applied when there is lack of consultation which results in failure to follow procedural promises or established practice in municipal law as has been held in R (Majid) v. London Borough of Camden 56 , and R (Kelly) v. London Borough of 56 2009 EWC Civ 1029 H

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A Hounston57, where the claimant was not informed of the date of the committee meeting in time to address it and in R (on the application of Vieira) v. London Borough of Camden 58 , which was a case relating to grant of retrospective planning permission for a conservatory and for a building by a local authority, which was struck down. B The grounds included failure to make documents and reports available on the website for comment before the panel meetings as stated in the published procedure for members briefings and the statement and the requirement that the ‘members briefing panel’ would be consulted on whether the application should be referred to the committee as indicated in the planning protocol, the procedure for members briefing and its website. Importantly, in this case, the local authority’s submission that even if it had acted unlawfully, relief should be refused on the basis of the claimant’s low prospects of success in objecting to the planning permission was rejected, on the following reasons: “116. A quashing order should only be refused if it is inevitable that the outcome would have been the same had the correct procedures been followed see R (Copeland) v. London Borough of Tower Hamlets, (2011) E 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): “…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…”

117. In the present case the Interested Party built the new conservatory enforcement action. The planning concerns are recognised in the Members’ initial request for amendments to the scheme. There remains the 57 2010 EWHC Civ 1256 58 2012 EWHC 287

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question whether those amendments make the scheme A acceptable, or whether there is an alternative solution.

118. In my judgment, this is not a case in which it would be proper to refuse relief. I order that the grant of planning permission should be quashed, and re-considered according to law.” B

54. We have referred to the principle of procedural legitimate expectation only to reinforce our interpretation of Rules 4, 8, 9 and 10 on their applicability to modification of the Plan under Section 11-A of the Act as legitimate expectation comes into play when there is no statutory requirement. If there is a breach of statutory requirement then the breach itself can be made subject matter of the proceedings. Legitimate expectation comes into play when there is a promise or a practice to do more than that which is required by the statute. This is also the view expressed in 11th Edition of Administrative Law (H.W.R. Wade and C.H. Forsyth) at page 458 that doctrine of legitimate expectation thus extends the procedural protection that would otherwise be applicable; it enhances but does not replace the duty to act fairly.

55. The core issue in the present case is whether or not the respondents have performed their duty to consult the public, followed the prescribed procedure and the authority competent had acted to modify/amend, in terms of the Development Act and the Development E Rules. We are not concerned with the merits of the proposal. The respondents in the first sentence of the written submissions in paragraph 1 have stated as under: “1. At the outset, it is submitted that the present broad segmented development of the Central Vista is part of a sovereign policy F designed to meet the present and future needs of space, to alleviate the issues surrounding the particular area in terms of the ecology impact and to keep the architectural heart of Indian democracy at pace with the changing needs to time whilst preserving the glory of the past.” G The latter portion of the sentence beginning from ‘designed’ till ‘glory of the past’ represents the stand of the respondents. However, the contention that the broad segmented development of Central Vista is a part of sovereign policy requires emendation and elucidation. The sovereignty rests with the People of India who have enacted and given H

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A to themselves the Constitution, which incorporates the principle of separation of powers between the Legislature, the Executive and the Judiciary. Each of them function within the four corners of the Constitution, including compliance with the statutes and statutory rules while enacting delegated legislation. Elected executive certainly has constitutional and people’s mandate to choose, formulate and execute policies, albeit in accordance with law. We have already delineated the parameters on which delegated legislation can be challenged before the court which includes failure to follow the mandatory procedure as well as the delegatee exceeding its power as conferred by the legislature. Merits of the public policy is not perse a dispute being decided by the Court. The matter and dispute before us relates to the validity of delegated legislation on the ground that the procedure prescribed by law, namely the Development Act and Development Rules has not been followed.

56. At this stage, it would also be appropriate to refer to Section 45 of the Delhi Development Act which mandates that where any notice, order or document issued or made under the Act or any rule, regulation made thereunder requires anything to be done for which no time is fixed under the Act, the notice, order or document shall specify reasonable time for doing so. The petitioner has placed on record written communications raising objections to the public notice dated 3rd February. 2020 fixing the hearing for 6th / 7th February, 2020, as it did not give reasonable time for preparing and appear in person for the hearing. It may be noted here that the respondents have also stated that the emails were also sent on 3rd and 4th February, 2020 to 1292 objectors on the e- mail addresses provided by them. Only forty-two (42) persons had appeared before the Board of Enquiry and Hearing on the two dates.

F 57. As per the writ petitioners, the public notice dated 3rd February, 2020 was published in the newspapers on 5 th February, 2020. It is also stated that the emails with regard to public hearing on 6th and 7th February, 2020 were received in the evening on 4th February, 2020 and afternoon of 5th February, 2020 which hardly gave them any time to make it G convenient to appear and present their views after due preparation. The contention of the writ petitioners is that this denied and prevented them from making full and proper representation at the time of oral hearing. Notice , therefore, gave no option to those who had submitted their objections/suggestions except to cancel and forego their prior arrangements and also make their travel arrangements, which in several H

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cases was not possible. The Petitioners also state that in the course of the hearing, many a times when clarification or information was sought in order to make constructive and creative suggestions, the members of BoEH expressly told them that they would not respond at all and the petitioners were only supposed to make their submissions.

58. In the present case, there is violation of the Section 45 as public notice of hearing fixed on 6th and 7th of February 2020 was issued by way of public notice dated 3rd February, 2020 published on 5th February,

2020. SMS and email were issued at the last moment. Lack of reasonable time, therefore, prevented the persons who had filed objections and given suggestions to present and appear orally state their point of view. C

59. We would now turn to the permission granted by the Central Vista Committee (the ‘Committee) on 9th March 2020. The Petitioners have contended that the said permission was reduced to a mere formality as the Committee did not apply its mind to the proposal. The Respondents have submitted that Committee is not a statutory body and therefore the principles of administrative decision making are not applicable to it. The D Petitioner’s refutes this contention stating that though the Committee is not a statutory body, it has trappings of a statutory body. The Petitioner’s, to buttress this stance, have relied, inter-alia on the Tender/Notice inviting bids for ‘consultancy services for comprehensive architectural and engineering planning for the development/redevelopment of Parliament E Building, Common Central Secretariat and Central Vista’ at New Delhi, vide NIT No. 04/CPM/RPZ/NIT/2019. Clause 4 of the Tender condition provides that” The consultant should adhere to the Central Vista committee Guidelines and Lutyens Bungalow Zones guidelines while carrying out the consultancy work for the Redevelopment of Central Vista”. The petitioners have also pointed that similar binding status was F bestowed to the Committee in the Notice inviting bids for National War Museum. The Petitioners have relied on the Zonal Development Plan for Zone D, a piece of delegated legislation. The clause 6.4.3 (vii) of this Zonal Development Plan provides that “a detailed form of study should be taken up for this prestigious area (President Estate/ North and G South Blocks/Parliament House, etc) in consultation with DUAC and Central Vista Committee.” The petitioners press that these provisions in the Tender Notices and Development Plans demonstrate that the Committee performs public functions akin to those performed by statutory bodies, and hence principles of administrative decision making are H

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A applicable. Zonal Development Plans are statutory and binding. They are formulated by a quasi-legislative exercise.

60. As per the minutes of the meeting on 9th March,2020, the following observations were made by the Committee: “The representatives of L&DO and HCP presented the proposal of change of land use to the Central Vista Committee. The list of members attending the meeting is at Annexure. Mr, Divya Khush, Member, CVC and President I.I.A. vide his message requested to read his views communicated by him to the committee. The same were read out by Member Secretary to all the members of the Committee in the meeting. The Committee was of the view that the proposal placed for discussion was for change of land use only. After detailed deliberation the Committee decided to accord approval in principle as the process of change of land use had been taken up by the competent authorities. Accordingly, the final approval of change of land use may be communicated to the Committee. However, one member representing the Indian Institute of Architects wanted detailed facts on the matter before he gave his consent.” Reading of the aforesaid minutes does not show fair and independent application of mind. The committee had decided to accord approval in principle “as the process for change of land use had been taken up by the competent authorities” and then records “accordingly, the final approval for change of land use may be communicated”. Member representing Indian Institute of Architects had wanted detailed facts on the matter. His request was ignored. Conspicuously there is no discussion on the aspect of lack of information. Use of the word ‘in principle’ is indicative, if not reflects tentativeness, as if, it was not an expression of G a firm opinion. Opinion and advise of the Committee is certainly of great value and importance. Their advice has been uniformly taken and followed for any redevelopment/changes in the Central Vista.

61. The writ petitioners have pointed out that on 24th March 2020 nation-wide lockdown was imposed due to COVID-19 pandemic imposing severe restrictions on movement. Nevertheless, a meeting of

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 675 ORS. [SANJIV KHANNA, J.]

the Committee on 23rd April 2020 through video conferencing, with the agenda “Proposed New Parliament Building at Plot No.118, New Delhi”, was held, and ‘No Objection’ was granted. The minutes of the meeting published on 30th April 2020 provide no reason whatsoever nor do they mention any details of the material considered and the discussion held. Pertinently, the mandate of the Committee is to engage architects and town planners to advise the government on development of the Central Vista and the Secretarial Complex. However, four independent representatives, namely, (i) President of Indian Institute of Architects; (ii) representative of Indian Institute of Architects (Northern Chapter); (iii) President of Institute of Town Planners, India; and (iv) representative of Institute of Town Planners, India, were absent and did not participate. C Even the Chief Architect of the NDMC was not present. Therefore, only the representatives of the Government, the Director Delhi Division, MoHUA and Joint Secretary (Admn.) of Ministry of Environment and Forests were present. Thus, the contention that the meeting was a premeditated effort to ensure approval without the presence and participation of representatives of professional bodies is apparent and hardly needs any argument. This was notwithstanding that the project in question is extremely significant and of great importance for the Central Vista Committee. The project is the most extensive re-development process ever undertaken in the Central Vista. Further, the approval granted to the proposed new Parliament building does not record the deliberations that took place or any reasons, even as the mandate of the Central Vista Committee is pivoted and required to study and advise. The writ petitioners along with the written submissions have filed copies of several minutes of the Committee relating to other projects like National War Museum and the Delhi High Court Underground Car Parking which demonstrate that detailed assessment is usually undertaken by the Committee, which is clearly lacking in the present case.

62. The Unified Building Bye-laws of Delhi, 2016, issued by the Authority under Section 57 of the Development Act, vide paragraph 2.3.3 refers to need for prior approval/no objections from external agencies including Heritage Conservation Committee and 7.26 states that provision for conservation of heritage sites, including heritage buildings, heritage precincts and featured areas shall be as per Annexure- II. In other words Annexure II is binding and mandatory.

63. Annexure-II to the Unified By-Laws of Delhi, effectuates the object and propose, by specifying clear and strict norms that would apply H

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A to heritage sites, including heritage buildings, heritage precincts and natural feature areas. Relevant portions of Annexure II read:- “1. Conservation of Heritage Sites including Heritage Building, Heritage/ Precincts and Natural Feature Areas(Please refer clause 2.18.2 and 7.26 of this document) B Conservation of Heritage sites shall include buildings, artifacts, structures, areas and precincts of historic, aesthetic, architectural, cultural or environmentally significant (heritage buildings and heritage precincts), natural feature areas of environmental significance or sites of scenic beauty. C 1.1. Applicability: This regulation shall apply to heritage sites which shall include those buildings, artifacts, structures, streets, areas and precincts of historic, architectural, aesthetic, cultural or environmental value (hereinafter referred to as Listed Heritage Buildings/Listed Heritage Precincts) and those natural feature D areas of environmental significance or of scenic beauty including but not restricted to, sacred groves, hills, hillocks, water bodies (and the areas adjoining the same), open areas, wooded areas, points, walks, rides, bridle paths (hereinafter referred to as ‘listed natural feature areas’) which shall be listed in notification(s) to be issued by Government/identified in MPD. E 1.1.1 Definitions: (a) “Heritage building” means and includes any building of one or more premises or any part thereof and/or structure and/or artifact which requires conservation and/or preservation for historical and/ F or environmental and/or architectural and/or artisanary and/or aesthetic and/or cultural and /or environmental and /or ecological purpose and includes such portion of land adjoining such building or part thereof as may be required for fencing or covering or in any manner preserving the historical and/or architectural and/or aesthetic and/or cultural value of such building. G (b) “Heritage precincts” means and includes any space that requires conservation and/or preservation for historical and/or architectural and/or aesthetic and/or cultural and/or environmental and/or ecological purpose. Such space may be enclosed by walls or other boundaries of a particular area or place or building or by an H imaginary line drawn around it.

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Xx xx xx A 1.2 Responsibility of the Owners of Heritage Buildings: It shall be the duty of the owners of heritage buildings and buildings in heritage precincts or in heritage streets to carry out regular repairs and maintenance of the buildings. The Government, the Municipal Corporation of Delhi or the Local Bodies and Authorities concerned B shall not be responsible for such repair and maintenance except for the buildings owned by the Government, the Municipal Corporation of Delhi or the other local bodies. 1.3 Restrictions on Development /Re-development / Repairs etc. C (i) No development or redevelopment or engineering operation or additions/ alterations, repairs, renovations including painting of the building, replacement of special features or plastering or demolition of any part thereof of the said listed buildings or listed precincts or listed natural feature areas shall be allowed except with the prior D permission of Commissioner, MCD, Vice Chairman DDA/ Chairman NDMC. Before granting such permission, the agency concerned shall consult the Heritage Conservation Committee to be appointed by the Government and shall act in accordance with the advice of the Heritage Conservation Committee. E (ii) Provided that, before granting any permission for demolition or major alterations / additions to listed buildings (or buildings within listed streets or precincts, or construction at any listed natural features, or alternation of boundaries of any listed natural feature areas, objections and suggestions from the public shall be invited and shall be considered by the Heritage Conservation Committee. F (iii) Provided that, only in exceptional cases, for reasons to be recorded in writing, the Commissioner, MCD/Vice Chairman DDA /Chairman NDMC may refer the matter back to the Heritage Conservation Committee for reconsideration. G However, the decision of the Heritage Conservation Committee after such reconsideration shall be final and binding. 1.4 Penalties: Violation of the regulations shall be punishable under the provisions regarding unauthorized development. In case of proved deliberate neglect of and/ or damage to Heritage Buildings H

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A and Heritage precincts, or if the building is allowed to be damaged or destroyed due to neglect or any other reason, in addition to penal action provided under the concerned Act, no permission to construct any new building shall be granted on the site if a Heritage Building or Building in a Heritage Precinct is damaged or pulled down without appropriate permission from Commissioner, MCD/ B Vice Chairman DDA/Chairman NDMC. It shall be open to the Heritage Conservation Committee to consider a request for rebuilding/reconstruction of a Heritage Building that was unauthorized demolished or damaged, provided that the total built-up area in all floors put together in such new C construction is not in excess of the total built up area in all floors put together in the original Heritage Building in the same form and style in addition to other controls that may be specified. 1.5 Preparation of List of Heritage Sites including Heritage Buildings, Heritage Precincts and Listed Natural Features D Areas: Preparation of List of Heritage Sites including Heritage Buildings, Heritage Precincts and Listed Natural Features Areas is to be prepared and supplemented by the Commissioner MCD/ Vice-Chairman DDA/Chairman NDMC on the advice of the Heritage Conservation Committee. Before being finalized, objections and suggestions of the public are to be invited and considered. The said list to which the regulation applies shall not form part of this regulation for the purpose of Building Bye-laws. The list may be supplemented from time to time by Government on receipt of proposal from the agency concerned or by Government suo moto provided that before the list is supplemented, objections and suggestions from the public be invited and duly considered by the Commissioner, MCD/ Vice-Chairman DDA/ Chairman NDMC and/or Government and/or Heritage Conservation Committee. When a building or group of building or natural feature areas are listed it would automatically mean (unless otherwise indicated) that the entire property including its entire compound/plot boundary along with all the subsidiary structures and artifacts, etc. within the compound/plot boundary, etc. shall form part of list. 1.6 Alteration/Modification/Relaxation in Development Norms: H On the advice of the said Heritage Conservation Committee to be

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 679 ORS. [SANJIV KHANNA, J.]

appointed by the Government and for reasons to be recorded in writing, the Commissioner, MCD/ Vice-Chairman DDA/Chairman NDMC shall follow the procedure as per DDA Act, 1957 to alter, modify or relax the Development Control Norms prescribed in the MPD, or Building Bye-laws of Delhi if required, for the conservation or preservation or retention of historic or aesthetic or cultural or architectural or environmental quality of any heritage site. 1.7 Heritage Precincts/ Natural Feature Areas: In case of streets, precincts, areas and, (where deemed necessary by the Heritage Conservation Committee) natural feature areas notified as per the provisions of this Building Bye-Laws No. 1.5 above, development permissions shall be granted in accordance with the special separate regulation prescribed for respective streets, precincts/natural feature areas which shall be framed by the Commissioner, MCD/ Vice-Chairman DDA/Chairman NDMC on the advice of the Heritage Conservation Committee. D Before finalizing the special separate regulations for precincts, streets, natural features, areas, the draft of the same shall be published in the official gazette and in leading l newspapers for the purpose of inviting objections and suggestions from the public. All objection and suggestions received within a period of 30 days E from the date of publication in the official gazette shall be considered by the Commissioner, MCD/ Vice-Chairman DDA/Chairman NDMC/Heritage Conservation Committee. After consideration of the above suggestions and objections, the agency concerned acting on the advice of the Heritage F Conservation Committee shall modify (if necessary) the aforesaid draft separate regulations for streets, precincts, areas and natural features and forward the same to Government for notification. 1.10 Maintaining Skyline and Architectural Harmony: After guidelines are framed, building within heritage precincts or in the G vicinity of heritage sites shall maintain the skyline in the precinct and follow the architectural style (without any high-rise or multistoried development) as may be existing in the surrounding area, so as not to diminish or destroy the value and beauty of or the view from the said heritage sites. The development within the H

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A precinct or in the vicinity of heritage sites shall be in accordance with the guidelines framed by the Commissioner, MCD/ Vice- Chairman DDA/Chairman NDMC on the advice of the Heritage Conservation Committee or separate regulations/ guidelines: if any, prescribed for respective zones by DDA/NDMC/MCD. B 1.11 Restrictive Covenants: Restrictions existing as on date of this Notification imposed under covenants, terms and conditions on the leasehold plots either by Government or by Municipal Corporation of Delhi or by Delhi Development Authority or by New Delhi Municipal Council shall continue to be imposed in addition to Development Control Regulations. However, in case of any conflict with the heritage preservation interest/environmental conservation, this Heritage Regulation shall prevail. 1.12: Grading of the Listed Buildings/Listed Precincts: Listed Heritage Buildings/ Listed Heritage Precincts may be graded into three categories. The definition of these and basic guidelines for development, permissions are as follows:- Listing does not prevent change of ownership or usage. However, change of use of such Listed Heritage Building/Listed Precincts is not permitted without the prior approval of the Heritage Conservation Committee. Use should be in harmony with the said listed heritage site.

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A Nothing mentioned above should be deemed to confer a right on the owner /occupier of the plot to demolish or reconstruct or make alterations top his heritage building/buildings in a heritage precinct or on a natural heritage site if in the opinion of the Heritage Conservation Committee, such demolition/ reconstruction/alteration is undesirable. B The Heritage Conservation Committee shall have the power to direct, especially in areas designated by them, that the exterior design and height of buildings should have their approval to preserve the beauty of the area.

C 64. To maintain independence and objectivity, the composition of the Heritage conservation Committee vide paragraph 1.14 is broad based to comprise of outside experts like historian, natural historian, environmentalist etc. Paragraph 1.14 of the Unified Building Byelaws reads:-

D “1.14 COMPOSITION OF HERITAGE CONSERVATION COMMITTEE The Heritage Conservation Committee shall be appointed by the Government comprising of: (i) Special Secretary/Additional Secretary, E (Ministry of Urban Development) Chairman (ii) Additional Director General (Architecture), CPWD Member (iii) Structural Engineer having experience of F ten years in the field and membership of the Institution of Engineers, India Architect having 10 years experience Member (a) Urban Designer G (b) Conservation Architect (iv) Environmentalist having in-depth knowledge and Experience of 10 years of the subject. Member

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(v) Historian having knowledge of the region & A having 10 years experience in the field. Member (vi) Natural historian having 10 years experience in the field. Member (vii) Chief Planner, Town & Country Planning B Organization Member (viii) Chief Town Planner, MCD Member (ix) Commissioner (Plg.), DDA Member C (x) Chief Architect, NDMC Member (xi) Representative of DG, Archeological Survey of India Member (xii) Secretary, Delhi Urban Art D Commission Member Secretary (xiii) The Committee shall have the power to co-opt up to three additional members who may have related experience. E (xiv) The tenure of the Chairman and Members of other than Government Department/ Local Bodies shall be three years.”

65. By notification dated 1st October 2009, a list of 147 heritage F sites, including heritage buildings, heritage precincts and listed natural feature areas prepared by the Chairperson, New Delhi Municipal Council (NDMC) on the advice of the Heritage Conservation Committee, was published. This publication was preceded by public notice inviting objections and suggestions from all persons likely to be effected thereby. The publication was in exercise of powers conferred by bye-laws 23.1 G and 23.5 of the Delhi Building Bye-Laws, 1983 read with sub-section (17) of Section 2 of the New Delhi Municipal Council Act, 1994. For the present litigation, we would record that following buildings/precincts, along with their location, have been notified as Grade-I: H

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66. At this stage it would be also relevant to refer to the Lutyens’ Bungalow Zone Guidelines, 1988, which prescribe as under: “......(b) Lutyens’ Bungalow Zone: In order to maintain the present C character of Lutyens’ Delhi, which is still dominated by green areas bungalow, there should be a separate set of norms for this zone area. …. There were the following norms for construction in the Lutyens’ Bungalow Zone. (i) The new construction of dwelling on a plot must have the same plinth area as the existing bungalow and must have a D height not exceeding the height of the bungalow in place, or if the plot is vacant, the height of the bungalow which is the lowest of those on the adjoining plots. (ii) In the commercial areas, such as Khan Market, Yashwant Palace etc., and in institutional areas within the Lutyens’ E Bungalow Zone, the norms will be the same as those for these respective areas outside the zone. (iii) The existing regulations for the Central Vista will continue to be applicable. F (iv) .......”

67. Annexure-II of the Unified Building Bye-Laws for Delhi and paragraph 10 of the Master Plan of Delhi relating to the conservation of built heritage have to be read together and harmoniously. Clause (5) of paragraph 10 of the Master Plan of Delhi, as noticed above, the local G authority or land owing agency has been entrusted with the task to prepare special conservation plans in respect of specific heritage complex within the Lyutens’ Bungalow Zone and other heritage zones as indicated in the Zonal Plan. This is a statutory mandate of the Master Plan. This task cannot be delegated to a third person or an architect, though it is possible to take opinions and advice for preparation of the special H

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conservation plans. Unfortunately, neither the local body nor the land owing agency has formulated conservation plans/schemes for the specific heritage complex and appurtenant areas. The petitioners are right in their contention that when the statute requires each local authority or land-owning agency to formulate a special conservation plan for conservation and improvement of listed heritage complexes and appurtenant areas, the requirement is mandatory.

68. Paragraph 1 of Annexure-II states that conservation of heritage sites includes buildings, structures, areas and precincts of historic, aesthetic, architectural and significant buildings and precincts. Paragraph 1.1 states that listed heritage buildings and listed heritage precincts will not be restricted to hills, hillocks, water bodies or areas adjoining the same, but also open areas, wooded areas, points, walks, etc. Further, the terms, Heritage Buildings and Heritage Precincts have been given broad and encompassing definitions. Historical building as defined, mean and includes any building of one or more premises or even part thereof which requires conservation or preservation for historical, environmental, architectural, artisanry, aesthetic, cultural or ecological purpose. Such buildings would by fiction include such portion of land adjoining the building or part thereof as may be required for fencing, covering, preserving the historical, architectural, aesthetic or cultural value of the such building. Second part of Paragraph 1.5 states that the building or group of buildings listed would mean, unless otherwise indicated, the entire property including its entire compound/plot boundary along with all subsidiary structures and artifacts. Heritage precincts, by way of term of art definition, mean and includes any space that requires conservation or preservation of historical, architectural, aesthetic, environmental, ecological or cultural purposes. Such place may be enclosed by walls or other boundaries of a F particular area or place or building or by an imaginary line drawn around it.

69. Paragraph 1.2 casts an obligation on the owner, including the government, municipal authorities, etc. to carry out regular repair and maintenance of the listed buildings. It also stipulates need for ‘prior G approval’ for change of land use of the listed heritage building/precincts. Paragraph 1.3 is significant as it states that no development, re- development, engineering operations, additions/alterations, repairs or renovation, including painting of the building, replacement of special features or blasting or demolition of any part thereof, of the listed heritage H

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A buildings/listed precincts shall be carried out except with the permission of the authorities specified, which includes Vice Chairman, Authority and Chairman, NDMC. Further, before granting such permission, the agency shall consult the Heritage Conservation Committee and act in accordance with the advice of the Heritage Conservation Committee. In exceptional cases, for reasons to be recorded in writing, the authority, including Vice Chairman, Authority, and Chairman, NDMC may remit the matter to the Heritage Conservation Committee for its re- consideration. Decision of the Heritage Conservation Committee after such re-consideration is final and binding. The Heritage Conservation Committee before granting any permission for demolition, or major alterations/additions to the listed buildings or even buildings within the listed streets/precincts etc. is required to invite suggestions/objections from the public and consider them. Therefore, public participation is mandated and required to be undertaken by the Heritage Conservation Committee for demolition or major alteration/addition. Paragraph 1.6 states that on advice of the Heritage Conservation Committee and for reasons to be recorded in writing the Commissioner/Vice Chairman/ Chairman of Municipal Committee/Authority/NDMC shall follow the procedure as per the Development Act to alter, modify, relax the development control norms in the Master Plan or building Bye Laws for conservation, preservation retention of historic, aesthetic, cultural or environmental quality of any heritage site. Question would therefore arise whether the proposed modifications would attract provisions of paragraph 1.6. We would leave the question open to be raised and decided by the Heritage Conservation Committee. First part of Bye-law 1.7 states that any development permission in respect of street/precinct areas as notified under bye-law 1.5, shall be in accordance with the separate regulation prescribed for the restrictive streets, precincts, natural feature areas by the authority concerned, including Chairman, NDMC, on the advice of the Heritage Conservation Committee. Second and third parts of Paragraph 1.7, which relate to special separate regulations for precincts, streets, natural feature areas, require that before finalising any draft the same shall be published in the Official Gazette and in one leading newspaper inviting objections and suggestions from the public. The public have right to file objections and give suggestions within thirty days of the publication in the Official Gazette which would be considered by the authorities, including Chairman, NDMC and the Heritage Conservation Committee. It is only after consideration of the suggestions H

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and objections that the agency concerned, acting on the advice of the A Heritage Conservation Committee, that the draft of the separate regulations for the street, precinct, natural feature area shall be forwarded to the government for notification. In Paragraph 1.10 emphasise on the need to maintain skyline and architectural harmony and need to follow the architectural style, without high-rise and multi-storied development. B This mandate applies to building within the heritage precinct or in the vicinity of heritage sites. Development within the historical sites or in vicinity have to be in accordance with the guidelines framed by the local bodies on advice of the Heritage Conservation Committee. As per paragraph 1.11 existing restrictions under the lease deed, government including local bodies would in addition and continue to apply but in case C of conflict with the heritage preservation interest, or environmental conservation, the heritage regulations would prevail. The 1988 guidelines regarding construction would therefore continue to apply to the Central Vista area, which falls within the LBZ. In addition the restrictions under Annexure II of the Unified Building Bye-Laws apply. Paragraph 1.12 D states that the heritage buildings/listed heritage precincts would be divided into three categories, namely Grade I, Grade II and Grade III. The stipulations regarding Grade-I are the strictest and the most stringent. Paragraph (c) relating to Grade I states that no interventions will be permitted either on exterior or interior of the heritage building or natural features unless it is necessary for strengthening and prolonging the life of the building or precincts. Only when absolutely essential minimal changes would be allowed in conformity with the original. Further, all changes require development permission which can be granted only on the advice of the Heritage Conservation Committee. As per Clause (e), development in the area surrounding the heritage Grade-I is regulated and controlled ensuring that it does not mar the grandeur or view from heritage Grade-I.

70. The notice inviting bids for appointment of a consultant had stated: “3. Objectives of Bid Documents G The objective of this bid documents is to re-plan the entire Central Vista area from the gates of Rashtrapati Bhavan up to India Gate, an area of approximately 4 square kilometres. A new Master Plan is to be drawn up for the entire Central Vista area that represents the values and aspirations of a New India – Good H

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A Governance, Efficiency, Transparency, Accountability and Equity and is rooted in the Indian Culture and social milieu. The Master Plan shall entail concept, plan, detailed design and strategies development/redevelopment works, refurbishment works, demolition of existing buildings as well as related infrastructure and site development works. These new iconic structures shall B be a legacy for 150 to 200 years at the very least.” Given the nature and magnitude of the entire re-development project and having given due notice to the language, as well as object and purpose behind the re-development project, undoubtedly prior approvals and permissions from the Heritage Conservation Committee C were/are required and necessary. Paragraph 1.12 specifically and clearly states that “ change of use of such Listed Heritage Building/Listed Precincts is not permitted without prior approval of the Heritage Conservation Committee. Use should be in harmony with the said listed heritage site.” Thus prior approval/no objection certificate from the Heritage Conservation Committee was mandatory and necessary before D notifying the ‘land use’ changes of the six plots within the Central Vista, provided the plots/area were falling with the ‘Listed Buildings’. Further, prior permission/no objection is also required in terms of paragraph 1.3 from the Heritage Conservation Committee before any development, redevelopment, engineering operations, renovations, demolition etc. Prior E permission is also required from Heritage Conservation Committee before a local body issues building permit for any construction on any plot, which in addition have to abide by the 1988 guidelines .

71. It is a well-settled proposition that where power is given to do a certain thing in a certain way, then the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. F When the statute prescribes a particular act must be done by following a particular procedure, the act must be done in that manner or not at all (See – Nazeer Ahmed v. King Emperor59, Parinder Singh v. Union of India60, Public Interest Foundation v. Union of India61 and Dhani Sugar and Chemicals Ltd. v. Union of India62). There is no provision G for deemed or in principle permission/approval/no objection certificate of the Heritage Conservation Committee. In fact no such plea of deemed approval/permission is raised by the respondents. 59 AIR 1936 PC 253 60 (2016) 9 SCC 20 61 (2019) 3 SCC 224 H 62 (2019) 5 SCC 480

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72. As noticed previously, the Technical Committee of the Authority A in its meeting held on 5th December,2019 while examining the proposal had, inter alia, stated that steps would be taken to seek approval of the Heritage Conservation Committee. However Heritage Conservation Committee was never moved to secure approval/permission. No approval/ permission has been taken.The respondents in the written submissions have stated that the permission or approval from the Heritage Conservation Committee “would be sought as and when the stage reaches for the same as the same may not be pre-requisite for the purposes of change in land use”. The use of the word ‘may’ itself reflects the doubt in the mind of the respondents, whereas the Technical Committee had not expressed any doubts and was firm that approval or clearance from the Heritage Conservation Committee is mandatory and required. We would again reproduce the minutes of the decision of the Technical Committee which reads as under: “After detailed deliberation, the proposal as contained in Para 4.0 of the agenda with the above modification in land use for Plot D No.1 was recommended by the Technical committee for further processing under Section 11A of DD Act, 1957. With the following conditions: The clearances from the PMO, Heritage Conservation Committee and Central Vista Committee shall be taken by L&DO. E The heritage buildings shall be dealt as per the relevant heritage provisions.”

73. For reasons stated above, on interpretation of Annexure II to the Unified Building Bye Laws it has to be held that prior approval/ permission was necessary for land use change of the plots/area with the F Listed Heritage Buildings and precincts. As observed above, Paragraph 1.3 states that redevelopment, engineering operations, or even additions/ alterations etc. require prior permission of Heritage Conservation Committee. However for demolition, major repairs and alterations/ additions to listed buildings or building precincts procedure of inviting G objections and suggestions from the public shall be followed. Heritage Conservation Committee would consider the suggestions and objections. Decision of the Heritage Conservation Committee is final and binding.

74. Respondents have raised two other defences. First, the construction of the new Parliament being on a vacant plot adjacent to H

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A the existing Parliament building does not require approval/no objection from the Heritage Conservation Committee. This contention according to the petitioners is fallacious as it is contrary to the statutory Master Plan of Delhi and the Unified Building Bye-Laws. They rely on the definition assigned to the term ‘heritage building’, which ‘includes such portion of land adjoining such building and part thereof as may be required B for fencing or covering or in any manner preserving the historical and/or architectural and/or aesthetic and/or cultural value of such building’. We would observe and hold that the respondents should have moved and asked for clarification from the Heritage Conservation Committee. (The question whether plot no.118 is a part of the Central Vista Precinct at C Rajpath classified as Grade I for Annexure II is being examined separately). Further, if the interpretation as put forward by the respondents, including the NDMC, is to be accepted, then as a sequitur it follows that construction or development can take place in a vacant plot adjacent to or adjoining the Grade-I building. This interpretation appears unacceptable as it is contrary to the express stipulations in the Master Plan and the D Unified Building Bye-Laws. It would also lead to unintended consequences and would be incompatible with the purpose and objective of these two legislations, a relevant principle when we interpret provisions in case of doubt or ambiguity. This is our tentative view, as it is for the Heritage Conservation Committee to opine on ‘includes such portion of land adjoining such building and part thereof as may be required for fencing or covering or in any manner preserving the historical and/or architectural and/or aesthetic and/or cultural value of such building’.

75. The Parliament House, National Archives, North Block, South Block, as well as the Central Vista precincts have been specifically graded as Grade-I buildings and, therefore, under different clauses of Annexure II several restrictions and bars apply. Whether or not the bars and restrictions apply again would be questions to be examined and decided by the Heritage Conservation Committee. Neither this Court nor government including local bodies can answer these questions. G Compliance with Annexure II is mandatory and necessary, which essentially means that the proponent must approach the Heritage Conservation Committee. Central Government could not have notified the modified the land use changes, without following the procedure and without prior approval/permission from the Heritage Conservation Committee. Further, the local body is expressly interdicted from issuing H

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building permits in respect of the listed heritage buildings/precincts. The A local body i.e. NDMC should have approached the Heritage Conservation Committee for clarification/confirmation and proceed on their advice.

76. In support of the second defence, the respondents have filed an additional affidavit of the Union of India along with short clarificatory affidavit of Mr. Vijay Kaushal and Ms. Ruby Kaushal. The affidavit filed by Mr. Vijay Kaushal, Deputy Chief Architect of the NDMC states that Central Vista precincts have been specifically included as a Grade- I building as per Unified Building Bye-Law, 1983, read with sub-section (17) of Section 2 of the New Delhi Municipal Council Act, 1994. Reference is made to the list of 141 heritage sites published, including heritage buildings, heritage precincts, and limited national feature areas, which list includes Parliament House and Campus, India Gate, India Gate Canopy, North and south Block, National Archives and Campus and Central Vista Precincts. It is stated that the list of heritage buildings in the NDMC area was finalised on the basis of an INTACH Report in consultation with the Heritage Conservation Committee. Reference is made to INTACH Report to assert that the Central Vista, LBZ Area, Rajpath have been demarcated by them as: “Physical Description – The Vista was designed to link the Viceroy’s House (now the President’s House) to the norther gateway of the Purana Qila. At the eastern end was erected the E War Memorial Arch (India Gate), around which were built the Princes houses. On both sies on the road, there are wide lawns. The architectural character of the Central Vista is enhanced by the landscaping, the street furniture, the water bodies, etc. and it is important that any new addition/intervention is sensitive to and F respects the character of the area.” Accordingly, it is submitted that the buildings with the President Estate, North Block and South Block, Parliament House and campus and National Archives and campus are Grade-I buildings. Other buildings like Nirman Bhawan, Udyog Bhawan, Rail Bhawan, Krishi Bhawan G and Vayu Bhawan etc. are not expressly included in the heritage list. The petitioners would submit that the affidavit is ambiguous as it does not identify the area falling within the Central Vista precincts, which in addition to other heritage buildings, has been classified as Grade I. Moreover, the INTACH report has not been filed and no details have H

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A been furnished. Petitioners have referred to several INTACH reports, which reflect that the Central Vista Precincts would include plot no.118.

77. Ms. Ruby Kaushal, Member Secretary of the Heritage Conservation Committee, has referred to clause 2.3.3 (c) of the Unified Building Laws which states that all external agencies shall prepare colour- B coded maps with information on specific areas where approval/NOC is required and these maps shall be placed on the website and also the websites of sanctioning authorities directly or through a link. Thereafter reference is made to the colour-coded map of Delhi (Annexure A-1) on the website of the Heritage Conservation Committee to state that the jurisdiction of the Committee is “hyperlinked to another detailed map which depicts the location of the gazetted notified Listed Heritage building, precincts, natural features of the area,… attached as Annexure A-2.” Unfortunately, the colour-coding in the first map (Annexure A-1) is not clear. The map also records that the profile shown therein are indicative and that the size, profile or location of the monuments/precincts/heritage structures are available with ASI, MCD or NDMC. Map enclosed as Annexure A-2 is again not clear and legible as to decipher and figure out the area falling within the Central Vista precincts. This map locates/ demarcates other historical buildings graded as Grade-I, Grade-II and Grade-III by the NDMC, MCD and ASI and again states that the size, profile or location of monuments/precincts/heritage structures are available with NDMC,MCD and ASI. The map refers to NDMC Notification F.No. 4/2/2009/UD/I-6565 dated 1st October 2009. As in case of the plan(Annexure A-1) it states that size, profile and location shown are indicative. This affidavit by Ms. Ruby Kaushal does not describe the boundaries or the imaginary line, to use the language of clause(b) to paragraph 1.1.1 of the Unified Building Bye Laws, to demarcate the area that falls within the Central Vista Precincts.

78. On the contrary the petitioners rely on at-least three maps that demarcate the Central Vista Precincts with the imaginary line. They are drawn below with details of the authority that has published/printed them. a. Central Vista and its landmarks – Ganju, MN Ashish. Re- development Plan for the Lutyens Bungalow Zone for the Ministry of Urban Development, Government of India, GREHA, New Delhi,1998. H

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b. Map by the Delhi Urban Arts Commission-source Map produced by GSDL with the 1988 boundary: MOUD Letter no. D.O. No.K 13011/17/86- DDIIA 8.2.88 E

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A c. Lay out plan published in the Government of India, Ministry of Housing and Urban Affairs and CPWD handbook- ‘Conservation and Audit of Heritage Buildings”, September, 2019

These maps of the Central Vista Precincts by the project proponent itself namely CPWD and the Delhi Urban Arts Commission, which is a D statutory body, clearly indicate the extent and boundaries of the Central Vista precincts/area, which does include the Parliament House and plot no.118. In the aforesaid background, the contention of the respondents as to demarcation of the area of the precincts in the Central Vista precincts at Rajpath prima facie appears to be erroneous and wrong. Parliament House and plot no.118 are apparently a part of the Central E Area Precincts. Definitions of ‘heritage building’ and ‘heritage precincts’ in clauses (a) and (b) of paragraph 1.1.1. also support this view and interpretation. However, we need not finally pronounce on this aspect as the Heritage Conservation Committee has the jurisdiction and authority to examine and decide this aspect after ascertaining facts and details. F As per paragraph 1.5, the list of Heritage Sites is to be prepared by the Chairman NDMC on the advice of the Heritage Conservation Committee. In terms of Annexure II, the Heritage Conservation Committee should examine and decide any dispute relating to boundaries of the Heritage Precincts.

G 79. The Central Vista Precincts, i.e. at the Rajpath, per se does not have any building. This does not mean that the precincts of other heritage buildings, namely, the Parliament, North and South Blocks, National Archives are not to be treated as areas adjoining the listed buildings in terms of clause (a) to paragraph 1.1.1. A contrary interpretation would virtually negate the meaning of precincts to the building. The idea behind declaring the area as historical precincts is to

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give protection even if no constructed structure exists. It is an additional protection, when several buildings have already been included in the heritage list. In the present case, as per the petitioners, it is to clarify and clear any doubt that the green areas/parks in the Central Vista Precinct within the demarcated line/boundaries are entitled to protection as Grade I under the Unified Building Bye Laws. In this regard reference can made to paragraphs 1.2,1.5 and 1.7 of the Annexure -II of Unified Building Bye-Laws for Delhi, 2016, quoted above, and which appear to be apposite. Needless to say that these issues have to be examined by the Heritage Conservation Committee before they record their opinion.

80. Central Public Works Department, as the project proponent, had filed an application for environment clearance on 12th February 2020. C Thereafter, revised application was filed on 12th March 2020. Both applications were for expansion and renovation of the existing Parliament building at Parliament Street, New Delhi. The second/revised application had inter alia projected theproject cost at Rs.922 crores.

81. As per original and revised Form Nos. 1 and 1A, the project is D a Building and Construction project covered by item 8(a) of the Schedule of the 2006 Environmental Impact Notification. Suffice for our consideration is to record that item 8(b) or Townships and Area Development projects are put to a greater level of scrutiny. The categorization is based on the spatial extent of potential impacts on human E health and natural and man-made resources. Four stages scrutiny process as envisaged by the 2006 Notification are (i) screening, (ii) scooping, (iii) public consultation and (iv) appraisal. Category B1 require an Environment Assessment Report and consequently the stage (ii) procedure of scooping is mandated. Stage (iii) public consultation is not required for the Building and Construction projects/ Area Development projects. F

82. The distinction between 8(a)-Building and Construction projects and 8(b)-Townships and Area Development projects lies in the expanse of the built-up area of the proposed project. Projects with the built up area falling between 20,000 sq.m. to 1,50,000 sq. m. would be categorised as 8(a)-Building and Construction projects. Projects with built up area G above 1,50,000 sq. m. are categorised as 8(b) -Townships and Area Development projects. The term ‘built up area’ has been defined to mean “the built up or covered area on all the floors put together including its basement and all other service area, which are proposed in the building or construction projects.” H

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A 83. Central Public Works Department as the project proponent in the original Form No.1 had declared: “1.1.1 Basic Information

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1.1.2 Activity A

In column relating to factors which should be considered such as consequential development and would lead to environmental effect or potential for accumulative impact with other existing or planned activities D in the locality, it was stated as under:

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A 84. On the aspect of parking needs, it was stated that parking requirement shall be taken care of on an adjoining plot due to security reasons.

85. Along with the revised application, the project proponent had also submitted a report prepared by a private consultant with a heading B ‘New Parliament Building – Traffic Circulation and Management Plan’, paragraph 4.1 of which reads as under: “4.1 GENERAL Construction vehicle circulation and management plan addresses effective use of site for collection and disposing of material through different vehicles. It makes entry/exit points for vehicles, required barricading, traffic diversion and site layout. A good management plan minimizes impact of vehicle movement at site and on public roads. Redevelopment of Central Vista consists of temporary relocation, demolition & construction of new central secretariat buildings, new Parliament House & other associated buildings in Central Vista area. The redevelopment of Central Vista will be carried out in three phases, with different buildings being simultaneously operationally shifted and constructed in each phase. Details of construction phasing is described below:

E 1. Relocation of IGNCA, Parliament House & complete construction of new Parliament House & 3 central secretariat buildings.

2. Relocation of V.P. House, existing central secretariat building & complete construction of 7 central secretariat buildings.

F 3. Relocation of North, South block & complete construction of remaining buildings. Based on current traffic volume, regulations & restriction on existing roads; delivery & collection of material shall be permitted during 10:00 PM to 6:00 AM. Changes in the route & timing due G to special events & security reasons shall be informed by Delhi Traffic Police to associated contractors, vendors & supply agencies for planning delivery & collection schedule.”

86. Original application was taken up in the 49th meeting of the Expert Appraisal Committee (EAC) held on 25-26 th February 2020. The H meeting records that a large number of representations had been received

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by the Ministry as well as Chairman/Members expressing concerns mainly on the following points: “ • The Indian Parliament is structurally a part of the composite notified heritage precinct, the Central Vista. The application completely disregards the historical, cultural and social importance of the existing Parliament by treating its “expansion and renovation” any other regular construction project. • The application treats the expansion of the Parliament as a stand-alone project when it is only one part of the proposed redevelopment of the Central Vista heritage precinct. • The treatment of the Parliament expansion as a separate project violates the MoEFCC’s OM dated (No. J-11013/ 41/2006-IA.II (I)) for ‘consideration of integrated and inter related projects for grant of environmental clearance’. The D current application is in complete disregard of the requirements of this OM. • The application contains false and misleading information stating that the project will have no “cumulative effects due to proximity to other existing or planned projects with similar effects”, that there will be no significant impacts on ecology and public space, and on areas protected under conventions or legislations for their ecological, landscape, cultural or other values. • The application is full of subjective responses to questions of scale and duration of various impacts that are likely to be caused by the proposed construction. These can only be treated as opinions because there are no studies or detailed assessments to support the application. • The application for environment clearance must be set aside due to pending litigation on the land use change for the project. The land use change notification for Central Vista, which includes plot 118 is under litigation before the High Court of Delhi i.e. W.P.C. 1575/2020 and W.P.(C) 1568/ 2020.” H

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A Noticing that there was a mistake in calculation as to the total built up area proposed to be constructed, the project proponent was asked to revise the information of the built-up area. The project proponent was to file a revised application. Further, the project proponent was directed by the EAC to file para-wise reply to the representations received, traffic management plan and scope of ‘renovation of the existing B Parliament building’. EAC also felt appropriate to record that the proposal was in respect of construction of a larger parliament building for the nation and that the project would have positive contribution to social infrastructure and overall development of the region. Adverse environmental impact could be mitigated by taking preventive measures during operation.

87. Thereupon, the project proponent had filed revised application and had furnished point-wise reply to the representations received. Revised proposal was taken up for consideration in the 50th meeting of the EAC held on 22nd April 2020. The minutes of the meeting would reflect that it reproduces in detail the objections and point wise reply furnished by the project proponent and information regarding change of land use of Plot No. 118 that was subject matter of court litigation. Referring to the representations received objecting to the environment clearance specific objections noted above were recorded. It was also stated that the environment clearance should take into consideration impact of the physical environment footprint of the building covering inter alia water, air, soil, noise and other biotic and abiotic factors, including social and architectural heritage.

88. The point-wise reply submitted by the project proponent states that integrated and interrelated projects are those without which the necessary functional outcome of the proposed project cannot be achieved. Parliament building essentially carries out the functions which are disparate from the executive functions, carried out in other office buildings, and therefore, expansion of Parliament cannot be considered as an integrated and interrelated project as the end users of the Parliament G building and the other buildings proposed in the Central Vista are distinct. Pointwise reply by the Central Public Works Department, reads: “a. Parliament and Central Vista EC segregation: i. Integrated and inter-related projects are those projects without which the necessary functional H

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outcome of the proposed project cannot be achieved. A For example, such projects would include a captive power plant attached to a coal mine, or a jetty attached to a Liquid Natural Gas (LNG) terminal. ii. The proposed Parliament Building essentially carries out Legislative functions, which is separate from B Executive Functions to be carried out in other office buildings and therefore, cannot be considered as an integrated and inter-related project vis-à-vis the other proposed central vista buildings for the simple reason that it can definitely operate independently of the other structures. C

iii. The Parliament is headed by the Honorable Vice- President of India for the Rajya Sabha and the Honorable Speaker of the Lok Sabha, not the executive. It has its own secretariat. The end users are therefore very different. D

iv. The redevelopment of the other Central Vita buildings is a distinct activity as opposed to the expansion and renovation of the parliament. xxx xxx E e. Rationale for integrating the existing and Proposed Parliament Building ECs. i. The existing Parliament Building and the proposed Parliament expansion are definitely inter-related, both in terms of function- since certain functions of the F Parliament will be conducted in in the Existing Building and simultaneously certain functions will be conducted in the Proposed Bui l di ng- but also in terms of physical utilities. In fact, Plots 116 and 118 are inter- related even today (and since about four decades) G because the existing Parliament Building houses its utilities at the same plot (118) where the Parliament expansion is proposed. Moving forward, it has been proposed to have a common utility block for both, the existing and the Proposed Parliament Buildings. Therefore, it also follows the proposed Parliament H

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A Building is indeed an expansion of the existing Parliament Building/Structure. ii. The existing Parliament Building needs to be temporarily vacated to allow for its renewal and renovation. This can only be done if the new B Parliament Building is constructed on an urgent basis. f. Site Alternatives: i. As already mentioned • The buildings are not stand-alone. They are inter- C related. Facilities will be shared. Officials will need to move from one building to another, quite frequently. • Several utilities will be common or housed at one place. • This is an expansion and not a Greenfield project. D Environmental impacts of comparable fresh project will always be higher than that of retrofit, renovation and expansion as is being proposed. • Parliament needs to be close to the other seats of governance. E It follows that the alternative selected is indeed the best for a building like the Parliament of India. g. Cumulative Impacts vis-à-vis Central Vista Development along with Proposed Parliament Expansion:

F i. We re-state with emphasis that the proposed project is an expansion of an existing building on the neighboring plot. Majority of the impacts of the combined structure are already occurring at the site. The expansion of the new Parliament Building will lead to environmental impacts, that are, if at all, minor and incremental. Please see Annexure 1 G highlighting the reason for this conclusion. ii. There will be no significant impacts on ecology since trees that require to be transplanted will be sent to holding nurseries for the time being. Thereafter, these will be moved to Plot 118 as part of the external site development. Trees H

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that cannot be accommodated within Plot 118 will be transplanted within the Central Vista area. The above details have been represented with the MoEF&CC. Requisite permissions for transplanting of trees will be secured from the Competent Agencies. iii. There will be n significant impacts on public spaces whatsoever due to the proposed Parliament expansion. This is so because Plot 118, which is adjacent to Plot 116 on which the existing Parliament stands, currently houses parking, ancillary services and a reception to the Parliament House since about four decades. The reception was built in 1976 and utilities such as the AC chiller plant were built in 1981-82 whilst the sub-station was built in 1974, since it was not possible to accommodate these facilities within Plot

116. As the entire area is a high security zone, it could never be utilized as a District Park for recreational use.”

89. Thereupon, the EAC had proceeded to record its conclusion and findings, which read: “50.3.7.5. Based on the information and clarifications provided by the proponent vis-à-vis mitigation measures for likely environmental impacts proposed by the proponent, the EAC appraised environmental aspects of the project and recommended for grant of Environmental Clearance with following specific conditions along with other Standard EC Conditions as specified by the Ministry vide Om dated 4th January, 2019 for the said project/activity (specified at Annexure-8 of the minutes), while considering for accord of environmental clearance.” F Recording the above, the EAC proceeded to impose as many as fifteen conditions including those relating to other clearances which would be required, like clearance from Delhi Pollution Control Committee under the Air and Water Pollution Act, provision for adequate fire safety measures, etc. G

90. What is of concern is lack of discussion, reasons or even the conclusion or finding on the aspect of slicing or inclusion. On the matter of “appraisal” in Bengaluru Development Authority v. Sudhakar Hegde63, this court has elucidated: 63 (2019) 15 SCC 401. H

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A “Appraisal by the SEAC is structured and defined by the 2006 Notification. At this stage, the SEAC is required to conduct “a detailed scrutiny” of the application and other documents including the EIA report submitted by the applicant for the grant of an EC. Upon the completion of the appraisal process, the SEAC makes “categorical recommendations” to the SEIAA either for: (i) the B grant of a prior EC on stipulated terms and conditions; or (ii) the rejection of the application. Significantly, the recommendations made by the SEAC for the grant of EC, are normally accepted by the SEIAA and must be based on “reasons”. Proceedings before the EAC are not adversarial in nature. EAC C acts both as a fair investigator and an independent objective adjudicator when deciding whether or not to grant environmental clearance. There must be application of mind which is reflected when reasons justifying the conclusion are recorded. Mere reproduction of the contesting stands is not sufficient. On the contrary it would reflect mechanical grant without application of mind. Further, it is not for the court/appellate forum to assume what weighed, whether the conclusion relies on material which is relevant, irrelevant or partly relevant, or whether the decision is partly based on surmises and conjectures and partly on evidence. (See, the Constitutional Bench decision of this Court in Dheeraj Lal and Girdhari Lal v. Commissioner of Income Tax,64). Some reasons at least in brief to understand what had weighed and persuaded the authority is mandated and required. One issue certainly raised that required an answer was the question of slicing or inclusion. We are unable to fathom and ascertain reasons or the findings recorded on this aspect.

91. In S.N. Mukharji v. Union of India65, observations in Siemens F Engineering & Manufacturing Co. of India Ltd. v. Union of India and Another66 were quoted to hold that administrative authorities and tribunals exercising quasi-judicial function can justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. Unless reasons are disclosed, it is not possible to know whether G the authority had applied its mind or not. Also giving of reasons minimises chances of arbitrariness. It is an essential requirement of rule of law that some reasons at least in brief must be disclosed in a judicial or quasi-judicial order even if it is an order of affirmation. Similar 64 AIR 1955 SC 271 65 AIR 1990 SC 1984 H 66 (1976) 2 SCC 981

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observations have been made in Chairman, Disciplinary Authority, A Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Chand Varshney.67Commissioner of Income Tax v.Walchand and Co. Pvt. Ltd.,68 observes that certain quasi-judicial tribunals must approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision. The practice of recording a decision without reason in support cannot but be severely deprecated. When giving and recording of reasons by a quasi-judicial authority is mandated in law, it serves several purposes. First, exercise of discretion by a quasi- judicial process is best vindicated by clarity in its exercise.69 Secondly, it promotes thought by the authority and compels it to consider and decide relevant points and eschew irrelevancies ensuring careful consideration.70 Thirdly, the appellate authority or courts exercising power of judicial review are unable to exercise their appellate or judicial review power unless they are advised and made aware of the consideration underlying the order under review.71 Fourthly, requirement for recording reasons is one of the fundamentals of good administration and governance. Lastly, recording of reasons, specially by administrative authorities performing quasi-judicial functions, ensures lack of bias and prejudice. This is specially so when government and the citizens are pitted against each other, as then there could be allegations that the executive officer or the quasi- judicial authority look at things from the stand point of the policy maker and expediency, rather than the rights of people. Thus, failure to record reasons can amount to denial of justice, as the reasons are a live link between the mind of the decision maker to the controversy in question and decision or conclusion arrived at. Therefore, requirement of a speaking order is judicially recognised as an imperative. In State of F Punjab v. Bhag Singh72, it was observed:

6. Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All ER 1148 : (1971) 2 QB 175 : (1971) 2 WLR 742 (CA)] observed: “The giving of reasons is one of the fundamentals of good G 67 (2009) 4 SCC 240 68 AIR 1967 SC 1435 69 Phillips Dodge Corporation 70 John P. Dunlop 71 Securities and Exchange Commission 72 (2004) 1 SCC 547 H

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A administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120 (NIRC)] it was observed: “Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance.”

92. Faced with the aforesaid position, it was faintly argued before us that the relevant clause of the EIA Notification of 2006 does not require giving of reasons when environment clearance is granted. Further, observations of this Court to the contrary in recent decision in Hanuman E Laxman Aroskar v. Union of India73 are per incuriam. The relevant clause of the EIA notification reads as under: “(i) Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. On conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned 73 H (2019) 15 SCC 401

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either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior environmental clearance, together with reasons for the same.” The National Green Tribunal in Gau Raxa Hitraxak Manch v. Union of India74 has rightly observed that the use of the comma at the end of the first part of the sentence, prefixing the words ‘terms and conditions’ and also suffixing the words ‘terms and conditions’ with the words ‘together with reasons for the same’ need to be read in conjunction. In this case it was held, and we respectfully agree, that the apprising body, which includes EAC as well as the Ministry, has to make categorical recommendations to the regulatory authority either for grant of clearance or rejection, together with reasons for the same. Further, the orders passed by the EAC are appealable before the National Green Tribunal. Appellate forum would not be able to decipher and adjudicate unless reasons are set out and stated in the order under challenge. The whole purpose of outsourcing the task to EAC, comprised of experts and specialists, is to have a proper evaluation on the basis of some objective criteria. EAC is a body that has to apply its collective mind and not to record conclusions. It must justify and give basis for its conclusions. Hanuman Laxman Aroskar, observes: “160. EAC, as an expert body abdicated its role and function by taking into account circumstances which were extraneous to the exercise of its power and failed to notice facets of the environment that were crucial to its decision making. The 2006 Notification postulates that normally, MoEFCC would accept the recommendation of EAC. This makes the role of EAC even more significant. NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC. NGT dealt with the submissions which were urged before it in essentially one paragraph. It failed to comprehend the true nature of its role and power under Section 16(h) and Section 20 of the NGT Act, 2010. In failing to carry out a merits review, NGT has not discharged an adjudicatory function which properly belongs to it.” G

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A should be respected. Some the writ petitioners state that the built area of the parliament library and the annexe have been deliberately excluded. If the constructed area of the library and annexe are added to the built- up area, the total built-up area would come be 1,99,435 sq. mtrs., and hence the application has to be processed in terms of item 8(b) and not item 8(a), even if the principle of slicing/division of the Central Vista is rejected. We would not like to answer or go into these aspects in the absence of any consideration by the EAC. However, on remand these aspects should be considered.

94. The respondents have, in their pleadings and in the course of hearings, submitted the reasons why Central Vista requires redevelopment. Keeping in view the scope and ambit of judicial review, we have deliberately not considered merits of the grounds given by the respondents for modification of the Master Plan with regard to redevelopment of the Central Vista. However we would record the same and would take notice of the counter by the petitioners. The respondents have stated that hutments or temporary barracks or stables, built during World War II, occupy an area of over 90 acres of land including open area adjacent to the North Block, A&B Block adjacent to South Block, plots at Thyagraj Marg, Jamnagar House and Jodhpur House. Further, buildings like Shastri Bhawan, Nirman Bhawan, Udyog Bhawan, Rail Bhawan, Krishi Bhawan E and Vayu Bhawan etc. were constructed post-Independence. The hutments and these buildings have outlived their structural life of around fifty areas and are not earthquake–safe, suffer from poor service integration, inefficient use of land, inadequate facilities and lack of coherent architectural identity. These hutments and buildings cannot function as modern offices, and require retrofitting and refurbishing which would cost about Rs.50 crores a year. Further, usage and architecture of these buildings and others is incoherent; for instance, the Vice President’s residence, Vigyan Bhawan and National Museum are located adjoining each other. As per non-availability certificate issued by the Directorate of Estates there is shortage of about 3.8 lakh meters of office space for which rentals up to Rs.1000 crores would be required. Central Vista Development and Re-development Plan would ensure that formal central secretariat with all ministries are located at a single location for efficiency and synergy of function. In all about 51 Ministries are to be located in 10 buildings to be constructed in the Central Vista with office spaces having modern technological features and amenities. There H

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would be an underground shuttle approximately 3 km in length that would connect and integrate all buildings. The existing Parliament House and Annexe are not being demolished; a new Parliament building is being constructed which, along with the existing buildings will form the Parliament Complex. It is stated that the Parliament House was commissioned in 1927 and over the years parliamentary activities and number of people working or visiting there have increased manifold. Parliament building was designed to house the Imperial Legislative Council and is not planned for a national legislature. Two floors were added to the structure in 1956 due to demand of more space. Library building and Annexe were added later on. The building is not designed according to the present fire safety norms and there are other safety issues. Electrical C air-conditioning and plumbing systems are inadequate, inefficient and costly to operate and maintain. Audio video system in the Parliament is old and hall acoustics are not effective. Lastly, it is stated that the last delimitation for number of seats in Lok Sabha was carried out on the basis of 1971 census. Since then 545 seats have not undergone a change. D This number of seats is likely to increase substantially after 2026. Both Lok Sabha and Rajya Sabha are packed to capacity and have no space for additional seats. Seating arrangements are cramped and cumbersome and there are no desks beyond second row. This makes the movement extremely constrained. Central Hall has seating capacity of only 440 persons. Further all heritage buildings are being preserved and many of the them would be used as museums.

95. The petitioners, on the other hand, have submitted: (a) Existing Parliament House and Central Vista are continuing and living heritage which must be preserved and protected for future generations. Re-development of nearly 80 acres of land, demolition of National Museum and construction of new Parliament will permanently affect the iconic character, skyline, layout, and the architectural harmony of the Central Vista. It would cause irreplaceable and non- revocable harm and damage Garde 1 heritage buildings and precincts. (b) Re-development if permitted would violate Articles 49 and 51(c) of the Directive Principles of State Policy. Further, Doctrine of Public Trust applies to historically significant H

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A buildings/precincts and properties of special consequence (Lok Prahari v. State of U.P.75). (c) Re-development, if required, should be undertaken as per well-established norms applicable to places of historical interest. Reference is made to Vienna Memorandum on B World Heritage and Contemporary Architecture – Managing the Historic Urban Landscape (2005), ICOMOS’s Delhi Declaration on Heritage and Democracy (2017) and others. The exercise being undertaken fails to follow best practices of heritage conservation. C (d) No expert or specialised study and assessments has been undertaken and in absence, allegations of structural integrity, fire safety and seismic concerns etc. are mere reservations and misgivings. There is no empirical data in support of the assertions made by the respondents that the Parliament House etc. has outlived its life. No such doubt is raised in respect of other building constructed at the same time like the North and South Blocks and the President’s House. On the contrary, Annexure F to the written submissions filed by the Respondent records the state of preservation of the Parliament House as ‘fair’. Heritage assessment study should be undertaken and made public. Existing Parliament building can be upgraded. (e) In alternative, expansion or additional construction rather than construction of a new Parliament can be explored. Office spaces, can be created near the official residence of the bureaucracy. (f) Cost-benefit analysis has not been undertaken though significant capital expenditure in excess of Rs. 20,000 crores apparently would be incurred. The capital cost would be higher as logistics, temporary housing cost and the cost of removal or transplantation of mature trees etc. have not been included. Assertion that expenditure of Rs. 1,000 crores per annum on account of rent etc., is unsupported by any document and is assumptive. 75 (2018) 6 SCC 1 H

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(g) Over a period of time, there has been reduction of green A area in the Central Vista, which is open and accessible to general public. The public area would get further reduced with the re-development plan.

(h) Zone ‘C’ where New India Gardens are proposed, is at a different location and not within Zone ‘D’, in which the B Central Vista and LBZ are located. Reduction in green/ recreational area in Central Vista, a prime and iconic place, cannot be compensated by a garden at different location.

(i) By the Constitution (84 th Amendment Act),2002 has extended the freeze on undertaking fresh delimitation as a part of national population strategy. Delimitation for the same reason may or may not take place. In any case it would be after the next census post 2026, that is in 2031.

96. We have referred to the contentions of the petitioners and respondents in some detail but would not comment on merits. These are complex and esoteric issues which have to be at first stage considered and decided by the specialised authorities like the Heritage Conservation Committee. If we consider and examine the merits of the pleas, we would be directly encroaching their jurisdiction and exceeding the power of judicial review. It is the reasoning and discussion in the orders by the statutory/quasi-judicial that are subjected to judicial scrutiny and review. Further, matters pertaining to heritage, architectural, functionality etc are for the experts and specialists in the field like Architects, town planers, historians, urbanists, engineers etc. to examine and guide. Suffice it would be to observe that the stands on merits reflect different perceptions and beliefs. The respondents without doubt do verily believe that redevelopment of Central Vista and new Parliament building is an imperative necessity. Central Vista requires a makeover. The hutments and some of the non-heritage buildings like Shashtri Bhawan, Nirman Bhawan, Udyog Bhawan etc. which it is stated occupy more than 90 G acres of land require re-development. Similarly, if new parliament building is required and being a must, it should be constructed. Several former and the present Speaker have expressed the need for construction of a new Parliament. Some of the petitioners do not oppose partial and regulated redevelopment for functionality, while maintaining and H

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A preserving the heritage, ethos and visual look. Central Vista and Parliament House is an heritage and belongs to the Nation and the people. Their primary grievance is lack of information and details. They submit that experts and specialists can provide acceptable solutions to conserve and make historical buildings functional, as it has happened elsewhere. B The issues raised by the petitioners along with the stand of the respondents have to be taken into consideration by the statutory authorities in terms of and as per the statutory mandate. Ultimately, the issue has to be decided as per law after ascertain details by professional experts. Our interference does not reflect on merits of the stands, but is on account of procedural illegalities and failure to abide the statutory provisions and mandate.

97. In view of the aforesaid discussion, while setting aside and quashing the final notification of modification/change of the land use dated 28th March 2020 in respect of the 6 plots in the Central Vista, we would direct as under:

A) The Central Government/Authority would put on public domain on the web, intelligible and adequate information along with drawings, layout plans, with explanatory memorandum etc. within a period of 7 days. E B) Public Advertisement on the website of the Authority and the Central Government along with appropriate publication in the print media would be made within 7 days. C) Anyone desirous of filing suggestions/objections may do so F within 4 weeks from the date of publication. Objections/ suggestions can be sent by email or to the postal address which would be indicated/mentioned in the public notice.

D) The public notice would also notify the date, time and place when public hearing, which would be given by the Heritage G Conservation Committee to the persons desirous of appearing before the said Committee. No adjournment or request for postponement would be entertained. However, the Heritage Conservation Committee may if required fix additional date for hearing. H

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E) Objections/suggestions received by the Authority along with the records of BoEH and other records would be sent to the Heritage Conservation Committee. These objections etc. would also be taken into consideration while deciding the question of approval/permission. F) Heritage Conservation Committee would decide all contentions in accordance with the Unified Building Bye Laws and the Master Plan of Delhi. G) Heritage Conservation Committee would be at liberty to also undertaken the public participation exercise if it feels appropriate and necessary in terms of paragraph 1.3 or other paragraphs of the Unified Building Bye Laws for consultation, hearing etc. It would also examine the dispute regarding the boundaries of the Central Vista Precincts at Rajpath. D H) The report of the Heritage Conservation Committee would be then along with the records sent to the Central Government, which would then pass an order in accordance with law and in terms of Section 11A of the Development Act and applicable Development Rules, read with the E Unified Building Bye-laws.

I) Heritage Conservation Committee would also simultaneously examine the issue of grant of prior permission/approval in respect of building/permit of new parliament on Plot No. 118. However, its final decision or F outcome will be communicated to the local body viz., NDMC, after and only if, the modifications in the master plan were notified.

J) Heritage Conservation Committee would pass a speaking order setting out reasons for the conclusions. G

98. We set aside the order of the EAC dated 22nd April,2020 and the environment clearance by the Ministry of Environment and Forest dated 17th June,2020, and would pass an order of remit to the EAC with a request that they may decide the question on environment clearance H

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A within a period of 30 days from the date copy of this order received, without awaiting the decision on the question of change/modification of land use. Speaking and reasoned order would be passed.

99. Parties, if aggrieved by any order/approval/non-approval would be entitled to challenge the same in accordance with law. B In the facts of the case there would be no order as to costs.

Bibhuti Bhushan Bose Matters disposed of.