[Central Vista] NIT Should be Struck Down As It Did Not Incorporate Any Estimate Costs: Adv Vrinda Bhandari Submit Before SC

The Supreme Court on Monday resumed hearing on the challenge to the Central Vista project and the government's proposal to construct a new Parliament in Lutyen's Delhi.

A bench of Justices AM Khanwilkar, Dinesh Maheshwari & Sanjeev Khanna had earlier decided to hear the challenge on 3 issues, vis-à-vis change of land use, violations of municipal law, violations of environmental law. Subsequently, the Court disposed off the petitions challenging change in land use of plot number 1 of the Central Vista Project, adding that it will be taken up at a later stage as the decision on its usage had not yet been taken by the Government.

On Monday, Advocate Vrinda Bhandari, continuing arguments for the petitioners, advanced that the NIT should be struck down as it did not incorporate any estimate costs.

"This is not a construction tender but one for consultancy services. The NIT is uniform to all. You are a PIL person. What is the problem? There are no complaints from the bidders", asked Justice Maheshwari, even as Bhandari insisted that Rule 182 of the General Financial Rules, which provides for estimation of reasonable expenditure, also applies to consultancy services and that it has not been complied with in the present case.

"Reasonable expenditure has been defined from 0-2500 crores, from 2501 crores-5000 crores and above 5000 crores. There is no upper-limit here also. This won't help you. Your argument should be that no outer-limit was determined by the government for this project, no budgeting was done, and that the government cannot undertake any works without complying with these obligations under its Works Manual", suggested Justice Khanwilkar.

" Show us exact provisions that no NIT can be issued unless budgeting is done and expenditure quantified...and the upper limit has been indicated in the counter-affidavit. A roughly estimated project cost of Rs. 10,000 crores is indicated", continued the judge.

"This figure of 10,000 crores is not evident in the NIT but only in the financial offer. And they only speak of capping of consultancy fee but it is not clear what this capping will be. Vide the September 23, 2019 corrigendum, the decision to cap was taken. Subsequently, the private consultant was invited to participate in negotiations over the capping of fee", contended Bhandari.

Justice Khanwilkar asked if this invitation was extended after the consultant had been declared as the selected bidder. Bhandari replied in the negative.

"But it says (in the letter from the CPWD to the H1 Bidder APC Designs) that the consultant was already declared as a successful bidder. The in-principle decision had already been taken. It was only before making a public declaration that the department wanted to cap the fee. There was no outer-limit in the tender and such capping was prejudicial to the bidder, but he still said 'no problem'. What is wrong here?", questioned Justice Khanwilkar.

"Can this be the ground to doubt the NIT procedure? All that we have culled out is that there was no clear planning, no budgeting, no financial arrangements, everything was proceeding on estimates. The NIT cannot be struck down solely on this", continued the judge.

"Capping of costs in case of consultancy firms is difficult. Since there are mitigation circumstances set out for most cases, you can apply that", said Justice Khanna.

Finally, Bhandari proceeded to point out the design changes introduced subsequent to the original NIT- "it was left to the private consultant to decide of the existing building would be redeveloped or a new facade altogether would be constructed...secondly, the built-up area and the costs were increased..."

"That is relevant for the work, but that will not affect the consultancy fee. The fee percentage is fixed", said Justice Khanwilkar.

Bhandari pointed out how the original NIT was for only the Central Vista and subsequently, the PM's residence and the President's residence were also brought in by the H1 bidder.

"It is not a substantial change. Additional work is always permitted under a tender", commented Justice Khanwilkar.

Next, advocate Gautam Bhatia sought to point out the infirmities in the April 30 decision of the Central Vista Committee granting its no-objection to the proposed project and the July 1 decision of the Delhi Urban Arts Commission conveying its approval.

"The task, as set out in the notification establishing the CVC, is to advise the Government on such aspects of the development of the central vista and the secretariat complex as may be referred to it from time to time. In view of the national importance of the area and the need for its planned development, it was decided to bring the entire area under strict architectural control. No construction or development in the area extending from the Rashtrapati Bhavan to the C-Hexagon around the India gate can take place without the specific approval of the Government of India", he advanced.

He pointed out that the Committee gave no reasons for according its clearance to the project; that under 'Observations', it merely stated 'No Objections' and that by way of suggestions, it said that 'the features of the new building should be in sync with the existing building'. "It gave its NOC to the new Parliament plan vide a non-speaking order. It gives no reasons for how the elaborate but new Parliament plan complied with the suggestions and the rules and regulations", he argued.

He sought to indicated that the meeting in question was not attended by 4 expert and independent members who are representatives of professional bodies of architects and town-planners- the Commissioner, Planning, DDA; the President, Indian Institute of Architects; the member representative, IIA; and the President, Town Planners, India.

Finally, he reiterated the significance of the right of public participation in the present case and that it is the task of judiciary is to flesh out the rights from the Constitution.