Central Vista- Lack Of Public Consultation, No Approval From HCC, Non Speaking Order Granting Environment Clearance: Justice Sanjiv Khanna In His Dissent

Justice Sanjeev Khanna, in his separate opinion in Central Vista Project case, expressed his dissent on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.The judge, however, agreed with the majority on the aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order.The judge observed that 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 Rules.Public ConsultationOne of the main contentions raised by the petitioners in this case was that, a project of this nature must involve the common public as they are the real stakeholders of national heritage and must be consulted at every stage of the project including prior to drawing outline of the project, releasing consultancy tender, modifying the Master Plan and finalisation of the design and making changes therein.While addressing this argument, the judge referred to Sections 7 to 11-A of the Development Act and observed that the same has detailed procedure for preparation of a Master Plan and the Zonal Development Plan(s) including direction that the Authority shall prepare a draft and make a copy available for inspection to general public and invite objections and suggestions from any person." Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements. Thus, mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure. This condition also flows from the common law general duty of procedural fairness. Doctrine of procedural legitimate expectation as explained below would be attracted. Intelligible and adequate disclosure of information in the context of the Development Act and the Development Rules means and refers to the degree to which information should be available to public to enable them to have an informed voice in the deliberative decision making legislative exercise before a final decision is taken on the proposals. In the present matter this lapse and failure was acknowledged and accepted by the BoEH, which had recommended disclosure and furnishing of details. Intelligible and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments. They have far more permanent consequences. It was therefore necessary for the respondents to inform and put in public domain the redevelopment plan, layouts, etc. with justification and explanatory memorandum relating to the need and necessity, with studies and reports. Of particular importance is whether by the changes, the access of the common people to the green and other areas in the Central Vista would be curtailed/restricted and the visual and integrity impact, and proposed change in use of the iconic and heritage buildings""The Central Government has not placed on record even a single document or minutes to show that the objections and suggestions were considered by the Central Government", Justice Khanna noted in the judgment.Given the importance of Central Vista, failure of govt to follow "intelligible and adequate disclosure" cannot be ignored"... given the nature and importance the statutory provisions which emphasise on fair participation of the public in the deliberations, and the importance and significance of Central Vista, we do not think it would be appropriate and correct to ignore failure on the part of the respondents to ascribe to the principle of intelligible and adequate disclosureto fulfil the requirement of public participation.Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regardingthe proposal.Formative and constructive participation forms the very fulcrum of the legislative scheme prescribed by the Development Act and the Development Rules. Every effort must be made to effectuate and actualise the participatory rights to the maximum ...

Central Vista- Lack Of Public Consultation, No Approval From HCC, Non Speaking Order Granting Environment Clearance: Justice Sanjiv Khanna In His Dissent

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