[Central Vista] 'When Final Decision Is correct, Can It Be Questioned Just Because 'Advisory' Body Didn't Do Its Job Properly?' SC Asks Sr. Ad. Sanjay Hegde

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.

"Had the administrative authority given the same patient hearing that we have got before the Supreme Court, many of us would not be here. Also, a lot of paperwork which was not originally available, is now present in public domain", began Senior Advocate Sanjay Hegde on Monday on behalf of certain petitioners.

"The SG had said 'what kind of people are these who want to stop a new Parliament building?'. We are patriotic citizens who are heritage and architecture enthusiasts. And we don't want to stop anything. Our only concern is that if a public architecture is being built for 150-200 years, then the government must proceed in a clear, transparent manner, in accordance with the law, and ensure public participation", he advanced.

"Architects see things in terms of spaces, and this is a space which is sacred to modern India in terms of its history. So we need to appreciate the considerations relevant to the architects, the people using the space and the people sanctioning the development", he continued.

"Your Lordships had asked if the same standard would apply in case there is only an extension or a refurbishment as against when a totally new structure is being brought into existence? The Karnataka HC was built in the 1800s as a secretariat for British India. It later became a HC. In the 90s, there was a proposal to demolish it and similar questions as to heritage arose. A petition was filed but the HC upheld the proposal. It came to the SC and the SC did intervene. Finally, you had a whole new building, identical to the existing building, built into the structure and the new and the old buildings were merged together! A similar thing happened with the Delhi HC recently, where a new building has been integrated into the existing facade facing the road. There is nothing disproportionate about it. The new building reflects what the old one did!", argued Mr. Hegde, also sharing pictures of the Delhi HC as it stands today.

He took the bench through a 2017 paper on the history of the architecture of the SC of India, demonstrating the process that was followed and the efforts that were put in which resulted in the present building in 1958. He quoted that the "law banks on visual means of representation" which includes the "physical architecture of the court buildings, spacial arrangements, and even the artifacts and the paintings", without which "justice is unrecognised". He advanced that when the Supreme Court was built, a model was placed for public consultation. He showed a picture of the then President of India, Dr. Rajendra Prasad, examining a scale model of the Supreme Court prior to the building coming into existence. He narrated how it was deliberated whether the Supreme Court building should be in the Capital city or at a more central location, and how post detailed discussions, it came to be in Delhi.

"What is the purpose of extensively going through this document?", asked Justice Khanwilkar.

"To canvass the elaborate efforts that went into constructing the SC building as it stands today, as opposed to what is being done now in context of an entire section of Delhi, which is the heart of the country", replied Mr. Hegde.

Continuing, he delved into the chronology of events that resulted in a decision on the part of the government to redevelop the Central Vista area- In view of the national importance of Central Vista and Secretariat Complex situated on Rajpath, New Delhi, the Ministry of Works Housing and Supply (Now Ministry of Housing & Urban Affairs) in 1962 felt the need for the planned development to bring the entire area under strict architectural control so that no construction or development in the area extending from the Rashtrapati Bhawan to the hexagon around the India Gate shall take place without the specific approval of the Govt. of India in the MoHUA. It was therefore decided to form a specialised study group of architects and town planners to advise the Government of India on the development aspect of the Central Vista and Secretariat Complex. Accordingly, a committee/study group was constituted by the MoHUA to advise the Government of India, which was reconstituted in 2002 and 2019. "The body is now called the Special Advisory Group of Central Vista and Central Secretariat", said Mr. Hegde.

"As regards the proposal towards land-use change, there was a March 6 order of Your Lordships stating that any steps in this direction shall be subject to the final outcome of these petitions. On March 20, the land-use change was allowed. On March 24, a nationwide lockdown was announced. Even after that, the CPWD placed a proposal for a new Parliament building before the Central Vista Committee. Despite numerous representations to the CVC, it held a meeting on April 23, amid the lockdown, and via video conferencing, and granted a NOC to the proposal!", he argued.

"The minutes of the meeting of the Special Advisory Group of Central Vista and Central Secretariat show that it was not attended by 4 members who are representatives of professional bodies of architects and town-planners...they just noted that some members expressed their inability to join the meeting on account of travel restrictions and as senior citizens, being confined to their houses, and also lack of technical capacity, and requested for a postponement. But naming the importance of the project for the nation and the timescale for its implementation as the reasons, the meeting was held anyway"

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'

"No reasons were disclosed for granting the NOC. The details of the materials considered and the discussions held were not disclosed! Moreover, the meeting was chaired and headed by ADG, Works, who is neither an architect nor a town-planner, but an engineer in road maintenance! There was violation of principles of administrative decision-making!", he contended.

'This is not a decision, much less a reasoned decision, much less a consideration of a proposal submitted with due questioning! An architect was invited to present the proposal online, and only one observation was made- 'in sync'! It could mean anything, it is vague, unreasoned and capable of absolute interpretation! Unlike the new Delhi HC building, the Committee doesn't even say that the new building should be in sync with the existing one! It just mentions the features! Is it supposed to have the same pillars, the same shape, the same height as the existing Parliament? Is this what a professional body of architects and town-planners expected to say in giving permission? To rubber stamp its approval with just 2 lines on maintaining synchronity?", he urged.

"What is the scope of inquiry of the CVC into the proposal? Is it supposed to go into the designing and the planning or is that to be done by some other department? Under what provision was the CVC created?", asked Justice Khanwilkar.

Mr. Hegde replied that the CVC was constituted vide a 1962 OM of the MoHUA- "The requisition of development of the Central Vista and Secretariat complex has been engaging the attention of this Ministry for some time. In view of the national importance of the area and the need for its planned development, it has been 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 will take place without the specific approval of the Government of India in the Ministry of WH&S. It has also been decided to set up a specialised study group of Architects & Town planners 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", he quoted.

"So it is not a statutory body. It can only lay down broad guidelines, which will be a general advisory, not even binding on the government...and whatever is referred to it, it can advise only on that.

If nothing is referred, it will not advise...it is not mandatory to move the CVC, you may go to the town planning authority or other bodies!", noted Justice Khanwilkar.

"Everything that has ever been done in the Central Vista has always gone through the CVC. It was even reconstituted in 2019", replied Mr. Hegde.

"And the object remains the same?", asked Justice Khanwilkar. Mr. Hegde replied in the affirmative, adding that all terms and conditions of functioning remain unchanged and only the composition has been altered.

"The terms and conditions which you say are unchanged pertain to the appointments and the financial matters", noted Justice Khanwilkar.

"I think legally, the only thing we can rely on it is for procedural legitimate expectation, no beyond that", observed Justice Khanna.

"As regards the procedural legitimate expectation- what has been followed from 62 till today- we would like the SG to answer", expressed the judge. SG Tushar Mehta assured the court that he would reply to this.

"It is a study group, not a statutory body to advise the government. It is not a decision-taking body. How relevant is it in administrative law? An administrative committee is a body to assist the governing body. Even if we assume that it is a 'committee', does it have to state its reasons? Is it necessary to go into all these details?", asked Justice Maheshwari.

"The nomenclature is not 'committee', but 'special advisory group'. It is not even 'study group'. It is a MoHUA advisory. Whatever research or study is there, just place it before the group. It is not to conduct a scrutiny of the entire proposal- heritage, environment norms. That is for the statutory committee to do", reflected Justice Khanwilkar.

"The government has set up a process for carrying out works in the Central Vista area. It is a stated part of the process that advice of the study group be taken. Your Lordships may be right that the government is not bound by such advice. If the government is to overturn it, it may do so for good reasons", replied Mr. Hegde.

"But earlier, as and when a matter has been referred to the CVC, it has never detracted from the procedure", he continued, citing as an example the procedure followed in the development of the National War Memorial and Museum. "The process began in 2016 and continued in 2018. The Ministry of Defence was requested to make a presentation of design. Suggestions were advanced. When the revised proposal came to be submitted, concerns regarding elevation and overbearingness of the structure were iterated. and yet another improved draft of the proposal was filed. This is the depth of consideration", he pressed.

"The memorial was a new creation entirely. The consideration may differ. Here, we are only on extension. We don't know what the proposal in the meeting was. We have to see it in that context", noted Justice Khanwilkar.

"Whatever was proposed was presented before the CVC and considered. You are saying the decision-making has been faulty? What has not been done?", asked Justice Maheshwari.

"The National War Memorial was on a much smaller scale as compared to the Parliament. But still, the process of consultation there went on 3 years. It was a detailed consideration unlike the single-day clearance, as in the present case, that too over video conferencing and in the absence of crucial members! It was just a 'Tathasthu'- 'This is the plan? Bless it!'", argued Mr. Hegde. He proceeded to walk the court through the equally detailed consideration by the CVC of the proposal for a multi-level parking at the Delhi HC.

"Don't multiply more proposals. We can understand that you wanted a deeper scrutiny and not just a general observation. But it is only an advisory group and the decision has to be ultimately taken by a statutory body. The statutory bodies are the Heritage Conservation Committee and the environmental authorities. This argument is not an effective way of challenging the final decision as the Ministry which took the decision is not bound by the advice of this body. Assuming you are right about the CVC, would that affect the final decision? Suppose the CVC was to take a view, it would not be ex-post facto...", commented Justice Khanwilkar.

"My petition was filed in June, immediately after the advice was tendered. We had gone to the Delhi HC, which said it won't consider it in view of Your Lordships order of any actions being subject to the final outcome of the petitions before you. So we filed a writ petition here and a SLP against the Delhi HC order. We are arguing that the final decision has been made based on materials which were not there so far as this advice is concerned", said Mr. Hegde.

"When the final decision is correct and flawless, just because the advisory committee didn't do its job properly, can the final decision be questioned?", asked Justice Khanwilkar.

"Administrative law is not concerned with merits but with the process. If you arrive at a right decision but by a wrong process, a process so vitiated, the final decision on merits could be either way", ventured Mr. Hegde.

"To say that the process is wrong, we have to say that involving the CVC is statutory. But it is only an inter-departmental arrangement! It does not even involve the whole Ministry, just the Works division!", pointed out Justice Khanwilkar.

"Most properties in the Central Vista are government-owned. It was the government's decision to appoint one committee to keep everything in an orderly fashion. It is not a mere committee within one Ministry, deciding whether files should be processed in one way or the other! It is the government's own initiative to harmonise functioning in the area. There are very few private properties in the area, but even they would have to go through this committee! It is a material piece of administration, not just a formality", argued Mr. Hegde.

"Under the TRAI Act, even before the Telecom Ministry takes a decision, it refers the matter to the TRAI...", he sought to advance.

Cutting across him, Justice Khanwilkar inquired, "In matters of governmental decision-making, the final decision originates after it has passed from the assistant to the section officer to the joint secretary or the secretary and finally, the minister. You say that in taking a decision based on whatever documents were before the Committee, it has not done its job properly and abdicated its duty? We understand that. But how does it affect the final decision? Is there any direct authority on the point?"

"If I may take a homely example- In a Math problem, if your answer is right but your steps are wrong...", began Mr. Hedge. "This is not an apt example. Pick up anything, but this will not do", commented Justice Maheshwari. When Mr. Hegde said that he himself had been bad at Math, Justice Khanwilkar commented in good humour that he should not venture into areas he is not familiar with. "I was only on the marking aspect of it...", said Mr. Hedge.

"You have spent 1 hour on this. We are trying to understand how, in administrative law, you can question the decision of the statutory authority because of an infirmity in the decision-making of the advisory body?", asked Justice Khanwilkar. Mr. Hegde conceded that he had not considered his submission from that angle.

"Mr. Shyam Diwan, his associate and now you, have all made this argument. We are still wondering if it has a bearing on the final decision", added Justice Maheshwari.

"Take a case where the Committee gave a negative opinion. But the statutory body overrides it, stating that what it has before itself is different, and giving reasons for changing the opinion of the Committee. Here, the Committee supported its decision so the statutory authority gave no reasons. A final decision, though correct otherwise, can it be questioned based on an earlier decision? How casually the process has gone ahead is a different matter", reflected Justice Khanwilkar.

"But the final decision is based on lack of necessary material", pressed Mr. Hegde.

"The CVC has not added any new material which the statutory body has not considered. If the CVC had not given its report for 1 year, the statutory authority would not have waited and would have proceeded to decide anyway!", pointed out Justice Khanwilkar.

"If there is a fault in the process at the lowest stage, then the final decision, whether right or wrong...", began Mr. Hegde.

"That would depend on the gravity of the fault. If the CVC had additional material and had not placed it on record or it was not considered by the statutory authority, that could have been the basis of questioning the final decision", said Justice Khanwilkar.