[BREAKING] 'Selective Challenge By Petitioners' : Supreme Court Affirms Delhi High Court's Refusal To Suspend Central Vista Project Work During COVID

The Supreme Court  on Tuesday dismissed petitions challenging the Delhi High Court judgment which dismissed a plea to halt the Central Vista Redevelopment project work during the second wave of the COVID pandemic.

The Supreme Court expressed agreement with the High Court's view that the petitioners had "selectively" challenged one project.

"The High Court's view is a possible view. You challenged one project selectively", the bench observed.

"Petitioners are not in a position to point out that as public spirited citizens they had researched on other projects", the bench observed in the order. The bench said that despite the project contractor reporting compliance with the COVID protocol, the petitioners chose to pursue the PIL for "reasons best known to them".

"We record that the findings of the High Court are possible views. No interference is called for with the High Court order", the bench noted in the order.

A bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Aniruddha Bose was hearing two petitions challenging the May 30 judgment of the Delhi High Court(Pradeep Kumar Yadav vs Union of India and others, Anya Malhotra and others vs Union of India and others).

The PIL before the Delhi High Court was filed by Anya Malhotra and Sohail Hashmi contending that the continuation of the Central Vista construction work during the COVID pandemic posed a public health risk. A division bench comprising Chief Justice DN Patel and Justice Jyoti Singh of the High Court rejected their contentions saying that the Central Vista work was of national importance and that adequate safeguards were there at the construction site against the pandemic.

The High Court also imposed a cost of Rupees 1 lakh on the petitioners observing that the the petition was a "motivated petition" and not a "genuine public interest litigation".

Submissions before the Supreme Court

In the special leave petition filed against the High Court judgment, Anya Malhotra and Sohail Hashmi stated that "imposition of exorbitant costs will have a chilling effect on public spirited citizens raising genuine issues of public health and on right of citizens to question the acts of the Government and hold it to account". Pradeep Kumar Yadav is a third party who challenged the High Court judgment.

Senior Advocate Sidharth Luthra, appearing for Anya Malhotra and Sohail Hashmi, submitted that the petition was filed in public interest. When the petition was filed, the test positivity rate at Delhi was over 30%. It was during the pendency of the petition that the work contractor took steps to ensure COVID protocol compliance at the work site.

Luthra highlighted that the petitioners had only sought a "limited relief" to stop the construction work during the peak of the pandemic. It was the petition which forced compliance with the norms. Despite that, the High Court gave "scathing findings" against the petitioners.

Luthra asserted that no argument was made to challenge the Central Vista project, and the only thing sought was an interim arrangement during the peak phase of the pandemic. Unfortunately, the High Court misconstrued the petition as one challenging the project work completely.

At this point, Justice Khanwilkar pointed out to the High Court findings that the petitioners "selectively" challenged the Central Vista project, leaving out other project works.

"By filing this petition, it was sensationalized. That is what happened and was reflected in the judgment as well", Justice Khanwilkar said.

"The petitioners raised a public health concern", Luthra replied.

"Then you must challenge all projects", Justice Khanwilkar responded.

"Did you make an assessment of how many other projects were going on and did your petition reflect concerns about such projects?", Justice Dinesh Maheshwari asked.

Luthra said that this project was in the public domain and the same was allowed to proceed even when there was a lockdown in the National Capital Territory of Delhi.

"Till 19 April 2021, there was no restriction on constructions. On 19 April, DDMA comes up with guidelines which doesn't permit construction which is not on site", Luthra said. Admittedly, the project site became a compliant site only by April 30, he added.

"Once there is a report before the High Court that the project has complied with the norms, where is the question of pursuing the petition further?", Justice Khanwilkar asked. The bench asked if the petitioners made an averment that all other projects were compliant with COVID norms.

"For 15 days there was non-compliance. From 19th of April to April 30, there was non-compliance. This is not disputed. The High Court accepted the ipse dixit of the respondents", Luthra submitted.

The bench said that the High Court's conclusion that it was a "motivated petition" was based on the fact that the petitioners selectively challenged one project. Luthra reiterated that the documents about this particular project were available in public domain.

Faced with the opposition from the bench, Luthra made a final effort by summarizing his arguments as follows :

"We raised a health crisis. We placed on record the details of health bulletins from April 19 to April 30 stating what the medical condition was in Delhi. We also produced expert opinions predicting the peak of the second wave in May. We also placed on record the DDMA order of April 19 which allows permission for on-site construction works, the movement passes issued by police for transporting workers etc. Our argument was that something which is not an on-site construction is not an essential activity permissible during the pandemic. The High Court does not deal with it".

When the bench expressed disinclination to entertain these arguments, Luthra made a request to expunge the findings of the High Court. However, the bench refused, saying that it was in agreement with the view of the High Court. 

A 3-judge bench lead by Justice Khanwilkar had rejected petitions challenging the Central Vista Project in January this year, by 2:1 majority.