"We Are Not Aware And We Don't Want To Be Aware (The Inside Story)": Courtroom Exchange In Central Vista Hearing

The Supreme Court bench of Justices Vineet Saran and Dinesh Maheshwari was considering the SLP against the Delhi High Court's adjournment to May 17 of the plea for suspension of all kinds of construction activity in relation to the Central Vista Redevelopment Project in compliance of the orders issued by the Delhi Disaster Management Authority in wake of the covid 19 surge in the national capital.

When the item was called out, SG Tushar Mehta sought to submit, "I am here, Your Lordships...The High Court has kept it on the 17th (of May)"

Justice Saran: Who is appearing for the petitioner? We have to first hear the petitioner!

SG: I understand, but this is...

Senior advocate Siddharth Luthra for the petitioner: This is not an adversarial matter, to borrow the words of The Solicitor from the oxygen matter. The issue is very simple. We are not concerned with the project. It has been allowed in January. We can't go beyond that...

SG: One thing, I am taking it as adversarial. And this is a PIL, I have a serious objection to it...The High Court has kept the matter on 17th. This adjournment is under challenge before Your Lordships...

Justice Saran: Why do you think we haven't seen the file, Mr. Mehta?

SG: I'm sorry, My Lords.

Mr. Luthra: From my point of view, it is not adversarial. Since it is my petition, I am entitled to break that assumption. Where issues like health are involved, it ought not to be adversarial.

Proceeding to elaborate his case, Mr. Luthra advanced: Till 3 May, 2021, the positivity rate in Delhi has shot from 3.57 to 30%. This is the report of a High Powered Committee in Delhi. The deaths have gone up from 9 to 440.We are not even counting the non-Covid deaths. This matter needs consideration. At the outset, I must tell Your Lordships that before the High Court, we made a very simple submission. We said that the Parliament work has to go on with the on-site workers. We are only concerned with the 3 1/2 or 4 kilometres stretch from Sarai Kale Khan labour camp to the construction site in which 150 labourers are being ferried to and fro amid the pandemic.

Mr. Luthra continued to indicate the 19th April order of the DDMA- "Please see what the Disaster Management Authority permits. We are in a place where the health system has broken down completely! People are not getting beds. Since this morning, I have heard of five deaths, among people who are known to me..."

Justice Saran: "We are very conscious of this. The different benches of this court are already seized of these issues. So anything that we say about it may be misinterpreted"

"Mr Luthra can observe anything about the deaths. The other counsel can observe. But we can't make any observations because it will be taken otherwise", said the bench.

Mr. Luthra: We are not on that. Even before the High Court, I am in a very limited issue- the 19th April order states that all offices of GNCTD, including autonomous offices, will remain closed except for "essential and emergency" services such as health, fire, home guards, police. These are essential services. Then, for the first time, an exception was made – "construction activities, except where labour are residing on site, shall remain closed in the curfew". This is the position we are concerned with.

Then, Mr. Luthra indicated the letter on 'Permission to continue construction during curfew period' by CPWD in respect of the Central Vista project of April 16- "This work is of time bound nature and it is to be completed before November 30 and therefore, Mr Shapoorji Pallonji (whose company has been granted the tender for the construction of the project) has been directed to carry out construction activities in three shifts. Since there are stringent timelines for the said work, Mr. Pallonji may be allowed to continue the work during the curfew.

Mr. Luthra proceeded to argue: There are eight sites which are undergoing construction, we are not concerned with 6-7 of them. We are only concerned with the Rajpath stretch, the Central Vista stretch and the garden. We are not concerned with the house or other buildings which may be coming up. I can't go out in Delhi but we want the labourers to go out? Permission has been granted to ferry workers to and fro from the Sarai Kale Khan labour camp to the construction in their own buses! I have been told that these labourers are coming from Kirti Nagar, Karol Bagh etc!

He pointed out that "Vehicles as per the list attached engaged in the development and redevelopment of Central Vista are hereby allowed during the curfew". "I really can't understand how construction can be an essential activity at a time when we have a health emergency! And labourers are going and coming back from the labour camps, putting at risk their own lives and that of their families. Will it not put more pressure on the healthcare system?", he argued.

Justice Saran: We are not going into whether there are any Covid patients amid them. What we are concerned with is that this is a matter which the High Court is looking into. Your grievance, as we understand, is that the High Court has given a very long date...

Mr. Luthra: When the matter came up before the High Court, we pointed out that our petition submits that the petitioners are fully cognisant of the judgement of January 5 passed by the Supreme Court, where the Supreme Court has upheld and permitted the Central Vista. By this petition, the petitioners are in no manner seeking to overreach that. We told the HC that we are in a position where things will peak by mid-May. The High Court then keeps the matter for the 17th of May to study this judgement. But that is the HC's prerogative, who am I to question it?

At this, the bench pointed out that it was the ASG, who represented the Union of India in the HC, who had sought time.

Mr. Luthra: But by the time the item got over, the ASG came back and said that they will respond by Monday.

"Who was the ASG? We can ask him to verify", said the bench.

Mr. Luthra: I am making this statement. I can also file an affidavit because I was personally present...

"We are only asking...There is nothing for you to state that an affidavit is required...", clarified the bench.

Mr. Luthra: I bow down to that. I am getting a little emotional.

"No, don't take it like that. You have a smiling, pleasant face. Please continue to be like that. You should not get emotional", remarked the bench in a lighter vein.

"See, so far as the submissions to be made are concerned, nobody can deny that you have certain submissions to make. But when you have filed a petition before the High Court and it is seized of the matter, keeping it at a later date or adjusting it here or there is a matter for the High Court", continued the bench.

Mr. Luthra: We are faced with a peculiar situation. I request Your Lordships to understand. The HC deferred the matter to the 17th, without even calling for a response on my limited prayer. My concern is that we are facing a humanitarian health crisis. We are not concerned at all with this project.

"We all are facing (the crisis). The entire judiciary is also", interjected the bench.

Mr. Luthra: Till we cross the peak, no adverse consequences will happen if the project is put off- When the nation is considering a lock down, when we shut off the IPL because there has been an infection. We have a position where the spread of the virus is so unprecedented, and I know that the SG is making great efforts for oxygen for Delhi, but despite that there are limitations that we are faced with.

Justice Saran: The very fact that you can see us wearing a mask inside our homes says it...

Mr. Luthra: I myself have just come out of quarantine. But 17th is when we hit the middle of the crisis...

Justice Saran: We will request the High Court to take it up on Monday?

SG: I would put a slightly different point. Such a person, coming in a public interest litigation, saying he is some kind of an interpreter, and filing SLP even against an adjournment raises a serious doubt.

"Is there anything that you have to say about our sending it to the High Court with the request that it may be taken up on a mention on Monday?", asked the bench, refusing to entertain submissions as regards the credibility of the petitioner.

SG: It will set a wrong precedent.We have seen the constraints with which all high courts are functioning. What I am suggesting is something similar. The SLP is limited to the adjournment. Instead of Your Lordships requesting, let the High Court consider on its own.

Justice Saran: We are not going to direct the High Court. Prima facie, we have indicated that we are not going to direct. We have reservations on directing the High Court. We are only going to allow him to make a mention before the HC on Monday. It is for the high court to decide.

SG: The petition is on behalf of some interests which are operating...

Justice Saran: We are not on who the petitioner is and why he has filed this.

Mr. Luthra: The petitioner is a contemporary. He is somebody who has studied with us. Mr Mehta recognises the petitioner but may not recall.

"We don't want to get into that question. Mr. Luthra, you may withdraw this petition and then mention it before the High Court. Should we say that you would like to request the HC to take up the matter as soon as possible or should we ourselves request?", asked the bench.

Mr. Luthra: I will leave it to Your Lordships as to how to couch the order. I would be deeply obliged if Your Lordships do it. There are two ways – one option is that Your Lordships simply request the High Court to take it up on Monday; it is not to be a direction...My only request is that since there is a public health emergency...

"We are conscious of it", the bench said, cutting across Mr. Luthra.

"We don't want you to be in a difficult position. Should we record your statement on your behalf or should we ourselves ask you to go (to the HC)?", asked the bench again.

SG: If the High Court has the convenience, I will agree for the 10th.

"Our difficulty, your difficulty and Mr. Mehta's difficulty is that we don't have a copy of the order of May 4, 2021. We presume that it is an order for adjournment, putting the matter for so-and-so. We presume that there is nothing else in it...", said the bench.

Mr. Luthra: The case status (on the HC website) shows 17th. There is no order as of now at 12:20 PM.

When Mr. Luthra suggested if the bench would keep the SLP pending in the meantime, the court asked, "Why keep it pending?'

"Then, I request Your Lordships please put it in a manner (in the order) that the matter gets dealt with", prayed the senior counsel.

Dictating the order, the bench recorded that since the matter is pending before the High Court and the order impugned in the SLP is only an order of adjournment, "we are not inclined to enter into the merits of the case". "In the given circumstances, we request Mr Luthra to, either himself or through any other counsel, make a request on behalf of the petitioners before the Chief Justice of the High Court on Monday to take up the matter as early as possible, because, according to Mr. Luthra, there is extreme urgency of the matter. We hope and trust that the High Court shall list the matter for early hearing. The SLP stands disposed off", said the bench in its order.

Mr. Luthra: I can even make the mention today if Your Lordships give me the order today?

SG: I won't be a party to this. This is very, very...(unclear)

"I will make a request for listing on Monday", clarified Mr. Luthra.

"Mr. Mehta had very kindly said that he will join in the request. Please let that come in the order. Otherwise when we go before the HC, it could come back in objection...", prayed Mr. Luthra.

"I had said that you must trust me. I also trust you. I have a problem with your client but not with you...", commented the SG.

"You both are friends. You can join together and make a mention. We have regard for senior counsel, especially of Mr. Luthra and Mr Mehta's stature. We don't think that anybody would...(unclear)...", said the bench.

"I have absolutely no difficulty", assured the SG.

"You yourself have said that even after the matter was adjourned, the ASG appeared before the court and made a request (for the matter to be heard on the 10th. There is nothing adversarial so far as the taking up of the matter is concerned", added the bench.

Next, Senior Advocate Maninder Singh, appearing for Shapoorji Pallonji, who is a respondent in the SLP, advanced, "I heard Your Lordships say 'High Court shall'..."

SG: Yes. Your Lordships may consider saying "High Court may". Otherwise, It sets the wrong precedent.

After the SLP had been disposed off, the bench engaged in a conversation with the counsel- "Looking to the present scenario, what we feel is that what is needed is the synergy of everybody together. That is how the unknown enemy can be defeated"

SG: There are several factually incorrect statements (in the petition). We will point it out to the High Court.

"Please leave the submissions to the High Court. Now that the matter is over, what we find is that both Mr. Luthra and Mr Mehta are very charged", said the bench in a lighter vein.

SG: Possibly because we both know the inside story of this litigation that Your Lordships are not aware of.

"We are not aware and we don't want to be aware", said the bench.

Mr. Luthra: I will tell the SG separately that this plea is a transparent one. There is no inside story. There are stories which the Solicitor is aware of but we will talk about how transparent this one is in private...