Home Spotlight SC verdict on Central Vista project deals with some interesting issues

SC verdict on Central Vista project deals with some interesting issues

Central Vista project is much debated project and this debate finally took the project to Supreme Court. SC in its order has touched upon various issues affecting the project. Some of its observations and pronouncements may have impact on the future projects of such scale and nature. Here are some issues which the SC has dealt with in detail.

Smog towers may soon become mandatory for large projects

The SC in its order has said that the project proponent may set up smog tower(s) and use smog guns at the construction site throughout the construction phase is in progress on the site. The Apex court has also advised the MoEF to consider issuing similar general directions regarding installation of smog towers in major project sites, particularly in cities with bad track record of air quality.

“We also call upon the respondent MoEF to consider issuing similar general directions regarding installation of adequate capacity of smog tower(s) as integral part in all future major development projects whilst granting development permissions, particularly in cities with bad track record of air quality – be it relating to Government buildings, townships or other private projects of similar scale and magnitude, including to use smog guns during the construction activity of the Project is in progress,” said the judges in their order.

Smog towers are the devices that work as large-scale air purifiers having multiple layers of air filters to clean the air. The smog tower at Lajpat Nagar, in Delhi, for example, is capable of cleaning 6,00,000 cubic meters of air per day. According to the reports, it can collect more than 75% of particulate matters. The Environment Ministry may come out with guidelines soon to make the installation of such towers at large project site mandatory. Smog tower concept is new to India (and that too at project sites) and saw the first such tower at Lajpat Nagar in January last year.

About land use and master plans

There were complaints about change in land use too. However, SC ruled that the exercise of power by the Central Government is in conformity with the purport of sub-section (2) of Section 11A, enabling “modification” as no change of a substantial or radical character is envisaged as far as land use is concerned. The total area of plots being subjected to change in land use is 86.1 acres, out of which 61.6 acres of area involves change from public and semi-public (PSP) use to Government use. “as actual usage of spaces earmarked for PSP use, the proposed changes cannot be treated as a substantial deviation from the nature of land use in the region. Furthermore, use of plot no. 7 presently earmarked for Government office alone would be converted to residential in place of Government office to provide official quarters – which again is public premises (Government owned),” said the order.

The master plan envisages intensive utilization of existing Government land and utilization of surplus land by the Government as essential components of optimum utilization of Government land resource. The public trust doctrine obligates the Government to use the available resources prudently and to subserve the common good. The proposed use is not to bestow largesse on private persons but for assets creation and for public use. Naturally, if such optimum utilization requires changing the land use of Government lands, that must follow in public interest.

Role of DUAC

The order also once again re-emphasises the role of Delhi Urban Art Commission (DUAC) in granting approval for any new project. According to the SC ruling the DUAC has an advisory capacity and its job is to advise the Government on aesthetics of a development/re-development project. It is not meant to analyse any other aspect of the project. Advice is not rendered in context of each and every aspect of the proposal, rather, it only ensures that overall aesthetic quality of the concerned region is not being disturbed. Over and above the concern of aesthetics, there is no other aspect on which the Commission’s (DUAC’s) approval is mandated.

Further, the Act draws a clear distinction between local bodies and Central Government insofar as the binding value of the advice of Commission (DUAC) is concerned. Section 12 categorically binds the local bodies with the advice of the Commission (DUAC). Section 14 has a saving clause providing for an overriding power bestowed upon the Central Government to call for and examine the advice of the Commission (DUAC) if public interest so demands and pass “such order thereon, as, it thinks fit”.

Concept or design competition?

What’s the best method of selection of the consultant for such an eminent project of national importance? Whether the government should follow usual best price method instead of best design competition of international standards? “What method is good or must be adopted for appointment of Consultant is the exclusive prerogative of the executive and in the nature of a policy matter – where the Courts should not venture upon when even angels would fear to tread. The mandate of Consultant is only to present a vision document. The nitty-gritty of the design and floor plans is the mandate of the project proponent and the Government (concerned departments being the stakeholders). Further, just because the Government has followed a particular method of selection/appointment of the Consultant for the stated project and another one would have been a better option cannot be the basis to quash the appointment already made after following a fair procedure consequent to inviting tenders from eligible persons similarly placed,” the SC observed in its order. It is for the government to decide their method of planning from the legally available alternatives in accordance with the nature of project – emphasis on design or emphasis on functionality. “In any case, it is not for the Courts to decide which competition will be more appropriate, being a policy matter.”

And finally….

Environment and development are not sworn enemies of each other. It would be an anomalous approach to consider environment as a hurdle in development and vice-versa. The entities like EAC and NGT are created to strike a just balance between two competing interests and a time-tested principle of striking this balance is timely invocation of mitigating environmental measures amidst a development activity. True that mere application of certain mitigating measures may not alleviate environmental concerns in all matters and in some circumstances, the project is simply incomprehensible with the environment. “But as long as a legitimate development activity can be carried on in harmony with the idea of environmental protection and preservation including sustainable development, the Courts as well as expert bodies should make their best endeavour to ensure that harmony is upheld and hurdles are minimized by resorting to active mitigating measures.”

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