New Delhi: In most public interest litigation (PIL) cases, where the petitioners and respondents agree on the principles involved, the latter are magnanimous enough to declare to the court that they would not treat the petitions as adversarial, and instead explore how best to address the concerns raised in the petition.
Anya Malhotra and Another v Union of India was one such petition which, one believed, relied on principles which the respondents – the Centre and the builder of the Central Vista Project, Shapoorji Pallonji – may find it difficult to oppose publicly, and therefore, would be at least forthcoming to try their best to resolve its concerns.
Monday’s hearing of the case before the Delhi high court bench of the Chief Justice D.N. Patel and Justice Jyoti Singh lasted for about five hours. It revealed, contrary to what one could expect from the hearing of a PIL petition, that the respondents were keener to question the so-called motives of the petitioners in seeking a halt to the project, rather than to address their concerns.
Solicitor General Tushar Mehta, who represented the Centre, didn’t forget to pay lip service to the right to health, as emphasised by Siddharth Luthra, counsel for the petitioners. But it was obvious where they differed: the latter saw and rightly understood the right to health as a penumbra of Article 21 right to life and liberty, guaranteed by implication, whereas the Centre and the builder were not sufficiently concerned about it.
In most hearings of PIL cases, the bench actively intervenes, and prods the executive to address the petitioners’ concerns at least half-way. But on Monday, the Delhi high court bench appeared to have voluntarily muted itself, without using the technological aid available to them through the video-conferencing, but simply listened to the arguments from both the sides. The bench perhaps didn’t believe that the element of public interest in the petition is strong enough to overwhelm the adversarial response from the executive. Or perhaps, the bench didn’t want to give any indication of its likely ruling which its observations may suggest. But the bench’s delayed hearing of the petition – despite the Supreme Court’s prodding to advance it in the meantime – is one instance of its failure to realise its urgency.
The petitioners, Anya Malhotra and Sohail Hashmi, both citizens of Delhi, are public-spirited individuals who are deeply concerned by the super-spreading potential and threat posed by the construction activity at the Central Vista Avenue Redevelopment Project which entails construction activity on Rajpath and the surrounding lawns from India Gate to Rashtrapati Bhawan. They sought a halt to all construction activity at the project in compliance with orders issued by the Delhi Disaster Management Authority (DDMA), during the subsistence of this peak phase of the pandemic.
The petitioners made it clear that they are in no manner seeking to overreach the Supreme Court’s January 5 judgment, which upheld and permitted the project to go on. Instead, they claimed they are only challenging the relentless, unmindful and reckless act of carrying on the project in a manner that poses a threat to the lives of the citizens of Delhi and beyond, including the lives of the workforce engaged in the project.
The petitioners submitted that at a time when the city of Delhi is grappling with a devastating coronavirus outbreak, all efforts, particularly and more so by the state and its agencies, have to be towards controlling the spiralling situation. In these circumstances, the impugned acts of the respondents will nullify and negate all these efforts, they said.
Anya Malhotra, a well-known translator and interpreter, and her 82-year-old mother claimed to be suffering from COVID-19 infection, after testing positive. Sohail Hashmi is a historian and documentary filmmaker. Both Malhotra and Hashmi declared that they have the means to pay the costs, if any, imposed by the court, and gave an undertaking to the court in that respect.
Both made it clear that they are not challenging the part of the project which involves the construction of the new parliament building, where provision has been made for on-site accommodation of workers. They disclosed that although they are aggrieved by the diversion of funds to this project, they are not agitating the same in this case.
First and foremost, they questioned why or how the project constituted an “essential service” merely because some executive-mandated contractual deadline has to be met. The project has no feature of “essentiality” for and/or of “service” to the public at large, they claimed.
The Centre, in its affidavit, claimed that the Central Vista Avenue, with which the petitioners are concerned, is very important public space, where Republic Day celebrations are held annually. The scope of work here includes provision of public amenities like toilet blocks, paths, parking space, vendor-zone; making four pedestrian underpasses below Janpath and C-Hexagon Road; and improvement of canals, bridges, lawns, lights etc.
As per the tender, these works are to be completed within 10 months, by November 2021, the Centre claimed. About 400 workers were engaged at site of the project well before the imposition of curfew on April 19. The Centre claimed that the workers are staying on the site, and therefore, accused the petitioners of suppressing this fact. The Centre, however, added that permission was sought for transportation of materials and labour from Sarai Kale Khan camp to the work site, including permission for the movement of supervisory staff. The permission was granted on April 19 and was valid up to April 30, the affidavit disclosed.
Shapoorji Pallonji, the builder company in its affidavit, claimed that the timeline of the project is of strict importance as even slightest delay can cause a great hindrance to the Republic Day celebrations on January 26, 2022. The company disclosed that about 400 workers were engaged by them through its sub-contractors and they were mostly residing at the Sarai Kale Khan camp. However, after the imposition of curfew and restrictions on April 19 by the DDMA owing to COVID-19, a substantial number of workers had left the work, but those who remained expressed their willingness to continue, the company’s affidavit revealed. The company claimed that after April 30, there has been no ferrying of workers from any camp to the site, as arrangements were made for their accommodation at the site itself. The company revealed that approximately 280 workers are now working at the site, who have all been accommodated at the site itself.
The company contended that suspension of work will have huge adverse effect on the workers themselves, and many “cascading” effects, without elaborating. There are several excavated and undulated areas on the site, which needs to be kept in operation on daily basis, otherwise dirty water especially during the pre-monsoon season may get stagnated and such stagnation may cause dengue, malaria, typhoid and variants of such harmful diseases, it claimed.
The Centre sought the dismissal of the petition as para 8 of DDMA order dated April 19, permitted construction activities where labourers are residing on-site.
The Centre alleged that the petitioners did not come to the court with clean hands because they not only suppressed the facts, but rushed to the Supreme Court to advance the hearing before the Delhi high court, without disclosing the reasons for approaching the court belatedly, and selectively, leaving out other projects where similar construction activities are going on.
The petitioners, in their reply to the Centre’s affidavit, questioned its silence on the details of on-site accommodation for workers, such as the date of its establishment, its location, its capacity, total number of tents, number of people residing in one tent etc. “In the absence of such material particulars, the bald averment that on-site accommodation facilities allegedly exist ‘as of now’ is liable to be rejected,” they said.
The petitioners questioned the non-disclosure of data relating to extent of infection till April 30 among the staff manning the buses, and the results of RT-PCR tests of workers, bus drivers and conductors/helpers. Number of buses and passengers for which permission was sought and details of number of police personnel on duty at the site were not placed on record, the petitioners complained.
The petitioners claimed that if the workers continued to be transported till April 30 in reduced number of buses, it increased the risk of infection, and breached their right to health and life. They referred to a report published in Indian Express which revealed that workers at the site had been issued e-passes, and one of them stated that they travelled to work and back home in a rented two-wheeler. It shows that the DDMA’s orders continued to be violated even after May 1, they alleged.
The petitioners asked if 250 of the 400 workers volunteered to stay at site, why permission was sought for movement of as many as 180 vehicles as reported by the media. They alleged that the Centre suppressed pertinent facts regarding the list of workers and the number of buses, used to ferry them till April 30. They questioned the non-disclosure of correspondence between the company and the Central Public Works Department (CPWD) and annexures to permission dated April 19 granted by the Delhi government.
More important, the petitioners discovered a glaring discrepancy in the assertions made by the Centre and the company in their May 10 and 11 affidavits respectively. While the Centre stated that all workers engaged were being accommodated on site, the company submitted that (a) the workers were being ferried during the period from April 19 to April 30 and (b) that initially only a capacity to accommodate approximately 250 workers was created which was later enhanced to accommodate more workers.
The petitioners were dissatisfied with the company’s affidavit for not providing any information on the arrangements made for other staff including supervisory personnel, guards, drivers, cooks etc. The company was silent on the number of positive cases at the on-site accommodation, how the positive cases are being isolated, the location of the quarantine centres/isolation camps and treatment of positive cases, details of on-site doctors, the hospital and labs with whom tie-ups are made etc.
The petitioners found that the insurance policy placed on record is of May 5, 2021 and it covers only hospitalisation. The company’s affidavit is bereft of any details on insurance cover prior to May 5, and it specifically states that it does not provide quarantine allowance.
The petitioners revealed that the company failed to give any facts and figures as on date relating to outstanding wages to be paid to the labourers, and how it would ensure that the sub-contractor makes payment to their workers and labourers. They inferred from the company’s affidavit that it was not supervising the sub-contractors adequately to ensure regular and optimum payment of wages.
The petitioners, in their reply, termed the allegations against them for targeting one construction project as ad hominem, and therefore unwarranted, but aimed to divert attention from public health issues and rampant illegalities highlighted in the petition. The petitioners, as if to challenge the respondents, asked the bench to consider taking suo motu cognisance of all such projects (barring the hospital) as disclosed by and in the knowledge of the Centre, the CPWD and the Delhi government and issue notice to them.
The petitioners maintained that completing the construction work with a delay of a few weeks/days would certainly not prejudice any person/party. In any case, the protection of lives and health of individuals ought to and must be prioritised over meeting a contractual deadline for project, they asserted. The Centre did not justify how the project is of an “essential” nature and is of “service” to the general public, they averred.
The petitioners told the bench that the on-site arrangements have been made after they filed the petition, and that the Centre did not dispute the media reports relied upon by them. “The silence of the Union of India in respect of these reports speaks volumes,” their reply affidavit said.
The affidavit of the company, on the other hand, confirmed that the movement pass dated April 19 was issued in violation of the order of the DDMA which specifically allowed construction activity only where on-site accommodation of workers had been provided for. There is no basis to claim a contractual construction as an essential service when Delhi is facing an unprecedented breakdown of healthcare system and lives are still being lost daily, the petitioners claimed.
They questioned the Centre’s claim that everything concerning the project is in the public domain. They termed the Centre’s claim that they failed to verify the facts as bogus, as in any case, they could not be expected to do so by violating the curfew, and the security restrictions at the site.
Besides, they termed the Centre’s pleadings with regard to medical facilities available at the site as unsubstantiated, inconceivable and contrary to the record. There are no details of the available facilities, the doctor to patient ratio, etc., they alleged. While the media reports referred to ferrying of workers from Nizamuddin, Kirti Nagar and Karol Bagh (areas in Delhi), the Centre’s affidavit only mentioned that no workers were being brought from Sarai Kale Khan. The petitioners found this part of the affidavit misleading.
The petitioners explained that there was credible material available publicly in the media regarding work being carried out in the Central Vista Avenue Redevelopment Project in violation of guidelines of the DDMA; therefore, they challenged the construction work in the present project only.
The fact that they approached the Supreme Court to expedite the hearing before the Delhi high court, which adjourned the case for nearly a week to May 17 only underlines their concern with the current public health crisis, they suggested.
The petitioners termed the allegations in the Centre’s affidavit questioning their bona fides and motives as “mere bald rhetoric without any basis”.
Luthra told the bench that the petitioners were afraid that their dereliction was going to lead to an Auschwitz on the gardens of Delhi. Central Vista should now be called Central fortress of death, he said.
Mehta, however, turned the tables on the petitioners, saying vanity is in the minds of those who want to halt the project. He objected to the use of the word ‘Auschwitz’ to compare the accommodation arrangements for the workers. The petitioners are entitled to express venom in their criticism of the project, but should not use the august forum of the high court for the same, he said.
Luthra accused the Centre of shooting the messenger and ignoring the message. “Few of us are untouched by the pandemic. Health and life of workers, security personnel etc. is important. Deadline of November 30 for launching the project may be postponed to some other date. Is the deadline so sacrosanct that all of Articles 19 and 21 should be thrown away?” he asked the bench.
Shapoorji Pallonji group, which emerged as the lowest bidder for the redevelopment project, was represented by senior advocate, and former Additional Solicitor General, Maninder Singh. “Has this pandemic jolted us so much that we forget the importance of the Republic Day function?” he asked. He appeared to suggest that as the Rajpath area has already been dug and if it is not completed before monsoon hits, water will fill up and there will be another pandemic of dengue etc. and therefore, the bench should treat the project as fait accompli.
Whatever the decision of the bench, the case is likely to face another round of litigation at the Supreme Court. The petitioners’ objective to place the facts in the public domain for scrutiny by the future historians will largely be achieved, even if they lose the current legal battle. Ultimately, if the Centre gets the go-ahead from the courts, it will only appear as a Pyrrhic victory.