JUDGMENT
Vikramajit Sen, J.
1.This suit concerns the National Police Memorial located in a large public park at the Teen Murti End of Shantipath in an area that has come to be commonly known as the Diplomatic Enclave of New Delhi. Most of the embassies are located on either side of this road. The entire area is remarkable not only because of the foreign missions but also because of its vast and open expanses of greenery. It may well be an ideal location for a national memorial provided it gells and not jars merges and does not mawith its environs. There is a perception that our police force is greatly ignored when compared to the armed forces, in terms of their respective working and living conditions. Police officers have to work long and unregulated hours, and their housing is dismal when compared with other government servants. With the egregious escalation in terrorist activities within our country, the casualties in the police and armed forces are largely comparable. Therefore, none can legitimately oppose the recognition of the invaluable services of the police to the country. However, the building of a national memorial for police personnel killed in the line of duty could be viewed as a cosmetic recognition of their services, unless and until it is combined with a concerted effort to improve their lot. I do not see the present legal action as an onslaught upon the decision to establish a police memorial, and neither the pleadings nor the arguments of the Plaintiffs can be perceived as such. The Plaintiffs may be sen to have no personal interest in the outcome of the suit, if national or societal interests are considered to be altogether different to this controversy; one can only hope that in the very near future all these interests would be seen as coalescing with each other. The litigation should not be addressed as adversarial, as learned Senior counsel for the Plaintiffs has been at pains to repeat. The plaint has received the support of very high dignatories, retired senior bureaucrats, artists, architects engineers and citizens. It was therefore to be expected that the Respondent’s may have thought it expedient to reappraise the nature of the memorial, even if not its location.
2. I shall immediately deal with the technical objections raised by the Respondents firstly to the effect that the plaint must be rejected as the Plaintiffs have failed to disclose particulars of the civil rights of the plaintiffs which have been violated by the Respondents. Learned counsel for the contesting defendants had approbated and reprobated on whether the Plaintiffs should be taken as busy-bodies, since some of them were participants in the decision making process itself. It had also been contended that the Plaintiffs are giving vent to their spleens; and their egos have been ruffled, for the reason that their opinions have not been accepted and implemented. Is it essential that the plaint must disclose a violation of the personal civil rights of the Plaintiffs, as counsel for the Defendant’s contend? I find no reason or requirement to locate any watershed between a civil suit and a writ petition, and to favor the opinion that the Court can consider public issues in the latter domain only. A quarter century ago Justice Krishna Iyer had envisioned the harbinger of what has now become an integral part of judicial process, namely, Public Interest Litigation (PIL).The following extract from Maharaj Singh v. State of Uttar Pradesh and Ors., is worthy of reproduction. It galvanizes me into adopting this approach and arriving at the prima facie view that the plaintiffs adequately and sufficiently possess locus standing even in this civil suit, in contradistinction to a civil writ. 19. Aside from this stand, it is easy to take the view that the first plaintiff is ‘a person aggrieved’ and has the competence to carry an appeal against the dismissal of the suit. Of course, he who has a proprietary right, which has been or is threatene to be violated, is surely an ‘aggrieved person’. A legal injury creates a remedial right in the injured person. But the right to a remedy apart, a larger circle of persons can move the court for the protection of defense or enforcement of a civil right or to ward off or claim compensation for a civil wrong, even if they are not proprietarily or personally linked with the cause of action. The nexus between the list and the plaintiff need not necessarily be personal, although it has to be more than a way arer’s allergy to an unpalatable episode. ‘A person aggrieved’ is an expression which has expanded with the larger urgencies and felt necessities of our times. Processual jurisprudence is not too jejune to respond to societal changes and challenges: Law necessarily has to carry within it the impress of the past traditions, the capacity to respond to the needs of the present and enough resilience to cope with the demands of the future. A code of law, especially in the social fields, is not a document for fastidious dialectics; properly drafted and rightly implemented it can be the means of the ordering of the life of a people. 20. The classical concept of a ‘person aggrieved’ is delineated in Re Sidebotham exp. Sidebotham. But the amplitude of ‘legal grievance’ has broadened with social compulsions. The State undertakes today activities whose beneficiaries may be the general community even though the legal right to the undertaking may not vest in the community. The State starts welfare projects whose effective implementation may call for collective action from the protected group or any member of them. New movements like cosumerism, new people’s organs like harijan or mahila samajams or labour unions, new protective institutions like legal aid societies operate on the socio-legal plane, not to beat ‘their golden wings in the void’ but to intervene on behalf of the weaker c asses. Such burgeoning of collective social action has, in turn, generated gradual processual adaptations. Test suits, class actions and representative litigation are the beginning and the horizon is expanding, with persons and organisations not personal y injured but vicariously concerned being entitled to invoke the jurisdiction of the court for redressal of actual or imminent wrongs. 21. In this wider perspective, who is a ‘person aggrieved’? Dabholkar gives the updated answer: The test is whether the words ‘person aggrieved’ include ‘a person who has a genuine grievance because an order has been made which prejudicially affects his interests’. American jurisprudence has recognised, for instance, the expanding importance of consumer protection in the economic system and permitted consumer organisatoins to initiate or intervene in actions, although by the narrow rule of ‘locus standi’, such a course could not have been justified (see p. 807 – New York University Law Review, Vol. 46, 1971). In fact, citizen organisations have recently been campaigning for using legal actions for protection of community interest, broadening the scope of ‘standing in legal proceedings (see p.403 – Boston University Law Review, Vol. 51, 1971). In the well-known case of Attorney-General of the Gambia v. Peirre Sarr N.’Jie Lord Denning observed about the Attorney-General’s standing thus: ….. The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest. 22. Where a wrong against community interest is done, ‘no locus standi’ will not always be a plea to non-suit an interested public body chasing the wrongdoer in court. In the case before us, Government, in the spacious sense of ‘person aggrieved’ is comfortably placed. Its right of resumption from the Gaon Sabha, meant to be exercised in public interest, will be seriously jeopardised if the estate slips into the hands of a trespasser. The estate belonged to the State, is vested in the Gaon Sabha for com unity benefit, is controlled by the State through directions to the Land Management Committee and is liable to be divested without ado any time. The wholesome object of the legislature of cautiously decentralised vesting of estates in local self-governin units will be frustrated, if the State, the watchdog of the whole project, is to be a helpless spectator of its purposeful bounty being wasted or lost. It must act, out of fidelity to the goal of the statute and the continuing duty to salvage public property for public use. Long argument is otiose to make out a legal grievance in such a situation of peril and, after all the star of processual actions pro bono publico has to be on the ascendant in a society where supineness must be substituted by activis if the dynamic rule of law is to fulfill itself. ‘Locus Standi’ has a larger ambit in current legal semantics than the accepted, individualistic jurisprudence of old. The legal dogmas of the quiet past are no longer adequate to assail the social injustics of the stormy present. Therefore, the State, in the present case, is entitled to appeal under Section 96 of the Code of Civil Procedure.
3. The second technical objection that has been raised by Mr. Mehra, learned counsel for Defendants No.1, 2 and 5 is that Order I Rule 8 of the Civil Procedure Code has not been complied with. This provision enables one person to sue or defend on behalf of all persons having the same interests in the suit, but with the leave of the Court. This is an enabling provision and not a prohibiting one. In civil actions which partake of a public character there is no legal impediment in a few person joining together as plaintiffs/defendants; otherwise such actions would become impossible to initiate unless each and every protagonist or sympathiser is joined as a signatory to the plaint. In an issue such as the present one, so far as the public is concerned there may be sections of it which whole heartedly agree with or are indifferent to the plaintiffs’ opinion, and others who disagree altogether. The rigours of Order I, Rule 8 would be attracted if the plaintiffs contend that they represent each and every person having the same interest. The intent and purpose of the provision, inter alia, is to eradicate multiplicity of proceedings and conflicting decisions on the same subject matter. In the present instance this is not so since there is a patent divide between detractors who find almost all aspects of the memorial to be unacceptable if not illegal, and protagonists who desire the memorial to be completed exactly in its present conception. The objection as to misjoinder of parties is thus without me it.
4. Thirdly, Mr. Mehra has also stressed that the Plaintiffs are not entitled to injunctory relief since they have approached the Court with inordinate delay, and should be seen as having acquiesced in the entire project, as envisaged by Section 41(g) of the Specific Relief Act. The proposal for this National Memorial, in its frequently altered form was approved on 28.2.2003 in favor Meetings held in as may months with a speed and expedition that is seldom encountered in governmental functioning. In esponse, Mr. V.P. Singh, learned Senior Counsel has contended that the Plaintiffs had submitted memorandums and representations to the Ministry and did not therefore rush to the Court until it was obvious that no hearing or redressal was forthcoming from he concerned Defendants. Thereupon, the suit has been immediately filed. Keeping the national and public characteristics of the project in perspective, and since no mala fides in the sense of intentional delay or personal benefit or advantage can be im uted to the Plaintiffs, I cannot read acquiescence into the conduct of the Plaintiffs. On the contrary, where national projects/monuments of public and artistic nature are under consideration it would be a salutary practice to give it wide publicity eli iting and actively inviting the response/participation of the citizenry, instead of rushing it through with needless haste. Mr. Singh has submitted that this is the worldwide practice and I find no reason to disagree. Prima facie, the involvement from conception to construction was only that of the C.P.W.D. There was no effort to maintain continuity so far as the professional advisors were concerned who were the experts, and not the senior government officers.
5. Fourthly, it has also been contended that there is a perceptible departure in the arguments addressed on behalf of the Plaintiffs at the time when the ex parte ad interim injunction was granted in that it is now being strenuously canvassed that the hei ght of the structure had been increased by as much as 1/3rd of its initial height on the intervention and behest of the Minister concerned, who was desirous that it should be higher than India Gate and rivaling the Rashtrapati Bhawan; that it was also co trary to the Master Plan and the extant Rules and Regulations. Mr. Singh has argued that rigours of procedural law ought not to act as an obstacle where the parties are well aware of the rival cases. Since the suit is at its preliminary stages, I find su stance in the following observations of the Hon’ble Supreme Court in Bhagwati Prasad v. Chandramaul, which leaves little to be argued on the question of whether it would be open to the Plaintiffs to venture into the trial with the intent on of proving that rapid changes have been carried out to the proposal, entirely on the intervention and insistence of the Minister concerned. 9. There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to su tain the same claim on a ground which is entirely new. The same principle was laid down by this Court in Sheodhari Rai v. Suraj Prasad Singh, . In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the d fendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not mad in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led abut it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsist nt with the ground made by it in its pleadings. 10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not speci ically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relyi g upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court h s to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial a d one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead ev dence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
6. Paragraph 23 of the Plaint is reproduced below, since a perusal thereof will confirm that it lays the foundation for all the objections argued before me to the Memorial as it is presently envisaged:
23. The plaintiffs state that the defendant No.4 has failed to act upon and comply with guidelines laid down in the Design Criteria for Delhi Urban Art Commission which provides as under: – The location and orientation of the building should enhance the quality of the urban fabric. – Individual architectural objects collectively become the image of a place and it is necessary to bear in the mind the image of a place while designing a structure in a complex urban scenario like Delhi. – The structure should respect the grain of the area and should synchronise with the texture of the surroundings. – New structure in an urban setting should be viewed as a link with existing connections such as physical (pedestrian and vehicular), visual, architectural and historical connections. – The new structure should acknowledge historical context of the areas in its proximity. Historical references range from monuments to special developments zones built in certain periods such as Lutyens Bungalow zone. – While deciding an individual expression of the structure, it is important to consider the collective architectural environment within which the designed structure is located. – In an urban heritage zone the height of the building should be planned in a manner sensitive to the character of the contextual architecture, e.g.,
(a) The building must suit its specific urban heritage context.
(b) The urban heritage must be given due sensitivity. – It is prudent to design buildings that suite the natural context rather than to modify the context to suite the building. Whether the building respect the ecology of the site. – While examining proposals, which are in the vicinity of the heritage structure, the DUAC must ensure that bye-laws for the conservation of the structures are complied with and the commission is cautious while considering proposals falling in the Lutye s Bungalow zone due to its unique characteristic.
7. Considerable arguments have been generated on the question of whether the area where the National Police Memorial is located falls within the Lutyens Bungalow Zone or the Bungalow Zone as envisaged in the Master Plan. Mr. Mehra had rightly contended t hat no appreciable difference would result if the Lutyens Bungalow Zone is treated as synonymous to the Bungalow Zone. It is also true that learned counsel for the Plaintiff has pleaded in the Plaint and emphasised in its early arguments that the Memoria was located in the Lutyens Bungalow Zone, but other points had also been raised both at the time of arguments as well as in the Plaint. Building activities are stringently regulated in the Lutyens Bungalow Zone, but it is also regulated in the Bungalow one.
8. In its Written Statement the Delhi Development Authority has pleaded that ”the site under reference does not fall under the Luytens’ Bungalow Zone as defined vide MOUD guidelines dated 8.2.88. As per M.P.D-2001 and approved ZDP of Zone `D’ the a read under reference falls under Recreational land use (District Park). As per MPD-2001 National Memorial is permitted in District Park. The adjoining area of the site under reference falls under the Foreign Mission Land use (RF) where the height as p r MPD-2001 is restricted to 14 mts.”. The submission of the DDA is predicated on the Master Plan itself which, in respect of Foreign Mission (006) specifically mentions the maximum height to be 14 mts. A perusal of the Master Plan for Delhi, so far as the permission for the use of sundry areas is concerned, in respect of District Park (P-II) a National Memorial no doubt find mention. A National Memorial has been defined as ”premises having a dome, Samadhi or memorial dedicated to an important ersonality including all related facilities for visitors”. It is certainly arguable that the proposed use may not strictly fall within the afore-mentioned definition. Reverting back to permissive activities in `District Park’ while a restaurant may e allowed in such areas, it must be a single storied structure and its height should not exceed four metres and must harmonise with the surroundings. It is, therefore, not sufficient to contend, as has been done by learned counsel for the conte ting Defendants, that since no rules or guidelines specifically dealing with a structure such as is intended to be installed in the park are available, there are no constraints whatsoever. These restrictions/constraints can be culled out from cogna e provisions. A prima facie case, therefore, exists that the proposed development, so far as the installation of the structure almost 45 metres in height would not be inconsonance with what is envisaged in the Master Plan. A civil right would, herefore, stand infringed if the Plaintiffs succeed in eventually proving their case, a favorable foundation for which has already been laid. Therefore, as presently advised, the entire controversy is at large and the Plaintiffs cannot be seen s having misled the Court, thereby dis-entitling itself to discretionary relief. I find no foundation for holding the view that the Plaintiffs have come to the Court with unclean hands.
9. The fulcrum of consideration is indubitably the height of the structure which is to be installed in the National Police Memorial. I must immediately mention that on 16.9.2004 it had been clarified that – ”the Defendants may carry on work towards comple tion of the basement and installation of drainage arrangements and pump sets, completion of irrigation for horticulture; drainage arrangement of utility building, painting and protection of existing steel work and carrying out of horticulture activities n the area”. The Plaintiffs have not objected to these Orders and, in essence, invited that they be passed. Therefore, the present location of the Memorial is not under challenge any longer. The opposition remains as to the artistic attributes of the s ructure which is to be installed therein, and most violently in respect of its exceptional height.
10. Mr. Singh has submitted that if Memorials across the globe are analysed and surveyed it will be immediately obvious that the primary effort is that there should be no disruption or discord caused to the landscape. He has eloquently mentioned that the War Memorial in Washington, D.C. has no large artificial structures. This enhances its aesthetics and garners public respect. So far as aesthetics are concerned this requires subjectivity. It is well nigh impossible for the Court to arrive at a conclusio that the artistic vision of one person is better or worse than that of another. The Court must assiduously remain objective. Therefore, it is the height and not the artistic contents of the proposed structure which must remain the centre of jural consid ration.
11. On behalf of the Plaintiffs it had been contended that it is impermissible to install a structure which is almost 45 metres in height. Prima facie, a considerable degree of arbitrariness and adjustment has occurred since the initial height was 30 met res with no discussion why the 14 meter criteria should have been departed from. Thereafter it was increased to over 47 metres and then reduced to 44.5. metres to come within the prescription imposed by the Ministry of Civil Aviation. One thing is cert in; that the present height bears no connection with the structure, as its height has been altered in a yo-yo fashion.
12. The Minutes of the Meeting of the Delhi Urban Art Commission (DUAC) have been relied on by both adversaries which are re-produced for facility of reference; with underling added. DRAFT MINUTES OF THE 1036TH MEETING OF THE DELHI URBAN ART COMMISSION HELD ON SEPTEMBER 26, 2002
PRESENT:
1. Dr. J.P. Singh …. Chairman 2.Shri H.K. Yadav …. Member 3.Ms. Charu Mittal …. Member 4.Shri Rajesh Kumar …. Secretary 5.Shri Vinod Kumar ….Assistant Secretary (Tech.) 6.Shri Amit Mukherji ….Administrative Officer
ADVISORS:
7. Shri B.M. Sharma 8.Shri R.C. Sharma 9.Shri I.D. Rastogi
Item No.5. Building plans in respect of National Police Memorial at Chankayapuri. (Conceptual stage) The proposal submitted directly by CPWD was considered. The Commission observed that the site of the proposal is at an important location in New Delhi. With the height proposed the scheme will dominate the whole area. The Commissioner feel that the overa ll area should be landscaped in a professional manner. The landscaping should dominate the various requirements proposed. The Commission found the concept of the proposal acceptable. Item No.19. Plans in respect of National Police Memorial at Chankyapuri. (Conceptual stage).
The proposal had been forwarded by the NDMC with the following comments:- 1.The proposal is for Police memorial on piece of land m.a. 6.1 acres shown as ”District Park” in the Zonal Development Plan Zone D-1 and 1.42 acres of round about in Chankyapuri. 2.As per allotment letter dated 18.01.2002 of L and DO, the National Police Memorial in the form of a ‘Vista’ is to be constructed on land m.a. 1.42 acres of round about whereas the proposed constn. i.e. toilet block, security block and memorial about 30 m. high, is on the adjoining 6.12 acres of land. The development norms for police memorial are not available in MPD-2001. The advice of the Min. of U.D. has been sought regarding land use and applicability of norms vide this office letter dtd. 13.11.2002 and th same is yet to be received. 3.Party has submitted the copy of Commission’s conceptual approval vide letter dtd. 29.10.2002. The proposal at conceptual stage had been considered in the commission meeting held on 26.09.2002 and the following observations were made : The proposal submitted directly by CPWD was considered. The Commission observed that the site of the proposal is at an important location in New Delhi. With the height proposed the scheme will dominate the whole area. The Commission feel that the overall area should be landscaped in a professional manner. The landscaping should dominate the various requirements proposed. The Commission found the concept of the proposal acceptable. The Scheme was now examined in view of the above background. Apprehensions were expressed with regard to the adverse impact of the proposal on the existing axis of Shanti Path. Architect ensured the Commission that this aspect has been taken care and the proposal will not have any adverse impact on the existing axis. The proposal was approved by the Commission. The Commission decided that the action in the matter be taken without awaiting formal confirmation of the minutes of the meeting.
MINUTES OF THE 1045TH MEETING OF THE DELHI URBAN ART COMMISSION HELD ON JANUARY 21, 2003
PRESENT:
1. Shri P.K. Pradhan …. Member(In Chair) 2.Shri H.K. Yadav …. Member 3.Ms. Charu Mittal …. Member 4.Shri Dina Nath …. Secretary 5.Shri Vinod Kumar ….Assistant Secretary (Tech.) 6.Shri Amit Mukherji ….Administrative Officer
ADVISORS:
7. Shri P.K. Chowdhury 8 Shri I.D. Rustogi
Item No.23. Revised plans in respect of National Police Memorial at Chanakyapuri. The Above mentioned proposal had been forwarded by the NDMC for the consideration of the Commission on 16.01.2003 with the following additional comments:- 1.Plans were received earlier vide scheme no.3890 dated 07.10.2002 and approved by the Chairperson vide order no. 4.12.2002. Subject to some condition and are yet to be released. 2.In this revised proposal, the height of memorial structure has been raised from 31.50 mt. to 47.22 mt. 3.Area of toilet block and security block has been reduced from 114.91 sq. mt. to 80 sq. mt. and 86.65 sq. mt. respectively. Earlier the proposal was approved in Commissions meeting held on December 2, 2002. It was found that in the revised scheme forwarded by NDMC, the height as well as the base size of the memorial were proposed to be increased. The earlier proposed height of 31.5 mts. was to be increased to 47.22 mts. During the meeting the Commission was informed that the maximum height permitted by civil aviation was 41.68 mtr. The Commission observed that in the plans received from NDMC and the model the height achieved was 47.22 mts. and the proposal in any case need to be revised as per the restrict on by civil aviation. During Commission’s meeting a letter signed by Shri Sumit Ghosh, Advisor, Prof. A.G.K. Menon, Advisor and Shri S.K. Das, Advisor was considered by the Commission. The issues raised and the apprehensions expressed by the Advisors in their letter were deli berated upon and also discussed with the project architect. The Commission observed that it has already approved the proposal with a height of 31.5 mts. and there should be convincing justifications for further increasing the height. The architects were dvised to prepare an assimilation study and the study of surrounding areas to justify the increase in the height and base of the memorial proposal now in view of height restriction imposed by civil aviation authority.
DRAFT MINUTES OF THE 1046TH MEETING OF THE DELHI URBAN ART COMMISSION HELD ON FEBRUARY 10, 2003
PRESENT:
1.Shri P.K. Hota …Chairman, DUAC and Addl. Secretary (UD) 2.Shri P.K. Pradhan …. Member, DUAC and Joint Secretary(DL) 3.Shri H.K. Yadav …. Special Invitee 4.Shri Dina Nath …. Secretary 5.Shri Vinod Kumar …. Assistant Secretary (Tech.) 6.Shri Amit Mukherji …. Administrative Officer
ADVISORS: 7.Shri Santosh Auluck 8.Shri Satish Grover
ALSO PRESENT:
9.Shri Vijay Risbud Commissioner (Planning), DDA
10.Shri A.K. Gupta Director(Bldg.), DDA
11.Shri Vinod Sakle Jt. Director(Bldg.), DDA
12. Shri Tribhuwan Singh Chief Architect, NDMC
Addl. Item No.1: Revised plans in respect of National Police Memorial at Chanakyapuri. The proposal had last been considered in Commission’s meeting held on January 21, 2003 and the following observations were made: The Above mentioned proposal had been forwarded by the NDMC for the consideration of the Commission on 16.01.2003 with the following additional comments:- 1.Plans were received earlier vide scheme no.3890 dated 07.10.2002 and approved by the Chairperson vide order no. 4.12.2002. Subject to some condition and are yet to be released. 2.In this revised proposal, the height of memorial structure has been raised from 31.50 mt. to 47.22 mt. 3.Area of toilet block and security block has been reduced from 114.91 sq. mt. to 80 sq. mt. and 86.65 sq. mt. respectively.
Earlier the proposal was approved in Commissions meeting held on December 2, 2002. It was found that in the revised scheme forwarded by NDMC, the height as well as the base size of the memorial were proposed to be increased. The earlier proposed height of 31.5 mts. was to be increased to 47.22 mts. During the meeting the Commission was informed that the maximum height permitted by civil aviation was 41.68 mtr. The Commission observed that in the plans received from NDMC and the model the height achieved was 47.22 mts. and the proposal in any case need to be revised as per the restrict on by civil aviation. During Commission’s meeting a letter signed by Shri Sumit Ghosh, Advisor, Prof. A.G.K. Menon, Advisor and Shri S.K. Das, Advisor was considered by the Commission. The issues raised and the apprehensions expressed by the Advisors in their letter were deli berated upon and also discussed with the project architect. The Commission observed that it has already approved the proposal with a height of 31.5 mts. The architects were advised to prepare an assimilation study and the study of surrounding areas to ju tify the increase in the height and base of the memorial proposal now in view of height restriction imposed by civil aviation authority. In response the architects had now submitted the assimilation study of the area so as to justify the increase in the height etc. The architects had also submitted the revised drawings with the height of memorial structure as 43 mts. above 1.5 mt. high pl atform i.e. the total height of 44.5 mts. Further a copy of a letter of Ministry of civil aviation dated 06.02.03 had also been submitted wherein the civil aviation has permitted the height up to 45 mts AGL. The proposal was examined with the help of the simulation study submitted and discussed by the architects. The revised proposal was considered acceptable and was approved by the Commission with the observation that an artist of repute may be associated w ith the detailing of the scheme.
13. On behalf of the Plaintiffs it has been contended that the initial proposal was that the Memorial should be about 30 metres in height and that the landscaping should dominate the various requirements. Apprehensions had also been expressed at the first Meeting itself that the existing access of Shanti Path should not be adversely impacted. There can be no gainsaying that the visitors to Delhi usually access its centre through Shanti Path; The Dome of the Rashtrapati Bhawan is visible from some parts a though not from the entire stretch of Shanti Path. It is also conceded by Mr. Mehra that the present proposal for the structure would make it the tallest Memorial in the post-independence era. It has also been argued that the Memorial cannot be compared ith Rajghat which is a Samadhi but I will assume that he did not intend any disparagement of the latter. Perhaps the definition of national memorial in the Master Plan has been glossed over. The President is the Head of the country and must be accorded reeminence, just as should the Father of the Nation. Accordingly, it is of little importance to discuss whether the Memorial is less by few metres than the Dome of the Rashtrapathi Bhawan; there should be no comparison between the two lest national prid be affronted.
14. What I find significant is that the structure’s height has been increased from 30 metres to almost 45 metres. It, prima facie, supports the Plaintiff’s case that this was done at the instance and behest, if not at the whim, of the Minister concerned. Even so far as 30 metres is concerned the DUAC itself had recorded its concern, if not hesitation, at its very first Meeting. To meet with aviation constraints the extended height has been arbitrarily lowered to fall within the permissible limits. The mphasis has, therefore, changed from laying out an artistic memorial to increasing (and that too not marginally) to justifying the extraordinary height of the structure. It is also remarkable that the membership of the DUAC changed from Meeting to Meeti g. Legally there may be no infraction of the law but surely continuity is to be preferred. I shall also assume that there was no mala fides in repeatedly changing the architects/engineers/artists. What is of importance is that the Chairman and the Member are the bureaucrats who have not been chosen for their artistic refinements. The decision should not be seen as that of the Ministry or the C.P.W.D. or the Minister but should be of the DUAC, which would necessarily require active and controlling/pursu sive participation of artists rather than bureaucrats. There is weight in the contention of Mr. Singh, learned Senior Counsel for the Plaintiffs that the tenor of Section 4 of the DUAC Act has been violated since the qualifications for its Members are to readily and automatically possessed by bureaucrats. It states in terms that the appointment to the Commission shall be from amongst persons who, in the opinion of the Central Government, have sensibility and interest in the plastic and visual ar s and urban environment, or possess special knowledge or practical experience in respect of architecture or art. It may eventually be shown that the two worthy bureaucrats who are the permanent members of the Commission may fulfilll this criteria. t present there is no material to outrightly dispel and reject the Plaintiffs asseveration. The manner in which the deliberations were held in the four Meetings leads me to the prima facie conclusion that the accent or demands of urban art was missi g from the Commission. The Commission may have to comply with quorum requirements but the emphasis in its workings should have been laid on artistic contents and features. This can hardly be achieved when there is no continuity so far as the Advisors ar concerned and the membership is predominated by government officials.
15.Prima facie, since the Map of the area has not been initially filed with the Plaint, I will assume that the Map subsequently filed by the contesting Defendants is correct. However, assuming that no definite Rules and Regulations apply vis-a-vis the he ight of structures to be installed in such parks, since the Memorial is sandwiched between the Bungalow Zone and the Diplomatic Enclave, it must merge with the neighborhood. Great store has been laid on the fact that Vishwa Yuva Kendra is close to the h ight of the structure. It is well settled that a previous wrong does not justify the commission of another, as has been repeatedly emphasised by the Hon’ble Supreme Court while considering Article 14 of the Constitution. While concern has been expressed even on the initial proposal of the height of 30 mts. the greatly increased height has no sanction in law or regulations. Prima facie it is contrary to the Master Plan of Delhi, which has statutory force, violation of which is amenable to writ jurisdict on and would also constitute a civil wrong which can be rendered in a civil suit.
16. The Project, as it presently stands, is not in harmony with the Buch Committee Report which pertains as much to the Bungalow Zone as to the Lutyens Bungalow Zone. The contesting Defendants have been unable to disclose that the structure at its propose d height falls within the Regulatory parameters and it is not enough to contend that there are no regulations in force when a prima facie case has been shown that the structure would disrupt the symmetry of the area in question and would be much above th tree-line and the 14 metres prescription that are in force in the contiguous areas.
17. I am of the view that a prima facie case has been disclosed. The increase in the height of the structure from 30 metres to 45 metres could have been the result of a fiat of the Minister concerned. It is only to be expected that all other Ministries w ould grant their approval, post haste. All throughout, art and aesthetics has been made subservient to other factors especially height.
18. Mr. Mehra has vociferously submitted that the balance of convenience is not in favor of the Plaintiffs. 95 per cent of the Memorial has been completed. The fact remains that the remaining 5 per cent is what is causing concern not only with the Plaint iffs but a large section of society. The landscaping has not been interdicted and must have been completed by now. Nobody objects to that, and the opposition to the location of the Police Memorial as been almost entirely withdrawn. There may be two view whether the proposed structure has artistic qualities or not; even that is not at the core of objection. If the Project is permitted to be completed and its height extends up to almost 45 metres, it would be adding insult to the injury. There is no sati factory answer of why the structure is in excess of 14 metres; and why it has been drastically and whimsically increased from the initial 30 metres to almost 45 metres. The completion of the Project and the removal of derricks (which are presently well i excess of 45 metres) certainly does not answer or assuage the concerns of the Petitioners and a section of the public. It has also been contended that Rs.13 crores have already been spent and that there is a demand for damages, since the Project has ex ended beyond the term that was envisaged in the contract. It would be a dangerous precedent for such arguments to come into play where a national memorial is in question. National pride cannot be measured in terms of money. This is a fit case, in my view for granting leave under sub-section (2) to institute the suit without serving the notice required under sub-section (1) of Section 80 of the CPC.
19. For these manifold and myriad reasons interim Orders dated 22.7.2004, as explained and clarified in the Order dated 16.9.2004, are made absolute. IA No.4496/2004 is allowed. IA No.5354/2004 is accordingly dismissed.
20. CS(OS) No.766/2004 Renotify on 3.2.2005.