{"id":248467,"date":"1989-10-24T00:00:00","date_gmt":"1989-10-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-d-m-c-vs-statesman-ltd-on-24-october-1989"},"modified":"2017-03-29T01:28:01","modified_gmt":"2017-03-28T19:58:01","slug":"n-d-m-c-vs-statesman-ltd-on-24-october-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-d-m-c-vs-statesman-ltd-on-24-october-1989","title":{"rendered":"N.D.M.C vs Statesman Ltd on 24 October, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N.D.M.C vs Statesman Ltd on 24 October, 1989<\/div>\n
Equivalent citations: 1990 AIR 383, 1989 SCR Supl. (1) 591<\/div>\n
Author: M Venkatachalliah<\/div>\n
Bench: Venkatachalliah, M.N. (J)<\/div>\n
           PETITIONER:\nN.D.M.C.\n\n\tVs.\n\nRESPONDENT:\nSTATESMAN LTD.\n\nDATE OF JUDGMENT24\/10\/1989\n\nBENCH:\nVENKATACHALLIAH, M.N. (J)\nBENCH:\nVENKATACHALLIAH, M.N. (J)\nMISRA RANGNATH\n\nCITATION:\n 1990 AIR  383\t\t  1989 SCR  Supl. (1) 591\n 1989 SCC  Supl.  (2) 547 JT 1989 (4)\t207\n 1989 SCALE  (2)877\n\n\nACT:\nPunjab\tMunicipal Act, 1911: Sections 193(3), Building\tBye-\nLaws  for  Union Territory of Delhi,  1983:  Bye-Laws  2.27,\n16.4.8\t  and\t16.4.8.1--Fire\t Safety\t   Measures--\"Refuge\nAreas\"--Requirement  of Bye-Laws--Not inflexible--The  words\n\"in  any other manner\"--Do not envisage a totally  different\nidea of the location of \"Refuge Areas\"-Suggest some feasible\nalternative  to the technical design of the construction  of\nthe  \"Refuge Area\"--Purpose of Refuge Area explained.\n    Reduction in the extent of \"Refuge-Area\"--Permissibility\nof-Building  plan--Fire Safety Measures--Clearance given  by\nChief  Fire Officer--Whether conclusive and binding  on\t the\nCorporation-Whether  Corporation  can examine  the  question\nindependently.\n    \"External-wall\"--Provision\tintended to  promote  public\nsafety, health and well-being--Refuge Area to be provided on\nthe  \"external-wall\"--Building\tplan providing\trefuge\tarea\nabutting  into\tan  inner  vacant  space--Whether  satisfies\nrequirement.\n    National  Building\tCode of India, 1983: Part  IV-\tPre-\nscriptions  for\t \"Fire Precaution\"--Envisage  certain  broad\nminimal assurances for fire-safety--Better and more reliable\nmeasures ought not to be excluded.\n    Delhi Development Act, 1957: Section 9(2) Zonal Develop-\nment   Plan--Zone  D-1\t(Connaught  Place   Area)   Building\nPlan--Provision\t for \"Podium\/Pedestrian Walk-way'  '--Feasi-\nbility and necessity of.\n    Delhi Urban Art Commission Act, 1973: Section 12: 'Buil-\nding   operations'\/'Development\t  proposals'--Approval\t  by\nlocal  body-Reference to Urban Arts Commission for scrutiny.\n    Constitution of India, 1950: Article  136--<\/a>Appeal--Rais-\ning new issues--Supreme Court can consider if matters are of\ngeneral public importance.\n592\n\n\n\nHEADNOTE:\n    The\t respondent company obtained sanction of a  building\nplan  from  the-New Delhi Municipal Committee for  the\tcon-\nstruction of a building on a plot held by it on lease. After\nincorporating  certain changes, the respondent company\tsub-\nmitted a revised plan for sanction of the New Delhi  Munici-\npal  Committee, but the same was rejected by an order  Dated\n18.12.1987.\n    A  rectified  plan was thereafter submitted by  the\t re-\nspondent to the New Delhi Municipal Committee, for necessary\nsanction,  but\tas no orders were received,  the  respondent\nfiled  a writ petition in High Court seeking a direction  to\nthe New Delhi Municipal Committee to deal with the same\t for\ngrant of necessary sanction.\n    During  the pendency of the aforesaid  writ\t proceedings\nthe  Delhi  Urban Art Commission approved the plans  as\t re-\nquired\tunder Section 12 of the Delhi Urban  Art  Commission\nAct, 1973. The Chief Fire Officer also gave clearance to the\nbuilding plans in relation to the Fire Safety Precautions.\n    The\t High  Court allowed the Writ Petition by  an  Order\ndated 28.4.1989 holding that inspite of the clearance grant-\ned  by the Urban Art Commission and the Chief Fire  Officer,\nNew Delhi Municipal Committee's disinclination to accord the\nsanction was unjustified, and directed the New Delhi Munici-\npal  Committee to convey the formal sanction in\t respect  of\nthe building plans.\n    In\tappeal to this Court, it was contended on behalf  of\nthe New Delhi Municipal Committee, that (i) in the matter of\nfire  safety  requirements, the building plans were  not  in\naccordance with Building Bye-Laws for the Union Territory of\nDelhi,\t1983;  (ii) The clearance given by  the\t Chief\tFire\nOfficer is not binding on the New Delhi Municipal  Committee\nwhich can examine the question independently of such  clear-\nance  and (iii) the proposed building plan does not  provide\nfor  a 'Podium\"\/\"Pedestrian Walk-way\" as required under\t the\napproved Zonal Development Plan under Sec. 9(2) of the Delhi\nDevelopment Act, 1957.\n    Setting aside the High Court Order dated April 28, 1989,\nthis Court,\n    HELD:  1.  The requirements of Bye-Laws 16.4.8  arc\t not\ninflexible  and\t in appropriate cases where  the  plans\t and\ndesigns incorporate fire safety measures which, in  judgment\nof the Corporation are\n593\nconsidered  to\tprovide for the safety in a  measure  better\nthan those envisaged by the bye-laws 16.4.8 the\t Corporation\nwould not be precluded from accepting them i.e. if a  build-\ning-design  incorporate\t fire safety measures in  a  measure\npromoting  fire\t safety precautions far\t better\t than  those\nsuggested  by the Bye-laws they should not fetter the  hands\nof  the\t licencing authority to accept\tthem.  [609H;  610A,\n609C]\n    1.1 Whether the plans submitted by Respondent distribut-\ning Refuge-Area in each floor provide such a better and more\nreliable  fire safety measures is a matter for the  decision\nof the Corporation. [610A]\n    1.2 It is, of course, wise in the interests of uniformi-\nty of administration of these Bye-laws and of elimination of\npossible  complaints of' partisanship, that the\t Corporation\nshould\tinsist\tupon adherence to the  requirements  of\t the\nBye-law\t 16.4.8\t on its own strict terms. That\tshould\tnot,\nhowever,  denude  the  power of the  Corporation  to  accept\ndesigns\t which, in its judgment offer and  incorporate\tfire\nsafety precautions of higher measure. [608H: 609A]\n    1.3\t When fast and sweeping changes are  overtaking\t the\nfundamental  ideas of building design and  construction\t and\nnew  concepts  of building material emerging,  it  would  be\nunrealistic  to\t impute rigidity to  provisions\t essentially\nintended to promote safety in building designs. [609A]\n    2.\tThe clearance from the Chief Fire Officer  envisaged\nby Bye-law 17.1 is an additional condition and not a limita-\ntion on the power of the Corporation to satisfy itself\tthat\nthe building plans provide for adequate fire safety  precau-\ntion in accordance with its bye-laws or in a better measure.\nThe  clearance by the Chief Fire Officer, which is  expected\nto involve and follow a technical assessment and evaluation,\nobliges the Corporation to give due weight to it but, having\nregard to the scheme and language of the bye-laws the  deci-\nsion of the Chief Fire Officer is not binding on the  Corpo-\nration. [609E]\n     2.1 The clearance of the plans by the Chief Fire  Offi-\ncer would not render it obligatory on the part of the Corpo-\nration ipso facto to treat the plans as necessarily  comply-\ning  with the requirements of relevant bye-laws.  While\t the\nclearance  by  the Chief Fire Officer  is  an  indispensable\ncondition for eligibility for sanction, however, such clear-\nance, by itself, is not conclusive of the matter nor binding\non the Corporation which is entitled to examine the question\nindependently of such clearance from the Chief Fire Officer.\n[609G; 610B]\n594\n    3. Bye-law 16.4.8.1 requires that Refuge-Areas shall  be\nprovided  on  the \"external Walls\" by  means  of  cantilever\nprojections  or\t \"in any other manner\". The  words  \"in\t any\nother manner\" in Bye-law 16.4.8.1 are not intended to envis-\nage  a\ttotally\t different idea of the\tlocation  of  Refuge\nAreas,\tbut, prima facie, intended to suggest some  feasible\nalternative  to the technical design of the construction  of\nthe  Refuge Area--whether it should be a cantilever  projec-\ntion  or designed in some other way. The purpose  of  Refuge\nAreas  include that in the event of an out-break of fire  in\nthe  building, persons exposed to the hazard should be\table\nto  have immediate access to a place of safety which by\t its\naccess\tto fresh air insulates them from heat and smoke\t and\nfurther that those persons could conveniently be  extricated\nand  rescued  to  safety by  rescue  operations.  Therefore,\n\"Refuge\t Areas\"\t must be located on walls  which  open\tinto\nvacant\tspace  from which rescue  operations  are  possible.\n[610C, 611B, 610D-G]\n    3.1\t The word \"external wall\" in bye-law 16.4.8.1  which\nis a provision intended to promote public safety, health and\nwell  being  must  receive a  purposive\t construction  which\npromotes  those objects and purposes. Having regard  to\t the\nvery  purpose of providing for Refuge Areas  the  expression\n\"external wall\" must be held to be one which abuts a  vacant\nspace to which fighting and rescue equipment can have access\nand from which rescue operations are feasible. [610D; 610F]\n    3.2\t In the instant case, the Refuge Areas are  provided\non  the wails that open into an inner vacant space.  Refuge-\nArea located on a wail though abutting an inner vacant space\nwould not, by itself, promote the object if the vacant space\nis  such that no rescue operations are possible to  be\tcon-\nducted therefrom. If the fire fighting and rescue  equipment\ncannot have access to such inner vacant space, then, in\t the\ncontext\t of the specific objectives of bye-law 16.4.8.1\t the\nwail  abutting\tsuch  inner vacant space  would\t not  be  an\n\"external  wall\"  for the purpose of the said  bye-law.\t The\nCorporation should decide this question and examine  whether\nsuch rescue operations are feasible from the inner  circular\nvacant\tspace. This is an exercise individual to  each\tcase\nand to be judged on case to case basis. [610C; E, H; 611A]\n    4. Though the Zonal Development Plans envisaged a raised\npedestrian  walk-way on either side of Barakhamba  Road\t and\nthe  provision\tfor podia connecting the building  with\t the\nwalk-way  were\taccepted  and  an  appropriate\tnotification\nissued way back in 1966, no steps appear to have been  taken\nto give effect to them in a uniform manner. In fact  several\nauthorities  including\ta Committee constituted by  the\t Lt.\nGover-\n595\nnor  of\t Delhi\tin 1983, and the Chief\tFire  Officer,\thave\nadvised against the implementation of the proposal. In\tsuch\ncircumstances insistence to have such a pedestrian  walk-way\nfor the building, if such walk-ways do not already obtain in\nother  buildings  on  the  Road,  requires  reconsideration.\nMoreover, the insistence for provision of such a walk-way in\nan individual case without the integration and\tcontinuation\nof  the walk-way along the whole of the road, would  indeed,\nbe purposeless. [611G-H; 612A-B]\n    [Respondent to effect such rectifications to 'the  plans\nin  regard to the Refuge Area as may be necessary,  the\t New\nDelhi  Municipal Committee to consider and decide the  ques-\ntion  of according sanction to the plans  without  insisting\nupon any fresh clearance from Delhi Urban Arts Commission or\nthe  Chief  Fire Officer. Appeal to be kept pending  and  be\ntaken for final disposal after the submission of the  report\nfrom New Delhi Municipal Committee]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4447  of
\n1989.\n<\/p>\n
    From  the  Judgment and Order dated 28.4.  1989  of\t the
\nDelhi High Court in C.W.P. No. 3090 of 1987.
\n    Kapil  Sibal, Manoj Prasad and Dalveer Bhandari for\t the
\nAppellant.\n<\/p>\n
    F.S. Nariman, Soli J. Sorabjee, H.N. Salve and K.J. John
\nfor the Respondents.\n<\/p>\n
The following Order of the Court was delivered by
\n    VENKATACHALIAH,  J.\t The New Delhi\tMunicipal  Committee
\n(NDMC) seeks special leave to appeal to this court from\t the
\norder dated 28.4. 1989, of the High Court of Delhi in  Civil
\nWrit  Petition 3090 of 1987. In the writ petition,  Statsman
\nLtd., and its Managing Director, Respondents 1 and 2 respec-
\ntively\therein,\t sought to impugn the decision of  the\tNDMC
\ndated  18.2. 1987, declining to sanction  the  Revised-Plans
\nfor  the  construction\tof  “Statesman-House”–a   high-rise
\nbuilding  on  plot No. 148, Barakhamba Road  New  Delhi,  of
\nwhich  the  first respondent is the lessee. The\t High  Court
\nallowed\t the writ-petition and directed the NDMC  to  convey
\nits  formal sanction of the building plans on or before\t the
\n5th day of May, 1989.\n<\/p>\n
The NDMC assails the decision of the High Court on grounds,
\n596<\/span>
\nprincipally, that the plans for the multi-storeyed high-rise
\nbuilding,  as  proposed by Statesman Ltd., did not,  in\t the
\nmatter\tof  the fire-safety requirements,  accord  with\t the
\nmandatory  requirements of the Statutory  Building  Bye-laws
\npromulgated under the Punjab Municipal Act 1911, in relation
\nto the Union territory of Delhi and that the proposed build-
\ning did not also provide for a “podium\/pedestrian  walk-way”
\nmade  mandatory by the Zonal Development Plan for  Zone\t D-1
\n(viz. Connaught Place Area) approved by the Central  Govern-
\nment  on 30th April 1966 in No. 21023(7)66 UD under  Section
\n9(2) of the Delhi Development Act 1957.\n<\/p>\n
    We\thave heard Sri Kapil Sibal learned  Senior  Advocate
\nfor  the  NDMC\tand Sri Nariman and  Sri  Soli\tJ.  Sorabjee
\nlearned Senior Advocate for the Statesman Ltd and its Manag-
\ning Director. Special Leave is granted.\n<\/p>\n
    2. Respondent No. 1, a publisher of Newspapers, holds  a
\nlease  in  perpetuity from Government of the plot  No.\t148,
\nBarakhamba Road, New Delhi. In the year 1980 Respondent\t No.
\n1 sought for, and obtained, permission from the Land  Devel-
\nopment Officer, to erect a high-rise building of an area  of
\n1,62,000  square  feet and paid Rs.63,40,918  as  betterment
\nlevy.  On  4.5.1982 it applied for, and on  29.8.  1980\t ob-
\ntained, sanction from the NDMC of its building-plans,  valid
\nfor  2\tyears. The sanction was revalidated  for  a  further
\nperiod of two years.\n<\/p>\n
    In\tJune  1985,  however, there was,  it  would  appear,
\nprohibition  on high-rise structures. But this\tprohibition,
\nin  relation  to Connaught Place area, was lifted  on  18.7.
\n1986.  On  29.12. 1986 Respondent No. 1\t submitted  Revised-
\nplans incorporating therein substantial changes in the plans
\nnecessitated,  as it was claimed, by the  changing  require-
\nments of printing-technology and the plans as earlier  sanc-
\ntioned\tdid  not meet these altered requirements.  The\tnew-
\nbuilding, as envisaged by the revised-plans, would  accommo-
\ndate the printery of the Respondent 1, its offices and other
\noffices and business accommodation. On 7.1. 1987 the  appel-
\nlant  forwarded\t the Revised-plans to the  Delhi  Urban\t Art
\nCommission  (DUAC)  in compliance with the  requirements  of
\nSection 12 of the Delhi Urban Art Commission Act 1973  which
\nenvisages  that, notwithstanding anything contained  in\t any
\nother  law  for the time being in force,  every\t local\tbody
\nshall, before according approval in respect of any “building
\noperations” or “development proposals” refer the same to the
\nDUAC for its scrutiny. Section 12 further provides that\t the
\ndecision of the DUAC in that behalf shall be binding on such
\nlocal
\n597<\/span>
\nbody.  The  DUAC did not promptly scrutinise the  plans\t but
\nengaged itself in some correspondence with the NDMC as\talso
\nwith the Ministry of Urban Development, Government of India,
\nseeking\t what  it referred to as the  “requisite  clarifica-
\ntions”, “clear cut finalised policy” and “guidelines” for it
\nto be able to process the plans.\n<\/p>\n
    3. However, by communication dated 18.2. 1987, the\tNDMC
\nin  exercise  of power under Section 193(3)  of\t the  Punjab
\nMunicipal  Act, 1911, rejected the plans, assigning 28\trea-
\nsons  for  the rejection. On 14.5. 1987,  the  Architect  of
\nFirst-Respondent claiming to have subsequently complied with
\nor  clarified the points on which the rejection\t was  based,
\nresubmitted  the plans. On 26.5. 1987, the Architects  wrote
\nto NDMC to reconsider its decision dated 18.2. 1987, in\t the
\nlight  of the rectifications effected. However, no  positive
\nresponse having emanated from the NDMC Respondents 1 & 2, on
\n27.10.1987, filed the Writ-petition in the High Court for an
\nappropriate order directing the DUAC and the NDMC to “forth-
\nwith deal with the application for grant of sanction”.
\n    Sometime  in March 1988, the Chief Fire  Officer,  Delhi
\nFire Services, and the Deputy Commissioner of Police  (Traf-
\nfic),  New Delhi, were impleaded to the proceedings.  During
\nthe pendency of the proceedings in the High Court, the\tDUAC
\nwhich  had earlier considered the plans to be  ‘conceptually
\nunsatisfactory’ took a decision to approve the plans. So did
\nthe  Chief  Fire  Officer who, by  his\tcommunication  dated
\n9.3.1988,  gave clearance to the building-plans in  relation
\nto  the Fire-safety precautions. The High  Court  considered
\nthe  objection raised by the Deputy Commissioner  of  Police
\n(Traffic) as unrelated to the bye-laws as applicable to\t the
\nsituation  and\theld  that the objection  from\tthat  source
\nshould\tnot  interdict the sanction of plans  by  the  NDMC.
\nDuring\tthe  pendency  of the proceedings,  the\t High  Court
\nrequired the parties to sort out their differences. On 9.12.
\n1988, the High Court had occasion to say:\n<\/p>\n
\t      ”\t …..\tWe have no doubt that the NDMC\twill
\n\t      grant  the final approval without wasting\t any
\n\t      further  time.  In  case the  meeting  of\t the
\n\t      Building Plans Committee of NDMC is not sched-
\n\t      uled  to\tbe held within two weeks,  the\tNDMC
\n\t      will so arrange that a special meeting is held
\n\t      so that the matter is not delayed any further.
\n\t      Case  to\tbe  listed before  Court  for  final
\n\t      orders and disposal on February 3, 1989.”\n<\/p><\/blockquote>\n
4.  In the course of the order dated 28.4.1989 finally\tdis-
\nposing of
\n598<\/span>
\nthe writ-petition, the High Court after referring to what is
\nconsidered  to\tbe a co-operative attitude of the  DUAC\t and
\nother authorities, however, had\t this to say of the NDMC:\n<\/p>\n
\t\t       “However,  to  our  surprise  on\t the
\n\t      final  date  of arguments, that is,  on  31.3.
\n\t      1989  the\t NDMC changed its  counsel  and\t the
\n\t      Standing Counsel for NDMC appeared instead  of
\n\t      Mr. H.P. Sharma, advocate who had been appear-
\n\t      ing throughout  …..  ”\n<\/p><\/blockquote>\n
\t\t“But  surprisingly NDMC was not\t willing  to
\n\t      take a decision and continued to raise  frivo-
\n\t      lous objections for reasons best known to\t it.
\n\t      Inspite  of  the fact the clearance  had\tbeen
\n\t      granted by Urban Art Commission as also by all
\n\t      other  Authorities the sanction was  not\tcon-
\n\t      veyed  and was withheld for no  reasons.\tThis
\n\t      attitude of NDMC is beyond our  understanding.
\n\t      Since  I have come to the conclusion  that  no
\n\t      objection\t remains from any Authority I am  of
\n\t      the opinion that non-sanction of the plans  on
\n\t      the part of the NDMC is absolutely unjustified
\n\t      and cannot be supported by any reason  whatso-
\n\t      ever.”<\/p><\/blockquote>\n
    The\t High  Court was persuaded to the view\tthat  NDMC’s
\ndisinclination\tto accord sanction to the plan was  unjusti-
\nfied;  that whatever reservations it had had as to the\tade-
\nquacy  of  the\tfire-safety measures, as  envisaged  in\t the
\nBuilding  designs, were allayed by the Chief Fire  Officer’s
\nclearance and held that, thereafter, there was no impediment
\nto  the sanction. The High Curt, accordingly,  directed\t the
\nNDMC:\n<\/p>\n
\t      ”\t …..\tto convey its formal sanction of the
\n\t      building\tplans  and release the same  to\t the
\n\t      petitioner Company on or before the 5th day of
\n\t      May, 1989\t …..\t”\n<\/p><\/blockquote>\n
    5. Before us, Appellant-NDMC has aired a serious  griev-\n<\/p><\/blockquote>\n
ance  both  against  the validity of the  reasoning  of\t and
\nconclusion  reached by the High Court as also the manner  of
\nthe  conduct  of proceedings which were,  according  to\t the
\nappellant, initially more in the nature of efforts  directed
\ntowards the resolution of the dispute by mutual\t negotiation
\nthan by adjudication, but acquired an adjudicative  complex-
\nion with such suddenness that appellant was denied a reason-
\nable  opportunity of elaborating on the substantial  issues,
\nof  serious public importance pertaining, as they did, to  a
\nvital area of fire-safety precautions in highrise  buildings
\nas conceived in the Building Bye-laws. It is submitted
\n599<\/span>
\nthat  the High Court failed to consider submissions  of\t the
\nappellant  on certain vital issues. In his  affidavit  dated
\n6.6.  1989,  filed in this Court, Sri H.P.  Sharma,  learned
\nAdvocate  who  appeared for the NDMC before the\t High  Court
\nstated:\n<\/p>\n
\t      ”\t  …..\t Again, it is clear from  the  order
\n\t      that the entire matter was being conducted  in
\n\t      a\t spirit of compromise which shows  that\t in-
\n\t      stead  of adjudicating upon the issues in\t the
\n\t      Writ  Petition, parties to the  petition\twere
\n\t      required\tto resolve the matter  amicably.  On
\n\t      March 31, 1989, Mr. S.D. Satpate, Chief Archi-
\n\t      tect, NDMC and Mr. Karam Chand, Dy  Architect,
\n\t      NDMC were present in Court.\n<\/p><\/blockquote>\n
\t\t\t4. Counsel for NDMC informed to\t the
\n\t      Court of the presence of the said persons\t who
\n\t      were  ready  to assist the  Court\t as  certain
\n\t      objections  were still  outstanding.  However,
\n\t      the  Court did not ascertain from any  of\t the
\n\t      Officers\tif they had any\t objections.  Conse-
\n\t      quently, the Hon’ble Court was not informed of
\n\t      the  details  of the said\t objections  of\t the
\n\t      NDMC.  Instead, the Court issued Rule  on\t the
\n\t      same date and proceeded with the matter. I, as
\n\t      counsel appearing on behalf of NDMC along with
\n\t      Mr.  Bikramjit Nayyar, Advocate requested\t the
\n\t      Court that the NDMC wished. to file an Affida-
\n\t      vit  giving details of the outstanding  objec-
\n\t      tions. Time was sought to file the said  affi-
\n\t      davit.  Counsel for NDMC also  indicated\tthat
\n\t      the  normal practice of the Court is to  issue
\n\t      Rule  and\t thereafter fix the case  for  final
\n\t      disposal giving an opportunity to the  parties
\n\t      to file additional affidavits, if any for\t the
\n\t      disposal\tof the petition. However, the  Court
\n\t      declined the request and directed counsel\t for
\n\t      NDMC to proceed with the hearing on that\tvery
\n\t      date. The matter was proceeded with and  Judg-
\n\t      ment  was\t reserved on that date.\t During\t the
\n\t      course of the hearing the standing counsel for
\n\t      the NDMC raised the issue of the applicability
\n\t      of  Bye-law 16.4.8 of the applicable  Building
\n\t      Bye-laws\tof the NDMC and submitted  that\t the
\n\t      clearance\t of the Chief Fire Officer  did\t not
\n\t      prevent the NDMC from enforcing the applicable
\n\t      bye-laws.\t Standing counsel for the NDMC\talso
\n\t      submitted\t to the Court that the\tapproval  of
\n\t      the  DUAC was conditional. However, the  Court
\n\t      in  the light of the statement of counsel\t for
\n\t      the  DUAC did not deal with the issue  of\t the
\n\t      applicability of Bye-law 16.4.8.”<\/p><\/blockquote>\n
\t      (Emphasis Supplied)
\n600<\/span>
\nTo  similar purport and effect is the affidavit of Sri\tSat-
\npate the NDMC’s Chief Architect.\n<\/p>\n
    6. Before we examine the specific contentions raised  in
\nthe  appeal, it is necessary to refer to certain basic\tfea-
\ntures  of  the proposed building in relation  of  its  fire-
\nsafety aspects. The eligibility of the proposed construction
\nfor  sanction  except on the point of adequacy\tof  “Refuge-
\nareas”\tin  the requirement of a “pedestrian  walk-way”\t and
\n“Podium” is not otherwise disputed.\n<\/p>\n
    The proposed “Statesman-House” envisaged by the plans is
\na  fifteen storey, 55.2 meter-high structure  its  High-rise
\nportion\t being\ta cylindrical structure with  a\t hollow-core
\nopen  to  sky. On each of the floors above  the\t 4th  floor,
\ncommencing above the height of 15 meters, there is a 5\tfoot
\nwide circular passage on the inner-side of the circle  over-
\nlooking\t the central vacant area. These passages  which\t are
\nconnected to the lift-areas, provide access to the  accommo-
\ndation on the respective floors. Only an arc of the circular
\npassage in each of the floors is visible from and  overlooks
\nthe  front  of the building. Respondent No. 1  claimed\tthat
\nthese  inner-circular  passages answer the  description\t and
\nserve the purpose, of “Refuge-areas” required to be provided
\nas  fire-safety\t measures. In so designing,  the  Architects
\nseek  to  combine general-utility  and\t“Refuge-areas”.\t The
\nquestion is whether this architectural and design  resource-
\nfulness,  which enables Respondent 1 to claim these,  other-
\nwise  essentially  functional  and  utility-areas,  also  as
\n‘refuge-areas’\tfor  fire-safety, really satisfies  the\t re-
\nquirements of the Bye-laws.\n<\/p>\n
    7.\tWe may now turn to the requirements of the  Bye-laws
\nin this behalf. Fire-protection requirements, generally\t are
\ndealt with by bye-law 17.1 and 17.2 which provide:\n<\/p>\n
\t      “17.1 Buildings, shall be planned designed and
\n\t      constructed  to  ensure fire safety  and\tthis
\n\t      shall be done in accordance with part IV\tFire
\n\t      Protection of National Building Code of India,
\n\t      unless otherwise specified in these  bye-laws.
\n\t      In  the case of buildings (identified in\tBye-
\n\t      law  No. 6.2.4.1), the building schemes  shall
\n\t      also  be\tcleared by the Chief  Fire  Officer,
\n\t      Delhi Fire Service”\n<\/p><\/blockquote>\n
\t      “17.2  The  additional provisions\t related  to
\n\t      fire protection of buildings more than 15m  in
\n\t      height  and buildings identified\tin  6.2.4.1,
\n\t      shall be as given in Appendix K.”\n<\/p><\/blockquote>\n
\t\t  601<\/span><\/p>\n
\t\t  The proposed building is over 15 meters in
\n\t      height  and  attracts  Bye-law  16.4.8  which,
\n\t      inter alia, provides:\n<\/p><\/blockquote>\n
\t      “Refuge Area–For all buildings exceeding 15 m
\n\t      in  height, refuge area shall be\tprovided  as
\n\t      follows:\n<\/p><\/blockquote>\n
\t      (a)  For\tfloors above 15m and  upto  24m–one
\n\t      refuge  area  on the floor  immediately  above
\n\t      13m.\n<\/p><\/blockquote>\n
\t      (b)  For\tfloor above 24m\t and  upto  36m–one
\n\t      refuge  area  on the floor  immediately  above
\n\t      24m.\n<\/p><\/blockquote>\n
\t      (c)  For floor above 36m–one refuge area\t per
\n\t      every five floors above 36m.\n<\/p><\/blockquote>\n
This Bye-law specifies the location, at various heights,, of
\nthe  “refuge-areas”. The structural nature and basis of\t its
\ncalculation of the extent of these “Refuge-areas” are  dealt
\nwith by Bye-law 16.4.8.1. which provides:\n<\/p>\n
\t      “Refuge area shall be provided on the external
\n\t      walls  as\t cantilever projections\t or  in\t any
\n\t      other  manner  (which will not be\t covered  in
\n\t      FAR) with a minimum area of 15 sq. mrs. and to
\n\t      be calculated based on the population on\teach
\n\t      floor at the rate of 1 sq. m. per person.”
\n\t      (Emphasis Supplied)
\n\t      The  expression “External Wall” is  a  defined
\n\t      expression. Bye-law 2.27 says:\n<\/p><\/blockquote>\n
\t      “An  outer  wall\tof a building  not  being  a
\n\t      partition wall even though adjoining to a wall
\n\t      of  another  building and also  means  a\twall
\n\t      abutting\ton  an interior open  space  of\t any
\n\t      building.”<\/p><\/blockquote>\n
    In\tthe plans, the disposition of the ‘refuge-area’\t is,
\nadmittedly,  not in strict accord with the  prescription  of
\nBye-law 16.4.8 which requires the location of ‘refuge-areas’
\nfor a group of floors as specified therein. The Bye-law does
\nnot  contemplate one for each floor as now provided  in\t the
\nplans.\tThe  ‘refuge-areas’ are not provided  on  the  outer
\n“external”  wall;  but are on the wall\tabutting  the  inner
\ncircular  vacant space forming the floor of the\t hollow-care
\nof  cylindrical structure. As the entrance is  now  designed
\nand conceived fire-fighting and rescue-\n<\/p>\n
602<\/span><\/p>\n
equipment  cannot,  it would appear, be\t carried  into\tthis
\ninner-area. But Respondent 1 claims that the walls on  which
\nthese refuge-areas are provided about the inner vacant space
\nand  are eligible to be called ‘External’ walls\t within\t the
\nmeaning of Bye-law 2.27.\n<\/p>\n
    The\t NDMC  by its communication dated 14.3.1989  to\t the
\nChief  Fire  Officer expressed its reservations\t as  to\t the
\ncorrectness  and  propriety of the clearance  to  the  plans
\naccorded by him on 9.3. 1989. By his reply dated 30.3. 1989,
\nthe  Chief  Fire Officer, in justification of  the  approval
\nwhich he gave stated:\n<\/p>\n
\t      “the consultants have proposed refuge area  at
\n\t      each  floor above 15m level, which is  consid-
\n\t      ered  to be more convenient and  reliable\t be-
\n\t      cause  there  is\thardly any  scope  of  smoke
\n\t      logging due to centre core open to sky.”
\n\t      (Emphasis Supplied)\n<\/p><\/blockquote>\n
\t      8.  The  contentions  urged by  Sri  Sibal  in
\n\t      support of the appeal are:\n<\/p><\/blockquote>\n
\t      (i) Bye-Law 16.4.8 prescribes that in  respect
\n\t      of all buildings exceeding 15 metres in height
\n\t      there  shall be provision for refuge areas  at
\n\t      specific\tlocations  for a specific  group  of
\n\t      floors. The requirement is mandatory as it  is
\n\t      guided  by the considerations of the  need  to
\n\t      direct  and concentrate  rescue-operations  at
\n\t      particular,  pre-fixed locations. The  Bye-law
\n\t      is  binding on the Chief Fire Officer  who  is
\n\t      not  competent to relax the rigor of its\tpre-
\n\t      scriptions.\n<\/p><\/blockquote>\n
\t\t    (ii)  The ‘external’ walls spoken of  by
\n\t      Bye-law 16.4.8.1, though so defined in Bye-law
\n\t      2.27  as\tto include a wall  “abutting  on  an
\n\t      interior open space of any building”, however,
\n\t      having  regard to the purpose of\tthe  Bye-law
\n\t      can only refer to an outer wall accessible  to
\n\t      the rescue-team. The definition is. as always,
\n\t      subject  to the context requiring a  different
\n\t      meaning.\tFor purposes of Bye-law\t 16.4.87  an
\n\t      “external”  wall\tshould\tbe  understood\twith
\n\t      reference\t to  an\t      open area\t from  which
\n\t      rescue operations are possible.
\n\t\t\tIn the present case the construction
\n\t      of  the Bye-law suggested by  the\t respondent-
\n\t      company would be justified only if fire fight-
\n\t      ing  and rescue operations could be  conducted
\n\t      from  the\t inner open-space.  In\tthe  present
\n\t      case,
\n\t      603<\/span>
\n\t      having  regard  to the lack of access  to\t the
\n\t      inner vacant space for fire-engines etc.,\t the
\n\t      proposition  of  Respondent- 1 is not  even  a
\n\t      statable possibility.\n<\/p><\/blockquote>\n
\t      (iii) The clearance from the Chief Fire  Offi-
\n\t      cer, Delhi Fire Service, envisaged in Bye-laws
\n\t      17.1  is\tin addition to the  requirements  of
\n\t      bye-laws 16.4.8. and 16.4.8.1. The said clear-
\n\t      ance is one of the conditions for\t eligibility
\n\t      of  the  plan to be considered for  accord  of
\n\t      sanction by the NDMC is not in substitution of
\n\t      the requirement of compliance with the  objec-
\n\t      tive  prescriptions  of  those  bye-laws.\t The
\n\t      primacy  to the Chief Fire Officer’s  implicit
\n\t      in the approach of the High Court is erroneous
\n\t      and  virtually  renders the clearance  of\t the
\n\t      Chief Fire Officer binding on the NDMC. It  is
\n\t      the NDMC and NDMC alone that can decide wheth-
\n\t      er  the  plans  satisfy the  Bye-laws  in\t any
\n\t      particular case.\n<\/p><\/blockquote>\n
\t\t  A    reasonable   construction    bye-laws
\n\t      6.2.4.1,\t16.4.8.,  16.4.8.1,  17.1  and
\n\t      17.2  would detract from the validity  of\t the
\n\t      first respondent’s claim and establishes\tthat
\n\t      the  clearance from the Chief Fire Officer  is
\n\t      one  of  the conditions and not  the  sole  or
\n\t      conclusive test of the adequacy of fire safety
\n\t      measures in terms of the relevant Bye-laws.\n<\/p><\/blockquote>\n
\t      (iv)  The view of the Chief Fire Officer\tthat
\n\t      the design of the Refuge-areas in the plans is
\n\t      “more  convenient and reliable”  is  factually
\n\t      and technically unsound as the very nature  of
\n\t      the  cylindrical structure with a\t hollow-core
\n\t      would promote a “stock” or chimney effect. The
\n\t      Chief  Fire  Officer’s view is  not  final  or
\n\t      conclusive  on the point and, at\tall  events,
\n\t      not binding on the NDMC.\n<\/p><\/blockquote>\n
\t      (v) The construction of a Pedestrian  walk-way
\n\t      and  Podium are mandatory not under  the\tbye-
\n\t      laws but from the requirements of a zonal plan
\n\t      of zone D- 1 in which plot No. 148, Barakhamba
\n\t      Road is located and that no relaxation of\t the
\n\t      requirement  would be permissible except on  a
\n\t      modification of the relevant Zonal Development
\n\t      Control Plans.\n<\/p><\/blockquote>\n
\t\t  The\tprovision  for\t “pedestrian   walk-
\n\t      way”   and “podium” is,  therefore,  mandatory
\n\t      under  the Zonal Development Plan and that  no
\n\t      authority\t including  the Chief  Fire  Officer
\n\t      could compel an abandonment of those statutory
\n\t      presumptions.\n<\/p><\/blockquote>\n
\t      604<\/span><\/p>\n
\t      (vi)  That  in the manner in  which  the\tcase
\n\t      before  the High Court proceeded the NDMC\t was
\n\t      denied a reasonable and effective\t opportunity
\n\t      of  presenting  its  case.  Considerations  of
\n\t      public safety underlying the stand of the NDMC
\n\t      was  not\tproperly appreciated  and  the\tNDMC
\n\t      should  have been afforded an  opportunity  to
\n\t      substantiate  its\t valid\tobjections  to\t the
\n\t      plans.\n<\/p><\/blockquote>\n
\t      (vii) The grant of relief in the writ petition
\n\t      in the form of a direction to the appellant to
\n\t      sanction\tthe  plan was  not  permissible\t and
\n\t      that,  at\t best,\tthe High  Court\t could\thave
\n\t      directed\tthe  appellant\tto  reconsider\t the
\n\t      question of according sanction to the plans in
\n\t      the light of the High Court’s order.<\/p><\/blockquote>\n
    9.\tSri  Nanman,  for  the\trespondent-company  however,
\nsubmitted  that\t the objection to the plans  raised  by\t the
\nappellant  on  the basis that the refuge-areas were  not  in
\naccordance with the Bye-laws was a classic after-thought  on
\nthe  part  of the Appellant. Bye-laws  16.4.8  and  16.4.8.1
\nlearned\t counsel urged, were merely prescriptive of  certain
\nminimal\t standards  of\tfire-safety  precautions,  it  being
\nalways\topen to the owner to build-into the  designs  better
\nand  more satisfactory standards of fire-safety\t precautions
\nand that in the present case the Chief Fire Officer who\t was
\na  technical authority, had himself accepted the designs  in
\nthat  behalf  as better and more reliable.  Learned  counsel
\nurged  that out of the 28 reasons put forward by the  appel-
\nlant on 18.2. 1987 in support of the rejection of the plans,
\nnot  even  one referred to its present insistence  that\t the
\nrefuge-areas should be built only at the levels suggested in
\nthe Bye-law or that the refuge-area did not abut the “exter-
\nnal  wall”-  Shri Nariman further pointed out  that  in\t the
\ncommunication  dated  18.2.1987 all that was  sought  to  be
\nsaid, with reference to the refuge-areas in each floor,\t was
\nthat the same had not been taken into account in the  calcu-
\nlation of the F.A.R.\n<\/p>\n
    Shri  Nariman said that bye-law 16.4.8 in  its  language
\nand  content had been bodily lifted from  the  corresponding
\nprescriptions  in  the\t“National Building  Code  of  India”
\n(1983),\t from  the provisions of part IV relating  to  “Fire
\nProtection”.  The said Code itself indicated that the  norms
\nin  regard to fire-protection referred to therein were\tonly
\nbroad  guide-lines and were not to be construed to  prohibit
\nbetter arrangements. Shri Nariman referred to the  following
\nexcerpts from part IV of the said Code at para 0.2 and 0.7:\n<\/p>\n
605<\/span><\/p>\n
\t\t       ”   …..  An indefinite\t combination
\n\t      of  variable is involved in the phenomenon  of
\n\t      fire,  all of which cannot be quantified.\t The
\n\t      requirements  of this Code should,  therefore,
\n\t      be taken as a guide and an engineering  design
\n\t      approach should be adopted for ensuring a fire
\n\t      safe  design for buildings. It would  also  be
\n\t      necessary for this purpose to associate quali-
\n\t      fied  and\t trained fire  protection  engineers
\n\t      with  the planning of buildings, so that\tade-
\n\t      quate fire protection measures could be incor-
\n\t      porated in the building design fight from\t the
\n\t      beginning.”\n<\/p><\/blockquote>\n
\t      (Emphasis Supplied)
\n\t\t       “0.7.  Nothing  in this part  of\t the
\n\t      Code  shall  be construed to  prohibit  better
\n\t      types of building construction, more exits  or
\n\t      otherwise\t safer conditions than\tthe  minimum
\n\t      requirements specified in this part.”<\/p><\/blockquote>\n
\t      (Emphasis Supplied)
\nIt was, accordingly, urged that the prescriptions in bye-law
\n16.4.8.\t and 16.4.8.1 were not inflexible and wherever\tmore
\nliberal and better standards of fire precautions were incor-
\nporated\t in the designs, the bye-laws did not  prevent\tsuch
\nbetter measures being adopted by the licencing authority. It
\nwas  further urged that the Chief Fire Officer was  the\t au-
\nthority competent to decide questions whether the provisions
\nincorporated in the designs were better and more liberal and
\nthat  his decision in the matter ought to be conclusive\t and
\nbinding on the licencing authority. In regard to the adequa-
\ncy  and acceptability of fire safety measures in the  build-
\ning-design,  it was urged, the bye-law, recognised  and\t ac-
\ncorded a primacy of place to the decision of the Chief\tFire
\nOfficer and that, indeed, para K-1 of Appendix-K ‘read\twith
\nbye-law 17.2 recognised the importance of, and finality,  to
\nthe  decision of the Chief Fire Officer. The said para K-  1
\nAppendix-K reads:\n<\/p>\n
\t\t\t“K-  1 In addition to the  provision
\n\t      of Part IV Fire Protection of National  Build-
\n\t      ing  Code\t of India, the Chief  Fire  Officer,
\n\t      Delhi  Fire  Service may\tinsist\ton  suitable
\n\t      provisions  in the building from\tfire  safety
\n\t      and  fire fighting point of view depending  on
\n\t      the occupancy and height of buildings.”<\/p><\/blockquote>\n
    The\t decision  of the Chief Fire Officer to\t accept\t the
\ndistribution  of refuge areas in each of the floors, it\t was
\nsaid,  was referable to the general power of the Chief\tFire
\nOfficer to issue such directions. In the
\n606<\/span>
\npresent case, it was urged, the designs providing for refuge
\nareas in the ratio of one sq. metre per person on each floor
\nwas  considered\t by the Chief Fire Officer as a\t better\t and
\nmore  reliable fire safety measures than those envisaged  by
\nthe bye-laws and the Chief Fire Officer preferred to  accept
\nthem.\n<\/p>\n
    Shri Nariman sought to point out that in the Annexure B.
\n1 to the Affidavit dated 7.7.1989 of respondent No. 2 a list
\nof  six\t buildings  had been set-out  respecting  which\t the
\nsanctions granted by the NDMC indicated that the local\tbody
\nhad  itself understood the prescriptions in the bye-laws  to
\nbe  flexible and had further limited the extent of the\tRef-
\nuge-Areas to 0.3 sq. metre per person as against 1 Sq. metre
\nper person set-out in bye-law 16.4.8.1.\n<\/p>\n
    10.\t As to the requirement of bye-law 16.4.8.1 that\t the
\nrefuge\tarea  shall be provided on the “external  walls”  is
\nconcerned,  Shri Nariman relied upon the definition in\tBye-
\nlaw  2.27 to say that a wall abutting an inner vacant  space
\nis  also an “external wall” and the acceptance of  the\tcor-
\nrectness  of  this position was implicit  in  the  clearance
\ngiven  by  the Chief Fire Officer. The words “in  any  other
\nmanner” in Bye-law 16.4.8.1 it is urged, makes room for\t the
\nrequisite flexibility.\n<\/p>\n
    11.\t In regard to the “pedestrian walk-way and  “podium”
\nit was pointed out that the insistence upon these was again,
\na  glaring instance of the inexhaustible resourcefulness  of
\nthe appellant to thwart Respondent’s project. It was pointed
\nout  that  none of the 28 objections raised  in\t the  NDMC’s
\ncommunication  dated 18.2.1987; nor the\t further  objections
\nraised\ton 6.2.1989; nor, indeed, the objections  raised  by
\nNDMC on 14.3. 1989, to the clearance given by the Chief Fire
\nOfficer–who,  incidentally,  had advised  the\tdeletion  of
\npodium in view of the obstruction it would present the\tfire
\nbrigade appliances,–had the NDMC raised the question of the
\nalleged infirmity in the plans for want of provision for the
\nwalk-way and Podium. It was also pointed out that in none of
\nthe  counter-affidavits filed in the High Court nor  in\t the
\nmemorandum  of\tSpecial Leave Petition; nor in\tthe  written
\nsubmissions  filed before this Court had this question\tbeen
\nagitated by the NDMC. It was pointed out that the  committee
\nconstituted by the order No. 10(24) RN-83\/731\/7714-24  dated
\n13.6.1983 made by the Lt. Governor, Delhi, had in its report
\nof  5.2.1986 suggested the doing away with the\tproposal  to
\nconstruct  a  raised pedestrian walk-way on either  side  of
\nBarakhamba Road as, in the view of the committee, the  “head
\nclearance  under  this proposed walk-way will be  such\tthat
\ncars
\n607<\/span>
\nwill  be able to pass under it, but  fire\/rescue  appliances
\nwill  not be able to approach any where near  the  buildings
\nbeyond\tthe  raised walkway.” It was pointed  out  that\t the
\ncommittee  was also of the opinion that these walk-ways,  if
\nand when constructed, would nullify all fire safety measures
\nin the buildings on either side of the Barakhamba Road. Shri
\nNariman\t referred  to the advice of the Chief  Fire  Officer
\nwith  regard to the present plans themselves that the  walk-
\nway and the podium be dispensed with.\n<\/p>\n
    It\twas,  therefore, urged that the\t insistence  on\t the
\nconstruction  of the pedestrian walk-way while being  wholly
\nundesirable,  was  also a glaring instance of how  by  these
\nafter-thoughts appellant made manifest its determination  to
\ndelay and defeat respondent’s project.\n<\/p>\n
\t\t  12.  On the contentions urged, the  points
\n\t      that fall for consideration are:\n<\/p>\n
\t\t     (a)  Whether Bye-law 16.4.8 as  to\t the
\n\t      disposition and location of the “Refuge Areas”
\n\t      prescribes  an inflexible, rigid standard\t and
\n\t      whether  the location and distribution of\t the
\n\t      refuge areas in each floor is violative of the
\n\t      Bye-law?\n<\/p>\n
\t\t     (b)  If point (a) is held in the  nega-\n<\/p>\n
\t      tive, whether the clearance given to the\tplan
\n\t      by  the Chief Fire Officer, on the  view\tthat
\n\t      distribution of the refuge-areas in each floor
\n\t      is  a  better and more  reliable\tfire  safety
\n\t      measure is conclusive and binding on the NDMC.
\n\t      In  other\t words, is it open to  the  NDMC  to
\n\t      examine and decide the question  independently
\n\t      of the Chief Fire Officer’s clearance?\n<\/p>\n
\t\t     (c) Whether the Refuge Areas located on
\n\t      the  walls abutting the inner vacant  area  be
\n\t      held  to satisfy the requirements\t of  Bye-law
\n\t      16.4.8.1?\n<\/p>\n
\t\t     (d) Whether the extent of ‘Refuge Area’
\n\t      requires to be reduced from 1.0 sq. metre\t per
\n\t      person to 0.3 sq. metre per person?\n<\/p>\n
\t\t     (e)  Whether the NDMC is  justified  in
\n\t      insisting\t upon  the erection  of\t “Pedestrian
\n\t      Walk-way”\t and  a\t “Podium” in  front  of\t the
\n\t      proposed building?\n<\/p>\n
13.  Re:  points  (a) and (b): A number\t of  affidavits\t and
\ncounter-\n<\/p>\n
608<\/span><\/p>\n
affidavits  are\t placed before us on the scope of  the\tBye-
\nlaws.  It  is not necessary to examine all of  them  as\t the
\nmatter\tis essentially one of construction of the  provision
\nitself.\t The  contents of Bye-laws 16.4.8 and  16.4.8.1\t are
\nborrowed from Part IV dealing with “Fire Precaution” in\t the
\nNational Building Code of India, 1983. The Code conceives of
\nthese  prescriptions  as  only broad guide  lines.  But\t the
\nBuilding  Bye-laws in the present case which have  drawn  on
\nthese  provisions from the Code have,  however,\t assimilated
\nthem  as part of the statutory prescriptions under the\tBye-
\nlaws. The NDMC says that once this is done the norms are  no
\nlonger\tdirectory  but assume statutory\t import\t and  become
\nmandatory.\n<\/p>\n
    In the infinite variety of ways in which the problem  of
\nadequate  fire safety measures to be incorporated in  build-
\nings  present themselves, and having regard to the wide\t and
\ncomplex\t range\tof situational variations in  the  location,
\ncharacter  and design of buildings and their disposition  in
\nrelation to the other factors influencing the evaluation  of
\nsuch  safety-measures,\ta view favoring flexibility  of\t ap-
\nproach\tought to commend itself. The National Building\tCode
\nof  India,  from  which the substance of  the  Bye-laws\t are
\ndrawn,\tindicates that these are concerned  with  indicating
\ncertain\t broad minimal assurances for fire-safety  and\tthat
\nbetter and more reliable measures ought not to be excluded.
\n    We\tare not, however, impressed by the  submission\tthat
\nthe six instances cited in Annexure B- 1 to Affidavit  dated
\n7.7.1989  of  respondent No. 2 are really  instances  demon-
\nstrating departure, from the present stand of the appellant.
\nindeed,\t appellant points out that out of the six  buildings
\nreferred to in Annexure B-1, only two i.e. No. 23, Barakham-
\nba  Road  and DLF Plaza, 21-22, Narendra Place,\t were  dealt
\nwith  by the NDMC and that the rest were dealt with  by\t the
\nD.D.A.\tThe  affidavit of Shri Karamchand,  Architect,\tNDMC
\novers  that  no\t sanction was given in respect\tof  No.\t 23,
\nBarakhamba Road and that no departure from Bye-laws  16.4.8,
\nas  understood by the NDMC, was involved in the case of\t the
\nDLF  Plaza  building.  The explanation offered\tis,  in\t our
\nopinion,  acceptable and, nothing much turns upon the  cases
\nreferred to in Annexure B- 1.\n<\/p>\n
    14. But that is not to say that the rigid interpretation
\nsought\tto be placed by the appellant on the bye-law  16.4.8
\nand  16.4.8.1  is justified. It is, of course, wise  in\t the
\ninterest  of uniformity of administration of these  Bye-laws
\nand  of elimination of possible complaints of  partisanship,
\nthat  the NDMC should insist upon adherence to the  require-
\nments of the Bye-law 16.4.8 on its own strict terms. That
\n609<\/span>
\nshould\tnot, however, denude the power of the  appellant  to
\naccept\tdesigns\t which, in the judgment\t of  the  appellant,
\noffer  and  incorporate fire safety  precautions  of  higher
\nmeasure.  When fast and sweeping changes are overtaking\t the
\nfundamental  ideas of building design and  construction\t and
\nnew concepts of building-material are emerging, it would  be
\nunrealistic  to impute regidity to  provisions\tessentially’
\nintended to promote safety in building designs. As suggested
\nin  the National Building Code Bye-law, provisions  such  as
\nBye-law\t 16.4.8\t envisage certain minimal  safety  standards
\ncompliance  with  which should, generally,  be\tinsisted  in
\norder  that there be uniformity and equal treatment  and  an
\nelimination of imputations of favoritism and  arbitrariness.
\nIf a building-design incorporates fire safety measures in  a
\nmeasure\t promoting fire safety precautions far\tbetter\tthan
\nthose suggested by the Bye-laws, they should not fetter\t the
\nhands  of the licensing authority to accept them. Under\t the
\nrelevant  statute and the Bylaws, the authority to grant  or
\nrefuse\tthe licence is the NDMC. It has the power to  decide
\nwhether\t any proposals are an improvement on  the  prescrip-
\ntions contained in the Bye-laws–which, indeed, is a  matter
\nof  some complexity and, in conceivable cases,\tone  calling
\nfor expertise-is the NDMC itself. From the way the  National
\nBuilding  Code,\t from which the provision is  borrowed,\t has
\ntreated\t such provisions, it is not unreasonable to  presume
\nthat the requirements were incorporated in the Bye-laws with
\na  similar approach as to their import. The  clearance\tfrom
\nthe  Chief  Fire  Officer envisaged by Bye-law\t17.1  is  an
\nadditional  condition and not a limitation on the  power  of
\nthe  NDMC to satisfy itself that the building plans  provide
\nfor  adequate fire safety precaution in accordance with\t its
\nbye-laws or in a better measure. The clearance by the  Chief
\nFire  Officer,\twhich is expected to involve  and  follow  a
\ntechnical  assessment  and evaluation, obliges the  NDMC  to
\ngive  due weight to it but, having regard to the scheme\t and
\nlanguage  of  the Bye-laws the decision of  the\t Chief\tFire
\nOfficer\t is not binding on the NDMC. We accept\tthe  submis-
\nsions of Shri Sibal that clearance of the plans by the Chief
\nFire  Officer would not render it obligatory on the part  of
\nthe  NDMC ipso facto to treat the plans as necessarily\tcom-
\nplying with the requirements of relevant Bye-laws. While the
\nclearance  by  the Chief Fire Officer  is  an  indispensable
\ncondition for eligibility for sanction, however, such clear-
\nance, by itself, is not conclusive of the matter nor binding
\non the NDMC.\n<\/p>\n
    15. On the material placed before us we are inclined  to
\nhold on points (a) and (b) that the requirements of Bye-laws
\n16.4.8\tare  not inflexible and that in\t appropriate  cases,
\nwhere the plans and designs incorporate fire safety measures
\nwhich,\tin judgment of the NDMC, are considered\t to  provide
\nfor the safety in a measure better than those
\n610<\/span>
\nenvisaged  by  the Bye-laws 16.4.8, the NDMC  would  not  be
\nprecluded  from accepting them. Whether the plans  submitted
\nby  Respondent 1 distributing ‘Refuge-Areas’ in\t each  floor
\nprovide such a better and more reliable fire safety  measure
\nis a matter for the decision of the NDMC. We also hold\tthat
\nthe  clearance\tfrom the Chief Fire Officer in\tthis  behalf
\nthough entitled to weight, would not be binding on the\tNDMC
\nwhich can and is entitled to examine the question  independ-
\nently of such clearance from the Chief Fire Officer.\n<\/p>\n
    16.\t Re: point (c): Bye-law 16.4.8.1 requires that\tRef-
\nuge-Areas shall be provided on the “external walls” by means
\nof  cantilever projections or “in any other manner”. In\t the
\npresent-case the Refuge Areas are provided on the walls that
\nopen into an inner vacant space. They are provided on  walls
\nwhich respondents say are “external walls” having regard  to
\nthe  definition\t of  that expression in\t Bye-law  2.27.\t The
\ndefinition is not conclusive; but is subject to the  context
\nindicating  a contrary import. The purposes of refuge  areas
\ninclude\t that  in the event of an out-break of fire  in\t the
\nbuilding,  persons exposed to the hazard should be  able  to
\nhave  immediate\t access to a place of safety  which  by\t its
\naccess\tto fresh air insulates them from heat and smoke\t and
\nfurther that those persons could conveniently be  extricated
\nand rescued to safety by rescue-operations. The word “exter-
\nnal wall” in Bye-law 16.4.8.1 which is a provision  intended
\nto promote public safety, health and well-being must receive
\na  purposive construction which promotes those\tobjects\t and
\npurposes.  Refuge-area located on a wall though abutting  an
\ninner vacant space would not, by itself, promote the  object
\nif  the vacant space is such that no rescue  operations\t are
\npossible to be conducted therefrom. If the fire fighting and
\nrescue\tequipment  cannot have access to such  inner  vacant
\nspace,\tthen, in the context of the specific  objectives  of
\nbye-laws 16.4.8.1, the wall abutting such inner vacant space
\nwould  not  be an “external” wall for purposes of  the\tsaid
\nbye-law. Having regard to the very purpose of providing\t for
\n“Refuge-Areas”\tintended, as it is, to secure protection  to
\npersons in the event of an out-break of fire in a  high-rise
\nbuilding, the expression “external wall” must be held to  be
\none which abuts a vacant space to which fighting and  rescue
\nequipment  can have access and from which  rescue-operations
\nare feasible. We find it difficult to accept the submissions
\nof  Sri\t Nariman based purely on the definition\t in  Bye-law
\n2.27. The definition is subject to the context suggesting or
\nrequiring a different meaning. The context here does suggest
\nsuch  a different import. Having regard to  purpose  Bye-law
\n16.4.8.1 is intended to serve “Refuge-Areas” must be located
\non  walls  which open into vacant space\t from  which  rescue
\noperations  are possible. NDMC should decide  this  question
\nand examine whether such rescue
\n611<\/span>
\noperations  are\t feasible  from the  inner  circular  vacant
\nspace. This is an exercise individual to each case and to be
\njudged\ton case to case basis. The words ‘in any other\tman-
\nner’  in  Bye-law 16.4.8.1 are not intended  to\t envisage  a
\ntotally\t different  idea of the location of  ‘Refuge  Areas’
\nbut, prima facie, intended to suggest some feasible alterna-
\ntive  to  the technical design of the  construction  of\t the
\nRefuge-Area–Whether it should be a cantilever projection or
\ndesigned  in some other way. Point (c) is held and  answered
\naccordingly.\n<\/p>\n
    17. Re: point (d): One of the contentions raised by\t Sri
\nNariman\t was that the insistence of 1 sq. m. per person\t for
\ncalculating the extent of the Refuge Areas is discriminatory
\nas  the NDMC had reduced the requirement only to 0.3 sq.  m.
\nper person in many other similar highrise buildings.
\n    In\tthe  course of the counter-affidavit  filed  by\t Sri
\nKaram  Chand, Architect of NDMC, this claim that the  extent
\nof  refuge  area could be calculated at 0.3  sq.  metre\t per
\nperson instead of 1.0 sq. metre per person is not  disputed.
\nIndeed, it is stated in the said affidavit:\n<\/p>\n
\t      ”\t …..\tThe NDMC does not have any objection
\n\t      to  the provision of 1.0 sq. metre per  person
\n\t      as  required by by-law 16.4.8.1. In the  event
\n\t      the Statesman Limited wish to provide only 0.3
\n\t      sq.  metre per person in accordance  with\t the
\n\t      resolution  of August 4, 1988, the NDMC  would
\n\t      have no objection to the same and the  States-
\n\t      man  Limited  in this regard  be\tdirected  to
\n\t      amend their building plans in accordance\twith
\n\t      their desires  …..  ”\n<\/p><\/blockquote>\n
    Respondents\t are therefore at liberty to limit the\tRef-\n<\/p><\/blockquote>\n
uge-Areas  to  0.3 sq. metre per person as against  1.0\t sq.
\nmetre per person.\n<\/p>\n
    18.\t Re:  point (d): This relates to the  insistence  on
\nconstruction  of  a  “pedestrian walk-way”  and\t a  “podium”
\nparallel to Barakhamba Road in front of the proposed  build-
\ning. Though the zonal development plans envisaging a  raised
\npedestrian  walk-way on either side of Barakhamba  Road\t and
\nthe  provision\tfor podia connecting the building  with\t the
\nwalk-way  were\taccepted  and  an  appropriate\tnotification
\nissued way back in 1966, no steps appear to have been  taken
\nto  give  effect to them in a uniform manner.  In  the\tvery
\nnature\tof  the concept of a pedestrian walk-way  on  either
\nside  of  the road, the insistence for provision of  such  a
\nwalk-way  in an individual case without the integration\t and
\ncontinuation of the walk-way along the whole of the road,
\n612<\/span>
\nwould indeed, be purposeless. Several authorities, including
\na committee constituted by the Lt. Governor of Delhi in 1983
\nand the Chief Fire Officer, have advised against the  imple-
\nmentation  of  the proposal. In the instant case  the  Chief
\nFire  Officer  has,  it is not\tdisputed,  expressly  opined
\nagainst the desirability of such a ‘walk-way’. The NDMC\t has
\nto bestow serious re-consideration on its insistence to have
\nsuch  a pedestrian walk-way for the building, if such  walk-
\nways do not already obtain in other buildings on the Road.
\n    The only way in which, perhaps, the zonal  developmental
\nrequirements  in this behalf and the difficulties and  prob-
\nlems  inherent in the insistence upon construction  of\tsuch
\npedestrian walk-way in an isolated particular case, could be
\nreconciled  is to direct the NDMC, in the event of  its\t ap-
\nproving the plans otherwise, to keep the requirement of\t the
\npedestrian  walk-way  and  the podium in  abeyance  for\t the
\npresent, subject to a written-undertaking to be lodged\twith
\nit by the respondent 1 and 2 to the effect that whenever the
\npolicy to implement the Zonal Developmental requirements  in
\nthis behalf is finally decided upon, the respondent 1 and  2
\nwould  undertake  to put-up such a pedestrian  walk-way\t and
\nPodium.\t The  NDMC also, if it so chose,  could\t secure\t the
\nrequisite financial guarantees for the construction of\tsuch
\na  pedestrian walk-way by the NDMC itself at the expense  of
\nthe respondent if Respondent 1 and 2 fail to do so  whenever
\nso required. This course would, while ensuring the  prospect
\nof  compliance with the Zonal Development prescriptions,  if
\nthey  are  decided  to be put into effect,  also  allay\t the
\napprehension of Respondent 1 and 2 that Governmental author-
\nities are dealing with the Statesman’s project with ‘an evil
\neye and an uneven hand. Point (d) is answered accordingly.\n<\/p>\n
    19. We might advert here to the grievance of  Respondent
\n1  and\t2 that the NDMC did not raise,\tat  the\t appropriate
\nstage,\tany specific objections to the plans on\t the  ground
\nthat either they were not in conformity with Bye-law  16.4.8
\nor  16.4.8.1 or that the plans were .defective for  want  of
\npedestrian walk-way. Objection based on bye-law 16.4.8.1, it
\nwas urged, was never in mind of the NDMC. These\t objections,
\nit was urged, were developed from stage to stage leaving the
\ninference  inescapable that the NDMC was  pre-determined  to
\ndecline the sanction for the ‘Statesman-House’ on one ground
\nor another.\n<\/p>\n
    We\tare  afraid, the way NDMC has developed\t its  stance
\nfrom  time to time incurs and perhaps justifies this  griev-
\nance. Indeed, at no stage of the proceedings before the High
\nCourt, or even in important
\n613<\/span>
\ncommunications bearing on the question of the sanction,\t did
\nthe NDMC refer to the specific objection based on the lacuna
\nthat Refuge Areas were not located on the “external”  walls,
\nas  interpreted by the NDMC and the lack of a provision\t for
\nthe  pedestrian walk-way. Sri Nariman urged that  we  should
\nnot  permit  the NDMC to raise these  belated  and  laboured
\nobjections.\n<\/p>\n
    We have considered these submissions. We have  proceeded
\nto consider the contentions of the NDMC even on these points
\non  the merits in view of the fact that they are matters  of
\nsome general public importance, though we are not  unmindful
\nthat  the NDMC has not been business-like in the way it\t has
\ndealt with the question from time to time.\n<\/p>\n
    20.\t It  is for this reason that though in view  of\t the
\nfindings  recorded  on the various  contentions,  the  order
\ndated  24.4.  1989 of the High Court requires to be  and  is
\nhereby\tset aside, however, we keep this appeal pending\t for
\nsuch final orders and directions as may become necessary  to
\nbe issued. In the meanwhile. We permit Respondent 1 and 2 to
\neffect\tsuch  rectifications to the plans in regard  to\t the
\nRefuge Area as may be necessary in the light of the observa-
\ntions  in this order. The refuge-areas could be\t located  in
\neach  of  the floors separately, provided that it  could  be
\nshown  to the satisfaction of the NDMC that such  a  measure
\nwould  better promote fire safety in the building and,\tpro-
\nvided  further, that they are located on external walls\t “by
\ncantilever  projection\tor in any other manner”\t abutting  a
\nvacant\tspace  from  which rescue  operations  are  rendered
\npossible.  If such rectifications to the plans are made\t and
\nsubmitted within 3 weeks from today, the NDMC will  consider
\nand  decide the question of according sanction to the  plans
\nin the light of the observations in this order\tand–without
\ninsisting  upon any fresh clearance from DUAC or  the  Chief
\nFire  Officer-within 3 weeks thereafter and report  to\tthis
\nCourt the decision taken upon such re-construction.\n<\/p>\n
     This  appeal shall be kept pending and be taken-up\t for
\nfinal  disposal after the submission of the report from\t the
\nNDMC in this behalf. If respondents 1 and 2 are aggrieved by
\nsuch  fresh decision of the NDMC, those grievances shall  be
\nconsidered in the further proceedings in the appeal.\n<\/p>\n
     21.  It  was also submitted to us\tthat  pending  final
\ndecision,  respondents 1 and 2 should be permitted  to\tcom-
\nmence  the construction as delays had entailed serious\tcost
\nand time over-runs. We permit
\n614<\/span>
\nrespondents, at their option, to commence the  construction-
\nwork according to the plans submitted by them, on the condi-
\ntion  that they file a written undertaking before  the\tNDMC
\nthat  the construction would be at the risk of the  Respond-
\nents  1 & 2 and it would not progress beyond a height of  15
\nmetres\tand  in the event of an ultimate  rejection  of\t the
\nplans,\tthey  would have no claim against the NDMC  for\t any
\nloss occasioned to respondent 1 and 2.\n<\/p>\n
    22. The appeal is directed to be called after 6 weeks to
\nawait the further report of the NDMC referred to in para  20
\nsupra. Ordered accordingly.\n<\/p>\n
T.N.A.\n<\/p>\n
615<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N.D.M.C vs Statesman Ltd on 24 October, 1989 Equivalent citations: 1990 AIR 383, 1989 SCR Supl. (1) 591 Author: M Venkatachalliah Bench: Venkatachalliah, M.N. (J) PETITIONER: N.D.M.C. Vs. RESPONDENT: STATESMAN LTD. DATE OF JUDGMENT24\/10\/1989 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) MISRA RANGNATH CITATION: 1990 AIR 383 1989 SCR Supl. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-248467","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN.D.M.C vs Statesman Ltd on 24 October, 1989 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-d-m-c-vs-statesman-ltd-on-24-october-1989\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.D.M.C vs Statesman Ltd on 24 October, 1989 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/n-d-m-c-vs-statesman-ltd-on-24-october-1989\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"1989-10-23T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-03-28T19:58:01+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"45 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/n-d-m-c-vs-statesman-ltd-on-24-october-1989#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/n-d-m-c-vs-statesman-ltd-on-24-october-1989\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"N.D.M.C vs Statesman Ltd on 24 October, 1989\",\"datePublished\":\"1989-10-23T18:30:00+00:00\",\"dateModified\":\"2017-03-28T19:58:01+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/n-d-m-c-vs-statesman-ltd-on-24-october-1989\"},\"wordCount\":7329,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/n-d-m-c-vs-statesman-ltd-on-24-october-1989#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/n-d-m-c-vs-statesman-ltd-on-24-october-1989\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/n-d-m-c-vs-statesman-ltd-on-24-october-1989\",\"name\":\"N.D.M.C vs Statesman Ltd on 24 October, 1989 - 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