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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. (1) 591

1989 SCC Supl. (2) 547 JT 1989 (4) 207

1989 SCALE (2)877

ACT:

Punjab Municipal Act, 1911: Sections 193(3), Building Bye-

Laws for Union Territory of Delhi, 1983: Bye-Laws 2.27,

16.4.8 and 16.4.8.1--Fire Safety Measures--"Refuge

Areas"--Requirement of Bye-Laws--Not inflexible--The words

"in any other manner"--Do not envisage a totally different

idea of the location of "Refuge Areas"-Suggest some feasible

alternative to the technical design of the construction of

the "Refuge Area"--Purpose of Refuge Area explained.

Reduction in the extent of "Refuge-Area"--Permissibility

of-Building plan--Fire Safety Measures--Clearance given by

Chief Fire Officer--Whether conclusive and binding on the

Corporation-Whether Corporation can examine the question

independently.

"External-wall"--Provision intended to promote public

safety, health and well-being--Refuge Area to be provided on

the "external-wall"--Building plan providing refuge area

abutting into an inner vacant space--Whether satisfies

requirement.

National Building Code of India, 1983: Part IV- Pre-

scriptions for "Fire Precaution"--Envisage certain broad

minimal assurances for fire-safety--Better and more reliable

measures ought not to be excluded.

Delhi Development Act, 1957: Section 9(2) Zonal Develop-

ment Plan--Zone D-1 (Connaught Place Area) Building

Plan--Provision for "Podium/Pedestrian Walk-way' '--Feasi-

bility and necessity of.

Delhi Urban Art Commission Act, 1973: Section 12: 'Buil-

ding operations'/'Development proposals'--Approval by

local body-Reference to Urban Arts Commission for scrutiny.

Constitution of India, 1950: Article 136--Appeal--Rais-

ing new issues--Supreme Court can consider if matters are of

general public importance.

592

HEADNOTE:

The respondent company obtained sanction of a building

plan from the-New Delhi Municipal Committee for the con-

struction of a building on a plot held by it on lease. After

incorporating certain changes, the respondent company sub-

mitted a revised plan for sanction of the New Delhi Munici-

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pal Committee, but the same was rejected by an order Dated

18.12.1987.

A rectified plan was thereafter submitted by the re-

spondent to the New Delhi Municipal Committee, for necessary

sanction, but as no orders were received, the respondent

filed a writ petition in High Court seeking a direction to

the New Delhi Municipal Committee to deal with the same for

grant of necessary sanction.

During the pendency of the aforesaid writ proceedings

the Delhi Urban Art Commission approved the plans as re-

quired under Section 12 of the Delhi Urban Art Commission

Act, 1973. The Chief Fire Officer also gave clearance to the

building plans in relation to the Fire Safety Precautions.

The High Court allowed the Writ Petition by an Order

dated 28.4.1989 holding that inspite of the clearance grant-

ed by the Urban Art Commission and the Chief Fire Officer,

New Delhi Municipal Committee's disinclination to accord the

sanction was unjustified, and directed the New Delhi Munici-

pal Committee to convey the formal sanction in respect of

the building plans.

In appeal to this Court, it was contended on behalf of

the New Delhi Municipal Committee, that (i) in the matter of

fire safety requirements, the building plans were not in

accordance with Building Bye-Laws for the Union Territory of

Delhi, 1983; (ii) The clearance given by the Chief Fire

Officer is not binding on the New Delhi Municipal Committee

which can examine the question independently of such clear-

ance and (iii) the proposed building plan does not provide

for a 'Podium"/"Pedestrian Walk-way" as required under the

approved Zonal Development Plan under Sec. 9(2) of the Delhi

Development Act, 1957.

Setting aside the High Court Order dated April 28, 1989,

this Court,

HELD: 1. The requirements of Bye-Laws 16.4.8 arc not

inflexible and in appropriate cases where the plans and

designs incorporate fire safety measures which, in judgment

of the Corporation are

593

considered to provide for the safety in a measure better

than those envisaged by the bye-laws 16.4.8 the Corporation

would not be precluded from accepting them i.e. if a build-

ing-design incorporate fire safety measures in a measure

promoting fire safety precautions far better than those

suggested by the Bye-laws they should not fetter the hands

of the licencing authority to accept them. [609H; 610A,

609C]

1.1 Whether the plans submitted by Respondent distribut-

ing Refuge-Area in each floor provide such a better and more

reliable fire safety measures is a matter for the decision

of the Corporation. [610A]

1.2 It is, of course, wise in the interests of uniformi-

ty of administration of these Bye-laws and of elimination of

possible complaints of' partisanship, that the Corporation

should insist upon adherence to the requirements of the

Bye-law 16.4.8 on its own strict terms. That should not,

however, denude the power of the Corporation to accept

designs which, in its judgment offer and incorporate fire

safety precautions of higher measure. [608H: 609A]

1.3 When fast and sweeping changes are overtaking the

fundamental ideas of building design and construction and

new concepts of building material emerging, it would be

unrealistic to impute rigidity to provisions essentially

intended to promote safety in building designs. [609A]

2. The clearance from the Chief Fire Officer envisaged

by Bye-law 17.1 is an additional condition and not a limita-

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tion on the power of the Corporation to satisfy itself that

the building plans provide for adequate fire safety precau-

tion in accordance with its bye-laws or in a better measure.

The clearance by the Chief Fire Officer, which is expected

to involve and follow a technical assessment and evaluation,

obliges the Corporation to give due weight to it but, having

regard to the scheme and language of the bye-laws the deci-

sion of the Chief Fire Officer is not binding on the Corpo-

ration. [609E]

2.1 The clearance of the plans by the Chief Fire Offi-

cer would not render it obligatory on the part of the Corpo-

ration ipso facto to treat the plans as necessarily comply-

ing with the requirements of relevant bye-laws. While the

clearance by the Chief Fire Officer is an indispensable

condition for eligibility for sanction, however, such clear-

ance, by itself, is not conclusive of the matter nor binding

on the Corporation which is entitled to examine the question

independently of such clearance from the Chief Fire Officer.

[609G; 610B]

594

3. Bye-law 16.4.8.1 requires that Refuge-Areas shall be

provided on the "external Walls" by means of cantilever

projections or "in any other manner". The words "in any

other manner" in Bye-law 16.4.8.1 are not intended to envis-

age a totally different idea of the location of Refuge

Areas, but, prima facie, intended to suggest some feasible

alternative to the technical design of the construction of

the Refuge Area--whether it should be a cantilever projec-

tion or designed in some other way. The purpose of Refuge

Areas include that in the event of an out-break of fire in

the building, persons exposed to the hazard should be able

to have immediate access to a place of safety which by its

access to fresh air insulates them from heat and smoke and

further that those persons could conveniently be extricated

and rescued to safety by rescue operations. Therefore,

"Refuge Areas" must be located on walls which open into

vacant space from which rescue operations are possible.

[610C, 611B, 610D-G]

3.1 The word "external wall" in bye-law 16.4.8.1 which

is a provision intended to promote public safety, health and

well being must receive a purposive construction which

promotes those objects and purposes. Having regard to the

very purpose of providing for Refuge Areas the expression

"external wall" must be held to be one which abuts a vacant

space to which fighting and rescue equipment can have access

and from which rescue operations are feasible. [610D; 610F]

3.2 In the instant case, the Refuge Areas are provided

on the wails that open into an inner vacant space. Refuge-

Area located on a wail though abutting an inner vacant space

would not, by itself, promote the object if the vacant space

is such that no rescue operations are possible to be con-

ducted therefrom. If the fire fighting and rescue equipment

cannot have access to such inner vacant space, then, in the

context of the specific objectives of bye-law 16.4.8.1 the

wail abutting such inner vacant space would not be an

"external wall" for the purpose of the said bye-law. The

Corporation should decide this question and examine whether

such rescue operations are feasible from the inner circular

vacant space. This is an exercise individual to each case

and to be judged on case to case basis. [610C; E, H; 611A]

4. Though the Zonal Development Plans envisaged a raised

pedestrian walk-way on either side of Barakhamba Road and

the provision for podia connecting the building with the

walk-way were accepted and an appropriate notification

issued way back in 1966, no steps appear to have been taken

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to give effect to them in a uniform manner. In fact several

authorities including a Committee constituted by the Lt.

Gover-

595

nor of Delhi in 1983, and the Chief Fire Officer, have

advised against the implementation of the proposal. In such

circumstances insistence to have such a pedestrian walk-way

for the building, if such walk-ways do not already obtain in

other buildings on the Road, requires reconsideration.

Moreover, the insistence for provision of such a walk-way in

an individual case without the integration and continuation

of the walk-way along the whole of the road, would indeed,

be purposeless. [611G-H; 612A-B]

[Respondent to effect such rectifications to 'the plans

in regard to the Refuge Area as may be necessary, the New

Delhi Municipal Committee to consider and decide the ques-

tion of according sanction to the plans without insisting

upon any fresh clearance from Delhi Urban Arts Commission or

the Chief Fire Officer. Appeal to be kept pending and be

taken for final disposal after the submission of the report

from New Delhi Municipal Committee]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4447 of

1989.

From the Judgment and Order dated 28.4. 1989 of the

Delhi High Court in C.W.P. No. 3090 of 1987.

Kapil Sibal, Manoj Prasad and Dalveer Bhandari for the

Appellant.

F.S. Nariman, Soli J. Sorabjee, H.N. Salve and K.J. John

for the Respondents.

The following Order of the Court was delivered by

VENKATACHALIAH, J. The New Delhi Municipal Committee

(NDMC) seeks special leave to appeal to this court from the

order dated 28.4. 1989, of the High Court of Delhi in Civil

Writ Petition 3090 of 1987. In the writ petition, Statsman

Ltd., and its Managing Director, Respondents 1 and 2 respec-

tively herein, sought to impugn the decision of the NDMC

dated 18.2. 1987, declining to sanction the Revised-Plans

for the construction of "Statesman-House"--a high-rise

building on plot No. 148, Barakhamba Road New Delhi, of

which the first respondent is the lessee. The High Court

allowed the writ-petition and directed the NDMC to convey

its formal sanction of the building plans on or before the

5th day of May, 1989.

The NDMC assails the decision of the High Court on grounds,

596

principally, that the plans for the multi-storeyed high-rise

building, as proposed by Statesman Ltd., did not, in the

matter of the fire-safety requirements, accord with the

mandatory requirements of the Statutory Building Bye-laws

promulgated under the Punjab Municipal Act 1911, in relation

to the Union territory of Delhi and that the proposed build-

ing did not also provide for a "podium/pedestrian walk-way"

made mandatory by the Zonal Development Plan for Zone D-1

(viz. Connaught Place Area) approved by the Central Govern-

ment on 30th April 1966 in No. 21023(7)66 UD under Section

9(2) of the Delhi Development Act 1957.

We have heard Sri Kapil Sibal learned Senior Advocate

for the NDMC and Sri Nariman and Sri Soli J. Sorabjee

learned Senior Advocate for the Statesman Ltd and its Manag-

ing Director. Special Leave is granted.

2. Respondent No. 1, a publisher of Newspapers, holds a

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lease in perpetuity from Government of the plot No. 148,

Barakhamba Road, New Delhi. In the year 1980 Respondent No.

1 sought for, and obtained, permission from the Land Devel-

opment Officer, to erect a high-rise building of an area of

1,62,000 square feet and paid Rs.63,40,918 as betterment

levy. On 4.5.1982 it applied for, and on 29.8. 1980 ob-

tained, sanction from the NDMC of its building-plans, valid

for 2 years. The sanction was revalidated for a further

period of two years.

In June 1985, however, there was, it would appear,

prohibition on high-rise structures. But this prohibition,

in relation to Connaught Place area, was lifted on 18.7.

1986. On 29.12. 1986 Respondent No. 1 submitted Revised-

plans incorporating therein substantial changes in the plans

necessitated, as it was claimed, by the changing require-

ments of printing-technology and the plans as earlier sanc-

tioned did not meet these altered requirements. The new-

building, as envisaged by the revised-plans, would accommo-

date the printery of the Respondent 1, its offices and other

offices and business accommodation. On 7.1. 1987 the appel-

lant forwarded the Revised-plans to the Delhi Urban Art

Commission (DUAC) in compliance with the requirements of

Section 12 of the Delhi Urban Art Commission Act 1973 which

envisages that, notwithstanding anything contained in any

other law for the time being in force, every local body

shall, before according approval in respect of any "building

operations" or "development proposals" refer the same to the

DUAC for its scrutiny. Section 12 further provides that the

decision of the DUAC in that behalf shall be binding on such

local

597

body. The DUAC did not promptly scrutinise the plans but

engaged itself in some correspondence with the NDMC as also

with the Ministry of Urban Development, Government of India,

seeking what it referred to as the "requisite clarifica-

tions", "clear cut finalised policy" and "guidelines" for it

to be able to process the plans.

3. However, by communication dated 18.2. 1987, the NDMC

in exercise of power under Section 193(3) of the Punjab

Municipal Act, 1911, rejected the plans, assigning 28 rea-

sons for the rejection. On 14.5. 1987, the Architect of

First-Respondent claiming to have subsequently complied with

or clarified the points on which the rejection was based,

resubmitted the plans. On 26.5. 1987, the Architects wrote

to NDMC to reconsider its decision dated 18.2. 1987, in the

light of the rectifications effected. However, no positive

response having emanated from the NDMC Respondents 1 & 2, on

27.10.1987, filed the Writ-petition in the High Court for an

appropriate order directing the DUAC and the NDMC to "forth-

with deal with the application for grant of sanction".

Sometime in March 1988, the Chief Fire Officer, Delhi

Fire Services, and the Deputy Commissioner of Police (Traf-

fic), New Delhi, were impleaded to the proceedings. During

the pendency of the proceedings in the High Court, the DUAC

which had earlier considered the plans to be 'conceptually

unsatisfactory' took a decision to approve the plans. So did

the Chief Fire Officer who, by his communication dated

9.3.1988, gave clearance to the building-plans in relation

to the Fire-safety precautions. The High Court considered

the objection raised by the Deputy Commissioner of Police

(Traffic) as unrelated to the bye-laws as applicable to the

situation and held that the objection from that source

should not interdict the sanction of plans by the NDMC.

During the pendency of the proceedings, the High Court

required the parties to sort out their differences. On 9.12.

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1988, the High Court had occasion to say:

" ..... We have no doubt that the NDMC will

grant the final approval without wasting any

further time. In case the meeting of the

Building Plans Committee of NDMC is not sched-

uled to be held within two weeks, the NDMC

will so arrange that a special meeting is held

so that the matter is not delayed any further.

Case to be listed before Court for final

orders and disposal on February 3, 1989."

4. In the course of the order dated 28.4.1989 finally dis-

posing of

598

the writ-petition, the High Court after referring to what is

considered to be a co-operative attitude of the DUAC and

other authorities, however, had this to say of the NDMC:

"However, to our surprise on the

final date of arguments, that is, on 31.3.

1989 the NDMC changed its counsel and the

Standing Counsel for NDMC appeared instead of

Mr. H.P. Sharma, advocate who had been appear-

ing throughout ..... "

"But surprisingly NDMC was not willing to

take a decision and continued to raise frivo-

lous objections for reasons best known to it.

Inspite of the fact the clearance had been

granted by Urban Art Commission as also by all

other Authorities the sanction was not con-

veyed and was withheld for no reasons. This

attitude of NDMC is beyond our understanding.

Since I have come to the conclusion that no

objection remains from any Authority I am of

the opinion that non-sanction of the plans on

the part of the NDMC is absolutely unjustified

and cannot be supported by any reason whatso-

ever."

The High Court was persuaded to the view that NDMC's

disinclination to accord sanction to the plan was unjusti-

fied; that whatever reservations it had had as to the ade-

quacy of the fire-safety measures, as envisaged in the

Building designs, were allayed by the Chief Fire Officer's

clearance and held that, thereafter, there was no impediment

to the sanction. The High Curt, accordingly, directed the

NDMC:

" ..... to convey its formal sanction of the

building plans and release the same to the

petitioner Company on or before the 5th day of

May, 1989 ..... "

5. Before us, Appellant-NDMC has aired a serious griev-

ance both against the validity of the reasoning of and

conclusion reached by the High Court as also the manner of

the conduct of proceedings which were, according to the

appellant, initially more in the nature of efforts directed

towards the resolution of the dispute by mutual negotiation

than by adjudication, but acquired an adjudicative complex-

ion with such suddenness that appellant was denied a reason-

able opportunity of elaborating on the substantial issues,

of serious public importance pertaining, as they did, to a

vital area of fire-safety precautions in highrise buildings

as conceived in the Building Bye-laws. It is submitted

599

that the High Court failed to consider submissions of the

appellant on certain vital issues. In his affidavit dated

6.6. 1989, filed in this Court, Sri H.P. Sharma, learned

Advocate who appeared for the NDMC before the High Court

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stated:

" ..... Again, it is clear from the order

that the entire matter was being conducted in

a spirit of compromise which shows that in-

stead of adjudicating upon the issues in the

Writ Petition, parties to the petition were

required to resolve the matter amicably. On

March 31, 1989, Mr. S.D. Satpate, Chief Archi-

tect, NDMC and Mr. Karam Chand, Dy Architect,

NDMC were present in Court.

4. Counsel for NDMC informed to the

Court of the presence of the said persons who

were ready to assist the Court as certain

objections were still outstanding. However,

the Court did not ascertain from any of the

Officers if they had any objections. Conse-

quently, the Hon'ble Court was not informed of

the details of the said objections of the

NDMC. Instead, the Court issued Rule on the

same date and proceeded with the matter. I, as

counsel appearing on behalf of NDMC along with

Mr. Bikramjit Nayyar, Advocate requested the

Court that the NDMC wished. to file an Affida-

vit giving details of the outstanding objec-

tions. Time was sought to file the said affi-

davit. Counsel for NDMC also indicated that

the normal practice of the Court is to issue

Rule and thereafter fix the case for final

disposal giving an opportunity to the parties

to file additional affidavits, if any for the

disposal of the petition. However, the Court

declined the request and directed counsel for

NDMC to proceed with the hearing on that very

date. The matter was proceeded with and Judg-

ment was reserved on that date. During the

course of the hearing the standing counsel for

the NDMC raised the issue of the applicability

of Bye-law 16.4.8 of the applicable Building

Bye-laws of the NDMC and submitted that the

clearance of the Chief Fire Officer did not

prevent the NDMC from enforcing the applicable

bye-laws. Standing counsel for the NDMC also

submitted to the Court that the approval of

the DUAC was conditional. However, the Court

in the light of the statement of counsel for

the DUAC did not deal with the issue of the

applicability of Bye-law 16.4.8."

(Emphasis Supplied)

600

To similar purport and effect is the affidavit of Sri Sat-

pate the NDMC's Chief Architect.

6. Before we examine the specific contentions raised in

the appeal, it is necessary to refer to certain basic fea-

tures of the proposed building in relation of its fire-

safety aspects. The eligibility of the proposed construction

for sanction except on the point of adequacy of "Refuge-

areas" in the requirement of a "pedestrian walk-way" and

"Podium" is not otherwise disputed.

The proposed "Statesman-House" envisaged by the plans is

a fifteen storey, 55.2 meter-high structure its High-rise

portion being a cylindrical structure with a hollow-core

open to sky. On each of the floors above the 4th floor,

commencing above the height of 15 meters, there is a 5 foot

wide circular passage on the inner-side of the circle over-

looking the central vacant area. These passages which are

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connected to the lift-areas, provide access to the accommo-

dation on the respective floors. Only an arc of the circular

passage in each of the floors is visible from and overlooks

the front of the building. Respondent No. 1 claimed that

these inner-circular passages answer the description and

serve the purpose, of "Refuge-areas" required to be provided

as fire-safety measures. In so designing, the Architects

seek to combine general-utility and "Refuge-areas". The

question is whether this architectural and design resource-

fulness, which enables Respondent 1 to claim these, other-

wise essentially functional and utility-areas, also as

'refuge-areas' for fire-safety, really satisfies the re-

quirements of the Bye-laws.

7. We may now turn to the requirements of the Bye-laws

in this behalf. Fire-protection requirements, generally are

dealt with by bye-law 17.1 and 17.2 which provide:

"17.1 Buildings, shall be planned designed and

constructed to ensure fire safety and this

shall be done in accordance with part IV Fire

Protection of National Building Code of India,

unless otherwise specified in these bye-laws.

In the case of buildings (identified in Bye-

law No. 6.2.4.1), the building schemes shall

also be cleared by the Chief Fire Officer,

Delhi Fire Service"

"17.2 The additional provisions related to

fire protection of buildings more than 15m in

height and buildings identified in 6.2.4.1,

shall be as given in Appendix K."

601

The proposed building is over 15 meters in

height and attracts Bye-law 16.4.8 which,

inter alia, provides:

"Refuge Area--For all buildings exceeding 15 m

in height, refuge area shall be provided as

follows:

(a) For floors above 15m and upto 24m--one

refuge area on the floor immediately above

13m.

(b) For floor above 24m and upto 36m--one

refuge area on the floor immediately above

24m.

(c) For floor above 36m--one refuge area per

every five floors above 36m.

This Bye-law specifies the location, at various heights,, of

the "refuge-areas". The structural nature and basis of its

calculation of the extent of these "Refuge-areas" are dealt

with by Bye-law 16.4.8.1. which provides:

"Refuge area shall be provided on the external

walls as cantilever projections or in any

other manner (which will not be covered in

FAR) with a minimum area of 15 sq. mrs. and to

be calculated based on the population on each

floor at the rate of 1 sq. m. per person."

(Emphasis Supplied)

The expression "External Wall" is a defined

expression. Bye-law 2.27 says:

"An outer wall of a building not being a

partition wall even though adjoining to a wall

of another building and also means a wall

abutting on an interior open space of any

building."

In the plans, the disposition of the 'refuge-area' is,

admittedly, not in strict accord with the prescription of

Bye-law 16.4.8 which requires the location of 'refuge-areas'

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for a group of floors as specified therein. The Bye-law does

not contemplate one for each floor as now provided in the

plans. The 'refuge-areas' are not provided on the outer

"external" wall; but are on the wall abutting the inner

circular vacant space forming the floor of the hollow-care

of cylindrical structure. As the entrance is now designed

and conceived fire-fighting and rescue-

602

equipment cannot, it would appear, be carried into this

inner-area. But Respondent 1 claims that the walls on which

these refuge-areas are provided about the inner vacant space

and are eligible to be called 'External' walls within the

meaning of Bye-law 2.27.

The NDMC by its communication dated 14.3.1989 to the

Chief Fire Officer expressed its reservations as to the

correctness and propriety of the clearance to the plans

accorded by him on 9.3. 1989. By his reply dated 30.3. 1989,

the Chief Fire Officer, in justification of the approval

which he gave stated:

"the consultants have proposed refuge area at

each floor above 15m level, which is consid-

ered to be more convenient and reliable be-

cause there is hardly any scope of smoke

logging due to centre core open to sky."

(Emphasis Supplied)

8. The contentions urged by Sri Sibal in

support of the appeal are:

(i) Bye-Law 16.4.8 prescribes that in respect

of all buildings exceeding 15 metres in height

there shall be provision for refuge areas at

specific locations for a specific group of

floors. The requirement is mandatory as it is

guided by the considerations of the need to

direct and concentrate rescue-operations at

particular, pre-fixed locations. The Bye-law

is binding on the Chief Fire Officer who is

not competent to relax the rigor of its pre-

scriptions.

(ii) The 'external' walls spoken of by

Bye-law 16.4.8.1, though so defined in Bye-law

2.27 as to include a wall "abutting on an

interior open space of any building", however,

having regard to the purpose of the Bye-law

can only refer to an outer wall accessible to

the rescue-team. The definition is. as always,

subject to the context requiring a different

meaning. For purposes of Bye-law 16.4.87 an

"external" wall should be understood with

reference to an open area from which

rescue operations are possible.

In the present case the construction

of the Bye-law suggested by the respondent-

company would be justified only if fire fight-

ing and rescue operations could be conducted

from the inner open-space. In the present

case,

603

having regard to the lack of access to the

inner vacant space for fire-engines etc., the

proposition of Respondent- 1 is not even a

statable possibility.

(iii) The clearance from the Chief Fire Offi-

cer, Delhi Fire Service, envisaged in Bye-laws

17.1 is in addition to the requirements of

bye-laws 16.4.8. and 16.4.8.1. The said clear-

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ance is one of the conditions for eligibility

of the plan to be considered for accord of

sanction by the NDMC is not in substitution of

the requirement of compliance with the objec-

tive prescriptions of those bye-laws. The

primacy to the Chief Fire Officer's implicit

in the approach of the High Court is erroneous

and virtually renders the clearance of the

Chief Fire Officer binding on the NDMC. It is

the NDMC and NDMC alone that can decide wheth-

er the plans satisfy the Bye-laws in any

particular case.

A reasonable construction bye-laws

6.2.4.1, 16.4.8., 16.4.8.1, 17.1 and

17.2 would detract from the validity of the

first respondent's claim and establishes that

the clearance from the Chief Fire Officer is

one of the conditions and not the sole or

conclusive test of the adequacy of fire safety

measures in terms of the relevant Bye-laws.

(iv) The view of the Chief Fire Officer that

the design of the Refuge-areas in the plans is

"more convenient and reliable" is factually

and technically unsound as the very nature of

the cylindrical structure with a hollow-core

would promote a "stock" or chimney effect. The

Chief Fire Officer's view is not final or

conclusive on the point and, at all events,

not binding on the NDMC.

(v) The construction of a Pedestrian walk-way

and Podium are mandatory not under the bye-

laws but from the requirements of a zonal plan

of zone D- 1 in which plot No. 148, Barakhamba

Road is located and that no relaxation of the

requirement would be permissible except on a

modification of the relevant Zonal Development

Control Plans.

The provision for "pedestrian walk-

way" and "podium" is, therefore, mandatory

under the Zonal Development Plan and that no

authority including the Chief Fire Officer

could compel an abandonment of those statutory

presumptions.

604

(vi) That in the manner in which the case

before the High Court proceeded the NDMC was

denied a reasonable and effective opportunity

of presenting its case. Considerations of

public safety underlying the stand of the NDMC

was not properly appreciated and the NDMC

should have been afforded an opportunity to

substantiate its valid objections to the

plans.

(vii) The grant of relief in the writ petition

in the form of a direction to the appellant to

sanction the plan was not permissible and

that, at best, the High Court could have

directed the appellant to reconsider the

question of according sanction to the plans in

the light of the High Court's order.

9. Sri Nanman, for the respondent-company however,

submitted that the objection to the plans raised by the

appellant on the basis that the refuge-areas were not in

accordance with the Bye-laws was a classic after-thought on

the part of the Appellant. Bye-laws 16.4.8 and 16.4.8.1

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learned counsel urged, were merely prescriptive of certain

minimal standards of fire-safety precautions, it being

always open to the owner to build-into the designs better

and more satisfactory standards of fire-safety precautions

and that in the present case the Chief Fire Officer who was

a technical authority, had himself accepted the designs in

that behalf as better and more reliable. Learned counsel

urged that out of the 28 reasons put forward by the appel-

lant on 18.2. 1987 in support of the rejection of the plans,

not even one referred to its present insistence that the

refuge-areas should be built only at the levels suggested in

the Bye-law or that the refuge-area did not abut the "exter-

nal wall"- Shri Nariman further pointed out that in the

communication dated 18.2.1987 all that was sought to be

said, with reference to the refuge-areas in each floor, was

that the same had not been taken into account in the calcu-

lation of the F.A.R.

Shri Nariman said that bye-law 16.4.8 in its language

and content had been bodily lifted from the corresponding

prescriptions in the "National Building Code of India"

(1983), from the provisions of part IV relating to "Fire

Protection". The said Code itself indicated that the norms

in regard to fire-protection referred to therein were only

broad guide-lines and were not to be construed to prohibit

better arrangements. Shri Nariman referred to the following

excerpts from part IV of the said Code at para 0.2 and 0.7:

605

" ..... An indefinite combination

of variable is involved in the phenomenon of

fire, all of which cannot be quantified. The

requirements of this Code should, therefore,

be taken as a guide and an engineering design

approach should be adopted for ensuring a fire

safe design for buildings. It would also be

necessary for this purpose to associate quali-

fied and trained fire protection engineers

with the planning of buildings, so that ade-

quate fire protection measures could be incor-

porated in the building design fight from the

beginning."

(Emphasis Supplied)

"0.7. Nothing in this part of the

Code shall be construed to prohibit better

types of building construction, more exits or

otherwise safer conditions than the minimum

requirements specified in this part."

(Emphasis Supplied)

It was, accordingly, urged that the prescriptions in bye-law

16.4.8. and 16.4.8.1 were not inflexible and wherever more

liberal and better standards of fire precautions were incor-

porated in the designs, the bye-laws did not prevent such

better measures being adopted by the licencing authority. It

was further urged that the Chief Fire Officer was the au-

thority competent to decide questions whether the provisions

incorporated in the designs were better and more liberal and

that his decision in the matter ought to be conclusive and

binding on the licencing authority. In regard to the adequa-

cy and acceptability of fire safety measures in the build-

ing-design, it was urged, the bye-law, recognised and ac-

corded a primacy of place to the decision of the Chief Fire

Officer and that, indeed, para K-1 of Appendix-K 'read with

bye-law 17.2 recognised the importance of, and finality, to

the decision of the Chief Fire Officer. The said para K- 1

Appendix-K reads:

"K- 1 In addition to the provision

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of Part IV Fire Protection of National Build-

ing Code of India, the Chief Fire Officer,

Delhi Fire Service may insist on suitable

provisions in the building from fire safety

and fire fighting point of view depending on

the occupancy and height of buildings."

The decision of the Chief Fire Officer to accept the

distribution of refuge areas in each of the floors, it was

said, was referable to the general power of the Chief Fire

Officer to issue such directions. In the

606

present case, it was urged, the designs providing for refuge

areas in the ratio of one sq. metre per person on each floor

was considered by the Chief Fire Officer as a better and

more reliable fire safety measures than those envisaged by

the bye-laws and the Chief Fire Officer preferred to accept

them.

Shri Nariman sought to point out that in the Annexure B.

1 to the Affidavit dated 7.7.1989 of respondent No. 2 a list

of six buildings had been set-out respecting which the

sanctions granted by the NDMC indicated that the local body

had itself understood the prescriptions in the bye-laws to

be flexible and had further limited the extent of the Ref-

uge-Areas to 0.3 sq. metre per person as against 1 Sq. metre

per person set-out in bye-law 16.4.8.1.

10. As to the requirement of bye-law 16.4.8.1 that the

refuge area shall be provided on the "external walls" is

concerned, Shri Nariman relied upon the definition in Bye-

law 2.27 to say that a wall abutting an inner vacant space

is also an "external wall" and the acceptance of the cor-

rectness of this position was implicit in the clearance

given by the Chief Fire Officer. The words "in any other

manner" in Bye-law 16.4.8.1 it is urged, makes room for the

requisite flexibility.

11. In regard to the "pedestrian walk-way and "podium"

it was pointed out that the insistence upon these was again,

a glaring instance of the inexhaustible resourcefulness of

the appellant to thwart Respondent's project. It was pointed

out that none of the 28 objections raised in the NDMC's

communication dated 18.2.1987; nor the further objections

raised on 6.2.1989; nor, indeed, the objections raised by

NDMC on 14.3. 1989, to the clearance given by the Chief Fire

Officer--who, incidentally, had advised the deletion of

podium in view of the obstruction it would present the fire

brigade appliances,--had the NDMC raised the question of the

alleged infirmity in the plans for want of provision for the

walk-way and Podium. It was also pointed out that in none of

the counter-affidavits filed in the High Court nor in the

memorandum of Special Leave Petition; nor in the written

submissions filed before this Court had this question been

agitated by the NDMC. It was pointed out that the committee

constituted by the order No. 10(24) RN-83/731/7714-24 dated

13.6.1983 made by the Lt. Governor, Delhi, had in its report

of 5.2.1986 suggested the doing away with the proposal to

construct a raised pedestrian walk-way on either side of

Barakhamba Road as, in the view of the committee, the "head

clearance under this proposed walk-way will be such that

cars

607

will be able to pass under it, but fire/rescue appliances

will not be able to approach any where near the buildings

beyond the raised walkway." It was pointed out that the

committee was also of the opinion that these walk-ways, if

and when constructed, would nullify all fire safety measures

in the buildings on either side of the Barakhamba Road. Shri

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Nariman referred to the advice of the Chief Fire Officer

with regard to the present plans themselves that the walk-

way and the podium be dispensed with.

It was, therefore, urged that the insistence on the

construction of the pedestrian walk-way while being wholly

undesirable, was also a glaring instance of how by these

after-thoughts appellant made manifest its determination to

delay and defeat respondent's project.

12. On the contentions urged, the points

that fall for consideration are:

(a) Whether Bye-law 16.4.8 as to the

disposition and location of the "Refuge Areas"

prescribes an inflexible, rigid standard and

whether the location and distribution of the

refuge areas in each floor is violative of the

Bye-law?

(b) If point (a) is held in the nega-

tive, whether the clearance given to the plan

by the Chief Fire Officer, on the view that

distribution of the refuge-areas in each floor

is a better and more reliable fire safety

measure is conclusive and binding on the NDMC.

In other words, is it open to the NDMC to

examine and decide the question independently

of the Chief Fire Officer's clearance?

(c) Whether the Refuge Areas located on

the walls abutting the inner vacant area be

held to satisfy the requirements of Bye-law

16.4.8.1?

(d) Whether the extent of 'Refuge Area'

requires to be reduced from 1.0 sq. metre per

person to 0.3 sq. metre per person?

(e) Whether the NDMC is justified in

insisting upon the erection of "Pedestrian

Walk-way" and a "Podium" in front of the

proposed building?

13. Re: points (a) and (b): A number of affidavits and

counter-

608

affidavits are placed before us on the scope of the Bye-

laws. It is not necessary to examine all of them as the

matter is essentially one of construction of the provision

itself. The contents of Bye-laws 16.4.8 and 16.4.8.1 are

borrowed from Part IV dealing with "Fire Precaution" in the

National Building Code of India, 1983. The Code conceives of

these prescriptions as only broad guide lines. But the

Building Bye-laws in the present case which have drawn on

these provisions from the Code have, however, assimilated

them as part of the statutory prescriptions under the Bye-

laws. The NDMC says that once this is done the norms are no

longer directory but assume statutory import and become

mandatory.

In the infinite variety of ways in which the problem of

adequate fire safety measures to be incorporated in build-

ings present themselves, and having regard to the wide and

complex range of situational variations in the location,

character and design of buildings and their disposition in

relation to the other factors influencing the evaluation of

such safety-measures, a view favoring flexibility of ap-

proach ought to commend itself. The National Building Code

of India, from which the substance of the Bye-laws are

drawn, indicates that these are concerned with indicating

certain broad minimal assurances for fire-safety and that

better and more reliable measures ought not to be excluded.

We are not, however, impressed by the submission that

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the six instances cited in Annexure B- 1 to Affidavit dated

7.7.1989 of respondent No. 2 are really instances demon-

strating departure, from the present stand of the appellant.

indeed, appellant points out that out of the six buildings

referred to in Annexure B-1, only two i.e. No. 23, Barakham-

ba Road and DLF Plaza, 21-22, Narendra Place, were dealt

with by the NDMC and that the rest were dealt with by the

D.D.A. The affidavit of Shri Karamchand, Architect, NDMC

overs that no sanction was given in respect of No. 23,

Barakhamba Road and that no departure from Bye-laws 16.4.8,

as understood by the NDMC, was involved in the case of the

DLF Plaza building. The explanation offered is, in our

opinion, acceptable and, nothing much turns upon the cases

referred to in Annexure B- 1.

14. But that is not to say that the rigid interpretation

sought to be placed by the appellant on the bye-law 16.4.8

and 16.4.8.1 is justified. It is, of course, wise in the

interest of uniformity of administration of these Bye-laws

and of elimination of possible complaints of partisanship,

that the NDMC should insist upon adherence to the require-

ments of the Bye-law 16.4.8 on its own strict terms. That

609

should not, however, denude the power of the appellant to

accept designs which, in the judgment of the appellant,

offer and incorporate fire safety precautions of higher

measure. When fast and sweeping changes are overtaking the

fundamental ideas of building design and construction and

new concepts of building-material are emerging, it would be

unrealistic to impute regidity to provisions essentially'

intended to promote safety in building designs. As suggested

in the National Building Code Bye-law, provisions such as

Bye-law 16.4.8 envisage certain minimal safety standards

compliance with which should, generally, be insisted in

order that there be uniformity and equal treatment and an

elimination of imputations of favoritism and arbitrariness.

If a building-design incorporates fire safety measures in a

measure promoting fire safety precautions far better than

those suggested by the Bye-laws, they should not fetter the

hands of the licensing authority to accept them. Under the

relevant statute and the Bylaws, the authority to grant or

refuse the licence is the NDMC. It has the power to decide

whether any proposals are an improvement on the prescrip-

tions contained in the Bye-laws--which, indeed, is a matter

of some complexity and, in conceivable cases, one calling

for expertise-is the NDMC itself. From the way the National

Building Code, from which the provision is borrowed, has

treated such provisions, it is not unreasonable to presume

that the requirements were incorporated in the Bye-laws with

a similar approach as to their import. The clearance from

the Chief Fire Officer envisaged by Bye-law 17.1 is an

additional condition and not a limitation on the power of

the NDMC to satisfy itself that the building plans provide

for adequate fire safety precaution in accordance with its

bye-laws or in a better measure. The clearance by the Chief

Fire Officer, which is expected to involve and follow a

technical assessment and evaluation, obliges the NDMC to

give due weight to it but, having regard to the scheme and

language of the Bye-laws the decision of the Chief Fire

Officer is not binding on the NDMC. We accept the submis-

sions of Shri Sibal that clearance of the plans by the Chief

Fire Officer would not render it obligatory on the part of

the NDMC ipso facto to treat the plans as necessarily com-

plying with the requirements of relevant Bye-laws. While the

clearance by the Chief Fire Officer is an indispensable

condition for eligibility for sanction, however, such clear-

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ance, by itself, is not conclusive of the matter nor binding

on the NDMC.

15. On the material placed before us we are inclined to

hold on points (a) and (b) that the requirements of Bye-laws

16.4.8 are not inflexible and that in appropriate cases,

where the plans and designs incorporate fire safety measures

which, in judgment of the NDMC, are considered to provide

for the safety in a measure better than those

610

envisaged by the Bye-laws 16.4.8, the NDMC would not be

precluded from accepting them. Whether the plans submitted

by Respondent 1 distributing 'Refuge-Areas' in each floor

provide such a better and more reliable fire safety measure

is a matter for the decision of the NDMC. We also hold that

the clearance from the Chief Fire Officer in this behalf

though entitled to weight, would not be binding on the NDMC

which can and is entitled to examine the question independ-

ently of such clearance from the Chief Fire Officer.

16. Re: point (c): Bye-law 16.4.8.1 requires that Ref-

uge-Areas shall be provided on the "external walls" by means

of cantilever projections or "in any other manner". In the

present-case the Refuge Areas are provided on the walls that

open into an inner vacant space. They are provided on walls

which respondents say are "external walls" having regard to

the definition of that expression in Bye-law 2.27. The

definition is not conclusive; but is subject to the context

indicating a contrary import. The purposes of refuge areas

include that in the event of an out-break of fire in the

building, persons exposed to the hazard should be able to

have immediate access to a place of safety which by its

access to fresh air insulates them from heat and smoke and

further that those persons could conveniently be extricated

and rescued to safety by rescue-operations. The word "exter-

nal wall" in Bye-law 16.4.8.1 which is a provision intended

to promote public safety, health and well-being must receive

a purposive construction which promotes those objects and

purposes. Refuge-area located on a wall though abutting an

inner vacant space would not, by itself, promote the object

if the vacant space is such that no rescue operations are

possible to be conducted therefrom. If the fire fighting and

rescue equipment cannot have access to such inner vacant

space, then, in the context of the specific objectives of

bye-laws 16.4.8.1, the wall abutting such inner vacant space

would not be an "external" wall for purposes of the said

bye-law. Having regard to the very purpose of providing for

"Refuge-Areas" intended, as it is, to secure protection to

persons in the event of an out-break of fire in a high-rise

building, the expression "external wall" must be held to be

one which abuts a vacant space to which fighting and rescue

equipment can have access and from which rescue-operations

are feasible. We find it difficult to accept the submissions

of Sri Nariman based purely on the definition in Bye-law

2.27. The definition is subject to the context suggesting or

requiring a different meaning. The context here does suggest

such a different import. Having regard to purpose Bye-law

16.4.8.1 is intended to serve "Refuge-Areas" must be located

on walls which open into vacant space from which rescue

operations are possible. NDMC should decide this question

and examine whether such rescue

611

operations are feasible from the inner circular vacant

space. This is an exercise individual to each case and to be

judged on case to case basis. The words 'in any other man-

ner' in Bye-law 16.4.8.1 are not intended to envisage a

totally different idea of the location of 'Refuge Areas'

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but, prima facie, intended to suggest some feasible alterna-

tive to the technical design of the construction of the

Refuge-Area--Whether it should be a cantilever projection or

designed in some other way. Point (c) is held and answered

accordingly.

17. Re: point (d): One of the contentions raised by Sri

Nariman was that the insistence of 1 sq. m. per person for

calculating the extent of the Refuge Areas is discriminatory

as the NDMC had reduced the requirement only to 0.3 sq. m.

per person in many other similar highrise buildings.

In the course of the counter-affidavit filed by Sri

Karam Chand, Architect of NDMC, this claim that the extent

of refuge area could be calculated at 0.3 sq. metre per

person instead of 1.0 sq. metre per person is not disputed.

Indeed, it is stated in the said affidavit:

" ..... The NDMC does not have any objection

to the provision of 1.0 sq. metre per person

as required by by-law 16.4.8.1. In the event

the Statesman Limited wish to provide only 0.3

sq. metre per person in accordance with the

resolution of August 4, 1988, the NDMC would

have no objection to the same and the States-

man Limited in this regard be directed to

amend their building plans in accordance with

their desires ..... "

Respondents are therefore at liberty to limit the Ref-

uge-Areas to 0.3 sq. metre per person as against 1.0 sq.

metre per person.

18. Re: point (d): This relates to the insistence on

construction of a "pedestrian walk-way" and a "podium"

parallel to Barakhamba Road in front of the proposed build-

ing. Though the zonal development plans envisaging a raised

pedestrian walk-way on either side of Barakhamba Road and

the provision for podia connecting the building with the

walk-way were accepted and an appropriate notification

issued way back in 1966, no steps appear to have been taken

to give effect to them in a uniform manner. In the very

nature of the concept of a pedestrian walk-way on either

side of the road, the insistence for provision of such a

walk-way in an individual case without the integration and

continuation of the walk-way along the whole of the road,

612

would indeed, be purposeless. Several authorities, including

a committee constituted by the Lt. Governor of Delhi in 1983

and the Chief Fire Officer, have advised against the imple-

mentation of the proposal. In the instant case the Chief

Fire Officer has, it is not disputed, expressly opined

against the desirability of such a 'walk-way'. The NDMC has

to bestow serious re-consideration on its insistence to have

such a pedestrian walk-way for the building, if such walk-

ways do not already obtain in other buildings on the Road.

The only way in which, perhaps, the zonal developmental

requirements in this behalf and the difficulties and prob-

lems inherent in the insistence upon construction of such

pedestrian walk-way in an isolated particular case, could be

reconciled is to direct the NDMC, in the event of its ap-

proving the plans otherwise, to keep the requirement of the

pedestrian walk-way and the podium in abeyance for the

present, subject to a written-undertaking to be lodged with

it by the respondent 1 and 2 to the effect that whenever the

policy to implement the Zonal Developmental requirements in

this behalf is finally decided upon, the respondent 1 and 2

would undertake to put-up such a pedestrian walk-way and

Podium. The NDMC also, if it so chose, could secure the

requisite financial guarantees for the construction of such

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a pedestrian walk-way by the NDMC itself at the expense of

the respondent if Respondent 1 and 2 fail to do so whenever

so required. This course would, while ensuring the prospect

of compliance with the Zonal Development prescriptions, if

they are decided to be put into effect, also allay the

apprehension of Respondent 1 and 2 that Governmental author-

ities are dealing with the Statesman's project with 'an evil

eye and an uneven hand. Point (d) is answered accordingly.

19. We might advert here to the grievance of Respondent

1 and 2 that the NDMC did not raise, at the appropriate

stage, any specific objections to the plans on the ground

that either they were not in conformity with Bye-law 16.4.8

or 16.4.8.1 or that the plans were .defective for want of

pedestrian walk-way. Objection based on bye-law 16.4.8.1, it

was urged, was never in mind of the NDMC. These objections,

it was urged, were developed from stage to stage leaving the

inference inescapable that the NDMC was pre-determined to

decline the sanction for the 'Statesman-House' on one ground

or another.

We are afraid, the way NDMC has developed its stance

from time to time incurs and perhaps justifies this griev-

ance. Indeed, at no stage of the proceedings before the High

Court, or even in important

613

communications bearing on the question of the sanction, did

the NDMC refer to the specific objection based on the lacuna

that Refuge Areas were not located on the "external" walls,

as interpreted by the NDMC and the lack of a provision for

the pedestrian walk-way. Sri Nariman urged that we should

not permit the NDMC to raise these belated and laboured

objections.

We have considered these submissions. We have proceeded

to consider the contentions of the NDMC even on these points

on the merits in view of the fact that they are matters of

some general public importance, though we are not unmindful

that the NDMC has not been business-like in the way it has

dealt with the question from time to time.

20. It is for this reason that though in view of the

findings recorded on the various contentions, the order

dated 24.4. 1989 of the High Court requires to be and is

hereby set aside, however, we keep this appeal pending for

such final orders and directions as may become necessary to

be issued. In the meanwhile. We permit Respondent 1 and 2 to

effect such rectifications to the plans in regard to the

Refuge Area as may be necessary in the light of the observa-

tions in this order. The refuge-areas could be located in

each of the floors separately, provided that it could be

shown to the satisfaction of the NDMC that such a measure

would better promote fire safety in the building and, pro-

vided further, that they are located on external walls "by

cantilever projection or in any other manner" abutting a

vacant space from which rescue operations are rendered

possible. If such rectifications to the plans are made and

submitted within 3 weeks from today, the NDMC will consider

and decide the question of according sanction to the plans

in the light of the observations in this order and--without

insisting upon any fresh clearance from DUAC or the Chief

Fire Officer-within 3 weeks thereafter and report to this

Court the decision taken upon such re-construction.

This appeal shall be kept pending and be taken-up for

final disposal after the submission of the report from the

NDMC in this behalf. If respondents 1 and 2 are aggrieved by

such fresh decision of the NDMC, those grievances shall be

considered in the further proceedings in the appeal.

21. It was also submitted to us that pending final

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decision, respondents 1 and 2 should be permitted to com-

mence the construction as delays had entailed serious cost

and time over-runs. We permit

614

respondents, at their option, to commence the construction-

work according to the plans submitted by them, on the condi-

tion that they file a written undertaking before the NDMC

that the construction would be at the risk of the Respond-

ents 1 & 2 and it would not progress beyond a height of 15

metres and in the event of an ultimate rejection of the

plans, they would have no claim against the NDMC for any

loss occasioned to respondent 1 and 2.

22. The appeal is directed to be called after 6 weeks to

await the further report of the NDMC referred to in para 20

supra. Ordered accordingly.

T.N.A.

615