# N.D.M.C v. STATESMAN LTD

- **Citation:** [1989] Supp. 1 S.C.R. 591
- **Court:** Supreme Court of India
- **Decided:** 1989-10-24
- **Case number:** Civil Appeal No. 4447 of 1989
- **Bench:** Ranganath Misra, M.N. Venkatachaliah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-d-m-c-v-statesman-ltd-10520
- **Pages:** 24

## Headnote

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 ofBuilding plan-Fire Safety Measures-Clearance given hy Chief Fire
Officer-Whether conclusive and binding on the CorporationWhether Corporation can examine the question independently.
"External-wall"-Provision intended to promote public safety,
health and we/I-being-Refuge Area to be provided on the "externalwall"-Building plan providing refuge area abutting into an inner
vacant space-Whether satisfies requirement.
National Building Code of India, 1983: Part IV-Prescriptions
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 Development
Plan-Zone D-1 (Connaught Place Area) Building Plan-Provision
for "Podium/Pedestrain Walk-way"-Feasibility and necessity of.
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Delhi Urban Art Commission Act, 1973: Section 12: 'Building
operations' /'Development proposals'-Approval by local bodyG
Reference to Urban Arts co·mmission for scrutiny.
Constitution of India, 1950: Article 136-Appeal-Raising new
issues-Supreme Court can consider if matters are of general public
importance.
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SUPREME COURT REPORTS
[ 1989) Supp. 1 S.C.R.
The respondent company obtained sanction of a building plan
from the· New Delhi Municipal Committee for the construction of a
building on a plot held by it on lease. After incorporating certain
changes, the respondent company submitted a revised plan for sanction
of the New Delhi Municipal Committee, but the same was rejected by an
order Dated 18.12.1987.
A rectified plan was thereafter submitted by the respondent 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 required 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 granted 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 Municipal Committee to convey the formal sancE
lion 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 ByeLaws for the Union Territory of Delhi, 1983; (ii) The clearance given by
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the Chief Fire Officer is not binding on the New Delhi Municipnl
Committee which can examine the question independently of such
clearance 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.
G
Setting aside the High Court Order dated April 28, 1989, this
Court,
HELD: J. The requirements of Bye-Laws 16.4.8 are not inflexible and in appropriate cases where the plans and designs incorporate
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fire safety measures which, in judgment of the Corporation are.
N .D.M.C. v. STATESMAN
593
considered to provide for the safety in a measure better than thos

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N.D.M.C.
v.
STATESMAN LTD.
OCTOBER 24, 1989
[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]
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 ofBuilding plan-Fire Safety Measures-Clearance given hy Chief Fire
Officer-Whether conclusive and binding on the CorporationWhether Corporation can examine the question independently.
"External-wall"-Provision intended to promote public safety,
health and we/I-being-Refuge Area to be provided on the "externalwall"-Building plan providing refuge area abutting into an inner
vacant space-Whether satisfies requirement.
National Building Code of India, 1983: Part IV-Prescriptions
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 Development
Plan-Zone D-1 (Connaught Place Area) Building Plan-Provision
for "Podium/Pedestrain Walk-way"-Feasibility and necessity of.
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Delhi Urban Art Commission Act, 1973: Section 12: 'Building
operations' /'Development proposals'-Approval by local bodyG
Reference to Urban Arts co·mmission for scrutiny.
Constitution of India, 1950: Article 136-Appeal-Raising new
issues-Supreme Court can consider if matters are of general public
importance.
591
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SUPREME COURT REPORTS
[ 1989) Supp. 1 S.C.R.
The respondent company obtained sanction of a building plan
from the· New Delhi Municipal Committee for the construction of a
building on a plot held by it on lease. After incorporating certain
changes, the respondent company submitted a revised plan for sanction
of the New Delhi Municipal Committee, but the same was rejected by an
order Dated 18.12.1987.
A rectified plan was thereafter submitted by the respondent 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 required 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 granted 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 Municipal Committee to convey the formal sancE
lion 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 ByeLaws for the Union Territory of Delhi, 1983; (ii) The clearance given by
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the Chief Fire Officer is not binding on the New Delhi Municipnl
Committee which can examine the question independently of such
clearance 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.
G
Setting aside the High Court Order dated April 28, 1989, this
Court,
HELD: J. The requirements of Bye-Laws 16.4.8 are not inflexible and in appropriate cases where the plans and designs incorporate
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fire safety measures which, in judgment of the Corporation are.
N .D.M.C. v. STATESMAN
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 building-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]
I. I Whether the plans submitted by Respondent distributing
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]
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1.2 It is, of course, wise in the interests of uniformity of administration of these Bye-laws and of elimination of possible complaints of C
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 O\'ertaking 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]
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2. The clearance from the Chief Fire Officer envisaged by Byelaw 17. J is an additional condition and not a limitation on the power of
the Corporation 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, f
obliges the Corporation to give due weight to it but, having regard to
the scheme and language of the b)·e-laws the decision of the Chief Fire
Officer is not binding on the Corporation. [609EJ
2.1 The clearance of the plans by the Chief Fire Officer would not
render it obligatory on the part of the Corporation ipso facto to treat G
the plans as necessarily complying with the requirements of relevant
bye-laws. While the clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction, however, suc.h clearance, by
itself, is not conclusive of the matter nor binding on the Corporation
which is entitled to examine the question independently of such clea- ·
•ranee from the Chief Fire Officer. [609G; 610B]
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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 envisage 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 RefugeArea-whether it should be a cantilever projection 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. [6IOC, 6IIR, 6IOD-G]
3.1 The word "external wall" in bye-law 16.4.8.J 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; 6IOF)
3.2 In the instant case, the Refuge Areas are provided on the
walls that open into an inner vacant space. 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-law 16.4.8.l the wall abutting
such inner vacant space would not be an "external wall" for the
purpose of the said bye-law. The Corporation shonld 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. [6IOC; 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 to give effect to them in a uniform manner. In fact
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several authorities including a Committee constituted by the Lt. Gover·
N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.J
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 buildibgs 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
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. the Refuge Area as may be necessary, the New Delhi Municipal Committee to consider and decide the question 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
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taken for final disposal after the submission of the report from New
Delhi Municipal Committee]
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
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VENKATACHALIAH, J. The New Delhi Municipal Committee F
(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 respectively 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 G
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 buildingplans on or before the 5th day of May, 1989.
The_ NDM_C <!S_sails the decision of the High Court on grounds,
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SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
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 proposedbuilding 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 Government 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 Managing Director. Special Leave is
granted.
2. Respondent No. 1, a publisher of Newspapers, holds a 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 Development Officer, to errect 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 obtained, 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 woul<l 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 requirements
of printing-technology and the plans as earlier sanctioned did not meet
these altered requirements. The new-building, as envisaged by the
revised-plans, would accommodate the printery of the Respondent 1,
its offices and other offices and business accommodation. On 7. 1.1987
the appellant 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
'
N.D.M.C. v. STATESMAl'l, [VENKATACHALIAH, J.l
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 clarifications", "clear cut finalised policy" and "guidelines" for it to be able to process the plans.
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3. However, by communication dated 18.2.1987, the NDMC in
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exercise of power under Section 193(3) of the Punjab Municipal Act,
1911, rejected the plans, assigning 28 reasons 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 "forthwith deal with the application for
grant of sanction".
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Sometime in March 1988, the Chief Fire Officer, Delhi Fire
:services, and the Deputy Commissioner of Police (Traffic), 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 unsatisfactbry' took a decision to
approve the plans. So did the Chief Fire Officer who, by his communiE
cation 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
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required the parties to. sort out iheir differences. On 9.12.1988, the
High Court had occasion to say:
" ..... We have no ctoubt 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 G
scheduled 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 disposing of H
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[1989] Supp. 1 S.C.R.
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 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
)\1r. H.P. Sharma, advocate who had been appearing
throughout ..... "
..... "But surprisingly NDMC was not willing to take a
decision and continued to raise frivolous 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 conveyed 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 whatsoever."
The High Court was persuaded to the view that NDMC's disinclination to accord sanction to the plan was unjustified; that whatever
reservations it had had as to the adequacy 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 grievance
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 complexion with
such suddenness that appellant was denied a reasonable 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
N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.]
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 stated:
" ..... Again, it is clear from the order that the entire
matter was being conducted in a spirit of compromise
which shows that instead 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 Architect, 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. Consequently, the Hon'ble Court
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was not informed of the details of the said objections of the
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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
Affidavit giving details of the outstanding objections. Time
was sought to file the said affidavit. Counsel for NDMC also
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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 ihat very date. The matter was
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proceeded with and Judgment ,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 G
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)
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To similar purport and effect is the affidavit of Sri Satpate the
NDMC's Chief Architect.
6. Before we examine the specific contentions raised in the
appeal, it is necessary to refer to certain basic features of the proposed
building in relation ot 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-c0re 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
overlooking the central vacant area. These passages which are
connected to the lift-areas, provide access to the accommodation on
the respective floors. Only an arc of the circular passage in each of the
floors is visible from and ovelooks 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 resourcefulness, which enables
Respondent 1 to claim these, otherwise essentially functional and
utility-areas, also as 'refuge-areas' for fire-safety, really satisfies the
requirements 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 Byelaw 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."
N.D.M.C. v. STA1ESMAN [VENKATACHALIAH, J.]
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 min height,
refuge area shall-tie provided as follows:
A
(a) For floors above 15m and upto 24m-one refuge area
B
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 \he
"refuge-areas". The structural nature and basis of its claculation of the
extent of these "Refuge-areas" are dealt with by Bye-law 16.4.8. L
which provides:
"Refuge area shall be provided on the extunal walls as cantilever projections or in any other manner (which will not be
covered in FAR) with a minimum area of 15 sq. mts. 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."
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In the plans, the disposition of the 'refuge-area' is, admittedly,
not in strict accord with the prescnption o(Bye-law 16.4.8 which G
requires the location of '1efuge-areas' 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 I
"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 fife-fighting and rescueH
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[1989] Supp. 1 S.C.R.
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:
are:
"the consultants have proposed refuge area at each floor
above 15m level, which is considered to be more convenient
and reliable because 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
(i) Bye-Law 16.4.8 prescribes that in respect of all buildings exceeding 15 metres in he.ight 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 rigour of its prescriptions.
(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", how-
. ever, 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.
1n the present case the construction of the Bye-law
suggested by the respondent-company would be justified
only if fire fighting and rescue operations could be
conducted from the inner open-space. In the present case,··
_,
'
N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.]
603
having regard to the lack of access to the inner vacant space
A
for fire-engines etc., the proposition of Respondent- I is not
even a statable possibility.
(iii) The clearance from the Chief Fire Officer, 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 B
clearance 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
objective prescriptions of those bye-laws. The primacy tci
the Chief Fire Officer's implicit in the approach of the High
Court is erroneous and virtually renders the clearance of C
the Chief Fire Officer binding on the NDMC. It is the
NDMC and -NDMC alone that can decide whether· 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. l, 17 .1 and 17 .2 would detract from the validity of D
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 firesafety measures in terms of the relevant Bye-laws.
(iv) The view of the Chief Fire Officer that the design of E
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.
F
(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 modifiG
cation of the relevant Zonal Development Control Plans.
The provision for "pedestrian walk-way" and
Bpodium" is, therefore, mandatory under the Zonal
Development Plan and that no authority including the
Chief Fire Officer could compel an abandonment of those H
statutory presumptions.
B
c
D
E
F
G
H
604
SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
(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 h~'ve
directed the appellant to reconsider the question of aceorcl:
ing sanction to the plans in the light of the High Court's
order.
9. Sri Nariman, 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. l 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 appellant 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 "external 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 calculation 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 n<;>rrns 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:
N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.J
605
" . . . . . An indefinite combination of variable is
involved in the phenomenon of fire, all of which cannot be
A
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 qualified and trained fire protection engineers B
with the planning of buildings, so that adequate fire protection measures could be incorporated in the building design
right from the beginning."
·
(Emphasis Supplied)
"O. 7. Nothing in this part of the Code shall be con- c
strued to prohibit better types of building construction, more
exits or otherwise safer conditions than the minimum
requirements specified in this part."
(Emphasis Supplied)
D
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 incorporated 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 authority competent to decide questions whether the provisions E
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. fo regard to the adequacy and acceptability of fire safety
measures in the building-design, it was urged, the bye-law, recognised
and accorded 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 F
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 of Part IV Fire Protection of National Building Code of India, the Chief Fire
Officer, Delhi Fire Service may insist on suitable provisions G
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 H
A
B
c
D
E
F
G
H
606
SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
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 hye-laws to be flexible and had further limited the extent of the
Refuge-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 Nari-;.
man 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 correctness 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 roOJl,1 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
N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.]
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. Shr.i
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
B
c
(a) Whether Bye-law 16.4.8 as to the disposition and location of the "Refuge Areas" prescribes an inflexible, rigid
D
standard and whether the location and distribution of the refugeareas in each floor is violative of the Bye-law?
(b) If point (a) is held in the negative, 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 &nd more
E
reliable fire safety measure is conclusive and binding on the
NnMC. 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 abutF
ting 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
errection of "Pedestrian Walk-way" and a "Podium" in front of
the proposed building?
G
13: Re: points (a) and (b): A number of affidavits and counterH
A
B
c
D
E
F
G
608
SUPREME COURT REPORTS
(1989] Supp. 1 S.C.R.
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 Cqde 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.