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

Citation: [1989] SUPP. 1 S.C.R. 591

Court: Supreme Court of India

Bench: RANGANATH MISRA, M.N. VENKATACHALIAH

Case summary

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 b)·e-laws the decision of the Chief Fire Officer is...

Judgment text

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 ofthe "Refuge Area"-Purpose ofRefuge Area explained. Reduction in the extent of "Refuge-Area"-Permissibility of- Building plan-Fire Safety Measures-Clearance given hy 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 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. Delhi Urban Art Commission Act, 1973: Section 12: 'Building operations'/'Development proposals'-Approval by local body- 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.

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 sanclion 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 f' 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.

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 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] 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 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] 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, 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 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] 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 Refuge- Area-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) 0 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 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 ofthe 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 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 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 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 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 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 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 quantified. The requirements ofthis 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 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 construed to prohibit better types ofbuilding 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 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 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 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 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 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 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) 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 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 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 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 errection 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- 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. 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 buildings 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 favourihg flexibility of approach ought to commend itself.

The Na_tional 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 the six instances cited in Annexure B-1 to Affidavit dated 7. 7. 1989 of respondent No. 2 are really instances demonstrating 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, Barakhamba 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 evers 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 adherance to the reguirements of the Bye-law 16. 4. 8 on its own strict terms. That 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 favouritism and arbitrariness. If a building-design incorporates fire safety mea. sures 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. Under the relevant statute and the Byelaws, 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 prescriptions contained in the Bye-laws-which, indeed, is a matter of some complexity and, in conceivable cases, one calling for expertiseis 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 )"ire Officer is not binding on the NDMC.

We accept the submissions 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 complying with the requirements of relevant Bye-laws. While thj, clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction, however, snch clearance, by itself, is not conclusive of the m"atter norbinding o. n 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 envisaged by the Bye-laws 16. 4. 8, the NDMC would not be precluded A. 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 independently of such clearance from the Chief Fire Officer. 16. Re: point (c): 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". 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 regrard to the definition of that expression in Bye-law 2. 27. The definition is not cconclusive; 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 "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. 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 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 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 Refuge-Area-Whether it should be a canti-lever . 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 1sq. 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 Statesman Limited in this regard be directed to amend their building plans in accordance with their desires ..... " Respondents are therefore at liberty to limit the Refuge-Areas to 0. 3 sq. metre per person as agaist 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 building. 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, 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 implementation 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 problems 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 approving 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 choses, could secure the requisite financial guarantees for the construction of such 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 authorities are dealing with the Statesman's project with 'an evil eye and an uneven hand. Point (d} is answered accordingly. 19. We mig~t 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 Byelaw 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 grievance. Indeed, at no stage of the proceedings before the High Court, or even in important 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 ordes 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 observations in this order. The refuge-areas couid 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, provided 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 Officerwithin 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 decision, respondents 1 and 2 should be permitted to commence the construction as delays had entailed serious cost and time over-runs.

We permit respondents, at their option, to commence the construction-work according to the plans submitted by them, on the condition that they file a written undertaking before the NDMC that the construction would be at the risk of the Respondents 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 aginst the NDMC for any foss occasioned to respondent 1and 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 snpra. Ordered accordingly. T. N. A.