N.D.M.C.versusSTATESMAN LTD.

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

                          OCTOBER 24, 1989

[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]                               B

      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 construc-   c
tion 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 hy Chief Fire
Officer-Whether conclusive and binding on the Corporation-                   D
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 "external-
wall"-Building plan providing refuge area abutting into an inner
vacant space-Whether satisfies requirement.                                  E

      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.
                                                                             F
      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-                 G
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.
                                                                             H

                                   591
     592           SUPREME COURT REPORTS              [1989) Supp. 1 S.C.R.

A          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.
B
           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.
c          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.
D
            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 sanc-
E    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 require-
     ments, 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.
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 inflexi-
     ble and in appropriate cases where the plans and designs incorporate
H    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
                                                                             A
 envisaged by the bye-laws 16.4.8 the Corporation would not be pre-
 cluded 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]
                                                                             B
       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 administ-
 ration 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]
                                                                              D
       1.3 When fast and sweeping changes are O\'ertaking the funda-
 mental 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]
                                                                           E
       2. The clearance from the Chief Fire Officer envisaged by Bye-
 law 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 indispens-
 able 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]                           H
    594           SUPREME COURT REPORTS             [1989] Supp. I S.C.R.

          3. Bye-law 16.4.8.1 requires that Refuge-Areas shall be provided
A
    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-
B   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"
c   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
D   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, pro-
    mote 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
F   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 pedest-
    rian 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
H   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
                                                                               A
 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 reconsidera-
 tion. 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]   B

        [Respondent to effect such rectifications to the plans in regard to
. the Refuge Area as may be necessary, the New Delhi Municipal Com-
  mittee 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       C
  taken for final disposal after the submission of the report from New
  Delhi Municipal Committee]

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4447
 of 1989.
                                                                               D
      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.
                                                                               E
      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 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 building-
 plans on or before the 5th day of May, 1989.

       The_ NDM_C <!S_sails the decision of the High Court on grounds,         H
    596           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

    principally, that the plans for the multi-storeyed high-rise building, as
A   proposed by Statesman Ltd., did not, in the matter of the fire-safety
    requirements, accord with the mandatory requirements of the Statu-
    tory Building Bye-laws promulgated under the Punjab Municipal Act
    1911, in relation to the Union territory of Delhi and that the proposed-
    building did not also provide for a "Podium/pedestrian walk-way"
B   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 Advo-
c   cate 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
D   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
E   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
F   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
G   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
H   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
                                                                              A
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 pol-
icy" and "guidelines" for it to be able to process the plans.

       3. However, by communication dated 18.2.1987, the NDMC in              B
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 sub-
sequently 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 emana-          c
ted 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".
                                                                              D
       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 con-
sidered the plans to be 'conceptually unsatisfactbry' took a decision to
 approve the plans. So did the Chief Fire Officer who, by his communi-        E
 cation dated 9.3.1988, gave clearance to the building-plans in relation
 to the Fire-safety precautions. The High Court considered the objec-
 tion raised by the Deputy Commissioner of Police (Traffic) as unre-
lated 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             F
 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
    598           SUPREME COURT REPORTS              [1989] Supp. 1 S.C.R.

    the writ-petition, the High Court after referring to what is considered
A
    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 argu-
                ments, that is, on 31.3.1989 the NDMC changed its counsel
B               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
c               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
D               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 disin-
    clination to accord sanction to the plan was unjustified; that whatever
E   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
F               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
G   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 per-
    taining, as they did, to a vital area'of fire-safety precautions in high-
H   rise 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
                                                                              A
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              B
            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            c
            presence of the said persons who were ready to assist the
            Court as certain objections were still outstanding. How-
            ever, the Court did not ascertain from any of the Officers if
            they had any objections. Consequently, the Hon'ble Court
            was not informed of the details of the said objections of the D
            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 E
            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 pro-
            ceed with the hearing on ihat very date. The matter was F
            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 condi-
            tional. 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."
                                                                             H
                                                     (Emphasis Supplied)
    600            SUPREME COURT REPORTS               [1989] Supp. 1 S.C.R.

    To similar purport and effect is the affidavit of Sri Satpate the
A
    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 pro-
B   posed 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
c   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
D   floors is visible from and ovelooks the front of the building. Respon-
    dent 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
E   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 Bye-
F   law 17.1 and 17.2 which provide:

                 "17 .1 Buildings, shall be planned designed and construc-
                 ted to ensure fire safety and this shall be done in accor-
                 dance with part IV Fire Protection of National Building
                 Code of India, unless otherwise specified in these bye-laws.
G              · 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
H                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:                                 A

            "Refuge Area-For all buildings exceeding 15 min height,
            refuge area shall-tie provided as follows:

            (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.                                               c
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:                                                             D

            "Refuge area shall be provided on the extunal walls as can-
            tilever 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."                                   E
                                                   (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     F
           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 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 rescue- H
                                                                                  _,

                                                                                  '
     602           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

     equipment cannot, it would appear, be carried into this inner-area.
A
     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
B    Fire Officer expressed its reservations as to the correctness and pro-
     priety 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 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
D
     are:

                 (i) Bye-Law 16.4.8 prescribes that in respect of all build-
                 ings 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
E                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,
p
                   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
G                  "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
H                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 clea-
rance 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 E
  the Refuge-areas in the plans is "more convenient and reli-
  able" 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 Offi-
  cer'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 modifi- G
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.
    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
B               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
c               order.

           9. Sri Nariman, for the respondent-company however, submit-
     ted 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
D    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
E    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 refer-
     red 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
F   '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
G   "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:
H
           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 build-
           ings. 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 protec-
           tion 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 licenc-
ing 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 Pro-
           tection 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
    606           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

A   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 prefer-
    red to accept them.

B         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.
c
          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
D   acceptance of the correctness of this position was implicit in the clea-
    rance 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
E   pointed out that the insistence upon these was again, a glaring instance
    of the inexhaustible resourcefulness of the appellant to thwart Respon-
    dent'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 objec-
    tions 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,
F   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 submis-
G   sions 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
H   "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 walk-             A
way." 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             B
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. ·
                                                                             c
      12. On the contentions urged, the points that fall for considera-
tion are:

            (a) Whether Bye-law 16.4.8 as to the disposition and loca-
      tion of the "Refuge Areas" prescribes an inflexible, rigid             D
      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 negative, whether the clea-
      rance 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 abut-          F
      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?                                                     G

            (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-        H
    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
A
    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 Precau-
    tion" in the National Building Code of India, 1983. The Cqde con-
    ceives of these prescriptions as only broad guide lines. But the Build-
B   ing Bye-laws in the present case which have drawn on these provisions
    from the Code have, however, assimilated them as part of the statu-
    tory 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
c   fire safety measures to be incorporated in buildings present them-
    selves, 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
D   commend itself. The Na_tional Building Code of India, from which the
    substance of the Bye-laws are drawn, indicates that these are con-
    cerned 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
E   instances cited in Annexure B-1 to Affidavit dated 7. 7.1989 of respon-
    dent 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
F   affidavit of Shri Karamchand, Architect, NDMC evers that no sanc-
    tion 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.
G
           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 administ-
    ration of these Bye-laws and of elimination of possible complaints of
    partisanship, that the NDMC should insist upon adherance to the
H   reguirements of the Bye-law 16.4.8 on its own strict terms. That
           N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.)              609

should not, however, denude the power of the appellant to accept
                                                                          A
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 B
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 sug-
gested by the Bye-laws, they should not fetter the hands of the licenc- c
ing authority to accept them. Under the relevant statute and the Bye-
laws, 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 expertise- D
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 E
itself that the building plans provide for adequate fire safety precau-
tion in accordance with its bye-laws or in a better measure. The clea-
rance 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 F
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 con- G
clusive of the m"atter nor binding 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     H
considered to provide for the safety in a measure better than those
     610          SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.
                                                                           -


A.
     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
B    NDMC which can and is entitled to examine the question indepen-
     dently 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 pro-
     jections or '·'in any other manner". In the present-case the Refuge-
     Areas are provided on the walls that open into an inner vacant space.
c    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 indicat-
     ing 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
D
     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
E
     wall though abutting an inner vacant space would not, by itself, pro-
     mote 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 abut-
     ting such inner vacant space would not be an "external" wall for
F
     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
G     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.
H
      NDMC should decide this question and examine whether such rescue
           N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.]                611

operations are feasible from the inner. circular vacant space. This is an
                                                                            A
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.         B
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 high-
rise buildings.
                                                                            c
     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:         D

            " ..... 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 pro-
            vide only 0.3 sq. metre per person in accordance with the
            resolution of August 4, 1988, the NDMC would have no            E
            objection to the same and the Statesman Limited in this
            regard be directed to amend their building plans in accor-
            dance 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.                F

      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 develop-
ment plans envisaging a raised pedestrian walk-way on either side of
Barakhamba Road and the provision for podia connecting the building / G
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 integra-
tion and continuation of the walk-way along the whole of the road, H
    612           SUPREME COURT REPORTS              [1989] Supp. 1 S.C.R.

    would indeed, be purposeless. Several authorities, including a commit-
A
    tee 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 pedest-
B   rian 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
c   the event of its approving the plans otherwise, to keep the requirement
    of the pedestrian walk-way and the podium in abeyance for the pre-
    sent, 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
D   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
E   Zonal Development prescriptions, if they are decided to be put into
    effect, also allay the apprehension of Respondent 1 and 2 that Govern-
    mental 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
F   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
G   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
H   stage of the proceedings before the High Court, or even in important
            N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.[               613

communications bearing on the question of the sanction, did the
                                                                            A
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.
                                                                            B
      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.
                                                                            c
      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            D
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    E
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-               F
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 dis-
posal 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          G
NDMC, those grievances shall be considered in the further proceed-
ings in the appeal.

      21. It was also submitted to us that pending final decision,
respondents 1 and 2 should be permitted to commence the construc-
tion as delays had entailed serious cost and time over-runs. We permit      H
    614           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

A   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 prog-
    ress 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
B   any foss 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 snpra. Ordered
    accordingly.

C   T.N.A.