Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 reguirements of the Bye-law 16.4.8 on its own strict terms. That N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.) 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 sug- gested by the Bye-laws, they should not fetter the hands of the licenc- 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- is the NDMC itself. From the way the National Building Code, from which the provision is borrowed, has treated such provisions, it is not unreasonable to presume that the requirements were incorporated in the Bye-laws with a similar approach as to their import. The clearance from the Chief Fire Officer envisaged by Bye-law 17 .1 is an additional condition and not a limitation on the power of the NDMC to satisfy itself that the building plans provide for adequate fire safety 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 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- 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 considered to provide for the safety in a measure better than those c c envisaged by the Bye-laws 16.4.8, the NDMC would not be precluded from accepting them. Whether the plans submitted by Respondent 1 distributing 'Refuge-Areas' in each floor provide such a better and more reliable fire safety measure is a matter for the decision of the NDMC. We also hold that the clearance from the Chief Fire Officer in this behalf though entitled to weight, would not be binding on the NDMC which can and is entitled to examine the question 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. 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 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, 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 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 N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.] 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 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. 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 pro- vide 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 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.
18. Re: point (d): This relates to the insistence on construction c 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 c [ 1989] Supp. 1 S.C.R. would indeed, be purposeless. Several authorities, including a commit- 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- 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 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 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 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 2 that the NDMC did not raise, at the appropriate stage, any specific objections to the plans on the ground that either they were not in conformity with Bye-law 16.4.8 or 16.4.8.1 or that the plans were defective for want of pedestrian walk-way. Objection based on Bye- law 16.4.8.1, it was urged, was never in mind of the NDMC. These objections, it was urged, were developed from stage to stage leaving the inference inescapable that the NDMC was pre-determined to decline the sanction for the 'Statesman-House' on one ground or another. We are afraid, the way NDMC has developed its stance from time to time incurs and perhaps justifies this grievance. Indeed, at no stage of the proceedings before the High Court, or even in important N.D.M.C. v. STATESMAN [VENKATACHALIAH, J.[ 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 Officer- within 3 weeks thereafter and report to this Court the decision taken upon such re-construction. This appeal shall be kept pending and be taken-up for final 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 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 c 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 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.