ivil Appeal No 4447 of 1989
From the Judgment and Order dated 284
1989 of the Delhi High Court in CWP No 3090 of 1987
Kapil Sibal Manoj Prasad and Dalveer Bhandari for the Appellant
FS Nariman Soli J Sorabjee HN Salve and KJ 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 284
1989 of the High Court of Delhi in Civil Writ Petition 3090 of 1987
In the writ petition Statsman Ltd and its Managing Director Respondents 1 and 2 respec tively herein sought to impugn the decision of the NDMC dated 182
1987 declining to sanction the Revised Plans for the construction of Statesman House a high rise building on plot No 148 Barakhamba Road New Delhi of which the first respondent is the lessee
The High Court allowed the writ petition and directed the NDMC to convey its formal sanction of the building plans on or before the 5th day of May 1989
The NDMC assails the decision of the High Court on grounds 596 principally that the plans for the multi storeyed high rise building as proposed by Statesman Ltd did not in the matter of the fire safety requirements accord with the mandatory requirements of the Statutory Building Bye laws promulgated under the Punjab Municipal Act 1911 in relation to the Union territory of Delhi and that the proposed build ing did not also provide for a podiumpedestrian walk way made mandatory by the Zonal Development Plan for Zone D 1 viz Connaught Place Area approved by the Central Govern ment on 30th April 1966 in No 21023766 UD under Section 92 of the Delhi Development Act 1957
We have heard Sri Kapil Sibal learned Senior Advocate for the NDMC and Sri Nariman and Sri Soli J Sorabjee learned Senior Advocate for the Statesman Ltd and its Manag ing Director
Special Leave is granted
Respondent No 1 a publisher of Newspapers holds a lease in perpetuity from Government of the plot No 148 Barakhamba Road New Delhi
In the year 1980 Respondent No 1 sought for and obtained permission from the Land Devel opment Officer to erect a high rise building of an area of 162000 square feet and paid Rs6340918 as betterment levy
On 451982 it applied for and on 298
1980 ob tained sanction from the NDMC of its building plans valid for 2 years
The sanction was revalidated for a further period of two years
In June 1985 however there was it would appear prohibition on high rise structures
But this prohibition in relation to Connaught Place area was lifted on 187
On 2912
1986 Respondent No 1 submitted Revised plans incorporating therein substantial changes in the plans necessitated as it was claimed by the changing require ments of printing technology and the plans as earlier sanc tioned did not meet these altered requirements
The new building as envisaged by the revised plans would accommo date the printery of the Respondent 1 its offices and other offices and business accommodation
On 71 1987 the appel lant forwarded the Revised plans to the Delhi Urban Art Commission DUAC in compliance with the requirements of Section 12 of the Delhi Urban Art Commission Act 1973 which envisages that notwithstanding anything contained in any other law for the time being in force every local body shall before according approval in respect of any building operations or development proposals refer the same to the DUAC for its scrutiny
Section 12 further provides that the decision of the DUAC in that behalf shall be binding on such local 597 body
The DUAC did not promptly scrutinise the plans but engaged itself in some correspondence with the NDMC as also with the Ministry of Urban Development Government of India seeking what it referred to as the requisite clarifica tions clear cut finalised policy and guidelines for it to be able to process the plans
However by communication dated 182
1987 the NDMC in exercise of power under Section 1933 of the Punjab Municipal Act 1911 rejected the plans assigning 28 rea sons for the rejection
On 145
1987 the Architect of First Respondent claiming to have subsequently complied with or clarified the points on which the rejection was based resubmitted the plans
On 265
1987 the Architects wrote to NDMC to reconsider its decision dated 182
1987 in the light of the rectifications effected
However no positive response having emanated from the NDMC Respondents 1  2 on 27101987 filed the Writ petition in the High Court for an appropriate order directing the DUAC and the NDMC to forth with deal with the application for grant of sanction
Sometime in March 1988 the Chief Fire Officer Delhi Fire Services and the Deputy Commissioner of Police Traf fic New Delhi were impleaded to the proceedings
During the pendency of the proceedings in the High Court the DUAC which had earlier considered the plans to be conceptually unsatisfactory  took a decision to approve the plans
So did the Chief Fire Officer who by his communication dated 931988 gave clearance to the building plans in relation to the Fire safety precautions
The High Court considered the objection raised by the Deputy Commissioner of Police Traffic as unrelated to the bye laws as applicable to the situation and held that the objection from that source should not interdict the sanction of plans by the NDMC
During the pendency of the proceedings the High Court required the parties to sort out their differences
On 912
1988 the High Court had occasion to say   
We have no doubt that the NDMC will grant the final approval without wasting any further time
In case the meeting of the Building Plans Committee of NDMC is not sched uled to be held within two weeks the NDMC will so arrange that a special meeting is held so that the matter is not delayed any further
Case to be listed before Court for final orders and disposal on February 3 1989
In the course of the order dated 2841989 finally dis posing of 598 the writ petition the High Court after referring to what is considered to be a co operative attitude of the DUAC and other authorities however had this to say of the NDMC However to our surprise on the final date of arguments that is on 313
1989 the NDMC changed its counsel and the Standing Counsel for NDMC appeared instead of Mr HP Sharma advocate who had been appear ing throughout    But surprisingly NDMC was not willing to take a decision and continued to raise frivo lous objections for reasons best known to it
Inspite of the fact the clearance had been granted by Urban Art Commission as also by all other Authorities the sanction was not con veyed and was withheld for no reasons
This attitude of NDMC is beyond our understanding
Since I have come to the conclusion that no objection remains from any Authority I am of the opinion that non sanction of the plans on the part of the NDMC is absolutely unjustified and cannot be supported by any reason whatso ever
 The High Court was persuaded to the view that NDMC s disinclination to accord sanction to the plan was unjusti fied that whatever reservations it had had as to the ade quacy of the fire safety measures as envisaged in the Building designs were allayed by the Chief Fire Officer s clearance and held that thereafter there was no impediment to the sanction
The High Curt accordingly directed the NDMC    to convey its formal sanction of the building plans and release the same to the petitioner Company on or before the 5th day of May 1989    5
Before us Appellant NDMC has aired a serious griev ance both against the validity of the reasoning of and conclusion reached by the High Court as also the manner of the conduct of proceedings which were according to the appellant initially more in the nature of efforts directed towards the resolution of the dispute by mutual negotiation than by adjudication but acquired an adjudicative complex ion with such suddenness that appellant was denied a reason able opportunity of elaborating on the substantial issues of serious public importance pertaining as they did to a vital area of fire safety precautions in highrise buildings as conceived in the Building Bye laws
It is submitted 599 that the High Court failed to consider submissions of the appellant on certain vital issues
In his affidavit dated 66
1989 filed in this Court Sri HP Sharma learned Advocate who appeared for the NDMC before the High Court stated   
Again it is clear from the order that the entire matter was being conducted in a spirit of compromise which shows that in stead of adjudicating upon the issues in the Writ Petition parties to the petition were required to resolve the matter amicably
On March 31 1989 Mr SD Satpate Chief Archi tect NDMC and Mr Karam Chand Dy Architect NDMC were present in Court
Counsel for NDMC informed to the Court of the presence of the said persons who were ready to assist the Court as certain objections were still outstanding
However the Court did not ascertain from any of the Officers if they had any objections
Conse quently the Hon ble Court was not informed of the details of the said objections of the NDMC
Instead the Court issued Rule on the same date and proceeded with the matter
I as counsel appearing on behalf of NDMC along with Mr Bikramjit Nayyar Advocate requested the Court that the NDMC wished
to file an Affida vit giving details of the outstanding objec tions
Time was sought to file the said affi davit
Counsel for NDMC also indicated that the normal practice of the Court is to issue Rule and thereafter fix the case for final disposal giving an opportunity to the parties to file additional affidavits if any for the disposal of the petition
However the Court declined the request and directed counsel for NDMC to proceed with the hearing on that very date
The matter was proceeded with and Judg ment was reserved on that date
During the course of the hearing the standing counsel for the NDMC raised the issue of the applicability of Bye law 1648 of the applicable Building Bye laws of the NDMC and submitted that the clearance of the Chief Fire Officer did not prevent the NDMC from enforcing the applicable bye laws
Standing counsel for the NDMC also submitted to the Court that the approval of the DUAC was conditional
However the Court in the light of the statement of counsel for the DUAC did not deal with the issue of the applicability of Bye law 1648
 Emphasis Supplied 600 To similar purport and effect is the affidavit of Sri Sat pate the NDMC s Chief Architect
Before we examine the specific contentions raised in the appeal it is necessary to refer to certain basic fea tures of the proposed building in relation of its fire safety aspects
The eligibility of the proposed construction for sanction except on the point of adequacy of Refuge areas in the requirement of a pedestrian walk way and Podium is not otherwise disputed
The proposed Statesman House envisaged by the plans is a fifteen storey 552 meter high structure its High rise portion being a cylindrical structure with a hollow core open to sky
On each of the floors above the 4th floor commencing above the height of 15 meters there is a 5 foot wide circular passage on the inner side of the circle over looking the central vacant area
These passages which are connected to the lift areas provide access to the accommo dation on the respective floors
Only an arc of the circular passage in each of the floors is visible from and overlooks the front of the building
Respondent No 1 claimed that these inner circular passages answer the description and serve the purpose of Refuge areas required to be provided as fire safety measures
In so designing the Architects seek to combine general utility and Refuge areas
The question is whether this architectural and design resource fulness which enables Respondent 1 to claim these other wise essentially functional and utility areas also as refuge areas  for fire safety really satisfies the re quirements of the Bye laws
We may now turn to the requirements of the Bye laws in this behalf
Fire protection requirements generally are dealt with by bye law 171 and 172 which provide 171 Buildings shall be planned designed and constructed to ensure fire safety and this shall be done in accordance with part IV Fire Protection of National Building Code of India unless otherwise specified in these bye laws
In the case of buildings identified in Bye law No 6241 the building schemes shall also be cleared by the Chief Fire Officer Delhi Fire Service 172 The additional provisions related to fire protection of buildings more than 15m in height and buildings identified in 6241 shall be as given in Appendix K 601 The proposed building is over 15 meters in height and attracts Bye law 1648 which inter alia provides Refuge Area For all buildings exceeding 15 m in height refuge area shall be provided as follows a For floors above 15m and upto 24m one refuge area on the floor immediately above 13m
b For floor above 24m and upto 36m one refuge area on the floor immediately above 24m
c For floor above 36m one refuge area per every five floors above 36m
This Bye law specifies the location at various heights of the refuge areas
The structural nature and basis of its calculation of the extent of these Refuge areas are dealt with by Bye law 16481
which provides Refuge area shall be provided on the external walls as cantilever projections or in any other manner which will not be covered in FAR with a minimum area of 15 sq
and to be calculated based on the population on each floor at the rate of 1 sq m per person
 Emphasis Supplied The expression External Wall is a defined expression
Bye law 227 says An outer wall of a building not being a partition wall even though adjoining to a wall of another building and also means a wall abutting on an interior open space of any building In the plans the disposition of the refuge area  is admittedly not in strict accord with the prescription of Bye law 1648 which requires the location of refuge 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 external wall but are on the wall abutting the inner circular vacant space forming the floor of the hollow care of cylindrical structure
As the entrance is now designed and conceived fire fighting and rescue 602 equipment cannot it would appear be carried into this inner area
But Respondent 1 claims that the walls on which these refuge areas are provided about the inner vacant space and are eligible to be called External  walls within the meaning of Bye law 227
The NDMC by its communication dated 1431989 to the Chief Fire Officer expressed its reservations as to the correctness and propriety of the clearance to the plans accorded by him on 93
By his reply dated 303
1989 the Chief Fire Officer in justification of the approval which he gave stated the consultants have proposed refuge area at each floor above 15m level which is consid ered to be more convenient and reliable be cause there is hardly any scope of smoke logging due to centre core open to sky Emphasis Supplied 8
The contentions urged by Sri Sibal in support of the appeal are i Bye Law 1648 prescribes that in respect of all buildings exceeding 15 metres in height there shall be provision for refuge areas at specific locations for a specific group of floors
The requirement is mandatory as it is guided by the considerations of the need to direct and concentrate rescue operations at particular pre fixed locations
The Bye law is binding on the Chief Fire Officer who is not competent to relax the rigor of its pre scriptions
ii The external  walls spoken of by Bye law 16481 though so defined in Bye law 227 as to include a wall abutting on an interior open space of any building however having regard to the purpose of the Bye law can only refer to an outer wall accessible to the rescue team
The definition is
as always subject to the context requiring a different meaning
For purposes of Bye law 16487 an external wall should be understood with reference to an open area from which rescue operations are possible
In the present case the construction of the Bye law suggested by the respondent company would be justified only if fire fight ing and rescue operations could be conducted from the inner open space
In the present case 603 having regard to the lack of access to the inner vacant space for fire engines etc the proposition of Respondent 1 is not even a statable possibility
iii The clearance from the Chief Fire Offi cer Delhi Fire Service envisaged in Bye laws 171 is in addition to the requirements of bye laws 1648
and 16481
The said clear ance is one of the conditions for eligibility of the plan to be considered for accord of sanction by the NDMC is not in substitution of the requirement of compliance with the objec tive prescriptions of those bye laws
The primacy to the Chief Fire Officer s implicit in the approach of the High Court is erroneous and virtually renders the clearance of the Chief Fire Officer binding on the NDMC
It is the NDMC and NDMC alone that can decide wheth er the plans satisfy the Bye laws in any particular case
A reasonable construction bye laws 6241 1648 16481 171 and 172 would detract from the validity of the first respondent s claim and establishes that the clearance from the Chief Fire Officer is one of the conditions and not the sole or conclusive test of the adequacy of fire safety measures in terms of the relevant Bye laws
iv The view of the Chief Fire Officer that the design of the Refuge areas in the plans is more convenient and reliable is factually and technically unsound as the very nature of the cylindrical structure with a hollow core would promote a stock or chimney effect
The Chief Fire Officer s view is not final or conclusive on the point and at all events not binding on the NDMC
v The construction of a Pedestrian walk way and Podium are mandatory not under the bye laws but from the requirements of a zonal plan of zone D 1 in which plot No 148 Barakhamba Road is located and that no relaxation of the requirement would be permissible except on a modification of the relevant Zonal Development Control Plans
The provision for pedestrian walk way and podium is therefore mandatory under the Zonal Development Plan and that no authority including the Chief Fire Officer could compel an abandonment of those statutory presumptions
604 vi That in the manner in which the case before the High Court proceeded the NDMC was denied a reasonable and effective opportunity of presenting its case
Considerations of public safety underlying the stand of the NDMC was not properly appreciated and the NDMC should have been afforded an opportunity to substantiate its valid objections to the plans
vii The grant of relief in the writ petition in the form of a direction to the appellant to sanction the plan was not permissible and that at best the High Court could have directed the appellant to reconsider the question of according sanction to the plans in the light of the High Court s order
Sri Nanman for the respondent company however submitted that the objection to the plans raised by the appellant on the basis that the refuge areas were not in accordance with the Bye laws was a classic after thought on the part of the Appellant
Bye laws 1648 and 16481 learned counsel urged were merely prescriptive of certain minimal standards of fire safety precautions it being always open to the owner to build into the designs better and more satisfactory standards of fire safety precautions and that in the present case the Chief Fire Officer who was a technical authority had himself accepted the designs in that behalf as better and more reliable
Learned counsel urged that out of the 28 reasons put forward by the appel lant on 182
1987 in support of the rejection of the plans not even one referred to its present insistence that the refuge areas should be built only at the levels suggested in the Bye law or that the refuge area did not abut the exter nal wall Shri Nariman further pointed out that in the communication dated 1821987 all that was sought to be said with reference to the refuge areas in each floor was that the same had not been taken into account in the calcu lation of the FAR Shri Nariman said that bye law 1648 in its language and content had been bodily lifted from the corresponding prescriptions in the National Building Code of India 1983 from the provisions of part IV relating to Fire Protection
The said Code itself indicated that the norms in regard to fire protection referred to therein were only broad guide lines and were not to be construed to prohibit better arrangements
Shri Nariman referred to the following excerpts from part IV of the said Code at para 02 and 07 605   
An indefinite combination of variable is involved in the phenomenon of fire all of which cannot be quantified
The requirements of this Code should therefore be taken as a guide and an engineering design approach should be adopted for ensuring a fire safe design for buildings
It would also be necessary for this purpose to associate quali fied and trained fire protection engineers with the planning of buildings so that ade quate fire protection measures could be incor porated in the building design fight from the beginning Emphasis Supplied 07
Nothing in this part of the Code shall be construed to prohibit better types of building construction more exits or otherwise safer conditions than the minimum requirements specified in this part Emphasis Supplied It was accordingly urged that the prescriptions in bye law 1648
and 16481 were not inflexible and wherever more liberal and better standards of fire precautions were incor porated in the designs the bye laws did not prevent such better measures being adopted by the licencing authority
It was further urged that the Chief Fire Officer was the au thority competent to decide questions whether the provisions incorporated in the designs were better and more liberal and that his decision in the matter ought to be conclusive and binding on the licencing authority
In regard to the adequa cy and acceptability of fire safety measures in the build ing design it was urged the bye law recognised and ac corded a primacy of place to the decision of the Chief Fire Officer and that indeed para K 1 of Appendix K read with bye law 172 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 Build ing Code of India the Chief Fire Officer Delhi Fire Service may insist on suitable provisions in the building from fire safety and fire fighting point of view depending on the occupancy and height of buildings
 The decision of the Chief Fire Officer to accept the distribution of refuge areas in each of the floors it was said was referable to the general power of the Chief Fire Officer to issue such directions
In the 606 present case it was urged the designs providing for refuge areas in the ratio of one sq
metre per person on each floor was considered by the Chief Fire Officer as a better and more reliable fire safety measures than those envisaged by the bye laws and the Chief Fire Officer preferred to accept them
Shri Nariman sought to point out that in the Annexure B 1 to the Affidavit dated 771989 of respondent No 2 a list of six buildings had been set out respecting which the sanctions granted by the NDMC indicated that the local body had itself understood the prescriptions in the bye laws to be flexible and had further limited the extent of the Ref uge Areas to 03 sq
metre per person as against 1 Sq
metre per person set out in bye law 16481
As to the requirement of bye law 16481 that the refuge area shall be provided on the external walls is concerned Shri Nariman relied upon the definition in Bye law 227 to say that a wall abutting an inner vacant space is also an external wall and the acceptance of the cor rectness of this position was implicit in the clearance given by the Chief Fire Officer
The words in any other manner in Bye law 16481 it is urged makes room for the requisite flexibility
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 1821987 nor the further objections raised on 621989 nor indeed the objections raised by NDMC on 143
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 1024 RN 837317714 24 dated 1361983 made by the Lt Governor Delhi had in its report of 521986 suggested the doing away with the proposal to construct a raised pedestrian walk way on either side of Barakhamba Road as in the view of the committee the head clearance under this proposed walk way will be such that cars 607 will be able to pass under it but firerescue appliances will not be able to approach any where near the buildings beyond the raised walkway
 It was pointed out that the committee was also of the opinion that these walk ways if and when constructed would nullify all fire safety measures in the buildings on either side of the Barakhamba Road
Shri 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
On the contentions urged the points that fall for consideration are a Whether Bye law 1648 as to the disposition and location of the Refuge Areas prescribes an inflexible rigid standard and whether the location and distribution of the refuge areas in each floor is violative of the Bye law b If point a is held in the nega tive whether the clearance given to the plan by the Chief Fire Officer on the view that distribution of the refuge areas in each floor is a better and more reliable fire safety measure is conclusive and binding on the NDMC
In other words is it open to the NDMC to examine and decide the question independently of the Chief Fire Officer s clearance c Whether the Refuge Areas located on the walls abutting the inner vacant area be held to satisfy the requirements of Bye law 16481 d Whether the extent of Refuge Area  requires to be reduced from 10 sq
metre per person to 03 sq
metre per person e Whether the NDMC is justified in insisting upon the erection of Pedestrian Walk way and a Podium in front of the proposed building 13
Re points a and b A number of affidavits and counter 608 affidavits are placed before us on the scope of the Bye laws
It is not necessary to examine all of them as the matter is essentially one of construction of the provision itself
The contents of Bye laws 1648 and 16481 are borrowed from Part IV dealing with Fire Precaution in the National Building Code of India 1983
The Code conceives of these prescriptions as only broad guide lines
But the Building Bye laws in the present case which have drawn on these provisions from the Code have however assimilated them as part of the statutory prescriptions under the Bye laws
The NDMC says that once this is done the norms are no longer directory but assume statutory import and become mandatory
In the infinite variety of ways in which the problem of adequate fire safety measures to be incorporated in build ings present themselves and having regard to the wide and complex range of situational variations in the location character and design of buildings and their disposition in relation to the other factors influencing the evaluation of such safety measures a view favoring flexibility of ap proach ought to commend itself
The National Building Code of India from which the substance of the Bye laws are drawn indicates that these are concerned with indicating certain broad minimal assurances for fire safety and that better and more reliable measures ought not to be excluded
We are not however impressed by the submission that the six instances cited in Annexure B 1 to Affidavit dated 771989 of respondent No 2 are really instances demon strating departure from the present stand of the appellant
indeed appellant points out that out of the six buildings referred to in Annexure B 1 only two ie No 23 Barakham ba Road and DLF Plaza 21 22 Narendra Place were dealt with by the NDMC and that the rest were dealt with by the DDA
The affidavit of Shri Karamchand Architect NDMC overs that no sanction was given in respect of No 23 Barakhamba Road and that no departure from Bye laws 1648 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 1648 and 16481 is justified
It is of course wise in the interest of uniformity of administration of these Bye laws and of elimination of possible complaints of partisanship that the NDMC should insist upon adherence to the require ments of the Bye law 1648 on its own strict terms
That 609 should not however denude the power of the appellant to accept designs which in the judgment of the appellant offer and incorporate fire safety precautions of higher measure
When fast and sweeping changes are overtaking the fundamental ideas of building design and construction and new concepts of building material are emerging it would be unrealistic to impute regidity to provisions essentially  intended to promote safety in building designs
As suggested in the National Building Code Bye law provisions such as Bye law 1648 envisage certain minimal safety standards compliance with which should generally be insisted in order that there be uniformity and equal treatment and an elimination of imputations of favoritism and arbitrariness
If a building design incorporates fire safety measures in a measure promoting fire safety precautions far better than those suggested by the Bye laws they should not fetter the hands of the licensing authority to accept them
Under the relevant statute and the Bylaws the authority to grant or refuse the licence is the NDMC
It has the power to decide whether any proposals are an improvement on the prescrip tions contained in the Bye laws which indeed is a matter of some complexity and in conceivable cases one calling for expertise is the NDMC itself
From the way the National Building Code from which the provision is borrowed has treated such provisions it is not unreasonable to presume that the requirements were incorporated in the Bye laws with a similar approach as to their import
The clearance from the Chief Fire Officer envisaged by Bye law 171 is an additional condition and not a limitation on the power of the NDMC to satisfy itself that the building plans provide for adequate fire safety precaution in accordance with its bye laws or in a better measure
The clearance by the Chief Fire Officer which is expected to involve and follow a technical assessment and evaluation obliges the NDMC to give due weight to it but having regard to the scheme and language of the Bye laws the decision of the Chief Fire Officer is not binding on the NDMC
We accept the submis sions of Shri Sibal that clearance of the plans by the Chief Fire Officer would not render it obligatory on the part of the NDMC ipso facto to treat the plans as necessarily com plying with the requirements of relevant Bye laws
While the clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction however such clear ance by itself is not conclusive of the matter nor binding on the NDMC
On the material placed before us we are inclined to hold on points a and b that the requirements of Bye laws 1648 are not inflexible and that in appropriate cases where the plans and designs incorporate fire safety measures which in judgment of the NDMC are considered to provide for the safety in a measure better than those 610 envisaged by the Bye laws 1648 the NDMC would not be precluded from accepting them
Whether the plans submitted by Respondent 1 distributing Refuge Areas  in each floor provide such a better and more reliable fire safety measure is a matter for the decision of the NDMC
We also hold that the clearance from the Chief Fire Officer in this behalf though entitled to weight would not be binding on the NDMC which can and is entitled to examine the question independ ently of such clearance from the Chief Fire Officer
Re point c Bye law 16481 requires that Ref uge Areas shall be provided on the external walls by means of cantilever projections or in any other manner
In the present case the Refuge Areas are provided on the walls that open into an inner vacant space
They are provided on walls which respondents say are external walls having regard to the definition of that expression in Bye law 227
The definition is not conclusive but is subject to the context indicating a contrary import
The purposes of refuge areas include that in the event of an out break of fire in the building persons exposed to the hazard should be able to have immediate access to a place of safety which by its access to fresh air insulates them from heat and smoke and further that those persons could conveniently be extricated and rescued to safety by rescue operations
The word exter nal wall in Bye law 16481 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 16481 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 227
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 16481 is intended to serve Refuge Areas must be located on walls which open into vacant space from which rescue operations are possible
NDMC should decide this question and examine whether such rescue 611 operations are feasible from the inner circular vacant space
This is an exercise individual to each case and to be judged on case to case basis
The words in any other man ner  in Bye law 16481 are not intended to envisage a totally different idea of the location of Refuge Areas  but prima facie intended to suggest some feasible alterna tive to the technical design of the construction of the Refuge Area Whether it should be a cantilever projection or designed in some other way
Point c is held and answered accordingly
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 03 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 03 sq
metre per person instead of 10 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 10 sq
metre per person as required by by law 16481
In the event the Statesman Limited wish to provide only 03 sq
metre per person in accordance with the resolution of August 4 1988 the NDMC would have no objection to the same and the States man Limited in this regard be directed to amend their building plans in accordance with their desires    Respondents are therefore at liberty to limit the Ref uge Areas to 03 sq
metre per person as against 10 sq
metre per person
Re point d This relates to the insistence on construction of a pedestrian walk way and a podium parallel to Barakhamba Road in front of the proposed build ing
Though the zonal development plans envisaging a raised pedestrian walk way on either side of Barakhamba Road and the provision for podia connecting the building with the walk way were accepted and an appropriate notification issued way back in 1966 no steps appear to have been taken to give effect to them in a uniform manner
In the very nature of the concept of a pedestrian walk way on either side of the road the insistence for provision of such a walk way in an individual case without the integration and continuation of the walk way along the whole of the road 612 would indeed be purposeless
Several authorities including a committee constituted by the Lt Governor of Delhi in 1983 and the Chief Fire Officer have advised against the imple mentation of the proposal
In the instant case the Chief Fire Officer has it is not disputed expressly opined against the desirability of such a walk way 
The NDMC has to bestow serious re consideration on its insistence to have such a pedestrian walk way for the building if such walk ways do not already obtain in other buildings on the Road
The only way in which perhaps the zonal developmental requirements in this behalf and the difficulties and prob lems inherent in the insistence upon construction of such pedestrian walk way in an isolated particular case could be reconciled is to direct the NDMC in the event of its ap proving the plans otherwise to keep the requirement of the pedestrian walk way and the podium in abeyance for the present subject to a written undertaking to be lodged with it by the respondent 1 and 2 to the effect that whenever the policy to implement the Zonal Developmental requirements in this behalf is finally decided upon the respondent 1 and 2 would undertake to put up such a pedestrian walk way and Podium
The NDMC also if it so chose could secure the requisite financial guarantees for the construction of such a pedestrian walk way by the NDMC itself at the expense of the respondent if Respondent 1 and 2 fail to do so whenever so required
This course would while ensuring the prospect of compliance with the Zonal Development prescriptions if they are decided to be put into effect also allay the apprehension of Respondent 1 and 2 that Governmental author ities are dealing with the Statesman s project with an evil eye and an uneven hand
Point d is answered accordingly
We might advert here to the grievance of Respondent 1 and 2 that the NDMC did not raise at the appropriate stage any specific objections to the plans on the ground that either they were not in conformity with Bye law 1648 or 16481 or that the plans were defective for want of pedestrian walk way
Objection based on bye law 16481 it was urged was never in mind of the NDMC
These objections it was urged were developed from stage to stage leaving the inference inescapable that the NDMC was pre determined to decline the sanction for the Statesman House  on one ground or another
We are afraid the way NDMC has developed its stance from time to time incurs and perhaps justifies this griev ance
Indeed at no stage of the proceedings before the High Court or even in important 613 communications bearing on the question of the sanction did the NDMC refer to the specific objection based on the lacuna that Refuge Areas were not located on the external walls as interpreted by the NDMC and the lack of a provision for the pedestrian walk way
Sri Nariman urged that we should not permit the NDMC to raise these belated and laboured objections
We have considered these submissions
We have proceeded to consider the contentions of the NDMC even on these points on the merits in view of the fact that they are matters of some general public importance though we are not unmindful that the NDMC has not been business like in the way it has dealt with the question from time to time
It is for this reason that though in view of the findings recorded on the various contentions the order dated 244
1989 of the High Court requires to be and is hereby set aside however we keep this appeal pending for such final orders and directions as may become necessary to be issued
In the meanwhile
We permit Respondent 1 and 2 to effect such rectifications to the plans in regard to the Refuge Area as may be necessary in the light of the observa tions in this order
The refuge areas could be located in each of the floors separately provided that it could be shown to the satisfaction of the NDMC that such a measure would better promote fire safety in the building and pro vided further that they are located on external walls by cantilever projection or in any other manner abutting a vacant space from which rescue operations are rendered possible
If such rectifications to the plans are made and submitted within 3 weeks from today the NDMC will consider and decide the question of according sanction to the plans in the light of the observations in this order and without insisting upon any fresh clearance from DUAC or the Chief Fire Officer within 3 weeks thereafter and report to this Court the decision taken upon such re construction
This appeal shall be kept pending and be taken up for final disposal after the submission of the report from the NDMC in this behalf
If respondents 1 and 2 are aggrieved by such fresh decision of the NDMC those grievances shall be considered in the further proceedings in the appeal
It was also submitted to us that pending final decision respondents 1 and 2 should be permitted to com mence the construction as delays had entailed serious cost and time over runs
We permit 614 respondents at their option to commence the construction work according to the plans submitted by them on the condi tion that they file a written undertaking before the NDMC that the construction would be at the risk of the Respond ents 1  2 and it would not progress beyond a height of 15 metres and in the event of an ultimate rejection of the plans they would have no claim against the NDMC for any loss occasioned to respondent 1 and 2 22
The appeal is directed to be called after 6 weeks to await the further report of the NDMC referred to in para 20 supra
Ordered accordingly


Summary:
The respondent employed as Yard Master in the South Central Railway was on duty between 1400 and 2200 hours on 23rd February 86
In the absence of a reliever he was to continue his duty till 800 hours on 24th February 86
He allowed his staff to take meals and since they did not return within a reasonable time he went towards the cabin where the staff usually took their meals
The Divisional Safety Officer who was coming down from the cabin enquired of the respondent s identity
The respondent in turn asked for the identity of the said officer
The officer was an noyed at this and threatened the respondent with dire conse quences
Immediately thereafter the respondent was placed under suspension
Further suspension followed and the re spondent was visited with the order of premature retirement under Rule 2046 of Indian Railway Establishment Code
Respondent challenged the said order before the Central Administrative Tribunal and the Tribunal relying on its decision in Shri Gafoor Mia  Ors
vs Director DMRL AISLJ held that the Divisional Railway Manager who passed the impugned order of premature retirement was not competent to make such an order and set aside the order
This appeal by special leave is against the Tribunal s order
Though under sub clause ii of rule 2046h a class III employee cannot be retired prematurely after he has attained the age of 55 years unlike officers of class I  II this clause was invoked in the case of respondent who was admittedly in class III service and did not attain the age of 55 years
Appellant relied on para 620ii of the Railway Pension 457 Manual which gives the authority power to remove from serv ice a railway servant after he completed 30 years service
On behalf of Respondent it was contended that the appellant had been shifting its stand and trying to support the order on an extraneous ground which did not find a place in the order viz unsatisfactory service record of the respondent and there is no basis for it in view of the promotionS secured by the respondent the last of which was just before the premature retirement
Dismissing the appeal this Court HELD 11 The order was passed under Rule 2046hii of the Indian Railway Establishment Code without verifying whether or not the incumbent had attained the age of fifty five years
Since the respondent was indisputably in class III service at the time the order came to be made his case was governed by the second clause of Rule 2046h
The impugned order recites that the respondent had already completed thirty years of qualifying service but it does not state that he had attained the age of fifty five years
According to the respondent he was running 54th year on that date
That obviously took his case out of the purview of the said rule
Even if the order was intended to he under Rule 22 of the Liberalised Pension Rules 1950 this require ment had to be satisfied
The immediate and proximate reason for passing the impugned order was undoubtedly the unfortu nate incident of 2324th February 1986
BUt for that inci dent there was no occasion for the Review Committee to examine the case of the respondent
If the service record of the respondent was so bad as is now sought to be made out he would not have been promoted to the post of Asstt
Yard Master an 22nd August 1984 and later to the post of Yard Master on 31st January 1986
The order of premature retire ment is punitive in nature and having been passed in fla grant violation of the principles of natural justice cannot be allowed to stand
426G H 460F G 463A B 12 FR 56j of the Fundamental Rules is substantially the same as Rule 2046hii of the Railway Establishment Code and Rule 22 of the Liberalised Pension Rules 1950 is substantially the same as paragraph 620 of Railway Pension Manual
Since Rule 22 has been struck down as violative of Article 14 of the Constitution paragraph 620ii would meet the same fate
Apart from the competence of the Divisional Railway Manager to pass the order the order cannot also he supported under paragraph 620ii
462B D 458 Senior Superintendent of Post Office  Ors vs Izhar Hussain   relied on
Union of India vs R Narasimhan   referred to
The authorities concerned will do well to amend Rule 22 of the Liberalised Pension Rules 1950 and paragraph 620ii of the Railway Pension Manual so as to incorporate therein the requirement of public interest making it clear that premature retirement on completion of qualifying serv ice of thirty years can be ordered in public interest only
463C D