Leave granted.
2 These Appeals by the National Building Construction Corporation, a
public sector enterprise, arise from a judgment and order of the Delhi High Court
dated 7 April 2016.
3 Under the Master Plan of 2021, Delhi Development Authority issued a
Zonal Development Plan for Zone (Division) -D on 27 July 1993, under which
Kidwai Nagar East was earmarked as a colony for re-development. Spread over an
area of 86 acres, the colony comprised of 2331 housing units meant for employees
of the Central Government. Apart from residential units, the colony had three
schools and two local shopping markets. Within its precincts, there is a protected
monument, called Darya Khan’s Tomb on an area of about 2 acres.
4 The Master Plan took effect on 7 February 2007, following final approval
and a notification in the Gazette of India. Following the approval of the plan for
re-development by the Union Cabinet on 12 October 2010 and by the Cabinet
Committee on Economic Affairs on 23 March 2012, a Letter of Intent was issued
to the Appellants who were nominated as the executing agency on 22 June 2012.
The projected cost of re-development of the colony is Rs. 5,300/- crores with a
stipulated date of completion of December 2019. The project envisages the JUDGMENT
construction of 4608 residential units (comprised of type II-VII residential units)
for employees and officers of the Union Government and office space for its
agencies.
5 The petitioner submitted a layout plan together with a plan for
re-development, for sanction to the NDMC on 23 July 2012. An environment
clearance was issued on 13 August 2012. On 18 October 2012, the Ministry of
Urban Development handed over the land to the Appellants and issued no
objection certificate for re-development. The new layout plan and plan of
proposed structures was sanctioned by NDMC on 13 March 2014. The work of
re-development has proceeded upon receipt of statutory clearances.
6 The bone of contention is a road by the name of Veer Chandra Singh
Garhwali Marg. The road traverses a distance of 680 meters commencing from
Aurobindo Marg to its terminal point at Darya Khan’s Tomb.
7 Writ Petitions were filed before the Delhi High Court under Article 226 of
the Constitution by the Residents’ Welfare Association of South Extension Part-I,
and by associations inter alia representing the residents of Kotla Mubarakpur and
Village Pillanji, among others. The grievance in the Writ Petitions was that after
re-development commenced in September 2013, NBCC progressively encroached
upon the public road. On 24 December 2015, the residents of South Extension,
JUDGMENTPart-I, Village Pillanji and Kotla Mubarakpur found that the road had been
completely cordoned off and blocked. A sign board was put up stating that the
road would be permanently closed on 10 January 2016. As a result of the closure
of the road, which according to the petitioners before the High Court is a public
road, access was being denied from Aurobindo Marg for onward journey towards
South Mehrauli or North Central Delhi and beyond. The action of NBCC of
closing what is described as a public street within the meaning of the NDMC Act
1994, was urged to be contrary to law; the grievance being that the residents of
localities in the area had utilized it for over 60 years to access Aurobindo Marg,
INA metro station and market and other public amenities.
8 A mandamus was sought inter alia to the Appellants to maintain the road
by the removal of encroachments made thereon. A prohibitory direction was
sought for restraining the Appellants from closing the road.
9 During the course of the hearing of the Writ Petitions before the High
Court, the Appellants and NDMC filed their respective counter affidavits. The
defense of the Appellants was that Veer Chandra Singh Garhwali Marg together
with other roads and passages inside the colony are internal roads and do not
constitute a public street within the meaning of Section 2 (39) of the NDMC Act,
1994. The case which the Appellants specifically pleaded in their counter
affidavit was that in the layout plan which was sanctioned by NDMC, the road in
JUDGMENTquestion was not reflected as a road or passage and infact formed a portion of a
new building/tower. The Appellants relied upon the fact that on 1 October 2013,
the office of the Superintending Engineer (Roads-II), NDMC had issued a no
objection certificate in respect of roads and pavements before the project was
approved. The Appellants contended that if the road was a public street as alleged
in the Writ Petition, the layout plan would not have been approved by NDMC. In
the following extract from the counter affidavit filed by the Appellants in the High
Court it was stated specifically that the road was not shown as a road/passage in
the new layout plan sanctioned by NDMC :
“The layout plan submitted with NDMC is a entirely new plan
which contains complete changes of buildings layout, internal
passages/road etc. the existed internal road in question i.e.
“Veer Chandra Singh Garhwali Marg” was not shown as
road/passage in the new plan and it is portion of new
building/tower. The internal road/passages were therefore
altered/shifted as per new layout plan, the new layout plan and
internal passages/roads in the layout plan and detailed plans
were submitted by respondent No. 2 to NDMC for approval
and same was duly approved/sanctioned by NDMC on
19.3.2014 under Section 217 showing building/Tower thereon,
open space, park, school market, space for other public
purpose, allotment of site for street, line of streets etc. (Id.
at p- 120-121) (emphasis supplied)
On the other hand in the counter affidavit that was filed by NDMC before the
High Court, it was stated that while sanctioning the layout plan, the road had been
retained and only its entry and exit points have been shifted. The counter affidavit contains the following statementJUDGMENT:
“That in the Zonal Development Plan (Zone-D), a 30 mt. wide
road starts from Aurobindo Marg upto surrounding of Darya
Khan’s Tomb. Accordingly, answering Respondent sanctioned
the layout plan wherein the said road was retained, only the
entry and exit points have been shifted towards Aurobindo
Marg as per the NOC of UTTIPEC [Unified Traffic and
Transportation Infrastructure) (Plg. & Engg.) Centre]. (Id.
at p-136-137) (emphasis supplied)
This is again reiterated in paragraph 7 of the counter affidavit which reads as
follows :
“7). It is also wrong and denied that the said road is closed
by the answering Respondent. It is further denied that the said
road emanates at the Aurobindo Marg on one side and passes
by the Darya Khan’s Tomb, east Kidwai Nagar, New Delhi. It
is further submitted that answering Respondent sanctioned the
layout plan wherein the said road has been retained, only the
entry and exit points have been shifted towards Aurobindo
Marg as per the NOC of UTTIPEC [Unified Traffic and
Transportation Infrastructure (Plg. & Engg.) Centre.]
(Id. at p-137)
10 In this background, what clearly emerged before the High Court was the
clear and categorically statement in the affidavit by NDMC that in the layout plan
which it had sanctioned, the road had been maintained. Contrary to this was the
statement of the Appellants as the executing agency of the project that the road is
not shown as a road or passage in the new plan and that it was infact a portion of a new building tower. In this background, the Division Bench of the High Court
while placing reliance on the counter affidavit filed by NDMC held that it was not
open to the Appellants to shut down the road, which was in existence for sixty
years, for an unstated duration as was sought to be done without the issuance of a
proper sanction.
11 NDMC was accordingly directed to take appropriate steps for enforcing
the sanctioned layout plan for the area in question pertaining to Veer Chandra Sigh
Garhwali Marg and to take all necessary and consequential steps in accordance
with law.
12 When the Appellants filed Special Leave Petitions before this Court
seeking to challenge the judgment of the Delhi High Court, they reiterated the
position that the road had been shifted under the approved plan to make way for
the construction of 3 towers comprising of a ground floor and 14 floors with 3
basements.
13 During the course of the hearing, the learned Attorney General urged that
the road was being only temporarily closed to facilitate the work of construction.
Moreover, it was submitted that save and except for realignment of the entry and
exit points, the road would be retained. The hearing was adjourned to enable the
JUDGMENTAppellants to clarify this position in a further affidavit. During the course of the
hearing a further affidavit has been filed on behalf of the Appellants. In the
affidavit filed on behalf of the Appellants by Shri Arun Kumar Sharma, who is
working as a General Manger (Engineering) for the re-development project,
reliance has been placed on the approved layout plan. It has been stated that under
the approved plan of 12 February 2014, the road has been realigned at its entry
and exit points as indicated in the plan. Paragraph 3 of the affidavit inter alia
states as follows :
“3). The entry point from Point “A” to Darya Khan’s Tomb
will have to be closed for a temporary period for carrying out
necessary construction activities of the project by the
Petitioner. After completion of the requisite construction
activities, the petitioner shall rebuild/re-lay the said road with
entry/exit as per the approved layout plan. (Id. at p-1)
The statements in paragraphs 4 and 6 of the affidavit are material for the purposes
of the present controversy and read as follows :
“4). The petitioner respectfully submits that the petitioner is
required to close the said road at this stage, at least till
December 2018, for undertaking major construction and
related activities at site, including the road (interconnecting
basements and other underground services viz. sewerage
connection, electricity and water). The stipulated date of
completion of the project is 30.11.2019. However, it shall be
the endeavor of the Petitioner to restore the road by the end of
December 2018…
6). Currently, the Veer Chandra Singh Garhwali Marg is dug
up on either side about 35-40 feet in depth for facilitating JUDGMENT
construction work of basements which will be interconnected
at points which would fall under the said road. The use of this
road which is currently being done by the public is fraught
with danger. The ingress and engress of the public including
commercial transporation needs to be stopped forthwith to
avoid any mishaps and the said road will be used by the
Petitioner for completing the project. The road will be
reopened after the realignment from Point “B” by the end of
December 2018.” (Id. at p- 2)
14 During the course of the hearing, it has been stated before this Court that a
temporary closure of the road is required until December 2018 and that the road
would be reopened after realignment of the entry and exit points as indicated in
the approved plan.
15 The Delhi High Court cannot be faulted for having proceeded on the basis
of the clear statement in the counter affidavit filed by NDMC to the effect that it
has sanctioned the layout plan in which the road was retained and it was only the
entry and exit points which have been shifted towards Aurobindo Marg in
accordance with the NOC issued by the Unified Traffic and Transportation
Infrastructure (Planning & Engineering). This being the clear and categoric
statement of the planning authority, the High Court observed that the Appellants
were bound by the layout plan which was sanctioned by NDMC. We also take
note of the fact that in the application that was submitted by the Appellants to the
State Expert Appraisal Committee (a copy of which is attached as Annexure “A” JUDGMENT
to the further affidavit filed on behalf of the Appellants), it has been stated that
“no new road will be constructed during construction or operation.”
16 The position that now emerges before this Court from the further affidavit
which has been filed on behalf of the Appellants is that the existing road shall be
closed temporarily until December 2018. This is to facilitate the work of
reconstruction and to obviate any danger or mishaps. The closure is temporary and
not for an indefinite duration. The Appellants have furnished an undertaking to
restore the road to its original form and width thereafter in terms of the approved
plan.
17 The original petitioners before the High Court, have expressed
apprehensions during the course of the hearing about whether the road would be
restored in a manner as is required under the sanctions issued by NDMC. On their
behalf, it has been urged that necessary safeguards may be instituted by this Court
so that these apprehensions are duly allayed. On the other hand, the learned
Attorney General submitted that as a result of the judgment of the Delhi High
Court, the execution of the project, which involves an outlay of Rs. 5,300/-crores,
has been stalled and it is necessary for the earlier completion of the project that
this state of impasse should end. Moreover, it has been urged that the original
petitioners before the High Court are not residents of Kidwai Nagar East which
was a colony for government servants but are residents of nearby localities. It was JUDGMENT
urged that a temporary closure of the road to facilitate the progress of the work
would not cause any prejudice to the residents of colonies in the vicinity who have
alternative means of ingress and egress. Moreover, it was urged that since the
Appellants have now stated clearly that they shall restore the road by December
2018 in accordance with the terms of the approved layout plan, the apprehensions
of the residents’ associations would be duly met.
18 We have adverted to the affidavit which has been filed on behalf of the
Appellants during the course of the hearing and to the undertaking that the
Appellants would by December 2018 restore the road in accordance with the
terms of the approved layout plan. In other words, the closure of the road is not of
a permanent nature but is of a temporary character to facilitate the completion of
the work. Presently, it has been stated that Veer Chandra Singh Garhwali Marg
has been excavated to a depth of 35 to 40 feet for facilitating the construction of
basements which will be interconnected at points which would fall under the road.
A temporary closure of ingress and egress has been necessitated to avoid any
mishaps. That being the position, we see merit in the grievance of the Appellants
that at this stage, the balance of convenience would lie in allowing the completion
of the project. We accept the assurance furnished by the Appellants on affidavit
and through the learned Attorney General in Court. The project for re-development having received the statutory approvals, it is necessary to facilitate the completion of the project on schedule. The statements which have
been made on behalf of the Appellants in the further affidavit as well as the
undertaking would adequately protect the concerns of the petitioners who had
moved to the Delhi High Court. At the same time, we deem it appropriate and
proper in the interests of justice to remit the proceedings to the High Court to
consider whether any additional safeguards should be introduced so as to allay the
genuine apprehensions of the petitioners before it. For that purpose, the
proceedings shall stand remitted back to the High Court for the limited purpose of
considering whether any such additional safeguards are required and if deemed
necessary to provide for them. In the meantime, we clarify that in view of the
statements made before this Court on affidavit by the Appellants and the
undertaking before this Court as noted earlier the project for re-development shall
proceed unhindered. However, we leave it to open to the High Court to impose
suitable safeguards in pursuance of the present judgment, to allay the
apprehensions of the original petitioners.
19 The Civil Appeals shall accordingly stand disposed of in these terms. The
order passed by the High Court shall accordingly stand substituted by the above
directions. No costs.
[Dr D Y CHANDRACHUD] New Delhi September 02, 2016.