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Monday, September 5, 2016

Veer Chandra Singh Garhwali Marg. = 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.

                                                                  REPORTABLE

        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.  8747 OF 2016
                  [Arising out of SLP (C) No.23464 of 2016]

NATIONAL BUILDING CONSTRUCTION                                  …APPELLANTS
CORPORATION LTD & ORS.

                                   Versus



KHOSMENDIR SINGH GAHUNIA & ORS.                      …RESPONDENTS



                                    With

                       CIVIL APPEAL No.  8748 OF 2016
                  [Arising out of SLP (C) No.23912 of 2016]




                               J U D G M E N T



Dr D Y CHANDRACHUD, J

            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  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,  Part-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 question 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 statement :

“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 Appellants 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  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”  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 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.



             .........................................CJI
                                                             [T S  THAKUR]


             ............................................J
                                                              [A M
KHANWILKAR]



.............................................J
                                                          [Dr D Y
CHANDRACHUD]
New Delhi
September 02, 2016.

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