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          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.

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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

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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

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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

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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)

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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.

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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

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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)

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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

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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.

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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

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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.