NATIONAL BUILDING CONSTRUCTION CORPORATION LTD AND ORS.versusKHOSMENDIR SINGH GAHUNIA AND ORS.

                            (2016) 7 S.C.R. 992


A     NATIONAL BUILDING CONSTRUCTION CORPORATION
                      LTD AND ORS.
                                    v.
             KHOSMENDTR SINGH GAHUNIA AND ORS.

B                     (Civil Appeal No. 8747 of2016)
                          SEPTEMBER 02, 2016
           [T.S. THAKUR, CJI, A.M. KHANWILKAR AND
                   DR. D.Y. CHANDRACHUD, JJ.]
           Urban development - Re-development of colony - Plea of
c   respondent-writ petitioners that appellant-Corporation, the
    nominated executing agency for re-development, progressively
    encroached the public road thereby denying access to the general
    public - Assurance of appellant-Corporation by way of affidavit
    and undertaking that closure of the road is not of a permanent
D   nature but is of temporary character to facilitate the completion of
    work and that it would restore the road in accordance with the
    terms of the approved layout plan - Held: A temporary closure of
    ingress and egress was necessitated to avoid any mishaps and at
    this stage, the balance of convenience would lie in allowing the
    completion of the project - However, it is open to the High Court to
E
    impose suitable safeguards, to allay the apprehensions of the
    respondents/writ petitioners - NDMC Act,1994 - s.2 (39).
          Appellant-Corporation was nominated as an executing
    agency for re-development of a colony. The respondent filed
    writ petition contending that after re-development commenced
F
    in September 2013, the appellant-corporation progressively
    encroached the public road thereby denying access to the general
    public. High Court 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. Hence, the present appeals.
G         Disposing of the appeals, the Court
          HELD: 1. The affidavit and the undertaking filed by the
    appellants to the effect that the appellants would by December
    2018 restore the road in accordance with the terms of the
    approved layout plan. A temporary closure of ingress and egress
H
                                    992
       NBCC LTD. v. KHOSMENDIR SINGH GAHUNIA                               993


was necessitated to avoid any mishaps. That being the position,            A
the grievance of the appellants that at this stage, the balance of
convenience would lie in allowing the completion of the project
is accepted. 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
                                                                            B
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 High Court. It is 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            c
the petitioners before it. The project for re-development shall
proceed unhindered. However, it is to open to the High Court to
impose suitable safeguards, to allay the apprehensions of the
original petitioners. [Para 18) [999-E, G-H, 1000-A-B, C-D)
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8747                   D
of2016.
      From the Judgment and Order dated 07.04.2016 of the High Court
of Delhi, New Delhi in W. P. (C) No. 303 of 2016.
                                 WITH
                                                                            E
C. A. No. 8748 of2016
       Mukul Rohatgi, AG, Manoj K. Dass, Nikilesh Ramachandran,
Piyush Bhardwaj, Neeraj Jha, Saurabh Mishra, Ms. Rekha Chaudhary,
Ad vs. for the Appellants.
       Keshav Dayal, Ajit Kumar Sinha, Sr. Advs., Alok Gupta, R. K.         F
Rathore, Vibhu Shankar Mishra, D. S. Mahra, Dr. Salone Kantroo, Advs.
for the Respondents.
      K. S. Gahunia, Respondent-in-person.
      The Judgment of the Court was delivered by
                                                                            G
      DR. D, Y. CHANDRACHUD, J. I. 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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994             SUPREME COURT REPORTS                           [2016] 7 S.C.R.


A            3. Under the Master Plan of202 I,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
B
      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
c     October 20 I 0 and by the Cabinet Committee on Economic Affairs on 23
      March 2012, aLetter of Intent was issued to the Appellantswho were
      nominated as the executing agency on 22 June 2012. The projected cost
      of re-development of the colony is Rs. 5,300/- croreswith astipulated
      date of completion of December 2019. The project envisages the
D     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 forre-
      development, for sanction to the NDMC on 23 July 2012. An environment
E     clearance was issued on13 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.
F
            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.
G            7. Writ Petitions were filed before the Delhi High Court under
      Article 226 of the Constitution by the Residents' Welfare Association of
      South Extension Pait-I, and by associations inter a/ia representing the
      residents of KotlaMubarakpurand Village Pillanji, among others. The
      grievance in the Writ Petitions was that after re-developmentcommenced
      in September 2013, NBCC progressively encroached upon the public
H     road. On 24 December 2015, the residents of South Extension, Part-I,
        NBCC LTD. v. KHOSMENDIR SINGH GAHUNIA                                    995
              [DR. D. Y. CHANDRACHUD, J.]

Village Pillanj i and KotlaMubarakpur found that the road had been               A
completely cordoned offand blocked. A sign board was put up stating
that the road would be permanently closed on I 0 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
AurobindoMarg for onward journey towards South Mehrauli or North
                                                                                  B
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 60years to access
AurobindoMarg, INA metrostation and market and other public amenities.
       8. A mandamus was sough tinter alia to the Appellants to maintain          c
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             D
GarhwaliMarg 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              E
as a road or passage and infact formed a portion of a new building/
tower. The Appellants relied upon the fact that on I 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          F
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                G
       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             H
996            SUPREME COURT REPORTS                            (2016] 7 S.C.R.



A           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-
B
            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:
c
            "That in the Zonal Development Plan (Zone-D), a 30 mt. wide
            road starts fromAurobindoMargupto surrounding ofDa1ya Khan's
            Tomb. Accordingly, answering Respondent sanctioned the layout
            plan wherein the said road was retained, only the cntiy and exit
            points have been shifted towardsAurobindoMargas per the NOC
D           ofUTTIPEC [Unified Traffic and Transportation Infrastructure)
            (Pig. &Engg.) Centre].(ld. at p-136-137)    (emphasis supplied)
      This is again reiterated in paragraph 7 of the counter affidavit which
      reads as follows :

E           "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 AurobindoMarg on one side and passes by the
            Darya Khan's Tomb, cast 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
 F          points have been shifted towards AurobindoMarg as per the NOC
            of UTTIPEC [Unified Traffic and Transportation Infrastructure
            (Pig. &Engg.) Centre.] (Id. at p-137)
             I 0. In this background, what clearly emerged before the High
      Court was the clear and categorically statement inthe affidavit by NDMC
G     that in the layout plan which it had sanctioned, the road had been
      maintained. Contrary to this was the statement of the Appellantsas 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
      buildingtower. In this background, the Division Bench of the High Court
      while placing reliance on the counter affidavit tiled by NDMC held that
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        NBCC LTD. v. KHOSMENDIR SINGH GAHUNIA                                     997
              [DR. D. Y. CHANDRACHUD, J.]

it was not open to the Appellants to shut down the road, which was                 A
inexistence 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                   B
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           c
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.          D
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
oftheAppellantsbyShriArun Kumar Shanna, who is working as a General
Manger (Engineering) for the re-development project, reliance hasbeen
placed on the approved layout plan. It has been stated that under the              E
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         F
       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             G
the purposes of the present controversy and read as follows :
       "4). The petitioner respectfully submits thatthe 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                     H
998             SUPREME COURT REPORTS                           [2016] 7 S.C.R.


A           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
B           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
c           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."(ld. 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
D     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
E     retained and it was only the entry and exit points which have been shifted
      towards AurobindoMarg 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
F     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 behalfoftheAppellants),
      it has been stated that "no new road will be constructed during construction
      or operation."
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              16. The position that now emerges before this Court from the
      further affidavit which has been filed on behalfofthe Appellants is that
      the existing road shall be closed temporarily until December 2018. This
      is to facilitate the work ofreconstruction and to obviate any danger or
      mishaps. The closure is temporary and not for an indefinite duration.
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        NBCC LTD. v. KHOSMENDIR SINGH GAHUNIA                                  999
              [DR. D. Y. CHANDRACHUD, J.]

The Appellants have furnished an undertaking to restore the road to its        A
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 r~stored in a manner asis required under the sanctions issued
by NDMC.On their behalf,it has been urged that necessary safeguards            B
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 stalledand
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              c
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    D
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            E
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               F
excavated to a depth of35 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           G
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 faci Iitate the
completion of the project on schedule. The statements which have been
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1000            SUPREME COURT REPORTS                          [2016] 7 S.C.R.



A      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 ofjustice 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
B
       before it. For that purpose, the proceedingsshall 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 Cou1t on affidavit by the Appellants and the undertaking
 c     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
D      terms.The order passed by the High Court shall accordingly stand
       substituted by the above directions. No costs.
       Ankit Gyan                                             Appeals disposed of.