Union Of India (Uoi) And Ors. vs B.G. Vergheese And Ors.
2005 Latest Caselaw 1525 Del

JUDGMENT

Vijender Jain, J.

Page 2224

1. This appeal was filed by Union of India aggrieved by the order passed by the learned Single Judge who has restricted the height of the National Police Memorial at Chankayapuri to 30 meters instead of 45 meters. Mr. P.P. Malhotra, learned Additional Solicitor General appearing for Union of India now submits that the appellant without prejudice to its rights and contentions and in order to seek an early resolution of the matter has decided to lower the height of the National Police Memorial as per suggestion of the Delhi Urban Art Commission contained in its affidavit dated 27th October 2005 filed before us pursuant to its meeting held on 17th October, 2005. The submission has been made on the basis of an affidavit of Mr. Devinder Gupta, Executive Engineer, Development Project Circle, CPWD.

2. At the outset, we are surprised at the keen interest shown by the CPWD in this Memorial. In order to decide the matter certain facts which are discernible from the record are to be borne in mind. We inter-alia observed in our order dated 20th May, 2005 as under:-

"...What surprises us is that in December 2, 2002 meeting of the DUAC, the advisers who were experts in the field i.e. Prof. A.G. K. Menon, Shri Sumit Ghosh, Shri D.D. Mathur and Shri S.K. Das were of the following opinion:-

"New Delhi is world famous for its capital complex designed by Sir Edwin Lutyens. It is also surrounded by important historical buildings. It may be because of this reason that it is being considered as a World Heritage City by UNESCO. We as Advisers to the DUAC had reviewed the design scheme on 2nd of December. It was presented in the commission meeting without its vital context of the Rashtrapati Bhavan and its axial relation to the Shantipath. As one is aware, that Shantipath is traditionally a VIP road and has become an entrance to the city of Delhi. It is from here that one has the first glimpses of Rashtrapati Bhavan. If the proposed Police Memorial is seen in this context it would be absolutely clear that the design is completely out of context, out of proportion and out of scale."

3. In spite of the above expression of opinion by eminent experts the then DUAC did not take their advice seriously and approved the proposal. We had also recorded in our order of the same date that once expert persons were called their opinion should not have been brushed aside in the manner in which it was done by the DUAC .

4. The same DUAC in its written statement filed before the learned Single Judge on 10th February, 2003 had taken the following stand:

"It is submitted that the proposed Police Memorial does not affect the vicinity or aesthetic sense of the area nor any adverse impact on the Rashtrapati Bhavan, on the contrary, it will enhance the beauty and aesthetic sense of the area when the construction is complete and landscaping is done as advised by defendant No. 4."

Page 2225

5. At the relevant time it was headed by one Additional Secretary of the Ministry of Urban Development and its constituted Members. In our order dated 20th May, 2005 we had further observed as under:-

"The next note of the DUAC still gives further interesting reading:-

"In the meeting held on January 21, 2003, in respect of the concern of DUAC itself in the previous meeting with regard to the height taken into consideration about 30 meters and the overall impact on the surroundings particularly on the axis of the Shantipath in the backdrop of Rashtrapati Bhavan just after two days on 4th December, 2002, the then Chairperson of the NDMC approved the proposal revising the height from 31.50 meters to 47.22 meters and the same was approved by the DUAC which was restricted in view of some letter from the Civil Aviation Ministry to 41.68 meters. The height as the proposed planning of the National Police Memorial is 44.5 meters."

How this could have happened? In the next meeting which was held on January 21,2003, the experts who had dissented, i.e., Prof.A.G.K.Menon, Shri Sumit Ghosh and Shri S.K.Das were not called in the meeting. The apprehension expressed in the meeting note of 2nd January, 2002 by the DUAC was given a go-bye on 21st January, 2003 and on whose authority and behest the Chairperson of the NDMC could have raised the height from proposed 31 meters to 47.22 meters? These are the questions which require answers.

6. This court in its order dated 20.5.2005 dealt with another aspect and observed as under:-

"Another aspect which we would like to know from the appellant is in relation to the meeting held on December 2, 2002 in which it has been observed by the DUAC:

As per the allotment letter of 18th January, 2002 of L&DO, the National Police Memorial which was to be constructed.... The development norms for Police Memorial were not available in the Master Plan of Delhi (MPD-2001)."

7. On what basis the Ministry of Urban Development could advice for construction of a National Police Memorial when the same was not permitted under the Master Plan of Delhi-2001? It has been mentioned by the DUAC under Item No. 19 that the proposal is for Police Memorial on piece of land measuring 6.1 acres shown as District Park in the Zonal Development Plan Zone D-1 and 1.42 acres of round about in Chankayapuri. If the lands falls in the District Park, how the Urban Development Ministry could change use and under what law ?

8. Thereafter an affidavit dated 8.7.2005 was filed by an Executive Engineer of CPWD. We were not satisfied with the affidavit so filed. We were told during the hearing that the Delhi Urban Art Commission has been reconstituted and Mr. Charles Correa has been appointed as the Chairman of the Urban Art Commission. We passed an order on 23rd August, 2005 in the following terms:

"...We have underscored the importance of aesthetic sense, the environment as well as the overall view of the vista of Shantipath in Page 2226 the back drop of Rashtrapati Bhavan and the proposed construction of Police Memorial, whether the same would be conducive to maintain the grandeur in the overall perspective of this beautiful city. We hope that the DUAC under the stewardship of its Chairman will examine the whole issue in right earnestness without being influenced in any manner which has influenced the earlier decision to arrive at a decision to preserve aesthetic and environment of the site afresh, and also to opine whether the present shape and structure even if the height is lowered down, would be in consonance with the overall view of the area in question."

9. Thereafter, pursuant to our directions the DUAC has filed its report which is under consideration before us. The Commission has observed as follows:

"Having inspected on site the relationship between the Police Memorial and the axis of Shantipath, the Commission observed that the Memorial is directly in the line of Shantipath and the dome of Rathrapati Bhavan, and thus interferes with the visual integrity of the vista by obscuring almost completely views ofthe dome. Photographs taken from various points along Shantipath illustrating the fact are attached.

The Commission is, therefore, of the view that the Memorial in its present form is in appropriately located and would not be conducive to maintaining the grandeur and perspective of Shantipath. It would compromise the elegant simplicity of this fine urban landscape, removing forever the memory of vista with which this very important part of New Delhi has been identified.

As to the question of lowering the height of the memorial, the Commission feels that, for the reasons mentioned above, any structure at this location would have to be lower than the height of the trees within or in the immediate vicinity of the site.

For obvious reasons, the above matters have not been discussed with the promoters. However, if the Court so desires, the Commission is within to assist and advice in the identification of a more suitable site for this prestigious project."

10. We may at this stage refer to an affidavit filed by the Secretary Delhi Urban Art Commission dated 6th July 2005 wherein the proposal to set up the police memorial in its present form was sought to be justified. As has already been noticed above similar was the stand taken in the written statement filed before the learned Single Judge.

11. The above details provide an insight as to how the system works in our country. Persons/Officers who are suppose to preserve our heritage and protect the environment, more often than not, buckle under pressure which comes from persons who have no or little understanding of either our heritage or the aesthetic sense for preservation of the same. We are surprised that affidavit after affidavit has been filed by an authority which is custodian of maintaining our heritage not only in terms of architectural and aesthetic sense but also with respect to the overall environment of the whole of Lutyens Delhi yet in the stand taken by it a complete go-bye has been given to the Page 2227 very object for which it is founded. But for Mr. Charles Correa and Mr. Jasbir Sahni who are now members of the Urban Art Commission this Court was being ill-advised through the affidavit of the Urban Art Commission of July 2005 and the written statement which was filed before the learned Single Judge. Therefore, in our considered opinion and taking into consideration the totality of circumstances, including the harmonious and visual integrity of the Shantipath, its eminent place in the city of Delhi as a gateway of India and in view of the fact as well as the anxiety that the elegant simplicity of this fine art landscape is maintained, we direct that the Urban Art Commission under the Chairmanship of Mr. Charles Correa and the members who have given this report to consider the request of the appellant and examine it with regard to the appropriateness or inappropriateness of the site for construction of a Police Memorial, and also whether the structure should be installed in its present form or in any other form and what should be its height, if at all, the structure has to be placed at the place where it presently exists. It will be open for the DUAC to suggest an alternative site also if DUAC is of the opinion that the proposed Memorial would not be conducive in maintaining the grandeur perspective of Shantipath. The appellant is directed to place their suggestions before the Urban Art Commission within a period of two weeks and Urban Art Commission shall decide the issue within a period of 8 weeks thereafter without being influenced by any observation made by the learned Single Judge as to the appropriateness or otherwise of the site of construction of the memorial or as to its height.

12. The appeal stands disposed of.

13. dusty.