All India Lawyers Union (Delhi ... vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 712 Del

JUDGMENT

S.B. Sinha, C.J.

1. A fire broke out at Lal Kuan on 31st May 1999 in a godown of New Aligarh Transport Company, which was a devastating one.

2. A first information report in that behalf was lodged on 31st May 1999 at Police Station Hauz Quazi. Fifty-seven persons had lost their lives and twenty-seven persons suffered burnt injuries in that incident.

3. After this Court entertained the writ petition a Committee was constituted. A magisterial enquiry was ordered purported to be in terms of Section 174 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.')

4. The report of the Committee suggests that the incident occurred due to negligence on the part M/s. New Aligarh Transport Company in handling highly explosive Chemicals stored in the godown. It further appears that he whole of the walled city is lined with booking offices and godowns of transporters. Consignments are kept by the transporters outside their respective offices/godowns allegedly because of paucity of space causing traffic congestion. In the godowns there existed not storage facility for Chemicals and other hazardous substances. It was noted that having regard to the fact that the walled city is a congested area it was not desirable to allow storage and transport of such hazardous substance. Such activities were recommended to be shifted to the peripheral areas of Delhi where safety measures can be ensured. Apprehensions were raised that similar other incidences may take place. While holding that the said transporter is responsible for the incident, the following suggestions had been made:

1) Area should be declared No Traffic Zone'. In case that is not feasible, then traffic should be strictly regulated and all steps taken to reduce traffic congestion.

2) The wholesale Chemical Trading Market should be shifted out to peripheral areas of NCt of Delhi.

3) Till the time the market is shifted, no unauthorized trading in dangerous or hazardous Chemicals should be allowed by the regulatory authorities like MCD or Delhi Police.

4) The booking offices/godowns of transporter must be shifted out of the walled city to peripheral areas to reduce congestion on the roads and to minimize ire and other hazards.

5) A vigorous campaign should be launched against unauthorized construction and conversion of residential houses into markets, to reduce traffic congestion and unauthorized storage of hazardous material, thereby endangering public safety.

6) A massive public awareness campaign should be launched to educate the public regarding preventive measures to be taken to minimize the risk of fire. Adequate fire safety measures should be insisted to be adopted by the traders.

5. It was recorded that in past, several such major fires had taken place, as a result whereof, 55 persons in total were killed and several shops were gutted. Despite recommendations made by the Committee afore-mentioned, no action had been taken. This Court, keeping in view the urgency of the matter, from time to time issue various direction. A direction was also issued to the Municipal Corporation of Delhi (in short MCD') to conduct survey in order to evict the occupiers from the premises where there were unauthorized storage of hazardous substance and Chemicals.

6. Directions were also issued to the Delhi Development Authority (in short DDA') and other public authorities to see that that the market is shifted.

7. Allegedly the MCD upon conducting a survey identified four premises and sealed the same. The Court made the Commissioner MCD responsible for execution of its order dated 10th July 2000 in the following terms:

"We direct the DDA to give top priority in developing the Gazipur area so that the wholesale Chemical market could be shifted out of the walled-city. The entire exercise of development and allotment of the site at Gazipur should be completed by the DDA within a period of three months and the shifting of market must take place within four months from today. In the meantime, the booking offices/godowns of transporters cannot be allowed to function from the walled-city Accordingly, the authorities shall not permit the running of booking offices/godowns of he transporters in the walled city. An immediate survey of the walled city should be conducted by the MCD to locate the premises where unauthorized trading in \and storage of dangerous of hazardous Chemicals may be taking place. Wherever such activities are found to be taking place, they shall be stopped by the authorities concerned immediately. In case the unauthorized trading in dangerous or hazardous Chemicals is allowed to take place, the DCP of the area concerned and the Assistant Commissioner (City Zone), MCD shall be held personally responsible for the same."

8. However sealing of the premises led to strike of the transporters, which was later on withdrawn. In a meeting held by the authorities together with the transporters a decision had been taken that the transporters and the shop owners would undertake to the Court that once the alternate sites are allotted and possession thereof had been handed over they would close their offices and godowns situate at the present places and shift to the allotted sites. However, later on a prayer was made on behalf of the transporters to the effect that they should ate least be allowed to operate their booking offices within the walled city. The Commissioner MCD was directed to consider the same.

9. Allegations, however, were started being made to the effect that those who were allotted the land had in fact not shifted.

10. Pursuant to the directions made by this Court the transporters deposited a sum of Rs. 5 lacs before this Court for payment of compensation to the victims. As regards shifting undertaking had been directed to be furnished in the prescribed proforma.

11. This court directed the Delhi Jal Board (in short DJB) and Delhi Vidyut Board (in short 'DVB') to provide adequate water and electricity facilities to the transporters.

12. A Division Bench considered the matter in great detail in its order dated 14th September 2001, wherein following directions were issued.

"We direct that the Chemical trade be shifted from the walled city to Holambi Kalan immediately on execution/completion of the work relating to the development of the site. Since the traders are still carrying on business of Chemical trade even without grant of licenses by the civil authority and are a party to making human life unsafe, cots need to be imposed on them.

Accordingly we direct that each Chemical trader shall deposit a sum of Rs. 20,000/- in the registry of this Court within two weeks. The costs so received shall be distributed to the victims of the Lal Kuan fire in accordance with and subject to further directions. In the first instance, the registry shall place the costs so received in a fixed deposit for a period of three months. We also direct that unless a Chemical trader furnishers proof of the deposit of costs in the registry of this Court to the allotting agency, no allotment of space shall be made in his favor. In case the MCD fails to comply with the order and makes the allotment, the Commissioner MCD shall be held responsible. At the same time, the MCD shall seal the premises of the trader not depositing the costs."

13. The Registrar (General) identified persons, who were entitled to receive compensation. In respect of some of the persons, however, the said process is still going on.

14. It is unfortunate that despite the fact that the Committee in its report held that the MCD cannot escape its liability, a stand has been taken by it that, having regard to the provisions of Delhi Municipal Corporation Act (in short 'DMC Act') the individula responsibility of the officers cannot be fixed. A contention had also been raised that for storage of hazardous substances no license is required. It is all the more unfortunate that although in one of its affidavits, the MCD stated that there are 487 hazardous goods, they when called upon, even could not furnish the details thereof.

15. The matter relating to storage of hazardous substance is covered by the provisions of Section 417 of the Delhi Municipal Corporation Act, 1957 (in short the DMC Act'), which is in the following terms:

"417. Premises not to be used for certain purposes without license-

(1) No person shall use or permit to be used any premises for any of the following purpose without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, namely:-

(a) any of the purpose specified in Part I of the Eleventh Schedule;

(b) any purpose which is, in the opinion of the Commissioner dangerous to file, health or property or likely to create a nuisance;

(c) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or

(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any of those articles:

Provided that the corporation may declare that premises in which the aggregate quantity of articles stored for sale dos not exceed such quantity as may be prescribed by bye-laws in respect of any such articles shall be exempted from the operation of Clause (d).

(2) In prescribing the terms of a license granted under this section for the use of premises as mills or iron yards or for similar purpose the Commissioner may, when he thinks fit, require the licensee to provide a space or passage within the premises for carts for loading and unloading purposes.

(3) The Corporation shall fix a scale of fees to be paid in respect of premises licensed under Sub-section (1):

Provided that no such fee shall exceed five hundred rupees.

16. The afore-mentioned provisions does not show that storage must be made only by the trades and not by the transporters. Such storage may be temporary in nature, but when it comes to storage of hazardous substances, the law must strictly be complied with. It will not be out of place of notice that the Apex Court in Shriram Foods & Fertilizer Industries and Anr. v. Union of India and Ors. evolved a principle that those who manufacture hazardous substance, in the event an accident takes place, must show they took all the precautionary measures to prevent the same.

17. When Court is faced with a question of law arising out of a fire accident caused owing to negligence of the owner of he premises who did not take adequate precautions in preventing the same, not only the strict liability for the payment of compensation may imposed, steps must be taken to prevent recurrence of such accident. It is in this situation, we wonder as to why the authority of the MCD did not take recourse to the precautionary principles which must be viewed with grave concern.

18. The Commissioner of MCD was present in Court on 6th March 2002. He assured us that the Director of Vigilance MCD would conduct an enquiry so as to ascertain the individual liability of the concerned officers, if any. It must be done with expedition and a report in this regard must be submitted within four weeks from the date. So far as items of hazardous goods are concerned, MCD must issue an appropriate list identifying those goods and take adequate steps for publishing thereof including furnishing of copies thereof to the learned counsel for the parties appearing for the transporters and shops owners, who in turn should communicate the same to their respective clients. All steps must be taken as expeditiously as possible and not later than three months from date. By that date all concerned are directed to see that transporters shift their business to the newly allocated area. They for no reason whatsoever should be permitted to transport or store hazardous substances. In the event, it is found that hazardous substances are stored in violation of the provisions of the statute the authorities of the MCD must take adequate steps for proceeding against the defaulters without any delay whatsoever.

19. We may notice that in the survey report dated 2nd August 1999, it is stated:

11. The issue of shifting of Chemicals market is still pending before the Government. A high level meeting under the Chairmanship of Hon'ble L.G. was held on 1/6/99 following the Lal Kuan fire incident. Chief Minister, Delhi was also present in this meeting. Chief Secy., Delhi, Vice Chairman DDA, Commissioner Police, Chief Fire Officers Delhi, Divisional Commissioner, Delhi were among the highest officers present in the meeting. The Dy. Com. (City) represented the Commissioner, MCD in the said meeting. It was consciously decided to shift the godowns of non-pharmaceutical and inflammable trades from the congested residential and commercial areas of the capital in accordance with the Master Plan of Delhi. A Committee headed by Divisional Commissioner of Delhi has been constituted to identify the Chemicals trade which need to be shifted and to evolve principles and procedures of such shifting. A detailed survey of the dealers of the Chemicals was decided to be carried out to identify those who will be eligible to provide with space in the new complex.

12. In this meeting, various measures and modalities for shifting of all Chemical godowns/shops dealing in inflammable material and stores from the city to the freight complex to be developed at Ghazipur by DDA were discussed. The Vice Chairman of DDA informed the Hon'ble L.G. that it would take about a year to develop a new complex Along with the peripheral facilities before the physical shifting of the trade is possible.

13. The Law Secretary of the Delhi Got. Has been entrusted with the responsibilities of examining the existing legislation for storage and shifting of Chemicals and suggest amendments in case this was found inadequate.

20. We do not know what action had been taken by the National Capital Territory of Delhi (in short NCT of Delhi') in this regard. An appropriate action to fill up the lacuna, if any, is expected to be taken by the MCD as expeditiously as possible, although no direction in this behalf can be granted by us.

21. We, therefore, direct that appropriate steps be taken by the respondents to remove all occupants dealings in hazardous substances. The transporters may keep their offices but they shall not store any hazardous substances in Lal Kuan area. Arrangement for storage of such hazardous substances shall be made in the area allotted. While handling, transporting or storing hazardous substances appropriate rules operating in the field as also the provisions of other relevant statutes must strictly be complied with. All exercises must be undertaken and completed within a period of three months from date.

Writ petition is accordingly disposed of.