Delhi High Court
Dr. B.L. Wadhera vs Govt. Of Nct Of Delhi And Ors. on 23 August, 2004
Author: B Patel
Bench: B Patel, A Sikri
JUDGMENT
B.C. Patel, C.J.
1. BSES Rajdhani Power Limited, engaged in the business of distribution of electricity in south and west distribution circles of National Capital Territory of Delhi (hereinafter referred to as ''NCTD'') , has approached this Court for clarification of the order made by the Division Bench of this Court in the case of Dr. B.L. Wadhera vs. Government of National Capital Territory of Delhi and Others, being WP(C) No. 2710/1998 decided on 29.5.2003.
2. By the judgment dated 29.5.2003 we issued directions in para 63 of the judgment which are as under:-
''63. In the result after having considered all the pros and cons of this matter and having heard the learned advocates in detail on various occasions, we intend to dispose of this petition by making the following directions.
1. In all high rise buildings in Delhi and New Delhi, fire safety measures are to be provided keeping in mind provisions made in the bye laws and specific provision for fire protection in the bye laws. And as per these requirements, there must be fire safety measures in such high rise buildings, as contemplated in the bye laws and National Building Code of India, 1970.
2. In high rise buildings wherein fire safety measures are required to be provided under the bye laws, National Building Code as well as any other provision which are applicable, the builders, developers, organizers, contractors, architects and engineers, society, Association of persons etc erecting buildings shall provide fire safety measure as per bye laws and without such measures, the respondent authorities shall not grant occupancy certificate.
3. So far as the existing but unoccupied buildings and buildings under construction are concerned, the respondent authorities acting under bye laws are directed not to grant occupancy certificate unless and until sufficient fire protection system is instilled, is made operational and is certified by the Fire Officer concerned to the effect that as per by laws and as per his satisfaction fire safety measures are provided.
4. When adequate and sufficient fire safety measures are provided and made operational, authorities granting permission under building bye laws shall strictly enforce, the provisions relating to fire safety system while granting occupation certificate.
5. It is further directed that henceforth the respondent authorities shall not supply essential services to any new high rise building unless and until the building is erected in accordance with law and bye laws. All electricity supply companies (BSES ajdhani Power Ltd, BSES Yamuna power Ltd, Delhi Power Co Ltd and North Delhi Power Ltd.) are directed in this behalf. If the builder/developer/organizer, etc, is found indulging in malpractice in giving power connection meant for construction purpose
and thereby permits illegal occupation such connection shall be disconnected forthwith and immediate action shall be taken against such builder/developer/organizer etc.
6. That the Fire Officer shall carry out periodical as well as surprise checking to satisfy himself that the fire safety measure provided in the high rise buildings are provided or not. If the same are provided, such visits shall be made to find out whether the same are in working/operational condition or if the builders/developers/ owners/occupiers have made a show of providing fire safety measure, then it will be the duty of the Fire officer to call upon such occupier/developer/ owner/builder to set right the system and on failure to do so within a reasonable time, the Fire Officer shall take steps to get the essential supplies to such building , such as water, and electricity, etc. disconnected and seal the building as provided in Safety Act.
7. By a public notice, Municipal Commissioner/ Chairman NDMC shall inform the public at large who are occupying high rise buildings to provide fire safety measures within a period of four weeks from the date of publication. According to us, though for weeks time is long, we are giving four weeks time to all the occupiers to see that the occupancy will be allowed and permitted only if fire safety measures are provided in the buildings. If the fire safety measures are not provided within a period of four weeks as stated above, then the respondent authorities shall disconnect essential supplies such as water and drainage and seal the building. One must bear in mind that public notice was given earlier.
8. It is further directed that the Commissioner/ Chairman of MCD/NDMC shall write to electricity supply companies in this behalf and electricity supply company shall also disconnect electric supply if within the said period fire safety measures are not provided. It will be for electric supply companies to remain in touch with the commissioner /Chairman and vice versa.
9. It is further directed that henceforth the respondents shall provide essential services only after recording satisfaction that the erection of building is strictly in accordance with the plan. Electricity companies are also directed not to supply electricity unless Forms C and D duly signed by the competent authority are obtained and produced before the Electricity companies.
10. The Government is directed to install fire safety measures in all Government high rise buildings within four weeks from today. The respondents shall initiate disciplinary proceedings against its employees, servants, officers as some of the buildings aroccupied despite the fact that fire safety measure are not provided in accordance with the provisions in this regard.
11. The respondents shall place before the Court material indicating as to how many high rise buildings are erected after approval of the plans by the competent authority and how many buildings were provided with fire safety measures as required under the ye laws before the occupancy and what action is taken against occupiers in connection with the buildings, which are erected contrary to any bye- laws or are occupied without fire safety measures. Such report be filed within three months from today. The respondents shall initiate action against erring officers and shall submit report within a period of three months.
12. Despite this order, if any building is connected with essential supplies the Commissioner MCD /Chairman NDMC, as the case may be, himself shall be held responsible and will be answerable to the court.
13. At present we are dealing with the fire safety measures in high rise buildings. We are not endorsing the view that the erection of a building is in accordance with the bye-laws. Only with a view to see that since large number of people are occupying buildings erected by a builder/ contractor/ owner/association of persons/ societies/architect/ engineer, etc. we are passing this order for the safety of the occupiers of the building. It should not, therefore be understood that merely because the fire safety measures are provided the erection of building is in accordance with the bye-laws. That aspect of the matter is not dealt at all.
14. It is directed that NDMC/DJB/PWD shall put all the static water tanks in working conditions within a period of three months and shall file a report about the action taken in this behalf.
15. The DDA considering the importance of fire safety shall take decision within four months for allotment of plots for fire stations. Chief Fire officer as well as local authorities, namely, DMC/NDMC shall point out the appropriate sites within a period of one month to the DDA.
16. Respondents and the Commissioner of Police are directed to clear encroachments on pavements, on roads and public streets within a period of four months for easy movements of fire engines and ambulance vans.
17. It is further directed that MCD/NDMC/ Traffic Police as also the Police Deptt shall not allow any encroachment on roads, public streets and footpath/pavements and for that purpose NDMC and MCD as well as the Commissioner of Police shall demarcae the area of jurisdiction of a particular officer and it will be the responsibility of that particular officer to see that there is no encroachment on pavement, public street and on roads. NDMC/MCD/ Commissioner of Police shall complete this exercise a
d shall place before the Court report indicating the names/ designations of the officers who are to be in charge of respective areas. It will be the responsibility of these officers, in case it is found that there is encroachment on public roads or pa ements.''''
3. The applicant has prayed that the order made by the Division bench on 29.5.2003 should not apply to Lal Dora and extended Lal Dora areas where there is no requirement for obtaining completion certificate/fire safety certificate before occupying the building and to permit the applicant company to provide electricity to high rise buildings in Lal Dora and extended Lal Dora areas. It is also prayed that during the pendency of this application the company be permitted to give provisional connection thigh rise buildings in Lal Dora and extended Lal Dora areas.
4. The said directions were given after considering the matter in detail for the purpose of protection of the public at large and in consonance with the provisions contained in Delhi Development Act, 1957 (hereinafter referred to as ''DD Act''), Delhi Municipal Corporation Act, 1957 (hereinafter referred to as DMC Act), Delhi Building Byelaws 1983 (hereinafter referred to as byelaws or regulations), and the provisions contained in New Delhi Municipal Council Act (hereinafter referred to as the NDMC Act) s also the provisions contained in the Delhi Fire Prevention and Fire Safety Act, 1986 (hereinafter referred to as the Safety Act) and the rules made there under, which are known as Delhi Fire Prevention and Fire Safety Rules, 1987.
5. It is contended by the applicant that the company is a licensee and is licensed to supply electricity in the area of supply. According to the applicant the Court has directed the applicant company not to supply electricity unless Form C and D (now completion certificate) duly signed by the competent authority is issued and produced before the applicant company. As contended in the application there are many high rise buildings erected in the Lal Dora and extended Lal Dora areas of Delhi and such owners or occupiers of such buildings have been approaching for supply of electricity, but the prospective consumers i.e. occupiers or owners are unable to produce any fire clearance by the fire department and the completion certificate from the concerned development agency, and the applicant company is not in a position to supply electricity. As averred in the application, it has been brought to the notice of the company that they are unable to produce fire clearance certificate as the fire department is to required to see that the fire safety clearance is given to such buildings in such areas known as Lal Dora and extended Lal Dora. It is also alleged that Municipal Corporation of Delhi (for short MCD)/New Delhi Municipal Council (for short NDMC) and Delhi Development Authority (for short DDA) are permitting occupation of high rise buildings without sanction of building plans or fire clearance or completion certificate. It is alleged that the aforesaid authorities are permitting erection of high rise buildings in these areas and are collecting various municipal and other taxes. However, these authorities are not bothering for byelaws or the provisions made under the Acts, consequently, the applicant company is not in a position to supply electricity.
6. The applicant company is apprehending that the prospective consumers may either engage in theft of electricity or in installation of generators of large size which are major fire and environment hazards. It is also stated that many of the high rise buildings in these areas are already occupied. It is pointed out that in view of Section 43 of the Electricity Act,2003 (hereinafter referred to as the Electricity Act), the applicant is required to supply electricity. It is submitted that under the la it is obliged to supply. The local authorities, namely, MCD, NDMC and DDA have been permitting the erection of high rise buildings in these areas. It is submitted that if the order is not modified, then people occupying the high rise buildings, in these areas, namely, Lal Dora and extended Lal Dora areas will use generators and will engage in theft of electricity and at the same time the public exchequer as well as the company will suffer.
7. We have heard the counsel appearing for the respondents authorities at length.
8. In order to resolve the issue raised, the first and foremost question that needs determination is the applicability/non-applicability of certain provisions of the DMC Act to the Lal Dora and extended Lal Dora areas of Delhi. So far as Lal Dora/extend Lal Dora (hereinafter referred to as the rural areas) are concerned, it is required to be noted that initially these areas were occupied by agriculturists , who were engaged in agricultural activities near about the areas known as Lal Dora. It was decided by the Government that for certain specified construction activities, in these rural areas, sanction of building plans from MCD may not be necessary and the Notification of 24th August, 1963 was issued. We shall deal with the scope of this notification in detail at the appropriate stage. However, we emphasize here itself that it was not the intention of the Government, by exempting these areas from certain provisions, to allow the building activities contrary to the provisions contained in the building byelaws or to allow the construction of buildings for commercial purpose. On behalf of the DDA it was submitted, as also on behalf of MCD, that only a building, residential in character, and not going beyond two and a half stores and owned by the original resident/his descendant is to be permitted. Any other building in rural areas requires prior approval and sanction of building plan from the Municipal Corporation of Delhi as per the provisions of Master Plan of Delhi, 2001 and the zonal plan ad the building byelaws.
9. In Chapter 7 of Building byelaws there is a specific reference to policy for sanction of building plans in city area, villages (covered under notification No. RN-2/173 dated 24th August 1963 only in ''Lal dora''. Any construction outside the ''Lal dora'' hall be subject to approval/sanction of the concerned Authority). What is permissible in villages is as under:-
1. Building Plans in villages normally be considered only for the plots which form part of old abadi area in case the following conditions have been fulfillled:
(i) The land use in residential and the construction shall confine maximum to 2-1/2 storey with maximum permissible coverage FAR and height as per bye-laws.
(ii) It has been certified by the Revenue Department that plot form part of old built up abadi area.
(iii)That the plot was in existence as an independent plot prior to the formation of the Corporation.
2. The building cases of such plots which cannot be readily verified as part of the old abadi area of the village would be considered only on merits in each case with the additional following documents to be furnished by the applicant:
(i) A certificate from the Delhi Administration that the land is not under notification for acquisition.
3. In cases of proposals of minor additions and alterations on the plots ''which are located '' outside the old abadi area but within the erstwhile Notified Area Committees of Mehrauli, Najafgarh and Narela would also be considered on merits.
4. For all dead end road or cludosaos up to 500' in length the R.O.W. will be 15' and for all other roads dead end lines above 500' the R.O.W. will be kept 30', except in villages where redevelopment plans have been received.
5. Development charges will be recovered as decided by the competent authority from time to time.''
Thus what is permissible and who can get the benefit is specifically stated in the byelaws.
10. That apart we have to examine the provisions contained in DMC Act. Chapter XVI of DMC Act refers to building regulations. It was submitted that in Lal Dora areas or rural areas certain sections contained in DMC Act do not apply such as Sections 332, 333, 334, 335, 336, 342 and 347. Our attention was drawn to a notification issued by the Municipal Corporation of Delhi dated 24.8.1963 in exercise of the powers conferred under Section 507 of the DMC Act. For the sake of convenience we reproduce
he notification hereunder:-
''MUNICIPAL CORPORATION OF DELHI
DELHI - the 24th August, 1963.
No. 2 1/1731: In exercise of the power conferred by sub clause (b) (i) of Clause 3 of Sec.507 of the Municipal Corporation Act, 1957 (66 of 1957), the Municipal Corporation of Delhi has with the previous approval of the Central Government exempted he rural areas from the provisions of the said Act mentioned in Column 2 of the Schedule given below in the extent given in Column 4 of the said Schedule.
The said exemption shall be deemed to have come into effect from the 19th day of the Nov. 1959.
SCHEDULE
___________________________________________________________________________________
S. No. Sections Brief Description Extent
____________________________________________________________________________________
1. 332,333,334, Building Only such portions of the
335,336,342 Regulations Rural areas as lie within the
and 347. village abadies as defined
in revenue records provided
that the exemption shall not
apply to Factories, Ware-
houses, Cold Storages and
Slaughter Houses.
____________________________________________________________________________________
11. On the basis of the decision delivered by a Division Bench of this Court in the case of Municipal Corporation of Delhi vs. Dalmia Dairy Industries Ltd and Another it was submitted that there is exemption from the provisions contained in Chapter XVI of the DMC Act. It was submitted that the notification issued under Section 507 of the DMC Act would apply to the extended village abadi.
12. On behalf of MCD it was contended before the court that the notification only applies to village abadi as defined in the revenue records which were in existence at the time when the notification dated 24.8.1963 was gazetted and it does not apply to he extended village abadis. However, the Division bench held that there cannot be restricted meaning as suggested and it would apply to extended village abadis as well. If the notification is applicable, then as per the Division Bench judgment that may be the position. It is also required to be noted that the Full Bench of this Court had an occasion to consider a somewhat similar situation in the case of Municipal Corporation of Delhi vs. Dalmia Industries Private Limited . In the judgment the Court has pointed out that ''The dispute went up to the Supreme Court and was decided in favor of respondent lending finality to the issue that the disputed land fell within the extended village Abadi (Firni) rendering it eligible for exemption rom Building Regulations in terms of notification dated 24.8.1963.'' So far as public street and other provisions are concerned, and particularly Sections 312 and 313 the Court pointed out in para 7 of the judgment as under:-
''7. It is not in dispute that the above-mentioned village has been declared to be within village 'Abadi' under the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 read with Delhi Land Reforms Act. Sections 332 to 336 relate to building plans. Sections 312 and 313, as noticed hereinbefore, relate to public streets. The said Act applies to the entire national territory of Delhi comprising the town as also the village areas. Only in relation to the rural areas, a notification under Section 507 can be issued. The very fact that by reason of aforementioned notification dated 24th August, 1963, only certain provisions of the said Act which specifically have been enacted for a different purpose namel, public street cannot be said to have been excluded. Public streets are required to be laid down for general public whereas the provisions relating to building plans are regulatory in nature. It would, therefore, not be correct to contend that Section 312 and 313 would not be applicable in cases where the land is said to be divided into various and individual plots. Having regard to the provisions of the said Act, we are not in a position to accept the contention raised on behalf of the respondents ere in that the land in question having been exempted from Sections 332 to 336, Sections 312 and 313 would become inapplicable.''
13. This Court held that Sections 312 and 313 had not been excluded and would apply. We are required here to consider subsequent notifications. The notifications have been issued in exercise of powers conferred under Section 507(1)(b) of DMC Act and it the prior approval of the Central Government. The localities mentioned in the schedule forming part of the rural areas are no more rural areas and in view of these notifications the areas having been declared as urban areas, it cannot be said that he areas continued to be Lal Dora or extended Abadi area. We reproduce the notifications which have been issued from 1963 and onwards:-
DELHI ADMINISTRATION
(MUNICIPAL CORPORATION OF DELHI)
NOTIFICATIONS
Delhi, the 23rd May,1963.
No.RNZ/526 :- In exercise of the powers conferred by clause (a) of Section 507 of the Delhi Municipal Corporation Act, 1957 (66 of 1957) the Corporation with the previous approval of the Central Government, hereby declares that the following localities mentioned in the schedule given below below, hitherto forming part of the rural areas, shall cease to be rural areas:-
SCHEDULE
----------------------------------------------------------------------------------
S. Name of Name of revenue Particulars
No. the Zone estate proposed to be of the area
Urbanised.
------------------------------------------------------------------------------------
1. Shahdara Zone Khureji Khas The entire remaining area
of the said revenue estate
which has not so far been
urbanized.
2. Civil Line Zone Sadhora Khurd -do-
3. -do- Sadhora Kalan -do-
4. -do- Chaukri Mubarakabad -do-
5. -do- Nemri -do-
6. -do- Dhaka -do-
7. -do- Salimpur Majora -
Madipur.
8. -do- Azadpur -do-
9. -do- Shakur Pur -do-
.
10. West Zone Madipur -do-
11. -do- Khiala -do-
12. -do- Keshopur -do-
13. -do- Basaidarapur -do-
14. -do- Najafgarh -do-
15. -do- Masudabad -do-
16. -do- Haibatpur -do-
17. South Zone Mehrauli -do-
18. -do- Lado Sarai -do-
19. -do- Khirki -do-
Sd/-
Commissioner
''Notification No. F-9(2)66-Law Corp. Delhi the 28th May,1966
In exercise of the powers conferred by clause (a) of Section 507 of the Delhi Municipal Corporation, 1957 (66 of 1957) the Corporation, with the previous approval of the Central Government, hereby declares that the following localities mentioed in the Schedule below, hitherto forming part of the rural areas, shall cease to be rural areas:
SCHEDULE
-----------------------------------------------------------------------------
S.No. Name of Name of revenue Particulars
the Zone estate proposed of the area
to be urbanised.
-----------------------------------------------------------------------------
West Delhi
1. Khampur Raya The entire remaining
area of the said
revenue estate which
has not so far been
urbanised.
2. Shadipur -do-
3. Naraina -do-
4. Tatarpur -do-
5. Chaukhandi -do-
6. Tehar -do-
7. Nangal Raya -do-
8. Asalatpur -do-
9. Possadgipur -do-
10. Naglijaleb -do-
11. Budhela -do-
II. South Delhi
1. Kilokri The entire remaining
area of the said
revenue estate which
has not so far been
urbanised.
2. Bahlepur -do-
Bhaddar
3. Kotla Mubarakpur -do-
4. Tamur Nagar -do-
(Revenue Estate of
Kilokri)
5. Khizrabad -do-
6. Sarai Juliana -do-
(Revenue Estate
Bahapur)
7. Masihagarh -do-
(Revenue Estate
Bahapur)
8. Joga Bai -do-
9. Okhla -do-
10. Garhi Jharia Meria -do-
11. Zamrudpur -do-
12. Masjid Moth -do-
13. Shahpur Jat -do-
14. Humayunpur -do-
15. Hauz Khas -do-
16. Yusuf Sarai -do-
17. Mohammadpur -do-
18. Munirka (In Revenue -do-
Estate of Modhpur)
19. Jasela -do-
20. Madanpur Khadar -do-
21. Tekchand -do-
22. Sheikh Sarai -do-
23. Begampur -do-
24. Serai Shahji -do-
25. Hauz Rani -do-
26. Adchini -do-
27. Kalu Sarai -do-
28. Ber Sarai -do-
29. Chirag Delhi -do-
30. Katwaria Sarai -do-
31. Basant Nagar -do-
32. Madangir -do-
33. Badarpur -do-
34. Harinagar Ashram (In -do-
Revenue Estate of
Kilokri)
35. Kharara -do-
36. Arakpur Bagh Mochi -do-
(Nazul)
37. Kishangarh (In Revenue -do-
Estate of Mehrauli)
38. Khanpur (Part) -do-
39. Tuglakabad -do-
III. North Delhi
1. Dhirpur -do-
2. Malikpur -do-
3. Rajpur Chhawani -do-
4. Bharola -do-
5. Peepal Thala -do-
6. Rampura (Revenue -do-
Estate of Shakurpur)
7. Wazirpur -do-
IV Shahdara Side
1. Kaitwara -do-
2. Ghonda -do-
3. Mauzpur -do-
4. Khureji Khas -do-
5. Karkar Duma The entire area
except the village abadi
which has already been
declared vide Notifica-
tion No. F/9/5/59 RandS
dated 28.12.1959.
6. Seelampur -do-
7. Shahdara The entire remaining
area of said revenue
estate which has not
so far been urbanised.
8. Gondi -do-
9. Mandavli Fazalpur -do-
10. Ghazipur -do-
11. Kachhimpur -do-
12. Hasanpur -do-
13. Shakarpur Khas -do-
14. Saholi -do-
Notification No. TCO/82/47 Delhi, the 23rd April 1982 -- In exercise of the powers conferred by clause (a) of Section 507 of the Delhi Municipal Corporation Act, 1957 (66 of 1957), the Corporation with the previous approval of the Central government hereby declares that areas mentioned in column 3 of the Schedule below and falling in the revenue estate/zone as detailed therein hitherto forming part of the rural areas, shall cease to be rural areas:
SCHEDULE
-----------------------------------------------------------------------------
I. West Delhi
(1) Garhi Peeran The old abadi as well as the
(2) Nangloi Syed entire revenue estate of the
(3) Maksoodpur said village declared as urban.
II. South Delhi
(1) Sarai Kalekhan -do-
(2) Nangloi Razapur -do-
(3) Jai Sarai -do-
(4) Mehipal Pur -do-
(5) Lado Sarai -do-
III. North Zone
(1) Naharpur -do-
(2) Badli -do-
(3) Rithala -do-
(4) Wazirabad -do-
(5) Samepur -do-
(6) Mangolpur Kalan The entire remaining areas of the said revenue estate.
IV. Shahdara Zone
(1) Usmanpur The old abadi as well as the
(2)Mandoli Kachi entire revenue estate of the
(3) Ghonda Neemka said village declared as
(4) Kotla urban.
V. Rural Zone
(1) Haiderpur -do-
(2) Sahipur -do-
(3) Mangolpur Khurd -do-
(4) Shalimar Bagh -do-
(5) Jwala Heri The entire remaining areas
(6) Peetampura of the said revenue estate which have not so far been urbanised.''
-----------------------------------------------------------------------------
MUNICIPAL CORPORATION OF DELHI
NOTIFICATION
Delhi, the 24th October,1994
No.F.33/Engg.TP(DP)/11424/94.-In exercise of the powers conferred by clause (a) of Section 507 of the Delhi Municipal Corporation Act, 1957 (66 of 1957), the Corporation with the previous approval of the Government hereby declares that areas mentioned in column 3 of the Schedule below and falling in the revenue estate/zone as detailed therein hitherto forming part of the rural areas, shall cease to be rural areas:-
SCHEDULE
-----------------------------------------------------------------------
S.No. Name of Name of revenue Particulars
the Zone estate proposed of the area
to be urbanised.
-----------------------------------------------------------------------
Najafgarh
1. Palam The old abadi as well
2. Mirzapur as the entire revenue
3. Dabri estate of the said
4. Nasirpur villages declared as
5. Sagarpur urban.
6. Bagdola
7. Sahupura
8. Matiala
9. Bindapur
10. Kakrola
11. Loharhari
12. Toganpur
13. Amberhai
14. Shahbad Mohammadpur
15. Bharthal
16. Nawada
17. Pochanpur
18. Bemnoli
19. Dhulsiras
20. Bijwasan
Sd/-
Commissioner
14. It is in view of sub-clause (b) of clause 1 of Section 507 of DMC Act exemption was granted from certain provisions of this Act, which were indicated in the notification of 1963. However, in view of sub clause (a) of clause (1) of Section 507 of the Act, when areas have been included in and form part of the urban areas, the Notification of 1963 shall cease to operate and the exemption so granted will automatically come to an end from the date of the notification. It is in view of this all the provisions contained in Chapter XVI of DMC Act will be applicable and it is futile to say that Sections 332, 333, 334, 335, 336, 342 and 347 of DMC Act are not applicable in these areas. Therefore, it is very clear that in view of the aforesaid position o e has to follow the procedure for erection of the building as indicated under the Act. The Division Bench judgment in Dalmia Dairy (supra) would apply to only those Lal Dora areas covered by 1963 notification and which are not covered by subsequent notications.
FIRE SAFETY
15. The provisions contained in the Delhi Fire Prevention and Fire Safety Act, 1986 (for short Fire Safety Act) and the Rules made there under known as the Delhi Fire Prevention and Fire Safety Rules, 1987 (for short referred to as the Safety Rules) are applicable to the whole of the Union Territory of Delhi. It is a duty of the nominated authority under the Fire Safety Act to carry out the provisions contained in the said Act. An officer not below the rank of a station officer and nominated by the Chie
Officer as well as the Chief Fire Officer appointed under the said Act are required to carry out their obligations under the Act not only for the prevention of fire but for the safety of the people at large. Under Section 3 of the Fire Safety Act it is the duty of the nominated authority to inspect the premises or building having minimum height of 15 meters (rule 4 of the Fire Safety Rule provides this height) and to ascertain the adequacy or contravention of fire prevention and fire safety measures. s the Act is made applicable to the whole Union Territory of Delhi wherever in the territory such building is erected it becomes the duty of the nominated authority to inspect the building for the purpose of satisfaction that adequate fire safety is provided in order to ensure safety of life and property. Even the construction of a building which was completed on or before 6th June, 1983 or which was under construction on such date, it was the duty of the nominated authority notwithstanding anything contained in any other law for the time being in force to inspect the premises or building for ascertaining the adequacy or fire prevention and fire safety measures in such building. It is for the occupier or owner of such premises or building to provide he fire safety measures as required. Thus reading these provisions it is very clear that owner/occupier of any building having 15 meters height erected within the territorial limits of Union Territory of Delhi must provide fire safety measures. Irrespective of the applicability of the provisions contained in the NDMC Act or DMC Act or DDA Act or exemption granted under the notification one must provide fire safety measures if the building is of 15 meters height.
16. It is incorrect to say that this Act is not applicable as under a notification in past exemption was granted in certain areas from the operation of certain provisions of the MCD Act. It may be noted that by subsequent notifications the areas have been covered under different notifications converting areas into urban areas. Consequently exemptions are no more available from the date of such notification.
17. In view of what is stated hereinabove, it is the duty of the Chief Fire Officer or nominated authority to inspect the building and if there is any contravention with regard to the norms or there is deviation or the fire safety measures are inadequate with reference to the height of the building and nature of activities carried out in such buildings Chief Fire Officer or the nominated authority must call upon the owner or occupier to rectify and see that adequate safety measures are provided in accordance with the Act and Rules.
18. National Building Code of India endeavors to avoid requirements which might involve unreasonable hardships or unnecessary inconvenience or interference with normal use and occupancy of buildings, but insists upon compliance with minimum standards for fire safety necessary in public interest. It may be noted that first version on this subject was prepared by 1970 and subsequently revised in 1983. As a result of implementation, some suggestions emerged which have been incorporated in the Amendment o.3 to National Building Code of India 1983 to the extent possible. The buildings are divided in various categories such as residential, educational, institutional, assembly, business, mercantile, industrial, storage and hazardous and again under each had there are sub divisions. Educational buildings, institutional buildings (hospitals and Sanatoria, custodial institutions and penal and mental institutions), assembly buildings, business buildings, mercantile buildings and residential buildings which re indicated therein are required to provide fire safety as indicated therein. In this matter, the court is required to examine the requirement of fire fighting installations and not the type of construction material to be used.. The manner in which the high rise building should be constructed or the facilities to be provided for the safety of people at large are indicated which forms the part of building bye laws which are applicable in the Union Territory of Delhi and therefore we need not refer her specifically.
19. Table 20 indicates minimum requirements for fire fighting installations in business buildings which may be less than 15 meter in height or 15 meter and above but not exceeding 30 meter or above 30 meter in height and up to 40 meter or above 40 meter is height. It also indicates minimum requirement for mercantile buildings having different heights. As indicated above the local authorities are aware that in a mercantile building or a business building there are large number of visitors and the provisions are made for safety of the people and property and therefore it is the duty of the government as well as local authorities to see that fire safety measures as indicated in the National Building Code are provided. Chief Fire Officer should not be under an impression that he is required to inspect the buildings having 15 meter height and which are situated only in urban areas and not in rural areas.
20. Building Byelaws 1983 are made applicable to building activities under the jurisdiction of Delhi Development Authority. The said building byelaws are applicable under the jurisdiction of Delhi Municipal Corporation as also New Delhi Municipal Committee and thus it is a unified code applicable to entire Union Territory. Wherever there is a jurisdiction of DDA, the authority will be DDA or wherever the authority having jurisdiction is Delhi Municipal Corporation, the rules or the bye laws are to bead in that context. Similarly if the area is under the jurisdiction of New Delhi Municipal Committee the byelaws are to be read as applicable to the NDMC.
21. As noted the DD Act is applicable to the entire territory of Delhi. The Master Plan for Delhi drawn under the Act has become an Act itself in view of the provisions contained in the Delhi Development Act. There is a Development Code in the Master Plan. Clause (1) of the Development Code specifically states that the Development Code covers the entire Union Territory of Delhi. Clause (2) is the definition clause. Various zones are indicated in clause (4). The general notes to clause (8) which refers to control for plots/buildings within used premises makes it clear that the premises for which the building regulations have not been given shall be exempt by the authority on the basis of actual requirement and other relevant factor including FAR.
Therefore, it goes without saying that when there is provision for orchards, nursery, forest, dairy farms, etc, Development Code will apply which is made under the Development Act and in view of this it is futile to say that no building permission fro DDA/MCD/NDMC is required either under the building regulation or building bye laws.
22. Regulation 3 indicates that in addition to the provision of DD Act, the building byelaws shall apply to the building regulation activity in the Union Territory of Delhi under the jurisdiction of the DDA as given in clauses 3.2 to 3.6. Thus where a building is erected, the byelaw applies to the design and construction of the building. Even where a whole or any part of the building is removed, the byelaws shall apply to all parts of the building whether removed or not. Similar is the situation with deolished building as also with altered building. Rule 5.1 prohibits erection of a building without permission. It reads as under:
''No person shall erect, re-erect or make alterations or demolish any building or cause the same to be done without first obtaining a separate building permit for each such building from the authority.''
23. Byelaws 6.2.4.1 refers to building plans for multistoried/special buildings. Bye law 17 refers to fire protection requirement. Byelaw 17.1 reads as under:-
''Buildings shall be planned, designed and constructed to ensure fire safety and this shall be done in accordance with part 4 Fire Protection of National Building Code of India, unless otherwise specified in these byelaws. In the case of buildings ''identified in byelaws no. 6.2.4.1'', the building schemes shall also be cleared by Chief Fire Officer, Delhi Fire Service.''
Reading this byelaw it becomes very clear that all the buildings which are required to provide fire safety measures in accordance with National Building Code of India 1983 must provide fire safety measures in view of this rule. However, if it is a highest building then the scheme of that building before erection must be cleared by the Chief Fire Officer, Delhi Fire Service irrespective of the fact that the area is under jurisdiction of DDA or MCD or NDMC.
DEVELOPMENT LAWS
24. For the purpose of development legislature enacted the law on the subject known as Delhi Development Act, 1957 which extends to the whole of the National Capital Territory of Delhi. Sub-clauses (b), (c) and (d) of Section 2 being relevant are reproduced hereunder:-
(a) xxxxxxx
(b)''building'' includes any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes, whether in actual use or not;
(c)''building operations'' includes rebuilding operations, structural alterations of or additions to buildings and other operations normally undertaken in connection with the construction of buildings;
(d)''development'' with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment;
(e) to (k) xxxxxx
25. Under the DD Act for the purpose of development, the Central Government may, by a notification in the official gazette, declare any area in Delhi to be a development area for the purposes of this Act. Section 12 being relevant is reproduced hereunder:
12. Declaration of development areas and development of land in those and other areas.
(1) As soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act:
PROVIDED that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired.
(2) Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area.
(3) After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of government) unless,--
(i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act,
(ii) Where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorized in this behalf, in accordance with provisions made by or under the law governing such authority or until such provisions have been made in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955 (53 of 1955), and in force immediately before the commencement of this Act.
PROVIDED that the local authority concerned may subject to the provisions of Section 53A amend those regulations in their application to such area.''
(4) after the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
(5) Notwithstanding anything contained in sub-sections (3) and (4) development of any land begun by any department of government or any local authority before the commencement of this Act may be completed by that department or local authority without compliance with the requirements of those sub-sections.
Reading the aforesaid provision it is clear that when the area is a development area the permission for such development has to be obtained in writing from the authority. However, if the area is other than a development area even then approval of or santion for such development is required to be obtained in writing from the local authority concerned etc. The Act is applicable to the whole of the NCT of Delhi and DDA has drawn master plan and zonal development plans. If there is no zonal development pans even then in view of sub-section (3) of Section 12 permission is required. Development area is defined under sub-clause (1) of Section 2 means an area declared to be a development area under sub-section (1) of Section 12. Therefore, if area is not declared as development area under sub-section (1) of Section 12, the area is other than development area. So far as development area is concerned permission for erection of a building is required. Reading bye law 3 it is very clear that it is in addition to the provision of DMC Act, 1957 and the building bye laws shall apply to the Development/erection and building activity in Union Territory of Delhi under the jurisdiction of MCD. Reading the building bye laws it is clear that under 1963 notification, which we have referred earlier, what was exempted was certain sections of building regulations i.e. requirement of a sanction as indicated in Section 332 or making an application for sanction as contemplated in Section 333 or submitting an application for additions or to repair or applicability of Sections 335, 336 or 342 or 347. However, in view of notification of 1963 it could not be urged that building is not to be erected in consonance with the building regulations but one can erect building as per his whims. One must know that the building is to be erected as per building regulations or byelaws. Building bye laws are applicable to the entire territory of Delhi and therefore when the erection must be according to building bye laws and if the are is not declared as a development area then the permission from DDA is a must as well as MCD is a must.
26. Section 13 of the DD Act contemplates application for permission. What would be the consequence of erection of a building in area other than development area is provided in Section 30 of DD Act. Section 30 refers to development commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan but in the latter part it refers to development in such a manner indicated hereinabove without the permission, approval or sanction referred to in Section 12 r in contravention of any conditions subject to which permission, approval or sanction has been granted. Then in such a case if it is in relation to a development area any officer of the authority empowered by it in this behalf or in relation to any other area within the local limits of local authority the competent authority thereof is entitled to not only prosecute the person for such development but is also entitled for removal of such development by way of demolition. Sub-section (1A) of Section 30 also refers to development in area other than a development area and the manner in which order of removal is to be made. Section 31 refers to the power to stop development commenced in any area in contravention of the plan either master or zonal development or without permission, approval or sanction as referred to in Section 12. Then in such a situation if the development is in contravention in relation to a development area, the authority or any officer of the authority empowered by it in this behalf and in relation to any other then development area within local limits of a local authority, the competent authority thereof may in addition to prosecution may make an order to discontinue the development. Thus reading the provisions it is very clear that the area if it is declared as a development area then the authority under DD Act will be the authority taking action if the development is contrary to the provisions of DD Act or building regulations and in case of development carried out in the area o her than development area, a local authority can initiate action in this behalf. It is clear therefore that in either case building is required to be erected as per the building bye laws and if there is any contravention of building bye laws action is required to be taken either by the development authority or the local authority. In view of this it is not correct to say that lal dora or abadi areas are exempted from the operation of all the laws and bye laws.
27. Section 30A refers to power to seal unauthorized development. Combined reading of all these sections it is very clear that for any development permission is required either of DDA or MCD or NDMC or Cantonment Board. Under the provisions contained in Section 53 of the DD Act permission is required for development in respect of any land. Section 53 being relevant is reproduced hereunder: -
53. Effect of other laws
(1). Nothing in this Act shall affect the operation of the Slum Areas (Improvement and Clearance) Act, 1956.
(2) Save as otherwise provided in sub-section (4) of Section 30 or sub-section (8) of Section 31 or sub-section (1) of this section, the provisions of this Act and the rules and regulations made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law.
(3) Notwithstanding anything contained in any such other law -
(a) when permission for development in respect of any land has been obtained under this Act such development shall not be deemed to be unlawfully undertaken or carried out by reasons only of the fact that permission, approval or sanction required under such other law for such development has not been obtained.
(b) when permission for such development has not been obtained under this Act such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.''
28. Reading sub-section (3) it is very clear that notwithstanding anything contained in any other law permission must be taken for development under the DD Act. Permission must be granted under the DD Act by the authority concerned. Reading the building bye laws 1983 it is clear that building bye laws are made applicable to MCD, DDA as well as NDMC areas. Even under the Punjab Municipal Act, 1911 Sections 188, 189 and 190 refer to the Building Byelaws, Prohibition of Building without sanction and power of the committee to make bye laws regarding erection or re-erection of buildings.
29. At this juncture it would also be relevant to note that under Section 481 of DMC Act regulations are required to be made. Under head note F of Section 481 bye laws have been made for improvement. Reading of all the clauses together it is clear that building bye laws are made under these provisions and therefore buildings which are to be erected within the area of Union Territory of Delhi under the jurisdiction of MCD cannot be erected without the building meeting with the requirements of building by laws.
30. It is required to be noted that under section 349A of the DMC Act, 1957 a specific provision is made. In view of Section 349A of the DMC Act bye laws made by Corporation under paragraph F of sub-section (1) of Section 481 are deemed to have been ade under the provisions contained in Section 349A of the Act and shall continue to have the same force and effect after the commencement until it is amended, varied, rescinded or suspended under the provisions of this Section. Thus with effect from 1.1.1993 Section 349A has come into force and the original paragraph of Section F of sub-section (1) of Section 481 thus even continue to apply. Reading provisions of bye laws and sub-section (2) of Section 349A it is clear that the building bye laws are made applicable under this section. Paragraph K of sub-section (2) of section 481 relates to improvements. This is also required to be borne in mind along with this. Section 349A of the Act is applicable in the entire territorial limits of area wherever DMC Act is applicable. Neither the operation of Section 481 nor Section 349A can be said to have been not applicable in view of the notification issued in the 1963 in exercise of the powers conferred by sub-clause (i) of clause (b) of Section 507 of the DMC Act. Building regulations made under this provision are applicable and one cannot say that the building can be erected in breach of these regulations or bye laws. It is submitted before us that originally in abadi or extended abadi areas the lans were used for purposes of agriculture and the lands have been divided into sub plots and the construction is being carried out on such lands. No doubt the lands were used for the purpose of agricultural operations. Oral submission was made that there is no provision for fire engine to pass through the street as the streets are very small or narrow. We would only like to say that the land has been disposed of for the construction of buildings thereon, then one is required to lay down and make a street or streets giving access to the plots into which the land may be divided and connected with an existing public or private street. It is for this purpose one has to submit a lay out plan under Section 313 of the DMC Act and only after such application being submitted and being sanctioned the land can be utilized for the purpose of construction. Under sub-section (1) of Section 313 application is to be made in this behalf. The same is required to be placed before the Standing Committee, which may be justified in refusing if the lay out plan would be in conflict with any arrangement which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained is the master plan or a zonal development plan or not. Over and above the lay out plan must be in conformity with the provisions of the DMC Act and the bye laws made therein. It is required to be noted that this provision is made with an intention to provide for communication and access to plots or sub plots which might have been carved out of a chunk of a land. When such is the situation of reserving any site for street, open space etc. in a lay out plan is normal for a public purpose as it is inherent in such reservation that it shall be used by the public in general and not by an individual. It would be difficult for the owner to dispute that he holds the land for the benefit of the society or public in general. It would be his obligation in the nature of trust, it is necessary that when the land is divided in various plots to provide certain amenities the amenities are required to be provided for the interest of general public. Looking to the present situation it would be the obligation of such lad owner dividing his plots in various sub plots to provide streets in such a way that it does not cause any hindrance in way of Fire Engine/Fire brigade/Ambulance to enter easily in case of need. These aspects are required to be kept in mind by the corporation. It is for this purpose when a private land is divided in sub plots street is required to be provided for the benefit of the public for their safety. This provision is certainly not exempted. It was the duty of the corporation in such a situation to take action in the matter if there is no proper provision for streets in such cases.
31. It is also required to be borne in mind that provisions contained in Section 346 are made applicable even in lal dora or abadi areas. The notification has not exempted the rural areas from the provision of Section 346 of the DMC Act and therefore even in these areas completion certificate will be required by any one whoever is erecting a building. Intentions of the legislature is very clear that the person may erect a building according to bye laws and he must get a completion certificate before occupying a building. May be that looking to the area in those days which were used for the purpose of agricultural operations the State Government granted exemption from certain provisions only and not all and in view of this wherever building is erected in the area under jurisdiction of DMC Act one is bound to apply to the Commissioner under Section 346 of the Act before occupying a building. Section 346 contemplates that every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall within one month after the completion of the erection of the building or execution of the work give a notice in writing of such completion accompanied by a certificate in the prescribed bye laws made in this behalf. Reading this provision there is no escape from saying that the completion certificate is required.
32. Section 343 refers to order of demolition and stoppage of building and works. Though there is a reference to Section 336, the provision which is exempted in lal dora areas, however that Section points out the erection of building or execution of an work has been commenced or is being commenced or has been completed in contravention of any of the provisions of the DMC Act or bye laws made there under, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished. If one is required to take a sanction as referred to in Section 336 then he was not required to obtain such a sanction as the rural areas were exempted once upon a time from the operation of Section 336 of the Act. But after subsequent notifications converting rural areas into urban areas, permission is a must even under Section 336 of DMC Act. It cannot be said that the provisions of Section 343 also would not apply. In the opinion of the court if the erection of building is in contravention of any of the provisions of DMC Act or the Rules or bye laws made therein action can be taken. Therefore, in the opinion of the court if the erection of a building is contrary to the bye laws then irrespective of sanction, action can be taken for demolition.
33. Reading all these provisions together it appears that development can be carried out only with approval or sanction of authority concerned and the erection of a building must be as per the building bye laws as also according to National Building Code of India and if there is any violation it is always open for the competent authority to take action and in view of this it is directed that the Chief Fire Officer shall take immediate action in the matter and shall see that fire safety measures are provided in high rise buildings or business buildings or mercantile buildings in accordance with building bye laws and the provisions contained in National Building Code of India and if there is any contravention, shall take action as indicated in the provisions contained in the Fire Safety Act forthwith. He shall also carry out directions issued in the main petition which we have incorporated in the earlier part of our judgment.
34. We may clarify that we have not dealt with the permissible use of the land in accordance with the zone as per development plan or master plan as prescribed in the Delhi Development Act. It may not be understood that this decision will permit erect on of the buildings in contravention of the regulations made for different zones such as residential, commercial, industrial, agricultural etc.
35. The application is disposed of with the aforesaid directions.
