Delhi High Court
Khan Market Welfare Association vs New Delhi Municipal Council & Ors on 27 October, 2016
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th October, 2016
+ W.P.(C) 3107/2013
KHAN MARKET WELFARE ASSOCIATION ..... Petitioner
Through: Mr. Amit Bhagat & Mr. Pulkit Gupta,
Advs.
Versus
NEW DELHI MUNICIPAL COUNCIL & ORS..... Respondents
Through: Mr. Anil Grover with Ms. Kanika
Singh & Ms. Noopur, Advs. for R-1.
Mr. Varun Nischal, Adv. for R-3&4
i.e. Delhi Police and Delhi Fire
Service.
Mr. Jasmeet Singh, Adv. for R-2 UOI.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, claiming to be a registered Association comprising of
various individual flat owners and traders of Khan Market, New Delhi has
filed this petition pleading (i) that in pursuance to show cause notices from
the New Delhi Municipal Council (NDMC) received by the members of the
petitioner on 15th March, 2011 stating that the Monitoring Committee
constituted by the Supreme Court had directed the respondent NDMC to
initiate action against the first floor lessees/occupants of Khan Market who
had undertaken unauthorised construction and calling upon the members of
the petitioner to remove the said unauthorised construction and in pursuance
to the meetings held by the members of the petitioner with the Urban
Development Minister, it was decided that a detailed re-development plan of
Khan Market as per latest provisions of the Master Plan for Delhi - 2021 be
prepared by the NDMC in consultation with the Ministry on a time bound
basis; (ii) the NDMC appointed a consultant architect for preparation of the
said re-development plan with immediate attention to public safety i.e. the
fire safety plans as well as health safety i.e. the plans for disposal of sewage
in conformation with the guidelines laid down by the Delhi Pollution
Control Committee; (iii) that the said plan which was approved by the
respondent NDMC was sent to other authorities like the Fire Department for
their approval and on 8th November, 2011 the Chief Fire Officer of the Delhi
Fire Service (DFS) issued a letter approving the re-development plan so
prepared subject to certain conditions as specified in the said letter; (iv) a
meeting was held on 6th September, 2012 to discuss the Khan Market
Community Centre Re-development Plan and in the said meeting the matter
concerning the lack of fire safety of the first floors of Khan Market as well
as the matter relating to a larger capacity sewage line to be laid in the middle
lane of Khan Market and which two issues are of grave concern since they
relate to the aspect of public safety and public health, were also discussed;
(v) that the matter concerning the lack of fire safety is a matter concerning
public safety and accordingly has to be dealt with on a priority basis; (vi)
lack of fire safety on the first floors of Khan Market is also not in
compliance with the statutory provisions laid down in the Delhi Fire Service
Act, 2007 and the Rules of the year 2010 framed thereunder; (vii) that the
proposal regarding laying down of a larger capacity sewage line in the
middle lane of Khan Market as well as laying down a separate sewage line
for kitchen waste, taking into account the number of restaurants that have
opened in Khan Market, also requires immediate attention since it deals with
the aspect of health of the public at large; (viii) the petitioner, from time to
time impressed upon the NDMC of the need to undertake re-development of
Khan Market on an urgent basis owing to the aforesaid two issues of fire
safety and public health; and, (ix) however for two years preceding the
petition, inspite of the decision already taken for re-development of Khan
Market and preparation of re-development plan, no steps towards re-
development had been initiated by the NDMC.
Accordingly, a writ of mandamus is sought directing the NDMC to
expedite the implementation of Khan Market Community Centre Re-
development Plan more particularly the plans pertaining to fire safety and
installation of new and augmented sewage lines in Khan Market, in terms of
the decision taken by the Ministry of Urban Development in the meeting
held on 16th March, 2011.
2. Notice of the petition was issued.
3. On 15th July, 2013 the counsel for the petitioner requested for early
hearing "on the ground that the eateries in the Khan Market area are at risk
because of a fire hazard".
4. This court in the order dated 15th July, 2013 observed "if any such
hazard exists, as claimed, the concerned authorities are free to take action as
per law".
5. NDMC filed counter affidavit pleading (i) that the re-development
plan for Khan Market Complex and the surrounding buildings could not take
off because there are differences inter se the various stakeholders involved
in the matter viz., the plot for parking had not been made available; (ii) the
petitioner represents only the first floor owners/occupants; (iii) that laying
down sewerage lines is a part of re-development plan which cannot be
implemented in phases; (iv) that the re-development plan for entire Khan
Market Complex and nearby buildings had also been the subject matter of
Report of the Monitoring Committee which had been submitted to the
Supreme Court; (v) as regards the grievance for providing fire safety
measures, the said measures are required to be taken by individual shop
owners/restaurants owners of Khan Market in accordance with Building
Bye-Laws and other applicable laws; and, (vi) under the Building Bye-Laws,
necessary sanctions and clearance in regard to fire safety measures are
required to be taken by the individual owners of respective shops and it is
only thereafter that the requisite sanctions/licences are accorded for carrying
on commercial activities in the premises.
6. The petitioner filed a rejoinder inter alia pleading that the
consideration of the Report of the Monitoring Committee earlier pending in
the Supreme Court had been remitted to this Court.
7. On 29th August, 2014, the counsel for the NDMC stated that IIT
Roorkee and CBRI Roorkee had been engaged for submitting their technical
advice for retrofitting of Khan Market to cater to the future load
requirements due to commercialization.
8. Vide order dated 5th November, 2014, Land and Development Office
(L&DO) was impleaded as respondent no.2 to the petition.
9. NDMC filed an affidavit dated 24th December, 2014 stating (i) that the
experts engaged by the NDMC, on inspection have found that the existing
sewerage lines do not need any augmentation as the problem of sewerage is
not due to shortage of width but because of questionable ways of disposal of
kitchen waste by restaurants on the first floor of Khan Market; (ii) that the
said restaurants, instead of installing grease traps, were releasing grease
directly into the sewerage lines including kitchen waste which is choking the
sewerage lines; (iii) that in Khan Market area there are 32 restaurants/food
preparing units of which only two (having a seating capacity of more than 50
people) come within the purview of DFS and are required to take No
Objection Certificate (NOC) from the said department and which they had
obtained; (iv) that the thematic drawings for the proposed fire escape
prepared by the NDMC had the in principle approval of DFS; (v) that the
existing buildings in Khan Market at ground floor were constructed in brick
masonry with mud mortar and lot of addition/alteration had been carried out
therein and as a result of which retrofitting job is an engineering challenge;
(vi) by conversion of first floors of Khan Market from residential to
commercial, additional load had come onto the structure for which
retrofitting was required; (vii) retrofitting has to be done from inside of the
buildings and for which the commitment and cooperation from the other
Associations of owners/occupants of Khan Market namely Khan Market
First Floor Residents Welfare Association and Khan Market Traders
Association is required; (viii) Khan Market had been converted from
leasehold to freehold; however keeping in view that ensuring fire safety and
sewerage facilities is a municipal function, NDMC was still concerned
therewith; and, (ix) that it is the duty of individual owners to conform to the
fire safety norms of DFS and to ensure that they do not violate any of the
guidelines issued in this regard.
10. Though the counsel for the petitioner filed a response dated 7 th April,
2015 to the aforesaid affidavit of NDMC but did not therein respond to the
plea of cooperation of other two Associations of Owners/Occupants of Khan
Market being necessary for implementation of the re-development plan.
11. NDMC filed another affidavit dated 9th July, 2015 pleading (i) that
Khan Market area is having two Associations namely the petitioner and
Khan Market Traders Association; while the petitioner represents the
occupiers/owners of the first floor, the Khan Market Traders Association
represents the occupiers/owners of the shops on the ground floor; (ii) that re-
development of a market like Khan Market is an engineering challenge and
requires the consent of all the stakeholders namely members of the two
Associations and other owners/occupiers who are not members of either of
the two Associations; (iii) that the works cannot be carried out by the
NDMC unilaterally; (iv) without the owners/occupiers of each of the
premises in Khan Market consenting and giving access to their respective
premises, re-development of Khan Market cannot be carried out; (v) Khan
Market was established in 1951 and consists of a „U‟ Shaped double storey
building consisting of 154 shops on the ground floor and 74 flats on the first
floor; (vi) preliminary estimate for construction of fire evacuation corridor
and lift/staircase block at Khan Market was in the sum of Rs.5,62,33,000/-;
preliminary estimate for installing fire fighting system consisting of fire ring
main, pump house, fire hydrants and pressurized fire ring for individual fire
fighting system at Khan Market was in the sum of Rs.6,36,30,000/-; (vii)
Khan Market being a private property, the fire safety norms are to be
complied with only by the stakeholders within their premises; however
outside the private properties the NDMC has taken advance efforts for safety
and security; (viii) there is no consensus amongst the members of the two
Associations aforesaid on the plan prepared by the NDMC; (ix) that the plan
cannot be finalized without the data with respect to each building/structure
and to all of which the NDMC did not get access to; and, (x) NDMC can
provide all the technical support for re-development but the re-development
basically has to be by the individual property owners of Khan Market
themselves and about which they are unable to arrive at a consensus.
12. On 10th July, 2015, after hearing the counsels it was observed (i) that
documents on record did not show existence of any plan seeking
implementation of which this petition had been filed; (ii) that documents
filed contained only a decision to prepare a plan; (iii) that the contention of
the counsel for the petitioner was that the first floor of Khan Market is
mostly being used for restaurants and said restaurants "are literally a fire
trap, and in the case of fire, there are no precautionary/preventive measures
in place"; (iv) that the counsel for the petitioner was unable to reply as to
how the NDMC could carry out work of any nature in the shops on the
ground floor and the flats on the first floor of Khan Market which were
private properties; (v) that the counsel for the petitioner was also unable to
confirm that owners/occupants of all the shops on the ground floor and flats
on the first floor were willing to hand over their properties to the NDMC for
carrying out the works to make the said properties fire proof/safe; and, (vi)
that the counsel for the petitioner was unable to confirm whether the
commercial establishments run on the first floors of Khan Market have
clearance from DFS and if not, how the same were operating. On request of
the counsel for the petitioner to obtain instructions, the matter was
adjourned.
13. On the next date i.e. 16th July, 2015 the following order was passed.
"1. This order is in continuation of the order dated 10th July, 2015.
2. The counsel for the petitioner Khan Market Welfare Association
has today in Court referred to a Khan Market Community Centre
Redevelopment Plan stated to have been prepared by the
respondent No.1 New Delhi Municipal Council (NDMC) on 15th
February, 2013. A copy of the same is handed over in the Court
and be kept separately by the Court Master.
3. Though the said Plan is voluminous, but the counsel for the
petitioner states that the petitioner is immediately concerned only
with the issue of fire and sewerage.
4. On the issue of fire, with reference to Page 003 of the said Plan, it
is stated that as per the Plan, in the Service Lanes of the Market, 14
platforms with staircases have to be constructed, linking the two
properties abutting the Service Lanes, so as to allow occupants of
the first and second floors of the said properties to, in the event of
fire, access the street from the said platforms and staircases.
5. On enquiry, whether not the said work will entail opening of the
doors of the properties to the said platforms, the counsel states that
there are 74 first floor properties in the Market and the owners of
all the 74 properties are members of the petitioner Association and
are willing to open the doors towards the platforms.
6. On enquiry, whether not implementation of the said plan would
entail placement of staircases in front of the openings of the
properties on ground floor, no answer is forthcoming.
7. Attention is next invited to the letter dated 22nd March, 2005 of the
Additional Secretary (Home) of the Govt. of NCT of Delhi
(GNCTD) to the Chief Fire Officer requiring all cases of new
applications for trade licenses for eating places to be referred to the
Chief Fire Officer and the letter dated 16th March, 2007 of the
Chief Fire Officer to the respondent No.1 NDMC to the effect that
where the seating capacity of a restaurant is less than 50, the same
does not require „No Objection Certificate‟ (NOC) from the Chief
Fire Officer. It is thus contended that none of the restaurants on the
first floor require NOC from the Chief Fire Officer.
8. Upon further enquiry, if that be the position, why it was contended
on the last date that the restaurants on the first and second floors of
Khan Market are fire hazardous, the counsel states that though as of
now there is no danger of fire but the restaurants are limited to the
seating capacity of 48 and are desirous of expanding their seating
capacity to more than 48.
9. On further enquiry, as to which law / rule exempts restaurants with
seating capacity of less than 50 to not have clearance from Fire
Officer and what are the norms for increasing the seating capacity
in the restaurants and what is the minimum requirement of space
therefor, the counsel states that as far as he has checked, there are
no such rules / norms.
10. The Delhi Fire Service and the Deputy Commissioner of Police
(DCP) (Licensing) are not parties to this petition.
11. The counsel for the respondent No.1 NDMC to, on the next date of
hearing, inform what is the criteria for so increasing the seating
capacity of restaurants to more than 50 and notice of this petition be
issued to the DCP (Licensing), Delhi Police and to the Chief Fire
Officer, Delhi Fire Service.
12. The petitioner to file amended memorandum of parties within three
days from today and to have the notice served on the newly
impleaded respondents.
13. On further enquiry, it is stated that none of the restaurants are
entertaining more than 48 guests at present.
14. All the aforesaid is recorded without prejudice to the fact that the
case as made out in the petition, does not appear to be as is argued
today.
15. List on 11th August, 2015."
14. On the next date of hearing i.e. 11th August, 2015, the following order
was passed,
"1. The petitioner has not served the Delhi Fire Service and the Deputy
Commissioner of Police (DCP) (Licensing) ordered to be impleaded
vide order dated 16th July, 2015.
2. The counsel for the petitioner states that he will definitely effect
service for the next date. He is directed to also inform the nominated
counsels for Delhi Fire Service and the DCP (Licensing) and to serve
them also with the notice.
3. It has been enquired from the counsel for the petitioner whether the
Khan Market Community Centre Redevelopment Plan handed over
on the last date of hearing was approved by the Delhi Fire Service.
4. The counsel for the petitioner has drawn attention to the letter dated
8th November, 2011 of the Chief Fire Officer, Delhi Fire Service at
page 32 of the paper book to contend that the same was approved.
5. The counsel for the respondent New Delhi Municipal Council
(NDMC) controverts and states that the plan handed over on the last
date is dated 15th February, 2013 and could not have been approved
vide the letter of a date prior thereto.
6. The counsel for the respondent NDMC, with reference to the query
raised on the last date of hearing and recorded in para 11 of the order
dated 16th July, 2015, states that the respondent NDMC has issued
only the Health Licence from the hygiene point of view and in the
said licence had not imposed any restrictions qua the seating capacity
or the number of patrons to be entertained in the premises and which
is in the domain of DCP (Licensing).
7. The counsel for the petitioner has however handed over in Court a
copy of the licence issued by the respondent which specifies the
seating capacity.
8. The counsel for the respondent NDMC states that the seats are
mentioned as per the application and otherwise the respondent
NDMC is not concerned with the same.
9. On further enquiry, whether the respondent NDMC checks whether
the restaurants run in the premises have confined themselves to the
said number of seats or are running with additional seats, the counsel
for respondent NDMC states that the respondent NDMC never
carries out any inspection.
10. The counsel for the respondent NDMC seeks time to obtain
instructions.
11. List on 26th August, 2015."
15. Thereafter on 26th August, 2015 following order was passed.
"1. Adjournment is sought on behalf of Mr. Raman Duggal, Standing
Counsel, Government of NCT of Delhi who appears for Delhi Fire
Service (DFS) and DCP (Licensing).
2. Allowed.
3. The DFS to however before the next date of hearing, file an affidavit
in this Court disclosing a) whether the Khan Market Community
Centre Re-development Plan dated 15th February, 2013 has the
approval of the DFS and b) the basis on which it has taken a decision
that restaurants with seating capacity of less than 50 do not require
clearance from Fire Officer as well as the norms for increasing the
seating capacity in the restaurants.
4. The DCP (Licensing) to also before the next date of hearing file an
affidavit on the aforesaid aspects as well as disclosing the steps taken
for enforcement of the licence conditions.
5. The counsel for respondent No.1 New Delhi Municipal Council
(NDMC), in response to the queries recorded in the order dated 11th
August, 2015, states that it is proposed to hold parleys with the DFS
as well as the GNCTD for resolving the aspect of need if any for fire
clearance for restaurants with seating capacity of less than 50. He
further states that the respondent No.1 NDMC carries out inspections
from time to time to ensure that the restaurants granted licence with
seating capacity of less than 50 are not exceeding their capacity.
6. List on 7th October, 2015."
16. Delhi Police, in response to the notice of the petition issued to them,
filed a counter affidavit dated 6th October, 2015 pleading (i) that the
Licensing Branch of Delhi Police registers the Eating House under the
provisions of Delhi Eating Houses Registration Regulations, 1980 as well as
Standing Order No. 379 of Delhi Police; (ii) the Eating House is registered
on submission of Health Trade License from NDMC/MCD/DCB alongwith
application and other required documents for registration as a Eating House;
(iii) that the Chief Fire Office, Delhi Fire Service, vide his letter No.
F.6/DFS/MS/2015/EH/191 dated 23rd January, 2015 in the matter of grant of
Fire Safety Certificate to M/s MGM Club Society, Darya Ganj, Delhi and
which was proposed for 49 seats, and in the matter of commercial area in
Hauz Khas Village, the Assistant Division Office, Delhi Fire Offer Vide
letter No. F/6/DFS/MS/2014/MISC/1616 dated 11th July, 2014, have
clarified that eating houses that have less than 50 seats are not covered under
the purview of Delhi Fire Services Act, 2007 and Delhi Fire Service Rules,
2010; (iv) hence NOC from fire department is not required; (v) thus, Eating
Houses which have less than 50 seats do not require fire NOCs and fire NOC
is given to the Eating Houses where seats are 50 or above; (vi) that the
Licensing Branch, Delhi Police had registered the Eating Houses in Khan
Market Area, New Delhi only after the receipt of Health Trade Licence and
other required documents from the NDMC and report from local police; (vii)
the NDMC, after due inspection, also mentions number of seats of the Eating
House in their Health Trade License; (viii) on the basis of all the said reports,
the Licensing Branch of Delhi Police issues/grants Eating House license; (ix)
that as many as 43 Eating House Licenses have been granted in the Khan
Market area; (x) that the Commissioner of Delhi Police has already vide
letter dated 22nd July, 2015 to the Chief Secretary of Government of Delhi
expressed concerns about non insistence of fire NOC by restaurants/eating
houses having seating capacity of less than 50 and which pose major fire
hazard with no possibility of the Delhi Fire Service being able to render any
assistance in the event of any fire accident/incident in the said restaurants;
(xi) mention in the said letter was also made of such restaurants in Khan
Market, Hauz Khas Village, Greater Kailash -I and Greater Kailash-II
Markets; (xii) that the District Local Police enforces the license conditions
by checking such eating houses from time to time and if any
shortcoming/violation of license conditions is found, it entails prosecution;
(xiii) complaints against defaulting eating houses are also entertained and
acted upon.
17. The Chief Fire Office of DFS also in response to the notice of the
petition issued to it filed a counter affidavit dated 7th October, 2015 stating
(i) that on 8th November, 2011 the proposal of the Khan Market
Redevelopment Plan was accepted by DFS for residential occupancy at first
floor plus barsati floor and on 21st October, 2013 revised scheme for fire
escape plan for Khan Market, New Delhi was referred to DFS and the above
revised plan was approved vide letter dated 13th December, 2013; (ii) that the
buildings identified in Clause 6.2.4.1 of Delhi Building Bye-Laws , 1983 i.e.
multi storied buildings which are more than 15 meter in height and for
special buildings like Assembly, institutional, industrial storage and
hazardous occupancies have to be designed and constructed to ensure fire
safety as prescribed in Part 4 of National Building Code of India; (iii)
however as per definition of "assembly building", specified in the National
Building Code of India, 2005 vide clause 3.1.5, they "include any building or
part of a building, where number of persons not less than 50 congregate or
gather for amusement, recreation, social, religious, patriotic, civil, travel and
similar purpose, for example, theatres, motion picture houses, assembly
halls, auditoria, exhibition halls, museum, skating rinks, gymnasiums,
restaurants, places of worship, dance halls, club rooms, passenger stations
and terminals of air, surface and marine public transportation services,
recreation piers and stadia etc."; (iv) therefore in accordance with the said
criteria, if the seating capacity in an assembly building/restaurant is less than
50, the same does not qualify to be called "assembly building"; (v) as such
the fire safety clearance is not required to be obtained from DFS for such
assembly buildings; (vi) however as per Clause 17.1 of Building Bye-Laws,
1983, fire safety arrangements are required to be provided in the building in
accordance with National Building Code of India, 2005, Part-4; (vii) that the
National Building Code of India, 2005 has prescribed fire and life safety
requirements for assembly buildings based on the height of building and the
number of persons; (viii) the number of occupants on a floor is determined
based on occupant load factor as prescribed under clause 4.3 of National
Building Code of India, 2005, Part 4; (ix) the occupant load factor for
assembly buildings having loose seats such as restaurants is 1.5 sq. mtr. per
person; (x) the number of seats can thus be determined and limited to based
on load factor.
18. The Chief Fire Officer in his affidavit aforesaid having stated that the
approval by DFS of the redevelopment plan of Khan Market was for
„residential occupancy‟ of the first floors, it was during the hearing on 18th
April, 2016 enquired from the counsel for the DFS, whether not the
redevelopment plan which was submitted was for use of the first and barsati
floors for commercial / restaurant purpose.
19. The counsel for DFS replied that the approval was for use of the first
floor and barsati floor for commercial / restaurant purpose and further stated
that an additional affidavit on this aspect shall be filed.
20. It was similarly enquired from the counsels during the hearing on 18 th
April, 2016, as to who determines whether the criteria of 1.5 sq. mtrs. per
person is fulfilled or not.
21. The counsel for DFS stated that the Licensing Authority i.e. the
NDMC has to keep a check thereon.
22. The counsel for NDMC stated that NDMC has granted the licences
without satisfying itself of the said criteria and only on the application of the
applicants.
23. As such, vide order dated 18th April, 2016, NDMC was also directed
to inspect each of the premises with respect to which licences had been
granted, prepare site plans with dimensions thereof and to file an affidavit,
whether each of the premises satisfy the criteria of 1.5 sq. mtrs. per person
and the other requirements if any of the National Building Code.
24. In pursuance thereto, DFS filed an affidavit dated 27th April, 2016
stating (a) that NDMC vide its letter dated 23rd September, 2011 had
submitted a scheme for clearance of fire safety measures with respect to
standard plan of Khan Market Flats, showing shop on the ground floor and
flat on first and barsati floors; (b) that NDMC nowhere mentioned in the
letter dated 23rd September, 2011 of use of the first and barsati floors; (c)
accordingly, the scheme for first and barsati floors (shown as residential
occupancy) was examined and accepted by DFS vide letter dated 8 th
November, 2011; (d) that due to some technical and structural constraints in
the earlier proposal, NDMC submitted a revised redevelopment plan of Khan
Market shops and flats to the DFS vide letter dated 21 st October, 2013, for
which NDMC provided drawings, showing shops on ground floor and rooms
on first floors, without specifically assigning nature of occupancy i.e.
residential or commercial; (e) accordingly, the revised scheme for first and
barsati floors (residential occupancy) was examined and accepted by DFS
vide letter dated 13th December, 2013.
25. The aforesaid discloses a shocking state of affairs. While it was being
contended before this Court that the redevelopment plan of Khan Market
with shops on the ground floor and restaurants / commercial use on the first
and barsati floors had the approval of the DFS, from the affidavit dated 27th
April, 2016 of DFS it emerges that the approval of DFS for redevelopment
plan was in the context of residential occupancy of the first and the second
floors.
26. With the aforesaid, the entire edifice of the claim in the petition falls.
The petition as aforesaid is filed on the premise that the functioning of the
eating houses / restaurants in the first floor and barsati floor of Khan Market
is lawful and that for fire safety a redevelopment plan had been prepared and
approved by the DFS and seeking mandamus in the nature of implementation
of the said plan which was ready for implementation and implementation
whereof was held up for administrative lethargy. However, what emerges is
that the approval by the DFS of the redevelopment plan, as far as first and
barsati floors are concerned, was for residential occupancy and the DFS has
not even applied itself, whether the redevelopment plan prepared by the
NDMC is as per the norms of the DFS, if the use of the first and barsati
floors of Khan Market were to be for the commercial purposes of eating
houses / restaurants. The other concern highlighted in the petition of
deficient sewage lines has also been reported by NDMC to be fallacious. It
is the stand of NDMC that the experts have found the existing sewage lines
to be sufficient and satisfactory and have put the blame for the inefficient
sewage disposal posing a health hazards, on the members of the petitioner.
The petitioner has not rebutted the same.
27. In fact, the re-development plan which was, as aforesaid, handed over
by the counsel for the petitioner is dated 15 th February, 2013. However,
what the DFS in its affidavit dated 27th April, 2016 has stated is that the said
plan was modified in October / December, 2013. The said plan is not even
before the Court, though petition seeking mandamus for implementation of
the redevelopment plan is filed.
28. NDMC, in its affidavit dated 9th July, 2015, as aforesaid, has also
pointed out the other impediments to execution of the redevelopment plan. I
had during the hearing on 28th April, 2016, when judgment in this petition
was reserved, enquired from the counsel for the petitioner whether not
execution of the redevelopment plan would necessarily also entail execution
of works within the shops on the ground floors of Khan Market; at least on a
perusal of the redevelopment plan which was handed over as aforesaid in the
Court, it appears that it would be so required. The counsel for the petitioner
also had argued that the redevelopment plan entails construction of a
balcony/platform at the level of the first floor from which, in the event of
fire, the patrons of the eating houses / restaurants on the first floors can exit
and construction of staircases leading from the said balcony/platform to the
streets below. I had enquired, whether not the same would affect the ground
floor shops / properties. It is clear that the petitioner is a representative only
of owners / occupiers of the first floor flats of Khan Market. There is a clear
rift between the owners / occupiers of the first floor flats and the owners /
occupiers of the shops on the ground floor. The proposal which the owners /
occupiers of the first floor flats want implemented would prejudicially affect
the owners / occupiers of the ground floor shops and who are not members of
the petitioner and who have not even been impleaded as respondent in the
petition. The petitioner wants to take a walkover.
29. I had during the hearing on 28th April, 2016 also enquired from the
counsel for the petitioner as to what is the right of NDMC or for that matter
of any other authority to compel the owners / occupiers of the ground floor
shops in Khan Market to agree to making their shops available / accessible
for the purposes of implementation of the re-development plan prepared at
the behest of owners/occupiers the first floor flats.
30. Neither of the aforesaid queries were answered and the counsel for the
petitioner kept on harping on how dangerous it is for the customers / patrons
of the eating houses / restaurants running in the first floor flats of Khan
Market and that it is in public interest that proper arrangements should be
made for their safety in the event of a fire incident.
31. I am unable to understand the said stand of the petitioner. The use
prescribed of the first floor flats of Khan Market, even if has been changed
from residential to commercial, does not entitle the owners / occupiers
thereof to demand that for the sake of letting them carry on an activity
therein, which according to them also is dangerous, NDMC should spend
crores of rupees or that the owners / occupiers of shops on the ground floor
should be made to suffer. It is not as if the members of the petitioner are the
tenants of NDMC or of any other governmental authority or that the entire
Khan Market is in the ownership of NDMC / Government for the
NDMC/Government to in exercise of their ownership rights re-develop the
market by carrying out major works of construction/renovation therein. The
shops as well as the residential flats above are in the private ownership and
the works if any required to be carried out therein and which cannot be
carried out without the joint effort of all the owners / occupiers, can be
carried out only jointly of all of them, at their own expense. This Court
cannot, to enable the owners / occupiers of the said 70 odd flats earn more
from their flats, direct public monies to be spent for their exclusive benefit.
32. Though undoubtedly it is the public which uses the market and
patronizes the eating houses / restaurants therein, but I am compelled to say,
without realizing that the owners / occupiers of the said eating houses /
restaurants themselves are openly declaring the same to be a fire hazard and
a fire trap, of escape wherefrom in the event of fire, there are no measures in
place. Members of the public when visiting an eating house / restaurant
which has been allowed by the governmental/municipal authorities to
function, believe that the same is safe and compliant with all the laws. I
wonder how many citizens of Delhi would be willing to risk their lives for
the sake of dining in such restaurants if were to know the claims of the
petitioner as made before this court, of the said restaurants being a fire
hazard, a fire trap. The present has resulted in a situation where the
owners/occupiers of the said flats and the eating houses / restaurants, in the
event of any loss of life or property caused by fire would take a stand that
they have been openly declaring their eating houses / restaurants to be unsafe
and are thus not liable and it is the government / municipal authorities which
are at fault and should bear the damages for loss of life or property. The
wounds of the Uphar Cinema Tragedy on 13th June, 1997, in which 59
persons lost their lives and more than 100 persons suffered injury, though not
yet healed for the victims and their families, appear to have been forgotten
by the administrative and municipal authorities by allowing functioning of
establishments, which the owners of the establishments themselves are
calling a fire trap and a fire hazard.
33. Though the aforesaid is sufficient for dismissal of the petition but
during the hearing, as aforesaid, the aspect of permissions/licences with
which the eating houses / restaurants on the first floor of Khan Market are
functioning was also raised. Since the petitioner itself calls it a „public issue‟
and since I am dealing with the subject in jurisdiction under Article 226 of
the Constitution of India and which permits me to, taking cognizance of the
entire facts and circumstances of the case, pass appropriate orders to do
complete justice and especially in the light of the Police Commissioner
himself having written to the Chief Secretary of
Government of Delhi expressing concern about safety of the members of
public patronising such eating houses / restaurants in the first floor flats, I
proceed to delve into the said aspect also.
34. The said flats were constructed for residence of a few members of
family and have narrow staircases as the only access thereto. The said
staircases open in narrow service lanes which perhaps the Fire Brigades
cannot even enter. It is the said flats which have been allowed to be used as a
public space, where upto 50 persons gather at a time. Neither the Delhi
Police nor the NDMC which have issued licences/permissions therefor have
concerned themselves with the aspect whether allowing use of the said flats
as a restaurant where upto 50 persons dine, poses a hazard from fire to the
lives of such persons and if so, the preventive steps required to be taken
therefor. Thus, inspite of the fact that the petitioner, whose members are
operating the said restaurants or allowing such restaurant to operate, is itself
stating that there is a fire hazard and NDMC, satisfied therewith has prepared
a re-development plan but which is unworkable, the restaurants are allowed
to continue functioning, jeopardizing the lives of their patrons. This court
cannot shut its eyes to such a situation.
35. The stand in this regard which has emerged is that an eating house /
restaurant, with a seating capacity of less than 50 persons, does not classify
as a public place and no permission of DFS is required for establishment
thereof. It has further emerged that though the norms laid down for such an
eating house / restaurant inter alia is, availability of at least 1.5 sq. mtrs. of
space for each of the upto 50 patrons, but no exercise in respect thereof also
had been done.
36. Taking up of the first of the aforesaid two aspects first, Rule 27 of the
Delhi Fire Service Rules under the head "Classes Of Occupancies Likely To
Cause A Risk Of Fire" lists "all Assembly buildings" thereunder. The word
„Assembly‟ or „Assembly building‟ is neither defined in the Act nor in the
Rules. However, the Black‟s Law Dictionary 8th Edition defines „Assembly‟
as a group of persons organized and unified for some common purpose. The
Shorter Oxford English Dictionary also defines the word „Assembly‟ as a
gathering of people. Thus, the word „Assembly‟ by itself, as commonly
understood, does not require any minimum number. However, the DFS has
adopted the definition of an „Assembly Building‟ as in the National Building
Code to contend that only a building where more than 50 people gather
qualifies as an assembly building and a building where less than 50 people
gather would not classify as an assembly building. I wonder, whether a
citizen of Delhi, when choosing a restaurant, knows the difference. For her,
a restaurant is a restaurant, whether the seating capacity thereof is for 49 or
51 persons and she expects the same standard of safety in both.
37. I had during the hearing enquired from the counsel for DFS the reason
for treating the occupancy as restaurant with a seating capacity of 50 or more
as likely to cause a risk of fire and to satisfy the requirements prescribed and
not treating a occupancy, also as a restaurant but with a seating capacity of
less than 50 as not likely to cause risk of fire, when there does not appear to
be any reason for such differentiation. Both remain places established, run
and operated for profit motive, where members of public collect for eating /
drinking. Both are public places and a restaurant with seating of less than 50
cannot be treated as a private premises, where the owner and the occupier is
the same, save for occasional guests and which owner / occupier takes due
care of her own safety and is in full control thereof. In comparison, in a
public place, the owner may be absent herself and the entire place may be
occupied by unsuspecting members of public having no control thereover.
Further, while the owner of a private premises would ensure that the guests
invited by her are not more than can be safely accommodated, an owner of a
public place as a restaurant, for the sake of maximum profiteering therefrom
would be interested in letting in as many as can be squeezed in and/or are
willing to be squeezed in the premises, as long as they are paying therefor.
38. Not only so, what is all the more shocking is that there appears to have
been no check on whether the eating houses / restaurants which have been
permitted to function do not allow more than 50 persons to assemble therein
or whether the size thereof, applying the measure of 1.5 sq. mtrs. per person,
even permits occupancy of upto 50 persons. No inspections were said to
have been carried out in this respect. However, as aforesaid, upon the
responsibility thereof being fixed on NDMC, NDMC was directed to carry
out an inspection and file an affidavit. Though no affidavit had been filed till
the conclusion of hearing on 28th April, 2016 and the counsel for NDMC on
that date stated that the inspections were underway and an affidavit will be
filed before the judgment is pronounced but CM No.20780/2016 along with
the affidavit was filed and was listed on 27th May, 2016. None appeared for
the petitioner on that date, inspite of advance copy stated to have been given.
Considering that the filing of the affidavit was in accordance with the earlier
order, need to issue notice of the said application was not felt and the said
affidavit was taken on record.
39. The Chief Architect of NDMC in the said affidavit dated 19 th May,
2016 has stated that the occupant load of most of the restaurants functioning
in the first floor flats of Khan Market is more than 50 persons and the said
restaurants fall under the category of „Assembly Building‟ as defined under
Clause 3.1.5 (Part-4) of the National Building Code, 2005.
40. NDMC has still not filed any report of surprise inspection if any
carried out to determine whether in pursuance to the licences obtained by the
said restaurants, they are confining the seating capacity thereof to less than
50 persons or not.
41. The position which emerges is that it is not as if the first floor flats of
Khan Market, permitted to function as restaurants, in accordance with their
size cannot seat more than 50 persons. They have been found to be capable
of seating more than 50 persons. However, the said restaurants fully knowing
that they do not satisfy the norms prescribed for NOC under the Delhi Fire
Service Act and taking advantage of the policy followed by DFS, of
buildings though used for assembly but if of less than 50 persons, not
requiring fire clearance, have established restaurants therein which they
themselves claim and have repeatedly urged before this Court, are a fire trap
and fire hazard and if there is an incident of fire therein, there are no safety /
evacuation measures. This is yet another instance of the public-private
partnership of municipal and police authorities - flat and restaurant owners
showing scant regard for human life.
42. To say the least, the said first floor flats of Khan Market being used as
restaurants are a disaster waiting to happen.
43. I had, as aforesaid, during the hearing asked the reason for exempting
restaurants with a seating capacity of less than 50 persons from obtaining
clearance under the Delhi Fire Service Act. Though in the Court, the reason
given was that if such restaurants / eateries were to be included in the scope
of Rule 27 of the Delhi Fire Service Rules, the DFS will have a much larger
number of premises to inspect and regulate and which they are not equipped
to do but in the affidavit filed of course, reliance was placed on the National
Building Code. Supreme Court, in Consumer Action Group Vs. State of
Tamil Nadu (2000) 7 SCC 425 drew the attention of administrative
authorities to the fact that waiver of requirements regarding fire prevention
and fire fighting measures seriously endanger the occupants, resulting in the
building becoming a veritable death trap.
44. I entertain serious doubts as to the interpretation by DFS of the Delhi
Fire Act and the Delhi fire Service Rules. However since the aspect involves
interpretation of statutory rule and which has not been raised by either of the
parties I refrain from proceeding further on the aspect. Suffice it would be to
in this petition, to issue a direction for re-consideration thereof.
45. I however draw the attention of the NDMC to NDMC Vs. Statesmen
Ltd. 1989 Suppl. 2 SCC 547 where Supreme Court held that since under the
relevant statute and bye-laws the authority to grant or refuse the licence is
NDMC, it has the power to decide and that the clearance from the Chief Fire
Officer wherever required is merely an additional condition and not a
limitation on the power of NDMC to satisfy itself that the building provides
for adequate fire safety precaution. NDMC cannot on the one hand assume
the power to grant licence for using the premises as a restaurant/eatery and
on the other hand absolve itself of responsibility to satisfy itself that
restaurant does not pose a fire hazard to the safety of those patronizing the
same and that in the event of fire, proper measures for evacuation of the
patrons therein and to prevent the fire from spreading to the entire market,
exist. In the matter of Uphar Cinema, the liability for the loss caused by a fire
incident has been held to be, besides of the owner/occupier of the premises,
also of the licence giver if in conscious abuse of powers. The conduct of the
NDMC and the other authorities of, inspite of the owners/occupiers of the
said restaurants themselves saying that they are a fire trap and a fire hazard,
not taking any action, will be nothing but a conscious abuse of the powers
vested in them.
46. I therefore, though do not find any merit in the petition and dismiss the
same but direct
(i) NDMC and the DFS to, within two months hereof, take a
decision whether the said first floor flats which have been found
by the NDMC to be having a occupant load for more than 50
persons, (and which the petitioner also admitted as aforesaid, on
16th July, 2016 as capable of seating more than 50 persons)
qualify as a Assembly Building and if so whether the
restaurants/eateries or other commercial activities being carried
on or permitted therein satisfy the requirements of law and if not
to prohibit use of the same therefor.
(ii) The NDMC and DFS to, within the said time also take a
decision that even if the said first floor flats qualify as Assembly
Building within the meaning of the Delhi Fire Service Rules but
do not satisfy the requirements thereof, whether the
restaurants/eateries with a seating capacity of less than 50
persons can be permitted to function therefrom without posing a
fire hazard to the patrons visiting the same.
(iii) The DFS to, within three months, re-visit its policy of
classifying Assembly Buildings by the seating capacity thereof.
(iv) NDMC to, if inspite of the said first floor flats having seating
capacity of more than 50 persons being permitted to run a
restaurant with a seating capacity of less than 50 persons, devise
ways and means to ensure that the said restaurants do not seat
more than 50 persons. NDMC may consider issuing immediate
directions to such restaurants/eateries to prominently display the
seating capacity of each floor within the restaurant, visible to all
patrons thereof along with phone number of officer of NDMC
to receive complaints of over-seating.
47. It is further made clear that notwithstanding the petitioner and its
members having in this petition declared the restaurants/eateries run/operated
by them or allowed to be operated by them in their first floor flats of Khan
Market as a fire hazard, they will continue to remain liable in law for the
loss/damages to life or property of anyone from any incident of fire in their
premises.
RAJIV SAHAI ENDLAW, J
OCTOBER 27, 2016
„pp‟/M/bs..
