Gujarat High Court
Tusar Pravinbhai Sojitra vs Addl. Chief Secretary on 26 February, 2021
Bench: J.B.Pardiwala, Ilesh J. Vora
C/WPPIL/118/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 118 of 2020
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
In R/WRIT PETITION (PIL) NO. 118 of 2020
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2021
In R/WRIT PETITION (PIL) NO. 118 of 2020
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2020
In R/WRIT PETITION (PIL) NO. 118 of 2020
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2021
In R/WRIT PETITION (PIL) NO. 118 of 2020
With
R/WRIT PETITION (PIL) NO. 154 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14157 of 2020
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AMIT MANILAL PANCHAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
for the Opponent(s) No. 1,2
MR SATYAM Y CHHAYA(3242) for the Opponent(s) No. 3
NOTICE SERVED(4) for the Opponent(s) No. 4
==========================================================
CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 26/02/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. Pursuant to the order passed by this Court dated 15 th
December, 2020,, more particularly, the directions as
contained in Paragraph Nos. 23(1) to (14) of the order, the
C/WPPIL/118/2020 ORDER
State Government has filed an additional affidavit. The
Ahmedabad Municipal Corporation has also filed further
affidavit.
2. Gist of the additional affidavit filed on behalf of
the State:-
(A) A detailed and comprehensive exercise has been
undertaken to examine the existing provisions of the Gujarat
Fire Prevention & Life Measures Act, 2003 as well as the
Gujarat Fire Prevention & Life Measures Rules, 2014. After due
consideration of the erstwhile provisions of the Act and the
Rules, the same came to be amended by the State vide the
Gujarat Fire Prevention & Life Measures (Amendment)
Ordinance Rules, 2021.
(B) The State also proposes to amend the Act and the Rules
by:-
(I) Incorporation of the recommendations of National
Building Code of India, 2016 ("NBC" for short) as mandatory
requirement under the Act;
(II) Entrusting the duty of Fire Safety Certificate renewal
upon the Fire Safety Officer;
(III) The Fire Safety Officers shall compulsorily have to
undergo training;
(IV) Building Use certificate cannot be issued without
complying with Section 18 of the Act and obtaining Fire Safety
Certificate;
C/WPPIL/118/2020 ORDER
(V) Penalising the action of granting Fire Safety Certificate
renewal under Section 21(5) without there being actual
compliance or maintenance of Fire Prevention and Life Safety
measures and equipments.
(C ) Para-5 of the affidavit talks about developing a web-
application for issue and renewal of the Fire Safety Certificates.
(D) Para-7 of the affidavit talks about recruitment.
(E) Para-9 of the affidavit deals with the various directions
issued by this Court vide order dated 15th December, 2020.
(F) Para-9.4 deals with total number of buildings which
require Fire NOC to be issued by the various Municipal
Corporations in the State.
(G) Para-9.5 deals with the Hospitals, Schools, Factories and
Industrial Units not holding a valid NOC and the action taken in
that regard.
(H) Para-9.7 deals with the number of buildings not having
the BU Permission for the period between 01.01.2009 and
31.12.2020.
(I) Para-9.10 deals with the directions issued by this Court
in receipt of the Intensive Care Units in the Hospitals.
3. Gist of the affidavit filed by the Ahmedabad
Municipal Corporation:-
(A) Para No.5 says that the Corporation has issued public
notices to obtain Fire NOC or renewal of Fire NOC.
C/WPPIL/118/2020 ORDER
(B) Para No.7 talks about the recruitment process in the
AFES Department of the Ahmedabad Municipal Corporation.
(C ) Para No.8 talks about the types of buildings having valid
NOC.
(D) Para No.10 talks about buildings not having NOC and the
notices issued to all such buildings and the hospitals being
sealed.
Submissions on behalf of Mr. Amit M. Panchal/Party-in-
Person:-
4. Mr. Panchal invited the attention of this Court to Clause
3(ii)(k) of the Ordinance, which reads thus:
"Fire prevention and life safety measures" means such
measures as are necessary in accordance with the GDCR
or as required by or under the provisions of any law or
the National Building Code of India, for the time being in
force, with regard to fire prevention, life safety and fire
protection for containment, control and extinguishing of
fire and for ensuring the safety of life and property in
case of fire."
5. Mr. Panchal would submit that the word "OR" has been
used between the GDCR and NBC.. He would submit that there
cannot be a pick and choose policy. The State should be clear
whether it wants to follow the NBC or the GDCR and no
ambiguity or any confusion should be left in the larger public
interest. In other words, the provision should have clarity. Mr.
Panchal referred to the notification in respect of the Rules and
submitted that Rule 2(2) is also similarly worded and, in such
circumstances, Mr. Panchal wants this Court to direct the
State to remove the ambiguity by taking an appropriate
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decision whether to invoke the GDCR or NBC.
6. Mr. Panchal would submit that the figure of 16761 being
the number of buildings which require Fire NOC as indicated in
the chart in Para-9.4 of the affidavit does not appear to be
correct having regard to the following;
"16761 buildings require NOC.
15317 : factories & industries + 247: hospitals=17564
buildings which require FIRE NOC + high rise
buildings+special buildings + schools.
Therefore, the number 16761 provided by the State is
not correct and the number of buildings which would
require FIRE NOC would be much larger considering that
the high rise buildings + special buildings + schools,
would be much larger."
7. Mr. Panchal, thereafter, made a request that the Estate
Department of the Ahmedabad Municipal Corporation be
directed to provide a complete list of all High Rise Buildings- 15
meters and 18 meters of height and which would include all
the special buildings such as schools,, hospitals, industries
which have valid NOC and all those buildings which do not
have a valid NOC.
8. Mr. Panchal submitted that according to the averments
made in Para-9.5 of the affidavit, there are 5199 schools
across the State not having a valid and subsisting NOC. This,
according to Mr. Panchal, is shocking and in utter disregard of
the safety of children. Studying in all such schools. Mr.
Panchal invited the attention of this Court to the following:-
" 1) 579 schools in Vadodara,
2) 77 schools in Surat,
C/WPPIL/118/2020 ORDER
3) 72 schools in Jamnagar
4) 152 schools in Junagadh
5) 461 schools in Rajkot
6) 28 schools in Gandhinagar
7) 3830 schools in various Nagarpalikas and local bodies.
9. Mr. Panchal would submit that the Fire Prevention
Services should be operational and existing with NOC in all the
schools. Mr. Panchal invited the attention of this Court to the
judgment of the Supreme Court in the case of Avinash
Mehrotra vs. Union of India & Ors., reported in (2009) 6
SCC 398, more particularly, the directions issued by the
Supreme Court which reads as under:
"47. In view of what happened in Lord Krishna Middle
School in District Kumbakonam where 93 children were
burnt alive and several similar incidences had happened
in the past, therefore, it has become imperative to direct
that safety measures as prescribed by the National
Building Code of India, 2005 be implemented by all
government and private schools functioning in our
country. We direct that:
(I) Before granting recognition or affiliation, the State
Governments and Union Territories concerned are
directed to ensure that the buildings are safe and secure
from every angle and they are constructed according to
the safety norms incorporated in the National Building
Code of India.
(ii) All existing government and private schools shall
install fire extinguishing equipments within a period of six
months.
(iii) The school buildings be kept free from inflammable
and toxic material. If storage is inevitable, they should be
stored safely.
(iv) Evaluation of structural aspect of the school may be
carried out periodically. We direct that the engineers and
officials concerned must strictly follow the National
Building Code. The safety certificate be issued only after
C/WPPIL/118/2020 ORDER
proper inspection. Dereliction in duty must attract
immediate disciplinary action against the officials
concerned.
(v) Necessary training be imparted to the staff and
other officials of the school to use the fire extinguishing
equipments."
10) Mr. Panchal would submit that in view of the aforesaid
judgment of the Supreme Court, it is not open to the State of
Gujarat to include the Educational Buildings in the Third
Schedule in B(2) and also not issue the advisory as indicated in
the Note which could be applicable to the schools in the State
of Gujarat, more particularly, when the directions were issued
by the Supreme Court way back in the year 2009.
11) In the last, Mr. Panchal submitted that the State
Government as well as the Corporation be directed to comply
with all the directions issued by this Court vide order dated 15 th
December, 2020 and they be asked to place the compliance
report on record by the next date of hearing.
Submissions of Mr. R.R. Marshal, the learned senior
counsel appearing in the Special Civil Application
No.14157 of 2020:-
12) Mr. R.R. Marshal, the learned senior counsel would
submit that the various directions issued by this Court vide
order dated 15th December, 2020 are yet to be complied with
by the Ahmedabad Municipal Corporation as well as the State
Government. Mr. Marshal brought to the notice of this Court
that the authorities of the Ahmedabad Municipal Corporation
have applied seals on the premises of the Shrey Hospital and
C/WPPIL/118/2020 ORDER
all efforts are being made by the owner of the Shrey Hospital
to see that the seals are removed and he is permitted to once
again start the hospital. Mr. Marshal would submit that the
Shrey Hospital cannot be permitted to be run in the building
concerned as the said building was originally made for
residential purpose, but later, the plans were revised by the
Corporation contrary to the Rules and Regulations, for which
the liability of the erring officials should also be fixed.
13) Mr. Marshal would submit that eight innocent lives were
lost in the fire at the Shrey Hospital, and all that the police has
done is to file a charge-sheet for the offence punishable under
Section 304A of the IPC, i.e., rash and negligence act.
According to Mr. Marshal, having regard to the genesis of the
occurrence or manner, in which, the accident occurred, the
same would constitute an offence of culpable homicide not
amounting to murder punishable under Section 304 of the IPC.
14) Mr. Marshal has a very serious grievance to redress
against the commission appointed by the State Government
under the Commission of Enquiries Act, 1952 to probe into the
unfortunate incident that occurred at the Shrey Hospital.
According to Mr. Marshal, the family members of the victims
have been requesting the Commission to provide them with
certain papers but the commission, so far, has not thought fit
to look into the matter or entertain the request made by the
family members of the victims. Mr. Marshal prays that
appropriate directions be issued in this regard.
15) We take notice of the fact that the Ahmedabad Hospital &
C/WPPIL/118/2020 ORDER
Nursing Home Association (AHNHA) has filed an application,
seeking to be impleaded as a party respondent in this
litigation.
16) Mr. Yogesh Motiramani, the learned counsel has
appeared on behalf of the Association. According to Mr.
Motiramani, the association is ready and willing to extend full
cooperation to both, the State as well as to the Corporation.
Mr. Motiramani would submit that he is not here to oppose the
PIL. He prays that the association may be permitted to be
joined a a party-respondent so that appropriate reply can be
filed.
17) We also take notice of the fact that Mr. Vijal Desai, the
learned counsel has appeared on behalf of the Shrey Hospital.
According to Mr. Desai, he would be filing his reply by the next
date of hearing. He clarifies that at the time of the unfortunate
incident, his client had a valid NOC.
18) Mr. Kamal Trivedi, the learned Advocate General
submitted that this Court may draw the attention of the State
Government as well as that of the Corporation in any areas
where both are lacking or improvement is necessary. Mr.
Trivedi would submit that this Court may issue appropriate
directions and such directions shall be abided by the State as
well as by the Corporation. Mr. Trivedi submitted that the
State Government, with all seriousness, is considering to adopt
the Clinical Establishments (Registration & Regulation) Act,
2010 (for short "the Act, 2010). According to Mr. Trivedi, all
necessary steps in that regard are being taken, and the State
C/WPPIL/118/2020 ORDER
Government is very keen to adopt the same and frame
appropriate rules in larger public interest. Mr. Trivedi makes a
request that, as on date, only the Ahmedabad Municipal
Corporation is before this Court, whereas the other seven
municipal Corporations should also be impleaded as party
respondents and their response should also be called for.
19) Having heard the learned counsel appearing for the
respective parties and having regard to the additional
affidavits placed on record of this case, we propose to issue
the following directions;
(A) Let notice be issued to the following Corporations,
returnable on 5th April, 2021;
(i) Jamnagar Municipal Corporation;
(ii) Vadodara Municipal Corporation;
(iii) Surat Municipal Corporation;
(iv) Rajkot Municipal Corporation;
(v) Junagadh Municipal Corporation;
(vi) Gandhinagar Municipal Corporation;
(vii) Bhavnagar Municipal Corporation;
(B) Notice to all the above referred Corporations shall be
served through the respective Commissioner of each of the
Corporations.
(C ) We direct all the Municipal Corporations to place on
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record by way of an affidavit, a list of all the high rise buildings
-15 metres and 18 metres in height, special buildings, schools,
hospitals, industries and factories within the jurisdictional
limits of all the Municipal Corporations :
a. Which have a valid and subsisting No Objection Certificate
with regard to the Fire Prevention and Protection Systems in
the State of Gujarat ;
AND
b. Which do not have a valid and subsisting No Objection
Certificate with regard to the Fire Prevention and Protection
Systems in the State of Gujarat;
(D) We direct the Municipal Commissioners of all the
Municipal Corporations to state on affidavit what action has
been taken by the Municipal Corporations against the erring
high rise buildings - 15 metres and 18 metres in height, special
buildings, schools, hospitals, industries and factories within the
jurisdictional limits of all the Municipal Corporations, which do
not have a valid and subsisting No Objection Certificate;
(E) The Respondent No. 4-Ahmedabad Municipal Corporation
is directed to place on record by way of an affidavit, the details
of all the private hospitals which have not complied with the
directions issued in Paragraph No. 23(14) of our earlier Order
dated 15.12.2020;
(F) The Respondent No. 4-Ahmedabad Municipal Corporation
C/WPPIL/118/2020 ORDER
is directed to place on record the photocopies of the No
Objection Certificates issued to all the hospitals located within
the jurisdictional limits of Ahmedabad Municipal Corporation
signed and certified by the Competent Authority within a
period of 10 days from the date of the receipt of this order.
One set of such photocopies shall also be furnished to the
party-in-person.
(G) The Ahmedabad Municipal Corporation is directed not to
remove or open the seals applied at the premises of the Shrey
Hospital without the permission of this Court and shall not
permit the Management to once again start with the
functioning of the Hospital without the permission of this Court.
(H) The Respondents are directed to take immediate action
in respect of the 5199 schools in the State of Gujarat which
admittedly do not have a valid and subsisting No Objection
Certificate with regard to the Fire Prevention and Protection
Systems in the State of Gujarat, more particularly considering
the safety and well being of the students studying in the
schools including the teachers, management and the staff
working therein;
(I) We request the Learned Advocate General to kindly take
remedial steps in respect of Section 3(ii)(k) of the Ordinance at
Page 771, and with regard to Rule 2(2) in the Notification at
Page 778;
(J) For the present, we are not going into the issue as
regards the criminal prosecution instituted against the
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accused persons with respect to the fire at the Shrey Hospital.
It is not for this Court to determine, at this stage, whether the
offence is one of rash and negligent act punishable under
Section 304A of the Indian Penal Code or is one of culpable
homicide not amounting to murder punishable under Section
304 of the Indian Penal Code. The Investigating Agency has
rightly or wrongly filed the charge-sheet for the offence
punishable under Section 304A of the Indian Penal Code.
However, this issue can be gone into by the Trial Court even
at the time of framing of the charge. At any stage of the trial
before the judgment is pronounced, the Trial Court is also
empowered to add or alter the charge in exercise of power
under Section 216 of the Cr.P.C. Be that as it may, the charge-
sheet has already been filed culminating in the Criminal Case
No.75736 of 2020. We are informed that the criminal case,
referred to above, is pending in the court of the Metropolitan
Magistrate, Court No.23. We are further informed that the said
case, as on date, is for issue of summons to the accused
persons. We take notice of the fact that Section 304A of the
IPC is a summons triable case and no formal charge need to be
framed. All that is required in law is to record the plea of the
accused and, thereafter, start with the recording of the
evidence. Having regard to the facts and circumstances of the
case, we direct that the Criminal Case No.75736 of 2020,
pending in the court of the Metropolitan Magistrate, Court
No.23, shall be transferred to the court of the Chief
Metropolitan Magistrate, Ahmedabad. The Chief Metropolitan
Magistrate, Ahmedabad shall take charge of the criminal case,
referred to above, and see to it that the summons is served
upon the accused persons at the earliest. If there is any
attempt on the part of any of the accused to evade the service
C/WPPIL/118/2020 ORDER
of summons, then the Trial Court shall take appropriate steps
in that regard. We do not want the trial to get delayed in any
manner. In the course of the trial, it shall be open for the
prosecution including the family members of the victims to
raise the issue as regards the exact nature of the offence. On
the next date of hearing, this Court shall be apprised of the
further developments as regards the criminal case registered
against the accused persons.
(K) The Respondents are hereby directed to file an Affidavit
indicating compliance of all the other directions issued by this
Court;
Clinical Establishments (Registration and Regulation)
Act, 2010
20. At this stage, we would like to observe as regards the
Clinical Establishments (Registration and Regulation) Act,
2010. In the past, on many occasions, we have tried to impress
upon the State Government to adopt the Act 2010 and frame
appropriate rules with a view to provide the minimum
standards of medical facilities and services to the people at
large. The Act 2010 has been enacted by the Parliament to
provide for the registration and regulation of the clinical
establishments in the country with a view to prescribe the
minimum standards of facilities and services to be provided by
them with a view to achieve the mandate of Article 47 of the
Constitution of India. The said Act has been enacted by the
Parliament in exercise of powers conferred under Article 252(1)
of the Constitution of India pursuant to the resolutions passed
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by the Houses of the Legislatures of the States of Arunachal
Pradesh, Himachal Pradesh, Mizoram and Sikkim to regulate
the aforesaid matter by the Parliament by law. The said Act
has taken effect in the aforesaid four States and all the Union
Territories (except the NCT of Delhi) since 1st March 2012 vide
the Gazette Notification dated 28th February 2012. As per the
provisions of Article 252(1) of the Constitution of India, even
after the enactment of the Act by the Parliament, it is open for
any of the other States to adopt the Act by merely passing a
resolution to that effect in its Legislature.
THE CLINICAL ESTABLISHMENTS (REGISTRATION
AND REGULATION) ACT, 2010
What does 'clinical establishment' mean ?
A clinical establishment means a hospital, maternity home,
nursing home, dispensary, clinic, sanatorium, or any other
institution that offers services, facilities requiring diagnosis,
treatment or care for illness, injury, deformity, abnormality or
pregnancy in any recognized system of medicine. It also
includes laboratory and diagnostic centre or any other place
where pathological, bacteriological, genetic, radiological,
chemical, biological investigations or other services with aid of
laboratory or other medical equipment are carried out. (Refer
to the Definition in the CEA 2010.)
Who is covered under this Act ?
All clinical establishments across all recognized systems of
medicine (i.e. Allopathy, Ayurveda, Yoga, Naturopathy,
Homoeopathy, Siddha, Unani and Sowa Rigpa) in both public
C/WPPIL/118/2020 ORDER
and private sector are covered under this Act. This includes, all
establishments owned, controlled or managed by the
Government, a trust (public or private), a corporation
registered under a Central, Provincial or State Act (whether or
not owned by the Government), a local authority and a single
doctor.
We may give a fair idea about the salient features
of the Act 2010 :
(i) The Act:
(a) Assists in generation of reliable and comprehensive
database (or registry) for all types of clinical
establishments in the country at district, state and
national level.
(b) Helps classify various types of clinical establishments
into categories & determine category wise basic
minimum standards.
(c) Defines basic minimum standards for operation, using
participatory and consultative approach to ensure
uniformity across all establishments. The minimum
standards indicate basic standards which are mandatory
and certain standards which are desirable.
(d) Assists Government in obtaining information and data
required from clinical establishments for public health
interventions including outbreak and disaster
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management
(ii) It establishes the multi-stakeholder bodies, namely,
National Council for Clinical Establishments at National level,
State Council for clinical establishments at State level and
District Registration Authority at each district. The
implementation of the Act is by the respective State through
the State Council and District Registration Authority.
(iii) The Act allows for two-step process of registration -
provisional and permanent registration. Provisional registration
is done through a process of self-declaration, without any
inquiry or inspection. Permanent registration would be
undertaken after categorization, classification and notification
of category wise minimum standards.
(iv) The Act places the entire process of registration and the
data of clinical establishments in the public domain which
ensures transparency.
(v) Details of charges, facilities available would be
prominently displayed at a conspicuous place at each
establishment.
(vi) Registry of clinical establishments would aid in policy
formulation and resource allocation.
(vii) Cancellation of registration would occur at any time, if
conditions for registration are not complied with. (viii) Clinical
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Establishment to provide emergency medical treatment within
staff and facilities available.
(ix) The Act may control or act as deterrent against quackery
by introducing registration which is applicable only to clinical
establishments of recognized systems of medicine and no one
can run a clinical establishment without registration.
(x) It lays down provisions for healthcare providers to
maintain records and reporting as prescribed and provide
information and statistics that may be asked for by the
authority.
What is the role of the Central Government and State
Governments in implementation of the Act ?
It is true that health is a State subject and, therefore, it is not
enforced on any State. The State has to adopt the Act by
passing a resolution in the Legislature Assembly of the State.
The Bill was passed by the Parliament after four States agreed
to enforce the Act after the notification.
As per the provisions of the Act, the Central Government is
responsible for :
● Notification of the Act (Completed)
● Notification of the National Council and Rules for the
functioning (Completed).
● Classification & Categorization of the Clinical
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Establishments by Central Government based on
the recommendations of the National Council
(Completed).
● Establish Minimum Standards for the different
categories of Clinical Establishments based on
the recommendations of the National Council.
● Develop and prescribe the form and manner in
which the registry (National, State & District level)
is to be maintained.
● Provide oversight and assistance to the States and
UTs for the implementation of the CEA 2010
including capacity building.
● Assistance for the drafting of Rules under Section
54 of the Act. Draft of Model Rules circulated to all
implementing States/UTs.
● Assist States & UTs in adoption of the proposed web
based registration system and off-line registration
systems.
● Assistance to the State & UTs Councils for any other
matter that may be required.
The State Governments would be responsible for :
● Notification of State Rules under Section 54 of the
Act Constitute & notify the State/Union Territory
Council of Clinical Establishments.
● Constitute & notify District Registration Authorities
in all districts.
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● Begin the process of provisional registration.
● Identification and notification of Registrars of Clinical
Establishment at State Level (Director of Health Services)
and District level (District Health Officer).
● Disseminate information about the Act and Rules at
various levels and among stakeholders.
What is the Objective of the Act ?
The purpose of Clinical Establishment Act is to make available
a database of Clinical Establishments which are authorized to
function. Therefore the overall objective is improvement in
public health quality by eliminating quacks.
Other objectives are :
● To prescribe basic minimum standards for different
categories of clinical establishments for ensuring
provision of proper health-care by the clinical
establishments.
● To collect the required statistics from clinical
establishments for policy formulations, planning,
implementation, response and evaluation.
What is the benefit for the clinical establishment by
registration under the Act ?
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• Provisional Registration is without any inquiry or
inspection, on the basis of the information submitted by
the establishment.
• Registration will also help isolate and identify the
hundreds of thousands of quacks that are playing havoc
with the lives of millions of people all over the country.
• Once in place, the system of registration will help in
improving the standards of health-care establishments
within a couple of years. It will also bring about some
uniformity in the standards of care across the country.
• Registration will help the Clinical Establishment become
part of district, state and National registry and help
government to collect necessary inventory for better
health-care management and allocation of infra
structure, human resources, equipment's, logistics etc.
• There will be enhanced trust of patients in the Clinical
Establishments registered under the Act, which indirectly
will augment their market value.
What is the benefit for patients ?
• Patients will be provided improved quality of health-care
and patient safety will be ensured through compliance to
Minimum standards, Standard Treatment Guidelines and
preventing unqualified persons from running Clinical
Establishments.
• Better management of Emergency medical conditions.
• Details of charges, facilities available would be
prominently displayed at a conspicuous place at each
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establishment so clinical establishments will not charge
exorbitantly as is happening in many cases currently.
• Patients are assured of proper health-care by Clinical
Establishment registered under the Act.
21. We once again impress upon the State Government to
look into this issue and see to it that the State of Gujarat also
adopts the Act 2010 by passing an appropriate resolution to
that effect in its Legislature and thereafter frame appropriate
rules.
22. Since decades, the unorganized health sector has created
major hurdles in the availability, accessibility and affordability
of health-care to the common people. This Act would prove
handy, as this would ensure the minimum standards to all the
establishments providing health-care services. The mandatory
registration of all types of health-care provisions will reduce
quackery. There will be standardization of infrastructure, man
power and working systems.
23. The pressure from the private health-care providers who
deliver the bulk of the health-care may create hindrances in
the way of the State Government in the implementation of the
Act 2010. The push back, if any, from the private health-care
should not deter the State Government in implementing and
adopting the Act 2010 at the earliest in the larger interest of
the people.
24. We expect the State Government to make an appropriate
statement by the next date of hearing as regards adopting the
Act 2010.
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25). Before closing this order, we may only observe that it is
extremely sad and shocking to know that there are 5199
schools in the State of Gujarat not possessing a valid and
subsisting No Objection Certificate with regard to the Fire
Prevention and Protection Systems. How is this permissible?.
How can one play with the innocent lives of the students
studying in such schools. If no steps are taken in this direction
at the earliest, then this Court may be compelled to ask the
State Government to cancel the recognition of such schools..
26) Fire safety in schools is often a neglected element in
many Indian schools and there are no rules that are set in
place for checking this aspect. The government does not
enforce fire safety and most schools still function without even
the basic safety amenities.
27) Schools must step up and take the responsibility to
ensure that all possible safety precautions are maintained.
School fire safety is important for the simple reason that a
large number of children are gathered at one place and a
single fire can affect all of them. Most of the furniture in a class
room such as chairs, tables and desks are made from wood
and these can easily catch fire. The chemistry lab which
contains large quantities of flammable liquids is especially at
risk. A fire in such places can go out of control and thus, fire
safety in schools has become an extremely important issue. An
uncontrolled fire can cause not just property damage but also
huge loss in life. In case schools have a canteen, this usually
involves dealing with large containers of LPG and accidents
with these can lead to fire breakouts as well. This situation
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must also be monitored regularly to ensure fire safety in
schools.
28) Every school must take the necessary precautions in
order to prevent anything untoward from happening in the
case of an emergency, like a fire. Every floor must have a fire
extinguisher or at the very least sand banks must be set in
place. These can be used to contain the fire before it spreads.
Teachers and non-teaching staff such as peons and other
helpers must be instructed in the use of fire extinguishers. This
is of primary importance. The school must have a particular
method set in place for emergency evacuation of students and
drills must be conducted on a frequent basis. This will ensure
that students know who to reach in case of an emergency. The
school must be in contact with emergency services like the fire
and rescue department and ensure that they respond as soon
as possible in case of an emergency. Fire alarms are
expensive, however they are a necessary investment and
these may well save many lives in case of any crisis. Fire
alarms must be placed at strategic points and they must be
checked regularly. Schools are entirely responsible for the
safety of their children and they cannot expect the
government to install any fire safety provisions. Government
enforcement of fire safety in schools in India is deficient and
the schools must take it up into their own hands to do the
necessary actions.
29) The State Government, in furtherance of Articles 21 and
21A respectively of the Constitution of India, whereby the
rights of life and liberty and education have been guaranteed
C/WPPIL/118/2020 ORDER
to all school going children is committed to ensure safe
conditions within the premises of all the Government and
private schools in the State of Gujarat.
30) Whereas to achieve the objective set forth in the Right of
Children to Free and Compulsory Education Act, 2009 and in
compliance of the direction issued by the Apex Court in the
Writ Petition (Civil) No. 483 of 2004 titled as Avinash
Mehrotra v/s Union of India & others, the Haryana State
Government has notified a State Policy on the "Safety
Measures in Government and Private Aided & Un-aided
Schools" situate in the State of Haryana.
31) All Government and Private Aided & Un-aided Schools
situate in Haryana have been directed to put in place the
following minimum safety standards, in addition to those
enshrined in the National Building Code of India, 2005, in
particular Part IV - Fire & Life Safety and Code of Practice of
Fire Safety in Educational Institutions (IS 14435:1997) of the
Bureau of Indian Standards, which are enumerated
hereinbelow-
"1. DISTRICT EDUCATION COMMITTEE
a) Each District in the State shall have a District
Education (Safety Measures in Schools) Committee
under the chairpersonship of the Deputy Commissioner
with the District Education Officer as the Member
Secretary and District Elementary Education Officer as
the Additional Member Secretary. The other members
shall be Fire Station Officer, Civil Surgeon,
Superintending Engineer or his nominee, Executive
Officer of Municipal Council, District Town Planner and
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two representatives of Private Schools and any other
person as the Deputy Commissioner may deem fit.
b) The District Education (Safety Measures in Schools)
Committee will be responsible for carrying out the
objectives set forth in this policy and ensure compliance
of all the conditions mentioned herein, in letter & spirit.
c) The District Education (Safety Measures in Schools)
Committee will periodically carry out awareness
campaign among the students and teachers and prepare
publicity material pertaining to prevention & control of
outbreak of fire and other similar calamities for
distribution in the area. Expenditure to be incurred
for this purpose will be provided in the annual budget of
Education Department, and kept at the disposal of
Member Secretary.
d) The District Education (Safety Measures in Schools)
Committee will ensure that all the new schools in the
district have a duly certified building plan and Structural
Stability Certificate from a Government certified
engineer. All the existing schools will also be required to
take appropriate steps to render the school buildings
safe for the students, and obtain a certificate from the
relevant authority within a period of one year.
e) The District Education (Safety Measures in
Schools) Committee will take steps to get the schools
inspected at regular intervals for ensuring the adherence
to the school building specifications as envisaged in the
National Building Code of India, 2005 and other
connected provisions as enumerated herein. Expenditure
to be incurred, if any, should be demanded from the
Education Department in respect of Government
Schools and from private Management in respect of
private schools.
2. FIRE SAFETY MEASURES
a) Fire Extinguishers of ISI mark of adequate capacity
and numbers should be provided in eye-catching spots
in the school building. Fire Extinguishers are to be
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installed in all Government, Private aided and un-
aided schools immediately.
In Government Schools, fire extinguishers will be
purchased from funds available in the school itself i.e.
Child Welfare Fund/ Health Fund /Building Fund etc. Till
the time such fire extinguishers are purchased and
installed, sufficient number of metal buckets filled with
sand and water will be immediately installed in eye-
catching spots of the school building.
b) First Aid Kits will be kept in schools to meet out any
eventuality. A list of items to be kept in the First Aid Kit is
appended herewith as 'A'.
c) Emergency telephone numbers and list of persons to
be contacted in case of any eventuality shall be
displayed on the notice board and other prominent
places in the school premises.
d) Mock drills will be conducted regularly. Wherever
possible fire alarm may be provided in those schools
which have large infrastructure and science laboratories.
e) All electrical wiring and equipment will be got
inspected and if found defective will be replaced with ISI
mark equipments.
f) No High Tension Lines should run inside or over the
premises of a school. Such lines, if existing, should be
immediately shifted by bringing the matter to the notice
of the District Education Committee.
3. TRAINING OF SCHOOL STAFF & STUDENTS
a) The State Council of Educational Research & Training
(SCERT) will re-design the curriculum of in-service
training for teachers so as to include inputs on Safety
Measures for preventing and tackling outbreak of fire and
other similar calamities.
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b) The District Institutes of Education & Training
(DIETs) will also likewise take steps to appropriately
modify their curriculum for pre-service & in-service
training for teachers.
c) Fire fighting training to all school staff and students
from 6th to 12th standard will be imparted . They will also
be trained in providing emergency first aid treatment.
Training to handle fire safety equipments, emergency
evacuation and protection in the event of fire and any
other emergency would be arranged to be imparted
through the Fire & Emergency Wing or any other agency
as decided by the District Education Committee.
d) Emergency Response Mock Drills will be conducted
at regular intervals to train the students and school staff.
e) Fire Safety Day will be observed every year on 14th
April with awareness programs and fire safety drills in
collaboration with the Fire & Emergency Wing or any
other agency as decided by the District Education
Committee.
f) Special lectures on Safety Awareness will be conducted
from
time to time.
4. SCHOOL BUILDING SPECIFICATIONS
a) All new School Buildings shall preferably be an "A"
class construction with brick/stone masonry walls with
RCC roofing. However, where it is not possible to provide
RCC roofing only non-combustible fire proof heat
resistance material should be used. However,
appropriate steps will be taken to ensure that all old
school buildings are adequately repaired to render them
safe for the students.
b) Nursery and Elementary Schools shall be housed in
single- storied buildings. The maximum number of floors
in High & Senior Secondary School buildings, as far as
possible, will be restricted to three including the ground
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floor.
c) The school building shall be kept free from
inflammable and toxic material which, if necessary, shall
be stored away from the school building.
d) The staircases, exits or escape routes, shall adhere to
the provisions specified in the National Building Code of
India-2005 to ensure quick evacuation or dispersal of
children.
e) The orientation of the buildings shall be in such a
manner that proper air circulation and natural lighting is
available with open space all around the building as far
as possible.
f) Existing school buildings shall be provided with
additional doors in the main entrances as well as the
class rooms, if required. The size of the main exit and
class room doors should be enlarged, if found
inadequate.
g) School buildings and students should be insured
against fire and natural calamities with an Insurance
company.
h) Kitchen and other activities involving use of fire should
be carried out in a secure and safe location away from
the main school building.
i) Provision of water tank and separate piping from the
tank with hose reel to the ground floor and first floor will
be made.
5. CLEARANCES AND CERTIFICATES
a) Every school shall have to furnish an NOC from the
Fire & Emergency Wing or any other agency to be
authorized by the District Education Committee in this
behalf as a mandatory requirement for granting
permission for establishing or continuation of a school
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and granting permanent recognition.
b) Periodical inspection would be mandatory for
all Government and Private Aided and Un-aided Schools
as may be decided by the District Education Committee.
c) All the new schools in the district shall have a duly
certified building plan and Structural Stability Certificate
from a Government certified engineer. However, all the
old existing schools shall be required to take appropriate
steps to render the school buildings safe for the students.
6. MISCELLANEOUS
a) The Heads of the Institutions and the President of the
Management Committee shall be accountable for any
lapse whatsoever under the State Policy.
b) The District Education (Safety Measures in
Schools) Committee shall take all appropriate steps as
deemed necessary to monitor the adherence to the
safety measures as enumerated herein by all the
Government and Private Schools functioning under their
jurisdiction.
c) The institutional heads of all the Government Schools
in the State may assess their financial requirement as
per the provisions of this policy and raise demand
through the District Education Officer or District
Elementary Education Officer as the case may be so that
the requisite funds are released by the HQ.
d) Any dereliction in the discharge of obligations as
enumerated hereinabove will attract immediate action
as per law against the concerned institutional heads and
the management of the private schools as the case may
be."
32) We have cited the instance of State of Haryana so that
the Government of Gujarat may also appropriately consider to
frame and implement such regulations in the larger interest of
the students, teachers and other staff members. The State of
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Gujarat should also consider prescribing such minimum safety
standards, as referred to above.
33) The directions issued by this Court vide order dated 15th
December, 2020 shall continue to operate and the newly
impleaded Corporations shall also start implementing all such
directions at the earliest and file an appropriate reply in that
regard by the next date of hearing.
34) For the present, we are not inclined to implead the
Ahmedabad Hospital & Nursing Home Association (AHNHA).
Although it is the stance of the Association that they would like
to be impleaded so that they may assist this Court in this
important public interest litigation, yet, prima facie, we have
gathered an impression that they are here before this Court
only to protect all such hospitals who do not have a valid NOC
and against whom the Corporation has already started taking
action by affixing seals on such hospitals.
35) Post this matter for further hearing on 16th April, 2021.
(J. B. PARDIWALA, J)
(ILESH J. VORA,J)
Vahid
