State Of Odisha & Others vs Driems Mba
2023 Latest Caselaw 14352 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                 RVWPET No. 380 of 2023

State of Odisha & others              ....            Petitioner
                                      Mr. Tarun Patnaik, A.S.C

                           -Versus-


DRIEMS MBA, Cuttack & another         ....      Opposite Parties
                                      Mr. G.M. Rath, Advocate
                  RVWPET No.391 of 2023

State of Odisha & others              ....            Petitioner
                                      Mr. Tarun Patnaik, A.S.C

                           -Versus-


DRIEMS Polytechnic, Cuttack &         ....      Opposite Parties
another
                                      Mr. G.M. Rath, Advocate

                  RVWPET No. 392 of 2023

State of Odisha & others              ....            Petitioner
                                      Mr. Tarun Patnaik, A.S.C

                           -Versus-


DRIEMS School & College of            ....      Opposite Parties
Nursing, Cuttack & others
                                      Mr. G.M. Rath, Advocate

                  RVWPET No. 393 of 2023

State of Odisha & others              ....            Petitioner
                                      Mr. Tarun Patnaik, A.S.C

                           -Versus-


DRIEMS School of Professional         ....      Opposite Parties
Studies, Cuttack & others
                                      Mr. G.M. Rath, Advocate

                                                     Page 1 of 9
                     RVWPET No. 394 of 2023

  State of Odisha & others               ....            Petitioner
                                         Mr. Tarun Patnaik, A.S.C

                              -Versus-


  DRIEMS College of Occupational &       ....      Opposite Parties
  Physiotherapy, Cuttack & another
                                         Mr. G.M. Rath, Advocate

                    RVWPET No. 395 of 2023

  State of Odisha & others               ....            Petitioner
                                         Mr. Tarun Patnaik, A.S.C

                              -Versus-


  DRIEMS Private ITI, Cuttack &          ....      Opposite Parties
  another
                                         Mr. G.M. Rath, Advocate

                     RVWPET No. 396 of 2023

  State of Odisha & others               ....            Petitioner
                                         Mr. Tarun Patnaik, A.S.C

                              -Versus-


  DRIEMS Institute of Health Sciences, ....      Opposite Parties
  Cuttack & another
                                       Mr. G.M. Rath, Advocate

           CORAM:
           JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:13.11.2023

1.

Since common question of law is involved, all the review petitions stand disposed of by the following order.

2. Instant petitions have been filed by the petitioners seeking to review the Court's common order dated 31st August, 2023 passed

in W.P.(C) No.20785, 20780, 20794, 20792, 20770, 20767 of 2023 and W.P.(C) No.20776 of 2023, whereby, letter dated 28th April, 2023 of the office of the Deputy Fire Officer, Central Range, Cuttack in rejecting the applications of opposite party No.1 institutions and decisions vis-à-vis renewal of Fire Safety Certificates have been quashed on the grounds inter alia that amendment dated 6th March, 2019 to Rule 9(12) of the Odisha Fire Prevention and Fire Safety Rules, 2017 (hereinafter referred to 'the Rules') which provides the power of exemption exercisable by the Director, Fire Services, Odisha in respect of the buildings constructed or occupied prior to the commencement of Odisha Development Authorities Act, 1982 (in short 'the ODA Act') was not pointed out which led to the passing of such order under review.

3. In fact, the opposite parties filed the writ petitions challenging the decision dated 28th April, 2023 of the authority concerned with regard to renewal of Fire Safety Certificates in its favour. It was submitted that renewal was applied for before the authority which was, however, rejected. The contention of the petitioners is that the denial as to renewal of the Fire Safety Certificates was on the ground that the building plans are required to be regularized/approved by the competent authority having jurisdiction. Furthermore, the challenge was on the premise that there is approval of the building plans by the local authorities, since the institutions situate beyond the limits of urban area and hence, no further approval was needed.

4. Considering the above grounds of the opposite parties, this Court passed the order dated 30th August, 2023 in all the writ petitions and quashed the impugned decision dated 28th April, 2023 rejecting the applications of opposite party No.1 institutions for renewal of Fire Safety Certificates. The aforesaid order under Annexure-1 is sought to be reviewed by the petitioners on the ground that Rule 9(12) of the Rules suffered an amendment on 6th

March, 2019 which allowed the authority concerned to exercise jurisdiction to examine in respect of buildings constructed or occupied prior to the commencement of the ODA Act admittedly when opposite party No.1 institutions and its construction is of the year 2013 and completed in 2016.

5. Heard Mr. Patnaik, learned ASC for the State and Mr. Rath, learned counsel for the opposite parties.

6. Mr. Patnaik, learned counsel for the State appearing for the petitioners would submit that the renewal sought for by the institutions was on the basis that the building plans received approval on 16th July, 2013 and hence, not required to submit fresh plans for renewal of its Fire Safety Certificates under Rule 14 of the Rules and in any event, Rule 9(12) thereof empowers exemption only in respect of the buildings constructed prior to commencement of the said Rules but the above provision has suffered an amendment on 6th March, 2019. It is, thus, contended that in view of such amendment vide Annexure-15, Rule 9(12) of the Rules is no more applicable. In other words, Mr. Patnaik submits that fresh approval is needed to be obtained from the competent authority, namely, District Town Planning Unit while seeking renewal of Fire Safety Certificates in respect of the institutions which had been granted under a Onetime Relaxation Scheme vide notification dated 28th August, 2020 and in so far as exemption under Rule 9(12) of the Rules is concerned, it shall be in respect of the buildings constructed or occupied prior to the commencement of the ODA Act. Since such aspect was not considered and amended Rule 9(12) of the Rules was not brought to the notice of the Court, it has led to the passing of the impugned order dated 31st August, 2023 and under such circumstances and in view of the settled principles of law on review laid down by the Apex Court in M/s. Northern India Caterers (India) Ltd. Vrs. Lt. Governor of Delhi (1980) 2 SCC 167 and in Girdhari Lal Gupta Vrs. D.H. Mehta and Another 1971(3)

SCC 189, Mr. Patnaik lastly submits that the same is to be reviewed with a direction to the opposite parties to comply to the statutory requirements seeking approval of the building plans from District Town Planning Unit as the certificates had been issued under Onetime Relaxation Scheme which has, in the meantime, expired on 29th May, 2023.

7. Mr. Rath, learned counsel for the opposite parties on the other hand submits that there is already an approved plan in place in respect of the institutions granted by the local authorities and its renewal was required in terms of Rule 14 of the Rules read with Rule 13 thereof. In other words, Mr. Rath submits that the order passed by this Court in respect of the opposite parties does not require any review. Reference is made to Rule 13(3) of the Rules and Mr. Rath further submits that at the time of renewal of the Fire Safety Certificates, the authority concerned on being satisfied about the confirmity of the building or premises or occupancy to the approved plan etc. may issue certificate on receipt of application subject to adequacy and operability of fire prevention and fire safety measures and also require the owner to rectify the deficiencies or provide such additional measures necessary within a specified time and hence, in view of such exercise to be undertaken, renewal should have been allowed as per Rule 14 of the Rules, taking cognizance of which, this Court passed the order dated 31st August, 2023 which, therefore, does not call for any interference.

8. Admittedly, the Fire Safety Certificates have been issued in the year 2021 in respect of the opposite parties for a period of three years which expired on 29th May, 203. From Ext.3, it is suggested that the plans need to be regularized/approved by the competent Plan Approving Authority in view of the notification dated 28th August, 2020 of the Home Department, Government of Odisha including the cases of Onetime Relaxation Scheme. It is not in dispute that the institutions were constructed in 2013 with its

completion in the year 2016. As per notification dated 15th February, 2020 of the Government of Odisha in Housing and Urban Development Department, the notification dated 20th May, 2016 of the Panchayati Raj Department superseded by notification dated 7th June, 2018 sets the guidelines vis-à-vis projects which have come up after 2016 but in respect of projects prior to 2016, in the absence of any instruction, approval of building plan/project in the rural areas were accorded by BDOs and PRIs but in order to streamline all such projects, jurisdiction was vested in the District Urban Development Authority. According to Mr. Patnaik, learned ASC for the State, the intention of the State Government is loud and clear which is to the effect that the building plans approved by the BDOs in rural areas need ratification by the specialized Authority as per the Rules. Furthermore, notification dated 15th February, 2020 as at Annexure-8 series deals with the details of the procedure and powers of the DUDA vis-à-vis approval of the layouts/building plans in co-ordination with the District Town Planning Unit.

9. In So far as the notification dated 28th August, 2020 of the Home Department is concerned, it is also made to appear that in case of building having no approved plan, the owner or occupier shall submit the building plan as per actual construction being signed by himself and a registered Architect and the authorized members of Fire Service shall inspect the building on the basis of the said plan and if the building or occupancy fulfils other requirements of relaxation scheme of the Orissa Fire Service or norms of building by law or Planning Authority etc. such case may be considered for issuance of Fire Safety Certificate. In fact, such notification relates to relaxation of planning and building norms and deals with cases where buildings do not have approved plan and have been provided with the Fire Safety Certificates under the relaxation scheme. Having regard to the notification dated 6th March, 2019 of the Home Department and

amendment to Rule 9(12) of the Rules, it is also made to appear that the authority to grant exemption from the conditions prescribed under the Rules without sacrificing reasonable safety has been given effect to in respect of existing buildings constructed or occupied prior to the commencement of the ODA Act. In other words, any such building or structure constructed or occupied prior to the commencement of the ODA Act, such exemption may apply and jurisdiction be exercised by the Director of Fire Safety. In that view of the matter, as rightly pointed out by Mr. Patnaik, the institutions would not fall within the purview of Rule 9(12) of the Rules after the amendment vide notification dated 6th March, 2019 of the Home Department.

10. As earlier discussed, in order to streamline the projects, the District Urban Development Authority has been vested with the jurisdiction to approve the building plans. It is, thus, quite clear that the building plans approved by the BDOs are needed to be ratified and approved again by the District Town Planning Unit for consideration of renewal of Fire Safety Certificates. Having regard to the discussions as aforesaid, the Court reaches at a logical conclusion that a whole set of guidelines have been laid down vis-à-vis the renewal of Fire Safety Certificate which requires approval of the building plans by the competent Authority even in respect of plans earlier approved by the BDOs in respect of rural areas. Since notification dated 6th March, 2019 i.e. Annexrue-15 was not drawn to the attention of the Court, it had no occasion to deal with the same and hence, therefore, is of the humble view that such exemption in terms of Rule 9(12) of the Rules is not to apply to the opposite parties as the institutions came into existence long after the commencement of the ODA Act.

11. Next consideration would be whether the Court has the jurisdiction to review the order dated 31st August, 2023. In this regard, Mr. Patnaik, learned ASC for the State refers to the

decisions (supra) to contend that in the present case, review is permissible. In M/s. Northern India Caterers (India) Ltd. (supra), the Apex Court held and observed that a party is not entitled to seek review merely for the purpose of a rehearing and fresh decision in the matter. It has been held therein that the normal principle is that a judgment pronounced is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so, for instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, it has to review own judgment; the Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. In a civil proceeding, application for review is entertained only on the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure and in a criminal case, on the ground of an error apparent on the face of record but whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. In Girdhari Lal Gupta (supra), a similar question arose for determination with regard to review of a decision where the learned counsel had omitted to bring to the notice of the Apex Court, a relevant provision of the Foreign Exchange Regulation Act and therein, it was concluded that review is not to be denied as it is not a case of mistaken judgment as at the time of hearing and argument, its attention was not brought to a specific provision of the said Act.

12. Considering the decisions (supra) and submissions of learned counsel for the respective parties, as in the present case, amendment to Rule 9(12) of the Rules was beyond the consideration of the Court, which excluded cases in respect of

buildings in existence later to the commencement of the ODA Act, the opposite parties are therefore to obtain building plans approved by the competent Authority while seeking renewal of Fire Safety Certificates and hence, a case of review is made out.

13. Accordingly, it is ordered.

14. In the result, the review petitions stand allowed. As a necessary corollary, the Courts' common order dated 31st August, 2023 is recalled for the reasons discussed herein above leaving it open for the opposite parties to ensure compliance of the statutory provisions of the Rules vis-à-vis grant/renewal of Fire Safety Certificates with the building plans duly ratified by approaching the designated Authority.

(R.K. Pattanaik) Judge

Balaram

Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Nov-2023 19:08:39