High Court Of Delhi

Messrs Allied Publishers Private Limited V. Delhi Fire Services & Others

WP (C) 6695/2005, W.P.(C) 6696/2005. 21-04-2005

JUDGMENT

1. Rule. Counsel for the respondents waive notice of rule. With the consent of the parties, the writ petition is taken up for final disposal.

2. The present writ petition has been filed impugning the order dated 12th April, 2005 passed by the Appellate Tribunal, MCD in the appeal filed by the petitioner, challenge in this appeal was made to the order of the Chief Fire Officer dated 2nd March, 2005 whereby the entire building, portion whereof is occupied by the petitioner has been declared unsafe for want of fire safety measures. It is submitted that despite noticing the willingness of the petitioner to effect the fire safety measures at its on cost in the said portion, the Appellate Tribunal dismissed the application of the petitioner on the ground that it had limited jurisdiction and could not go into the relation between the landlord and the tenant.

3. The facts giving rise to the present petition are within a narrow compass. The petitioner is stated to be a tenant on the ground floor of the building bearing No.1/13-14 Asaf Ali Road, New Delhi-110002. The building is stated to be owned by the 4th respondent. It is submitted that the petitioners are occupying the premises for the last more than 45 years. The other floors of the building are occupied by other tenants who are paying nominal rents and for this reason the respondent No. 4 is not interested in incurring the requisite expense in undertaking the measures necessary to bring the building in compliance with the Delhi Fire Prevention and Fire Safety Act, 1986 and Rules thereunder.

4. The petitioner submits that a notice dated 18th February, 2005 was pasted by the Delhi Fire Service outside its premise. This notice was addressed to the respondent No. 4 as the owner of the building in question to show cause as to why electricity and water connections should not be disconnected, and purported to be in compliance of the order dated 23rd August, 2004 passed by a Division Bench of this court in the writ petition entitled Dr. B.L. Wadhera vs. Government of India and Ors. on the ground of failure to provide the fire safety measures in the building. According to the petitioner, despite communication dated 7th February, 2005 to the respondent No. 4 no measures were undertaken by it. The petitioner in these circumstances communicated the names and addresses of the landlord of the building to the Chief Fire Officer on the 22nd February, 2005 requesting him not to take any action as threatened.

5. On the 2nd March, 2005, an order was made by the respondent No. 5 declaring that the building was not safe for occupancy and further ordering disconnection of electricity and water supplies to the entire building including the tenanted portion occupied by the petitioner. This order was forwarded by the petitioner to the respondent No. 4 who failed to comply with the fire safety rules despite a reminder on 10th March, 2005.

6. The petitioner's electricity was disconnected on the 23rd February, 2005 pursuant to the orders passed by the respondent No. 1. The same was not restored despite representation by the petitioner to the effect that the petitioner was occupying only the ground floor portion and that the ground floor was sever able from the rest of the building. The petitioner had clearly informed the respondents that on account of failure of the respondent No. 4, it would be willing to provide safety measures and sough advice as to the measures which were required to be taken. Electricity restoration was also sought which was not granted.

7. In these circumstances the petitioner filed an appeal before the Appellate Tribunal, MCD impugning the orders of the Chief Fire Officer along with an application for interim orders. However the interim application of the petitioner was dismissed vide the order dated 6th April, 2005 which has been impugned in the present proceedings on the ground that the Tribunal did not have the jurisdiction to pass the order which was sought by the petitioner. The appeal of the petitioner is however still pending.

8. I have heard learned counsel appearing for both parties. My attention has been drawn to the provisions of the Delhi Fire Safety and Fire Prevention Act, 1986. The relevant provisions of the statute which deserve to be noticed are set out here under (j) occupier includes-

(i) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land of building in respect of which such rent is paid or is payable;

4. Measures for fire prevention and fire safety.

(1) The nominated authority shall, after the completion of the inspection of the building or premises under Section 3, record its views on the deviations from, or the contraventions of, the building bye-laws with regard to the fire prevention and fire safety measures and the inadequacy of such measures provided therein with reference to the height of the building or the nature of activities carried on in such building or premises and issue a notice to the owner or occupier of such building or premises directing him to undertake such measures as may be specified in the notice.

(2) The nominated authority shall also give a report of any inspection made by it under Section 3 to the Chief Fire Officer.

6. Provision regarding certain buildings and premises.

(1) Notwithstanding anything contained in any other law for the time being in force, the Chief Fire Officer may enter and inspect any building, the construction of which was completed or before the 6th day of June, 1983 (being the date on which the current building bye-laws had come into force) or any building which was under construction on such date if such inspection appears necessary for ascertaining the adequacy of fire prevention and fire safety measures in such building.

(2) The entry and inspection under sub-section (1) shall be done by the Chief Fire Officer in the manner laid down in Section 3.

(3) The Chief Fire Officer shall, after inspection of the building or premises under sub-section (1), and after taking into consideration-

(i) the provisions of the building bye-laws in accordance with which the plan of the said building or premises was sanctioned;

(ii) the conditions imposed, if any, by the local authority at the time of the sanction of the plan of the said building or premises; and

(iii) the minimum standards for fire prevention and fire safety measures specified for such building or premises as may be specified by rules framed under this Act, issue a notice to the owner or occupier of such building or premises stating therein the inadequacy in regard to the fire prevention and fire safety measures in it and direct the owner or occupier to undertake measures for rectifying the said inadequacy within such period as he may consider just and reasonable.

Having regard to the spirit, intendment and purpose of the enactment, it is apparent that a responsibility is vested for effecting the undertaking the fire safety measures upon the owner as well as occupancy. A discretion was given to the Chief Fire Officer to notify either of the persons. In these circumstances the petitioner, as a tenant and occupant of the portion of the premises, cannot possibly be heard to agitate that it had no responsibility in the matter.

9. In any case, before this court the petitioner has made a clear statement that it is willing to effect and undertake the fire safety measures but restricted to the portion in its occupancy and tenancy.

10. Learned counsel appearing for the respondent No. 4 has clearly submitted that respondent No. 4 is not willing to undertake these measures on account of financial inadequacy. It is contended that the rent being paid by the tenants is insufficient even to meet the property tax liability towards these premises. It is however submitted that the respondent No. 4 would have no objection if the petitioner undertook such measures at its own cost and responsibility without any liability or responsibility accruing to the respondent No.4 or creation of any rights in the petitioner for undertaking such an exercise.

11. Learned senior counsel appearing for the petitioner has also drawn my attention to the photographs placed on record of the building in question. It has been pointed out that there is no access to the upper stories from the tenanted portion. It is also submitted that the tenanted portion of the building occupied by the petitioner can be clearly and absolutely severed from the rest of the building and that the petitioner had its independent electricity and water connections which is not shared with any other occupant in the premises. It is this connection of the petitioner which has been disconnected under orders of the Chief Fire Officer.

12. Having regard to the afore stated facts and statements supported by affidavit of the petitioner, it is therefore directed that the petitioner shall deposit a sum of Rs.30, 000/- with the Chief Fire Officer within a period of five days from today. It is directed that upon receipt of such payment, the Chief Fire Officer or an officer authorised by him shall undertake an inspection of the premises of the petitioner to ensure that the portion of the tenanted premises is severable. The office of the Chief Fire Officer shall furnish a copy of the communication which is stated to have been addressed to the respondent No. 4 informing the petitioner of the measures which are required to be undertaken at the time of inspection. The petitioner shall file a written undertaking within three days in this court that the requisite measures shall be undertaken within a period of two months from today and also that the petitioner shall be responsible for any damage to life or property which may result on account of fire in the tenanted premises during such period which the fire safety measures are being installed. Oral undertaking to the afore stated effect is rendered in court today which is hereby accepted. The petitioner also undertakes that it shall ensure compartmentalization of the portion under its occupation and shall not permit any other occupant of the building to derive any advantage from the order passed by this court. The Chief Fire Officer shall cause an inspection to be conducted of the premises of the petitioner on or after the 21st June, 2005 and certify as to whether the petitioner has effected compliance of the Delhi Fire Safety and Prevention Act, 1986.

13. It is made clear that this order is being passed only in respect of the ground floor portion of the building in question which is stated to be under the tenancy of the petitioner. The respondents are at liberty to take such action in accordance with law as has been already notified to the respondent No. 4 with regard to all other portions of the building.

14. In view of the order that I have passed today, it is directed that the electricity to the connection of the petitioner shall be restored forthwith. The writ petition and the applications filed along with are allowed in the above terms. Copy of this order be given to counsel for the petitioner under signatures of Court Master.

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