Delhi High Court
All India Lawyers Union (Delhi Unit) vs Union Of India And Others on 14 September, 2001
Equivalent citations: 93(2001)DLT501, 2002(61)DRJ92, AIR 2002 DELHI 107, (2001) 93 DLT 501 (2002) 61 DRJ 92, (2002) 61 DRJ 92
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
JUDGMENT Anil Dev Singh, J.
1. By this order we propose to deal with the question whether or not the Chemical trade is to be shifted from the walled city. The traders are not interested in moving out of the walled city as in their present location they are well entrenched in the Chemical trade. The question which arises for our consideration is whether the traders are justified in their stand.
2. The walled city is to historical importance. It once represented the culture of Delhi and was a part of the traditional housing. The ambience and the beauty of the city has been destroyed by over population and large scale commercial use of the same. As a result of very population and large scale business transactions which take place in the area it is infested with heavy traffic. As per the Master Plan for Delhi, August 1990, the walled city contains industrial units using acids, Chemicals and inflammable materials. It has become centre for trade in noxious and hazardous substance. The Master Plan envisages shifting of industries and trade on priority basis to the exclusive industrial areas and areas specifically earmarked for the respective trades. Congestion and the nature of various trades which are taking place have virtually turned the walled city into a death trap. This can easily be demonstrated by the fact that in and around walled city several serious incidents of fire have taken place. The ones which need to be taken note of are as per below :-
1. Fire incident of 1987 in Gandhi Gali, Tilak Bazar.
2. Fire incident of 1992 in Naya Bazar.
3. Fire incident of 1996 in Khari Baoli.
4. Fire incident of May 31, 1999 at Lal Kuan.
Until the year 1996, at least 55 people lost their lives in the major fires which took place in the area. Besides, 500 shops were reduced to ashes. In the last incident of major fire at Lal Kuan, 57 persons lost their lives while 27 suffered burn injuries ranging from minor to serious ones. The fires started in the godown of M/s. New Aligarh Transport Company, 898, Lal Kaun, New Delhi. A magisterial enquiry into the incident was ordered by the Government. The enquiry report reveals that the incident took place due to the negligence on the part of M/s. New Aligarh Transport Company in handling highly explosive Chemicals stored in its godown. the report also pints out that the area is heavily congested and needs to be decongested expeditiously. In order to achieve the object of decongestion and to avert tragedies like the Lal Kuan fire in future, the report suggests that steps should be taken to shift the wholesale trade from the walled city. At this stage it will be apposite to set out para 2 of the report to suggestions for remedial measures. Para 2 reads as follows:-
"2. The area may be taken immediately to shift the wholesale trade from Walled City. Presently the following wholesale trades operate from Walled City:
[a] Chemicals.
[b] Foodgrains.
[c] Kiryana.
[d] Cloth.
Prioritising them in order to hazard posed, the Chemical market must , the first one to be shifted from the Walled City without any delay. This is a virtual tinderbox. In case of any accident in this market, the consequences might be terribly fatal and catastrophic.
XX XX XX"
3. The incident of fire dated May 31, 1999 was also subject-matter or our order dated July 10, 2000. It was pointed out to us by the counsel appearing for the M.C.D. and the NCT of Delhi during the hearing of July 10, 2000 that the magisterial enquiry report had inter alia recommended that heavily congested area of old Delhi needs to be decongested and the Chemical market from the walled city needs to be shifted on priority basis. During that hearing it was also pointed out that the market is to be shifted to Gazipur area. At that hearing we were not told by the D.D.A. and the M.C.D. that there was one more site, namely, Holambi Kalan. Which could be considered for shifting the trade. They pointed out that the land at Gazipur had been identified. They also stated that the area was to be developed by the D.D.A. We felt that despite the vulnerability of the walled city to fires the authorities were only talking of plans but nothing concrete was being done by them. Therefore, we expressed the view that even though the lives of the citizens were at stake the authorities were moving at a snail's space. In the circumstances, on July 10, 2000 we directly the D.D.A. to give top priority to the development of Gazipur area so that the wholesale Chemical market could be shifted out of the city. We also directed that the entire exercise of development and allotment of sites at Gazipur should be completed by the D.D.A. within a period of three months and the shifting of market should take place within four months. At the same time, we directed that the transporters cannot be allowed to function from the walled city. By the same order we had directed the M.C.D. to conduct survey of the area in order to locate premises where unauthorised trade and storage of dangerous and hazardous Chemicals was taking place.
4. On September 12, 2000 we were told by Ms. Salwan, learned counsel for the D.D.A., that Chemical traders did not want the whole Chemical market to be shifted to Gazipur. They discussed the matter with the Commissioner, M.C.D., and the Vice Chairman, D.D.A. and their request for shifting the same to Holambi Kalan was accepted. She pointed out that keeping in view the wishes of the traders it was decided to develop Holambi Kalan for the aforesaid purpose. We pointed out in order of September 12, 2000 that the relocation of market cannot brook and delay. We directed the D.D.A. to complete the development of the area within the time granted by order dated July 10, 2000.
5. At this stage we may turn to the affidavit of the Chief Engineer (NZ), D.D.A. filed on November 10, 2000, to ascertain the perception of the authorities regarding reasons for the recurrence of fire incidents in the area and the remedial steps taken by them to combat the situation. According to the affidavit, a meeting was taken by the then Lt. Governor of Delhi with the officers of the D.D.A. and the M.C.D. on June 1, 1999, after the incident of fire which took place on May 31, 1999 in Lal Kuan area, on the subject of shifting of Chemical trade from the walled city to Freight Complex at Gazipur.
6. The minutes of the meeting which are annexed with the aforesaid affidavit reveal that there were essentially the following five major wholesale trades which were taking place in the walled city:
1. Foodgrains,
2. Kiryana,
3. Paper,
4. Chemical, and
5. Cloth.
It was felt that the trade in non-pharmaceutical based Chemicals being the most hazardous should be the first one to be shifted out of the congested residential/commercial areas. It was agreed at the meeting that the shifting of the Chemical trade will cover its storage outside the walled city so that the whole of the Chemical trade may be located at one place. This was considered conducive for the growth of the trade as well as for its easy control and supervision by the Government agencies.
7. It appears that as a result of the aforesaid meeting a survey of transport companies, shops, godowns dealing with dangerous and inflammable articles located in the walled city was undertaken by a task force. The task force which conducted the survey in its report dated August 2, 1999 noticed that some of the shops dealing with hazardous Chemicals were sealed on March 14, 1993. The association of shopkeepers gave an assurance at that time that the concerned shops would either be shifted or closed by June 30,1993. The affected shopkeepers also gave affidavits and undertakings to the aforesaid effect. Pursuant to the affidavits and undertakings the shops were desealed by the M.C.D. on August 16, 1993. The survey report noted that the traders breached their undertakings. The survey report also referred to the fact that in the first instance 72 acres of land at Badli Khatta opposite Sanjay Gandhi Transport Nagar was identified for shifting the traders dealing in hazardous/inflammable Chemicals. The change of land use of the said site was approved by the Government on August 30, 1994. As per the survey this site can not be utilised in view of the judgment of the Supreme Court wherein it was ruled that sanitary land fill sites will not be used for purposes other than forestry. The survey report alluded to the fact that in October 1997 the M.C.D. requested the Principal Secretary, D.D.A., to provides alternative land for shifting the Chemicals market from the walled city. The survey report also made a mention of the aforesaid high level meeting which took place under the Chairmanship of Lt. Governor on June 1, 1999 after the Lal Kuan incident in which the Chief Minister, Delhi, was also present. The survey report referred to the discussions which took place in the aforesaid meeting. According to the task force's understanding of the minutes thereof, it was recorded in the survey report that in the meeting various measures and modalities for shifting of all Chemical godowns and shops dealing in inflammable materials and stores from the city to the Freight Complex to be developed at Gazipur by the D.D.A. were discussed and it was decided to shift the godowns of non-pharmaceutical traders dealing with inflammable articles from congested residential and commercial areas of the capital in accordance with the Master Plan of Delhi. But this is not our reading to the minutes. According to the minutes, Chemical trade was considered hazardous and it was agreed at the meeting that it needed to be shifted outside the walled city.
8. After having made the aforesaid observation, we continue with the narration of the contents of the survey report. The survey report also mentioned the constitution of a committee to identify the Chemical trades which needed to be shifted. Accordingly, a detailed survey of the dealers of the Chemicals was decided to be carried out to identify those who would be eligible to be provided with space in the new complex. Subsequently, a meeting was held on August 30, 1999 at Raj Niwas, Delhi, which was attended by the Ld. Governor and the officers of the D.D.A. In this meeting the Commissioner (Planning), D.D.A. apprised the Lt. Governor that he had taken a meeting with the representatives of the Chemical traders who expressed their reservations of shifting of the Chemical trade to Gazipur. According to him, the representatives were keen to have land at Bhalasva or Holambi Kalan near Sanjay Gandhi Transport Nagar. The minutes of the meeting recorded that the lay out of the Freight Complex was discussed and it was agreed that the Chemical trade may be shifted to Holambi Kalan.
9. At this stage it will again be necessary to turn to the affidavit of the D.D.A. filed on November 10, 2000, which records that the D.D.A., after the meeting of August 30, 1999, prepared the draft lay out plan of the complex and the same was placed before the Lt. Governor who approved the same. The plans were thereafter sent to the Screening Committee which suggested some modifications. The plans were also sent to the Chief Fire Officer and the Deputy Commissioner of Delhi, and to the Legel Department, D.D.A.
10. On December 15, 2000 it was agreed before us that the Additional Solicitor General, Commissioner MCD, Vice Chairman DDA, Chairman DVB, two representatives of the association of transporters, two representatives of Chemical merchants associations, two representative of Rang Rasayan Vyapar Sangh (Regd) shall meet to discuss the various aspects of the matter. The transporters and Chemicals traders were given liberty to give their suggestions with regard to the relocation of the offices and godowns of the transporters and Chemical traders. Pursuant to the liberty granted to the Chemical traders they presented their representations/ suggestions in the meeting held under the Chairmanship of the Vice chairman, DDA, on January 3, 2001, relating to the issue to relocation of Chemical trade to Holambi Kalan in which it was inter alia stated that the site at Badli Khatta near Sanjay Gandhi Transport Nagar is an ideal site for the storage of hazardous, obnoxious and polluted articles. It was also stated that the present site at Badli Khatta falls within C-2 Zone with is meant for storage of hazardous, obnoxious and polluted Chemicals. The representations/ suggestions listed some of the other virtues of the site. These are as follows:-
1. The site at Badli Khatta was not a sanitary land fill area.
2. It has been duly acquired by the Govt. from agriculturists.
3. The site at Badli Khatta is connected with the main National Highway.
4. Badli Khatta falls near the Sanjay Gandhi Transport Nagar where transporters have been located and therefore the site is more convenient and viable.
5. It is also suggested that the peripheral/surrounding land should not be used for residential purposes.
The suggestions/ representations were considered at the aforesaid meeting. It is not necessary to notice the minutes of the meeting in extenso. For the purposes of the issue which concerns us it is sufficient to mention that the members of the association insisted that they should be shifted to Bhalasva which is about 15 kms from the city. They were informed that Bhalasva is a land fill site and as per the orders of the Supreme Court a sanitary land fill site cannot be used for any other purpose except for forestry. Therefore, it was emphasised that the said site cannot be made available for the purpose of relocating the Chemical trade. It was also pointed out that the representatives of the traders in a meeting called by the Commissioner (Planning) DDA had rejected their relocation to Gazipur Integrated Freight Complex site. The minutes recorded the fact that the work of development of infrastructural facilities at Holambi Kalan was in full swing; that more than Rupees One Crore had already been spent by them; that the project would be completed by spending another couple of crores; and that it was, therefore, not considered possible to change the location.
11. In the meeting the traders did not express any reservation regarding the relocation and shifting of the Chemical market from the walled city. They only wanted that they should be shifted to Bhalasva instead of Holambi Kalan. Contrary to their earlier stand, the traders have taken a stance before us that the trade should not be shifted from the present location. It was contended by Mr. Sethi, learned senior counsel appearing for the Chemical traders, that the matters of the association are not dealing with the hazardous Chemicals. It was also submitted that till date a list of hazardous, obnoxious and inflammable Chemicals has not been supplied by the M.C.D. even though it was stated in the survey report of the task force dated June 2, 1999 that it has identified 476 items as highly inflammable/ hazardous/obnoxious. Mr. Sethi also submitted that the members of the association are not dealing in 434 hazardous Chemicals which are listed in the Environment (Protection) Act, 1986, and there is no need to relocate them from the walled city. He also made a grievance that most of the Chemical traders located in the walled city are residing in the walled city and according to him their place of abode and their shops are in close proximity to each other. In case they are uprooted and shifted to Holambi Kalan it will cause a lot of inconvenience to them. Mr. Sethi also canvassed that the shifting of Chemical trade lock stock and barrel was not envisaged by the administration and the court cannot on its own direct the Chemical trade to be shifted out of the walled city. It was lastly contended that Holambi Kalan does not fall in C-2 Zone.
12. We have considered the submissions of Mr. Sethi. But we have not been able to persuade ourselves to accede to them and in particular the submissions of Mr. Sethi that wholesale Chemical trade does not require to be relocated from the walled city. As already pointed out several instances of fire have taken place in the walled city in which valuable lives have been lost. There were fire incidents in 1987, 1992, 1996, 1999 and 2000 due to the storage of Chemicals. After the fire of 1987 steps ought to have been taken for immediate relocation of the Chemical trade, but this was not done. Some thought was given to the question of relocation of shops/godowns and establishments dealing with dangerous/obnoxious/inflammable Chemicals by the authorities after the fire of 1993 but nothing substantial was done except that the concerned authorities selected 72 acres of land at Badli Khatta, Sanjay Gandhi Transport Nagar at G.T. Karnal Road, for shifting of Chemical market from the walled city area, but the shifting could not be effected on the ground inter alia that the site was a sanitary land fill and could be used only for the purposes of forestry in view of the directions of the Supreme Court. In 1997, the M.C.D. requested the Principal Commissioner, D.D.A., to give alternative land for shifting of Chemical market from the walled city area. It seems that after 1997 no efforts were made by the authorities to shift the Chemical market. The intertia of the authorities and the reluctance of the Chemical traders and the transporters to shift their places of business for the walled city resulted in the devastating fire which took place on May 31, 1999. In case the authorities would have acted in time and shifted the Chemical traders and the transporters form the walled city, the fire incident of 1999 could have been averted and valuable lives of 57 persons would have been saved. As already pointed out, the magisterial enquiry into the incident revealed that the fire took place because to the negligence on the part of M/s. New Aligarh Transport Company in handling the Chemicals stored in its godown. Even the magisterial enquiry recommended that the Chemical market should be shifted from the congested area of old Delhi on priority basis. In the public interest the Chemical traders and the transporters in fact ought to have volunteered themselves to shift out of the walled city. In a matter of this nature the Chemical traders and the transporters should act responsibly and they should not buy time and delay the shifting of their respective trades and offices from the walled city.
13. It is different to accept the contention of Mr. Sethi that the Chemical traders should not be relocated as they are not dealing with noxious and inflammable Chemicals. It may be recalled that in 1993 some shops dealing with hazardous Chemicals were settled on March 14, 1993. The association of shopkeeper and affected shopkeepers gave an assurance that the concerned shops would either be shifted or closed by June 30, 1993. In view of the undertaking, the shops were de-sealed, but the undertakings were breached as neither the shops were shifted from the walled city nor were they closed. The authorities also failed to take action against them. It is too late in the day to argue that the Chemical traders should be allowed to remain in the walled city and the authorities should depend upon their statement that they are not dealing with inflammable and noxious Chemicals. It is very difficult for the authorities to keep a constant vigil over the Chemical traders for preventing them for storing inflammable and noxious Chemicals. One wonders how many more lives will have to be sacrificed before the wholesale Chemical market and offices of the transporters are shifted from the walled city. It was rightly felt in the meeting taken by the Lt. Governor on June 1, 1999 that the Chemical trade should be the first one to be shifted out of the congested walled city. It is significant to note that in the meeting in January 3, 2001, which was taken by the Vice Chairman, D.D.A., in consonance with our order dated December 15, 2001, the representatives of the Chemicals traders did not suggest that they should not be shifted out of the walled city. Their only objection was that they should be shifted to Bhalasva instead of Holambi Kalan.
14. As already pointed out, pursuant to our order dated July 10, 2001 and subsequent orders extensive work has been undertaken to develop Holambi Kalan for the purpose of establishing a wholesale Chemical market outside the walled city. We are told that several crores have been sent on the project. The public interest demands that there should be no further change of site for locating the Chemical market. The convenience of the traders cannot be given pre eminence over the demands of public interest. May be the shifting of the traders out of the walled city will be a source of inconvenience to them, but human life is more important and cannot be sacrificed for the financial gain of some. Under Article 21 of the Constitution it is the bounden duty of the state to take measures to protect human life from the hazards being faced by the people in the walled city. The failure of the state to carry out that duty on their part has resulted in loss of valuable life.
15. It is the allegation of the Chemical traders that Holambi Kalan does not fall in C-2 Zone. We have considered the submission. As per the Master Plan, 37 Use Zones have been provided. Wholesale trade falls in C-2 Zone. There is nothing to show that Holambi Kalan falls outside C-2 Zone. In any case amendment of the Master Plan is not an insurmountable task. We are told by Ms. Salwan that already 7-1/2 crores of rupees have been spent in the development of the area. This expenditure was incurred with a view to relocate the Chemical market from the walled city. In the event of Holambi Kalan not falling in C-2 Zone, the D.D.A. shall take immediate steps for the amendment of the Master Plan.
16. Under Section 417(1) of the Delhi Municipal Corporation Act, 1957, no person can use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf :-
(a) any of the purposes specified in Part I of Eleventh Schedule;
(b) any purpose which is, in the opinion of the Commissioner, dangerous to life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or
(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any of those articles.
17. It is clear that according to section 417(1)(d), no person can sue any premises without a license granted by the Commissioner, M.C.D., for the purpose specified in Part II of Eleventh Schedule except for domestic use of any of those articles. Under Part II of Eleventh Schedule, item 13 specifies "Chemicals, liquid". Therefore, Chemicals in liquid form cannot be stored in any premises without a license. It is no denied that the Chemical traders do not have licenses to run their business in the walled city. Section 417 of the D.M.C. Act being statutory provision requires to be complied with. The Chemical traders cannot store the Chemicals in their respective premises which are located in the walled city without a license.
18. The Master Plant for Delhi, August 1990, also envisages shifting of the Chemical trade to areas specifically assigned for it. This is evident from the following extract from the Master Plan:-
"....In case of existing developed areas, whole sale markets, which are hazardous in nature like plastic and pvc goods, Chemicals, timber and petroleum and its products, should be shifted to the areas specifically assigned for these. In old city wholesale markets, all unauthorised encroachments projection on roads/government land should be removed to facilitate easy movement of traffic and only limited entry to the slow and fast moving vehicles provided. Further extension of the wholesale activity in the Walled City and its extension should be totally stopped."
Thus, it is evident from above that the Master Plan places wholesale markets dealing with Chemicals in the category of markets which are hazardous in nature.
19. In the circumstances, therefore, we have no hesitation in rejecting the submission advanced on behalf of the traders. WE hold that the stand of the Chemical traders is not justified.
20. In view of the aforesaid discussion, we direct that the Chemical trade be shifted from the walled city to Holambi Kalan immediately on execution (completion) of the work relating to the development of the site. Since the traders are still carrying on business of Chemical trade even without grant of licenses by the civic authority and are a party to making human life unsafe, costs need to be imposed on them. Accordingly, we direct that each Chemical traders shall deposit a sum of Rs.20,000/- in the registry of this Court within two weeks. The costs so received, shall be distributed to the victims of the Lal Kuan fire in accordance with and subject to further directions. In the first instance, the registry shall place the costs so received in a fixed deposit for a period of three months. We also direct that unless a Chemical trader furnishes proof of the deposit of costs in the registry of this Court to the allotting agency, no allotment of space shall be made in his favor. In case of MCD fails to comply with the order and makes the allotment, the Commissioner, MCD, shall be held responsible. At the same time, the M.C.D. shall seal the premises of the trader not depositing the costs.