Central Information Commission
Mrssuman Jain vs Gnctd on 4 September, 2014
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
(1) File No.CIC/DS/A/2013/001267SA
(2) File No.CIC/DS/A/2013/001268SA
(3) File No.CIC/DS/A/2013/001269SA
(Ms. Suman Jain Vs. Delhi Fire Service, GNCTD)
Appellant : Ms. Suman Jain
Respondent : Delhi Fire Service, GNCTD
Date of hearing : 25072014
Date of decision : 04092014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)
Referred Sections : Sections 3, 19(3) of the RTI
Act
Result : Appeal allowed
Summary: Information regarding fire safety norms is life related information. The
public authority in this case has committed a grave breach of RTI by exhibiting an
adamant attitude and denial of the information about inspection records of fire
safety norms in Delhi. It seems that the Fire Department has not learnt anything from
the worst Upahar tragedy incident which led to imposition of civil and criminal
liabilities on public servants including some of the employees of fire department.
Their attitude fortifies apprehensions of corruption in selectively applying the fire
norms and issuance of no objection certificate and using or not using the powers of
disconnecting water and power to the buildings who did not comply with the fire
safety norms. It is the duty of respondent authority to clear the apprehensions that
appellant is being victimized because she filed RTI or questioning inaction of
respondents. It is a deserving case to issue show cause notice for penalty.
1
The appellant is present along with Ms. Shobnha Aggarwal, Mr. Pranav Jain and Ms.
Darshita Aggarwal. The Public Authority is represented by Dr. T.S.Sharma, Delhi Fire
Service, Govt. of NCT of Delhi, Delhi.
2. The appellant has filed the above 3 appeals against the same Public Authority and
hence they are heard together today.
FACTS
3. The appellant submitted that through her first RTI application dated 532013 in file No. CIC/DS/A/2013/001267SA, she was seeking copy of the inspection report conducted on 10 12013 by the respondent authority at premises No.4/14A, Asaf Ali Road, New Delhi. The PIO replied by his letter dated 1932013 stating that no such information is available on record. She made first appeal dated 1142013, on which FAA by his order dated 1052013 upheld the information furnished by the PIO and disposed of the appeal.
4. In her second RTI application dated 2232013, in file No.CIC/DS/A/2013/001268SA, she was seeking information about the number of buildings in Delhi constructed prior to 1983, requiring to get Fire Safety Certificates, how many of them have been given the same and addresses of such buildings constructed before 1983 and given the fire safety certificates.
The PIO replied on 1842013 stating that with respect to point No.1, the information is voluminous and for the others, they asked the appellant to specify a particular building for such certificate. Being unsatisfied, she filed first appeal dated 152013 on which the FAA by his order dated 2152013, upheld the order of PIO and disposed of the first appeal.
5. Through her third RTI application dated 1532013 in file No. CIC/DS/A/2013/001269.
The appellant was seeking information about the addresses of the buildings located at Asaf 2 Ali Road which are required to install the fire safety measures and the details of the buildings which have been issued NOC/Fire Safety Certificate, having water tanks of capacity 50,000 liters. The PIO sent the reply by his letter dated 242013. Being unsatisfied, she made first appeal dt. 1142013 on which the FAA by his order dated 1052013 upheld the information given by the PIO and disposed of the appeal.
6. Claiming nonsatisfaction over the information furnished by the respondent authority, the appellant has filed 2nd appeal in all the three cases above.
Contentions:
7. Heard the submissions made by both the parties. The appellant submitted that out of 68 buildings at Asaf Ali Road, only one building was having fire safety measures, as seen from the web site of the respondent authority. These buildings were constructed in 1955. The appellant says that she is getting a routine reply that it is difficult to collect information, and it would divert resources disproportionately. The appellant submitted that they, having filed a PIL in the Delhi High Court, have personally undertaken to do doortodoor survey of the buildings at Asaf Ali Road and found that most of the buildings have no fire safety measures. The appellant alleged corruption on the part of the respondent authority, as they are selectively giving NOC, when there are 7 buildings which are clear on 12 points of fire safety measures, still they were not given NOC. One cannot find which building is safe from fire accidents, from the web site of the respondent authority. The Respondent Authority was authorized in 2010 to disconnect the water and power connections to the unsafe buildings, in case of noncompliance of fire safety measures, which they selectively apply, with corrupt motives. When an RTI question was asked in this regard, the Respondent authority replied to the appellant that they have disconnected water/power connections to 5 3 buildings, out of which the appellant's was one, because she has been agitating against them. The appellant suggests that they should put on the web site all the buildings in Delhi which are not having fire safety measures, just as the Delhi Municipal Corporation keeps the list of unauthorized buildings on their website. The appellant also submitted that she has received a negative reply from the respondent authority for supplying the information in the format she requested, it was supplied in the required format, when the Delhi High Court sought for the same.
8. The respondent officer, on the other hand, submitted that all the information was supplied to her and he drew the Commission's attention to its earlier decision given in the appellant's case, to which the appellant disputed.
9. Before going into the contention of the parties, it is necessary to look in to the necessary Law and judgments concerning Fire Safety which is not only the Pivotal role of Delhi Fire Service but also concerns the Life and Liberty of the residents in the building.
Hon'ble Delhi High Court in Dr. B.L. Wadhera vs. Government of National Capital Territory of Delhi and Others, [WP(C) No. 2710/1998] decided on 29.5.2003, had issued certain directions with regard to Fire safety as under: ''63. In the result after having considered all the pros and cons of this matter and having heard the learned advocates in detail on various occasions, we intend to dispose of this petition by making the following directions.
1. In all high rise buildings in Delhi and New Delhi, fire safety measures are to be provided keeping in mind provisions made in the bye laws and specific provision for fire protection in the bye laws. And as per these requirements, there must be fire safety measures in such high rise buildings, as contemplated in the bye laws and National Building Code of India, 1970.
42. In high rise buildings wherein fire safety measures are required to be provided under the bye laws, National Building Code as well as any other provision which are applicable, the builders, developers, organizers, contractors, architects and engineers, society, Association of persons etc erecting buildings shall provide fire safety measure as per bye laws and without such measures, the respondent authorities shall not grant occupancy certificate.
3. So far as the existing but unoccupied buildings and buildings under construction are concerned, the respondent authorities acting under bye laws are directed not to grant occupancy certificate unless and until sufficient fire protection system is instilled, is made operational and is certified by the Fire Officer concerned to the effect that as per by laws and as per his satisfaction fire safety measures are provided.
4. When adequate and sufficient fire safety measures are provided and made operational, authorities granting permission under building bye laws shall strictly enforce, the provisions relating to fire safety system while granting occupation certificate.
5. It is further directed that henceforth the respondent authorities shall not supply essential services to any new high rise building unless and until the building is erected in accordance with law and bye laws. All electricity supply companies (BSES Rajdhani Power Ltd, BSES Yamuna power Ltd, Delhi Power Co Ltd and North Delhi Power Ltd.) are directed in this behalf. If the builder/developer/organizer, etc, is found indulging in malpractice in giving power connection meant for construction purpose and thereby permits illegal occupation such connection shall be disconnected forthwith and immediate action shall be taken against such builder/developer/organizer etc.
6. That the Fire Officer shall carry out periodical as well as surprise checking to satisfy himself that the fire safety measure provided in the high rise buildings are provided or not. If the same are provided, such visits shall be made to find out whether the same are in working/operational condition or if the builders/developers/ owners/occupiers have made a show of providing fire safety measure, then it will be the duty of the Fire officer to call upon such occupier/developer/ owner/builder to set right the system and on failure to do so within a reasonable time, the Fire Officer shall take steps to get the essential supplies to such building , such as water, and electricity, etc. disconnected and seal the building as provided in Safety Act.
57. By a public notice, Municipal Commissioner/ Chairman NDMC shall inform the public at large who are occupying high rise buildings to provide fire safety measures within a period of four weeks from the date of publication. According to us, though for weeks time is long, we are giving four weeks time to all the occupiers to see that the occupancy will be allowed and permitted only if fire safety measures are provided in the buildings. If the fire safety measures are not provided within a period of four weeks as stated above, then the respondent authorities shall disconnect essential supplies such as water and drainage and seal the building. One must bear in mind that public notice was given earlier.
8. It is further directed that the Commissioner/ Chairman of MCD/NDMC shall write to electricity supply companies in this behalf and electricity supply company shall also disconnect electric supply if within the said period fire safety measures are not provided. It will be for electric supply companies to remain in touch with the commissioner /Chairman and vice versa.
9. It is further directed that henceforth the respondents shall provide essential services only after recording satisfaction that the erection of building is strictly in accordance with the plan. Electricity companies are also directed not to supply electricity unless Forms C and D duly signed by the competent authority are obtained and produced before the Electricity companies.
10. The Government is directed to install fire safety measures in all Government high rise buildings within four weeks from today. The respondents shall initiate disciplinary proceedings against its employees, servants, officers as some of the buildings aroccupied despite the fact that fire safety measure are not provided in accordance with the provisions in this regard.
11. The respondents shall place before the Court material indicating as to how many high rise buildings are erected after approval of the plans by the competent authority and how many buildings were provided with fire safety measures as required under the ye laws before the occupancy and what action is taken against occupiers in connection with the buildings, which are erected contrary to any bye laws or are occupied without fire safety measures. Such report be filed within three months from today. The respondents shall initiate action against erring officers and shall submit report within a period of three months.
12. Despite this order, if any building is connected with essential supplies the Commissioner MCD /Chairman NDMC, as the case may be, himself shall be held responsible and will be answerable to the court.
613. At present we are dealing with the fire safety measures in high rise buildings. We are not endorsing the view that the erection of a building is in accordance with the byelaws. Only with a view to see that since large number of people are occupying buildings erected by a builder/ contractor/ owner/association of persons/ societies/architect/ engineer, etc. we are passing this order for the safety of the occupiers of the building. It should not, therefore be understood that merely because the fire safety measures are provided the erection of building is in accordance with the byelaws. That aspect of the matter is not dealt at all.
14. It is directed that NDMC/DJB/PWD shall put all the static water tanks in working conditions within a period of three months and shall file a report about the action taken in this behalf.
15. The DDA considering the importance of fire safety shall take decision within four months for allotment of plots for fire stations. Chief Fire officer as well as local authorities, namely, DMC/NDMC shall point out the appropriate sites within a period of one month to the DDA.
16. Respondents and the Commissioner of Police are directed to clear encroachments on pavements, on roads and public streets within a period of four months for easy movements of fire engines and ambulance vans.
17. It is further directed that MCD/NDMC/ Traffic Police as also the Police Deptt shall not allow any encroachment on roads, public streets and footpath/pavements and for that purpose NDMC and MCD as well as the Commissioner of Police shall demarcae the area of jurisdiction of a particular officer and it will be the responsibility of that particular officer to see that there is no encroachment on pavement, public street and on roads. NDMC/MCD/ Commissioner of Police shall complete this exercise a d shall place before the Court report indicating the names/ designations of the officers who are to be in charge of respective areas. It will be the responsibility of these officers, in case it is found that there is encroachment on public roads or pavements.'''
10. Important provisions of Fire Safety applicable in Delhi are stated below: Delhi Fire Service Act, 2007 7 It had been enacted with the objective of ensuring effective provisions for the fire prevention and fire safety measures in certain buildings and premises in the National Capital Territory of Delhi.
Chapter V GENERAL MEASURES FOR FIRE PREVENTION AND SELF REGULATION Section 25 Preventive measures:(1) The Government may, by notification in the Official Gazette, declare any class of occupancy and pandals which, in its opinion is likely to cause a risk of fire.
(2) The Government may, by notification in the Official Gazette, require owner or occupiers, or both, of premises or buildings or erectors of pandals notified under subsection (1), to take such fire prevention and fire safety measures as may be prescribed.
Section 27 Removal of encroachments or objects or goods likely to cause a risk of fire or any obstruction to firefighting :(1) Where a notification has been issued under Section 25, it shall be lawfull for the Director or any officer of the Fire Service authorized by the Government in this behalf to direct the removal of encroachments or objects or goods likely to cause a risk of fire or any obstruction to fire fighting, to a place of safety, and on failure of the owner, occupier or erector, as the case may be, to do so, the Director or such officer may, after giving the owner or occupier or erector, as the case may be, a reasonable opportunity of making representation, report the matter to the Sub Divisional Magistrate,in whose territorial jurisdiction the premises or building or pandal is situated, requesting to adjudicate the matter :
Provided that where the Director considers such encroachments or objects or goods to be an imminent cause of risk of fire or obstruction to fire fighting, he may direct the owner or the occupier or erector of such premises or building to remove the encroachments or objects or goods forthwith and report the matter to the SubDivisional Magistrate accordingly.
(2) On receipt of a report under subsection (1), the SubDivisional Magistrate shall give, by means of a notice served in such manner as he may think fit, a reasonable opportunity of showing cause against the removal of encroachment or objects or goods likely to cause a risk of fire or obstruction to fire fighting.
(3) After giving the owner or occupier or erector, as the case may be, a reasonable opportunity of making representation under subsection (2), the SubDivisional Magistrate may make an order to seize, detain or remove such encroachments or objects or goods.
(4) The person charged with the execution of the order as made in subsection (3) shall forthwith make an inventory of the objects and goods which he seizes under such order, and shall, at the same time, give a written notice as may be prescribed in this behalf, to the person in possession thereof at the time of seizure, that the said objects or goods will besold as therein mentioned if the same are not claimed within the period stipulated in the said notice.8
(5) On the failure of the person in whose possession the objects or goods were at the time of seizure to claim the seized goods pursuant to notice given under subsection (4), the SubDivisional Magistrate shall sell them accordingly by public auction.
(6) Any person aggrieved by any notice or order of the SubDivisional Magistrate may, within thirty days from the date of such order, prefer an appeal to the Appellate Authority.
Provided that the Appellate Authority may entertain an appeal after the expiry of the said period of thirty days if he is satisfied that there was sufficient cause for no filing it within that period.
(7) An appeal to the Appellate Authority shall be made in such form and shall be accompanied by a copy of the notice or order appealed against and by such fees as may be prescribed :
(8) An order of the Appellate Authority on an appeal under subsection (7) shall be final.
Section 32 Special provision for multistoried building: Notwithstanding anything to the contrary contained in this Act, the multistories buildings shall be governed by the provisions for the fire prevention and fire safety measures hereinafter stipulated.
Section 33 Inspection of buildings, premises, etc: (1) The nominated authority may, after giving three hours notice to the occupier, or if there be no occupier, to the owner of any building having such height as may be specified by rules framed under this Act or premises, enter and inspect the said building or premises at any time between sunrise and sunset where such inspection appears necessary for ascertaining the adequacy or contravention of fire protection and fire safety measures :
Provided that the nominated authority may enter into and inspect any building or premises at any time if it appears to itto be expedient and necessary to do so in order to ensure safety of life and property.
(2) The nominated authority shall be provided with all possible assistance by the owner or occupier, as the case may be, of the building or premises for carrying out the inspection under subsection (1).
(3) When any building or premises used as a human dwelling is entered under subsection (1) due regard shall be paid to the social and religious sentiments of the occupiers; and, before any apartment in the actual occupancy of any women who, according to the custom does not appear in public, is entered under subsection (1), notice shall be give toher that she is at liberty to withdraw, and every reasonable facility shall be afforded to her for withdrawing.
Section 34 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 33 record its views or the deviations from or the contravention of the building byelaws 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 33 to the Director.
9Section 35 Provision regarding certain building and premises (1) Notwithstanding anything contained in any other law for time being in force the Director or the nominated authority may enter and inspect any building, the construction of which was completed on or before the commencement of this Act or any building which was under construction on such date in such inspection appears necessary for ascertaining the adequacy of fire prevention and fire safety measures in such buildings.
(2) The entry and inspection under subsection (1) shall be done by the Director or the nominated authority in the manner laid down in Section 33.
(3) The Director or the nominated authority, as the case may be, shall, after inspection of the building or premises under subsection (1), and after taking into consideration.(i) the provisions of the building byelaws in accordance with which the plan of this 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 the period as he may consider just and reasonable.
(4) The nominated authority shall also give a report of any inspection made by it under subsection (1) to the Director.
Section 37 Penalties for violation of provisions of Chapter VI: Whoever contravenes any provision of this Chapter shall, without prejudice to any other action taken against him under this Act and rules made there under, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to fifty thousand rupees, or with both and where the offence is a continuing one with a further fine which may extend to three thousand rupees for every day after the first during which such offence continues.
Section 44. Power to seal buildings or premises: (1) Where, on receipt of a report from the nominated authority under subsection (2) of Section 34 or subsection (4) of Section 35 or subsection (3) of Section 43, or suo moto, it appears to the Director that the condition of any building or premises is dangerous to life or property, he shall, without prejudice to any action taken under this Act, by order, require the person in possession or occupation of such building or premises to remove themselves from such building or premises forthwith.
(2) If an order made by the Director under subsection (1) is not complied with, the Director may direct any police officer having jurisdiction in the area to remove such persons from the building or premises and such officer shall comply with such directions.
(3) After the removal of the persons under subsection (1) or subsection (2), as the case may be, the Director shall seal the building or premises.
(4) No person shall remove such seal except under an order made by the Director (5) Any person who removes such seal except under an order made by the Director, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to twenty five thousand rupees, or with both.
10Delhi Fire Service Rules 2010 Relevant provisions are stated below:
27. Classes of occupancies likely to cause a risk of fire. The following classes of occupancies for the purposes of subsection (1) of section 25 of the Act shall be construed to likely cause a risk of fire, namely: (1) Pandal having seating capacity more than 50 persons or covered area more that 50 square meters.
(2) Residential buildings (other than hotels and guest houses) having height more than 15 meters or having ground plus four upper stories including mezzanine floor. (3) Hotels and guest houses having height more than 12 meters having ground plus three upper stories including mezzanine floor.
(4) Educational buildings having height more than 9 meters or having ground plus two upper stories including mezzanine floor.
(5) Institutional buildings having height more than 9 meters or having ground plus two upper stories including mezzanine floor.
(6) All Assembly buildings.
(7) Business buildings having height more than 15 meters or having ground plus four upper stories including mezzanine floor.
(8) Mercantile buildings having height more than 9 meters or having ground plus two upper stories including mezzanine floor.
(9) Industrial buildings having covered area on all floors more than 250 square meters. (10) Storage buildings having covered area on all floors more than 250 square meters. (11) All Hazardous buildings having covered area on all floors more than 100 square meters. (12) Underground Structures.
33. Minimum standards for fire prevention and fire safety for buildings. (1) The minimum standards for fire prevention and fire safety for buildings as may be applicable with reference to the height of the building and class of occupancy for the purposes of section 32 and section 35 of the Act shall be as are provided in the building bye laws or National Building Code of India 2005 relating to the following matters: (1) Access to building (2 Number, Width, Type and Arrangement of exits.
(3) Protection of Exits by means of fire check door (s) and or pressurization. (4) Compartmentation.
(5) Smoke Management System.
(6) Fire Extinguishers.
(7) FirstAid Hose Reels.
(8) Automatic fire detection and alarming system.
(9) MOEFA.
(10) Public Address System.
(11) Automatic Sprinkler System.
(12) Internal Hydrants and Yard Hydrants.
11(13) Pumping Arrangements.
(14) Captive Water Storage for fire fighting.
(15) Exit Signage.
(16) Provision of Lifts.
(17) Standby power supply (18) Refuge Area.
(19) Fire Control Room (20) Special Fire Protection Systems for Protection of special Risks,:
Provided that classes of occupancies or buildings or premises for which fire prevention and fire safety measures are not provided in the building byelaws or National Building Code of India 2005, the Director may require owner or occupier of such occupancies or buildings or premises to provide fire prevention and fire safety measures in accordance with international standards as may be provided by the Fire Prevention Wing,:
Provided further that where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax or modify or annul any requirement concerning fire prevention and fire safety measures under these rules with respect to any class of occupancy in any building or premises in special areas or in respect of any building or premises in any area that was constructed or which was under construction prior to the date of enforcement of these rules. (2) Where the Director is of the opinion that it is necessary or expedient so to do, it may, for reasons to be recorded in writing, require the owner or occupier of the buildings or premises to provide additional fire prevention and fire safety measures.
35. Fire Safety Certificate to be issued. ? (1) The Director or any other officer(s) authorized by him in this behalf by a general or special order shall issue a Fire Safety Certificate in Form 'H' in First Schedule to the owner or occupier of the building or premises with such conditions as may be specified in the Fire Safety Certificate for compliance of fire prevention and fire safety measures as specified under these rules. (2) The application for grant of Fire Safety Certificate shall be made to the Director in Form 'I' in First Schedule and shall be accompanied with a certificate from the architect and owner or occupier that all the fire prevention and fire safety measures as required under rule 33 have been incorporated in the building or premises.
(3) On receipt of application under subrule (2), the building or premises shall be inspected by a team of fire officers to ascertain the availability and operability of the fire prevention and fire safety measures who shall recommend to the Director for grant or refusal of fire safety certificate.
(4) On receipt of the recommendations under subrule (3) the Director shall grant the fire safety certificate or reject the same for reasons to be recorded in writing and communicated to owner or occupier as the case may be.
(5) In case of rejection of application for grant of fire safety certificate under subrule (4), a fresh application shall be made by the owner or occupier under subrule (2) duly complying with the requirements as communicated under subrule (4).
(6) The buildings or premises that have already been issued No Objection Certificate for the occupancy of the building or premises shall deemed to have been issued Fire Safety Certificate under rule 35 subject to verification of compliance of fire prevention and fire safety measures on which the No Objection Certificate was issued on the last occasion.
36. Duration of Fire Safety Certificate. The Fire Safety Certificate issued under rule 35 unless sooner cancelled shall be valid for a period 5 years for residential buildings (other than hotels) and 3 years for nonresidential buildings including hotels from the date of issue.
1237. Renewal of Fire Safety Certificate. ? (1) Application for renewal of Fire Safety Certificate granted under rule 35 as valid under rule 36 shall be made to the Director in Form 'I' in First Schedule along with a copy of the Fire Safety Certificate six months before the expiry of the Fire Safety Certificate.
(2) On receipt of application under subrule (1) the Nominated Authority shall inspect the building or premises to verify the compliance of rules and forward the report of the compliance or otherwise to the Director.
(3) On receipt of report under subrule (2) the Director or any other officer authorized by him in this behalf by a special or general order renew the Fire Safety Certificate for a period specified under rule 36 or reject the application duly recording the reasons therefor.
38. Liability to maintain fire safety measures. ? (1) The occupier of the building or premises, as the case may be, shall maintain the fire prevention and fire safety measures provided in the building or premises at all times in best repairs for use by the occupants or members of Fire Service or both in the event of an out break of fire. (2) The occupier of the building or premises or the Fire Safety Officer appointed under section 29 of the Act, as the case may be, shall declare every year in Form 'J' in First Schedule that fire prevention and fire safety measures provided in the building or premises as the case may be are in best repairs.
(3) It shall be lawful for the Director, or Nominated Authority to enter and inspect the building or premises, as the case may be, with a view to verifying the correctness of the declaration made under subrule (2) above and to point out the shortcomings, if any, with directions to remove them within a specified time. If the directions of the inspecting officer are not complied within the time so given, the inspecting officer with the previous approval of the Director shall declare the building or premises unfit from fire safety point of view and direct the local body or any other authority concerned to disconnect the electricity and water supply to the building or the premises, as the case may be, and the local body or the other authority shall comply with the directions of the inspecting officer. (4) The occupier of the building or premises or the Fire Safety Officer appointed under section 29 of the Act, who falsely declares under subrule (2), shall be deemed to be in default.
40. Cancellation of Fire Safety Certificate. ? (1) If the owner or occupier fails to comply with the direction given under rule 39 within the specified time, the Director or any other officer authorized by him in this behalf may, without prejudice to any other action under the Act or rules, after giving owner or occupier an opportunity to show cause, why such an order should not be passed by an order in writing stating the reasons therefor, cancel the Fire Safety Certificate issued under rule 35.
(2) The owner or occupier of the building or premises whose fire safety certificate has been cancelled by the Director or any other officer authorized by him in this behalf under subrule (1), may within 90 days of the receipt of a copy of the order by him prefer an appeal in the manner laid down under rule 42 to the Appellate Authority who may after giving the owner or occupier an opportunity of being heard, confirm, reverse or modify such order.
The above stated law and rule clearly lay done the provisions which have to be followed by the Delhi Fire Service while dealing with the fire safety in buildings.
13Hon'ble Gujarat High Court in Lok Adhikar Sangh Vs. State of Gujarat and Ors.
[AIR 2002 Guj 59] while dealing with safety regulations of buildings with regard to high rise building and Fire safety passed some interim direction as follows:
"(1) In all highrise buildings, fire safety measures are to be provided keeping in mind the provisions made in B.M.P.C. Act, Gujarat Town Planning & Urban Development Act and specific provision for fire protection systems in the byelaws under Chapter III of the General Building Requirements and National Building Code as well as other provisions which may be applicable.
(2) So far as the existing but unoccupied buildings and/or the buildings under construction are concerned, Ahmedabad Municipal Corporation and A.U.D.A. are directed that they shall not grant N.O.C., or Building Use Permission unless and until sufficient fire protective system is installed and made operational by them. These authorities shall strictly enforce the provisions relating to fire protective system before granting occupation certificate.
(3) It is further directed that henceforth A.M.C. or A.U.D.A. shall not supply essential services to any new building unless and until the building is erected in accordance with law and B. U. Permission is granted by the competent authority.
(4) Ahmedabad Electricity Company shall not supply electric connections to any building unless B.U. Permission issued by the A.M.C. and/or A.U.D.A. as the case may be is produced before it. If the builder/developer is found indulging in malpractice of supplying electricity for residential use from the connection given to the builder/developer for construction purpose and thereby permit illegal occupation, such connections shall be disconnected and legal action as permissible under the relevant law shall be initiated against such builders/developers.
(5) So far as the existing and occupied buildings are concerned, the Court has already given directions in this regard in its earlier order dated 2572000 and the authorities are directed to follow that directions.
(6) A.M.C. and A.U.D.A. shall carry out periodical as well as surprise checkings of the fire safety systems provided in highrise buildings, and if the same are not found operational or in working order or if the builders/ developers/owners/occupiers have made only a show of providing fire safety measures, they shall be called upon to set right 14 the system at the earliest possible but not later than 21 days, and on failure to set right the fire safety systems, essential supplies to such buildings such as drainage, water, electricity etc. shall be disconnected.
(7) Regarding Cinema Halls, the concerned respondent authorities shall continue to monitor cinema halls and no renewal of license shall be granted unless adequate protective measures have been provided by them and the same are operational and in working condition. The officers of the Corporation shall inspect, verify and test the fire safety measures at such intervals, in consultation with the head of Fire Brigade Department and shall make a note in the inspection register or diary to be maintained in each cinema hall. Over and above this, there should be surprise checking also. If the safety measures are inadequate or not functioning, the concerned respondent authorities shall take immediate action including suspension of license and closure of the cinema halls till the systems are made fully operational.
(8) So far as Factories are concerned, the concerned respondent authorities shall keep in mind Section 38 of the Factories Act, 1948 read with Rule 66A of the Gujarat Factories Rules, 1963 and other relevant provisions and shall insist on compliance with those provisions.
(9) The State is directed to install adequate fire safety measures in the Government highrise buildings. In its order dated 782000, the Court has recorded the assurance given by then Additional Advocate General to the effect that without constraint of time and finance, fire safety measures shall be provided. State to report within 21 days about the fire safety measures in its buildings. (10) The State, A.M.C. and A.U.D.A. shall initiate disciplinary proceedings against its employees/servants/officers if it is found that
(i). due to their dereliction of duties fire safety measures are not provided in highrise buildings, and (ii). essential supplies are provided to buildings without adequate fire safety measures.
(11) Before issuance of Building Use Permission, the Commissioner or the Chairman of A.U.D.A., as the case may be, shall record satisfaction about the fire safety measures provided as per the requirement and its operation, and shall not permit anyone to occupy the buildings till such satisfaction is recorded and B. U. Permission is issued."
Hon'ble Supreme Court of India in Avinash Mehrotra Vs Union of India [(2009)6SCC398] while dealing with case of Fire safety in School's observed as follows :
15"17. While we applaud States' efforts to improve schools, we find that States have done too little, too late. With the guidance of the National Building Code and affidavits in this case, we view Mr. Gonsalves's brief as crystallizing a minimum set of safety standards for schools. By their own admission, States have not met these standards and they have welcomed this Court's guidance in achieving improvement. We will consider in more detail the exact standards required and relief sought later in this view. It is clearly borne out from the affidavits filed by the respondents that even the basic fire extinguishing equipments have not been installed in most of the schools. Majority of the schools do not have emergency exits. The schools must realize and properly comprehend the importance of the fire safety equipments, but unfortunately most of the schools do not have fire extinguishing equipments and consequently, the schools are not following the minimum safety standards prescribed by the Building Code, the Bureau of Indian Standards.
18. Despite best intentions and frequent agreements, these codes and safety standards rarely bind builders in law or practice. State or local governments must enact Building Codes before any may have the force of law. Some Building Codes exist in law, but few states or municipalities have enacted a standard as rigorous as the National Building Code. Weak enforcement often then moots the enacted code's effectiveness, no matter the Code's intent, whether fire safety officials, routinely speak to the need for meaningful standards with real enforcement."
Upahar Fire Tragedy: Civil and Criminal Liability of Fire Personnel
11. In this context it is relevant to refer to Upahar Cinema tragedy which happened mainly because fire safety measures were neglected by Managers of Cinema Hall, while the safety rules were not enforced by the concerned departments of the Government. This was one of the worst fire tragedies in recent Indian history, occurred on Friday, 13 June 1997 at Uphaar Cinema, Green Park, Delhi, during the 3 to 6 pm while screening of the movie . After an earlier transformer caused fire at Gopal Towers, a highrise in Rajendra Place, New Delhi in 1983, the licences of 12 cinemas, including that of Uphaar, had been 16 cancelled. The Deputy Commissioner of Police (Licensing) who inspected Uphaar, had listed ten serious violations, however all remained uncorrected until the fire 14 years later.
On 6 July 1989, a fire had broken out at Uphaar cinema due to a fault in the substation.
Victims of the tragedy filed a claim for compensation, in which Delhi High Court in Assn. of Victims of Uphaar Tragedy and Ors Vs Union of India [104(2003)DLT234] observed as follows:
"The Association of Victims of Upahaar Fire Tragedy, in their plea for compensation highlighted the acts of omission and commission by the public authorities concerned namely Delhi Vidyut Board (`DVB' for short), MCD Fire Force and the Licensing Authority. They alleged that these authorities not only failed in the discharge of their statutory obligations, but acted in a manner which was prejudicial to public interest by failing to observe the standards set under the statute and the rules framed for the purpose of preventing fire hazards; that they issued licenses and permits in complete disregard of the mandatory conditions of inspection which were required to ensure that the minimum safeguards were provided in the cinema theatre. They pointed out that most of the cinema theatres were and are being permitted to run without any proper inspection and many a time without the required licenses, permissions and clearances. They therefore, sought adequate compensation for the victims of the tragedy and punitive damages against the theatre owner, DVB, MCD, Fire Force and the Licensing Authority for showing callous disregard to their statutory obligations and to the fundamental and indefeasible rights guaranteed under Article 21 of the Constitution of India, of the theatre going public, in failing to provide safe premises, free from reasonably foreseeable hazards."
Hon'ble Delhi High Court in Assn. of Victims of Uphaar Tragedy and Ors (Supra) held as follows:
"88. For all the above reasons, we are of the considered view that the Licensee of the Uphaar Cinema, the licensing branch of the Delhi Police, the Delhi Vidyut Board and the Municipal Corporation of Delhi were all responsible for having contributed to the spreading of fire and smoke by their acts of omission and commission and they are all jointly and severally liable for payment of compensation to the victims of the unfortunate incident. We have not been able to find any act of commission or omission on the part of the Delhi Fire Service or the other departments of Delhi Police to held them liable or responsible for the disaster.17
89. Having thus held that all the persons/authorities mentioned above were responsible for the disaster that had taken place in the theatre on 13th June, 1996 and they are liable to pay compensation to the unfortunate victims/their relatives for the death and/or injuries sustained, the question for consideration is what should be the quantum of compensation and how the same can be assessed.
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93. In the present case, as we have noticed above, there is not much of a dispute between the parties about the rules and regulations which are clear and unambiguous and everybody knows them and in any case should know them. It is also not in dispute that the Government is entrusted with the duty to ensure that the rules and regulations were to be complied with. It is also not in dispute that a theatre is a place where large number of people have to sit in an enclosed area for a long period of time and there is a potential threat to the life and safety if fire, leakage of gas, etc. takes place and this potential threat has to be guarded against. It cannot, Therefore, be said that the authorities as well as the cinema owners and its employees are under no obligation to provide and maintain all standards of safety and if because of their negligence or lack of care in not observing those standards of safety, a loss is caused to a person, it cannot be said that the authorities and the individuals who are responsible for this lack of care and negligence will not be liable to compensate for losses. It, Therefore, appears to us that under the doctrine of strict liability and public law, the liability would be there even if there was no negligence on the part of the respondents. We have already observed above that by this judgment we are not in any way holding any person or authority negligent or responsible for the fire which had taken place as the same is a matter which is required to be determined in the trial after evidence is recorded, however, we still feel that there were clearly a lack of care on the part of the authorities in providing and maintaining all standards of public safety and the approach on the part of everyone concerned was wholly casual and the safety standards were thrown to winds. Despite there being clear violations and deviations of the Cinematograph Act and the rules framed there under; despite the transformer not being maintained in accordance with the standards fixed not only under the rules but also by the Delhi Vidyut Board and despite their being violation of the building byelaws, the authorities ignored each one of these violations and showed scant respect to the safety of the persons visiting the theatre. The fact that safety standards were prescribed by the authorities clearly show that the disaster was foreseeable. We, Therefore, hold that the respondents, namely, the licensees; the Delhi Vidyut Board; Municipal Corporation of Delhi; and the Licensing Authority are jointly and severally liable to compensate the victims of the unfortunate incidents and/or their relatives."18
The Hon'ble Delhi High Court also approved the recommendation made by Naresh Kumar Enquiry Committee, in which following recommendations were made:
"DELHI FIRE SERVICE
1. As per provisions of Delhi Fire Prevention and Fire Safety Rules, 1987, following minimum standards for Fire Prevention and Fire Safety measures are to be observed for buildings more than 15 meters high otherwise, there is provision in the said Rules under which the Chief Fire Officer can seal the building in case of violation not being rectified.
1. Means of access.
2. Underground/Overhead water static tanks.
3. Automatic sprinkler system.
4. Firs Aid Hose Reels.
5. Fire Extinguishers of ISI Certification mark.
6. Compartmentations.
7. Automatic Fire detection and alarm system/manually operated Electrical fire alarm system.
8. Public address System.
9. Illuminated exit way marking signes.
10. Alternate source of electric supply.
11. Fire lift with fire men switch.
12. Wet riser down comer system.
The Fire authorities are merely doing the annual inspection in a stereo type manner don't have the knowledge of the provisions of Delhi Fire Preventions and Fire Safety Act, 1986 and the Rules made their in. The Divisional Officer who conducted the last inspection of Uphaar Cinema in May, 1997 for granting the annual NOC failed to check the following fire safety provisions. Accessibility to the underground water tank (Enclosed by grill to convert the area for keeping the c rates of the cold drinks by the canteen contractor).
Non functional Public Address System.
Absence of alternate source of electric supply.19
Untrained staff in using the fire extinguishers.
Non availability of fire extinguisher in the car parking area of ground floor.
inspire of all these, the NOC was issued from the Fire safety point of view. The Fire Safety and Fire Preventive measures in the high rise buildings are highly technical subjects which need specialized expertise. Hence there is need for creating a special fire prevention wing. This wing will not only examine the plan fo building before construction but also inspect all the buildings having more than 15 mtrs. Height, annually from the fire safety point of view.
2. It has been reported that recently some buildings have been declared fire hazardous by the DFS, but is really surprising that no building which has been declared fire hazardous was sealed by the competent authority for not complying with their directions. Now it is high time that irrespective of owners of high rise building, in case fire safety measures are not complied prompt, strict action should be taken.
3. The upkeeping and maintenance of the fire vehicles is in a very bad shape. Even small things which matter a lot in affecting the response time of the fire service i.e. the siren, emergency lights are not in working condition. Therefore the system of regular inspection of the fire stations of the DFS should be introduced to check the preparedness of the men and machines of DFS by appropriate level officer of Home Department/District Administration.
4. Presently there is one Water Officer for the NCT of Delhi whose job is to make available the continuous supply of water at the place of Medium/Major Fire incident. Even in the instant case the Water Officer was at the site at 6.00 P.M. i.e. 44 minutes after arrival of fire brigade at the site. Most of the firemen stated that they didn't know the location of underground water tanks in their jurisdiction. While inquiring from the Water Officer he showed his inability due to limited resources. Keeping this in view, there is need for decentralization of the work being done at the moment by the Water Officer. This job can be entrusted to the Divisional Officer, who should be held responsible for awarding the firemen in knowing the locations of underground water tank in their territorial jurisdiction. Simultaneously ensuring the supply of water at the site of fire incident.
5. The fire in the building/premises resulted in the spread of a lot of smoke. The Delhi Fire Service do not have equipment to control it. They must be equipped with portable smoke extractors with long pipes for extraction of smoke and carbon monoxide.
6. High rise buildings which have become a common feature of modern society present inherent fire hazards as fire brigades are often helpless in the face of 20 fires in such structures and are unable to save human lives and fight fires effectively with traditional methods. Therefore, there is need for overall upgradiation of Delhi Fire Service with respect to modern equipments, communication facilities including voice recorder, increased manpower and training to fire personnel.
7. As mentioned earlier, most of the causalities in the fire incident took place due to noxious smoke rather than by direct burning. It has also been observed that rescue operation was affected by poor visibility due to smoke and limited availability of breathing apparatus. Therefore there is a need to provide one breathing apparatus per fireman so that rescue operation can be made more effective.
8. In the standard list of the equipments/implements to be present in all the fire fighting vehicles, we may also add the `rope ladder' and `jumping net' made of fire resistant material."
Hon'ble Supreme Court of India in Municipal Corporation of Delhi, Delhi Vs. Assn. of Victims of Uphaar Tragedy and Ors [(2013)1SCC(LS)305] , while dealing with the appeals are filed against the judgment dated 24.4.2003 of a division bench of the Delhi High Court in the Uphaar Cinema tragedy by the Municipal Corporation of Delhi (for short 'MCD'). the Licensing Authority,by M/S. Ansal Theatre and Clubotels Pvt. Ltd., the owners of the Uphaar Cinema Theatre (for short the 'theatre owner' or 'Licensee) observed as follows :
"19. At the outset it should be noted that the causes for the calamity have been very exhaustively considered by the High Court and it has recorded a categorical finding about the negligence and the liability on the part of the licensee and the DVB. On the examination of the records, we agree with the High Court that such a catastrophic incident would not have happened if the parapet wall had not been raised to the roof level. If the said wall had not been raised, the fumes would have dispersed in the atmospheric air. Secondly if one of the exits in the balcony had not been blocked by construction of an owner's box and if the right side gangway had not been closed by fixing seats, the visitors in the balcony could have easily dispersed through the other gangway and exit into the unaffected staircase. Thirdly if the cars had not been parked in the immediate vicinity of the transformer room and appropriate pit had been made for draining of transformer oil, the oil would not have leaked into the passage nor would the burning oil lighted the cars, as the fire would have been restricted only to the transformer room. Even if one of the three causes for which the theatre owner was responsible, was absent, the calamity would not have occurred. The Licensee could not point out any error in those findings. Ultimately therefore the contention of the licensee before us was not to deny liability but only to reduce the quantum 21 of liability fastened by the High Court and to increase the share of the liability of the three statutory authorities. DVB, as noticed above, has not challenged the decision of the High Court. Therefore, we do not propose to reconsider and re examine or reassess the material considered and the finding recorded with reference to the Licensee and DVB. Therefore the incident is not disputed. The deaths and injuries are not in dispute. The identity of persons who died and who were injured is not in dispute. The fact that the Licensee and DVB are responsible is not in dispute. The limited questions that arise are whether the MCD and the Licensing Authority could have been made liable to pay compensation and whether the percentage of liability of the Licensee should be reduced from 55%.
K. S. Radhakrishnan J. added the following to the judgment of Justice Raveendran.
48. Private law causes of action, generally enforced by the claimants against public bodies and individuals, are negligence, breach of statutory duty, misfeasance in public office etc. Negligence as a tort is a breach of legal duty to take care which results in damage or injury to another. Breach of statutory duty is conceptually separate and independent from other related torts such as negligence though an action for negligence can also arise as a result of cursory and malafide exercise of statutory powers. Right of an aggrieved person to sue in ordinary civil courts against the State and its officials and private persons through an action in tort and the principles to be followed in considering such claims are well settled and require no further elucidation. We are in these appeals concerned with the claims resulting in the death of 59 patrons and injury to 103 patrons in a fire erupted at Uphaar Cinema Theater, South Delhi on 13.6.1997.
61. Law is well settled that a Constitutional Court can award monetary compensation against State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. Quite often the courts have a difficult task in determining damages in various fact situations. The yardsticks normally adopted for determining the compensation payable in a private tort claims are not as such applicable when a constitutional court determines the compensation in cases where there is violation of fundamental rights guaranteed to its citizens. In D.K. Basu v. Union of India (1997) 1 SCC 416, a Constitution Bench of this Court held that there is no strait jacket formula for computation of damages and we find that there is no uniformity or yardstick followed in awarding damages for violation of fundamental rights. In Rudal Shah's case (supra) this Court used the terminology "Palliative" for measuring the damages and The formula of "Ad hoc" was applied in Sebastian Hongary's case (supra) the expression used by this Court for determining the monetary compensation was "Exemplary" cost and the formula adopted was "Punitive". In Bhim Singh's case, the expression used by the Court was "Compensation" and method adopted was "Tortious formula". In D.K. Basu v. Union of India (supra) the expression used by this Court for determining the 22 compensation was "Monetary Compensation". The formula adopted was "Cost to Cost" method. Courts have not, therefore, adopted a uniform criteria since no statutory formula has been laid down.
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68. Public Authorities are now made liable in damages in U.K. under the Human Rights Act, 1998. Section 6 of the Human Rights Act, 1998 makes a Public Authority liable for damages if it is found to have committed breach of human rights. The Court of Appeal in England in Anufijeva v. London Borough Southwork 2004 (2) WLR 603, attempted to answer certain important questions as to how the damages should be awarded for breach of human rights and how should damages be assessed. Further, such claims are also dealt by Ombudsmen created by various Statutes, they are independent and impartial officials, who investigate complaints of the citizens in cases mal administration. The experience shows that majority of the Ombudsman's recommendations are complied in practice, though they are not enforceable in Courts.
69. The European Court of Justice has developed a sophisticated jurisprudence concerning liability in damages regarding liability of public bodies for the loss caused by administrative Acts. We have highlighted all these facts only to indicate that rapid changes are taking place all over the world to uphold the rights of the citizens against the wrong committed by Statutory Authorities and local bodies.
70. Despite the concern shown by this Court, it is unfortunate that no legislation has been enacted to deal with such situations. We hope and trust that utmost attention would be given by the legislature for bringing in appropriate legislation to deal with claims in Public Law for violation of fundamental rights, guaranteed to the citizens at the hands of the State and its officials."
Civil and Criminal Liability of public servants
12. From the above judgment of Supreme Court that the public authorities would also be liable for damages for breach of human rights, besides there could be criminal liability also. In Upahaar case, the Trial Court further convicted S.S. Sharma (A13) and N.D. Tiwari (A14) who were officials of the Municipal Corporation of Delhi apart from H.S. Panwar (A15), Divisional Officer, Delhi Fire Service under the above provisions and 23 sentenced them similarly to undergo two years rigorous imprisonment and a fine of Rs.5,000/ besides default sentence of six months imprisonment.
13. The Delhi High Court reduced sentence to rigorous imprisonment for one year and Rs.5000/ under section 304A. The default sentence in his case is also modified to simple imprisonment for two months. Supreme Court dismissed their appeals, which means their criminal liability, i.e., the sentence of one year rigorous imprisonment stands confirmed for their criminal negligence in performing duties of fire safety measures. Sushil Ansal v. State Thr. CBI, 2014 (3) SCALE 174 (SC): Decided on 532014 (T.S. Thakur and Gyan Sudha Misra, JJ.]
14. The Commission takes a serious note of nonresponsive attitude of the Public Authority by hanging on to strict application of the words and numbers in the RTI application, without applying their mind to consider the purpose of RTI application and trying to hide the information which they are supposed to disclose.
Decision:
15. Information regarding fire safety norms is life related information. The Commission further observes that the Public Authority is having advantage of having a complete hold on all their information, whereas the appellant is an unofficial without access to information and she is requesting for the information on inspections done by the Respondent authority. It is improper for the respondent authority to hide this significant information. The representatives argued before the Commission for a long on the words used and date mentioned in RTI application. There might be a mistake in mentioning the date, but it is not fair on the part of the Public Authority to deny the information of their inspections.
Such an attitude of officers against the disclosure tends any person to believe the 24 suspicion of corruption prevailing in the public authority. It is the basic and avowed purpose of the entire department of Fire and Fire Services to see that no building faces the risk of the fire. The attitude of the respondent authority should have been positive and when a citizen is making all efforts to make the buildings safe through enforcement of the systems that are put in place by the Government itself, they are in fact performing the job of respondents, which should have guided them to come forward to give the information held by them.
16. The Commission finds no reason to deny the information sought by the appellant that has to be disclosed in larger public interest, and primarily it is about safety and security of lives of the persons living in and around these buildings. If at all there is any information which has to be disclosed urgently considering the life and liberty of persons, the Commission thinks that this is that.
17. The Commission observes that public authority in this case has committed a grave breach of RTI by showing adamant attitude in denying the information about inspection records of fire safety norms in Delhi. It seems that the Fire Department has not learnt anything from the worst Upahar tragedy incident which led to imposition of civil and criminal liabilities on public servants including some of the employees of fire department.
Their attitude fortifies apprehensions of corruption in selectively applying the fire norms and issuance of no objection certificate and using or not using the powers of disconnecting water and power to the buildings who did not comply with the fire safety norms. It is the duty of respondent authority to clear the apprehensions that appellant is being victimized because she filed RTI or questioning inaction of respondents.
2518. The Commission directs the respondent authority to provide all inspection reports with reference to property at 4/14A Asaf Ali Road without getting into technical interpretation about the date of inspection.
19. The Commission also directs the respondent/PIO to show cause why penalty cannot be imposed for suppressing the information and wrongfully taking shelter under a dispute about a particular date. Their explanation should reach the Commission within three weeks from the date of receipt of this order.
20. The Commission orders accordingly in all the three appeals above.
(M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Dy.Registrar Address of the parties:
1. The CPIO under RTI, Govt. Of NCT of Delhi, Delhi Fire Service, Connaught Place, NEW DELHI110001
2. Ms. Suman Jain 26 04/14A, Asaf Ali Road, NEW DELHI110002 Copy also forwarded to the First Appellate Authority to serve Show Cause Notice on the PIO:
3. The Director of Delhi Fire Service & First Appellate Authority under RTI Government of NCT of Delhi Connaught Place New Delhi110001.27