IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4578 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE D.A.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ LOK ADHIKAR SANGH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr. Girish Patel, Sr. Advocate for petitioner Mr. A.D. Oza Government Pleader for Respondent No.1,4 & 5 Mr. Amit Panchal for respondent No.2 & 3 Mr. K.B. Pujara for respondent No.6 Mr. DN Patel for respondent No.7 CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE D.A.MEHTA Date of judgment : 02/07/2001 C.A.V. JUDGMENT ( Per B.C. Patel, J.) 1. This petition was filed as a Public Interest Litigation as fire safety system was not provided to prevent accidents in cinema halls, factories and high rise buildings. The petitioner sought for several directions including to take action against erring officers, who are responsible for gross violation of rules and regulations and to direct the respondents to create an independent machinery as also for mandatory agency representing various sections of the people to monitor working of the fire safety measures. Initially the Division bench (Coram: R.A. Mehta, Actg. C.J. & N.N. Mathur, J.) issued notice on 1.7.1997, returnable on 21.7.1997. Thereafter, on 4.9.1997, the Court (Coram: R.A. Mehta, Actg. C.J. & N.N. Mathur, J.) considered the affidavit in reply filed by the respondent admitting the fact that there are large number of high-rise buildings within the municipal limits, which are said to be without the required fire safety and fire prevention equipments. This being contrary to the law, prejudicial to the safety of the public at large and considering the fact that violation was on a large scale, the Court passed an order, further pointing out that because the buildings are built and put up by big builders and occupied by well-to-do influential people, actions are not taken or a show is made that actions are taken. The Court, in the aforesaid order dated 4.9.1997, gave an opportunity to the authorities to "disprove that the allegation of the petitioners that they (i.e. the authorities) are in collusion with the builders and occupiers of such buildings", and the matter was adjourned to 22.9.1997. Thereafter, it was brought to the notice of the Court that under the guise of a resolution No. 28.4.1994 for providing water and drainage facilities to hutments, chawls, societies, row houses and other buildings constructed without permission or illegally between 1.5.1976 and 31.3.1994, AMC was granting drainage and water connection to high rise buildings without fire safety measures. The Court (Coram: R.A. Mehta, Actg. C.J. and S.D. Pandit, J.) therefore granted permission on 16.10.1997 to amend the petition, and the petition is accordingly amended (pages No. 31 to 34). It was contended in the draft amendment that the said resolution cannot be used to condone the gross violations by the builders/ occupiers of buildings rules and regulations and of fire safety measures. 2. Thereafter, the Court (Coram: K. Sreedharan, C.J. & M.S. Shah, J) in an order dated 24.12.1997 pointedly referred to the order dated 4.9.1997 and we do not repeat the same. The Court also pointed out that it is improper to apply the aforesaid resolution to high rise buildings. The Court directed to take appropriate steps to get fire safety and fire prevention measures, including installation of such equipments in the high rise buildings in accordance with law. Despite the fact that the order is dated 24.12.1997, no action has been taken so as to satisfy the Court that Municipal Commissioner has taken action against the wrong doers who have committed breaches of various provisions. He has not taken action despite the fact that on 18.2.1999, the State Government has forwarded circulars to all Municipal Corporations, Municipalities and Chairmen of various Urban Development Authorities in this behalf. (Copy of the said resolution is produced by Dr. Manjula Subramaniam, Principal Secretary with her affidavit-in-reply). Even thereafter, the State Government issued letter to the Municipal Commissioner as well as Urban Development Authorities to take action against the officers who have acted illegally. 3. Thereafter, the matter was placed before the Division Bench (Coram: K.Sreedharan, C.J. & A.R. Dave, J) on 12.2.1998. Reading the order it is clear that the Municipal Corporation issued Public Notice requiring high rise buildings situated within Municipal Corporation limits to have fire safety equipments and devices installed within sixty days, and the said period was to expire on 14.3.1998. Thus, though breach was committed by officers of the Corporation, Public Notice was given and public at large was informed that in every high rise building, there must be fire safety equipment and devices within the time granted. As that was not done, the Court was required to proceed further. Not only that, but the Municipal Commissioner requested the Court in public interest to direct that such systems (fire prevention and protection system for high rise buildings) if not already installed, be installed in the high rise buildings forthwith and the same be made operational and effective. This speaks a lot about the affairs of the Municipal Corporation. The Municipal Commissioner was not able to control his staff or the Municipal Commissioner at the relevant time, was not able to enforce the law. Otherwise he would not have permitted anyone to occupy the buildings unless and until the same is erected in accordance with law and that Building Use Permission is granted. The Division Bench in the aforesaid order dated 12.2.1998 directed the Municipal Commissioner and his team of officers to follow the time schedule fixed in the notices and see that fire safety measures are installed in all the buildings without fail. The Court further directed that "in case any building fails to have these safety measures, all legal steps, contemplated by the various Acts and Rules, should be pressed into service, and effective action should be taken against erring builders / owners". 4. Thereafter the matter came up for hearing before the Division Bench (Coram: C.K. Thakkar & K.M. Mehta, JJ.) and by an order dated 17.2.2000, the Court issued rule and heard the parties on interim relief. On perusal of the record and earlier orders passed in the matter, the Court was satisfied that interim order was required to be passed and, therefore, issued directions with regard to high rise buildings. The Court gave the following directions with regard to high rise buildings: "(A). High Rise Buildings: (i). Construction of buildings: So far as construction of high-rise buildings is concerned, it is directed that Ahmedabad Municipal Corporation (AMC) and/or Ahmedabad Urban Development Authority (AUDA) will bring to the notice of owners / builders / contractors / developers regarding fire protective system and installment of fire safety measures. For ensuring compliance of such requirements, the authorities shall carry out periodical inspection of such buildings with a view to confirm that all steps required to be taken under the relevant laws have been taken by the owners / builders / contractors / developers, etc. (ii). Existing but unoccupied buildings: In respect of high-rise buildings which are existing but still not occupied, the authorities shall not grant NOC or occupation certificates unless and until sufficient fire protective system is installed and made operational by them. The authorities shall strictly enforce the provisions relating to fire protective system before granting occupation certificate. (iii). Existing and occupied buildings: Regarding high rise buildings which are constructed as well as occupied, the authorities shall issue notices to the owners / builders / contractors / developers / occupiers etc. asking them to show cause why actions in accordance with law should not be taken against them and remedial measures should not be carried out. The authorities shall prepare necessary time table for such remedial measures with a view to avoid exercise of power to evict occupiers of such high rise buildings. 5. It is surprising to note that Municipal Commissioner as well as Chairman of AUDA have not only committed breach of the order passed by the Honourable Court but though they were warned that the buildings which were not occupied on that date should not be permitted to be occupied unless and until sufficient fire protective system is installed and made operational, they have permitted the builders / developers / contractors to see that the buildings are occupied. If these authorities would not have given drainage, and water connection, the buildings could not have been occupied. Unless and until they have connived, occupancy was out of question in a building where no B.U. Permission was granted. Even with regard to the buildings which were occupied, direction was given. Reading the order, it is clear that remedial measures were required to be taken with a view to avoid exercise of powers to evict the occupiers of such high rise buildings. It appears that no remedial measures have been taken. Neither the Municipal Commissioner nor the Chairman of AUDA has taken any satisfactory action, except giving notices. The authorities were aware about the law and the order passed by the Division Bench. They have got a battery of law officers. The law makes a provisions for prosecution of builders and/or occupiers in relevant statutes. The order passed by the Court on 17.2.2000 has not been complied with. It is required to be noted that directions are given only to comply with the provisions made by the legislature and that too in the interest of public at large. The directions were in the interest of public interest and public safety. 6. As the directions contained in the order passed by the Court on 17.2.2000 were not complied with, the Division Bench (Coram: B.C. Patel & P.B. Majmudar, JJ.) passed an order on 25.7.2000, after referring to the earlier orders and also the facts narrated in C.A. No. 6069/99 indicating a major fire, which broke out on the 7th floor of Shree Krishna Complex near Mithakhali six Roads. The Court pointed out that on 14.1.1998, 20.1.1998, 21.1.1998 public notices were issued, the copies of which were placed on record, by which the attention of all builders / developers / structural engineers / architects / owners / Chairpersons and Secretaries of the buildings and Building Residents' Association of high rise buildings was invited and they were cautioned about the consequences of not providing fire safety measures. The order is in detail, and we need not repeat the same. The then Municipal Commissioner Mr. Sinha pointed out that scant respect has been paid to the provisions of Bombay Provincial Municipal Corporation Act, 1949 and byelaws framed thereunder by the builders, owners of the buildings, occupiers, and all concerned with the construction of these buildings. The Court pointed out several aspects which we are not repeating here. Considering the facts and circumstances and the relevant material placed on the record, the Court directed to issue public notice once again informing the public at large occupying high rise buildings to provide fire safety measures within a period of four weeks from the date of publication. Even before this public notice, notices were given. Directions were given to the Municipal Commissioner to write to the Ahmedabad Electricity Company to disconnect electric supply if within the period fire safety measures were not provided. The Corporation and AUDA were directed not to supply any essential services to any building unless and until the building is erected in accordance with law and BU Permission is granted by the competent authority. Ahmedabad Electricity Company was also directed not to provide electricity without BU Permission. It is required to be noted that this direction applies to all 'buildings'. As stated in the order, the Court considered the submissions made on behalf of the Corporation with regard to the powers of the Municipal Commissioner to provide water connection etc. where the owner is not willing to do so. The Court pointed out that in a case where a building was erected in accordance with law, that is: plans were submitted in accordance with law, permission for construction was granted in accordance with law, the construction was completed in accordance with law and thereafter BU Permission was granted in accordance with law and thereafter if the owner of the building was acting in such a way that the tenants or other residents were not getting the essential supplies, then, in such a case, the Commissioner, if approached, was required to decide the matter in view of Section 185-A but certainly he cannot grant permission to occupiers occupying a building, which is erected not in accordance with law and byelaws. It was further pointed out in the order that : "if the builder or a person interested in newly constructed building intends to pass on the building not erected in accordance with law to others, it is the duty of the Commissioner to intervene and to see that such building is not allowed to be used and he can object before the court when an application is moved before the court for use of a building. It is the duty of the court to satisfy on the basis of record placed by the Municipal Corporation whether building is erected as per regulations, F.S.I. etc. or not. If the Court is permitting the persons to use the building which is erected in contravention of laws, then on account of not providing fire safety measures, who would be responsible to life of persons in case of fire? In such case, say for example, even undertaking is given to the Court to provide within a period of one month all fire safety measures, and, the Court permits the use of a building. Unfortunately, in the second week, on account of outbreak of a fire, human lives are lost, who will be responsible." 7. Thus, before the Court, arguments were not restricted to only high rise buildings but arguments were advanced for buildings constructed without permission or illegally. As stated by us the foregoing paragraphs, AMC passed a resolution to the effect that all the buildings shall be continued to be supplied with water supply and drainage facilities as per the guidelines enumerated in the resolution. We are of the view that any resolution passed by any body, which is contrary to the provisions of law, is not to be enforced by the authorities and the authorities are required to enforce the law strictly. We are also of the opinion that buildings irrespective of its size or area must be erected with prior permission of the competent authority, viz. the Municipal Commissioner or AUDA, as the case may be, and persons should be allowed to occupy buildings only after Building Use Permission is granted. It is not for the Court to relax the provisions of law which are made by the legislature. Definition clause (5) of section 2 of BPMC Act indicates what is a building, as under: "(5). 'building' includes a house, out-house, stable, shed, hut and other enclosure of structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorstemps, walls, including compound walls and fencing and the like." 8. Chapter XV refers to Buildings Regulations. Section 253 says that every person who intends to "erect a 'building'" shall give to the commissioner notice of the said intention in the form prescribed in the bylaws and containing all such information as may be required to be furnished under the by-laws. Thus, it refers to 'building' and not to only 'high rise building'. It thus clearly appears that chapter XV of the BPMC Act pertains to all types of 'buildings' and is not restricted to high rise buildings only. One has to read the law as it is. Therefore, if any 'building' within the meaning of the BPMC Act has to be erected , it must be in conformity with Chapter XV. 9. Similarly, definition of the word 'residence' is given in sub-section (xxiv) of Section 2 of the Gujarat Town Planning & Urban Development Act, 1979 (hereinafter referred to as the Development Act), which reads as under: (xxiv) "residence" includes the use for human habitation of any land or building or part thereof, the use of gardens, grounds, garages, stables and out-houses, if any, appertaining to such land or building, and the expression "residential" shall be construed accordingly." That also requires permission from the competent authority to erect or occupy. Thus, the legislature has made it clear that any 'building' which is used for the purpose of occupying as human habitation, must be in accordance with law. Sub-clause (viii) of section 2 of the Development Act refers to' development', which reads as under: (viii). "development' with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining, or other operations in, or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and sub-division of any land." 10. . The word 'building' is not defined in the Development Act. Therefore, one has to take the meaning from another source, if contrary intention is not appearing in making the provision. 'Building' as referred to in the Random house Dictionary of English language, says what 'building' is, as under: (1). A relatively permanent essentially box like construction having a roof and often windows and enclosing within its walls space, usually on more than one level, for any of a wide variety of activities, as living, entertaining, manufacturing etc. (2). Anything built or constructed; (3). The act, business or practice of constructing houses, office buildings, etc. 11. Thus, it is clear that a place made for any activity by the human being under a roof, whatever the nature of it may be, is a 'building'  and that must be erected in accordance with law. Reading the order as a whole and the provisions of law, it is clear that it applies to "all buildings". 12. Reading the directions contained in the order, it is clear that Chairman of AUDA and Commissioner of the Ahmedabad Municipal Corporation were required to carry out the order. That order was made in view of the provisions made by the legislature and earlier orders passed by the Court. 13. Court cannot encourage illegal activities but it would issue directions strictly in accordance with law. Unauthorised construction, may be a small house, a bungalow or a chawl, a slum or a high rise building, but in view of the meaning of the word 'building', there cannot be different treatment. All constructions / buildings must be erected in accordance with law and Building Use Permission is a must for use of the building. No authorities can act contrary to law. Therefore, directions issued earlier on 25.7.2000 must be complied with, with regard to all types of buildings. 14. The Apex Court in the case of ALMITRA H. PATEL & ANR. Vs. UNION OF INDIA & ANR. Reported in (2000) 2 SCC 679 made the following observations, keeping in view the social needs: "Establishment or creating of slums, it seems, appears to be good business and is well organised. The number of slums has multiplied in the last few years by geometrical proportion. Large areas of public land, in this way, are usurped for private use free of cost. It is difficult to believe that this can happen in the capital of the country without passive or active connivance of the land-owning agencies and/or the municipal authorities. The promise of free land, at the taxpayers' cost, in place of a jhuggi, is a proposal which attracts more land-grabbers. Rewarding an encroacher on public land with a free alternative site is like giving a reward to a pickpocket. The Department of Slum Clearance does not seem to have cleared any slum despite its being in existence for decades. In fact more and more slums are coming into existence. Instead of 'slum clearance' there is 'slum creation' in Delhi. This in turn gives rise to domestic waste being strewn on open land in and around the slums. This can best be controlled at least, in the first instance, by preventing the growth of slums. The authorities must realise that there is a limit to which the population of a city can be increased, without enlarging its size. In other words, the density of population per square kilometer cannot be allowed to increase beyond the sustainable limit. Creation of slums resulting in increase in density has to be prevented. What the Slum Clearance Department has to show, however, does not seem to be visible. It is the garbage and solid waste generated by these slums which require to be dealt with most expeditiously and on the basis of priority." The aforesaid observations made by the Apex Court applies to the city of Ahmedabad also. 15. In Special Civil Application No. 3426 of 1998 filed by Peoples Union for Civil Liberties vs. State of Gujarat, a Division Bench of this Court (Coram: D.M. Dharmadhikari, CJ & B.C. Patel, J.) held as under: "In granting, therefore, relief to homeless in cities and those compelled by circumstances and poverty to encroach on land for living in huts, a word of caution given by the Supreme Court in the case of Navabkhan (supra) and Almitra (supra) have to be taken note of, lest such recognition of right of hutment dwellers to live would indirectly encourage encroachments by land grabbers who are part of land mafia operating in cities in the name of poor and needy." 16. Therefore, it is absolutely necessary to follow the provisions of law with a view to see that slumlords and land mafias are not expanding their activities and are not allowed to exploit the poor class and are not allowed to be benefited at the cost of people. The court in the aforesaid case has issued directions to the State to provide land to poor class and that direction was issued with a view to ensure the safety and convenience of the poor class. 17. The order dated 25.7.2000 passed in Spl. C.A. No. 4578/97 by the Division Bench was the subject matter of Special Leave to Appeal (Civil) No. 5421 and 5422 of 2000 before the Apex Court. When the matter came up before the Supreme Court (Coram: D.P. Mohapatra & Mrs. Ruma Pal, JJ.), learned advocate for the petitioners sought leave of the Court to withdraw the petitions saying that the petitioner will approach the High Court for redressal of its grievances, if any. The SLP was accordingly dismissed as withdrawn. SLPs being SLP No. 3648-3649/20001 were also filed before the Apex Court against the same order dated 25.7.2000. That matter came up before the Supreme Court (Coram: B.N. Kirpal & Ms. Ruma Pal, JJ). The Apex Court passed the following order: "Permission is granted to file SLPs. Delay condoned. We find no infirmity in the judgment of the High Court. The Special Leave Petitions are dismissed. However, if the petitioner wants any clarification, it is open to the petitioners to approach the High Court. " Thus, the Apex Court dismissed the petitions on merits. 18. The present petition again came up before the Division Bench (B.C. Patel & R.R. Tripathi, JJ). The said Bench, in its order dated 13.11.2000 again reproduced the previous orders passed by the Court on various occasions. In paragraph 8 of the order dated 13.11.2000, the Division bench observed as under: . "Thus, it is clear that the buildings which were not occupied on the date on which