1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1796 OF 2008 Shabbir Abdul Hussain Tambawala and another ..Petitioners. Vs. The Municipal Corporation of Greater Mumbai and others ..Respondents. ... Mr. J.B. Chinoy, Senior Advocate with Mr. Sanjay Jain i/b Zohair & Co. for the Petitioners. Mr. S.U. Kamdar, Senior Advocate with Mrs. Geeta Jogalekar for the BMC. Mr. Janak Dwarkadas, Senior Advocate with Mr. P.K. Shroff with Mr. S.B. Kotak with Ms. M.M. Bhatt i/b M/s. Parimal K. Shroff & Co. for Respondent No.3. Mr. Suryakant Jadhav for Respondent No.4. .... CORAM: DR. D.Y. CHANDRACHUD, J.& R.S. MOHITE, J. 6th March, 2009. P.C. : 1. Rule, by consent of the learned counsel made returnable forthwith. Counsel appearing for the Respondents waive service. With the consent of the learned counsel and at their request, the matter is taken up for hearing and final disposal. 2 2. The Petition has been instituted under Article 226 of the Constitution inter alia to impugn a no objection certificate granted by the Chief Fire Officer of the Municipal Corporation on 15th April, 2008 and the approval of amended plans providing for internal staircases from the flats on the 29th floor of the building in question to the 30th floor and the construction of two additional rooms on the 30th floor. The building in question is a 29 storeyed building on which the 30th floor is a common terrace. The Third Respondent is the developer while the Fourth and Fifth Respondents are stated to be the owner- occupants of the two flats on the 29th floor of the building where work has been carried out. 3. On 14th March, 2008 a report was prepared by the Assistant Divisional Fire Officer, on a complaint by the Petitioner, in regard to an allegation that (i) a staircase had been illegally constructed inside the flats on the 29th floor leading to the terrace which is situated on the 30th floor; (ii) there was a denial of access from the common staircase to the terrace; (iii) there was a construction of rooms on the terrace 3 without the no objection of the Chief Fire Officer; and (iv) the no objection certificate granted by the Fire Officer for the occupation of the building without access from the common staircase to the terrace was illegal. Acting on the complaint, the Assistant Divisional Fire Officer found upon inspection that two independent staircases had been constructed within the 29th floor so as to provide access to the 30th floor; and that this was “objectionable from fire risk point of view ”. The Fire Officer noted that there was no access from the common staircase of the building to the terrace. It would be material to extract from the report of the Fire Officer which reads as follows : “*Rooms were not found constructed on the terrace at 30th floor level, however two independent staircases with brick walled, RCC top found provided from two amalgamated rooms on 29th floor to the terrace. Both these rooms found furnished & occupied. The terrace also found divided in to two parts by increasing the height of the 29th floor. From the enquiry made with architect it was learnt that the NOC from the CFO's department is not obtained for the construction of two independent staircases with brick walled, RCC top provided from two amalgamated rooms on 29th floor to the terrace. Proving direct access to the terrace (which is refuge area) from residential rooms is objectionable from the fire risk point of view. 1) There is no access from the only one common 4 staircase of the building to the terrace. * Not providing an entry to the terrace from common staircase is highly dangerous from life risk point of view. * The terrace of the building shall be used as refuge area and shall be accessible through FRD (Fire Resisting Door).” The recommendations of the Fire Officer were to the following effect. “RECOMMENDATIONS 1) An entry to the terrace shall be kept from common staircase with fire resisting door. 2) Construction of two independent staircases with brick walled, RCC top from two amalgamated rooms on 29th floor to the terrace without NOC from CFO's department and occupation of the same is highly objectionable and necessary actions shall be taken by EEBP (ES). 3) Direct access from rooms to the refuge area is objectionable and shall not be provided. 4)Electric shaft shall be sealed at every floor level with fire resisting material/ vermiculite cement. 5)Refuge areas on 7th 15th & 23rd floor shall never be locked and shall be clearly marked with luminous paint. 6)Split A.C. Unit compressors installed in the refuge areas shall immediately be removed and refuge area shall not be allowed to occupy or any purposes other than taking refuge in case of an emergency. 5 7)Electric meter room shall be properly ventilated. 8) Manual Call point of fire alarm system shall be rectified and put into working condition. 9)E.E.B.P. (E.S.) shall take necessary actions against the responsible party for non compliance / maintenance of above mentioned fire safety measures.” 4. The aforesaid report dated 14th March, 2008 was endorsed by the Chief Fire Officer. Within a month of the aforesaid report, on 15th April, 2008 a note was appended by the Chief Fire Officer after the architect submitted amended plans for the construction of two additional rooms on the 30th floor with the provision of an internal staircase from the 29th floor. In his noting dated 15th April, 2008 the Chief Fire Officer stated that as far as his department was concerned, there was no objection for permitting the additions and alterations by the construction of two additional rooms and the provision of two internal staircases as noted earlier subject to the payment of a capitation fee. 5. The no objection certificate granted by the Chief Fire 6 Officer has been called into question in these proceedings and it has been urged that despite the earlier objections to the construction of an internal staircase on the ground of fire hazard, there was a complete volte face without having regard to the safety of the residents from the point of view of the fire hazard. Moreover, it was submitted that none of the recommendations which were made in the earlier report were borne in mind, when a no objection came to be issued on 15th April, 2008. 6. On behalf of the Municipal Corporation it has been submitted that there was a change in the situation as it obtained when the earlier report was prepared on 14th March, 2008 since the architect had submitted amended plans for the construction of an additional floor as a result of which a fresh report was prepared on 15th April, 2008. The counsel for the private Respondents have also been heard. 7. In view of the events which have taken place subsequent to the filing of the Petition it has not become necessary for this Court to 7 enter upon the submissions which have been urged on behalf of the Petitioners in any great detail. However, it will be necessary for the Court to observe that the manner in which the earlier objection that were raised on the ground of fire hazards on 14th March, 2008 was deviated from during the space of one month on 15th April, 2008 leaves much to be desired. The Chief Fire Officer is vested with a public duty which has to be exercised in a manner that would protect the public interest which has to be safeguarded by him in granting permissions from the perspective of fire safety. Evidently the no objection that was granted on 15th April, 2008 was issued without any serious application of mind to his own observations in the complaint report dated 14th March, 2008 and without any consideration of whether the objections which had been specifically adverted to were removed. The Chief Fire Officer is obviously oblivious to fire safety and his conduct is, to say the least, unfortunate. He has failed to act responsibly and in furtherance of the solemn obligation cast upon him by his office. The concerns of safety must have utmost priority. The Chief Fire Officer ignored that completely by an evidently blasé attitude. 8 8. Be that as it may, an affidavit in reply has now been filed by the Deputy Chief Fire Officer on 27th February, 2009 stating before the Court that an undertaking has been filed by the owners of Flat Nos.2901 and 2902 to the effect that direct access from the rooms on the 29th floor to the two independent internal staircases to the terrace shall be demolished within a period of twenty days. During the course of the hearing of the proceedings, counsel appearing for the Fourth and Fifth Respondents has stated before the Court that in terms of the undertaking submitted before the Municipal Corporation and appended at Exhibit B to the affidavit of the Deputy Chief Fire Officer, the Fourth and Fifth Respondents shall duly carry out the necessary work of restoration in order to ensure that the position as it obtained in the plans as originally sanctioned on 11th May, 2004 will be restored. Accordingly, it has been stated before the Court that (i) The internal staircases from the 29th floor of the two flats to the terrace shall be demolished within a period of twenty days; (ii) The flooring of the terrace shall be duly restored to its original position within the aforesaid period; (iii) The position as it obtained in the sanctioned 9 plans of May 2004 shall be restored within the same period. The undertaking tendered in the Court during the course of submissions by Learned Counsel on instructions in the aforesaid terms is accepted. 9. In that view of the matter no further directions are necessary nor have any further directions been sought. The Petition shall accordingly stand disposed of. No order as to costs. DR. D.Y. CHANDRACHUD, J. R.S.MOHITE, J.