Urban Development: Delhi Fire Service Rules 2010: rr. 27, 28, 33, 34 to 37, 39, 40 and 42 – Sanction for revised building plan – Failure and/or refusal of South Delhi Municipal Corporation (SDMC) – Appellant, owner of premises applied to SDMC for sanction of a building plan for construction of residential building as per the bye-laws – Height of the building shown as 15 meters including stilt as permissible as per bye-Laws – Plan duly sanctioned – Subsequently, the Ministry amended the Master Plan for Delhi – Appellant applied for sanction of Revised Building Plan – However, the same was not sanctioned for want of fire clearance – As per the amendment, maximum height of the building would be 15 meters, in plots without stilt parking and buildings upto 17.5 metres in height, with stilt parking, and such residential building were not to be considered as high rise building – Amendment also required that clearance of the Fire Department would be obtained by the individual plot owner – Height of the appellant’s building was 16.6 with the parking stilt, which was well below 17.5 meters as provided in the Master Plan – Writ Petition by the appellant challenging refusal of SDMC to sanction a revised plan; and seeking setting aside of s. 27(2) – Dismissed by the High Court – On appeal, held: In view of the amendment to the Master Plan for Delhi 2021, a building with stilts which is 17.5 meter or less in height cannot be considered as a high rise building – If a building is not a high rise building, it will not be a multi-storied building – Under clause 8.0 of the Unified Building Bye-Laws for Delhi 2016, clearance from Delhi Fire Service is mandatory only for High Rise Building – However, the building of the appellant, under construction is not a High Rise Building – Thus, clearance from the Delhi Fire Service is not mandatory for sanction of the Revised Building Plan submitted by the appellant – No doubt the appellant must comply with safety requirements including fire requirements necessary for buildings which are not high rise – However, rules applicable to High Rise buildings cannot be applied to buildings which are not High Rise Buildings – Thus, the High Court erred in not directing the SDMC to approve the revised plan of the appellant – Order passed by the High Court is quashed and set aside – SDMC to take decision on the application for sanction of Revised Plan within the stipulated time – Delhi Development Act 1957 – Delhi Development (Master Plan and zonal Development Plan) Rules, 1959 – Delhi Municipal Corporation Act, 1957 – New Delhi Municipal Council Act, 1994 – Unified Building bye-Laws for Delhi, 2016 – Delhi Fire Service Act, 2007 – ss. 2, 32 to 35 – Development Code of Master Plan and the Building Bye-laws 1983.
Delhi Fire Service Rules, 2010: r 27 – Classes of occupancies likely to cause a risk of fire – Writ petition seeking amendment of r.
27 to bring the same in conformity with the master plan, as amended whereby building taller than 15 metres (without stilt) and 17.5 metres (including stilt) in all south zone would be considered as high rise building – Held : There are no cogent grounds of challenge to r 27 – Height prescriptions differ from place to place, based upon in-depth study and consideration of all relevant factors – A meaningful purposive construction of r. 27 is required, in the light of the DD Act and the applicable Building Bye-laws r/w the Master Plan, as amended – Thus, the challenge to r 27(2) was misconceived and the High Court rightly rejected the challenge. Partly allowing the appeal, the Court
HELD: 1.1 Rule 27 of the Fire Service Rules, enumerates the classes of occupancies which are likely to cause risk of fire. Residential buildings (other than hotels and guest houses), having height above 15 meters or having ground plus four upper storeys, including Mezzanine floors are deemed to cause risk of fire. [Para 72][888-E-F]
1.2. Under Rule 28 the minimum height of the buildings, for the purposes of sub-section (1) of Section 33 and subsection
(1) of Section 35 of the Fire Service Act, would be, as specified in Rule 27, that is, height more than 15 meters or ground plus four upper storeys in case of residential buildings. Height more than
15 metres would necessarily have to be construed as height more than 15 metres without stilt parking or excluding the height of stilt parking within the limits as prescribed. [Para 73][888-G]
1.3. Building bye-laws have been defined in Section 2(c) to mean bye- laws made under the Delhi Cantonment Act, 1924, the Delhi Municipal Corporation Act 1957, the New Delhi Municipal Council Act, 1994 or the regulations made under subsection (1) of Section 57 of the Delhi Development Act, 1957 or the bye-laws made by the Central Government by publication in the Official Gazette, relating to buildings in Delhi. The prevalent bye-laws and in particular 1.3.3 of the Unified Building Bye-Laws issued by the DDA makes it amply clear that the words and expressions used in the bye-laws would have the same meaning or sense as in the DD Act. Bye-law 1.3.3 makes it absolutely clear that all Master Plan/Development Control Regulations regarding use, coverage, F.A.R., set-backs, open spaces, height, number of storeys, number of dwelling units, parking standards etc. for various categories of buildings including modifications therein made from time to time shall be applicable mutatismutandis to the Building Regulations. In view of the Master Plan read with building bye-laws, high rise building/multi-storeyed building would mean a building taller than 15 meter without stilt or 17.5 metre with stilt. [Para 82][890-C-F]
1.4. “Multi-storeyed building” is defined in Section 2(s) of the Fire Service Act to mean a building with such minimum height, as may be prescribed under the rules in this behalf, and notified to the Director by the local authority. “local authority” has been defined in Section 2(q) of the Fire Service Act to mean the Delhi Cantonment Board established under the Cantonment Act, 1924, the Delhi Development Authority, the Municipal Corporation of Delhi, the New Delhi Municipal Council Act or any other Authority under any other law which might be notified in this behalf by the Central Government or the Government, as the case may be. [Para 83][890-G-H]
1.5. In the absence of any specific prescription of height in terms of Section 2(s) of the Delhi Fire Service Act or notification to the Director, the Master Plan read with the applicable Building Bye-laws, is to be deemed the prescribed height notified in terms of Section 2(s). The prescribed height is deemed to be height not exceeding 15 meters without parking stilt and/or excluding the height of the stilt parking, upto the maximum limit permitted. [Para 84][891-A-B]
1.6. Rule 27(2) which reads Residential Buildings (other than hotels and guest houses) having height more than 15 meters or having ground plus four upper storeys including mezzanine floor, has to be construed as residential building having height more than 15 meters excluding stilt. It is implicit in the Fire Safety Rules that only buildings with stilt parking, exceeding 17.5 meters in height, would be considered as high rise building and/or multistoreyed building.[Para 85][891-C]
1.7 The prayers in the Writ Petition filed in the High Court for amendment of Rule 27 of the Fire Service Rules are misconceived. There are no cogent grounds of challenge to Rule
27 of the Fire Service Rules. Height prescriptions differ from place to place, based upon in depth study and consideration of all relevant factors. There could be no question of this Court directing the Lieutenant Governor of the National Capital Territory of Delhi to amend Rule 27. What is required is a meaningful purposive construction of Rule 27, in the light of the DD Act and the applicable Building Bye-laws read with the Master Plan, as amended. The challenge to Rule 27(2) was misconceived. It is also well settled that orders in the nature of Mandamus directing a rule making authority to amend Rules is not granted by the High Court in proceedings under Article 226 of the Constitution. The High Court rightly rejected the challenge to the said Rule, however erred in dismissing the Writ Petition without granting any relief to the appellant. [Paras 86, 96, 97][891D-E; 898-A-B]
1.8 There can be no doubt that any construction has to conform to regulations made in the larger interest of the inhabitants of the city, to protect environment, prevent fire, prevent accidents, provide for essential amenities etc. There can also be no doubt that regulatory provisions for construction activities are in public interest. At the same time a building which is not a high rise building as per the applicable rules or regulation cannot be compelled to comply with fire prevention and fire safety regulations applicable to high rise buildings. [Paras 91, 92][897B-C]
1.9 The appellant had got a plan sanctioned from the MCD on 15.07.2013. At that time the height of the building permissible under Bye-laws was 15 metres which included the stilt, which had been made mandatory. Upon amendment of the Master Plan by Notification dated 23.09.2013 published on 21.10.2013 maximum height of the building was prescribed as 15 metres without stilt parking and 17.5 metres with stilt parking. After the amendment, the Master Plan provides that buildings up to 15 metres without stilt parking and 17.5 metres with stilt parking are not be to considered as high rise and for the purpose of fire and life safety requirements, clearance of Fire Department was to be obtained by the individual plot owner. The appellant was entitled in law to take advantage of the amended Master Plan for Delhi and he accordingly applied to SDMC for sanction of revised plan on 20.01.2014. The revised plan was referred to the Delhi Fire Service Authorities by SDMC on 22.01.2014. [Para 93][897C-F]
1.10. Under clause 8.0 of the Unified Building Bye-Laws for Delhi 2016, clearance from Delhi Fire Service is mandatory only for High Rise Building. The Building of the appellant, under construction is not a High Rise Building. Clearance from the Delhi Fire Service is therefore, not mandatory for sanction of the Revised Building Plan submitted by the appellant. There can be no doubt that the appellant must comply with safety requirements including fire requirements necessary for buildings which are not high rise. However, rules applicable to High Rise Buildings cannot be applied to buildings which are not High Rise Buildings. [Para 94, 95][897-F-H]
1.11. Admittedly the building in question does not exceed
17.5 meter with parking stilt. Height exceeding 15 meter to qualify as high rise building must be construed as height exceeding 15 meter without stilt parking and/or excluding the permissible height of stilt parking as per the building regulations read with the Master Plan of Delhi. The building in question is not a high rise building. [Para 98][898-C]
1.12. Irrespective of whether fire clearance is mandatory in respect of the buildings, which are not high rise, it is open to the SDMC to get clearance from the fire service authorities to ensure that fire safety measures are not contravened. However, fire clearance is granted subject to compliance of minimum standards for fire prevention and fire safety in respect of the kind of occupancy as provided in the building bye-laws and/or the National Building Code of India. Provisions of Building Regulations and/or Bye-laws and/or National Building Code, not applicable to high rise buildings are not attracted in the case of the building in question. [Para 99][898-D-E]
1.13. The Fire Service Authorities can only ensure that the buildings comply with fire safety requirements, if any, applicable to residential buildings, which do not fall within the ambit of high rise buildings. The submission that the Fire Service Authorities do not have ladders of adequate length to tackle outbreak of fire in buildings exceeding 15 meter is fallacious and cannot be ground to deny the owner of property, the right to carry out construction at his property, in accordance with the applicable building laws, read with the Master Plan for Delhi, and thereby deprive the owner of his right to effectively utilise his property. [Paras 100, 101][898-F-G]
1.14 There is no prohibition on construction of buildings exceeding 15 meters in height. The dispute is with regard to classification of the buildings- Whether such buildings are to be classified as high rise and subjected to specific Rules and Regulations applicable to high rise buildings. The difference in height is only about 4/5 feet. The height is well within 17.5 meter with stilt parking as provided in the Master Plan. If the Delhi Fire Service Department does not have ladders to tackle fire in buildings exceeding 15 meters even by a few feet, existing buildings exceeding 15 Meters in height and their inhabitants are doomed. It is preposterous to even think that multi-storeyed buildings would be left to their own fire fighting facilities and their own existing staircase in case of outbreak of fire. The argument seems preposterous. If the Fire Service authorities do not have adequate fire fighting equipment, they would necessarily have to acquire the same in the interest of the people.[Para 102][898-H; 899-A-C]
1.15. The Court need not go into the question of whether any clearance of the Fire Service Authorities is at all necessary. However, in view of the amendment to the Master Plan for Delhi 2021, as amended in September, 2013 by S.O. No. 678(E) dated 4th March 2014, a building with stilts which is 17.5 meter or less in height cannot be considered as a high rise building. If a building is not a high rise building, it will not be a multistoried building. [Para 103][899-C-D]
1.16. SDMC cannot keep sanction of the Revised Building Plan submitted by the Appellant, way back in January, 2014, in abeyance indefinitely. Nor can sanction be rejected on the ground of non-compliance of fire service requirements applicable to multi-storied/high rise buildings. A decision with regard to sanction has to be taken within the time stipulated in Clause 2.3.1 of the Unified Building Bye-laws. Under Clause 2.3.3(b) of the Unified Building Bye-laws, approval/refusal of agencies, such as Delhi Fire Service must be intimated within 15 days, or the time stipulated in Chapter III of the Unified Building Bye-Laws, whichever is earlier. A decision has to be taken by the Fire Service Authorities within a maximum period of 15 days. It hardly need be mentioned that in case of refusal, reasons are mandatory, for compliance with principles of natural justice. It may however, be open to the SDMC to obtain the opinion of the Fire Service Authorities. It is made clear that objections would not be raised on the sole ground of non-compliance of rules not applicable to a residential building which is not a high rise building. A decision shall immediately be taken on the application for sanction of Revised Plan submitted on 14th January 2014 in the light of the observations made, keeping in view the timelines stipulated in Clause 2.3.1 of the Unified Building Bye-laws. [Para 104][899-EH]
1.17. The SDMC may in its discretion seek clearance from the Fire Service Authority, but such clearance shall not be withheld on the ground of noncompliance of requisites applicable to high rise buildings, or on the frivolous ground of unavailability of ladders of adequate size to carry out inspection. If no views are expressed within the time as stipulated in the Unified Building Bye-laws and in particular Clause 2.3.3 thereof, clearance will be deemed to have been granted. [Para 105][900-A-B]
1.18 The impugned order rejecting the Revised Building Plan is set aside and quashed. [Para 106][900-C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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