Orissa High Court
Case Details
AFR ORISSA HIGH COURT: CUTTACK W.A. NO. 2967 OF 2023 In the matter of an appeal under Clause 10 of the Letters Patent of Patna High Court read with Article 4 of the Orissa High Court Order, 1948 and Chapter-III, Rule-6 of the Orissa High Court Rules, 1948. --------------- DRIEMS MBA, Cuttack & Anr. ..… Appellants State of Odisha and others ….. Respondents -versus- For appellants : M/s. G.M. Rath, A.S. Mohanty, S. Jena, M.A. S.S. Padhy, Advocates Bohidar and For respondents : Mr. H.M. Dhal, Addl. Government Advocate P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of judgment : 14.12.2023 DR. B.R. SARANGI, ACJ. The writ petitioners, as appellants, have filed this writ appeal seeking to set aside the common judgment dated 13.11.2023 passed in RVWPET No. 380 of 2023 and batch, by which the learned Single Judge has Page 1 of 22 recalled the common order dated 31.08.2023 passed in W.P.(C) Nos. 20785, 20780, 20794, 20792, 20770, 20767 and 20776 of 2023. 2. The facts leading to filing of this writ appeal, succinctly put, as follows:- 2.1. Appellant no.2 is a society registered under the Societies Registration Act, having the philanthropic aims and objectives inter alia to cater qualitative higher technical studies to the students at par with standard of excellence, and appellant no.1 is an educational institution established by appellant no.2-society, specifically for imparting education in Master in Business Administration (MBA), over Plot nos. 753 & 754, Khata Nos. 594/30 & 594/32 in Mouza- Kandarakana, Tahasil- Tangi-Choudwar in the district of Cuttack. 2.2. The appellant-institution, for the purpose of imparting education, has constructed buildings, after obtaining building plan approval from the Block Development Officer, Office of Panchayat Samiti Tangi, Page 2 of 22 Choudwar, Odisha (“BDO”), vide letter dated 16.07.2013, and completed construction of the buildings prior to 2017. The appellant-institution being located in a rural area, i.e., outside the jurisdiction of any Development Authority, the building plan approval was accorded by the jurisdictional BDO. 2.3.
Legal Reasoning
Pursuant to coming into force of the Odisha Fire Prevention and Fire Safety Rules, 2017 ("Rules, 2017") and the operationalization of the machinery provisions thereunder, the appellant-institution applied for a fire safety certificate in terms of Rule 13 of the Rules, 2017 and were granted with the fire safely certificate bearing No. FIRCER1101020092021000253 having validity up to 29.05.2023. 2.4. Before expiry of the validity period, the appellant- institution filed an application on 09.03.2023 for renewal of the fire safety certificate in terms of Rule14 of the Rules, 2017 and submitted all the requisite documents, including the payment receipt, in the designated online portal on Page 3 of 22 17.03.2023. Respondent no.3, while processing the online application, sought for certain documents on 18.03.2023, 01.04.2023 and 10.04.2023, which were provided by the appellant-institution on 01.04.2023, 10.04.2023 and 18.04.2023. Respondent no.3, in respect of the building, inter alia sought for the approved building plan, along with plan approval letter, which was duly complied with by the appellant-institution by submitting the approved plan along with plan approval letter issued by the Block Development Officer, Tangi-Choudwar dated 16.07.2013. 2.5. The respondent no.3, however, passed an order on 28.04.2023 rejecting the renewal application on the ground that the compliance of the appellant-institution is unsatisfactory. The present appellants challenged the order dated 28.04.2023 passed by the Deputy Fire Officer, Cuttack-respondent no.3, in rejecting the application filed by the appellant-institution for renewal of fire safety certificate, by filing W.P.(C) No. 20785 of 2023. This Court, vide order dated 31.08.2023, disposed of the said writ petition by quashing the rejection order dated 28.04.2023 Page 4 of 22 and directing respondent no.2 to consider the renewal application in the light of the directions issued in the said writ petition and to take a decision thereof at the earliest, preferably within three weeks from the date of receipt of a copy of the order. 2.6. The State-respondents, however, filed a review petition bearing RVWPET No. 380 of 2023 seeking review of the order dated 31.08.2023 passed in W.P.(C) No. 31.08.2023. It is pertinent to mention here that the appellants had filed different writ petitions pertaining to renewal of fire safety certificates in respect of different departments, wherein similar order dated 31.08.2023 was passed. Accordingly, State-respondents filed different review petitions challenging such orders passed in those writ petitions. All such review petitions, i.e. RVWPET No. 380, 391, 392, 393, 394, 395 and 396 of 2023 were taken up together and a common judgment was passed on 13.11.2023. The learned Single Judge in the Review Petitions recalled the order dated 31.08.2023 leaving open for the appellants to ensure compliance of the statutory Page 5 of 22 provisions of the Rules vis-a-vis grant/renewal of fire safety certificates with the building plans duly ratified by approaching the designated authority. The appellants have challenged the said common judgment dated 13.11.2023 passed in RVWPET No. 380 of 2023 and batch in the instant writ appeal. 3.
Legal Reasoning
Mr. S.S. Padhy, learned counsel appearing for the appellants contended that the appellant-institution, being an educational institution, has constructed its buildings in the rural area with approval of the building plans from respondent no.3. The appellant-institution has also got fire safety certificate on 30.05.2021 for the period from 30.05.2021 to 29.05.2023 (midnight) in the prescribed Form-V under Rule-13 (3) of the Odisha Fire Prevention and Fire Safety Rules, 2017. Before expiry of the said period, the appellant-institution applied for renewal of the fire safety certificate. However, vide order dated 28.04.2023, the application filed by the appellants for renewal of the fire safety certificate rejected indicating therein the application of the appellant-institution could not be processed or Page 6 of 22 further query cannot be raised for such relevant documents, as per the existing online procedure & provisions of the Rules, 2017 and amendment made thereto. Therefore, the appellants approached this Court by filing the above referred writ petition. 3.1 It is further contended that the learned Single
Decision
Judge, after due adjudication, disposed of the writ petition by holding that, since approved building plan is in place, which was furnished at the time of issuance of fire safety certificate, it could not have been demanded once again at the time of renewal, and further in view of Rule 13 (3) of the Rules, 2017 the authority concerned may consider the adequacy and operability of fire prevention and safety measures at the time of renewal of fire safety certificate. By so holding, the learned Single Judge quashed the rejection order and directed respondent no.2 to consider the application with regard to renewal of fire safety certificate in favour of the appellant-institution within a period of three weeks. Aggrieved by the said order, the respondents filed review petition bearing RVWPET No. 380 of 2023. Learned Page 7 of 22 Single Judge, relying upon the notification dated 15.02.2020 issued by the Housing and Urban Development Department and the notification dated 28.08.2020 issued by the Home Department, Government of Odisha, came to a finding that as per notification dated 15th February, 2020 of the Government of Odisha in Housing and Urban Development Department, the notification dated 20th May, 2016 of the Panchayati Raj Department superseded by notification dated 7th June, 2018 sets the guidelines vis-à- vis projects which have come up after 2016, but in respect of projects prior to 2016, in the absence of any instruction, approval of building plan/project in the rural areas were accorded by the BDOs and PRIs, but in order to streamline all such projects, jurisdiction was vested in the District Urban Development Authority. Thus, the building plans approved by the BDOs are needed to be ratified and approved again by the District Town Planning Unit for consideration of renewal of fire safety certificates. It was also observed by the learned Single Judge that having regard to the discussions, the Court reaches at a logical Page 8 of 22 conclusion that a whole set of guidelines have been laid down vis-à-vis the renewal of fire safety certificate, which requires approval of the building plans by the competent authority even in respect of plans earlier approved by the BDOs in respect of rural areas. Thereby, vide judgment dated 13.11.2023, allowed RVWPET No. 380 of 2023 and batch, which were also filed against orders of the learned Single Judge passed in different writ petitions. Consequentially the order dated 31.08.2023 passed in W.P.(C) No. 20785 of 2023 was recalled, as per the discussion made in the said judgment. 3.2. According to the learned counsel for the appellants, learned Single Judge has committed gross error apparent on the face of the record. Learned Single Judge has not taken into consideration that the appellant- institution was established in rural area, after getting the building plan approved by the BDO on 16.07.2013. More so, the appellant-institution is an educational institution and after receipt of such building plan, the fire safety certificate was also granted in favour of the appellant- Page 9 of 22 institution on 30.05.2021 for the period from 30.05.2021 to 29.05.2023 (midnight) in the prescribed Form-V under Rule-13 (3) of the Rules, 2017. Before expiry of such period, the appellant-institution applied for renewal of the said certificate. However, vide order dated 28.04.2023, since the said application for renewal was rejected, the appellants approached this Court by filing W.P.(C) No. 20785 of 2023. Learned Single Judge, vide order dated 31.08.2023, quashed the rejection order and directed respondent no.2 to consider the application with regard to renewal of fire safety certificate in favour of the appellant-institution within a period of three weeks. But subsequently, by virtue of a review petition filed by the respondents, relying on two government circulars, learned Single Judge recalled the order dated 31.08.2023 and reversed the same by the judgment impugned, which cannot be sustained in the eye of law. It is further contended that the notification dated 15.02.2020 issued by the Housing and Urban Development Department and the notification dated 28.08.2020 issued by the Home Department, Government of Odisha may have Page 10 of 22 some prospective application, but those cannot have any retrospective application. Since the appellant-institution has already got necessary plan approval on 16.07.2013 and fire safety certificate has already been granted, at the time of renewal of fire safety licence, production approved building plan should not have been instituted upon. More particularly, the appellant-institution having been situated in rural area, the Town Planning Officer has no jurisdiction over the same, unless the institution comes within the urban area. It is further contended that if close scrutiny is made to the notification dated 15.02.2020 issued by the Housing and Urban Development Department and the notification dated 28.08.2020 issued by the Home Department, Government of Odisha, they only apply to the buildings which are situated in town area and come under the Real Estate (Regulation & Development) Act, 2016. Neither the building of the appellant-institution is situated in urban area, nor is it regulated by Real Estate (Regulation & Development) Act, 2016, therefore, the question of moving an application for grant of building plan approval by Page 11 of 22 Odisha Real Estate Regulatory Authority does not arise. If those notifications will have any application, the same will be applied prospectively and not retrospectively. Thereby, learned Single Judge has committed gross error apparent on the face of record by relying on the notifications dated 15.02.2020 and 28.08.2020 and recalling the earlier order dated 30.08.2023 passed in the writ petition. 4. Mr. H.M. Dhal, learned Additional Government Advocate contended that since the appellant-institution seeks for renewal of the fire safety licence on the basis of the building plan approved on 16.07.2013 and hence not required to submit fresh plans for renewal of its fire safety certificates under Rule 14 of the Rules, 2017 and in any event Rule 9(12) thereof empowers exemption only in respect of the buildings constructed prior to commencement of the said Rules, 2017, but the above provision has suffered an amendment on 06.03.2019. It is, thus, contended that in view of such amendment vide Annexure-15, Rule 9(12) of the Rules, 2017 is no more applicable. In other words, fresh approval is needed to be Page 12 of 22 obtained from the competent authority, namely, District Town Planning Unit, while seeking renewal of fire safety certificates in respect of the institutions which had been granted under the Onetime Relaxation Scheme vide notification dated 28.08.2020 and in so far as exemption under Rule 9(12) of the Rules, 2017 is concerned, it shall be in respect of the buildings constructed or occupied prior to the commencement of the Odisha Development Authorities Act. Since such aspect was not considered and amended Rule 9(12) of the Rules, 2017 was not brought to the notice of the Court, it has led to the passing of the impugned order dated 31.08.2023. When such facts were brought to the notice of the learned Single Judge in the review petition, the same were taken note of and the impugned judgment in review petition was passed by recalling the order passed in the writ petition. Thereby, no illegality or irregularity has been committed by the learned Single Judge, while passing the impugned judgment, and accordingly prayed for dismissal of the writ appeal. Page 13 of 22 5. This Court heard Mr. S.S. Padhy, learned counsel appearing for the appellants and Mr. H.M. Dhal, learned Additional Government Advocate for the State- respondents. Since this is an intra court appeal and this Court has to examine the error apparent on the face of the judgment passed by the learned Single Judge, therefore, with the consent of learned counsel for the parties, the writ appeal is being disposed of finally at the stage of admission. 6. There is no dispute before this Court that the appellant-institution is an educational institution established in rural area and imparting higher education to children. As per the verification of Assistant Engineer and the request of Sarpanch, Kotasahi Gram Panchayat, Tangi, Cuttack, the Block Development Officer, Tangi-Choudwar, vide order dated 16.07.2013, approved the building plan. After the appellant-institution was established, it has also got necessary fire safety certificate in prescribed Form-V under Rule-13 (3) of the Rules, 2017 on 30.05.2021 for the period from 30.05.2021 to 29.05.2023 (midnight). Before expiry of such period, the appellant-institution applied for Page 14 of 22 renewal of the said certificate. But, vide order dated 28.04.2023, the application filed by the appellant- institution for renewal of the fire safety certificate was rejected. Against the said order of rejection, the appellants filed writ petition. On consideration of the submissions of learned counsel for the parties and after going through the records, learned Single Judge allowed the writ petition and directed that renewal should be granted within a period of three weeks. But, review petition was filed by the State Government on the plea that Rule 9 (12) of the Rules, 2017 has undergone amendment on 06.03.2019, and, therefore, in view of the amended provision, the appellant-institution is not entitled to get renewal of the fire safety certificate since it has no valid plan approval of the building from the competent authority. It is not the case of the appellant- institution that it has no valid approved plan and that it is seeking for new fire safety certificate. But the record indicates that the appellant-instituion applied for renewal of the fire safety certificate, as provided under Rule 14 of the Rules, 2017. As such Rule 9 (12) of Rules, 2017 Page 15 of 22 empowers exemption only in respect of the buildings constructed prior to commencement of the Rules, 2017, but the above provision has suffered an amendment on 06.03.2019. If that be so, since the appellant-institution has applied for renewal of its fire safety certificate that will not suffer pursuant to the amendment made to Rule 9 (12) on 06.03.2019. 7. There is no dispute before this Court to the fact that the appellant-institution was established after getting due approval of building plan from the competent authority as it is situated in rural area. After the same was established, it received the fire safety certificate from the competent authority. When the question of renewal came, the same was denied placing reliance on the two notifications, i.e., notification dated 15.02.2020 issued by the Housing and Urban Development Department and the notification dated 28.08.2020 issued by the Home Department, Government of Odisha. Relying on such notifications, learned Single Judge has recalled its earlier order dated 31.08.2023 passed in W.P.(C) No. 20785 of Page 16 of 22 2023. On perusal of such notifications, it is made clear that no where it has been indicated that the same have retrospective application. But these notifications would apply prospectively, that too, to the real estate projects registered under the ORERA, irrespective of location of the projects, and consequent upon publication of such notification by the ORERA, a large number of real estate projects, which were taken up in rural areas based on the approval of BDOs/PRIs have applied for registration with ORERA. Since the approvals of BDOs/ PRIs were accorded, prior to issuance of guidelines by the PR & DW Department, ORERA is not the authority to grant registration to the projects of the appellant-institution. As such, from the notifications it is made clear that land and building development in rural areas brought into the fold of planned development specifying the guidelines for approval of plans (lay-out & building) outside the jurisdiction of Development Authorities/ Regional Improvement Trust/ Special Planning Authorities, which is subsequently superseded by notification dated 07.06.2018 with details of scrutiny fees/ Page 17 of 22 development fees, procedure of approval of building plans for land area exceeding 500 sqm and/or building above Ground + 2 floors and / or land sub-division lay out plans above 1.00 acres. 8. Thus, it is made clear that the Panchayati Raj and Drinking Water Department Notification dated 20.05.2016 sets guidelines for projects, which have come up after 2016. But prior to 2016, in the absence of any instructions, approval of building plans/ projects in the rural areas were being accorded by BDOs/ PRIs and relying on the approvals accorded by BDOs and PRIs, housing projects have come up and public have bought their homes from various developers. A very interesting thing, which has been mentioned in this notification, is housing projects, which have come up by the developers. In that case, the notification may have some application, and that too would apply prospectively in absence of any approved plan. 9. Now, coming to the question of applicability of the notification dated 28.08.2020, on which much reliance has been placed by learned Single Judge while reviewing its Page 18 of 22 own order, under the heading relaxation of planning and building norms in respect of approved plan, it has been indicated at point no. (i) that in case of buildings having no approved plan, the owner or occupier shall submit the building plan as per actual construction being signed by himself and a registered architect. Here in the instant case, it is not the case of the parties that the appellant- institution does not have any approved building plan, rather the appellant-institution has got approved building plan from 16.07.2013. Similarly, at point no. (ii) it has been indicated that in case of Government buildings, if the plan is prepared by a technical person of Government Departments like Works, CPWD, RD, OPH & WC and others, the same shall be accepted for issuance of fire safety certificate. Obviously, the 2nd point does not apply to the case of the present appellants. 10. It is of relevance to note that in exercise of the powers conferred by Section 26 of the Odisha Fires Service Act, 1993 and in supersession of any previous order or notifications issued in this regard, the State Government Page 19 of 22 made Odisha Fire Prevention and Fire Safety Rules, 2017, which got notified on 26.09.2017. Rule 13 thereof deals with fire safety certificate. Rule 13(2) prescribes that on receipt of application under sub-rule (1), the premises shall be inspected in presence of owner or his authorised representative by a team of officers constituted by the Director to ascertain the adequacy and operability of the fire prevention and fire safety measures etc. and report to the Director or authorised member in Form-IV. Whereas Rule 14, which provides for validity and renewal of fire safety certificate, the application for which is to be made in Form-VI. But on perusal of the notifications issued on 15.02.2020 and 28.08.2020, it reveals that applications in prescribed Form IV of Odisha Fire Prevention and Fire Safety Rules, 2017 are to be made. So far as renewal is concerned, the notifications dated 15.02.2020 and 28.08.2020 may not have any application. If at all the same would be applied, it would be prospective but not retrospective, more particularly to an educational Page 20 of 22 institution, which has been established with approved plan and is having the fire safety certificate. 11. In view of the above, this Court is of the opinion that the learned Single Judge has committed gross error apparent on the face of the record by recalling his earlier order dated 31.08.2023 and leaving it open to the appellant-institution to ensure compliance of statutory provisions of the rules vis-a-vis grant/renewal of fire safety certificate with the building plans duly ratified by approaching the designated authority. 12. Since the appellant-institution is an educational institution and regulated by own rules and regulations and, more particularly, the appellant-institution having been set up in rural area with prior approval of the building plan by the BDO and consequentially fire safety certificate has already been granted, the renewal thereof has to be granted in consonance with the provisions contained under the Rules, 2017. Thereby, the judgment dated 13.11.2023 passed by the learned Single Judge in RVWPET No. 380 of Page 21 of 22 2023 and batch cannot be sustained and the same is liable to be quashed and is hereby quashed. As a consequence thereof, the orders passed by the learned Single Judge dated 31.08.2023 in W.P.(C) No. 20785 of 2023 and other connected writ petitions are restored. The respondents are directed to comply the order dated 31.08.2023 by granting the renewal of fire safety certificate within a period of three weeks from today. 13. Resultantly, the writ appeal is allowed. But, however, in the facts and circumstances of the case, there shall be no order as to costs. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE M.S. RAMAN, J. I agree. (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 19-Dec-2023 15:06:22 Orissa High Court, Cuttack The 14th December, 2023, Arun Page 22 of 22