The Ahmedabad Medical Association and 44 other Petitioners have filed the present petition challenging the impugned notices and action of Respondent No. 2 in sealing the hospitals of the Petitioner Nos. 2 and 3.
The Petitioners are members of the Ahmedabad Medical Association. In August 2020, a fire incident took place in the Shrey Hospital at Ahmedabad, which led to the loss of eight innocent lives. A Public Interest Litigation was filed seeking various reliefs, in which the Division Bench passed various orders. In the meantime, Respondent No. 2 issued a public notice on 22.02.2021 stating that under the prevalent laws, it is necessary to obtain the BU permission and Fire NOC before occupying any premises, and appropriate action would be initiated against those who do not comply with the guidelines mentioned above.
The Petitioners, Doctors, and other Association members could assess their situation, collate all papers pertaining to their property, and make necessary applications pursuant to the said public notice. The Petitioners were individually served with the Notices calling upon them to produce the BU permission and Fire NOC.
It was stated that if they failed to produce the BU permission and the Fire NOC within three days, their hospitals would be sealed. On the receipt of such Notices, the Petitioners made individual representations to the various Zonal Offices of Respondent No. 2. However, in the meantime, Respondent No. 2 already partially sealed the hospital premises of the Petitioner Nos. 2 and 3.
The learned Counsel relied upon the chart produced by the Petitioners and submitted that almost all the Petitioners had the NOC as required under the Fire Safety Measures Act. Therefore the Respondent corporation should not take the drastic step of sealing the hospital premises of the Petitioners and the other members of the Association just because the Petitioners did not have valid BU permission for the premises.
He stated that even though there are thousands of buildings without the Fire NOC and the BU permission, the Respondent issued impugned notices only to the Petitioners. He also submitted that the action of the Respondent corporation is arbitrary as it had failed to give sufficient time to the Petitioners to respond to the Public Notices issued by it on 22.02.2021.
Lastly, it was noted that the Association members have several indoor patients who need immediate medical intervention and supervision. Therefore the Respondent corporation should not take the drastic step of sealing the hospital premises of the Petitioners in the larger interest of the public.
The learned Counsel submitted that as the Petitioners failed to comply with the mandatory provisions of the GPMC Act and Fire Safety Measures Act, they cannot claim reverse/ negative equity. It was stated that the occupier and/or owner could not use any building or part of any building without having valid BU permission for such building.
He also submitted that even the use of any building other than the use sanctioned by the authority is not permitted as per Clause 3.9.4 of the GDCR, and therefore if any occupier and/or owner is not holding the valid BU permission for using the building for the purpose other than the sanctioned purpose, cannot continue with the occupation or use.
The Court referred to Section 268 of the GPMC Act, which empowers the Commissioner to order any building or any portion thereof to be vacated by giving written notice if such building or a portion thereof has been unlawfully occupied in contravention Section 263. Several clauses of the GDCR are also referred to. Clause No. 3.9 prescribes the procedure for obtaining the BU permission, and Clause 3.8 provides for the revocation of the BU permission.
Clause 3.9.4 thereof provides explicitly that no building or premises shall be changed or converted to a use other than the sanctioned use without prior permission of the authority in writing and that the change of use not in conformity with the regulations shall not be permissible. Clause 4.3.2 casts responsibility on the owner or the developer to obtain the Building Use permission before making the use or occupying the building.
Chapter V of the Fire Safety Measures Act was referred to, which pertains to fire prevention and life safety measures. Section 18 thereof requires the owner or the occupier of the building, as classified by the regulations or part thereof, to provide fire prevention and life safety measures. Section 19(i)(a) provides that no authority empowered to issue a building use certificate shall issue the same unless it is satisfied that the owner or occupier either individually or jointly has complied with the provisions of Section 18 and has obtained the Fire Safety Certificate. The Commissioner has powers under Section 268 to order any building or part thereof to be vacated if the same has been unlawfully occupied in contravention of Section 263.
It can be inferred that the Petitioner did not have any valid BU permission for occupying the premises, and thus it is a violation of the provisions contained in Section 263 of the GPMC Act and the provisions contained in the CGDCR. Neither did the Petitioner make any concrete efforts to obtain or place on record the valid BU permissions. The Respondent did not violate the Legal or Statutory Right of the Petitioners in issuing the impugned notices.
The Case of VM Kurian versus the State of Kerala, (2001) 4 SCC 215 was cited, which held that there could be no relaxation in the fire safety rules of buildings as they are mandatory. The Cases Indo Council for Enviro Legal Action versus Union of India, (1996) 5 SCC 281, and Union of India versus International Trading Co., AIR (2003) Supreme Court 3983 were also mentioned.
The Petition was dismissed. In the interest of the patients admitted at the hospital, the Court directed the Respondent Corporation not to take any action pursuant to the impugned notices issued to the Petitioners for a period of two weeks, i.e., up to 17th June 2021.
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