Can't Condone Everything By Taking Money: Bombay HC Criticizes BMC For Defending Stacked Parking Allegedly Violating Fire Safety Norms
Sharmeen Hakim
12 Jan 2024 2:35 PM GMT
The Bombay High Court on Friday took strong exception against the civic body's responses to a potential fire hazard owing to stacked parking, blocking the access to a building in Borivali.A division bench of Justices Gautam Patel and Kamal Khata orally remarked,"...We know of no principle in law by which the fire safety of those living in buildings of less than 13 floors can be said to be...
The Bombay High Court on Friday took strong exception against the civic body's responses to a potential fire hazard owing to stacked parking, blocking the access to a building in Borivali.
A division bench of Justices Gautam Patel and Kamal Khata orally remarked,
"...We know of no principle in law by which the fire safety of those living in buildings of less than 13 floors can be said to be less important than the safety of those living in high-rises."
The court pointed out that merely because the builder had paid a premium to the civic body for additional construction, fire safety could not be abandoned.
"The suggestion that every violation, transgression or deviation from well established safety norms can be condoned in exercise of discretionary powers simply by taking money is so utterly reprehensive, we dare say that no court would countenance it.”
The court was hearing a petition by an ophthalmologist running an eye hospital in the building. His petition challenged the approval of a mechanized cantilever car parkings that left no mandatory open space for fire engines/ambulances to enter, violating various fire safety and building regulations.
He claimed the BMC overlooked the illegality and arbitrarily waived the open space condition under the development control rules, further impeding the petitioner's rights under Articles 14,19 and 21 of the Constitution of India.
Represented by counsel Abhinav Chandrachud, advocate Sachin Mhatre & Diksha Shirodkar the petitioner alleged the BMC overlooked comments in the fire NOC. He claimed permissions were granted after payment of premium.
Lastly, he sought directions for the respondents to relocate or remove the illegally installed car parkings from the building's open space.
In response, the BMC claimed in an affidavit that the concessions being sought were granted by the Municipal Commissioner in 2013 itself and that all changes to the plan complied with the developmental plan 2034.
The fire department in an affidavit claimed there were no fire safety violations. That since the height of the building was below 32 meters it could be accessed from the main road. Moreover, it was the petitioner's duty to check the building plans before purchasing the premises in 2019. The authorities further claimed that a small ambulance could always fit below the cantilever.
However, on bare perusal of the photographs the court was livid on Friday. It wondered how the fire tender would access the relevant part of the building. It pointed out that even by foot a person couldn't reach the petitioner's premises. However, the court said the society should be given a chance to contest the petition before a final order was passed.
“For some reason that we cannot understand, this Petition has been vigorously opposed by the Municipal Corporation of Greater Mumbai (“MCGM”). We will have quite a lot to say about the Affidavits filed by the MCGM and by the Deputy Chief Fire Officer. This is because, from the material that is now available, including photographs annexed to the MCGM's own Affidavit, it is abundantly clear that stack parking as provided completely obstructs the entrance driveway of the Society building and obstructs significantly even foot access to the Petitioner's premises.”
The court added that it was pointless to get into a dispute about whether an “ambulance” could enter and pass under the cantilever. “The controversy is needless because in answer the MCGM annexes photographs that prima facie purport to show an undersized ambulance. It is common ground, however, and the Chief Fire Safety Officer is present in Court, that no fire tender can possibly enter this driveway,” said the Court.
We reject out of hand here and now the argument that access by fire engines is unnecessary because the building is less than 13 floors, it added.
The court has now given one last chance to the society to respond and kept the matter for hearing on January 18, 2023.
