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Judgment
This application seeks review of order dated 31.08.2021 in O.A No. 65/2021. By the said order, the Tribunal considered the issue of violation of environmental norms leading to the death of a 35 year old man, who was charred to death due to fire accident in the course of operation of an illegal factory operating in violation of safety norms laid down under the EP Act, in Pratap Nagar in North Delhi, as reported in the Times of India dated 28.02.2021. The deceased was identified as Upchand Kumar, resident of Siwan in Bihar.
The Tribunal constituted a five member joint Committee to visit the site, ascertain the cause of the incident and extent of compensation to be paid, apart from steps for preventing such occurrence in future.
The joint Committee filed its report dated 24.08.2021 after undertaking visit to the site and reported that the incident took place in a factory operating in violation of the judgement of the Hon'ble Supreme Court in M.C Mehta v. UoI & Ors., (2004) 6 SCC 388 in residential area and in violation of safety norms and without requisite consent as per Environmental laws. The persons accountable for the incident were said to be the landlord and tenants of the building namely;
Shri Heera Lal Raheja S/o Shri Paras Ram Raheja, r/o K-6, 2nd floor, Partap Nagar, 10, State bank of India, Sadar Bazar, Delhi.
Shri Sanjay Prashad S/o Shri Ram Prashad, r/o A-175, SK - 1, Sector - 93, Gautam Buddha Nagar, Noida, UP.
Shri Vijay Gupta c/o M/s Shree Swastika Silicate Mills, 18 UB Jawahar Nagar, Delhi - 7.
Compensation was assessed at Rs. 96,18,750/-, apart from compensation payable to the heirs of the deceased under the Employees Compensation Act, 1923 for which separate proceedings were taken.
The Tribunal vide order dated 31.08.2021, considered the matter and directed as follows:-
"
The operative part of the report is reproduced below:-
"Observations of the Committee during inspection*
a. During inspection, nothing was seen except burnt materials on the site and no responsible person was available at the site however with the help of other Government departments only one person i.e. Sh. Sanjay Prashad, the owner of the unit which was engaged in the activity of nail polish/lipsticks, could be contacted.
b. Fire incident was occurred on 27.02.2021 at 03.34 a.m. at first floor of the premises located at Shri Swastic Silicate Mills, 10 Ram Bagh, Kishan Ganj, Delhi -110 007. The fire started from the room, which was being used for manufacturing of cosmetic items like Lipstick/Nail Polish.
c. The premises at 10 Ram Bagh, Old Rohtak Road, New Delhi belongs to M/s. Gujranwala Gurukul Trust Society (a society registered under the Society Registration Act). A lease agreement dated 13.6.1979 (annexed_w Annexure-I) made between M/s. Shree Swastika Silicate Mills , 18 UB Jawahar Nagar, Delhi -110 007 through its partner Smt. Prem Lata Gupta w/o Sh. J.P. Gupta And M/s. Gujranwala Gurulcul Trust Society (a society registered under the society registration act) through its president Sh. Sukhdev Mehta (owner of the said property).
d. The said property was again rented out on 18.4.2001 and agreement was made between M/s. Gujranwala Gurukul Trust Society (a society registered under the Society Registration Act) through its Hon'ble Secretary Smt. Renu Mehta wife of Shri Vinay Mehta (landlord of the said property), 10 Ram Bagh, Old Rohtak Road, New Delhi and M/s. Shree Swastika Silicate Mills, 18 UB Jawahar Nagar, Delhi -7 through Mrs. Veena Gupta as a tenant.
In the said agreement, the tenant has been further entitled to sub-let, assign or otherwise part with possession of the tenanted premises either in full or in part to anyone on any condition which may be deemed fit by it and the landlord shall not object the same in any manner. The said agreement dated 18.4.2001 is annexed as Annexure -II.
e. Further Sh. Vijay Gupta do M/s. Shree Swastika Silicate Mills , 18 UB Jawahar Nagar, Delhi -7, rented out the said premises to following three persons/companies for commercial use:
SI No.
Name and address of the rented Company/person
Details of the rented premises/room no.
Activity of the unit
Tenure of the rent agreement
1.
Sh. Heera Lal Raheja s/o Sh. Sh. Paras Ram Raheja, resident of K-6, 2nd floor, Partap Nagar, 10, State bank of India, Sadar Bazaar, Delhi
Room no. 108
Trading of school bags(Godown)
01.12.2020
to 1.12.2022
2.
Sh. Sanjay Prashad son of Sh. Ram Prashad, resident of A175, S.K.-1, Sector-93, Gautam Buddha Nagar, Noida, Uttar Pradesh- 201301
104, 105 and 106
Manufacturing of lipstick/nail polish
1.10.2019 to 1.10.2022
3.
Mrs. Babita Mishra wife of Sh. Deepak Kumar Mishra(C/o ADG Canvas Pvt. Ltd.,) resident of House no. 34, first floor, I-Block, Gali no.35, Mahendra Park, Adarsh Nagar, New Delhi-110 033
102, 103, 109 and 110
Trading of rexin Automobile cover(Godown)
01.08.2019 to 09.02.2020
f. The said premises is located in residential area, which is not as per Master Plan of Delhi (MPD). The premises consisted of ground floor, first floor and terrace covered with tin shed. The total area of the premises around 1000 square meter approximately. The ground floor found used as Godown by M/s. Delhi U.P. Madhya Pradesh Transport Company.
g. The first floor was comprised of total 14 rooms of different sizes and it was reported by the nearby residents (refused to reveal their identities) that the fire was started from the room, which was used for manufacturing of Lipstick/Nail Polish. Out of 14 rooms located at the first floor, Sh. Sanjay Prashad had rented three (03) rooms and being used for manufacturing of Lipstick/Nail polish.
The fire engulfed the terrace also and the tin shed installed on terrace was found in collapsed condition. During inspection, it was revealed that the fire started due to leakage of gas from LPG cylinder while heating the chemical compound used in lipstick manufacturing.
h. Raw materials for manufacturing of lipstick/nail polish:
As reported by Sh. Sanjay Prashad, the raw materials used for manufacturing of nail polish/lipstick are oil, wax,color, perfumes, Rose Extracts, DM water, lacquer and camphor.
i. Description for manufacturing process for manufacturing nail polish/lipstick:
As reported raw materials are purchased from the market and heating is carried out through LPG cylinder. After that raw materials are mixed together in Stainless Steel mixture and thereafter the mixed material are kept sometime in homogenous mass for cooling and then filled in container for solidification. Finally the material is packed and labeled for dispatch to customer.
j. No firefighting equipment to extinguish the fire found installed in the premises. However, an emergency staircase found provided from first floor to terrace in the premises found permanently closed.
k. During the said unfortunate accident, a worker namely Sh.Upchand Chand S/o Sh. Raja Sah, aged 22 years was recovered in charred state due to fire. Another worker Sh. Susheel Kumar also received severe burn injuries in the said accident. As reported, in the said lipstick manufacturing factory four (4) number of workers were working but the exact number of workers working in the said unit could not be ascertain in spite of best efforts.
l. The notice under section 10A(1) of the Employee's Compensation Act, 1923, has been issued to Sh. Sanjay Prashad to deposit Rs. 1660275/- ( Rs. Sixteen Lakhs Sixty Thousand Two Hundred Seventy Five only) in lieu of death of worker Sh. Upchand s/o Sh/ Ram Sah). Also Sh. Prashad has been directed to furnish disability of percentage of injured employee Sh. Sushil Kumar s/o Sh. Jimidar Sahni
In the said premises, all the above-mentioned activities were operating without obtaining any statutory permission from any of the department.
The Hon'ble Supreme Court has passed a judgment on 07.05.2004 in WP(C) No. 4677 of 1985 titled as "M.C. Mehta Vs. Union of India & Others" for closure of the illegal units from the residential / non-conforming areas in NCT of Delhi. As per the said judgment, all industrial units that have come up in residential / non-conforming areas in Delhi on or after 1St August, 1990 shall close down. In compliance thereof, the Chief Secretary, Delhi decided that action on industries operating in non-conforming areas and violating the Master Plan of Delhi will be taken by the land owning agencies. Commissioner of Industries is working as a Nodal Officer on behalf of the Hon'ble Supreme Court Monitoring Committee as constituted by the Hon'ble Supreme Court of India in the judgment dated 07.05.2004.
This Hon'ble Tribunal in OA No. 601/2018, entitled as "Mayank Manohar & Paras Singh, Reporter Times of India vs. Govt. of NCT of Delhi & Ors" was taken up regarding industries functioning in non-conforming areas of Delhi. This Hon'ble Tribunal also constituted an Oversight Committee, vide order dated 24.01.2019 in this matter, to prepare a time bound action plan to deal with the problem. This Hon'ble Tribunal closed the proceedings and directed to the Chief Secretary, Delhi to further monitor the issue in terms of order of the Hon'ble Supreme Court in M.C. Mehta (supra).
As per the provisions contained in Delhi Fire Service Rules, 2010, the buildings which are covered under Rule 27 are required to be referred to Delhi Fire Service by the local authorities (i.e. MCDs, NDMC, DDA etc.) or any other statutory authorities as per sub rule (1) of Rule 34 of Delhi Fire service Rules, 2010. The industrial occupancy having covered area on all floors more than 250 square meter is covered under sub rule (9) of Rule 27 of Delhi Fire Service Rule 2010 and building plan of such occupancy are required to be referred to Delhi Fire Services for scrutiny from Fire safety point of view.
In compliance of the above said order of Hon'ble NGT, the said committee had several meetings on 16.04.2021, 23.06.2021, 07.07.2021 and 14.07.2021. In order to prevent occurrence of such fires in residential/non-conforming areas of NCT of Delhi, the Joint Committee recommends the following:
I. That the buildings used for manufacturing/ godown should be allowed only in the specified area with necessary approvals from the concerned departments such as MCD, Fire Department, Labour Department industry department (Delhi Govt.), DPCC etc.
II. No industrial setup or godown should be allowed in residential area which are not as per Master Plan of Delhi (MPD).
III. No electricity connection shall be given by the NDPL/BSES to such industrial activity or godowns or other activities, which are violating MPD.
IV. To check the industrial activity /godown in the residential/non-confirming area of Delhi, a Special Task Force (STF) may be constituted, comprising of members from different Delhi Govt. department. The STF shall carry out visit/inspection and will sealed the operations and premises of such illegal activity by disconnecting their electricity. The STF shall be constituted zone wise in Delhi with following members:
a. Officer from District Magistrate/Nominee - Chairperson
b. Delhi Pollution Control Committee - Member Convener
c. Municipal Corporation of Delhi (Licensing wing) - Member
d. Fire Department - Member
e. Officer from local Police - Member
f. Officer from BSES/BYPL/NDPL - Member (to disconnect the Electricity connection on spot)
(STF shall schedule inspection at least once in three months)
V. The Environmental Compensation Damages should be imposed on the owner of the property i.e. Sh. Vijay Gupta c/o M/s. Shree Swastika Silicate Mills , 18 UB Jawahar Nagar, Delhi -7 and;
Following owner of the units as both landlord and tenants are equally responsible for this tragic fire incident:
Sh. Heera Lal Raheja s/o Sh. Sh. Paras Ram Raheja, resident of K-6, 2nd floor, Partap Nagar, 10, State bank of India, Sadar Bazaar, Delhi
Sh. Sanjay Prashad son of Sh. Ram Prashad, resident of A-175, S.K.-1, Sector-93, Gautam Buddha Nagar, Noida, Uttar Pradesh- 201301 and
Mrs. Babita Mishra wife of Sh. Deepak Kumar Mishra(C/o ADG Canvas Pvt. Ltd.,) resident of House no. 34, first floor, I-Block, Gali no.35, Mahendra Park, Adarsh Nagar, New Delhi-110 033 ).
VI. The premises was rented out for use of commercial purpose by Sh. Vijay Gupta C/o M/s. Shree Swastika Silicate Mills , 18 UB Jawahar Nagar, Delhi -7 to Sh. Sanjay Prashad son of Sh. Ram Prashad, resident of A-175, S.K.-1, Sector-93, Gautam Buddha Nagar, Noida, Uttar Pradesh- 201301.
Shri Vijay Gupta fails to comply with the conditions as mentioned in the Rent Agreement. The activity falls under Orange Category and carried out in residential area. As per Environmental Compensation Policy framed in compliance of NGT order dated 31.08.2018 in OA no. 593/2017, the Environmental Compensation as per the following formula may be imposed:
EC=. PI xN xR xS xLF1 xLF2
EC - Environmental Compensation
PI - Pollution Index of Industrial Sector (50 for Orange
category)
N - Number of days of violation (513 days)
R - A factor in Rupees for Environmental Compensation (Rs.250 as average Rupee factor as recommended by CPCB) S- Factor for scale of operation (0.5)
LF1-Population factor where unit is located (2.0 for NCT of Delhi)
LF2-Type of industrial collector in conformity with MPD in which unit
is located ( 1.5 for non-conforming area)
The total amount of Environmental Compensation as per the above said formula:
EC = 50 x513x250 x0.5x2x1.5
EC = Rs 9618750/-(Rs. Ninety Six Lakhs Eighteen Thousand seven Hundred Fifty only).
Hence The Environmental compensation of Rs. Rs 9618750/-( Rs. Ninety Six Lakhs Eighteen Thousand seven Hundred fifty only) as calculated above w.e.f. from 01.10.2019 (initial date of rent agreement) to the date of fire i.e. 27.02.2021 (total 513 days) should be levied to Sh. Vijay Gupta do M/s. Shree Swastika Silicate Mills , 18 UB Jawahar Nagar, Delhi -7.
It is humbly prayed that this Hon'ble National Green Tribunal may be pleased to take this report on record and pass such further order or other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
Even though no notice was issued by the Tribunal to the PP in absence of particulars, the joint Committee has visited the site. Notice has been issued to the PP under the Employees Compensation Act for death of a person. Remedial measures have been suggested for future. The PP has been found to be operating without statutory consents in non conforming area without safety precautions, endangering life and health of others. In these circumstances, reserving liberty to the PP to move this Tribunal, we do not consider it necessary to defer the matter and to proceed by notice to the PP in view of established facts, duly verified by the statutory authorities who are themselves competent to take the recommended measures.
In view of the above, further action may be taken by the Statutory Authorities, following due process. The compensation assessed may be recovered and if not paid within one month, coercive measures be taken against the concerned persons as well as against the property involved. We request the Member Secretary, Delhi State Legal Service Authority to ensure legal aid to the heirs of the deceased to enable due compensation to be paid to them. If the owners/tenant or other persons against whom action is taken are aggrieved, they are at liberty to take their remedies, including moving this Tribunal. The Authorities may also maintain vigil and take measures to prevent such incidents in future. We have noted the constitution of zone wise STF to check the illegal industrial activities and godowns in residential/non-conforming areas and are of the view that the same should be manned by officers of higher rank than the constitution now proposed. The Chief Secretary, Delhi may review the constitution accordingly.
The present Review Application has been filed by Vijay Gupta on the ground that he was not the owner or occupier but tenant. He had created sub-tenancy in favour of the person who was running the factory in question. According to him, the liability is either of the original owner or the sub-tenant. The applicant had no control on the activities undertaken in the premises. The non-compliance of safety norms was by the occupier. There is large scale commercial activity in the area, even if it is otherwise residential area. No restriction is placed by the authorities on commercial activities prohibited by the Hon'ble Supreme Court. Electricity connection is freely given for commercial purposes. It is further stated that during COVID-19 lockdown, the factory was not operating. Lastly, it is submitted that the amount of compensation is excessive, particularly when there was a lockdown. Violation could not be held to be for 281 days. Referring to the rent agreement dated 01.12.2020, it is stated that there are three agreements which are separate for each room. Without identifying the site of the incident, the applicant could not be held liable.
We have considered the submissions in the review application and heard learned counsel for the review applicant. However, we do not find any ground for the review.
It is undisputed that the cause of incident was the illegal industrial activity in the premises where environmental and safety norms were not being followed. Admittedly, the applicant was a tenant for the premises and had sub-leased the same to the person responsible for the business in question. Sub-leasing itself was a commercial activity for commercial benefit and on the principle of 'Absolute Liability' laid down by the Hon'ble 2 Supreme Court in M.C Mehta v. UoI & Ors., in (1987) 1 SCC 395 any person carrying on any hazardous commercial activity is responsible for any mishap on account of such activity. Thus, the applicant cannot disown his responsibility for the damage caused on account of hazardous activity in the premises, particularly when safety norms were not being followed. With regard to quantum of compensation, for continued violation of environmental norms, the quantum cannot be held to be without any basis. The applicant has not placed on record the financial status and turnover and such vital information having been withheld, the quantum of compensation cannot be held to be exorbitant. Even if during lockdown, for some period the activity was not going on, unexplained violations cannot be encouraged.
Having considered all the aspects, we are of the view that no ground for review is made out.
The Review Application is dismissed.