Oral Judgment: (B.R. Gavai, J.)
1. Rule returnable forthwith. Heard finally by the consent of learned Counsel for the respective parties.
2. Petitioner no.1 is Vidarbha Taxpayers Association and petitioner no.2 is a citizen of India and is a businessman by profession. The petitioners, by way of present Public Interest Litigation, have approached this Court challenging the vires of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006 (hereinafter referred to as âthe said Actâ?).
3. At the very inception, Mr.Shyam Dewani, learned Counsel for the petitioners submits that the petitioners are praying for three alternate prayers :
a) to declare that the Act of 2006 is unconstitutional and therefore, not enforceable,
b) to read down certain provisions of Statute so as to make them workable and,
c) to declare that the levy made by the Corporation is beyond the scope of the said Act and further that the same is being utilized for the purposes as enumerated in the said Act.
4. Mr.Shyam Dewani, learned Counsel for the petitioners, has submitted that perusal of the preamble of the said Act would reveal that the Act has been enacted for making the fire prevention and safety measures effective, in various types of buildings, in different parts of the State of Maharashtra. It is, however, submitted that though huge amounts are collected from the citizens, no measures are taken by the respondent/Corporation for fire prevention and life safety. He further submits that the date from which the Act of 2006 has been made applicable and the date on which the provisions of Section 11 have been made applicable are not clear and as such, there is a lot of ambiguity. The learned Counsel further submits that perusal of Section 3 would reveal that it is not clear as to whether the Act is applicable to the existing buildings or to the buildings which are under construction. The learned Counsel relies on the letter addressed by the Director, Maharashtra Fire Services to the Commissioner of Police, wherein it is stated that the Act is not applicable to the existing buildings. Learned Counsel submits that, in spite of the Act being not made applicable to the existing buildings, the respondent/Corporation is harassing the owners and occupiers of the existing buildings.
5. Learned Counsel further submits that Section 9 of the Act of 2006, provides for issuance of certificates by the license holders. He submits that though issuance of certificate as provided under the said Act is necessary every year, u/s.9 powers are given to the license holders. He submits that only seven license holders have been approved for the City of Nagpur and as such, there is a great possibility, that on account of monopoly, they will charge exorbitant charges from the citizens, thereby causing great inconvenience to them. The learned Counsel further submits that though levy of fees is already provided for in Section 11, additional levy is also provided u/s.13 without any purpose. Learned Counsel submits that said levy is not sustainable in law. Learned Counsel further submits that though the Corporation could not have levied the fees in excess of those provided in the Schedule II, the Corporation has charged the fees from 2008 onwards and that too, at double the charges as specified in the said Schedule.
6. Mrs.Bharti Dangre, learned Government Pleader appearing on behalf of respondent/State submits that the said Act was enacted by the State Legislature on account of inadequate provisions regarding fire prevention and life safety measures. The learned Government Pleader also states that the assent of the President of India has already been obtained by the State. The learned Government Pleader further states that no ground has been made out by the petitioners to challenge constitutionality of the said enactment. The learned Government Pleader, therefore, submits that the petition is without substance.
7. Mr.S.M.Puranik, learned Counsel appearing on behalf of the respondent/Corporation also submits that the petition is without substance and is liable to be dismissed.
8. It will be appropriate to refer to the Statement of Objects and Reasons of the Act of 2006.
âWith the exodus of rural population to urban centres in search of job opportunities and better standard of living, pressure on the available limited urban space is mounted. The bustling cities, towns and suburbs are racing towards development involving in the growing trend to undertake construction of more and more different types of buildings as also setting up large slums in the metropolitan cities and other urban areas in the State where there has been rapid growth of educational facilities and industralization. In Mumbai only, there are approximately over 3500 high-rise buildings. There are skyscrapers and to mention a few of them with their height and floor space will show their magnitude, namely â“
(I) Shreepati Arcade, 153 mtrs. and 40 floors, (ii) Belvedere Court, 149 mtrs. And 40 floors, (iii) Kalpataru Heights, 144 mtrs. and 39 floors, (iv) Pheroze Jeejebhoy Towers, 118 mtrs. and 29 floors, (v) Oberoi Towers, 117 mtrs. and 35 floors, (vi) World Trade Centre, 111 mtrs. and 35 floors, (vii) Express Towers, 105 mtrs. and 25 floors, (viii) Air India Building, 105 mtrs. and 24 floors, (ix) Kshitij Apartment, 96 mtrs. And 33 floors.
In other big cities and towns also such high rise buildings are coming up. Recently, large commercial, mercantile, educational and entertainment complexes have been constructed and are also in the process of construction. Because of the complexity of the nature of construction, the variety of materials used and the type of occupancy therein, not only the high rise buildings but also any type of buildings or group or complexes of buildings or slums are prone to frequent fire hazards. In slum areas, unscrupulous persons have been using premises for keeping hazardous explosives and highly inflammable goods. Major fires in such buildings and slums have taken a heavy toll of human life and heavy damage to the property. The disaster of fire and the loss or damage caused thereby is not restricted to urban areas alone. Because fire does not choose between the urban and rural areas. For instance the building with the most vulnerable occupants is a school which is least regulated from the point of view of fire prevention and life safety measures. After the Kumbakonam tragedy in Chennai, it has become imperative to consider providing fire prevention and life safety measures in not only in the high rise buildings but also various or different types of buildings.
The fire brigade service provided by the local authorities or the planning authorities, namely, the Municipal Corporations, Municipal Councils and Development Corporations such as Industrial Development and City Development Corporation are found to be highly inadequate to meet the dangerous situation arising at the time when and wherever major fire occurs. Even the fire brigade officers and staff or the fire fighting personnel engaged by local or planning authorities are not adequately trained and are ill-equipped. The fire prevention and life safety measures provided by them are also miserably inadequate and are wanting to provide sophisticated fire fighting equipments and appliances. The existing provisions of the municipal laws to enforce the fire prevention and life safety measures, particularly in the high rise multistoried buildings, have also been found to be most inadequate in the absence of the necessary statutory authority for the fire prevention enforcement agency to compel the owners of buildings to carry out the necessary measures for prevention of fire. It has also been found that there has been callous negligence of the builders, developers, promoters, owners and occupiers of buildings to provide the necessary fire prevention and life safety measures in buildings as required by the building plans approved by local authorities. Absence or inadequacy of fire prevention and life safety measures endangers life and safety of not only the occupants of the building, but also of other inhabitants of the locality. And although, the high rise buildings and the skyscrapers contain posh flats or apartments with rich interior, the occupiers are reluctant to spend money on fire fighting equipments. The fire brigade does not have the power to penalize those who do not follow the safety norms. Even if a skeleton fire fighting equipment is provided initially in a building or any type and size, and such equipment falls into disuse for want of periodical test and inspection, the fire brigade has no power to take any action against the occupiers. No specific penalties are provided in the existing municipal laws or any other laws for the contravention of any fire prevention or life safety measures and any penalties which are provided are also very inadequate to effectively curb the violation of the fire prevention and life safety measures. Not being able to effectively prevent the loss and damage of life and property, due to fire interiors, it is, in a way, a national loss.
The National Building Code of India, 1997, which is published by the Bureau of Indian Standards, in Part IV thereof, contains provisions with regard to fire protection. In that, it provides inter alia, minimum requirements for fire fighting installations in different types of buildings, with a view to save life and property, in case of fire in any such building. It is necessary to mention it in a legislation relating to fire protection so as to give it a legal status.
It is, therefore, considered expedient to enact a full-fledged and comprehensive Law to make more effective provisions for the fire prevention and life safety measures in different types of buildings in the State and to provide for imposition of fee on the owners or occupiers of buildings to constitute a special fund which would be applied for building up and upgradation of fire brigade so as to have properly trained fire officers and fire personnel, sophisticated equipments and appliances for effectively controlling and extinguishing the fires occurring in such buildings and for periodical inspections of the fire prevention and life safety measures required to be provided for different types of buildings.
The Bill, accordingly provides for the following, among other matters, namely:
(a) in view of the sorry and sordid state of affairs prevailing in the matter of fire protection, the different types of buildings as specified in column 2 of the first schedule, to provide for therein the requisite fire prevention and life safety measures as laid down in the National Building Code;
(b) provisions for building-up or upgrading existing fire brigade, if any, by providing the sophisticated infrastructure equipments or appliances which are needed to cater to the needs of controlling and extinguishing fire and also to strengthen the network of fire brigade by providing properly trained fire officers and fire personnel to operate the fire brigade;
(c) to establish the office of the Director, Fire Services, so as to have control with regard to fire services throughout the State and to appoint a Director and proper officers and staff under him for the purpose;
(d) provisions requiring the owners or occupiers of the buildings to provide in the building the requisite fire prevention and life safety measures;
(e) provisions for periodical inspection of such buildings by the Director, Chief Fire Officer or nominated officer for ascertaining the adequacy or contravention of the fire prevention and life safety measures in such buildings;
(f) for imposition of fees, the rate of which shall, in the first instance, be as specified, with the minimum fees as provided, in the second schedule in respect of different types of buildings and to empower the local authority or planning authority to enhance the fees after following the procedure which is set out in details in the provisions of the Bill;
(g) to constitute a special fund to which shall be credited the proceeds of such fee and the amount from which shall be spent only for the purpose of maintaining fire brigade in general and for providing sophisticated equipments and appliances in particular, for the purpose of preventing and extinguishing fire in such buildings.
(h) having regard to the callous negligence noted in providing fire prevention and life safety measures as a result of which there occurs loss and damage to the life and property, provisions with regard to offences and penalties with imprisonment and fine, including penalties for continuing offences, as such offences need to be dealt with sternly so as to act as a deterrent;
(i) provisions for appeal against notice regarding âequipment for fire prevention and life safety measures or, refusal to pass an order of removal of seal or notice of assessment; and the procedure to be followed in respect of filing such appeal;
(j) other necessary or usual provisions for the purposes connected with or incidental to the matters aforesaid, as contained in the Bill.
9. It could thus be seen that the Statement of Objects and Reasons of the said Act, elaborately points out necessity for enactment of the said Act and the provisions, which are sought to be provided by the said enactment. We would not like to again reiterate the same and make the Judgment bulky. In a nutshell, the Act is enacted with an avowed object of prevention of fire and providing of life safety measures. Various provisions have been made in the Act, for making mandatory to the new buildings certain provisions as are found in Schedule to the said Act, which are necessary for prevention of fire and safety of inmates. Provisions have also been made for enabling the Authorities to compel the owners and occupiers of the existing buildings and the buildings which are under construction, by issuing notice to them to make certain provisions as are necessary for prevention of fire and safety of inmates. Provisions have also been made to monitor that the provisions as are made for prevention of fire and safety of inmates, are maintained regularly and are also inspected by licensed holders. Penalties have been provided for noncompliance of mandatory provisions made under the Act. The provisions have also been made for appeal. The Act also provides for levying up fees and also for prescribing the rate of fees, it also provides that rate of fees prescribed in the Schedule shall be minimum rate at which the fees is to be levied. An enabling power is given to the local bodies to increase or reduce the rate of fees subject to the provisions as contemplated in the said Act. It could thus be seen that the Act, which is passed by the State Legislature, is a complete code with regard to making provisions for prevention of fire and safety of inmates and procedural aspects incidental thereto.
10. We find that entry nos. 5, 6 r/w.66 of List II of Seventh Schedule of the Constitution of India, 1949, which are laid down below, would bestow the State Legislature with legislative competence to enact the law in question. We are, therefore, of the considered view that it cannot be said that the State Legislature does not have legislative competence to enact the law in question.
âList IIâ”State List
1. â¦.......
2. â¦.......
3. â¦.......
4. â¦.......
5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
6. Public health and sanitation; hospitals and dispensaries.
7 to 65 .........
66. Fees in respect of any of the matters in this List, but not including fees taken in any court.
11. The other ground on which the Act of 2006, can be held to be unconstitutional would be if any of the provisions made therein are found to be in conflict with any of the provisions as are found in the Constitution. In that view of the matter, it will be appropriate to refer to various provisions under the said Act which are attacked by the learned Counsel for the petitioners.
âSection 3. (1) Without prejudice to the provisions of any law or the rules, regulations or bye-laws made thereunder or the National Building Code of India, 2005, relating to fire prevention and life safety measures and in operation in the State for the time being in force, the owner or where the owner is not traceable, the occupier, of a building as classified in the Schedule-I or part of any such building shall provide fire prevention and life safety measures in such building or part thereof, minimum fire fighting installations as specified against such building in the said Schedule; and the owner or, as the case may be, the occupier shall maintain the fire prevention and life safety measures in good repair and efficient condition at all times, in accordance with the provisions of this Act or the rules:
Provided that, in the case of such building or part thereof the construction of which has been completed immediately before the date of commencement of this Act, the occupier and subject to the provisions of sub-section (2), in the case of such building or part thereof which is under construction on such date, the owner, shall undertake and carry out such additional fire prevention and life safety measures, as are specified in the notice served on him under section 6.
Explanation.â”The classification of buildings as mentioned in the Schedule-I under this section and that in Schedule-I under section 11, conforms to the classification of buildings made under the provisions of the National Building Code of India, 2005.
(2) Notwithstanding anything contained in any law for the time being in force, no authority empowered to sanction the construction plan of any building or part of a building and to issue certificate of completion thereof, shall issue any certificate of completion or part completion thereof, unless it is satisfied that the owner has complied with the requirements specified in Schedule-I or as the case may be, in the notice so served on him as aforesaid.
(3) The owner or occupier, as the case may be, shall furnish to the Chief Fire Officer or the nominated officer, a certificate in the prescribed form issued by a Licensed Agency regarding the compliance of the fire prevention and life safety measures in his such building or part thereof, as required by or under the provisions of this Act and shall also furnish to the Chief Fire Officer or a nominated officer, a certificate in the prescribed form, twice a year in the months of January and July regarding the maintenance of fire prevention and life safety measures in good repair and efficient condition as specified in sub-section (1).
(4) No person shall tamper with, alter, remove or cause any injury or damage to any fire prevention and life safety equipment installed in any such building or part thereof or instigate any other person to do so.
Section 6. The Director or the Chief Fire Officer or the nominated officer shall, after completion of the inspection of the place or building or part thereof under section 5, record his views on the deviations from or the contraventions of the requirements with regard to the fire prevention and life safety measures or the inadequacy or non-compliance of such measures provided or to be provided therein with reference to the height of the building or the nature of activities carried on in such place or building or part thereof and issue a notice to the owner or occupier of such building or part thereof directing him to undertake such measures within such time as may be specified in the notice.
Section 10. (1) No person other than a Licensed Agency shall carry out the work of providing fire prevention and life safety measures or performing such other related activities required to be carried out in any place or building or part thereof:
Provided that, if the Chief Fire Officer is satisfied that, for any reason, to be recorded in writing, the owner or occupier is not able to carry out the fire prevention and fire safety measures in any such place or building or part thereof through a Licensed Agency, he may authorise any person or persons he thinks fit to carry out such work, and any work carried out by such authorized person or persons shall be deemed to be carried out by a Licensed Agency.
(2) No Licensed Agency or any other person claiming to be such Licensed Agency shall give a certificate under subsection (3) of section 3 regarding the compliance of the fire prevention and life safety measures or maintenance thereof in good repair and efficient condition, without there being actual such compliance or maintenance.
Section 11. (1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf and subject to the provisions of this Act, there shall be levied a Fire Service fee at the rates specified by or under the provisions of this Chapter, for the purposes of this Act on all owners of various types of buildings specified in the Schedule-II (hereinafter in this Chapter, referred to as âthe said Scheduleâ?), within the areas of a local authority or a planning authority (hereinafter, save as otherwise mentioned, throughout in this Act, collectively referred to as â the Authorityâ?), to which this Act applies and different such dates may be appointed for different types of buildings and different areas of different Authorities.
(2) The rate of such fee in respect of each type of building situated within the area of any of the Authorities and classified in column 2 of each of the Part-I, Part-II or, as the case may be, Part-III of the said Schedule shall, in the first instance, be at the rate specified in each of the sub-column (1), but subject to the minimum fee specified in each of the sub-column (2), of columns 3, 4, 5, 6 and 7 of Part-I or of columns 3, 4, 5 and 6 of Part-II, or, as the case may be, of columns 3 and 4 of Part-III, as aforesaid.
(3) The Authority may, subject to the other provisions of this Chapter, enhance, from time to time, the rate of fee, including the annual fee and levy the fee at such enhanced rate:
Provided that, the Authority may, subject to the other provisions of this Chapter, reduce, from time to time, such enhanced rate and levy fee at such reduced rate, so, however, that in no case the rate shall be reduced below the minimum rate specified in the said Schedule.
(4) In determining the rate of fee to be enhanced or reduced under sub-section (3), the Authority shall take into consideration the balance available in the Fire Protection Fund constituted under section 25 and the estimated income and expenditure (including any capital expenditure) of the Fire Services and ensure that the expenditure incurred or to be incurred has reasonable correlation with the carrying out of the purposes of this Act.
(5) The other matters relating to imposition (including guidelines), assessment and collection of such fee shall be such as may be prescribed.
Section 12. (1) The Authority, before enhancing or reducing the enhanced rate and levying the fee at such rate shall observe the following preliminary procedure, namely :
(a) the Authority shall, by a resolution passed at a special meeting approve the rate of fee at which it proposes to levy such fee;
(b) when such a resolution is passed, the Authority shall take further action to obtain the previous sanction of the State Government to the proposal.
(2) The State Government may, by an order published in the Official Gazette, accord sanction to the said proposal of the Authority and specify in su ch order the date on or after which the proposal shall be brought into force.
(3) (a) The Authority shall display on the notice board of its office the said order, and shall also publish a notice in a local newspaper informing the inhabitants of the area within its jurisdiction of the subject matter of the order so displayed;
(b) When the rates at which the fee is leviable are enhanced or reduced under sub-section (3) of section 11, it shall not be necessary to give any separate notice thereof to the owners or occupiers of the buildings affected thereby.
Section 13. (1) There shall also be levied annually a further fee at the rate of one per cent of the minimum fees specified in the respective columns of the Parts-I, II or, as the case may be, Part-III of the said Schedule against each type of building classified in column 2 of the said Parts of the said Schedule for providing the amount to defray the expenses for the purposes mentioned in sub-section (3) of section 25 and also for regular check and inspection and other incidental expenses so as to require and cause the owner or occupier thereof to keep the necessary installations in fit condition.
(2) The Authority may, subject to the other provisions of this Chapter, enhance or reduce, from time to time, the rate of annual fee and levy such enhanced or reduced fee.
(3) In determining the rate of annual fee to be enhanced or reduced and the procedure to be followed in that regard, the provisions of sub-section (4) of section 11, sections 12 and 16 shall mutatis mutandis apply as they apply in respect of rate of initial fee and levy thereof.
Section 25. (1) There shall be constituted a special fund called the âFire Protection Fundâ? to which shall be credited the fees imposed and collected under this Act.
(2) The special fund shall be reflected into the budget estimate of the respective Authority and the Accounts in respect thereof shall be maintained and audited in accordance with the procedure prescribed for the purpose of maintenance of accounts in the relevant law or the rules and orders made thereunder and are applicable to the respective Authority.
(3) The amounts in the fund shall subject to the provisions of this Act and subject to the general or special order of the State Government, be applied for the purpose of maintaining Fire Brigade in general (which shall also include the expenditure on salaries, allowances and other incidental expenses on the Fire Officers and Staff) and for providing sophisticated equipments and appliances, in particular, for the purpose of preventing and extinguishing fire on any land or in any building within or without the limits of the Authority and to no purpose other than the purposes mentioned in this Act.â?
Section 14 deals with assessment and collection of fees.
12. It is not in dispute that the notification, insofar as sub-section 3 of Section 1 of the Act of 2006 is concerned, was notified on 6th December, 2008. It is also not disputed that the notification, as is required u/s.11 of the said Act, was notified on 3rd March, 2014. In that view of the matter, we find that the contention with regard to the date of applicability of Act, as contended by the petitioners, is without substance.
13. The petitioners have heavily relied on the communication addressed by the Director of Fire Services, to the Commissioner of Municipal Corporation, wherein a cursory reference is made that the provisions of the said Act are not made applicable to the existing structures. We find that the said contention is without substance. The communication by the Officers of the State to any Authority cannot be said to be binding on the State Government, if it is based on incorrect interpretation of law. We find that, on conjoint reading of the provisions of various sub-sections of Section 3, it would be clear that upon the Act being made applicable to the areas of all local Authority or Planning Authority, if any construction is to be made, it will be mandatory for the owner or occupier, to provide fire prevention and life safety measures in such buildings or part thereof, minimum fire fighting installations as specified against such buildings in the said Schedule. It could thus be seen that after the Act comes into effect, it is mandatory for every building which is being constructed to ensure that minimum fire fighting installations as specified against the buildings mentioned in the Schedule are mandatorily installed in such of the buildings. However, insofar as the buildings which are existing or the buildings which are under construction are concerned, the owner thereof would be required to undertake and carry out such additional fire prevention and life safety measures, if the notice is served upon him u/s.6 of the said Act. The reading of sub-section 2 would make this position clear. Sub-section 2 which is a non-obstante clause mandates the Authority, which is empowered to sanction construction plan of any building or part of a building and also to issue certificate of completion thereof, not to issue any certificate of completion or part completion thereof, unless it is satisfied that the owner has complied with the requirements as specified in Schedule I or as the case may be, in the notice so served on him as aforesaid. It could thus be clear that insofar as the buildings which are constructed after commencement of the Act are concerned, the said buildings will have to be in conformity with the requirement of Schedule I whereas the buildings which are completed or are under construction on the date of commencement of the Act, unless a notice is served upon the owner or occupier of the said building, it will not be necessary for the occupant or owner, to carry out the fire prevention and safety measures. We, therefore, find that there is no ambiguity in the provisions of Section 3. A conjoint reading of all the provisions makes the position clear. In that view of the matter, reliance by Mr.Shyam Dewani, learned Counsel for the petitioners, on the communication addressed by the Director, Fire Services to the Municipal Commissioner is without substance.
14. Insofar as Sections 9 and 10 are concerned, it is the contention of Mr.Dewani that, by virtue of provisions of Sections 9 and 10, monopoly is created in favour of few licensed agencies for installing fire prevention and life safety measures. He further submits that no guidelines are provided therein with regard to payment to be made to the said agencies by owners and occupiers and hence, there is a possibility that these persons may charge fees at the exorbitant rates. The learned Counsel further submits that though a certificate required to be given under sub-section 3 of Section 3, is required to be given only on personal verification, there is no check on the licensed agencies and there is a possibility that such licensed agencies may give certificates without even personally visiting the premises. Mr.Santosh Wadi, who is presently occupying the post of Director, Fire Services, is personally present in the Court. In an answer to the query put to him by this Court, he states that, at present, there are 478 agencies who have been given licenses by the competent Authorities to execute the work of fire prevention and life safety measures. He further submits that, in the City of Nagpur itself, 21 agencies have been approved. He further informs that it is not necessary for a owner or occupier of a building to engage the services only of the agencies which are stationed at Nagpur, but an owner or occupier is free to engage the services of any of the approved 478 agencies. He further submits that the process of approving applications for licences is an ongoing process. He submits that whoever fits the criteria is free to apply to the competent Authority and the competent Authority, after scrutinizing his credentials, can very well grant the license to him.
15. It is to be noted that making provisions for prevention of fire and safety and performing related activities is a specialized work. When the State has enacted the law with an avowed object of prevention of fire and for providing life safety, if a provision is made that such a work should be executed only by the agency whose credentials are scrutinized by the State, we do not find that any error could be found with such an approach. In any case, it is not a case that there are limited numbers of persons in the field. The persons possessing requisite expertise can very well apply and if they conform to the standards laid down, the State is bound to grant licenses to them. To a pertinent query, Mr.Bari informs us that, so far, not a single complaint has been received from any of the builders or owners with regard to malpractices by any of the agencies. So far as the apprehension that the agency may give license as required under sub-section 2 of Section 3, without personally inspecting the premises is concerned, we find that the said apprehension is also without substance. Section 36(1)(f)(i) and (ii) of the Act of 2006 provides for rigorous imprisonment for a term not less than six months but which may extend to three years and with fine which shall not be less than Rs.20,000/- but may extend to Rs.50,000/- if such licensed agency gives a certificate under sub-section 3 of Section 3, without there being actual compliance or maintenance of fire prevention and life safety measures and equipments. We, therefore, find that the Legislature has taken ample care to ensure that the licensed agencies perform their duties in accordance with the statutory provisions.
16. Insofar as Sections 11 and 12 are concerned, a combined reading of both the Sections would reveal that the Authorities are empowered to levy Fire Service fee at the rates specified within the areas of a local authority or a planning Authority after a notification is issued under sub-section 1 of Section 11. At the first instance, the rate of fees will be required to be as provided in Schedule II. No-doubt that an Authority is also empowered to enhance or reduce the fees with a rider that it shall not be less than the minimum as provided in Schedule II. However, the Legislature has provided inbuilt safeguards. Enhancement or reduction cannot be done unless there is a resolution passed at a special meeting of the Authority approving the rate of fee at which it proposes to levy such fee and unless, after passing of a resolution, previous sanction of the State Government is obtained. Such an enhanced or reduced rate would also come into effect, only after the order is published by the State Government in the Official Gazette. In that view of the matter, we find that the aforesaid provisions are inbuilt safeguards so as to prevent the Authorities from making exorbitant increases.
17. Section 13 provides for additional levy @ 1 % of the minimum fees specified in the respective columns of the Part-I, II or, as the case may be, Part-III of the said Schedule against each type of building classified in column 2 of the said Parts of the said Schedule for providing the amount to defray the expenses for the purposes mentioned in sub-section (3) of section 25 and also for regular check and inspection and other incidental expenses so as to require and cause the owner or occupier thereof to keep the necessary installations in fit condition. The Authorities are also empowered to enhance or reduce the said rate after following the procedure prescribed under Section 12. We find that, as already discussed hereinabove, since there are inbuilt safeguards in Section 12, challenge to the said section is also without substance.
18. Section 25 of the Act of 2006 mandates the Authority to constitute a special fund called the âFire Protection Fundâ?. The fees imposed and collected are required to be credited to the said fund. Sub-section 3 mandates that the amount in fund shall be applied for the purposes of maintaining Fire Brigade in general and for providing sophisticated equipments and appliances and for the purpose of preventing and extinguishing fire. It also requires that the said fund shall not be used for any other purposes except those mentioned in the Act.
19. Mr.S.M.Puranik, learned Counsel appearing for the Corporation/respondent no.2, on instructions of Mr.Rajendra Uchake, Chief Officer, makes a categorical statement that, insofar as the Nagpur Municipal Corporation is concerned, Fire Protection Fund is already constituted and the amount collected from the fees imposed and collected under the said Act is deposited in the said account.
20. After taking into consideration the overall Scheme of the Act, we do not find that the Legislature has given any unchannelised, arbitrary and unguided powers to the Authorities. Though the Authorities are empowered to enhance or reduce the fees, the same is subject to passing of resolution by the General Body of the said Authority in the special meeting and further that such a resolution is being sanctioned by the State Government. Insofar Sections 9 and 10 are concerned, as already discussed hereinafter, the contention with regard to monopoly is without substance. As of now, there are 478 agencies who are granted licenses by the competent Authority. The process of granting further licenses is an ongoing process. The Act has come into effect w.e.f. 6th December, 2008 and it is specifically informed to us by the Director, Fire Services that so far not a single complaint has been received by the said Authority against any of the licensed agency. Even, in the petition, no instance of any such complaint having been made to any of the parties is given.
21. We, therefore, find that none of the provisions of the said enactment which, in view of the learned Counsel for the petitioners is unconstitutional, can be said to be violative of the provisions of the Constitution of India. In that view of the matter, the challenge to constitutional validity of the said Act of 2006 must fail and therefore, the prayer in that regard is rejected.
22. That leaves us with the factual aspect regarding levy of fire tax by the Corporation. As already discussed hereinabove, the Authority would be empowered to levy fee only after a notification is published in the Official Gazette, as required under sub-section 1 of Section 11 of the said Act. Undisputedly the notification is issued on 3.3.2014. By now, it is a settled principle of law that the Authority would be empowered to impose and collect the levied fee only if it is authorised by law. As already discussed hereinabove, the power to impose and collect tax would be available to the respondent/Corporation only after a notification is issued under sub-section 1 of Section 11. That too, until the procedure prescribed u/s.12 is followed, the Corporation can levy the tax only in accordance with the rates prescribed in Schedule II.
23. However, in the present case, even prior to notification being issued under sub-section 1 of Section 11 of the Act of 2006, after the notification was issued under sub-section 3 of Section 1 of the said Act, the Corporation has imposed and collected the fees at twice the rate as provided in Schedule II of the said Act. As already discussed hereinabove, the enhanced rate would come into effect only after the provisions of Section 12 are followed i.e. after the resolution is passed by the General Body in a special meeting and after the State Government grants its sanction and publishes an order in the Official Gazette, as to on what date the enhanced rate would come into effect. In the present case, the General Body of the Nagpur Municipal Corporation has passed a resolution on 10.2.2009. Same was not sent to the State Government and sanction of the State Government is not obtained. Undisputedly, there is no notification as required under sub-section 2 of Section 12 thereby according sanction to the proposal of the Corporation nor the date on which the enhanced rate shall come into force is published. It is to be noted that though the other provisions of the Act would come into force from the date on which notification was issued under subsection 3 of Section 1, in view of the provisions of sub-section 1 of Section 11, the provision regarding levy of fees would come into effect, only from the date on which the notification is issued under sub-section 1 of Section 11. In that view of the matter, we find that levy of fees by the Corporation as provided under Section 11 prior to 3.3.2014 is without authority of law and as such, the same will have to be held to be illegal. Equally, the levy of fees after 3.3.2014 at the rates more than the ones which are prescribed under Schedule II will also have to be held to be illegal and without authority of law.
24. In that view of the matter, the petition is partly allowed. The challenge to the constitutional validity of the Act of 2006 is rejected.
25. It is held that the levy of fees as provided under the said Act prior to 3.3.2014 is without any authority of law and further that the levy after 3.3.2014 at the rate more than the ones prescribed in Schedule II is also without authority of law.
26. It is informed that the Corporation is having the record of entire recovered amount received from various owners and occupiers, which is held to be not in accordance with law. The said amount is directed to be refunded to the owners and occupiers within a period of eight weeks from today.