Municipal Commissioner Cannot 'Plead Innocence' On The Ground That Duties Were Delegated: Gujarat HC Says While Hearing Rajkot Fire Case

While hearing a matter pertaining to the TRP Game Zone fire in Rajkot which took place earlier this year, the Gujarat High Court on Friday (September 13) orally said that the city municipal commissioner cannot "plead innocence" on the ground that "duties and powers" had been "delegated to a subordinate authority" which had not informed him about the situation.

The court further said that had the authorities been "vigilant and doing their duties" the incident would not have happened. While permitting the corporation to withdraw its affidavit filed in the matter, the court granted liberty to the Municipal Commissioner, Rajkot Municipal Corporation to file a response to the court's earlier order detailing certain aspects.

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a batch of pleas including the suo motu petition initiated by the high court after twenty-seven individuals, including four children, perished in the massive fire that engulfed the game zone in Rajkot's Nana-Mava locality on May 25.

During the hearing on Friday, advocate Amit Panchal, the petitioner in one of the pleas, said that the high court had passed an order on August 23 and the Rajkot Municipal Corporation was to respond and that it had responded.

The bench orally noted that the matter had been kept today to hear the victims and also as to why compensation be not awarded and why erring officials be not directed to give compensation.

The Chief Justice orally said,"We have taken note of the two aspects. First is the direction issued in a PIL (118/2020) wherein respective municipal commissioners were directed to do the needful. Municipal Commissioner of Rajkot Municipality had also filed affidavit on 08-03-2022 and affirmed on oath that he would comply with the directions of the court. And those directions were noted in para 7-8 of the August 23 order".

These earlier directions had been issued by the high court in a 2020 PIL; the same have been recorded by the bench in its August 23 order.

The direction was issued to various respondent authorities (including various municipal corporations) to ensure that effective steps are taken forthwith for the Fire Prevention and Safety and for the protection of the life and property of citizens in various types of buildings and temporary structures in Gujarat. The court had directed the respondents to "ensure that all the buildings" in the state have adequate disaster management infrastructure and proper firefighting and rescue equipment as required in the National Building Code and the Standing Fire Advisory Council, Ministry of Home Affairs, Government of India.

The respondents were earlier also directed to grant "Occupancy Certificate" to the applicant/occupant of the buildings in the state and permit occupation of the building concerned, only after consulting the concerned designated authority which issues the Certificate and after the inspection of such buildings, in order to ensure that necessary requirements for the fire protection have been fulfilled under the Gujarat Fire Prevention and Life Safety Measures Act, 2013, and its Rules and Regulations.

It had also been directed that the "No Objection Certificate" from the concerned Fire Department/Authority will have to be produced before the Competent Authority which issues Building Use (BU) Permission/Occupancy Certificate in conformity with the Comprehensive General Development Control Regulations (CGDR) 2017. The respondents were also required to submit by way of an affidavit the details of such buildings which existed on the date of the earlier order and which required installation of Fire Prevention and Protection Systems.

Taking note of the August 23 order the Chief Justice further orally said, "So this does not only cover the permanent structure but the temporary structure also. What we said in this order is that Municipal Commissioner Rajkot cannot get away by saying that he was not aware and the town planning officer or town planner has done everything".

Referring to the 2022 affidavit submitted by the then Municipal Commissioner Rajkot the Chief Justice orally said, "Because it was the duty of the municipal commissioner when he gave affidavit to the court to ensure that all 'building use permission' are given in accordance with law. Then there is a need to supervise even if there was a delegation. We accept to the extent that Municipal Commissioner could not do everything on his own and was required to delegate some powers to some subordinate authority…and we are not concerned with 'A' municipal commissioner or 'B' municipal commissioner. We are not concerned with the officer. We are concerned with the working of the system. Once municipal commissioner gave affidavit to the court that 'I will ensure that this will be done' and there were directions that he will ensure that this is done; after that then saying and pleading innocence and this fact finding committee report saying that 'municipal commissioner did his best', that is not acceptable. Fact finding committee did not take care of orders of the high court".

The high court further orally remarked that no municipal commissioner can be permitted to "bypass orders" of the court and then get away by saying that he had "delegated" his duties and powers to the subordinate officer and then say that he is "innocent" because he was "not informed" about the situation.

At this stage the counsel appearing for the state said that in the latest affidavit, the Rajkot Municipal Corporation had stated how the "whole working is being effected".

To this the court orally said, "We agree but some kind of message should go that people cannot do this.He has to pay something. He has to own this responsibility.He has to plead apology. He has to submit an affidavit of apology at least to this court What he has done is that he has got away according to this report.If we accept your submission that things are changing and you are actually serious and sincere about the issue but how far? Today you are in court you are in trouble so you are demonstrating something; tomorrow this petition will also go in the list and then you will again go back to the same position. So there is a repeated violation of the order of this court".

The court further orally emphasized that this was not an incident which can be diluted, adding that the incident would not have occurred had the authorities been "vigilant and doing their duties".

"They were not supposed to do anything, but their duties," the Chief Justice orally said adding that the incident "happened because of lack of control". At this stage the counsel for the state said that he was not joining issue to the proposition that "everyone should have been most sincere and diligent".

The high court the said, "On the last occasion we had said that if the institutional head is weak or if he is not having control over subordinates then he cannot plead innocent. Because he is the head he has to take responsibility for any error, fault of any subordinates in the institution. He cannot say 'Im innocent'. He is guilty of not discharging duties to utmost dedication and devotion. Then violation of the order of this court where he has stated on oath two years ago that 'I will ensure that nothing wrong is done by the institution'. Then there is no apology".

The court further orally noted that there was a demolition which was not carried out; to this state's counsel said that this aspect "would require to be gone into". The court then orally indicated that it will issue a notice to the municipal commissioner Rajkot as to why "he should not be held responsible for dereliction of his duties". At this stage Panchal pointed to a fresh affidavit filed by Corporation (filed in response to the petitioner's affidavit) and said that whatever the bench had said the body had denied.

"If you are justifying your actions like this it is again putting you in trouble. Please see and decide," the court said, to which the state's counsel submitted that the affidavit contains the record which shows that the municipal commissioner was supervising.

The bench then orally said that it does not need to look at the record and it is only concerned with the incident in question.

It further orally said,"Why would we take this on record? We had asked you to file only the reply. We are not looking to the entire working...If this is the approach of municipal commissioner then we will be taking into account the entire material and if we go through the record then he will be in trouble. You just have to give answer to our observations in this order August 23 where we have noted that you have given an affidavit and after that this situation has happened. You have to give specific reply to this. This justification is not needed.We are not saying that everything is wrong, but we are saying that there is a serious issue".

At this stage the state's counsel said that the present affidavit shall be withdrawn and a simple affidavit will be filed.

At the state counsel's submission that it had tried to show how was the working or what was the working of the corporation the court orally said that had the working been "upto mark" this incident would not have happened. The counsel however submitted that no one came forward to the commissioner "with the slightest information".

To this court orally asked that then why did the commissioner give an affidavit to the court earlier stating that he shall ensure that all building use permissions are given after verification of the record, adding that the official had not "adhered to commitment/undertaking made the court".

"He tried to do everything but if somebody doesn't report to him...Eight people are behind bars. Police personnel have been suspended," the counsel said.

To this the high court orally said,"We are not concerned with those people. So give it on affidavit. Answer on affidavit of the municipal commissioner that he is absolutely innocent. Then we have said that he is at least required to apologize. He cant apologize if he is not accepting the mistake. Apology would come only if you stop justifying your action and you accept that yes 'I have tried my best but I have failed'; but failure has to be accepted'. This is about the court".

The counsel said that he will take instruction adding that what was sought to be conveyed was that there is "no negligence on the part" of the municipal commissioner.

To this the court orally said, "When you say no negligence on your part when you are in error, then you are not understanding your own duty. Then you are shifting your responsibility. Because it was your duty to ensure that nothing wrong is there in the system".

The counsel said that the affidavit did not say that there was nothing wrong in fact it said that the official will do everything.

Asking if the commissioner has a vicarious liability or not the court orally said, "At least that remorse should be shown to the court and apology is to be tendered. Then only we can say that 'yes you...actually want to improve'. You are only harping the improvements which you have made but there are flaws. And being head of the institution if you are not owning the flaws and not saying apology for that".

The state's counsel said that the previous affidavits do say that and there are flaws, adding that one cant say that everything is in proper shape.

The court however orally said, "The way affidavits are being drafted of the officers and the language which is being used many a times we have pointed it out. The advocates who are appearing for the authorities, they don't understand, they only try to defend. They only try to justify...Then the question is about the undertaking given by you and violation of the order of the high court".

Permitting the counsel for the authority to withdraw its affidavit of September 12, the high court in its order dictated, "...On request made the affidavit is rejected as withdrawn with liberty to the Municipal Commissioner, Rajkot Municipal Corporation to file a response to the observations made by this court in the order dated August 23 specifically to the averments in paragraphs 6-12".

The matter is now listed on September 27.

Case title: Amit Manilal Panchal v/s State of Gujarat & Ors. and batch along with Suo Motu v/s State of Gujarat & Ors.