WP(C)/17811/2026 of S. SANAMAKH RAO Vs STATE OF ODISHA on 27 July 2026

ORDER

27.07.2026

03.

1. We are not unmindful of the reality, that in public places, where there is conglomeration of large number of the people happens, the fire safety measures and equipments should be to avoid the loss of human life as well as the property. There is not even an inkling of doubt in our mind that the fire safety gadgets should be there in every such places to combat the situation, when the fire broke out; but equally, we cannot issue a writ of mandamus commanding the authorities to do a thing not provided in the statute or forbidden therein. In order to maintain the social order, the safety and security of the citizenry, every responsible persons of the society should bear in mind and take adequate steps to install the safety gadgets at the time the fire broke out, but the authorities have to proceed within the precinct of law and cannot travel beyond it. The subject matter of challenge in the instant Writ Petition is the communication of an Excise Commissioner, Odisha to all Excise Deputy Commissioner and the Superintendent of Excise, to issue a necessary direction to all licensees of IMFL ON shop units within their jurisdiction to obtain and maintain a valid fire safety certificate/ NOC and submit a consolidated district wide report to the Directorate on priority basis. The Petitioner apprehends that, in the event the certificate or NOC is not submitted, action would be taken to close down the IMFL ON shop for which the license has been granted, and approaches this Court with the categorical assertion that neither the Excise Department is competent to impose such conditions upon the public and/or the license granted to the holder thereof, nor do the Orissa Fire Prevention and Fire Safety Rules, 2017, contain any such provision. It is categorically stated that the structure in which the IMFL ON shop is currently operating is constructed in less than 500 square meter area and is less than 12 meter in height. It is thus, contended that Rule 9 as amended vide Odisha Fire Prevention and Fire Safety (Amendment) Rules, 2019. Rule (9)(1) as amended in 2019, keeps such premises outside the purview of obtaining the license under Section 10 of the Orissa Fire Service Act and Rule 11 of the said Rules.

2. In order to complete the sequence of the events, it would be pertinent to recapitulate the provisions contained under Rule 11 of the said Rules, where all buildings, premises or occupancies as specified in Rule 9, shall at all times have a valid fire safety certificate as provided under Rule 13. It also forbids all the owners, developers, promoters and builders of a building or a premises, specified in Rule 9, to sell lease, occupy or allow in occupation without first obtaining the fire safety certificate, issued by the director or any officer authorized by him in this regard. It also contains a prohibitory clause in continuing with the construction or occupation in the said building. Rule 9(1) of the said Rule has undergone a significant change in the year 2019 when the Odisha Fire Prevention and Fire Safety (Amendment) Rules, 2019 was notified, which engulfed within its folds the following categories or class of the premises such as the following: “(1) for the purpose of sub-section (1) of Section 10 of the Act, the following classes of premises or occupancies are likely to have risk of fire, namely :—”

“(a) Aerodromes, airports and airstrips; (b) Cinema Halls and Multiplexes;

(c) Explosives or fireworks or hazardous substances (manufacturing, storage, transportation, display and sale etc.); (d) Factories and Industries; (e) Depot of Petroleum and other inflammable substances and refineries (Storing, handling, refining, blending and retail outlets etc.); (f) All underground or partially underground structures of five hundred square meters or above used for any purpose or occupancy; (g) Places of Assembly like Auditoria, convention halls, Assembly halls, recreation halls etc. having a built up area of five hundred square meters and above on any one or more floors where people congregate or gather for amusement, recreation, social, religious or any other similar purposes.

(h) Business or office buildings-

(i) having a height of twelve meters and above; or above;

(i) Clinical Establishments-

(i) clinical establishments having height of twelve meters and above or’

(ii) functioning in buildings having more than three floors including all underground, basement, stilt and mezzanine floors or,

(iii) having more than thirty beds or,

(iv) having any Critical Care Unit.

(j) Educational Buildings-

(i) having a height of twelve meters and above or,

(ii) having a built up area of one thousand square meters or above; or

(iii) having three storied building;

(k) Hotels, Lodgings and Guest Houses-

(i) having a height of twelve meters and above or,

above,

(iii) of three Star and above categories,

(iv) having places of Assembly like Auditoria, Convention Halls, Assembly Halls, Recreation Halls etc. of built up area of five hundred square meters and above on any one or more floors where people congregate or gather for amusement, recreation, social, religious and similar other purposes;

(l) Malls, shopping complexes and mercantile buildings-

(i) having a height of nine meters and above or,

above,

(m) Residential Buildings (other than hotels, lodgings and guest houses), having a height of fifteen meters and above; (n) Temporary structures of one thousand square meters and above where the congregation is two thousand or more; (o) Warehouses or Storage area of five hundred square meters built up area or above; (p) Any other classes of buildings or premises notified by the State Government from time to time”.

(b) For sub-rule(12) the following shall be substituted “(12) In case of existing buildings constructed or occupied prior to commencement of the Odisha Development

Authority Act, 1982 on receipt of an application from the owner of the building, without sacrificing reasonable safety, the Director may grant exemption from the conditions prescribed under these rules.”

3. Though the Petitioner has taken shelter under clause-h thereof, which relates to business or office building, having a height of 12 meters and over, but we also took notice of clause-g and k, which has a remote connection with the operation of the restaurant and thus, find that the mandatory requirement of a certificate is either to the premises having an height of 12 meters and above or constructed beyond 500 square meters and above area. Rule 11 as indicated herein above, thus, is applicable in relation to the premises or a class of premises identified in Rule 9(1) thereof and in the event, the same is contrived in the area and/or a height, it puts such premises or a building beyond the purview thereof. The authority cannot compel a person to do a thing, not provided in law nor can compel a person to meet the requisition if the situation keeps the same outside the purview of the statutory provision. We, thus, find that insisting upon a certificate to be issued from the fire department or an NOC is unwarranted and beyond the scope of the Excise Act and the Rules framed thereunder. Even if we hold that it is beyond the purview of the Act, yet the importance of providing safety measures and keeping safety gadgets within such building or the premises is a need of an hour and should not be dispensed with.

4. A responsible citizen would always make endeavour to keep those safety gadgets to avoid any incident of fire to surge and we are informed by the learned Advocate for the Petitioner that the fire extinguisher have already been installed at different places and a regular monitoring and/or refilling and/or replacement are being made from the authorized agencies.

5. Based on such assurances, we do not find that any further instruction is required to be issued in this regard. The letter mandating the fire safety certificate and/or NOC by all the IMFL ON shop units without earmarking the nature of the building or the construction as incorporated in the amended Rule 9(1) cannot be sustained in the eye of law; the same is hereby quashed and set aside.

(Harish Tandon) Chief Justice

(Chittaranjan Dash) Judge

Bijay/ Sarbani Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Jul-2026 15:24:36 Signature Not Verified