SANJAY GUPTA & ORS. VS STATE OF UTTAR PRADESH THROUGH ITS CHIEF SECRETARY & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 338 OF 2006

SANJAY GUPTA & ORS. .....APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH THROUGH ITS

CHIEF SECRETARY & ORS.

.....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The present writ petition has been preferred by the victims of the fire

tragedy which occurred on 10.4.2006 at about 5:40 p.m., the last day of

the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar

Pradesh by Mrinal Events and Expositions who are being represented as

Respondents 10 to 12 herein. For the sake of convenience, Respondents

10-12 are being collectively referred as “Organizers”. This unfortunate

incident claimed the lives of 65 persons and left 161 or more with burn

injuries.

2. The State of Uttar Pradesh appointed Hon’ble Mr. Justice O.P. Garg

(Retired) in terms of provisions of the Commission of Inquiry Act, 19521

vide order dated 2.6.2006 with the following terms of reference:

“(1) To find out the facts, causes on account of which the

aforesaid accident occurred;

(2) To decide the ways and means to keep up the situation in

control;

(3) In respect of the aforesaid occurrence, determination of

liability and the extent thereof;

(4) Measures to be adopted to avoid the occurrence of such

incident in future.”

3. The above appointed Commission submitted its report on 5.6.2007

wherein various witnesses and documents produced were examined.

Such report was not found to be sustainable in the order dated 31.7.2014

reported as Sanjay Gupta & Ors. v. State of Uttar Pradesh & Ors.2.

This Court while rejecting the proceedings conducted by the Commission

under the Inquiry Act, appointed Hon’ble Mr. Justice S.B. Sinha (Retired)

as a one-man Commission as it was found that the Organizers were

summoned after examination of almost 45 witnesses and were not

afforded opportunity of cross-examination. It was held as under:

“11. In view of the aforesaid enunciation of law, it is difficult to

sustain the report. We are obliged to state here that in course of

hearing, we had asked the learned counsel for the parties that in

1 For short, the ‘Inquiry Act’ 2 (2015) 5 SCC 283

case the report of the Commission would be set aside, the

Commission has to proceed after following the provisions of the Act.

The said position was acceded to. On a further suggestion being

made, the learned counsel for the parties had fairly agreed for

appointment of another retired Judge as Commission. The learned

counsel for the parties had suggested certain names in sealed covers

but there was no commonality. Regard being had to the gravity of

the situation and the magnitude of the tragedy, on due deliberation

we appoint Justice S.B. Sinha, formerly a Judge of this Court, as the

one-man Commission. It is agreed by the learned counsel for the

parties that the witnesses, who were examined by the previous

Commission and not cross-examined by Respondents 10 to 12, their

depositions shall be treated as examination-in-chief and they shall

be made available for cross-examination by the respondent. It has

also been conceded that the documents which have been marked as

exhibits, unless there is a cavil over the same, they shall be treated

as exhibited documents.

xxx xxx

14. The question that we would like to pose is whether this Court

should wait for the Commission's report and then direct the State

Government to pay the amount of compensation to the grieved

and affected persons, who have been waiting for the last eight

years, or should they get certain sum till the matter is finalised.

We will be failing in our duty if we do not take into consideration

the submission of Mr Shanti Bhushan, learned Senior Counsel,

that as far as Respondents 10 to 12 are concerned, no liability can

be fastened under Article 32 of the Constitution of India, and

definitely not at this stage. As far as first part of the submission

is concerned, we keep it open to be dealt with after the report is

obtained by this Court. As far as the second aspect is concerned,

we shall deal with it after we address the issue of public law

remedy and the liability of the State in a case of this nature.

xxx xxx

24. Mr Shanti Bhushan, learned Senior Counsel, would submit

that the liability cannot be fastened on the organisers under

Article 32 of the Constitution as the grievance is not tenable

against the private persons and, in any case, the organisers

cannot vicariously be held liable for the act of the contractors.

25. We have noted these submissions but we are not intending

to address these aspects in praesenti. Be it stated, with regard to

the precise exact quantum, liability of the organisers, liability of

the contractors and, if found liable by this Court, would depend

upon the eventual verdict, regard being had to the report of the

Commission. As stated hereinbefore, we have to see whether the

State and its authorities prima facie are responsible to make them

liable to pay the compensation. The issue of apportionment would

come afterwards.”

4. The Commission appointed by this Court had submitted the report on

29.6.2015. The findings of the Commission on reference nos. 1 and 3

are relevant at this stage which are reproduced hereunder:

“XVII. FINDINGS

479. In answer to Reference No.1, this Commission is of the

opinion that the Organizers deliberately and intentionally

suppressed material facts before the concerned authorities while

applying for grant of permissions.

480. They proceeded on the basis that upon mere asking, they

would be granted permissions, by the college authorities/District

Administration/Police Authorities/Fire Department. They enjoyed

great clout with the concerned authorities.

481. They have singularly failed to comply with the provisions of

Section 54 of the Electricity Act, 2003, and Rule 47A of the Indian

Electricity Rules, 1956.

482. The Organizers had a complete control not only on the

erection of structures, but also the materials used therefor, and

even if the Contractor supplied inflammable materials or

substandard wires and cables, and/or committed serious

irregularities in the matter of electrical management, the

Organizers were liable inasmuch as they have failed and/or

neglected to comply with the mandatory provisions of the

statutory provisions.

483. Mr. Lakhan Tomar accepts that the Contractor has been

sending the materials in trucks from 01.04.2006 along with his

labourers and supervisors, that is, Mr. Pandey, Mr. Navin and Mr.

Sudhakar.

484. The record clearly suggests that the Contractor had some

contribution to make in the matter of organizing the event.

From the materials brought on record by the parties hereto, it is

clear and evident that the Contractor had erected the pandals,

made the stalls, etc.

There is, however, no conclusive proof that. he had also arranged

for the air conditioners or the generators, or had appointed some

other contractor to lay the cables and wires.

485. Except ipse dixit on the part of the Organizers and a couple

of their witnesses, who said that in case of any difficulty, they

used to contact Mr. Pandey, etc. no other evidence has been

brought on record to show that Shri Naresh Garg had any role to

play in the matter of running the event. It is beyond any cavil of

doubt that the entire event was under the direct control and

supervision of the Organizers.

There are sufficient indications on record to show that the

Contractor was not personally present during the period of

erection of the pandals, or the decoration thereof, nor was he

present on all or any of the days during the period of event i.e.

between 06.04.2015 and 10.04.2015.

The contention of the Contractor that he had merely supplied the

materials, however, does not appear to be correct.

486. The Organizers have furthermore misled the Police

Authorities/Fire Safety Authorities, that the personnel of Marshal

Security are trained in fire fighting and fire safety.

487. The Police Authorities furthermore failed to estimate the

number of visitors who were expected to visit in the Exhibition.

As they proceeded on the basis that having regard to the number

of expected visitors crowd management may not be a problem.

488. The fire started from Hall 'B' and spread to Hall 'A' and Hall

‘C'. The cause of the fire was either short circuit or use of

substandard wires and cables or overheating.

489. To this Commission it does not appear that there was any

act of sabotage or mischief or that it is a case of “Vis Major”.

xx xx xx

VII. NEGLIGENCE

xx xx xx

947. In the present matter, moreover, it has been noticed hereto

before that the Organizers were primarily liable to:-

a) obtain all permissions/NOCs from all concerned authorities

including the Managing Committee of the Meerut College; and

b) they being in control of the event, would be deemed to be the

occupier of the Exhibition premises, and thus had a special 'duty

to care' having regard to the fact that large number of persons

had-put up their stalls, and thousands of visitors had been visiting

the Exhibition.

948. The Organizers, in the opinion of this Commission, were

wholly negligent in so far as they organized the event without

taking due care and caution without obtaining the requisite

permissions and without complying with the relevant provisions

of the statute.”

X. DETERMIANTION OF LIABILTY AND ITS EXTENT

968. The liabilities of the parties to the reference have been

discussed heretobefore elaborately.

969. Laxity on the part of the authorities and the cavalier manner

in which actions have been taken by them deserves severe

criticism.

970. The Organizers, it will bear repetition to state, were not new

in the field, apart from the fact that for all intent and purport, they

are in the construction business.

971. The profession of the architects are governed by the

Architects Act, 1972. It is expected that they would not commit

any professional misconduct. Their ability and competence is not

in dispute. In the said capacity they are required to advise the

builders of the requirements of law which they are liable to comply

with. If they could not be negligent in discharge of their

professional duties, it was expected that they would not be

negligent when they were themselves event managers.

972. A building (the height specified in Section 3 of the U.P. Fire

Services Act, 2005 and the rules framed thereunder) may be

inspected by the authority to see that adequate precautions for

the purpose of fire prevention and fire safety have been

undertaken. For the purpose of construction of high rise

buildings, steps are required to be taken by the builders in this

behalf, particularly having regard to the fact such incidents of fire

take place very often in the country. In this context also the

Architects and the Builders should have been aware of the

provisions of 1944 Act and the 2005 Act.

973. It has been contended that the Organizers were not aware

of the provisions of the Electricity Act, 2003, or the rules framed

thereunder and the executive instructions issued in this behalf,

which by itself does not give them any immunity.

It is wholly unlikely that the Organizers were not aware of the

promulgation of the prohibitory order under Section 144 of the

Code of Criminal Procedure.

It is also wholly unlikely that they were not aware of the

Environmental laws governing the construction of the buildings.

974. It appears from the record that the Organizers for reasons

best known to them even did not take recourse to due diligence.

975. In Chanderkant Bansal Vs. Rajender Singh Anand reported

in (2008) 5 SCC 117, it is stated as under:-

"16. The words "due diligence" have not been defined in the

Code. According to Oxford Dictionary (Edn. 2006), the word

"diligence" means careful and persistent application or effort.

"Diligent" means careful and steady in application to one's

work and duties, showing care and effort. As per Black's Law

Dictionary (18th Edn.), "diligence" means a continual effort to

accomplish something, care; caution; the attention and care

required from a person in a given situation. "Due diligence"

means the diligence reasonably expected from, and ordinarily

exercised by a person who seeks to satisfy a legal requirement

or to discharge an obligation. According to Words and Phrases

by DraiDyspnea (Permanent Edn. 13-A) "due-diligence'', in

law, means doing everything reasonable, not everything

possible. "Due diligence" means reasonable diligence, it means

such diligence as a prudent man would exercise in the conduct

of his own affairs."

976. Ignorance of different statutes and/or their relevant

provisions has been pleaded by the responsible officers of the

District Administration and Police Authorities, cannot be

appreciated.

977. Mr. Ram Krishna, the District Magistrate was not even aware

of the provisions of under Section 54 of the Electricity Act, 2003.

Even Mr. Shirish Dubey or Mr. S.S. Yadav were not aware of the

said provision. Mr. Ram Krishna could not plead ignorance of the

said provisions particularly when he was a designated authority

under Section 54 of the Electricity Act, 2003.

978. It appears that despite the fact that in terms of the 2005

Act, the officers of the Fire Safety Department are under the

control of the Police Authorities, the requirements of law had not

been followed by the police authorities.

979. The conduct on the part of the college authorities cannot also

be lost sight of.

980. How and on what basis the Principal of the Meerut College,

Meerut had accorded his approval in principle raises serious doubt

in the mind of the Commission.

981. It has also been noticed hereinbefore that the Organizers are

guilty of misrepresentation in regard thereto before the SSP

Meerut, while filing an Application for grant of permission for

organizing the exhibition.

982. With the aforementioned backdrop, the reference in

question is required to be answered.

983. It has been noticed heretobefore that the manner in which

things proceeded leave no manner of doubt that, at all material

times, the Organizers were more than sure that the requisite

permissions would be granted to them on mere asking.

984. It has further been noticed heretobefore that no satisfactory

explanation has been given by the Organizers as to why instead

and in place of approaching the District Magistrate, Meerut at the

first instance, they filed an application for grant of permission

before the Senior Superintendent of Police, Meerut on

01.02.2006, having regard to the fact that even according to

them, the Principal of Meerut College, Meerut, had asked them to

obtain necessary permissions from both the District Magistrate,

Meerut and Police Authorities.

985. Under the 2005 Act, the police authorities exercised over all

control over the members of the fire services. Mr. Yadav,

however, put the onus on the District Administration. The fact

remains that in terms of the provisions of the Act, it was

obligatory on the part of the concerned authorities, be it the

District Administration or be it the Police Authorities to ask the

fire department to cause inspection to be made and a report

submitted. It is difficult to appreciate as to why such procedure

was not followed either by the District Administration or by the

Police Authorities.

986. It must also be reiterated once over again that the College

Authorities granted formal permission and accepted the deposit

of Rs.40,000/- from the Organizers only on lst April 2006. It is

also a matter of some concern that he had allowed dumping of

the materials on the site even prior thereto.

987. Emboldened by the grant of the No Objection Certificate and

treating the same to be an order granting permission to hold the

exhibition both by the District Administration and Police

Authorities, the Organizers approached the Chief Fire Officer with

a letter. It was more by way of information and not a request for

inspection and issuance of permission to hold the exhibition, as

stated by Mr. Lakhan Tomar.

988. A casual mention was made for deployment of-fire-fighting

instruments but the amount prescribed therefor was not

deposited. The manner in which the said application was dealt

with by the Chief Fire Officer leaves much to desire. He asked the

SFO to make an inquiry. The regular SSFO was on leave at that

time, but he joined his duties on 04.04.2006.

989. Before the SFO submitted his joining report, Mr. Naresh

Kumar Singh who was the SSFO made a purported inspection and

submitted a report to the CFO evidently ignoring the procedure

prescribed namely to forward the report through the SFO.

According to Mr. Singh when the report was submitted both the

CFO and the SFO were sitting together.

990. So many persons lost their lives and a large number of

persons suffered serious injuries to their person and property

because of the acts, omissions and commissions on the part of

the statutory authorities of the State.

991. The State of Uttar Pradesh no doubt is liable to pay due

compensation to the kin of the victims, as also the injured

persons, because of acts of omission and commission on the part

of its officers.

However, as such omissions led to the benefit of the Organizers

and they had also organized the Exhibition in violation of the legal

provisions, they are also liable for their act of gross negligence.

Having considered the facts and circumstances of the case and

the conduct of the Organizers and those of the public servants,

this Commission is of the opinion that the liability of the

Organizers was to the extent of 60% and that of the State was

40%.”

5. Later, on 26.4.2017, a copy of the report was handed over to the learned

counsel for the State so that the report could be sent to the competent

authority of the State which shall apprise the Court about its view on the

report of the Commission. The objections filed by the Organizers on

14.10.2015 to the said report were also handed over to the learned

counsel for the State to enable the State to file affidavit with regard to

its view and the action it intends to take. An amount of Rs.30 lakhs

deposited by the Organizers in terms of the order dated 31.7.2014 was

sent to the District Judge, Meerut for pro-rata distribution amongst the

victims.

6. In pursuance of the said order, the State had filed its affidavit disclosing

inter alia the action taken against the responsible officials including

lodging of First Information Report and initiation of disciplinary

proceedings.

7. Mr. Shanti Bhushan, learned senior counsel appearing for the Organizers

has raised preliminary objection about the entertainment of the writ

petition by this Court in respect of private law liability of the Organizers

and contended that such liability does not fall within the scope of Article

32 of the Constitution of India. To support such contention, reliance was

placed upon Nilabati Behera (Smt.) alias Lalita Behera v. State of

Orissa & Ors.3, Sube Singh v. State of Haryana & Ors.4, Shri Sohan

3 (1993) 2 SCC 746 4 (2006) 3 SCC 178

Lal v. Union of India & Anr.5, Radhey Shyam & Anr. v. Chhabi Nath

& Ors.6, Radhey Shyam & Anr. v. Chhabi Nath & Ors.7, Praga Tools

Corporation v. Shri C.A. Imanual & Ors.8 and Shalini Shyam Shetty

& Anr. v. Rajendra Shankar Patil9.

8. Nilabati Behera and Sube Singh are the cases involving high

handedness on behalf of a public servant and vicarious liability of the

State. Such cases would stand on a different footing. Radhey

Shyam-I is a case of a writ petition arising out of a purely civil dispute

relating to property and when the civil suit was pending before the Civil

Court. In Shalini Shyam Shetty, an order passed by the Bombay High

Court was challenged in a writ petition under Article 226 of the

Constitution. Such writ petition was dismissed in view of concurrent

findings of the Trial Court and the First Appellate Court arising out of a

suit for eviction. Radhey Shyam-II is a three-Judge Bench judgment

examining the question as to whether an order of the Civil Court was

amenable to the writ jurisdiction under Article 226 of the Constitution.

The issues arising in the aforesaid cases have no semblance with the

facts of the present case and are thus not applicable.

5 AIR 1957 SC 529

6 (2009) 5 SCC 616- (Radhey Shyam I) 7 (2015) 5 SCC 423- (Radhey Shyam II)

8 (1969) 1 SCC 585

9 (2010) 8 SCC 329

9. The findings in Shri Sohan Lal are not relevant in the present case as

such judgment of this Court arose in respect of restoration of possession

of a house, the title over which was disputed. One of the claimants had

approached the High Court in a petition under Article 226 of the

Constitution. Therefore, purely civil dispute in relation to title to the

property was sought to be raised in a writ petition. In Praga Tools

Corporation, a writ petition was filed claiming writ of Mandamus against

a company and not against the conciliation officer in respect of any public

or statutory duty imposed upon him by the Act. Hence, it does not

provide any assistance in the present matter wherein the rights of the

victims are emanating from Article 21 of the Constitution of India. This

Court held as under:

“7. The company being a non-statutory body and one

incorporated under the Companies Act there was neither a

statutory nor a public duty imposed on it by a statute in respect

of which enforcement could be sought by means of a mandamus,

nor was there in its workmen any corresponding legal right for

enforcement of any such statutory or public duty. The High Court,

therefore, was right in holding that no writ petition for a

mandamus or an order in the nature of mandamus could lie

against the company.”

10. Mr. Vikas Pahwa, learned senior counsel appearing for the writ

petitioners, has referred to the judgment of this Court reported as M.C.

Mehta & Anr. v. Union of India & Ors.10 wherein, in case of oleum gas

10 (1987) 1 SCC 395

leakage from the factory premises of Shriram Foods and Fertiliser

Industries, a writ petition under Article 32 of the Constitution of India

was entertained and the negligence was fixed. It was only in respect of

quantum of compensation, the matter was referred to the Delhi Legal

Aid and Advice Board. Para 30 of the order reads thus:

“30. Before we part with this topic, we may point out that this

Court has throughout the last few years expanded the horizon of

Article 12 primarily to inject respect for human rights and social

conscience in our corporate structure. The purpose of expansion

has not been to destroy the raiso d'etre of creating corporations

but to advance the human rights jurisprudence. Prima facie we

are not inclined to accept the apprehensions of learned counsel

for Shriram as well founded when he says that our including within

the ambit of Article 12 and thus subjecting to the discipline of

Article 21, those private corporations whose activities have the

potential of affecting the life and health of the people, would deal

a death blow to the policy of encouraging and permitting private

entrepreneurial activity. Whenever a new advance is made in the

field of human rights, apprehension is always expressed by the

status quoists that it will create enormous difficulties in the way

of smooth functioning of the system and affect its stability. Similar

apprehension was voiced when this Court in R.D. Shetty

case [(1979) 3 SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR

1014] brought public sector corporations within the scope and

ambit of Article 12 and subjected them to the discipline of

fundamental rights. Such apprehension expressed by those who

may be affected by any new and innovative expansion of human

rights need not deter the court from widening the scope of human

rights and expanding their reach and ambit, if otherwise it is

possible to do so without doing violence to the language of the

constitutional provision. It is through creative interpretation and

bold innovation that the human rights jurisprudence has been

developed in our country to a remarkable extent and this forward

march of the human rights movement cannot be allowed to be

halted by unfounded apprehensions expressed by status quoists.

But we do not propose to decide finally at the present stage

whether a private corporation like Shriram would fall within the

scope and ambit of Article 12, because we have not had sufficient

time to consider and reflect on this question in depth. The hearing

of this case before us concluded only on December 15, 1986 and

we are called upon to deliver our judgment within a period of four

days, on December 19, 1986. We are therefore, of the view that

this is not a question on which we must make any definite

pronouncement at this stage. But we would leave it for a proper

and detailed consideration at a later stage if it becomes necessary

to do so.” (Emphasis Supplied)

11. Mr. Pahwa also referred to an order passed by the Delhi High Court in a

writ petition under Article 226 of the Constitution in a judgment reported

as Association of Victims of Uphaar Tragedy v. Union of India &

Ors.11. The claim was of compensation for the victims against the

respondents for showing callous disregard to their statutory obligations

and to the fundamental and indefeasible rights guaranteed under Article

21 of the Constitution of India of the public in failing to provide safe

premises, free from hazards that could reasonably be foreseen. In that

case, a fire broke out at Uphaar Theatre, New Delhi in the evening of

13.6.1997. The High Court after examining the various precedents held

as under:

“102. On this law it cannot be said, at this stage that the petition

is not maintainable. Even otherwise we find that this is not a

matter in which highly disputed question of fact arise. This

appears to be a matter in which facts could be ascertained very

easily. The Rules and Regulation are clear and unambiguous.

Everybody knows them or should know them. It cannot seriously

be disputed that the private respondents, who were or are owners

of Uphaar Cinema were (as are all cinema owners) bound to

11 2000 SCC OnLine Del 216

strictly comply with them. It cannot be seriously disputed that the

Government agencies are entrusted with duty to ensure that the

Rules and Regulations were complied with. It cannot be seriously

disputed that a theatre is one place where a large number of

people have to sit in an enclosed area for a fairly long period of

time. There is a potential threat to life and safety if fire, leakages

of gas, etc. take place. This potential threat has to be guarded

against. At the stage, therefore, it cannot be said that the cinema

owners/employees (past/present) cannot be held to be under an

obligation to provide and maintain all standards of safety and/or

that they are not liable to compensate for loss of fundamental

right guaranteed under Article 21 if harm has arisen by virtue of

their not guarding against such hazard. Prima facie it appears that

under the doctrine of strict liability on Public Law (as set out

above) the liability would be then even if there is no negligence

on their part. The Government and its agencies would also be

liable for not having ensured strict compliance with Rules and

Regulations which have been created to ensure safety. At this

stage it appears to us that this is the case in which there can

hardly be any dispute. The Rules and Regulations are clear and

known. The affidavits of the public authorities support petitioners

and admit that there was non-compliance. In fact, Mr. Rawal's

arguments have necessarily been that Rules and Regulations were

not complied with. Mr. Rawal sought to justify the lapse of not

ensuring compliance by blaming it on the Orders of the High

Court. At this stage, it appears to us that Orders of this Court only

stayed the suspension of licence for four days and/or the Order of

the Lt. Governor. It prima facie appears that the Orders of the

High Court did not justify grant of temporary permits for such a

long period of time. Admittedly, the fire took place on 13th June,

1997. Admittedly, a number of people have been killed and/or

injured. Admittedly, fire fighting equipments and/or ambulances

arrived on scene late. Admittedly at that time and even now the

CATS Centre which was to have been created as far back as 1986

has not yet been established. There also does not appear to be

much dispute on fact that number of seats had been increased,

size of gangway reduced, one exit closed by creating a private

viewing box, etc. It can easily be ascertained whether there have

been unauthorised deviations. The building is still standing. These

are matters which can easily be verified by the Court by

appointment of Commissioners. The Commissioners, who would

be responsible persons, knowledgeable in the field would visit the

site in presence of all parties and ascertain facts. The Report of

the Commissioner would show whether Rules and Regulations

were complied and whether there have been deviations or not. It

is clarified that Court is not giving any findings at this stage and

is not holding that there have been breach of Rules and/or

Regulations and/or unauthorised deviations and/or failure to

enforce. All that the Court is saying is that at this stage it cannot

conclude that the petition is not maintainable.”

12. The High Court further in the above matter also directed the Court

Commissioners to visit the site and submit a report as to whether or not

all Rules, Regulations and statutory provisions were complied with and if

not, to what extent. Such order was challenged by some of the victims

in a judgment reported as Green Park Theatres Associated (P) Ltd.

v. Association of Victims of Uphaar Tragedy & Ors.12 but the appeal

was dismissed.

13. It was thereafter, the Division Bench of the Delhi High Court in a

judgment reported as Assn. of Victims of Uphaar Tragedy & Ors. v.

Union of India & Ors.13 noticed the deviations in the building plans of

the theater. The High Court considered a similar argument as was raised

on behalf of the Organizers herein and held as under:

“47. Dr.Rajeev Dhawan, Senior Advocate, argued on behalf of the

respondents that the public law remedies by way of writ petitions are

normally limited to giving directions, providing interim and final

injunctive reliefs and quashing decisions which are violative of the

fundamental rights or violation of law. He submits that the scope of

providing damages in public law is limited to specific situations and

12 (2001) 6 SCC 663

13 CW No. 4567 of 1999 decided on 24.4.2003

circumstances where the State deliberately deprives a person of his

personal liberty in cases such as causing death, grievous injury,

custodial violence and the like. He submits that the judgments already

cited by this Court in its earlier judgment dated 21st February, 2000,

namely, Sebastian M.Hongray Vs. Union of India, 1984 (3) SCC 82;

Rudul Sah Vs. State of Bihar, (1983) 4 SCC 141, Bhim Singh Vs. State

of J&K, (1985) 4 SCC 677 M.L.A.; PUDR Vs. State of Bihar and Ors.,

(1987) 1 SCC 265, PUDR Vs. Police Commissioner, Delhi, (1989) 4

SCC 730, Saheli Vs. Commissioner of Police, (1990) 1 SCC

422,Nilabati Behara Vs. State of Orissa, (1993) 2 SCC 746, Arvinder

Singh Bagga Vs.State of U.P., (1994) 6 SCC 585, Inder Singh Vs.

State of Punjab, (1995) 3 S 702, Punjab & Haryana High Court Bar

Association v. State of Punjab, (1996) 4 SCC 742, Ajaib Singh and

Anr. Vs. State of U.P. and Ors., 2000(3) SCC 521 related to cases

where the State had deliberately deprived a person of his personal

liberty or related to cases of causing death, grievous injury, custodial

violence, etc. by the public authorities. It is submitted by him that the

remedy of damages in public law is not available for each and every

transgression of fundamental rights and thus even if there is an error

arising out of an arbitrary action or denial of permission which may

result in damages of crores or there is a transgression of freedom of

religion or any other fundamental right, the remedy of damages is not

available. It is submitted that ultra vires acts by themselves did not

give rise to damages and for this he relied upon the judgments of the

Supreme Court in D.K.Basu Vs. State of West Bengal, (1997) 4 SCC

416.

48. In D.K. Basu Vs.State of West Bengal (Supra) it was held that the

claim in public law for compensation for unconstitutional deprivation

of fundamental right to life and liberty, the protection of which is

guaranteed under the Constitution, is a claim based on strict liability

and is in addition to the claim available in private law for damages for

tortious acts of the public servants. Public law proceedings serve a

different purpose than the private law proceedings. Award of

compensation for established infringement of the indefeasible rights

guaranteed under Article 21 of the Constitution is a remedy available

in public law since the purpose of public law is not only to civilise

public power but also to assure the citizens that they live under a

legal system wherein their rights and interests shall be protected and

preserved. Grant of compensation in proceedings under Article 32 or

Article 226 of the Constitution of India for the established violation of

the fundamental rights guaranteed under Article 21, is an exercise of

the courts under the public law jurisdiction for penalising the

wrongdoer and fixing the liability for the public wrong on the State

which failed in the discharge of its public duty to protect the

fundamental rights of the citizen. In the assessment of compensation,

the emphasis has to be on the compensatory and not on punitive

element. The objective is to apply balm to the wounds and not to

punish the transgressor or the offender, as awarding appropriate

punishment for the offence (irrespective of compensation) must be

left to the criminal courts in which the offender is prosecuted, which

the State, in law, is duty bound to do. The award of compensation in

the public law jurisdiction is also without prejudice to any other action

like civil suit for damages which is lawfully available to the victim or

the heirs of the deceased victim with respect to the same matter for

the tortious act committed by the functionaries of the State. The

quantum of compensation will, of course, depend upon the peculiar

facts of each case and no strait-jacket formula can be evolved in that

behalf. The relief to redress the wrong for the established invasion of

the fundamental rights of the citizen, under the public law jurisdiction

is, thus, in addition to the traditional remedies and not in derogation

of them. The amount of compensation as awarded by the Court and

paid by the State to redress the wrong done, may in a given case, be

adjusted against any amount which may be awarded to the claimant

by way of damages in a civil suit. Dr.Dhawan also relied upon the

judgment reported as M.C. Mehta Vs.Union of India, 1987 (1)

Supreme Court Cases 395, to contend that to justify the award of

compensation, the requirement is that infringement must be gross,

patent, incontrovertible and ex facie glaring. It is also his submission

that the remedy of damages was an extra ordinary remedy where

there was gross violation arising out of deliberate action or malicious

action resulting in deprivation of personal liberty. It is submitted that

the exemplary damages in public law were not to be confused with

damages in private law for which private law remedies were available.

The damages available for constitutional wrongs were by very nature

exemplary and have a limited meaning and were not intended to be

compensatory in nature. In support of his contentions, he refers to

the judgments of the Supreme Court in Nilabati Behara Vs.State of

Orissa, 1993 (2) Supreme Court Cases 746 and Indian Council for

Enviro Legal Action and Others Vs.Union of India and Others, 1996

(3) Supreme Court Cases 212. In Nilabati Behara Vs.State of

Orissa(Supra), it was held by the Supreme Court that it would,

however, be appropriate to spell out clearly the principle on which the

liability of the State arises in such cases for payment of compensation

and the distinction between this liability and the liability in private law

for payment of compensation in an action on tort. It may be

mentioned straightway that award of compensation in a proceeding

under Article 32 by the Supreme Court or by the High Court under

Article 226 of the Constitution is a remedy available in public law,

based on strict liability for contravention of fundamental rights to

which the principle of sovereign immunity does not apply, even

though it may be available as a defense in private law in an action

based on tort. This is a distinction between the two remedies to be

borne in mind which also indicates the basis on which compensation

is awarded in such proceedings. We shall now refer to the earlier

decisions of this court as well as some other decisions before further

discussion of this principle. The compensation is in the nature of

'exemplary damages' awarded against the wrongdoer for the breach

to its public law duty and is independent of the rights available to the

aggrieved party to claim compensation under the private law in an

action based on tort, through a suit instituted in a court of competent

jurisdiction or/and prosecute the offender under the penal law.

49. In Indian Council for Enviro Legal Action and Others Vs.Union of

India and others (Supra), the Supreme Court had held that even if it

is assumed that the Court cannot award damages against the

respondents in proceedings under Article 32 of the Constitution of

India that would not mean that the Court could not direct the Central

Government to determine and recover the cost of remedial measures

from the respondents. It was held that Section 3 of the Environment

(Protection) Act, 1986 expressly empowered the Central Government

to made all such measures as it deems necessary or expedient for the

purpose of protecting and improving the quality of environment. The

right to claim damages was left by institution of suits in appropriate

Civil Courts and it was held that if such suits were filed in forma

pauperis, the State of Rajasthan shall not oppose those applications

for leave to sue in forma pauperis.

xxx xxx

52. We have given our thoughtful consideration to the arguments

advanced by Dr.Rajeev Dhawan that public law remedies by way of

writ petition are normally limited to giving directions, providing

interim and final injunctive reliefs and quashing decisions which are

violative of the fundamental rights or violation of law and that the

remedy of damages in public law is not available for each and every

transgression of fundamental rights nor ultra vires acts by themselves

give rise to damages and that where the disputes questions of fact

involved, the party should be left to the normal course of getting the

matter decided by a Civil Court but we have not been able to make

ourselves agreeable with Dr.Rajeev Dhawan. We have already held in

our judgment dated 29th February, 2000 that the petition for claiming

damages in public law by filing a petition under Article 226 of the

Constitution of India was maintainable. We have also already held

that it was not a matter in which highly disputed questions of fact

arose and it appears to be a matter in which facts could be ascertained

very easily. The earlier observations of the Court, in our view, are

relevant to quote at this stage as under :-

xxx xxx

53. It is in view of these observations that we have to examine as to

how the fire was caused and what is the complicity of the parties in

the same. Besides examining the causation of fire, this Court is also

required to go into the question as to whether a party even if not

responsible for causation of fire was still responsible for spreading the

smoke so as to make it liable for compensation. This Court is also to

examine, if it is ultimately held as to how the fire was caused, who

was responsible for the same and who was responsible for spread of

smoke to the upper floors and what were the deviations in the

building, seating arrangement including provision of gangways and

exit doors, etc., what were the defects in installation and maintenance

of the transformer and how all this has contributed to the spreading

of smoke and fire in the building and how the compensation, if any,

is to be apportioned amongst the parties to this petition”.

(Emphasis Supplied)

14. An appeal against the said order was partly allowed in Municipal

Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association

& Ors.14 wherein this Court held as under:

“60. The contention of the licensee is what could be awarded as

a public law remedy is only a nominal interim or palliative

compensation and if any claimants (legal heirs of the deceased or

14 (2011) 14 SCC 481

any injured) wanted a higher compensation, they should file a suit

for recovery thereof. It was contended that as what was awarded

was an interim or palliative compensation, the High Court could

not have assumed the monthly income of each adult who died as

being not less than Rs 15,000 and then determining the

compensation by applying the multiplier of 15 was improper. This

gives rise to the following question : whether the income and

multiplier method adopted to finally determine compensation can

be arrived at while awarding tentative or palliative compensation

by way of a public law remedy under Article 226 or 32 of the

Constitution?

xx xx xx

64. Therefore, what can be awarded as compensation by way of

public law remedy need not only be a nominal palliative amount,

but something more. It can be by way of making monetary

amounts for the wrong done or by way of exemplary damages,

exclusive of any amount recoverable in a civil action based on

tortious liability.. .....................

xx xx xx

67. Insofar as death cases are concerned the principle of

determining compensation is streamlined by several decisions of

this Court. (See for example Sarla Verma v. DTC [(2009) 6 SCC

121 : (2009) 2 SCC (Cri) 1002 : (2009) 2 SCC (Civ) 770] .) If

three factors are available the compensation can be determined.

The first is the age of the deceased, the second is the income of

the deceased and the third is number of dependents (to determine

the percentage of deduction for personal expenses). For

convenience the third factor can also be excluded by adopting a

standard deduction of one-third towards personal expenses.

Therefore just two factors are required to be ascertained to

determine the compensation in 59 individual cases. First is the

annual income of the deceased, two-thirds of which becomes the

annual loss of dependency; and second, the age of the deceased

which will furnish the multiplier in terms of Sarla Verma [(2009)

6 SCC 121 : (2009) 2 SCC (Cri) 1002 : (2009) 2 SCC (Civ) 770] .

The annual loss of dependency multiplied by the multiplier will

give the compensation. As this is a comparatively simple exercise,

we direct the Registrar General of the Delhi High Court to receive

applications in regard to death cases, from the claimants (legal

heirs of the deceased) who want a compensation in excess of what

has been awarded, that is, Rs 10 lakhs/Rs 7.5 lakhs. Such

applications should be filed within three months from today. He

shall hold a summary inquiry and determine the compensation.

Any amount awarded in excess of what is hereby awarded as

compensation shall be borne exclusively by the theatre owner. To

expedite the process the claimants concerned and the licensee

with their respective counsel shall appear before the Registrar

without further notice. For this purpose the claimants and the

theatre owner may appear before the Registrar on 10-1-2012 and

take further orders in the matter. The hearing and determination

of compensation may be assigned to any Registrar or other Senior

Judge nominated by the learned Chief Justice/Acting Chief Justice

of the Delhi High Court.

xx xx xx

76.4. The licensee (appellant in CA No. 6748 of 2004) and the

Delhi Vidyut Board are held jointly and severally liable to

compensate the victims of the Uphaar fire tragedy. Though their

liability is joint and several, as between them, the liability shall be

85% on the part of the licensee and 15% on the part of the DVB.”

15. In a separate order, Hon’ble Mr. Justice K.S.P. Radhakrishnan held as

under:

“78. Private law causes of action, generally enforced by the

claimants against public bodies and individuals, are negligence,

breach of statutory duty, misfeasance in public office, etc.

Negligence as a tort is a breach of legal duty to take care which

results in damage or injury to another. Breach of statutory duty is

conceptually separate and independent from other related torts

such as negligence though an action for negligence can also arise

as a result of cursory and mala fide exercise of statutory powers.

Right of an aggrieved person to sue in ordinary civil courts against

the State and its officials and private persons through an action

in tort and the principles to be followed in considering such claims

are well settled and require no further elucidation.

xx xx xx

80. We are primarily concerned with the powers of the

constitutional courts in entertaining such monetary claims raised

by the victims against the violation of statutory provisions by the

licensing authorities, licensees, and others affecting the

fundamental rights guaranteed to them under the Constitution.

The constitutional courts in such situations are expected to

vindicate the parties constitutionally, compensate them for the

resulting harm and also to deter future misconduct. The

constitutional courts seldom exercise their constitutional powers

to examine a claim for compensation merely due to violation of

some statutory provisions resulting in monetary loss to the

claimants. Most of the cases in which courts have exercised their

constitutional powers are when there is intense serious violation

of personal liberty, right to life or violation of human rights.

xx xx xx

93. Liability to compensate for infringement of fundamental

rights guaranteed under Article 21 was successfully raised

in Khatri (2) v. State of Bihar [(1981) 1 SCC 627 : 1981 SCC (Cri)

228] (Bhagalpur Blinded Prisoners case).

xx xx xx

96. Courts have held that due to the action or inaction of the

State or its officers, if the fundamental rights of a citizen are

infringed then the liability of the State, its officials and

instrumentalities, is strict. The claim raised for compensation in

such a case is not a private law claim for damages, under which

the damages recoverable are large. The claim made for

compensation in public law is for compensating the claimants for

deprivation of life and personal liberty which has nothing to do

with a claim in a private law claim in tort in an ordinary civil court.

xx xx xx

98. But, in a case, where life and personal liberty have been

violated, the absence of any statutory provision for compensation

in the statute is of no consequence. Right to life guaranteed under

Article 21 of the Constitution of India is the most sacred right

preserved and protected under the Constitution, violation of which

is always actionable and there is no necessity of statutory

provision as such for preserving that right. Article 21 of the

Constitution of India has to be read into all public safety statutes,

since the prime object of public safety legislation is to protect the

individual and to compensate him for the loss suffered. Duty of

care expected from State or its officials functioning under the

public safety legislation is, therefore, very high, compared to the

statutory powers and supervision expected from the officers

functioning under the statutes like the Companies Act, the

Cooperative Societies Act and such similar legislations. When we

look at the various provisions of the Cinematograph Act, 1952 and

the Rules made thereunder, the Delhi Building Regulations and

the Electricity laws the duty of care on officials was high and

liabilities strict.”

(Emphasis Supplied)

16. We find the precedents for payment of compensation in a writ petition

under Article 32 of the Constitution fall under three categories of cases.

First category is where the acts of commission or omission are attributed

to the State or its officers such as Nilabati Behera, Sube Singh, Rudul

Sah v. State of Bihar & Anr.15, Bhim Singh, MLA v. State of J & K &

Ors.16 and D.K. Basu v. State of W.B.17.

17. The second category of cases is where compensation has been awarded

against a corporate entity which is engaged in an activity having the

potential to affect the life and health of people such as M.C. Mehta

wherein the Court held as under:

15 (1983) 4 SCC 141

16 (1985) 4 SCC 677 17 (1997) 1 SCC 416

“31. ....................... We would therefore hold that where in

enterprise is engaged in a hazardous or inherently dangerous

activity and harm results to anyone on account of an accident in

the operation of such hazardous or inherently dangerous activity

resulting, for example, in escape of toxic gas the enterprise is

strictly and absolutely liable to compensate all those who are

affected by the accident and such liability is not subject to any of

the exceptions which operate vis-a-vis the tortious principle of

strict liability under the rule in Rylands v. Fletcher [(1868) LR 3

HL 330 : 19 LT 220 : (1861-73) All ER Rep 1].”

18. The third category comprises of the cases where the liability for payment

of compensation has been apportioned between the State and the

Organizers of the function. In Dabwali Fire Tragedy Victims

Association v. Union of India & Ors.18 wherein in a fire accident, 446

persons died and many others received burn injuries. The High Court in

a writ petition under Article 226 of the Constitution held that the school

which organized the function and respondent No. 8, the owner of the

venue, would be jointly and severally liable to pay 55% of the

compensation, remaining liability was to be borne out by the State.

19. An appeal was filed by the school disputing the liability of payment of

compensation. This Court did not interfere with the percentage of liability

reduced to 55% by the High Court from 80% held by the Inquiry

Commission in a judgment reported as DAV Managing Committee &

Anr. v. Dabwali Fire Tragedy Victims Association & Ors.19.

18 2009 SCC OnLine P&H 10273

19 (2013) 10 SCC 494

20. In another case, the liability of negligence was only fixed upon the school

which organized excursion for the students such as M.S. Grewal & Anr.

v. Deep Chand Sood & Ors.20, whereby the school management was

held guilty of drowning of 14 young kids resulting in untimely and

unfortunate death.

21. The contentions raised by Mr. Bhushan are substantially same as were

raised before Delhi High Court in Assn. of Victims of Uphaar Tragedy,

which were not accepted. This Court in appeal had accepted the view of

the High Court except to the extent of the finding of negligence against

certain respondents. We are in complete agreement with the findings

recorded by this Court in appeal that “where life and personal liberty

have been violated, the absence of any statutory provision for

compensation in the statute is of no consequence. Right to life

guaranteed under Article 21 of the Constitution of India is the most

sacred right preserved and protected under the Constitution, violation of

which is always actionable and there is no necessity of statutory

provision as such for preserving that right. Article 21 of the Constitution

of India has to be read into all public safety statutes, since the prime

object of public safety legislation is to protect the individual and to

compensate him for the loss suffered. Duty of care expected from State

20 (2001) 8 SCC 151

or its officials functioning under the public safety legislation is, therefore,

very high”.

22. Keeping in view the judgments referred to by this Court in its order dated

31.7.2014, as also the judgments referred to above, we find that

infringement of Article 21 may be an individual case such as by the State

or its functionaries; or by the Organizers and the State; or by the

Organizers themselves have been subject matter of consideration before

this Court in a writ petition under Article 32 or before the High Court

under Article 226 such as Uphaar Tragedy or Dabwali Fire Tragedy.

Similar arguments have not found favour with the Delhi High Court and

in appeal by this Court. The view taken therein does not warrant any

interference and we respectfully endorse the same.

23. In the present case, the Organizers took permission from the college

authorities for organizing the exhibition after payment of Rs.40,000/- as

license fee. Such exhibition was organized by the same organizers after

the success of “Build-in-Style” exhibition at Meerut, held on 24, 25 and

26.12.2005 with an object that various brands in the segment of

construction materials could get a platform where they could launch or

expose their merchandise to a considerable segment or gather

information on the prevailing market demographics or even assess and

display the acceptability for certain trends.

24. The Organizers have produced a letter dated 9.3.2006, appointing Mr.

Naresh Garg for the proposed construction of the exhibition

infrastructure. It is to be noted that there is no clause in such work order

that the contractor has to provide for fire safety measures as well. The

relevant extract from the work order reads thus:

“1. Total Area 125mx24m=3000 Sq. Mt. covered area duly

structured using specified hangers, well covered for water

proofing & inner ceiling for grace all neatly done with hard surface,

wall-to-wall carpet flooring and Air Conditioned unit adequate

capacity for the rides shall be well covered with proper material

for ensuring both safety and reasonable light blockade general

lighting and the circulation area in an exhibition like manner and

ensuring both uniform and adequate illumination of the structured

area and supported by the public address system shall be

provided. It however follows without mention that the actual area

incorporated at site may considerably vary from what showed

here in and for the purpose of eventual evaluation/payment etc.

The actual area as built on site shall be taken into consideration

and that no claim in this regard shall be tenable.

xxx xxx

12. Providing & fixing all finishing material as may be deemed

and required as per the general trade practice but not hereto

mentioned in the description as above for the same in for

guidance and reference only and not to be construed as on

exhaustive account of all scope and specifications of work

covered. The responsibility to address to all such stipulations /

standard business and workmanship practices shell be the role &

exclusive prerogation (sic prerogative) and ultimate responsibility

of M/ s Standard only.”

25. The argument of Mr. Bhushan was that the word ‘safety’ used in the work

order would also include safety from fire as well. Therefore, the

responsibility of providing fire safety measures was upon the Contractor.

It was further submitted that 25 fire extinguishers were provided by the

Organizers in view of the request made by the Contractor as he was not

locally available and therefore, the same was procured from Meerut with

the payment being made by the Organizers to his account.

26. We do not find any merit in the said argument raised. The word ‘safety’

appearing in the work order cannot be read in isolation but has to be read

in the context in which the word has been used. The term ‘safety’ was

used for the rides to be provided by the Contractor with proper material

for ensuring both safety and reasonable light blockade general lighting.

Therefore, the expression safety used in Para 1 of the work order does

not lead to any inference that fire safety measures were to be adopted

by the Contractor. Still further, the advance rental for the fire

extinguishers was paid by the Organizers vide receipt dated 06.04.2006

and 07.04.2006. Shri N.K. Singh, Fire Station Second Office (FSSO) was

asked the question by the Organizers as to whether 25 fire extinguishers

were shown to him by Mr. Pandey, a representative of the Contractor. He

has responded that 25 fire extinguishers were lying there and were shown

to him by Lakhan Tomar, one of the Organizers. Therefore, to say the fire

extinguishers were provided at the asking of the Contractor appears to

be far-fetched as the invoices were raised on 06/07.04.2006. The

exhibition was to start from 06.04.2006, therefore, it is unbelievable that

the Contractor would not be available at Meerut as the exhibition was just

around the corner. Our attention has not been drawn to any assertion or

the question put to the Contractor that these fire extinguishers were

provided at his asking, which were to be paid by the him subsequently.

27. It was argued that the Organizers had given a turn-key project to the

Contractor on 9.3.2006 and the consequences of the tragedy had to be

borne by him. It was argued that the report has not given any finding

regarding negligence of the Organizers, therefore, the apportionment of

liability on them is an unjust conclusion drawn by the Commission. The

reliance is placed upon Halsbury’s Laws of India21, American

Jurisprudence22, Haseldine v. C.A. Daw and Son Limited & Ors.23

and Green v. Fibreglass Ltd.24.

28. The Organizers had submitted a request for providing temporary

firefighting on 1.4.2006 representing that they have taken permission

from the administration for using the premises and conducting the event.

After submitting such request, the Organizers paid an advance rental for

Fire Extinguishers to one Uni Fire Systems on 6.4.2006 and for certain

Fire Extinguishers on returnable basis on 7.4.2006. Though the

Commission has found that the Contractor was not an independent

21 Vol. 29 (1) Pg. 285.093 (pg 91) 22 Vol. 41 (2d) page-774/777 Pr. 24

23 (1941) 3 All. E. R. 156 (C.A.) Pg. 159, 168 & 169 24 (1958) 2 All. E. R. 521 (pg 523 bottom to 524-H/525-B)

contractor and there is interpolation in the work order issued, but the

said aspect is not necessary to be examined as admittedly, the work

order issued on 9.3.2006 by the Organizers does not contemplate any

duty on the Contractor to provide for fire safety measures as well. Still

further, the victims or the visitors to the exhibition have no privity of

contract with the Contractor. The ticket proceeds were collected by the

Organizers. It is the responsibility of the Organizers, having collected the

entry fee, to ensure the safety and well-being of the visitors. The

Organizers have failed in that duty causing loss of life of the innocent

victims who came to see the exhibition, which was purely a commercial

event with an intention to earn profit by the organizers.

29. The Court Commissioner found that the contract with the Contractor was

neither a turn-key project nor was he appointed as an independent

contractor. Therefore, the argument of the Organizers that they are not

liable for the acts of omission or commission on the part of the contractor

was rejected by the Commission. Even otherwise, the Organizers were

vicariously liable for the alleged acts of negligence on the part of the

contractor. The Contractor was only responsible for executing work as

assigned to him by the Organizers.

30. Mr. Bhushan has relied on Halsbury’s Laws of India in the context of

negligence on the part of independent contractor. However, it is to be

noted that the inter-se relationship between the Organizers and the

Contractor is not the subject matter of examination in the present

proceedings. The question is as to the liability of the Organizers qua the

visitors who had paid for the tickets to visit the exhibition. Even if the

Contractor who has provided services be an independent contractor, but

that will not absolve the Organizers from their responsibility as there was

no privity of contract of the visitors with the Contractor who was providing

services to the Organizers alone and not to the visitors.

31. The reliance of Mr. Bhushan on American Jurisprudence refers to

preliminary examination for filing of an information charging a

misdemeanor. The said text book is not relevant to the issues raised in

the present proceedings.

32. In Haseldine, a visitor to a flat availed the service of a lift to reach the

flat located on fifth floor. However, the lift collapsed and the visitor

suffered spinal injury. Though, the landlord was found to be permitting

the visitor to the flat let out but the responsibility of maintenance of the

lift was passed on to the engineer who was entrusted with the task of

maintenance of lift. We do not find that the said judgment in any way

supports the argument raised. It was held that the landlord could not

have been expected to have the technical knowledge, but which is not

the case in the present matter.

33. In Green, the occupiers had employed independent contractors to rewire

their office. Due to negligence of one of the contractor’s workmen, a fire

broke out. In an attempt to clean the fire, the plaintiff received severe

electrical burns and thus sued the occupiers for breach of their duty to

use reasonable care to prevent damage. It was found that the occupier

was not responsible for the defaults of the independent contractor. We

find that the present case is not applicable in the light of facts and

circumstances in the present dispute as the Organizers herein cannot be

absolved from their duty of providing safety, even though the Contractor

was engaged for providing certain services. These services were also to

be performed for the Organizers and not for the victims/visitors.

34. The U.P. Fire Service Act, 1944, though is more concerned with the duties

and responsibilities of the fire officers, also talks about liability of the

property owners to pay compensation. Section 16 of the said Act

contemplates that any person whose property catches fire on account of

any act of his own or of his agent done deliberately or negligently shall

be liable to pay compensation to any other person suffering damage to

his property. The Organizers were the persons responsible for organizing

the exhibition and informing people to visit such exhibition after

purchase of the ticket. Therefore, the property of the Organizers has

caught fire on account of their negligence and hence are liable to pay

compensation.

35. The Uttar Pradesh Fire Prevention and Fire Safety Act, 2005 was enacted

to make more effective provisions for fire prevention and fire safety

measures in certain buildings and premises in the State of Uttar Pradesh.

The occupier as defined in Section 2(g) of the said Act includes any

person who for the time being is paying or is liable to pay to the owner

rent or any portion of the rent of the land or building in respect of which

such rent is paid or is payable. The Organizers have paid Rs.40,000/- for

obtaining permission to conduct exhibition in the lawns of the college,

therefore, the Organizers are occupiers within the meaning of Section

2(g) of the said Act. Sub-section (1) of Section 3 of the said Act permits

the nominated authority to enter and inspect the building or premises at

any time for ascertaining the adequacy or contravention of fire

prevention and fire safety measures. Sub-section (2) of Section 3 further

contemplates assistance by the owner or occupier to the nominated

authority for carrying out the inspection under sub-section (1) of Section

3. The nominated authority has to give a report of any inspection made

by it under Section 3 to the District Magistrate. Sections 3 and 4 of the

said Act read thus:

“3.(1) The nominated authority may, after giving three hours

notice to the occupier or, if there be no occupier, to the owner of

any building having such height as may be prescribed or

premises, enter and inspect the said building or premises at any

time between sunrise and sunset where such inspection appears

necessary for ascertaining the adequacy or contravention of fire

prevention and fire safety measures:

Provided that the nominated authority may enter into and

inspect any building or premises at any time if it appears to it to

be expedient and necessary to do so in order to ensure safety of

life and property.

(2) the nominated authority shall be provided with all possible

assistance by the owner or occupier, as the case may be, of the

building or premises for carrying out the inspection under subsection (1).

(3) When any building or premises used as a human dwelling is

entered under sub-section (1) due regard shall be paid to the

social and religious sentiments of the occupiers; and before any

apartment in the actual occupancy of any woman, who according

to the custom does not appear in public, is entered under subsection (1), notice shall be given to her that she is at liberty to

withdraw, and every reasonable facility shall be afforded to her

for withdrawing.

4.(1) The nominated authority shall, after the completion of the

inspection of the building or premises under section 3, record its

views on the deviations from, or the contraventions of, the

building bye-laws with regard to the fire prevention and fire safety

measures and inadequacy of such measures provided therein with

reference to the height of the building or the nature of activities

carried on in such building or premises and issue a notice to the

owner or occupier of such building or premises directing him to

undertake such measures as may be specified in the notice.

(2) The nominated authority shall also give a report of any

inspection made by it under section 3 to the District Magistrate.”

36. The Organisers have not applied for permission under the said Act nor

had the nominated authority caused the inspection, therefore, the

Organizers and the State have been rightly saddled with liability for not

taking precautions as mandated by the statute.

37. Mr. Bhushan also argued that Section 133 of the Code of Criminal

Procedure does not provide for any permission, whereas the Organizers

have obtained permission to organize exhibition in terms of Section 144

of the Code. Section 133 of the Code reads thus:

“133. Conditional order for removal of nuisance- Whenever

a District Magistrate or a Sub-divisional Magistrate or any other

Executive Magistrate specially empowered in this behalf by the

State Government, on receiving the report of a police officer or

other information and on taking such evidence (if any) as he

thinks fit, considers-

(a) xxx xxx

(d) that any building, tent or structure, or any tree is in

such a condition that it is likely to fall and thereby cause

injury to persons living or carrying on business in the

neighbourhood or passing by, and that in consequence the

removal, repair or support of such building, tent or

structure, or the removal or support of such tree, is

necessary; or

(e) xxx xxx,

such Magistrate may make a conditional order requiring the

person causing such obstruction or nuisance, or carrying on such

trade or occupation, or keeping any such goods or merchandise,

or owning, possessing or controlling such building, tent, structure,

substance, tank, well or excavation, or owning or possessing such

animal or tree, within a time to be fixed in the order-

(i) xxx xxx

(iii) to prevent or stop the construction of such building, or

to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or

structure, or to remove or support such trees; or

(v) xxx xxx

(vi) xxx xxx

or, if he objects so to do, to appear before himself or some other

Executive Magistrate subordinate to him at a time and place to be

fixed by the order, and show cause, in the manner hereinafter

provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this Section shall

be called in question in any Civil Court.

Explanation- A “public place” includes also property belonging to

the State, camping grounds and grounds left unoccupied for

sanitary or recreative purposes.”

38. Though the power is to remove any building, tent or structure, or any

tree which is in such a condition that it is likely to fall and thereby cause

injury to persons living or carrying on business in the neighborhood, such

power could be exercised only after the structure is raised. Thus, in case

any structure is raised without the permission of the civil administration,

the Organizers could be directed to remove such tent or structure.

Therefore, it was a pre-requisite condition for the Organizers to inform

the civil administration about the structure which they are putting up for

the purpose of exhibition so that the civil administration does not pass an

order subsequently for removal of such structure so as to avoid any

disruption on account of order which may be passed by civil

administration.

39. It has also come on record that Section 144 was promulgated on or about

28.02.2006 by the then Additional District Magistrate, Meerut City. The

order was operative from midnight of 28.02.2006 till the midnight of

15.04.2006 for the purposes of maintenance of public safety.

40. The argument of Mr. Bhushan is that since permission under Section 144

of the Code was granted, therefore, no separate permission under

Section 133 of the Code was required. Reliance is placed upon the order

dated 31.03.2006 wherein the order passed by the Sub-Divisional

Magistrate shows that the District Administration has conveyed its noobjection in organization of the events from 06.04.2006 to 10.04.2006

on the basis of the report of Superintendent of Police, City Meerut dated

13.03.2006. However, the Organizers were to ensure maintenance of

peace and order under Section 144 of the Code. Therefore, the

permission under Section 144 was for the organization of the event by

ensuring maintenance of peace and order whereas no approval of the

structure raised was sought under Section 133 of the Code. The

promulgation was to maintain peace in the city area, therefore, the

permission was granted to allow gathering of people for the purpose of

exhibition only. The permission under Section 144 of the Code is to allow

gathering of people in relaxation of the promulgation, whereas, Section

133 permission was required to ensure that structure put by the

organizers is safe so as to not to endanger the life of the visitors.

41. The Court Commissioner has further found that the Organizers are liable

for not taking permission under the provision of Section 54 of the

Electricity Act, 200325 and Rule 47A of the Indian Electricity Rules,

195626. It was however argued that the onus of seeking permission was

on the installer of generators and that the Organizers were not the

suppliers of generators. Thus, the liability has been wrongly fixed on the

Organizers. Section 54 of the Electricity Act and Rule 47A of the Electricity

Rules read as thus:

“54. Control of transmission and use of electricity- (1) Save

as otherwise exempted under this Act, no person other than the

Central Transmission Utility or a State Transmission Utility, or a

licensee shall transmit or use electricity at a rate exceeding two

hundred and fifty watts and one hundred volts-

(a) in any street, or

(b) in any place,-

(i) in which one hundred or more persons are ordinarily

likely to be assembled; or

(ii) which is a factory within the meaning of the Factories

Act, 1948 (63 of 1948) or a mine within the meaning of the

Mines Act, 1952 (35 of 1952); or

(iii) to which the State Government, by general or special

order, declares the provisions of this sub-section to apply,

without giving, before the commencement of transmission or use

of electricity, not less than seven days’ notice in writing of his

intention to the Electrical Inspector and to the District Magistrate

or the Commissioner of Police, as the case may be, containing

particulars of the electrical installation and plant, if any, the nature

and the purpose of supply and complying with such of the

provisions of Part XVII of this Act, as may be applicable:

Provided that nothing in this section shall apply to electricity used

for the public carriage of passengers, animals or goods, on, or for

the lighting or ventilation of the rolling stock of any railway or

tramway subject to the provisions of the Railways Act, 1989 (24

of 1989).

25 For short, the ‘Electricity Act’

26 For short, the ‘Electricity Rules’

(2) Where any difference or dispute arises as to whether a place

is or is not one in which one hundred or more persons are

ordinarily likely to be assembled, the matter shall be referred to

the State Government, and the decision of the State Government

thereon shall be final.

(3) The provisions of this section shall be binding on the

Government.

47A. Installation and Testing of Generating Units- Where

any consumer or occupier installs a generating plant, he shall give

a thirty days’ notice of his intention to commission the plant to

the supplier as well as the Inspector:

Provided that no consumer or occupier shall commission his

generating plant of a capacity exceeding 10 KW without the

approval in writing of the Inspector.”

42. The Contractor was working on behalf of the Organizers in terms of the

work order issued. Therefore, whatsoever may be the relationship

between the two, the Organizers cannot be absolutely absolved of their

liability. All permissions were required to be sought and were in fact

sought by the Organizers. Even the permission to use the generators

was obtained by the Organizers themselves. Moreover, when the

application made by the Organizers for grant of load of 1540 KVA was

not sanctioned by the Power Corporation, they themselves met the

additional electricity requirement from the generators alone. Thus, the

Court Commissioner has rightly fixed the liability on the Organizers to

the extent of 60%, and on account of negligence in performing statutory

duties by the officers of the State, the State has been burdened with

40% of the total liability. We do not find such distribution of liability

suffers from any illegality which may warrant interference by this Court.

43. We find that the Court Commissioner has examined each issue

pertaining to the incident extremely minutely. Thus, the judgments

referred to by Mr. Bhushan are not helpful to hold that the Organizers

were not responsible for the violation of fundamental right to life of the

victims under Article 21 of the Constitution of India.

44. Furthermore, Mr. Bhushan has referred to judgments reported as Shri

Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors.27, T.T.

Antony v. State of Kerala & Ors.28, Sham Kant v. State of

Maharashtra29 to contend that the report of the Commissioner30 cannot

be made basis of any action against the Organizers as it is merely

recommendations submitted to the State. The argument is that the

Commissioner appointed by this Court is to substitute the Commissioner

appointed by the State, therefore, the Commissioner appointed by this

Court would only be a Commissioner under the Inquiry Act.

45. Such argument has been rebutted by Mr. Pahwa to contend that the

appointment of the Court Commissioner by this Court was not made

27 AIR 1958 SC 538

28 (2001) 6 SCC 181

29 1992 Supp (2) SCC 521

30 Court Commissioner

under the Inquiry Act as appointment under the said Act has to be made

by the State Government. The appointment of the Court Commissioner

was that of a Judicial Commission to make inquiry into the factual aspects

leading to the fire tragedy and the persons responsible for its cause.

46. The appointment of an Inquiry Commission is contemplated under

Section 3 of the Inquiry Act i.e. by an appropriate Government or in

pursuance of resolution passed by each House of the Parliament or, as

the case may be, the Legislature of the State. The appropriate

Government is defined in Section 2(a) of the Inquiry Act to mean the

Central Government for any matter relatable to any of the entries

enumerated in List I, II or III in the Seventh Schedule to the Constitution

and the State Government in relation to make an inquiry into any matter

relatable to any of the entries enumerated in List II or List III in the

Seventh Schedule. Therefore, the Commission under the Act shall be

appointed either by the Executive or by the Legislature but not by the

Judiciary in terms of the provisions of Inquiry Act.

47. The judgment in Shri Ram Krishna Dalmia arises out of a writ petition

filed by an aggrieved person against appointment of a commission under

the Inquiry Act inter alia on the ground that the action of the Government

in appointing an inquiry commission is malafide and amounts to abuse

of power. The appeals filed by the aggrieved persons were dismissed.

State of Karnataka v. Union of India & Anr.31 arises out of an original

suit filed by the State of Karnataka against Government of India

appointing an inquiry commission under the Inquiry Act inter alia on the

ground that Inquiry Act does not authorize the Central Government to

constitute a Commission of Inquiry in regard to matters falling

exclusively within the sphere of the State’s legislative and executive

power. On the other hand, the State also appointed an Inquiry

Commission. The appointment of the Commission by the Central

Government was not interfered with. This Court found that the two

notifications authorize the enquiries into the matters which are

substantially different in nature and object and the Inquiry Commission

appointed by the Government of India cannot be said to be barred in

view of the notifications issued by the State Government.

48. In T.T. Antony, this Court held that the civil or criminal courts are not

bound by the report or findings of the Commission of Inquiry as they

have to arrive at their own decision on the evidence placed before them

in accordance with law. The investigating agency may with advantage

make use of the report of the Commission in its onerous task of

investigation bearing in the mind that it does not preclude the

investigating agency from forming a different opinion under Sections

31 (1977) 4 SCC 608

169/170 of Criminal Procedure Code if the evidence obtained by it

supports such a conclusion. In Sham Kant, for convicting an accused in

a criminal trial, reliance was sought on the report of the Commission

under the Inquiry Act. This Court held that the report of the Commission

is not relevant to determine the commission of offence tried by the

Criminal Court. Each of the cases referred to above are on a different

factual background. Thus, none of the judgments relied upon by Mr.

Bhushan supports his argument that the Court Commissioner was a

Commission under the Inquiry Act or that the report of the Commission

cannot form a basis for proceeding against the organizers or the State.

49. Still further, none of the judgments have laid down that the report of the

Commission is not relevant. In respect of criminal charges, an accused

can be tried by a Court of law and not merely on the basis of the report

of the Commissioner under the Inquiry Act. Such report is not conclusive

and an independent action has to be taken by the State or by the victims

against the Organizers before the competent court of law to prove the

criminal offences said to be committed by certain accused.

50. We find that the appointment of the Court Commissioner was though to

substitute the Commissioner appointed under the Inquiry Act, but under

the Inquiry Act, the Court could not appoint a Commissioner. Such power

is conferred only on the executive and the legislature. Thus, the

jurisdiction exercised in appointing Hon’ble Mr. Justice S.B. Sinha (Retd.)

was vesting with this Court under Article 142 of the Constitution. It was

a Court Commission to find out the factual positions on the questions of

reference. We do not find any merit in the argument that the

appointment of the Court Commissioner was as a Commissioner of

Inquiry under the Inquiry Act and the same is made out from the fact

that this Court has sought comments from the State on the basis of the

report so furnished.

51. The victims or their families visited exhibition on the invitation of the

Organizers and not that of the Contractor. The Organizers were supposed

to make arrangements for putting up the exhibition hall, providing

electricity and water and also the food stalls for the facility of the

victims/visitors. They cannot now take shelter on the ground that the

Contractor who was given work order on 9.3.2006 was an independent

contractor and the victims should seek remedy from him. As observed

earlier, the contractor has worked for the Organizers and not for the

victims. Hence, the Organizers alone are responsible to protect the life

and liberty of the victims.

52. The argument of Mr. Bhushan that the Court Commissioner has not given

any conclusive finding on the cause of the fire is not relevant in

determining the civil liability. The maxim res ipsa loquitur would be

applicable as organizing an exhibition of such substantial magnitude

without proper and adequate safety factors which may endanger the life

of the visitors, has been rightly found by the Court Commissioner, an act

of negligence including negligence of the officers of the State.

53. In Shyam Sunder & Ors. v. State of Rajasthan32, this Court observed

that the maxim res ipsa loquitor is resorted to when an accident is shown

to have occurred and the cause of the accident is primarily within the

knowledge of the defendant. The mere fact that the cause of the accident

is unknown does not prevent the plaintiff from recovering the damages,

if proper inference to be drawn from the circumstances which are known

is that it was caused by the negligence of the defendant. It was observed

as thus:

“9. The main point for consideration in this appeal is, whether the

fact that the truck caught fire is evidence of negligence on the

part of the driver in the course of his employment. The maxim res

ipsa loquitur is resorted to when an accident is shown to have

occurred and the cause of the accident is primarily within the

knowledge of the defendant. The mere fact that the cause of the

accident is unknown does not prevent the plaintiff from recovering

the damages, if the proper inference to be drawn from the

circumstances which are known is that it was caused by the

negligence of the defendant. The fact of the accident may,

sometimes, constitute evidence of negligence and then the

maxim res ipsa loquitur applies.

10. The maxim is stated in its classic form by Erle, C.J.:

[Scott v. London & St. Katherine Docks, (1865) 3 H&C 596, 601]

32 (1974) 1 SCC 690

“... where the thing is shown to be under the management of the

defendant or his servants, and the accident is such as in the

ordinary course of things does not happen if those who have the

management use proper care, it affords reasonable evidence, in

the absence of explanation by the defendants, that the accident

arose from want of care.”

The maxim does not embody any rule of substantive law nor a

rule of evidence. It is perhaps not a rule of any kind but simply

the caption to an argument on the evidence. Lord Shaw remarked

that if the phrase had not been in Latin, nobody would have called

it a principle [Ballard v. North British Railway Co., 1923 SC (HL)

43] . The maxim is only a convenient label to apply to a set of

circumstances in which the plaintiff proves a case so as to call for

a rebuttal from the defendant, without having to allege and prove

any specific act or omission on the part of the defendant. The

principal function of the maxim is to prevent injustice which would

result if a plaintiff were invariably compelled to prove the precise

cause of the accident and the defendant responsible for it even

when the facts bearing on these matters are at the outset

unknown to him and often within the knowledge of the defendant.

But though the parties' relative access to evidence is an influential

factor, it is not controlling. Thus, the fact that the defendant is as

much at a loss to explain the accident or himself died in it, does

not preclude an adverse inference against him, if the odds

otherwise point to his negligence (see John G. Fleming, The Law

of Torts, 4th Edn., p. 264). The mere happening of the accident

may be more consistent with the negligence on the part of the

defendant than with other causes. The maxim is based as

commonsense and its purpose is to do justice when the facts

bearing on causation and on the care exercised by defendant are

at the outset unknown to the plaintiff and are or ought to be

within the knowledge of the defendant (see Barkway v. S. Wales

Transo [(1950) 1 All ER 392, 399] ).

11. The plaintiff merely proves a result, not any particular act or

omission producing the result. If the result, in the circumstances

in which he proves it, makes it more probable than not that it was

caused by the negligence of the defendants, the doctrine of res

ipsa loquitur is said to apply, and the plaintiff will be entitled to

succeed unless the defendant by evidence rebuts that probability.”

54. Further, this Court in Pushpabai Purshottam Udeshi v. Ranjit

Ginning & Pressing Co. Pvt. Ltd. & Anr.33 held that where the plaintiff

can prove the accident but cannot prove how it happened to establish

negligence on the part of the defendant, such hardship is sought to be

avoided by applying the principle of res ipsa loquitor. It was observed

thus:

“6. The normal rule is that it is for the plaintiff to prove negligence

but as in some cases considerable hardship is caused to the

plaintiff as the true cause of the accident is not known to him but

is solely within the knowledge of the defendant who caused it, the

plaintiff can prove the accident but cannot prove how it happened

to establish negligence on the part of the defendant. This hardship

is sought to be avoided by applying the principle of res ipsa

loquitur. The general purport of the words res ipsa loquitur is that

the accident “speaks for itself' or tells its own story. There are

cases in which the accident speaks for itself so that it is sufficient

for the plaintiff to prove the accident and nothing more. It will

then be for the defendant to establish that the accident happened

due to some other cause than his own negligence. Salmond on

the Law of Torts (15th Edn.) at p. 306 states: “The maxim res

ipsa loquitur applies whenever it is so improbable that such an

accident would have happened without the negligence of the

defendant that a reasonable jury could find without further

evidence that it was so caused”. In Halsbury's Laws of England,

3rd Edn., Vol. 28, at p. 77, the position is stated thus: “An

exception to the general rule that the burden of proof of the

alleged negligence is in the first instance on the plaintiff occurs

wherever the facts already established are such that the proper

and natural inference arising from them is that the injury

complained of was caused by the defendant's negligence, or

where the event charged a; negligence ‘tells it own story’ of

negligence on the part of the defendant, the story so told being

clear and unambiguous”. Where the maxim is applied the burden

is on the defendant to show either that in fact he was not

33 (1977) 2 SCC 745

negligent or that the accident might more probably have

happened in a manner which did not connote negligence on his

part.”

55. The said aspect of res ipsa loquitor has also been commented upon by

the Court Commissioner holding the Organizers and the State liable to

apportion the liability. Thus, we are of the opinion that the report of the

one-man Commission is not suffering from any infirmity so as to absolve

the Organizers from their responsibility of organizing the exhibition.

56. In terms of the order passed, as mentioned above, the Commission has

submitted its report and apportioned the liability between the Organizers

and the State as 60:40. No dispute was raised regarding percentage of

liability determined by any of the party to the present proceedings.

Therefore, what remains to be seen now, is the question of compensation

payable to the victims and/or their families.

57. The State has paid Rs.2 lakhs each as ex-gratia compensation to the

families of the deceased, Rs.1 lakh each for the persons who suffered

serious injuries and Rs.50,000/- each for the persons suffering from

minor injuries whereas the Union of India has paid ex-gratia

compensation of Rs.1 lakh each for the deceased and Rs.50,000/- each

for those with serious injuries. In terms of the order of this Court, the

State has paid Rs.5 lakhs each to the deceased, Rs.2 lakhs each to the

victims suffering serious injuries and Rs. 75,000/- each to the victims

suffering minor injuries, apart from the amount paid by the Union of

India.

58. The list of deceased and injured persons has been produced by the

learned counsel for the petitioners. The amount of compensation

payable to each of the victim including the families of the deceased have

not been computed and such amount is required to be computed in

accordance with the principles of just compensation as in the case of

accident under the Motor Vehicle Act, 1988 by the Motor Accidents

Claims Tribunal.

59. We, therefore, request the Hon’ble Chief Justice of the Allahabad High

Court to entrust the work of determination of compensation to a Judicial

Officer in the rank of District Judge/Additional District Judge at Meerut

within two weeks of the order of this Court to work exclusively on the

question of determination of the compensation on day-to-day basis. The

High Court shall provide all necessary infrastructure to enable the Officer

to discharge his duties. The nominated Judicial Officer may permit the

parties to lead such evidence as may be permissible. We hope that the

nominated Judicial Officer shall calculate the amount of compensation

and forward the report to this Court for consideration in respect of

compensation in accordance with law. The amount paid by the State and

a sum of Rs.30 Lakhs deposited by the Organizers has been disbursed

to the victims. The said amount, excluding the ex-gratia payments made,

be taken into consideration while determination of the amount payable

by the Organizers and the State.

List after four months.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

APRIL 12, 2022.

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Indian Constitution

SANJAY GUPTA & ORS. VS STATE OF UTTAR PRADESH THROUGH ITS CHIEF SECRETARY & ORS.

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