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

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
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
3
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.
4
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.
5
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.
6
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.
7
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:-
8
"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
9
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
10
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
11
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
12
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
13
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
14
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
15
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
16
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
17
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
18
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
19
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
20
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
21
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
22
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
23
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.
24
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
25
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
26
“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
27
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
28
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.
29
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
30
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
31
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)
32
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
33
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.
34
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
35
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
36
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
37
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
38
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.
39
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
40
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’
41
(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
42
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
43
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.
44
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
45
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
46
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
47
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
48
“... 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.”
49
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
50
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
51
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
52
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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