SANJAY GUPTA & ORS versus STATE OF UTTAR PRADESH THROUGH ITS CHIEF SECRETARY & ORS
[2022] 15 S.C.R. 137, Supreme Court of India, 2022
Outcome: Directions issued
Segment: Ratio
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   [2022] 15 S.C.R. 137
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SANJAY GUPTA & ORS.
v.
STATE OF UTTAR PRADESH THROUGH ITS CHIEF
SECRETARY & ORS.
(Writ Petition (Civil) No. 338 of 2006)
APRIL 12, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Constitution of India: Arts. 21 and 32 –Commission of Inquiry
Act, 1952 - ss.2(a), 3 - U.P. Fire Service Act, 1944 - s. 16 – Uttar
Pradesh Fire Prevention and Fire Safety Act, 2005 - ss. 2(g) ,3 -
Code of Criminal Procedure - ss.133,144 - Occurrence of Fire
Tragedy in a Consumer Show, organized by the respondents 10 to
12( Organizers)– Incident claimed lives of 65 persons and 161
suffered burn injuries – Organizers appointed a contractor to look
after the proposed construction of exhibition infrastructure –
Organizers claiming that contractors liable for fire tragedy –
Appointment of Commission by theS tate of U.P. under the
Commission under Inquiry Act – However, report submitted by the
Commission not found sustainable by this Court – Thus, this Court
appointed Justice Sinha as a one-man commission to give his report
on the incident – Writ petition in respect of private law liability of
the Organizers – Held : 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
Art. 21 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
- Art. 21 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 very high –On facts, Organizers were the persons
responsible for organizing the exhibition and informing people to
visit such exhibition after purchase of the ticket – Thus, the property
of the Organizers caught fire on account of their negligence and
hence are liable to pay compensation – Organizers herein cannot
be absolved from their duty of providing safety, even though the
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Contractor was engaged for providing certain services –
Contractorwas 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
theirliability – All permissions were required to be sought and were
in fact sought by the Organizers - Victims or their families visited
exhibition on the invitation of the Organizers and not that of the
Contractor – 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 was an independent contractor and the victims
should seek remedy from him – 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 – Report
of the one-man Commission not suffering from any infirmity so as
to absolve the Organizers from their responsibility of organizing
the exhibition – Court Commissioner rightly fixed the liability on
the Organizers to the extent of 60%, and the State with 40% of the
total liability – Such distribution of liability does not suffers from
any illegality to warrant interference by this Court – High Court
Chief Justice to entrust the work of determination of
compensation
to a District Judge or Additional District Judge – Compensation to
be computed in accordance with the principles of just compensation
as in the case of accident under the Motor Vehicle Act, 1988.
Maxims: res ipsa loquitur – Applicability of – On facts, an
exhibition organized of such substantial magnitude without proper
and adequate safety factors which may endanger the life of the
visitors, wherein fire broke and incident claimed lives of 65 persons
and left 161 or more with burn injuries – Maxim res ipsa loquitur
would be applicable as, rightly found by the Court Commissioner,
an act of negligence including negligence of the officers of the
State – Finding on cause of fire is not relevant in determining the
civil liability.
Commission of Inquiry Act, 1952 : ss.2(a), 3 – Appointment
of Inquiry Commission under – Held: 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 – On
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facts, 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 Justice S.B. Sinha
(Retd.) was vesting with this Court under Art. 142 of the Constitution
–Furthermore, it cannot be said that the appointment of the Court
Commissioner was as a Commissioner of Inquiry under the Inquiry
Act.
Nilabati Behera (Smt.) alias Lalita Behera v. State of
Orissa &Ors. (1993) 2 SCC 746 : [1993] 2 SCR 581;
Sube Singh v. State of Haryana &Ors. (2006) 3 SCC
178 : [2006] 2 SCR 67; Radhey Shyam & Anr. v. Chhabi
Nath & Ors. (2009) 5 SCC 616; Radhey Shyam &Anr.
v. Chhabi Nath & Ors.(2015) 5 SCC 423 : [2015] 3
SCR 197; Green Park Theatres Associated (P) Ltd. v.
Association of Victims of Uphaar Tragedy & Ors.
(2001) 6 SCC 663 - held inapplicable.
Sanjay Gupta & Ors. v. State of Uttar Pradesh & Ors.
(2015) 5 SCC 283 : [2014] 8 SCR 992; Shri Sohan
Lal v. Union of India & Anr. AIR 1957 SC 529 : [1957]
SCR 738; Praga Tools Corporation v. Shri C.A. Imanual
& Ors.: (1969) 1 SCC 585 : [1969] 3 SCR 773; Shalini
Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010)
8 SCC 329 : [2010] 8 SCR 836; M.C. Mehta & Anr. v.
Union of India & Ors.(1987) 1 SCC 395 : [1987] 1
SCR 819; Association of Victims of Uphaar Tragedy v.
Union of India & Ors. 2000 SCC
OnLine Del 216;
Municipal Corporation of Delhi, Delhi v. Uphaar
Tragedy Victims Association & Ors. (2011) 14 SCC 481
: [2011] 16 SCR 1; Rudul Sah v. State of Bihar & Anr.
(1983) 4 SCC 141 : [1983] 3 SCR 508 ; Bhim Singh,
MLA v. State of J & K & Ors. (1985) 4 SCC 677; D.K.
Basu v. State of W.B.17. (1997) 1 SCC 416 : [1996] 10
Suppl. SCR 284 ; Dabwali Fire Tragedy Victims
Association v. Union of India & Ors. 2009 SCC OnLine
P & H 10273; DAV Managing Committee & Anr. v.
Dabwali Fire Tragedy Victims Association & Ors. (2013)
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY
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10 SCC 494; M.S. Grewal &Anr. v. Deep Chand Sood
& Ors. (2001) 8 SCC 151 : [2001] 2 Suppl. SCR 156;
Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar
& Ors. AIR 1958 SC 538 : [1959] 0 SCR 279; T.T.
Antony v. State of Kerala & Ors. (2001) 6 SCC 181 :
[2001] 3 SCR 942; Sham Kant v. State of Maharashtra
1992 Supp (2) SCC 521; State of Karnataka v. Union
of India & Anr. (1977) 4 SCC 608 : [1978] 2 SCR 1;
Shyam Sunder & Ors. v. State of Rajasthan (1974) 1
SCC 690: [1974] 3 SCR 549; Pushpabai Purshottam
Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. &Anr.
(1977) 2 SCC 745 : [1977] 3 SCR 372 - referred to.
Haseldine v. C.A. Daw and Son Limited & Ors. (1941)
3 All. E. R. 156 (C.A.); Green v. Fibreglass Ltd. (1958)
2 All. E. R. 521 –referred to.
Halsbury’s Laws of India Vol. 29 (1); American
Jurisprudence Vol. 41 (2d) – referred to.
Case Law Reference
[2014] 8 SCR 992
referred to
Para 3
[1993] 2 SCR 581 
held inapplicable
Para 3
[2006] 2 SCR 67
held inapplicable
Para 7
[1957] SCR 738
referred to
Para 7
(2009) 5 SCC 616
referred to
Para 7
[2015] 3 SCR 197
held inapplicable
Para 7
[1969] 3 SCR 773
referred to
Para 7
[2010] 8 SCR 836
referred to
Para 7
[1987] 1 SCR 819
referred to
Para 10
(2001) 6 SCC 663
referred to
Para 12
[2011] 16 SCR 1
referred to
Para 14
[1983] 3 SCR 508
referred to
Para 16
(1985) 4 SCC 677
referred to
Para 16
[1996] 10 Suppl. SCR 284
referred to
Para 16
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(2013) 10 SCC 494
referred to
Para 19
[2001] 2 Suppl. SCR 156
referred to
Para 20
[1959] 0 SCR 279
referred to
Para 44
[2001] 3 SCR 942
referred to
Para 44
1992 Supp (2) SCC 521
referred to
Para 44
[1978] 2 SCR 1
referred to
Para 47
[1974] 3 SCR 549 
referred to
Para 53
[1977] 3 SCR 372
referred to
Para 54
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.338
of 2006.
(Under Article 32 of The Constitution of India)
Vikas Pahwa, Sr. Adv., Ms. Raavi Sharma, Syed Arham Masud,
Rishi Malhotra, Prem Malhotra, Advs. for the Appellants.
Vikramjit Banerjee, ASG, Ms. Garima Prasad, AAG, Shanti
Bhushan, Sr. Adv., Tushar Bhushan, Rohit Kumar Singh, Manoj K. Mishra,
Umesh Dubey, Dr. Indra Pratap Singh, A. A. Bhasme, Ms. Kiran Pandey,
Pradeep Misra, Suraj Singh, A. P. Dhamija, Ms. Tanya Sharma, Sarad
Kumar Singhania, J. P. Singh, Mukul Singh, D. L. Chidanand, Amit
Sharma, Ms. Rukhimini Bobde, P. V. Yogeswaran, Arvind Kumar Sharma,
Ms. Shruti Agarwal, Siddharth Sinha, Ms. Janhvi Prakash, N. Ch. Zeliang,
Ms. Sunita Singh Chouhan, Hitesh Kumar Sharma, Akhileshwar Jha, E.
Vinay Kumar, Kamlendra Mishra, Gunnam Venkateswara Rao, P.
Parmeswaran, Sunil Kumar Jain, Anuvrat Sharma, Advs. for the
Respondents.
The Judgment of the Court was delivered by
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,
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY
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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
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
1 For short, the ‘Inquiry Act’
2 (2015) 5 SCC 283
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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.
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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.
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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
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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.
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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”.
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VII. NEGLIGENCE
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947. In the present matter, moreover, it has been noticed hereto
before that the Organizers were primarily liable to:-
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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
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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 (18thEdn.),
“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
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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
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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
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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 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.
3 (1993) 2 SCC 746
4 (2006) 3 SCC 178
5 AIR 1957 SC 529
6 (2009) 5 SCC 616- (RadheyShyamI)
7 (2015) 5 SCC 423-(RadheyShyamII)
8 (1969) 1 SCC 585
9 (2010) 8 SCC 329
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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.
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
10 (1987) 1 SCC 395
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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oleum gas 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
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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, afire broke outatUphaar 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 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
11 2000 SCC OnLine Del 216
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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
fightingequipments 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.”
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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 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 BaggaVs.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 521related 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
12 (2001) 6 SCC 663
13 CW No. 4567 of 1999 decided on 24.4.2003
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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
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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
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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
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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
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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 226of 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 :-
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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
14 (2011) 14 SCC 481
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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compensation and if any claimants (legal heirs of the deceased or
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?
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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.. .....................
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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
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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.
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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.
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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.
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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).
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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.
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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
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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:
“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
15 (1983) 4 SCC 141
16 (1985) 4 SCC 677
17 (1997) 1 SCC 416
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
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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.
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 inappeal 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
18 2009 SCC OnLine P&H 10273
19 (2013) 10 SCC 494
20 (2001) 8 SCC 151
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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”.
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 couldlaunch 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
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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-fetchedas the invoices were raised on
06/07.04.2006. The exhibition was to start from 06.04.2006, therefore, it
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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.23and 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
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
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)
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
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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
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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 theirnegligence 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:
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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 sub-
section (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 sub-section
(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 Organisershave 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
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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 neighbourhoodor
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
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(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.”
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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 no-
objection 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
25 For short, the ‘Electricity Act’
26 For short, the ‘Electricity Rules’
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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).
(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.
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
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(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 Commissioner30cannot
be made basis of any action against the Organizers as it is merely
27 AIR 1958 SC 538
28 (2001) 6 SCC 181
29 1992 Supp (2) SCC 521
30 Court Commissioner
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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 aCommissioner 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 under the Inquiry Act as appointment under the said Act has to be
made by the State Government. The appointment of the Court
Commissionerwas 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
amountsto 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
31 (1977) 4 SCC 608
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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
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
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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
32 (1974) 1 SCC 690
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
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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]
“... 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] ).
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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
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]
33 (1977) 2 SCC 745
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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 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 liabilitydetermined 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
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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.
Nidhi Jain
Directions issued.
(Assisted by : Tamana, LCRA)
SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESH
THROUGH ITS CHIEF SECRETARY [HEMANT GUPTA, J.]