KRISHNA MOHAN SHUKLA ETC. ETC. v.

UNION OF INDIA AND ORS.

JANUARY 25, 2CCO

(B.N. KIRPAL, K.T. THOMAS AND D.P. MOHAPATRA, JJ.]

Bhopal Gas Leak Disaster (Registration and processing of claims) Scheme, 1985 : Paras 5 and 11.

C Bhopal Gas Tragedy-Victims-Medical categorisation of-Detennination of compensation-Grieva11ces regarding-Held, under modified scheme the amount detennined as compensation for different types of ailments is not final-ft would be subject to determination afresh if called in questio,_Against detennination made by Deputy Welfare Commissioner an appeal can be preferred before Additional Welfare Commissio,_Thereafter D revision lies to the Welfare Commissioner-Thereafter High Court can be approached under Article 226 rather than approaching Supreme Court directly under Articles 32 or 136.

Bhopal Gas Disasteayment of compensation to victims-Constitution of Lok Adalats for-Contention t.'1at Lok Adalats constituted were sham E and their decisions should be set at naughejection of contention-Earlier pursuant to direction given by Supreme Court notice published by Additional Welfare Commissioner enabling claimants to file petitions for review of Lok Adalat's decision--Held, this direction would safeguard the interest of those persons who felt aggrieved by the decision of the Lok Adalats.

F Bhopal Gas Tragedy-Victims-<Jrievance of lack of proper medical research and non-functioning of hospitals and medical f acilities--Held, this issue was covered by another pending writ petition-f'etitioner pennitted to raise this issue and assist the court during the hearing of that petition.

G CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 66 of 1995 Etc. Etc.

Under Article 32 of the Constitution of India.

M. Chandrasekharan, V.R. Reddy, R.N. Trivedi, K. N. Rawal, Addi- H tional Solicitor Generals, P.P. Malhotra, V.C Mahajan, A.K. Sikri, A.K. 384

K. M. SHlJKIA v. lJ.O.I. 385

Chitale, Dushyant Dave, Harish N. Salve, Ms. Indira Jaising, A.H. Desai, A (Mrs. A.K. Verma) for M/s. JBD & Co., Shiv Sagar Tiwari, S. Muralidhar, Ms. Neeru Vaid, Anil K. Jha, Sunil Kumar, B.S. Banthia, T.S. Chaudhary, S.K. Gambhir, S. WasimA. Qadri, Ms. Sushma Suri, B.V. Bairam Das, S.K.

Dwivedi, S.N. Terdol, Ms. Anil Katiyar, Sakesh Kumar, S.K. Agnihotri, K.S.

Rana, Ms. Anubha Jain, D.S. Mehra, V.K. Rao, Ms. Madho Sikri, Harish Uppal, Arun K. Singh, Prashant Bhushan, A. Mariarputham, K.J. John, Ms.

Indu Goswamy, S. Muralidhar, James J. Nedumpara, Mrs. Rekha Pandey, Aran K. Sinha, Arvind K. Sharma, (Krishan Mohan Shilltla) In-Person for the Petitioner, M.P. Shorawalla, Ms. A. Subhashini, Suresh Kumar, Ms.

Charu Singhal, Ranjit Kumar, P.K. Manohar, Mrs. Mirdula Agarwal, J.B.

Dadachanji, D.V. Desai and Naresh Sharma for the appearing parties.

The following Order of the Court was delivered :

Writ Petition (Civil) No. 66 of 1995.

We have heard the petitioner and also the counsel for the respon- D dents.

Numerous orders had been passed earlier in this writ petition dealing with various aspects of the case. On 16th March, 1998, this Court required the petitioner to give in writing the issues which survived in the writ petition in respect of which directions from this Court were necessary.

Pursuant to the said directions, the petitioner filed an affidavit dated 16th April 1998. Two categories under which issues were stated to arise were : Firstly, alleged arbitrary functioning of the Bhopal Gas Relief Tribunal; and secondly, with regard to the medical facilities.

In relation to the allegation regarding the arbitrary functioning of the Tribunal, the grievance was that there was defective medical categorisation, preparation of illegal compensation and categorisation list, holding of so-called Lok Adalats which was illegal, arbitrary manner in which the suo motu revisional powers were exercised, etc.

After the Bhopal Gas Tragedy, a Scheme had been prepared in 1985

by the Government of India. Para 5 of the said Scheme prnvided for . • categorisation and registration of claims. Sub-clause (2) dealt with different categories under which the claims could be registered. Pursuant thereto, the Central Government under sub-clause (2) of Para 11 of the Scheme H

A determined the total amount of compensation which could be apportioned for each category of Haims and the quantum of compensation payable in general in relation to each type of injury or loss.

One of the grievances which has been made bt:fore us is that the B Deputy Commissioner~ adopted and formulated their own yardsticks for the purpose of paying compensation to the claimants. For exampk, for chronic conjunctivitis, proposed amount of compensation was Rs. 35, C:Y.J.

It is submitted by the petitioner that mentioning these amounts as compensation payablt: wa~ arbitrary and contrary to the Scheme.

C There is no grievance with regard to thLO quantum of compensation which has been specifit:d by the Government undt:r Para 11 (2). For each category falling under Para 5, the amount of compensation payable is specified. In two cases, the amount specified is fixed, whereas in the case of other categories there is a scale which had been provided within which D the amount of compensation is required to be determined. On 6th December, 1997, in the proposed compensation amount, it was clarified that the figures mentioned therein were only guiddines and were not conclusive as to the amount of compensation which was payable and if the Deputy Commissioner or the Additional Co.nmissioner was satisfied then for reasons to be recorded in writting, they could award compensation in E excess of the amount indicated then:in.

As we see it, the limits within which compensation can be awarded for claimants falling under different categories in para 5, the Central Government has specified the amounts under Para 11(2). Specific ailments p are not mt:ntioned therein. In practice, the Deputy Welfare Commissioner and the Additional Welfare Commissioner have to deal with ailments and the question would arise as to under what category of Para 5 of the Scheme would they fall and secondly as to what is the specific amount which is payable to them within the scale. The Committee of Deputy Commissioners appear to have formulated a yardstick which would obviously avoid delay G in the determination of the amount of compensation which is payable. In a modification carried out on 6th December, 1997, it has been made clear, and in our opinion rightly so, that the amount determined as compensation for different types of ailments is not final. It will be subject to determination afresh, if called in question, either in appeal or in revision before the H Welfare Commissioner. We would at this stag.: like to emphasise that we

have seen orders pased by the Welfare Commissioner where he has entt:r- A taincd revision petitions against the orders in appeal passed by the Additional Commissioner. A Welfare Commissiner is a sitting Judge of the Madhya Pradesh High Court and normally, therefore, the claimant should have no cause of grievance after the decision by the Welfare Commissioner.

Even if then:aftt:r there is some grievance, the right of judicial review, inter B aJia, provided by Artides 226 and 227 of the Constitution is always available. There can be little doubt that the aggrieved persons are entitled to receive fair and just compensation and/or damages due to them. There is now a system in place and any claims which arc made, have to be determined within this system. There is first determination by the Deputy Welfare Commissioner against which an appeal can be filed to the Additional Welfare Commissioner and thereafter a revision to the welfare Commissioner. If even then there is a grievance of a claimant, proper remedy is to approach the High Court who would be in a position to deal

with a case more expeditiously and give relief to the individual claimant, where it is called for, without undue expense, rather than approaching this D Court under Artide 32 or Article 136 of the Constitution.

As far as the grievance of the petitioner that the Lok Adalats which were constituted were sham and all those decisions should be set at naught, we are not inclined to accept the said contention. It appears that grievance with regard to Lok Adalats was made bt:fore this Court whereupon order dated 7th November, 1997 W"clS passed in which it was, inter alia, observed as follows : ,.-

" ...... In the circumstances it is directed that the claimant falling p in Medical Category 'C' and above who feels aggrieved by the amount of compensation awarded by the Lok Adalats and the appeal being not entertained by the Additional Welfare Commissioner against such award may file a review petition for n.:view of the award. Such review petition shall be considered by the concerned Additional Wclfan: Commissioner. The office of the Wei, G fare Commissioner shall issue a public notice with regard to above direction given by this Court and publish it in a local newspaper so that the claimants may know that they can file a review petition.

The review petition should be filed within two months from the date of the publication of the notice." H

A This order, inter alia postulated the entertaining of n:view petitions in cases of claimants falling under Medical Category 'C' and above and whose appeals had not been entertained by the Additional Welfare Commissioner and the review petitions could be filed within two months of the public notice being issued in the local newspapers. We are informed that such B public notice was issued. This direction, to our mind, would clearly safeguard the interest of those persons who really felt aggrieved by the decision of the Lok Adalats and had then sought to challenge the same.If there was no challenge to the agreement arrived at in the Lok Adalats, the order dated 7th November, 1997 did not postulate giving a further opportunity. The said decision of 7th November, 1997 of this Court does not C require any reconsiderntion, even though the petitioner submitted that this should be done.

The grievance is also made with regard to lack of proper medical research and the non-fuctioning of the hospitals and generally with regard to the medical facilities. The issues raised in this regard are convered by D Writ Petition (Civil) No. 50 of 1998 {Bhopal Gas Peedith Mahila V. Sangat. & Ors. v. U.O.l. & Ors.). In our opinion, it will be more appropriate to deal with these aspects of the case, namely pertaining to the furnishing of the medical facilities in Writ Petition {C) No. 50 of 1998. In that petition, pleadings are complete, affidavits have~ been filed and some orders passed.

E The petitioner will be at liberty to assist the learned counsel appearing in Writ Petition {Civil) No. 50 of 1998. If necessary, even though we are disposing of this writ petition, the counsel appearing in Writ Petition {Civil) No. 50 of 1998 will be at liberty to refer to any affidavit or document which may have been filed in this writ petition.

F This writ petition is disposed of in the aforesaid manner. It is clarified that if any of the claimants has any grievance against an order passed by the Welfare Commissioner or by the Tribunal, it is open to the claimant to seek judicial review, but first it must be sought before the High Court rather than filing a writ petition under Article 32 or a special leave G petition under Article 136 directly in this Court.

Contempt retition (C) No. 364/1998 in W.P. (C) No. 66/1995

The petitioner is permitted to withdraw this petition with liberty to file a fresh petition giving all necessary particulars. This contempt petition H is, accordingly, dismissed as withdrawn.

' --

SLP(C) No. 110711998, SLP(C) No. 118711999, SLP(C) No. A 12529/1998, SLP(C) No. 12875/1997, SLP(C) No. 15822/1996 SLP(C) No. 17519/1998, SLP(C) No.18126/1998, SLP(C) No.18130/1995, SLP(C) Nos. 1643-44/2000 (CC 1979-80/99), SLP(C) No.20742/1998, SLP(C) No.2191/1999. C.A. No. 2542/1999, SLP(C) No.2687211995, SLP(C) No.26967/1995, C.A. No. 3004/1999, C.A. No.3025/1999, C.A. No.

B 3332/1996, SLP(C) Nos. 1645-46/2000 (CC 3723-24/99), SLP(C) No.

1647/2000 (CC 4678/96), SLP(C) No. 500511999, SLP(C) No. 5065/1996, SLP(C) No. 59711998, SLP(C) No. 6140/1999, SLP(C) No. 8942/1996, SLP(C) No. 9724/1999, SLP(C) No. 9729/1999 and SLP(C) No. 9753/1999]

In our opinon, all these matters should be heard by the High Court C of Madhya Pradesh who will deal with the individual cases on the basis of the pleadings before it or such pleadings which may be filed. We direct all these matters to be transferred to the High Curt who will treat them as petitions under Articles 226 and 227 of the Constitution and deal with them in accordance with law as expeditiously as possible. Where the matter arises against an order of the Welfare Commissioner, the same should be D heard by a Division Bench. The Hon'ble Chief Justice of the High Court will pass appropriate orders in this behalf.

T.N.A.

Petition disposed of/dismissed and all the remaining matters should be heard by the High Court of Madhya Pradesh