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

[2022] 15 S.C.R. 137

SANJAY GUPTA & ORS.

STATE OF UTTAR PRADESH THROUGH ITS CHIEFSECRETARY & 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 InquiryAct, 1952 - ss.2(a), 3 - U.P. Fire Service Act, 1944 - s. 16 – UttarPradesh Fire Prevention and Fire Safety Act, 2005 - ss. 2(g) ,3 -Code of Criminal Procedure - ss.133,144 - Occurrence of FireTragedy in Consumer Show, organized by the respondents 10 to12( Organizers)– Incident claimed lives of 65 persons and 161suffered burn injuries – Organizers appointed contractor to lookafter the proposed construction of exhibition infrastructure –Organizers claiming that contractors liable for fire tragedy –Appointment of Commission by theS tate of U.P. under theCommission under Inquiry Act – However, report submitted by theCommission not found sustainable by this Court – Thus, this Courtappointed Justice Sinha as one-man commission to give his reporton the incident – Writ petition in respect of private law liability ofthe Organizers – Held : Where life and personal liberty have beenviolated, the absence of any statutory provision for compensationin the statute is of no consequence – Right to life guaranteed underArt. 21 is the most sacred right preserved and protected under theConstitution, violation of which is always actionable and there isno necessity of statutory provision as such for preserving that right- Art. 21 has to be read into all public safety statutes, since theprime object of public safety legislation is to protect the individualand to compensate him for the loss suffered –Duty of care expectedfrom State or its officials functioning under the public safetylegislation is very high –On facts, Organizers were the personsresponsible for organizing the exhibition and informing people tovisit such exhibition after purchase of the ticket – Thus, the propertyof the Organizers caught fire on account of their negligence andhence are liable to pay compensation – Organizers herein cannotbe absolved from their duty of providing safety, even though the

CDEF

AContractor was engaged for providing certain services –Contractorwas working on behalf of the Organizers in terms of thework order issued – Therefore, whatsoever may be the relationshipbetween the two, the Organizers cannot be absolutely absolved oftheirliability – All permissions were required to be sought and werein fact sought by the Organizers - Victims or their families visitedBexhibition on the invitation of the Organizers and not that of theContractor – Organizers were supposed to make arrangements forputting up the exhibition hall, providing electricity and water andalso the food stalls for the facility of the victims/visitors – Theycannot now take shelter on the ground that the Contractor whoCwas given work order was an independent contractor and the victimsshould seek remedy from him – Contractor has worked for theOrganizers and not for the victims – Hence, the Organizers aloneare responsible to protect the life and liberty of the victims – Reportof the one-man Commission not suffering from any infirmity so asto absolve the Organizers from their responsibility of organizingDthe exhibition – Court Commissioner rightly fixed the liability onthe Organizers to the extent of 60%, and the State with 40% of thetotal liability – Such distribution of liability does not suffers fromany illegality to warrant interference by this Court – High CourtChief Justice to entrust the work of determination of compensationEto District Judge or Additional District Judge – Compensation tobe computed in accordance with the principles of just compensationas in the case of accident under the Motor Vehicle Act, 1988.Maxims: res ipsa loquitur – Applicability of – On facts, anexhibition organized of such substantial magnitude without properFand adequate safety factors which may endanger the life of thevisitors, wherein fire broke and incident claimed lives of 65 personsand left 161 or more with burn injuries – Maxim res ipsa loquiturwould be applicable as, rightly found by the Court Commissioner,an act of negligence including negligence of the officers of theState – Finding on cause of fire is not relevant in determining theGcivil liability.

Commission of Inquiry Act, 1952 : ss.2(a), 3 – Appointmentof Inquiry Commission under – Held: Commission under the Actshall be appointed either by the Executive or by the Legislature butnot by the Judiciary in terms of the provisions of Inquiry Act – OnH

SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESHTHROUGH ITS CHIEF SECRETARY

facts, appointment of the Court Commissioner was though tosubstitute the Commissioner appointed under the Inquiry Act, butunder the Inquiry Act, the Court could not appoint 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 CourtCommissioner was as Commissioner of Inquiry under the InquiryAct.

Nilabati Behera (Smt.) alias Lalita Behera v. State ofOrissa &Ors. (1993) 2 SCC 746 : [1993] 2 SCR 581;Sube Singh v. State of Haryana &Ors. (2006) 3 SCC178 : [2006] 2 SCR 67; Radhey Shyam & Anr. v. ChhabiNath & Ors. (2009) 5 SCC 616; Radhey Shyam &Anr.v. Chhabi Nath & Ors.(2015) 5 SCC 423 : [2015] 3SCR 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 SohanLal 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; ShaliniShyam 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] 1SCR 819; Association of Victims of Uphaar Tragedy v.Union of India & Ors. 2000 SCC OnLine Del 216;Municipal Corporation of Delhi, Delhi v. UphaarTragedy 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] 10Suppl. SCR 284 ; Dabwali Fire Tragedy VictimsAssociation v. Union of India & Ors. 2009 SCC OnLineP & 10273; DAV Managing Committee & Anr. v.Dabwali Fire Tragedy Victims Association & Ors. (2013)

140SUPREME COURT REPORTS

A10 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 MaharashtraB1992 Supp (2) SCC 521; State of Karnataka v. Unionof India & Anr. (1977) 4 SCC 608 : [1978] 2 SCR 1;Shyam Sunder & Ors. v. State of Rajasthan (1974) 1SCC 690: [1974] 3 SCR 549; Pushpabai PurshottamUdeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. &Anr.C(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); AmericanDJurisprudence Vol. 41 (2d) – referred to.

Case Law Reference

SANJAY GUPTA & ORS. v. STATE OF UTTAR PRADESHTHROUGH ITS CHIEF SECRETARY

CIVIL ORIGINAL JURISDICTION :Writ Petition (Civil) No.338of 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, ShantiBhushan, 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, SaradKumar Singhania, J. P. Singh, Mukul Singh, D. L. Chidanand, AmitSharma, 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 theRespondents.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. The present writ petition has been preferred by the victims ofthe fire tragedy which occurred on 10.4.2006 at about 5:40 p.m., the lastday of the India Brand Consumer Show organized at Victoria Park,Meerut, Uttar Pradesh by Mrinal Events and Expositions who are beingrepresented as Respondents 10 to 12 herein. For the sake of convenience,

ARespondents 10-12 are being collectively referred as”Organizers”. Thisunfortunate incident claimed the lives of 65 persons and left 161 or morewith 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,B1952[1] vide order dated 2.6.2006 with the following terms of reference:

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

(2) To decide the ways and means to keep up the situation incontrol;C(3) In respect of the aforesaid occurrence, determination of liabilityand the extent thereof;

(4) Measures to be adopted to avoid the occurrence of such incidentin future.”

D3. The above appointed Commission submitted its report on5.6.2007 wherein various witnesses and documents produced wereexamined. Such report was not found to be sustainable in the orderdated 31.7.2014 reported as Sanjay Gupta &Ors. v. State of UttarPradesh &Ors.[2]. This Court while rejecting the proceedings conducted

Eby the Commission under the Inquiry Act, appointed Hon’ble Mr. JusticeS.B. Sinha (Retired) as one-man Commission as it was found that theOrganizers were summoned after examination of almost 45 witnessesand were not afforded opportunity of cross-examination. It was held asunder:

“11. In view of the aforesaid enunciation of law, it is difficult toFsustain the report. We are obliged to state here that in course ofhearing, we had asked the learned counsel for the parties that incase the report of the Commission would be set aside, theCommission has to proceed after following the provisions of theAct. The said position was acceded to. On further suggestionGbeing made, the learned counsel for the parties had fairly agreedfor appointment of another retired Judge as Commission. Thelearned counsel for the parties had suggested certain names insealed covers but there was no commonality. Regard being had

1 For short, the ‘Inquiry Act’H2 (2015) 5 SCC 283

to the gravity of the situation and the magnitude of the tragedy, ondue deliberation we appoint Justice S.B. Sinha, formerly Judgeof this Court, as the one-man Commission. It is agreed by thelearned counsel for the parties that the witnesses, who wereexamined by the previous Commission and not cross-examinedby Respondents 10 to 12, their depositions shall be treated asexamination-in-chief and they shall be made available for cross-examination by the respondent. It has also been conceded thatthe documents which have been marked as exhibits, unless thereis cavil over the same, they shall be treated as exhibiteddocuments.

xxxxxx

14. The question that we would like to pose is whether this Courtshould wait for the Commission’s report and then direct the StateGovernment to pay the amount of compensation to the grievedand affected persons, who have been waiting for the last eightyears, or should they get certain sum till the matter is finalised.We will be failing in our duty if we do not take into considerationthe submission of Mr Shanti Bhushan, learned Senior Counsel,that as far as Respondents 10 to 12 are concerned, no liability canbe fastened under Article 32 of the Constitution of India, anddefinitely not at this stage. As far as first part of the submission isconcerned, we keep it open to be dealt with after the report isobtained by this Court. As far as the second aspect is concerned,we shall deal with it after we address the issue of public lawremedy and the liability of the State in case of this nature.

xxxxxx

24. Mr Shanti Bhushan, learned Senior Counsel, would submitthat the liability cannot be fastened on the organisers under Article32 of the Constitution as the grievance is not tenable against theprivate persons and, in any case, the organisers cannot vicariouslybe held liable for the act of the contractors.

25. We have noted these submissions but we are not intending toaddress these aspects in praesenti. Be it stated, with regard tothe precise exact quantum, liability of the organisers, liability ofthe contractors and, if found liable by this Court, would dependupon the eventual verdict, regard being had to the report of the

Commission. As stated hereinbefore, we have to see whether theState and its authorities prima facie are responsible to make themliable to pay the compensation. The issue of apportionment wouldcome afterwards.”

4. The Commission appointed by this Court had submitted theBreport 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 theopinion that the Organizers deliberately and intentionallyCsuppressed material facts before the concerned authorities whileapplying for grant of permissions.

480. They proceeded on the basis that upon mere asking, theywould be granted permissions, by the college authorities/DistrictAdministration/Police Authorities/Fire Department. They enjoyedDgreat clout with the concerned authorities.

481. They have singularly failed to comply with the provisions ofSection 54 of the Electricity Act, 2003, and Rule 47A of the IndianElectricity Rules, 1956.

E482. The Organizers had complete control not only on the erectionof structures, but also the materials used therefor, and even if theContractor supplied inflammable materials or substandard wiresand cables, and/or committed serious irregularities in the matterof electrical management, the Organizers were liable inasmuchas they have failed and/or neglected to comply with the mandatoryFprovisions of the statutory provisions.

483. Mr. Lakhan Tomar accepts that the Contractor has beensending the materials in trucks from 01.04.2006 along with hislabourers and supervisors, that is, Mr. Pandey, Mr. Navin and Mr.Sudhakar.

484. The record clearly suggests that the Contractor had somecontribution to make in the matter of organizing the event.

From the materials brought on record by the parties hereto, it isclear and evident that the Contractor had erected the pandals,made the stalls, etc.

There is, however, no conclusive proof that. he had also arrangedfor the air conditioners or the generators, or had appointed someother contractor to lay the cables and wires.

485. Except ipse dixit on the part of the Organizers and coupleof their witnesses, who said that in case of any difficulty, theyused to contact Mr. Pandey, etc. no other evidence has beenbrought on record to show that Shri Naresh Garg had any role toplay in the matter of running the event. It is beyond any cavil ofdoubt that the entire event was under the direct control andsupervision of the Organizers.

There are sufficient indications on record to show that theContractor was not personally present during the period of erectionof the pandals, or the decoration thereof, nor was he present onall or any of the days during the period of event i.e. between06.04.2015 and 10.04.2015.

The contention of the Contractor that he had merely supplied thematerials, however, does not appear to be correct.

486. The Organizers have furthermore misled the PoliceAuthorities/Fire Safety Authorities, that the personnel of MarshalSecurity are trained in fire fighting and fire safety.

487. The Police Authorities furthermore failed to estimate thenumber of visitors who were expected to visit in the Exhibition.As they proceeded on the basis that having regard to the numberof expected visitors crowd management may not be problem.

488. The fire started from Hall ‘B’ and spread to Hall ‘A’ andHall ‘C’. The cause of the fire was either short circuit or use ofsubstandard wires and cables or overheating.

489. To this Commission it does not appear that there was any actof sabotage or mischief or that it is case of “Vis Major”.

xxxxxx

947. In the present matter, moreover, it has been noticed heretobefore that the Organizers were primarily liable to:-

a) obtain all permissions/NOCs from all concerned authoritiesincluding the Managing Committee of the Meerut College; and

b) they being in control of the event, would be deemed to be theoccupier of the Exhibition premises, and thus had special ‘dutyto care’ having regard to the fact that large number of personshad-put up their stalls, and thousands of visitors had been visitingthe Exhibition.

948. The Organizers, in the opinion of this Commission, were whollynegligent in so far as they organized the event without taking duecare and caution without obtaining the requisite permissions andwithout 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 beendiscussed heretobefore elaborately.

969. Laxity on the part of the authorities and the cavalier mannerin which actions have been taken by them deserves severecriticism.

970. The Organizers, it will bear repetition to state, were not newin the field, apart from the fact that for all intent and purport, theyare in the construction business.

971. The profession of the architects are governed by theArchitects Act, 1972. It is expected that they would not commitany professional misconduct. Their ability and competence is notin dispute. In the said capacity they are required to advise thebuilders of the requirements of law which they are liable to complyFwith. If they could not be negligent in discharge of their professionalduties, it was expected that they would not be negligent whenthey were themselves event managers.

972. building (the height specified in Section 3 of the U.P. FireServices Act, 2005 and the rules framed thereunder) may beinspected by the authority to see that adequate precautions forthe purpose of fire prevention and fire safety have been undertaken.For the purpose of construction of high rise buildings, steps arerequired to be taken by the builders in this behalf, particularlyhaving regard to the fact such incidents of fire take place veryoften in the country. In this context also the Architects and the

Builders should have been aware of the provisions of 1944 Actand the 2005 Act.

973. It has been contended that the Organizers were not awareof the provisions of the Electricity Act, 2003, or the rules framedthereunder 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 thepromulgation of the prohibitory order under Section 144 of theCode of Criminal Procedure.

It is also wholly unlikely that they were not aware of theEnvironmental laws governing the construction of the buildings.

974. It appears from the record that the Organizers for reasonsbest known to them even did not take recourse to due diligence.

975. In Chanderkant Bansal Vs. Rajender Singh Anandreported 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” meanscareful and steady in application to one’s work and duties, showingcare and effort. As per Black’s Law Dictionary (18[th]Edn.),“diligence” means continual effort to accomplish something, care;caution; the attention and care required from person in givensituation. “Due diligence” means the diligence reasonably expectedfrom, and ordinarily exercised by person who seeks to satisfy alegal requirement or to discharge an obligation. According to Wordsand Phrases by DraiDyspnea (Permanent Edn. 13-A) “due-diligence’’, in law, means doing everything reasonable, noteverything possible. “Due diligence” means reasonable diligence,it means such diligence as prudent man would exercise in theconduct of his own affairs.”

976. Ignorance of different statutes and/or their relevant provisionshas been pleaded by the responsible officers of the DistrictAdministration and Police Authorities, cannot be appreciated.

977. Mr. Ram Krishna, the District Magistrate was not even awareof the provisions of under Section 54 of the Electricity Act, 2003.Even Mr. Shirish Dubey or Mr. S.S. Yadav were not aware of the

said provision. Mr. Ram Krishna could not plead ignorance of thesaid provisions particularly when he was designated authorityunder 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 controlBof the Police Authorities, the requirements of law had not beenfollowed by the police authorities.

979. The conduct on the part of the college authorities cannotalso 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 doubtin the mind of the Commission.

981. It has also been noticed hereinbefore that the Organizers areguilty of misrepresentation in regard thereto before the SSPMeerut, while filing an Application for grant of permission forDorganizing the exhibition.

982. With the aforementioned backdrop, the reference in questionis required to be answered.

983. It has been noticed heretobefore that the manner in whichthings proceeded leave no manner of doubt that, at all materialtimes, the Organizers were more than sure that the requisitepermissions would be granted to them on mere asking.

984. It has further been noticed heretobefore that no satisfactoryexplanation has been given by the Organizers as to why insteadand in place of approaching the District Magistrate, Meerut at theFfirst instance, they filed an application for grant of permissionbefore the Senior Superintendent of Police, Meerut on 01.02.2006,having regard to the fact that even according to them, the Principalof Meerut College, Meerut, had asked them to obtain necessarypermissions from both the District Magistrate, Meerut and PoliceGAuthorities.

985. Under the 2005 Act, the police authorities exercised over allcontrol over the members of the fire services. Mr. Yadav, however,put the onus on the District Administration. The fact remains thatin terms of the provisions of the Act, it was obligatory on the partof the concerned authorities, be it the District Administration or

be it the Police Authorities to ask the fire department to causeinspection to be made and report submitted. It is difficult toappreciate as to why such procedure was not followed either bythe District Administration or by the Police Authorities.

986. It must also be reiterated once over again that the CollegeAuthorities granted formal permission and accepted the depositof Rs.40,000/- from the Organizers only on lst April 2006. It isalso matter of some concern that he had allowed dumping ofthe materials on the site even prior thereto.

987. Emboldened by the grant of the No Objection Certificateand treating the same to be an order granting permission to holdthe exhibition both by the District Administration and PoliceAuthorities, the Organizers approached the Chief Fire Officerwith letter. It was more by way of information and not requestfor inspection and issuance of permission to hold the exhibition, asstated by Mr. Lakhan Tomar.

988. casual mention was made for deployment of-fire-fightinginstruments but the amount prescribed therefor was not deposited.The manner in which the said application was dealt with by theChief Fire Officer leaves much to desire. He asked the SFO tomake an inquiry. The regular SSFO was on leave at that time, buthe joined his duties on 04.04.2006.

989. Before the SFO submitted his joining report, Mr. NareshKumar Singh who was the SSFO made purported inspectionand submitted report to the CFO evidently ignoring the procedureprescribed namely to forward the report through the SFO.According to Mr. Singh when the report was submitted both theCFO and the SFO were sitting together.

990. So many persons lost their lives and large number of personssuffered serious injuries to their person and property because ofthe acts, omissions and commissions on the part of the statutoryauthorities of the State.

991. The State of Uttar Pradesh no doubt is liable to pay duecompensation to the kin of the victims, as also the injured persons,because of acts of omission and commission on the part of itsofficers.

However, as such omissions led to the benefit of the Organizersand they had also organized the Exhibition in violation of the legal

Aprovisions, they are also liable for their act of gross negligence.Having considered the facts and circumstances of the case andthe conduct of the Organizers and those of the public servants,this Commission is of the opinion that the liability of the Organizerswas to the extent of 60% and that of the State was 40%.”

B5. Later, on 26.4.2017, copy of the report was handed over tothe learned counsel for the State so that the report could be sent to thecompetent authority of the State which shall apprise the Court about itsview on the report of the Commission. The objections filed by theOrganizers on 14.10.2015 to the said report were also handed over tothe learned counsel for the State to enable the State to file affidavit withCregard to its view and the action it intends to take. An amount of Rs.30lakhs deposited by the Organizers in terms of the order dated 31.7.2014was sent to the District Judge, Meerut for pro-rata distribution amongstthe victims.

6. In pursuance of the said order, the State had filed its affidavitDdisclosing inter alia the action taken against the responsible officialsincluding lodging of First Information Report and initiation of disciplinaryproceedings.

7. Mr. Shanti Bhushan, learned senior counsel appearing for theOrganizers has raised preliminary objection about the entertainment ofEthe writ petition by this Court in respect of private law liability of theOrganizers and contended that such liability does not fall within the scopeof Article 32 of the Constitution of India. To support suchcontention,reliance was placed upon Nilabati Behera (Smt.) alias LalitaBehera v. State of Orissa & Ors.[3], Sube Singh v. State of HaryanaF&Ors.[4], Shri Sohan Lal v. Union of India & Anr.[5], RadheyShyam&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. RajendraShankar Patil[9].

G3 (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

8. Nilabati Behera and Sube Singh are the cases involving highhandedness on behalf of public servant and vicarious liability of theState. Such cases would stand on different footing. Radhey Shyam-I is case of writ petition arising out of purely civil dispute relating toproperty and when the civil suit was pending before the Civil Court. InShalini Shyam Shetty, an order passed by the Bombay High Court waschallenged in writ petition under Article 226 of the Constitution. Suchwrit petition was dismissed in view of concurrent findings of the TrialCourt and the First Appellate Court arising out of suit for eviction.Radhey Shyam-II is three-Judge Bench judgment examining thequestion as to whether an order of the Civil Court was amenable to thewrit jurisdiction under Article 226 of the Constitution. The issues arisingin the aforesaid cases have no semblance with the facts of the presentcase and are thus not applicable.9. The findings in Shri Sohan Lal are not relevant in the presentcase as such judgment of this Court arose in respect of restoration ofpossession of house, the title over which was disputed. One of theclaimants had approached the High Court in petition under Article 226of the Constitution. Therefore, purely civil dispute in relation to title tothe property was sought to be raised in writ petition. In Praga ToolsCorporation, writ petition was filed claiming writ of Mandamus againsta company and not against the conciliation officer in respect of anypublic or statutory duty imposed upon him by the Act. Hence, it does notprovide any assistance in the present matter wherein the rights of thevictims are emanating from Article 21 of the Constitution of India. ThisCourt held as under:

“7. The company being non-statutory body and one incorporatedunder the Companies Act there was neither statutory nor apublic duty imposed on it by statute in respect of whichenforcement could be sought by means of mandamus, nor wasthere in its workmen any corresponding legal right for enforcementof any such statutory or public duty. The High Court, therefore,was right in holding that no writ petition for mandamus or anorder in the nature of mandamus could lie against the company.”

10. Mr. Vikas Pahwa, learned senior counsel appearing for thewrit petitioners, has referred to the judgment of this Court reported asM.C. Mehta & Anr. v. Union of India &Ors.[10] wherein, in case of

10 (1987) 1 SCC 395

Aoleum gas leakage from the factory premises of Shriram Foods andFertiliser Industries, writ petition under Article 32 of the Constitutionof India was entertained and the negligence was fixed. It was only inrespect of quantum of compensation, the matter was referred to theDelhi Legal Aid and Advice Board. Para 30 of the order reads thus:

B“30. Before we part with this topic, we may point out that thisCourt has throughout the last few years expanded the horizon ofArticle 12 primarily to inject respect for human rights and socialconscience in our corporate structure. The purpose of expansionhas not been to destroy the raiso d’etre of creating corporationsbut to advance the human rights jurisprudence. Prima facie weCare not inclined to accept the apprehensions of learned counselfor Shriram as well founded when he says that our including withinthe ambit of Article 12 and thus subjecting to the discipline ofArticle 21, those private corporations whose activities have thepotential of affecting the life and health of the people, would dealDa death blow to the policy of encouraging and permitting privateentrepreneurial activity. Whenever new advance is made in thefield of human rights, apprehension is always expressed by thestatus quoists that it will create enormous difficulties in the wayof smooth functioning of the system and affect its stability. Similarapprehension was voiced when this Court in R.D. ShettyEcase [(1979) 3 SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR1014] brought public sector corporations within the scope andambit of Article 12 and subjected them to the discipline offundamental rights. Such apprehension expressed by those whomay be affected by any new and innovative expansion ofFhuman rights need not deter the court from widening thescope of human rights and expanding their reach and ambit,if otherwise it is possible to do so without doing violence tothe language of the constitutional provision. It is throughcreative interpretation and bold innovation that the human

rights jurisprudence has been developed in our country to aGremarkable extent and this forward march of the human rightsmovement cannot be allowed to be halted by unfoundedapprehensions expressed by status quoists. But we do notpropose to decide finally at the present stage whether privatecorporation like Shriram would fall within the scope and ambit ofHArticle 12, because we have not had sufficient time to consider

and reflect on this question in depth. The hearing of this casebefore us concluded only on December 15, 1986 and we are calledupon to deliver our judgment within period of four days, onDecember 19, 1986. We are therefore, of the view that this is nota question on which we must make any definite pronouncementat this stage. But we would leave it for proper and detailedconsideration at later stage if it becomes necessary to doso.”(Emphasis Supplied)

11. Mr. Pahwa also referred to an order passed by the Delhi HighCourt in writ petition under Article 226 of the Constitution in judgmentreported as Association of Victims of Uphaar Tragedy v. Union ofIndia &Ors.[11]. The claim was of compensation for the victims againstthe respondents for showing callous disregard to their statutory obligationsand to the fundamental and indefeasible rights guaranteed under Article21 of the Constitution of India of the public in failing to provide safepremises, free from hazards that could reasonably be foreseen. In thatcase, afire broke outatUphaar Theatre, New Delhi in the evening of13.6.1997. The High Court after examining the various precedents heldas under:

“102. On this law it cannot be said, at this stage that the petition isnot maintainable. Even otherwise we find that this is not matterin which highly disputed question of fact arise. This appears to bea matter in which facts could be ascertained very easily. TheRules and Regulation are clear and unambiguous. Everybodyknows them or should know them. It cannot seriously be disputedthat the private respondents, who were or are owners of UphaarCinema were (as are all cinema owners) bound to strictly complywith them. It cannot be seriously disputed that the Governmentagencies are entrusted with duty to ensure that the Rules andRegulations were complied with. It cannot be seriously disputedthat theatre is one place where large number of people haveto sit in an enclosed area for fairly long period of time. There isa potential threat to life and safety if fire, leakages of gas, etc.take place. This potential threat has to be guarded against. At thestage, therefore, it cannot be said that the cinema owners/employees (past/present) cannot be held to be under an obligationto provide and maintain all standards of safety and/or that they

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are not liable to compensate for loss of fundamental rightguaranteed under Article 21 if harm has arisen by virtue of theirnot guarding against such hazard. Prima facie it appears that underthe doctrine of strict liability on Public Law (as set out above) theliability would be then even if there is no negligence on their part.The Government and its agencies would also be liable for nothaving ensured strict compliance with Rules and Regulations whichhave been created to ensure safety. At this stage it appears to usthat this is the case in which there can hardly be any dispute. TheRules and Regulations are clear and known. The affidavits of thepublic authorities support petitioners and admit that there was non-compliance. In fact, Mr. Rawal’s arguments have necessarily beenthat Rules and Regulations were not complied with. Mr. Rawalsought to justify the lapse of not ensuring compliance by blamingit on the Orders of the High Court. At this stage, it appears to usthat Orders of this Court only stayed the suspension of licence forfour days and/or the Order of the Lt. Governor. It primafacie appears that the Orders of the High Court did not justifygrant of temporary permits for such long period of time.Admittedly, the fire took place on 13th June, 1997. Admittedly, anumber of people have been killed and/or injured. Admittedly, firefightingequipments and/or ambulances arrived on scene late.Admittedly at that time and even now the CATS Centre whichwas to have been created as far back as 1986 has not yet beenestablished. There also does not appear to be much dispute onfact that number of seats had been increased, size of gangwayreduced, one exit closed by creating private viewing box, etc. Itcan easily be ascertained whether there have been unauthoriseddeviations. The building is still standing. These are matters whichcan easily be verified by the Court by appointment ofCommissioners. The Commissioners, who would be responsiblepersons, knowledgeable in the field would visit the site in presenceof all parties and ascertain facts. The Report of the Commissionerwould show whether Rules and Regulations were complied andwhether there have been deviations or not. It is clarified that Courtis not giving any findings at this stage and is not holding that therehave been breach of Rules and/or Regulations and/or unauthoriseddeviations and/or failure to enforce. All that the Court is saying isthat at this stage it cannot conclude that the petition is notmaintainable.”

12. The High Court further in the above matter also directed theCourt Commissioners to visit the site and submit report as to whetheror not all Rules, Regulations and statutory provisions were compliedwith and if not, to what extent. Such order was challenged by some ofthe victims in judgment reported as Green Park Theatres Associated(P) Ltd. v. Association of Victims of Uphaar Tragedy &Ors.[12 ]but theappeal was dismissed.

13. It was thereafter, the Division Bench of the Delhi High Courtin judgment reported as Assn. of Victims of Uphaar Tragedy &Ors.v. Union of India &Ors.[13 ]noticed the deviations in the building plans ofthe theater. The High Court considered similar argument as was raisedon behalf of the Organizers herein and held as under:

“47. Dr.Rajeev Dhawan, Senior Advocate, argued on behalf ofthe respondents that the public law remedies by way of writpetitions are normally limited to giving directions, providing interimand final injunctive reliefs and quashing decisions which areviolative of the fundamental rights or violation of law. He submitsthat the scope of providing damages in public law is limited tospecific situations and circumstances where the State deliberatelydeprives person of his personal liberty in cases such as causingdeath, grievous injury, custodial violence and the like. He submitsthat the judgments already cited by this Court in its earlier judgmentdated 21st February, 2000, namely, Sebastian M.Hongray Vs.Union of India, 1984 (3) SCC 82; Rudul Sah Vs. State ofBihar, (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) 4SCC 730, Saheli Vs. Commissioner of Police, (1990) 1 SCC422,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. andOrs., 2000(3) SCC 521related to cases where the State haddeliberately deprived person of his personal liberty or related tocases 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

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Athe public authorities. It is submitted by him that the remedy ofdamages in public law is not available for each and everytransgression of fundamental rights and thus even if there is anerror arising out of an arbitrary action or denial of permissionwhich may result in damages of crores or there is transgressionof freedom of religion or any other fundamental right, the remedyBof damages is not available. It is submitted that ultra vires acts bythemselves did not give rise to damages and for this he reliedupon the judgments of the Supreme Court in D.K.Basu Vs. Stateof West Bengal, (1997) 4 SCC 416.

48. In D.K. Basu Vs. State of West Bengal (Supra) it was heldCthat the claim in public law for compensation for unconstitutionaldeprivation of fundamental right to life and liberty, the protectionof which is guaranteed under the Constitution, is claim based onstrict liability and is in addition to the claim available in private lawfor damages for tortious acts of the public servants. Public lawDproceedings serve different purpose than the private lawproceedings. Award of compensation for established infringementof the indefeasible rights guaranteed under Article 21 of theConstitution is remedy available in public law since the purposeof public law is not only to civilise public power but also to assurethe citizens that they live under legal system wherein their rights

and interests shall be protected and preserved. Grant ofcompensation in proceedings under Article 32 or Article 226 ofthe Constitution of India for the established violation of thefundamental rights guaranteed under Article 21, is an exercise ofthe courts under the public law jurisdiction for penalising theFwrongdoer and fixing the liability for the public wrong on the Statewhich failed in the discharge of its public duty to protect thefundamental rights of the citizen. In the assessment ofcompensation, the emphasis has to be on the compensatory andnot on punitive element. The objective is to apply balm to thewounds and not to punish the transgressor or the offender, asGawarding appropriate punishment for the offence (irrespective ofcompensation) must be left to the criminal courts in which theoffender is prosecuted, which the State, in law, is duty bound todo. The award of compensation in the public law jurisdiction isalso without prejudice to any other action like civil suit for damagesHwhich is lawfully available to the victim or the heirs of the deceased

victim with respect to the same matter for the tortious actcommitted by the functionaries of the State. The quantum ofcompensation will, of course, depend upon the peculiar facts ofeach case and no strait-jacket formula can be evolved in thatbehalf. The relief to redress the wrong for the established invasionof the fundamental rights of the citizen, under the public lawjurisdiction is, thus, in addition to the traditional remedies and notin derogation of them. The amount of compensation as awardedby the Court and paid by the State to redress the wrong done,may in given case, be adjusted against any amount which maybe awarded to the claimant by way of damages in civil suit.Dr.Dhawan also relied upon the judgment reported as M.C. MehtaVs.Union of India, 1987 (1) Supreme Court Cases 395, tocontend that to justify the award of compensation, the requirementis that infringement must be gross, patent, incontrovertible and exfacie glaring. It is also his submission that the remedy ofdamages was an extra ordinary remedy where there was grossviolation arising out of deliberate action or malicious actionresulting in deprivation of personal liberty. It is submittedthat the exemplary damages in public law were not to beconfused with damages in private law for which private lawremedies were available. The damages available forconstitutional wrongs were by very nature exemplary and havea limited meaning and were not intended to be compensatoryin nature. In support of his contentions, he refers to the judgmentsof the Supreme Court in Nilabati Behara Vs.State of Orissa,1993 (2) Supreme Court Cases 746 and Indian Council forEnviro 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 itwould, however, be appropriate to spell out clearly the principleon which the liability of the State arises in such cases for paymentof compensation and the distinction between this liability and theliability in private law for payment of compensation in an actionon tort. It may be mentioned straightway that award ofcompensation in proceeding under Article 32 by the SupremeCourt or by the High Court under Article 226 of the Constitutionis remedy available in public law, based on strict liability forcontravention of fundamental rights to which the principle of

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sovereign immunity does not apply, even though it may be availableas defense in private law in an action based on tort. This is adistinction between the two remedies to be borne in mind whichalso indicates the basis on which compensation is awarded in suchproceedings. We shall now refer to the earlier decisions of thiscourt as well as some other decisions before further discussion ofthis principle. The compensation is in the nature of ‘exemplarydamages’ awarded against the wrongdoer for the breach to itspublic law duty and is independent of the rights available to theaggrieved party to claim compensation under the private law inan action based on tort, through suit instituted in court ofcompetent jurisdiction or/and prosecute the offender under thepenal law.

49. In Indian Council for Enviro Legal Action and OthersVs.Union of India and others (Supra), the Supreme Court hadheld that even if it is assumed that the Court cannot award damagesagainst the respondents in proceedings under Article 32 of theConstitution of India that would not mean that the Court could notdirect the Central Government to determine and recover the costof remedial measures from the respondents. It was held thatSection 3 of the Environment (Protection) Act, 1986 expresslyempowered the Central Government to made all such measures

as it deems necessary or expedient for the purpose of protectingand improving the quality of environment. The right to claimdamages was left by institution of suits in appropriate Civil Courtsand it was held that if such suits were filed in forma pauperis, theState of Rajasthan shall not oppose those applications for leave tosue in forma pauperis.

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52. We have given our thoughtful consideration to thearguments advanced by Dr.Rajeev Dhawan that public lawremedies by way of writ petition are normally limited to givingdirections, providing interim and final injunctive reliefs andquashing decisions which are violative of the fundamentalrights or violation of law and that the remedy ofdamages in public law is not available for each andevery transgression of fundamental rights nor ultra

vires acts by themselves give rise to damages and that wherethe disputes questions of fact involved, the party should beleft to the normal course of getting the matter decided by aCivil Court but we have not been able to make ourselvesagreeable with Dr.Rajeev Dhawan. We have already held inour judgment dated 29th February, 2000 that the petition for claimingdamages in public law by filing petition under Article 226of theConstitution of India was maintainable. We have also already heldthat it was not matter in which highly disputed questions of factarose and it appears to be matter in which facts could beascertained very easily. The earlier observations of the Court, inour 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 asto how the fire was caused and what is the complicity of theparties in the same. Besides examining the causation of fire, thisCourt is also required to go into the question as to whether partyeven if not responsible for causation of fire was still responsiblefor 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 thefire was caused, who was responsible for the same and who wasresponsible for spread of smoke to the upper floors and whatwere the deviations in the building, seating arrangement includingprovision of gangways and exit doors, etc., what were the defectsin installation and maintenance of the transformer and how all thishas contributed to the spreading of smoke and fire in the buildingand how the compensation, if any, is to be apportioned amongstthe parties to this petition”.

(Emphasis Supplied)

14. An appeal against the said order was partly allowed inMunicipal Corporation of Delhi, Delhi v. Uphaar Tragedy VictimsAssociation &Ors.[14] wherein this Court held as under:

“60. The contention of the licensee is what could be awarded as apublic law remedy is only nominal interim or palliative

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compensation and if any claimants (legal heirs of the deceased orany injured) wanted higher compensation, they should file suitfor recovery thereof. It was contended that as what was awardedwas an interim or palliative compensation, the High Court couldnot have assumed the monthly income of each adult who died asbeing not less than Rs 15,000 and then determining thecompensation by applying the multiplier of 15 was improper. Thisgives rise to the following question : whether the income andmultiplier method adopted to finally determine compensation canbe arrived at while awarding tentative or palliative compensationby way of public law remedy under Article 226 or 32 of theConstitution?

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64. Therefore, what can be awarded as compensation by wayof public law remedy need not only be nominal palliativeamount, but something more. It can be by way of makingDmonetary amounts for the wrong done or by way of exemplarydamages, exclusive of any amount recoverable in civil actionbased on tortious liability.. .....................

67. Insofar as death cases are concerned the principle ofdetermining compensation is streamlined by several decisions ofthis Court. (See for example Sarla Verma v. DTC [(2009) 6 SCC121 : (2009) 2 SCC (Cri) 1002 : (2009) 2 SCC (Civ) 770] .) Ifthree factors are available the compensation can be determined.The first is the age of the deceased, the second is the income ofthe deceased and the third is number of dependents (to determinethe percentage of deduction for personal expenses). Forconvenience the third factor can also be excluded by adopting astandard deduction of one-third towards personal expenses.Therefore just two factors are required to be ascertained todetermine the compensation in 59 individual cases. First is theannual income of the deceased, two-thirds of which becomes theannual loss of dependency; and second, the age of the deceasedwhich will furnish the multiplier in terms of Sarla Verma [(2009)6 SCC 121 : (2009) 2 SCC (Cri) 1002 : (2009) 2 SCC (Civ) 770].The annual loss of dependency multiplied by the multiplier will

give the compensation. As this is comparatively simple exercise,we direct the Registrar General of the Delhi High Court to receiveapplications in regard to death cases, from the claimants (legalheirs of the deceased) who want compensation in excess ofwhat has been awarded, that is, Rs 10 lakhs/Rs 7.5 lakhs. Suchapplications should be filed within three months from today. Heshall hold summary inquiry and determine the compensation.Any amount awarded in excess of what is hereby awarded ascompensation shall be borne exclusively by the theatre owner. Toexpedite the process the claimants concerned and the licenseewith their respective counsel shall appear before the Registrarwithout further notice. For this purpose the claimants and thetheatre owner may appear before the Registrar on 10-1-2012 andtake further orders in the matter. The hearing and determinationof compensation may be assigned to any Registrar or other SeniorJudge nominated by the learned Chief Justice/Acting Chief Justiceof the Delhi High Court.

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76.4. The licensee (appellant in CA No. 6748 of 2004) and theDelhi Vidyut Board are held jointly and severally liable tocompensate the victims of the Uphaar fire tragedy. Though theirliability is joint and several, as between them, the liability shall be85% on the part of the licensee and 15% on the part of the DVB.”

15. In separate order, Hon’ble Mr. Justice K.S.P. Radhakrishnanheld as under:

“78. Private law causes of action, generally enforced by theclaimants against public bodies and individuals, are negligence,breach of statutory duty, misfeasance in public office, etc.Negligence as tort is breach of legal duty to take care whichresults in damage or injury to another. Breach of statutory duty isconceptually separate and independent from other related tortssuch as negligence though an action for negligence can also ariseas result of cursory and mala fide exercise of statutory powers.Right of an aggrieved person to sue in ordinary civil courts againstthe State and its officials and private persons through an action intort and the principles to be followed in considering such claimsare well settled and require no further elucidation.

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80. We are primarily concerned with the powers of theconstitutional courts in entertaining such monetary claims raisedby the victims against the violation of statutory provisions by thelicensing authorities, licensees, and others affecting thefundamental rights guaranteed to them under the Constitution.The constitutional courts in such situations are expected tovindicate the parties constitutionally, compensate them forthe resulting harm and also to deter future misconduct. Theconstitutional courts seldom exercise their constitutionalpowers to examine claim for compensation merely due toviolation of some statutory provisions resulting in monetaryloss to the claimants. Most of the cases in which courts haveexercised their constitutional powers are when there is intenseserious violation of personal liberty, right to life or violationof human rights.

93. Liability to compensate for infringement of fundamental rightsguaranteed 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).

96. Courts have held that due to the action or inaction of theState or its officers, if the fundamental rights of citizen areinfringed then the liability of the State, its officials andinstrumentalities, is strict. The claim raised for compensationin such case is not private law claim for damages, underwhich the damages recoverable are large. The claim madefor compensation in public law is for compensating theclaimants for deprivation of life and personal liberty whichhas nothing to do with claim in private law claim in tort inan ordinary civil court.

98. But, in case, where life and personal liberty have beenviolated, the absence of any statutory provision forcompensation in the statute is of no consequence. Right to

life guaranteed under Article 21 of the Constitution of Indiais the most sacred right preserved and protected under theConstitution, violation of which is always actionable and thereis no necessity of statutory provision as such for preservingthat right. Article 21 of the Constitution of India has to beread into all public safety statutes, since the prime object ofpublic safety legislation is to protect the individual and tocompensate him for the loss suffered. Duty of care expectedfrom State or its officials functioning under the public safetylegislation is, therefore, very high, compared to the statutorypowers and supervision expected from the officers functioningunder the statutes like the Companies Act, the CooperativeSocieties Act and such similar legislations. When we look at thevarious provisions of the Cinematograph Act, 1952 and the Rulesmade thereunder, the Delhi Building Regulations and the Electricitylaws the duty of care on officials was high and liabilities strict.”

(Emphasis Supplied)

16. We find the precedents for payment of compensation in writpetition under Article 32 of the Constitution fall under three categoriesof cases. First category is where the acts of commission or omission areattributed to the State or its officers such as Nilabati Behera, SubeSingh, 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 hasbeen awarded against corporate entity which is engaged in an activityhaving 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 inenterprise is engaged in hazardous or inherently dangerousactivity and harm results to anyone on account of an accident inthe operation of such hazardous or inherently dangerous activityresulting, for example, in escape of toxic gas the enterprise isstrictly and absolutely liable to compensate all those who areaffected by the accident and such liability is not subject to any ofthe 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

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Astrict liability under the rule in Rylands v. Fletcher [(1868) LR 3HL 330 : 19 LT 220 : (1861-73) All ER Rep 1].”

18. The third category comprises of the cases where the liabilityfor payment of compensation has been apportioned between the Stateand the Organizers of the function. In Dabwali Fire Tragedy VictimsBAssociation v. Union of India &Ors.[18 ]wherein in fire accident, 446persons died and many others received burn injuries.The High Court ina writ petition under Article 226 of the Constitution held that the schoolwhich organized the function and respondent No. 8, the owner of thevenue, would be jointly and severally liable to pay 55% of thecompensation, remaining liability was to be borne out by the State.C

19. An appeal was filed by the school disputing the liability ofpayment of compensation. This Court did not interfere with the percentageof liability reduced to 55% by the High Court from 80% held by theInquiry Commission in judgment reported as DAV ManagingCommittee &Anr. v. Dabwali Fire Tragedy Victims AssociationD&Ors.[19].

20. In another case, the liability of negligence was only fixed uponthe school which organized excursion for the students such as M.S.Grewal &Anr. v. Deep Chand Sood&Ors.[20], whereby the schoolmanagement was held guilty of drowning of 14 young kids resulting inEuntimely and unfortunate death.

21. The contentions raised by Mr. Bhushan are substantially sameas were raised before Delhi High Court in Assn. of Victims of UphaarTragedy, which were not accepted. This Court inappeal had acceptedthe view of the High Court except to the extent of the finding of negligenceFagainst certain respondents. We are in complete agreement with thefindings recorded by this Court in appeal that”where life and personalliberty have been violated, the absence of any statutory provision forcompensation in the statute is of no consequence. Right to life guaranteedunder Article 21 of the Constitution of India is the most sacred rightGpreserved and protected under the Constitution, violation of which isalways actionable and there is no necessity of statutory provision assuch for preserving that right. Article 21 of the Constitution of India hasto be read into all public safety statutes, since the prime object of public18 2009 SCC OnLine P&H 1027319 (2013) 10 SCC 494H20 (2001) 8 SCC 151

safety legislation is to protect the individual and to compensate him forthe loss suffered. Duty of care expected from State or its officialsfunctioning under the public safety legislation is, therefore, very high”.

22. Keeping in view the judgments referred to by this Court in itsorder dated 31.7.2014, as also the judgments referred to above, we findthat infringement of Article 21 may be an individual case such as by theState or its functionaries; or by the Organizers and the State; or by theOrganizers themselves have been subject matter of consideration beforethis Court in writ petition under Article 32 or before the High Courtunder Article 226 such as Uphaar Tragedy or Dabwali Fire Tragedy.Similar arguments have not found favour with the Delhi High Court andin appeal by this Court. The view taken therein does not warrant anyinterference and we respectfully endorse the same.

23. In the present case, the Organizers took permission from thecollege authorities for organizing the exhibition after payment of Rs.40,000/- as license fee. Such exhibition was organized by the same organizersafter the success of “Build-in-Style” exhibition at Meerut, held on 24, 25and 26.12.2005 with an object that various brands in the segment ofconstruction materials could get platform where they couldlaunch orexpose their merchandise to considerable segment or gather informationon the prevailing market demographics or even assess and display theacceptability for certain trends.

24. The Organizers have produced letter dated 9.3.2006,appointing Mr. Naresh Garg for the proposed construction of the exhibitioninfrastructure. It is to be noted that there is no clause in such work orderthat the contractor has to provide for fire safety measures as well. Therelevant extract from the work order reads thus:

“1. Total Area 125mx24m=3000 Sq. Mt. covered area dulystructured 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 capacityfor the rides shall be well covered with proper material for ensuringbothsafetyand reasonable light blockade general lighting and thecirculation area in an exhibition like manner and ensuring bothuniform and adequate illumination of the structured area andsupported by the public address system shall be provided. Ithowever follows without mention that the actual area incorporatedat site may considerably vary from what showed here in and for

the purpose of eventual evaluation/payment etc. The actual areaas built on site shall be taken into consideration and that no claimin this regard shall be tenable.

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12. Providing & fixing all finishing material as may be deemedBand required as per the general trade practice but not heretomentioned in the description as above for the same in for guidanceand reference only and not to be construed as on exhaustiveaccount of all scope and specifications of work covered. Theresponsibility to address to all such stipulations / standard businessCand workmanship practices shell be the role &exclusiveprerogation(sic prerogative) and ultimate responsibility of M/ sStandard 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.DTherefore, the responsibility of providing fire safety measures was uponthe Contractor. It was further submitted that 25 fire extinguishers wereprovided by the Organizers in view of the request made by the Contractoras he was not locally available and therefore, the same was procuredfrom Meerut with the payment being made by the Organizers to hisaccount.E

26. We do not find any merit in the said argument raised. Theword ‘safety’ appearing in the work order cannot be read in isolation buthas 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 withproper material for ensuring both safety and reasonable light blockadeFgeneral lighting. Therefore, the expression safety used in Para 1 of thework order does not lead to any inference that fire safety measureswere to be adopted by the Contractor. Still further, the advance rentalfor the fire extinguishers was paid by the Organizers vide receipt dated06.04.2006 and 07.04.2006. Shri N.K. Singh, Fire Station Second OfficeG(FSSO) was asked the question by the Organizers as to whether 25 fireextinguishers were shown to him by Mr. Pandey, representative of theContractor. He has responded that 25 fire extinguishers were lying thereand were shown to him by Lakhan Tomar, one of the Organizers.Therefore, to say the fire extinguishers were provided at the asking ofthe Contractor appears to be far-fetchedas the invoices were raised onH06/07.04.2006. The exhibition was to start from 06.04.2006, therefore, it

is unbelievable that the Contractor would not be available at Meerut asthe exhibition was just around the corner. Our attention has not beendrawn to any assertion or the question put to the Contractor that thesefire extinguishers were provided at his asking,which were to be paid bythe him subsequently.

27. It was argued that the Organizers had given turn-key projectto the Contractor on 9.3.2006 and the consequences of the tragedy hadto be borne by him. It was argued that the report has not given anyfinding regarding negligence of the Organizers, therefore, theapportionment of liability on them is an unjust conclusion drawn by theCommission. The reliance is placed upon Halsbury’s Laws of India[21],American Jurisprudence[22], Haseldine v. C.A. Daw and Son Limited&Ors.[23]and Green v. Fibreglass Ltd.[24].28. The Organizers had submitted request for providingtemporary firefighting on 1.4.2006 representing that they have takenpermission from the administration for using the premises and conductingthe event. After submitting such request, the Organizers paid an advancerental for Fire Extinguishers to one Uni Fire Systems on 6.4.2006 andfor certain Fire Extinguishers on returnable basis on 7.4.2006. Thoughthe Commission has found that the Contractor was not an independentcontractor and there is interpolation in the work order issued, but thesaid aspect is not necessary to be examined as admittedly, the workorder issued on 9.3.2006 by the Organizers does not contemplate anyduty on the Contractor to provide for fire safety measures as well. Stillfurther, the victims or the visitors to the exhibition have no privity ofcontract with the Contractor. The ticket proceeds were collected by theOrganizers. It is the responsibility of the Organizers, having collectedthe entry fee, to ensure the safety and well-being of the visitors. TheOrganizers have failed in that duty causing loss of life of the innocentvictims who came to see the exhibition, which was purely commercialevent with an intention to earn profit by the organizers.

29. The Court Commissioner found that the contract with theContractor was neither turn-key project nor was he appointed as anindependent 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)

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Athey are not liable for the acts of omission or commission on the part ofthe contractor was rejected by the Commission. Even otherwise, theOrganizers were vicariously liable for the alleged acts of negligence onthe part of the contractor. The Contractor was only responsible forexecuting work as assigned to him by the Organizers.

B30. Mr. Bhushan has relied on Halsbury’s Laws of India in thecontext of negligence on the part of independent contractor. However, itis to be noted that the inter-se relationship between the Organizers andthe Contractor is not the subject matter of examination in the presentproceedings. The question is as to the liability of the Organizers qua thevisitors who had paid for the tickets to visit the exhibition. Even if theCContractor who has provided services be an independent contractor, butthat will not absolve the Organizers from their responsibility as therewas no privity of contract of the visitors with the Contractor who wasproviding services to the Organizers alone and not to the visitors.

31. The reliance of Mr. Bhushan on American JurisprudenceDrefers to preliminary examination for filing of an information charging amisdemeanor. The said text book is not relevant to the issues raised inthe present proceedings.

32. In Haseldine, visitor to flat availed the service of lift toreach the flat located on fifth floor. However, the lift collapsed and theEvisitor suffered spinal injury. Though, the landlord was found to bepermitting the visitor to the flat let out but the responsibility of maintenanceof the lift was passed on to the engineer who was entrusted with thetask of maintenance of lift. We do not find that the said judgment in anyway supports the argument raised. It was held that the landlord couldFnot have been expected to have the technical knowledge, but which isnot the case in the present matter.33. In Green, the occupiers had employed independent contractorsto rewire their office. Due to negligence of one of the contractor’sworkmen, fire broke out. In an attempt to clean the fire, the plaintiffGreceived severe electrical burns and thus sued the occupiers for breachof their duty to use reasonable care to prevent damage. It was foundthat the occupier was not responsible for the defaults of the independentcontractor. We find that the present case is not applicable in the light offacts and circumstances in the present dispute as the Organizers hereincannot be absolved from their duty of providing safety, even though theHContractor was engaged for providing certain services. These services

were also to be performed for the Organizers and not for the victims/visitors.

34. The U.P. Fire Service Act, 1944, though is more concernedwith the duties and responsibilities of the fire officers, also talks aboutliability of the property owners to pay compensation. Section 16 of thesaid Act contemplates that any person whose property catches fire onaccount of any act of his own or of his agent done deliberately ornegligently shall be liable to pay compensation to any other personsuffering damage to his property. The Organizers were the personsresponsible for organizing the exhibition and informing people to visitsuch exhibition after purchase of the ticket. Therefore, the property ofthe Organizers has caught fire on account of theirnegligence and henceare liable to pay compensation.

35. The Uttar Pradesh Fire Prevention and Fire Safety Act, 2005was enacted to make more effective provisions for fire prevention andfire safety measures in certain buildings and premises in the State ofUttar Pradesh. The occupier as defined in Section 2(g) of the said Actincludes any person who for the time being is paying or is liable to pay tothe owner rent or any portion of the rent of the land or building in respectof which such rent is paid or is payable. The Organizers have paidRs.40,000/- for obtaining permission to conduct exhibition in the lawnsof the college, therefore, the Organizers are occupiers within the meaningof Section 2(g) of the said Act. Sub-section (1) of Section 3 of the saidAct permits the nominated authority to enter and inspect the building orpremises at any time for ascertaining the adequacy or contravention offire prevention and fire safety measures. Sub-section (2) of Section 3further contemplates assistance by the owner or occupier to the nominatedauthority for carrying out the inspection under sub-section (1) of Section3. The nominated authority has to give report of any inspection madeby it under Section 3 to the District Magistrate. Sections 3 and 4 of thesaid Act read thus:

“3.(1) The nominated authority may, after giving three hours noticeto the occupier or, if there be no occupier, to the owner of anybuilding having such height as may be prescribed or premises,enter and inspect the said building or premises at any time betweensunrise and sunset where such inspection appears necessary forascertaining the adequacy or contravention of fire prevention andfire safety measures:

Provided that the nominated authority may enter into and inspectany building or premises at any time if it appears to it to beexpedient and necessary to do so in order to ensure safety of lifeand property.

(2) the nominated authority shall be provided with all possibleBassistance by the owner or occupier, as the case may be, of thebuilding or premises for carrying out the inspection under sub-section (1).

(3) When any building or premises used as human dwelling isentered under sub-section (1) due regard shall be paid to the socialCand religious sentiments of the occupiers; and before any apartmentin the actual occupancy of any woman, who according to thecustom 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 forwithdrawing.

4.(1) The nominated authority shall, after the completion of theinspection of the building or premises under section 3, record itsviews on the deviations from, or the contraventions of, the buildingbye-laws with regard to the fire prevention and fire safetymeasures and inadequacy of such measures provided therein withEreference to the height of the building or the nature of activitiescarried on in such building or premises and issue notice to theowner or occupier of such building or premises directing him toundertake such measures as may be specified in the notice.

(2) The nominated authority shall also give report of anyFinspection made by it under section 3 to the District Magistrate.”

36. The Organisershave not applied for permission under the saidAct nor had the nominated authority caused the inspection, therefore,the Organizers and the State have been rightly saddled with liability fornot taking precautions as mandated by the statute.

G37. Mr. Bhushan also argued that Section 133 of the Code ofCriminal Procedure does not provide for any permission, whereas theOrganizers have obtained permission to organize exhibition in terms ofSection 144 of the Code. Section 133 of the Code reads thus:

“133. Conditional order for removal of nuisance- Whenevera District Magistrate or Sub-divisional Magistrate or any other

Executive Magistrate specially empowered in this behalf by theState Government, on receiving the report of police officer orother information and on taking such evidence (if any) as he thinksfit, considers-

(a) xxx

xxx

(d) that any building, tent or structure, or any tree is in sucha condition that it is likely to fall and thereby cause injury topersons living or carrying on business in the neighbourhoodorpassing by, and that in consequence the removal, repair orsupport of such building, tent or structure, or the removal orsupport of such tree, is necessary; or

(e) xxx

xxx,

such Magistrate may make conditional order requiring the personcausing such obstruction or nuisance, or carrying on such trade oroccupation, 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 ortree, within time to be fixed in the order-

(i) xxxxxx

(iii) to prevent or stop the construction of such building, orto alter the disposal of such substance; or

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

(v) xxxxxx

(vi) xxx

or, if he objects so to do, to appear before himself or some otherExecutive Magistrate subordinate to him at time and place to befixed by the order, and show cause, in the manner hereinafterprovided, why the order should not be made absolute.

(2) No order duly made by Magistrate under this Section shallbe called in question in any Civil Court.

Explanation- “public place” includes also property belonging tothe State, camping grounds and grounds left unoccupied for sanitaryor recreative purposes.”

A38. Though the power is to remove any building, tent or structure,or any tree which is in such condition that it is likely to fall and therebycause 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 civiladministration, the Organizers could be directed to remove such tent orBstructure.Therefore, it was pre-requisite condition for the Organizersto inform the civil administration about the structure which they are puttingup for the purpose of exhibition so that the civil administration does notpass an order subsequently for removal of such structure so as to avoidany disruption on account of order which may be passed by civiladministration.C

39. It has also come on record that Section 144 was promulgatedon or about 28.02.2006 by the then Additional District Magistrate, MeerutCity. The order was operative from midnight of 28.02.2006 till the midnightof 15.04.2006 for the purposes of maintenance of public safety.

40. The argument of Mr. Bhushan is that since permission underDSection 144 of the Code was granted, therefore, no separate permissionunder Section 133 of the Code was required. Reliance is placed uponthe order dated 31.03.2006 wherein the order passed by the Sub-DivisionalMagistrate shows that the District Administration has conveyed its no-objection in organization of the events from 06.04.2006 to 10.04.2006 onEthe basis of the report of Superintendent of Police, City Meerut dated13.03.2006. However, the Organizers were to ensure maintenance ofpeace and order under Section 144 of the Code. Therefore, the permissionunder Section 144 was for the organization of the event by ensuringmaintenance of peace and order whereas no approval of the structureraised was sought under Section 133 of the Code. The promulgationFwas to maintain peace in the city area, therefore, the permission wasgranted to allow gathering of people for the purpose of exhibition only.The permission under Section 144 of the Code is to allow gathering ofpeople in relaxation of the promulgation, whereas, Section 133 permissionwas required to ensure that structure put by the organizers is safe so asto not to endanger the life of the visitors.G

41. The Court Commissioner has further found that the Organizersare liable for not taking permission under the provision of Section 54 ofthe Electricity Act, 2003[25] and Rule 47A of the Indian Electricity Rules,1956[26]. It was however argued that the onus of seeking permission was25 For short, the ‘Electricity Act’H26 For short, the ‘Electricity Rules’

on the installer of generators and that the Organizers were not thesuppliers of generators. Thus, the liability has been wrongly fixed on theOrganizers. Section 54 of the Electricity Act and Rule 47A of theElectricity Rules read as thus:

“54. Control of transmission and use of electricity- (1) Saveas otherwise exempted under this Act, no person other than theCentral Transmission Utility or State Transmission Utility, or alicensee shall transmit or use electricity at rate exceeding twohundred 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 ordinarilylikely to be assembled; or

(ii) which is factory within the meaning of the FactoriesAct, 1948 (63 of 1948) or mine within the meaning of theMines Act, 1952 (35 of 1952); or

(iii) to which the State Government, by general or specialorder, declares the provisions of this sub-section to apply,

without giving, before the commencement of transmission or useof electricity, not less than seven days’ notice in writing of hisintention to the Electrical Inspector and to the District Magistrateor the Commissioner of Police, as the case may be, containingparticulars of the electrical installation and plant, if any, the natureand the purpose of supply and complying with such of the provisionsof Part XVII of this Act, as may be applicable:

Provided that nothing in this section shall apply to electricity usedfor the public carriage of passengers, animals or goods, on, or forthe lighting or ventilation of the rolling stock of any railway ortramway subject to the provisions of the Railways Act, 1989 (24of 1989).

(2) Where any difference or dispute arises as to whether placeis or is not one in which one hundred or more persons are ordinarilylikely to be assembled, the matter shall be referred to the StateGovernment, and the decision of the State Government thereonshall be final.

A(3) The provisions of this section shall be binding on theGovernment.

47A. Installation and Testing of Generating Units- Whereany consumer or occupier installs generating plant, he shall givea thirty days’ notice of his intention to commission the plant to theBsupplier as well as the Inspector:

Provided that no consumer or occupier shall commission hisgenerating plant of capacity exceeding 10 KW without theapproval in writing of the Inspector.”

42. The Contractor was working on behalf of the Organizers inCterms of the work order issued. Therefore, whatsoever may be therelationship between the two, the Organizers cannot be absolutelyabsolved of their liability. All permissions were required to be sought andwere in fact sought by the Organizers. Even the permission to use thegenerators was obtained by the Organizers themselves. Moreover, whenDthe application made by the Organizers for grant of load of 1540 KVAwas not sanctioned by the Power Corporation, they themselves met theadditional electricity requirement from the generators alone. Thus, theCourt Commissioner has rightly fixed the liability on the Organizers tothe extent of 60%, and on account of negligence in performing statutoryduties by the officers of the State, the State has been burdened withE40% of the total liability. We do not find such distribution of liabilitysuffers from any illegality which may warrant interference by this Court.

43. We find that the Court Commissioner has examined each issuepertaining to the incident extremely minutely. Thus, the judgments referredto by Mr. Bhushan are not helpful to hold that the Organizers were notFresponsible for the violation of fundamental right to life of the victimsunder Article 21 of the Constitution of India.

44. Furthermore, Mr. Bhushan has referred to judgments reportedas 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 ofGMaharashtra[29] to contend that the report of the Commissioner[30]cannotbe made basis of any action against the Organizers as it is merely

27 AIR 1958 SC 53828 (2001) 6 SCC 18129 1992 Supp (2) SCC 521H30 Court Commissioner

recommendations submitted to the State.The argument is that theCommissioner appointed by this Court is to substitute the Commissionerappointed by the State, therefore, the Commissioner appointed by thisCourt would only be aCommissioner under the Inquiry Act.

45. Such argument has been rebutted by Mr. Pahwa to contendthat the appointment of the Court Commissioner by this Court was notmade under the Inquiry Act as appointment under the said Act has to bemade by the State Government. The appointment of the CourtCommissionerwas that of Judicial Commission to make inquiry intothe factual aspects leading to the fire tragedy and the persons responsiblefor its cause.

46. The appointment of an Inquiry Commission is contemplatedunder Section 3 of the Inquiry Act i.e. by an appropriate Government orin pursuance of resolution passed by each House of the Parliament or,as the case may be, the Legislature of the State. The appropriateGovernment is defined in Section 2(a) of the Inquiry Act to mean theCentral Government for any matter relatable to any of the entriesenumerated in List I, II or III in the Seventh Schedule to the Constitutionand the State Government in relation to make an inquiry into any matterrelatable to any of the entries enumerated in List II or List III in theSeventh Schedule. Therefore, the Commission under the Act shall beappointed either by the Executive or by the Legislature but not by theJudiciary in terms of the provisions of Inquiry Act.

47. The judgment in Shri Ram Krishna Dalmia arises out of awrit petition filed by an aggrieved person against appointment of acommission under the Inquiry Act inter alia on the ground that the actionof the Government in appointing an inquiry commission is malafide andamountsto abuse of power. The appeals filed by the aggrieved personswere dismissed. State of Karnataka v. Union of India & Anr.[31] arisesout of an original suit filed by the State of Karnataka against Governmentof India appointing an inquiry commission under the Inquiry Act interalia on the ground that Inquiry Act does not authorize the CentralGovernment to constitute Commission of Inquiry in regard to mattersfalling exclusively within the sphere of the State’s legislative and executivepower. On the other hand, the State also appointed an Inquiry Commission.The appointment of the Commission by the Central Government wasnot interfered with. This Court found that the two notifications authorize

31 (1977) 4 SCC 608

Athe enquiries into the matters which are substantially different in natureand object and the Inquiry Commission appointed by the Government ofIndia cannot be said to be barred in view of the notifications issued bythe State Government.

48. In T.T. Antony, this Court held that the civil or criminal courtsBare not bound by the report or findings of the Commission of Inquiry asthey have to arrive at their own decision on the evidence placed beforethem in accordance with law. The investigating agency may withadvantage make use of the report of the Commission in its onerous taskof investigation bearing in the mind that it does not preclude theinvestigating agency from forming different opinion under SectionsC169/170 of Criminal Procedure Code if the evidence obtained by itsupports such conclusion. In Sham Kant, for convicting an accused ina criminal trial, reliance was sought on the report of the Commissionunder the Inquiry Act. This Court held that the report of the Commissionis not relevant to determine the commission of offence tried by theDCriminal Court. Each of the cases referred to above are on differentfactual background. Thus, none of the judgments relied upon by Mr.Bhushan supports his argument that the Court Commissioner was aCommission under the Inquiry Act or that the report of the Commissioncannot form basis for proceeding against the organizers or the State.E49. Still further, none of the judgments have laid down that thereport of the Commission is not relevant. In respect of criminal charges,an accused can be tried by Court of law and not merely on the basis ofthe report of the Commissioner under the Inquiry Act. Such report is notconclusive and an independent action has to be taken by the State or bythe victims against the Organizers before the competent court of law toFprove the criminal offences said to be committed by certain accused.

50. We find that the appointment of the Court Commissioner wasthough to substitute the Commissioner appointed under the Inquiry Act,but under the Inquiry Act, the Court could not appoint Commissioner.Such power is conferred only on the executive and the legislature. Thus,Gthe 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 Court Commission to find out the factual positions on thequestions of reference. We do not find any merit in the argument thatthe appointment of the Court Commissioner was as Commissioner ofHInquiry under the Inquiry Act and the same is made out from the fact

that this Court has sought comments from the State on the basis of thereport so furnished.

51. The victims or their families visited exhibition on the invitationof the Organizers and not that of the Contractor. The Organizers weresupposed to make arrangements for putting up the exhibition hall, providingelectricity and water and also the food stalls for the facility of the victims/visitors. They cannot now take shelter on the ground that the Contractorwho was given work order on 9.3.2006 was an independent contractorand the victims should seek remedy from him. As observed earlier, thecontractor has worked for the Organizers and not for the victims. Hence,the Organizers alone are responsible to protect the life and liberty of thevictims.

52. The argument of Mr. Bhushan that the Court Commissionerhas not given any conclusive finding on the cause of the fire is not relevantin determining the civil liability. The maxim res ipsa loquitur would beapplicable as organizing an exhibition of such substantial magnitude withoutproper and adequate safety factors which may endanger the life of thevisitors, has been rightly found by the Court Commissioner, an act ofnegligence including negligence of the officers of the State.

53. In Shyam Sunder & Ors. v. State of Rajasthan[32], this Courtobserved that the maxim res ipsa loquitor is resorted to when an accidentis shown to have occurred and the cause of the accident is primarilywithin the knowledge of the defendant. The mere fact that the cause ofthe accident is unknown does not prevent the plaintiff from recoveringthe damages, if proper inference to be drawn from the circumstanceswhich 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 thefact that the truck caught fire is evidence of negligence on thepart of the driver in the course of his employment. The maxim resipsa loquitur is resorted to when an accident is shown to haveoccurred and the cause of the accident is primarily within theknowledge of the defendant. The mere fact that the cause of theaccident is unknown does not prevent the plaintiff from recoveringthe damages, if the proper inference to be drawn from thecircumstances which are known is that it was caused by the

negligence of the defendant. The fact of the accident may,sometimes, constitute evidence of negligence and then themaxim 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 thedefendant or his servants, and the accident is such as in the ordinarycourse of things does not happen if those who have themanagement use proper care, it affords reasonable evidence, inthe absence of explanation by the defendants, that the accidentarose from want of care.”

The maxim does not embody any rule of substantive law nor arule of evidence. It is perhaps not rule of any kind but simply thecaption to an argument on the evidence. Lord Shaw remarkedthat if the phrase had not been in Latin, nobody would have calledDit principle [Ballard v. North British Railway Co., 1923 SC(HL) 43] . The maxim is only convenient label to apply to setof circumstances in which the plaintiff proves case so as to callfor rebuttal from the defendant, without having to allege andprove any specific act or omission on the part of the defendant.The principal function of the maxim is to prevent injustice whichEwould result if plaintiff were invariably compelled to prove theprecise cause of the accident and the defendant responsible for iteven when the facts bearing on these matters are at the outsetunknown to him and often within the knowledge of the defendant.But though the parties’ relative access to evidence is an influentialFfactor, it is not controlling. Thus, the fact that the defendant is asmuch at loss to explain the accident or himself died in it, doesnot preclude an adverse inference against him, if the odds otherwisepoint to his negligence (see John G. Fleming, The Law of Torts,4th Edn., p. 264). The mere happening of the accident may bemore consistent with the negligence on the part of the defendant

than with other causes. The maxim is based as commonsenseand its purpose is to do justice when the facts bearing on causationand on the care exercised by defendant are at the outset unknownto the plaintiff and are or ought to be within the knowledge of thedefendant (see Barkway v. S. Wales Transo [(1950) 1 All ER392, 399] ).

11. The plaintiff merely proves result, not any particular act oromission producing the result. If the result, in the circumstancesin which he proves it, makes it more probable than not that it wascaused by the negligence of the defendants, the doctrine of resipsa loquitur is said to apply, and the plaintiff will be entitled tosucceed unless the defendant by evidence rebuts that probability.”

54. Further, this Court in Pushpabai Purshottam Udeshi v. RanjitGinning & Pressing Co. Pvt. Ltd. & Anr.[33 ] held that where the plaintiffcan prove the accident but cannot prove how it happened to establishnegligence on the part of the defendant, such hardship is sought to beavoided by applying the principle of res ipsa loquitor. It was observedthus:

“6. The normal rule is that it is for the plaintiff to prove negligencebut as in some cases considerable hardship is caused to the plaintiffas the true cause of the accident is not known to him but is solelywithin the knowledge of the defendant who caused it, the plaintiffcan prove the accident but cannot prove how it happened toestablish negligence on the part of the defendant. This hardship issought to be avoided by applying the principle of res ipsa loquitur.The general purport of the words res ipsa loquitur is that theaccident “speaks for itself’ or tells its own story. There are casesin which the accident speaks for itself so that it is sufficient forthe plaintiff to prove the accident and nothing more. It will then befor the defendant to establish that the accident happened due tosome other cause than his own negligence. Salmond on the Lawof Torts (15th Edn.) at p. 306 states: “The maxim res ipsaloquitur applies whenever it is so improbable that such an accidentwould have happened without the negligence of the defendantthat reasonable jury could find without further evidence that itwas so caused”. In Halsbury’s Laws of England, 3rd Edn., Vol.28, at p. 77, the position is stated thus: “An exception to the generalrule that the burden of proof of the alleged negligence is in thefirst instance on the plaintiff occurs wherever the facts alreadyestablished are such that the proper and natural inference arisingfrom them is that the injury complained of was caused by thedefendant’s negligence, or where the event charged a; negligence‘tells it own story’ of negligence on the part of the defendant, the

Astory so told being clear and unambiguous”. Where the maxim isapplied the burden is on the defendant to show either that in facthe was not negligent or that the accident might more probablyhave happened in manner which did not connote negligence onhis part.”

B55. The said aspect of res ipsa loquitor has also been commentedupon by the Court Commissioner holding the Organizers and the Stateliable to apportion the liability. Thus, we are of the opinion that the reportof the one-man Commission is not suffering from any infirmity so as toabsolve the Organizers from their responsibility of organizing theexhibition.C

56. In terms of the order passed, as mentioned above, theCommission has submitted its report and apportioned the liability betweenthe Organizers and the State as 60:40. No dispute was raised regardingpercentage of liabilitydetermined by any of the party to the presentproceedings. Therefore, what remains to be seen now, is the question ofDcompensation payable to the victims and/or their families.

57. The State has paid Rs.2 lakhs each as ex-gratia compensationto the families of the deceased, Rs.1 lakh each for the persons whosuffered serious injuries and Rs.50,000/- each for the persons sufferingfrom minor injuries whereas the Union of India has paid ex-gratiaEcompensation of Rs.1 lakh each for the deceased and Rs.50,000/- eachfor those with serious injuries. In terms of the order of this Court, theState has paid Rs.5 lakhs each to the deceased, Rs.2 lakhs each to thevictims suffering serious injuries and Rs. 75,000/- each to the victimssuffering minor injuries, apart from the amount paid by the Union ofIndia.F

58. The list of deceased and injured persons has been producedby the learned counsel for the petitioners. The amount of compensationpayable to each of the victim including the families of the deceased havenot been computed and such amount is required to be computed inGaccordance with the principles of just compensation as in the case ofaccident under the Motor Vehicle Act, 1988 by the Motor AccidentsClaims Tribunal.

59. We,therefore, request the Hon’ble Chief Justice of theAllahabad High Court to entrust the work of determination ofcompensation to Judicial Officer in the rank of District Judge/AdditionalH

District Judge at Meerut within two weeks of the order of this Court towork exclusively on the question of determination of the compensationon day-to-day basis. The High Court shall provide all necessaryinfrastructure to enable the Officer to discharge his duties. The nominatedJudicial Officer may permit the parties to lead such evidence as may bepermissible. We hope that the nominated Judicial Officer shall calculatethe amount of compensation and forward the report to this Court forconsideration in respect of compensation in accordance with law. Theamount paid by the State and sum of Rs.30 Lakhs deposited by theOrganizers has been disbursed to the victims. The said amount, excludingthe ex-gratia payments made, be taken into consideration whiledetermination of the amount payable by the Organizers and the State.

List after four months.

Nidhi Jain(Assisted by : Tamana, LCRA)

Directions issued.