Municipal Corporation
of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy & Ors.
J U D G M E N T
R.V. Raveendran, J.
1.
These
appeals are filed against the judgment dated 24.4.2003 of a division bench of the
Delhi High Court in the Uphaar Cinema tragedy. CA No.7114-15/2003 is by the
Municipal Corporation of Delhi (for short `MCD'). CA No.7116/2003 is by the
Licensing Authority (Commissioner of Police). CA No. 6748/2004 is by M/s.Ansal
Theatre and Clubotels Pvt. Ltd., the owners of the Uphaar Cinema Theatre (for
short the `theatre owner' or `Licensee).
2.
These
appeals relate to the fire at Uphaar Cinema Theatre in Green Park, South Delhi
on 13.6.1997, resulting in the death of 59 patrons and injury to 103 patrons.
During the matinee show of a newly released film on 13.6.1997, the patrons of
the cinema hall which was full were engrossed in the film. Shortly after the
interval, a transformer of Delhi Vidyut Board installed in the ground floor
parking area of Uphaar Cinema, caught fire.
The oil from the transformer
leaked and found its way to the passage outside where many cars were parked.
Two cars were parked immediately adjoining the entrance of the transformer
room. The burning oil spread the fire to nearby cars and from then to the other
parked cars. The burning of (i) the transformer oil (ii) the diesel and petrol
from the parked vehicles (iii) the upholstery material, paint and other
chemicals of the vehicles and (iv) foam and other articles stored in the said parking
area generated huge quantity of fumes and smoke which consisted of carbon
monoxide and several poisonous gases.
As the ground floor parking
was covered all round by walls, and the air was blowing in from the entry and
exit points, the smoke and noxious fumes/smoke could not find its way out into
open atmosphere and was blown towards the staircase leading to the balcony
exit. On account of the chimney effect, the smoke travelled up. Smoke also
travelled to the air-conditioner ducts and was sucked in and released into the auditorium.
The smoke and the noxious fumes stagnated in the upper reaches of the
auditorium, particularly in the balcony area. By then the electricity went off and
the exit signs were also not operating or visible.
The patrons in the
balcony who were affected by the fumes, were groping in the dark to get out. The
central gangway in the balcony that led to the Entrance foyer could have been
an effective and easy exit, but it was closed and bolted from outside, as that
door was used only for entry into the balcony from the foyer. The patrons
therefore groped through towards the only exit situated on the left side top
corner of the balcony. The staircase outside the balcony exit which was the
only way out was also full of noxious fumes and smoke. They could not get out
of the staircase into the foyer as the door was closed and locked. This
resulted in death of 59 persons in the balcony and stairwell due to
asphyxiation by inhaling the noxious fumes/smoke. 103 patrons were also injured
in trying to get out.
3.
First
Respondent is an association of the victims of Uphaar Tragedy (for short the `Victims
Association' or `Association'). The members of the Association are either those
who were injured in the fire or are relatives/legal heirs of those who were
killed in the fire. The Association filed a writ petition before the Delhi High
Court. They highlighted the shocking state of affairs existing in the cinema
building at the time of the incident and the inadequate safety arrangements
made by the owners. They described the several violations by the owners of the
statutory obligations placed on theatre owners under law, for prevention of fire
hazards in public places.
They highlighted the acts
of omission and commission by the public authorities concerned namely Delhi
Vidyut Board (`DVB' for short), MCD Fire Force and the Licensing Authority.
They alleged that these authorities not only failed in the discharge of their
statutory obligations, but acted in a manner which was prejudicial to public
interest by failing to observe the standards set under the statute and the
rules framed for the purpose of preventing fire hazards; that they issued
licenses and permits in complete disregard of the mandatory conditions of
inspection which were required to ensure that the minimum safeguards were provided
in the cinema theatre.
They pointed out that
most of the cinema theatres were and are being permitted to run without any
proper inspection and many a time without the required licenses, permissions and
clearances. They therefore, sought adequate compensation for the victims of the
tragedy and punitive damages against the theatre owner, DVB, MCD, Fire Force
and the Licensing Authority for showing callous disregard to their statutory obligations
and to the fundamental and indefeasible rights guaranteed under Article 21 of the
Constitution of India, of the theatre going public, in failing to provide safe
premises, free from reasonably foreseeable hazards.
They claimed
compensation and other reliefs as under:-(a) award damages of Rs.11.8 crores against
the respondents, jointly and severally, to the legal heirs of the victims who lost
their lives (listed in 5Annexure B of the writ petition) through the
Association with the direction to equally distribute the same to the first
degree heirs of all the victims;
(b) award damages of Rs.10.3
crores against the respondents, jointly and severally, to the injured (listed in
Annexure C to the writ petition) to be distributed evenly or in such manner as
may be considered just and proper; (c) award punitive damages of Rs.100 crores
to the association for setting up and running a Centralized Accident and Trauma
Services and other allied services in the city of Delhi; and to direct Union of
India to create a fund for that purpose;
(d) to monitor the
investigation from time to time, to ensure that no person guilty of any of the
offences is able to escape the clutches of law and that the investigation is carried
out as expeditiously as possible in a free and fair manner; and(e) direct the
Union of India to ensure that no cinema hall in the country is allowed to run
without license granted after strictly observing all the mandatory conditions prescribed
under the laws and to further direct them to stop the operation of all cinema
halls and to permit the operation only after verification of the existence of a
valid license/permit by the licensing authority, under the Cinematograph
Act.Relevant Legal Provisions
4.
The
Cinematograph Act, 1952 provides for regularization of exhibition of Cinemas. Section
10 provides that a cinema theatre cannot be run without obtaining license from the
Licensing Authority. Section 11 provides that the Licensing Authority shall be
the District Magistrate. After the coming into force of the Commissioner of
Police system in Delhi in 1978, the Commissioner of Police was notified as the
licensing authority under the proviso to section 11 of the Act. Licenses to be
granted to a cinema theatre under section 10 could be either annual or
temporary. All cinema theatres in Delhi were required to get their licenses renewed
annually by moving an application in writing to the licensing authority. While granting
renewal, the licensing authority was required to satisfy itself that the
licensee had complied with the provisions of the Cinematograph Act and the
Delhi Cinematograph Rules framed thereunder.
5.
5.
When the cinema theatre was constructed in the year 1973, the Delhi
Cinematograph Rules, 1953 were regulating the procedure of granting licences,
inspection and conditions of licences. After the coming into force of the Commissioner
of Police system, the Delhi Cinematograph Rules 1983 came into force. Rule 3
provides that license shall be granted in respect of a building which is
permanently equipped for Cinematograph exhibition and in respect of which the requirements
set forth in first schedule of the Rules were fulfilled.
The first schedule to
the Rules laid down the specifications with which compliance must be made
before any annual license was granted in respect of any building. Besides other
things, the schedule lays down specifications 7regarding number of persons
accommodated in the cinema hall and the manner in which the seats can be
provided therein. The 1953 Rules insofar as they are relevant for accommodation,
sitting, the width of gangways, stairways, exits, are extracted below: (1) Accommodation
–
The total number of spectators
accommodated in the building shall not exceed twenty per hundred square feet of
the area available for sitting and standing or twenty per 133.5 square feet of over
all area of the floor space in the auditorium. . x x x (2) Seating - (1) The
seating in the building shall be arranged so that there is free excess to
exits. (3) Gangway - (1) Gangway not less than forty-four inches wide shall be
provided in the building as follows :- (a) Down each side of the auditorium. (b)
Down the centre of the seating accommodation at intervals of not more than
twenty-five feet. (c) Parallel to the line of the seating so as to provide
direct access to exits, provided that not more than one gangway for every ten rows
shall be required. (2) All gangways, exits and the treads of steps and
stairways shall be maintained with non-slippery surfaces. x x x
(4) The exits and the
gangways and passages leading to exits shall be kept clear of any obstruction
other than rope barriers provided in accordance with sub-rule (6). On no
account shall extra seats be placed in the gangways or spectators be allowed to
stand in the gangways at the time of performances in such a way as to block or effectively
reduce their width. x x x 8(4) Stairways - (1) There shall be at least two stairways
each not less than four feet wide to provide access to any gallery or upper
floor in the building which is intended for use by the public. x x x x(5) No
stairways shall discharge into a passage or corridor against or across the
direction of exit.(5) Exits : -
(1) Every public portion
of the building shall be provided with an adequate number of clearly indicated exits
placed in such positions and so maintained as to afford the audience ample
means of safe and speedy egress.(2) In the auditorium there shall be atleast
one exit from every tier, floor, or gallery for every hundred persons
accommodated or part thereof :Provided further that an exit on or by way of stage
or platform shall not be reckoned as one of exits required by this rule.(3)
Every exit from the auditorium shall provide a clear opening space of not less
than seven feet high and five feet wide.(4) Exits from the auditorium shall be
suitably spaced along both sides and along the back thereof and shall deliver
into two or more different thorough fares or open space from which there are at
all times free means of rapid dispersal.
(5) Every passage or corridor
leading from an exit in the auditorium to a final place or exit from the building
shall be of such width as will in the opinion of the licensing authority enable
the persons who are likely to use it in an emergency to leave the building without
danger of crowding or congestion. At no point shall any such passage or
corridor be less than five feet wide and it shall not diminish in width in the direction
of the final place of exit.(6) The combined width of the final place of exit
from the building shall be such that there are at least five feet of exit width
for every hundred persons that can be accommodated in the building. 9(7) All
exit doors shall open outwards and shall be so fitted that when opened they do
not obstruct any gangway, passage, corridor, stairway or landing.
(8) All exit doors
and doors through which the public have to pass on the way to the open air
shall be available for exit during the whole time that the public are in the
building and during such time shall not be locked or bolted.(9) All exits from
the auditorium and all doors or openings (other than the main entrance) intended
for egress from the building shall be clearly indicated by the word "EXIT"
in block letters, which shall not be less than seven inches high and shall be
so displayed as to be clearly visible in the light as well as in the dark.(10)
All other doors of openings shall be so constructed as to be clearly distinguishable
from exits. They may be indicated by the words
"NO
THOROUGHFARE" arranged as in the figure below, but no notice bearing the
words "NO EXIT" shall be used in any part of the building.(6) Parking
Arrangements - (1) Such arrangements shall be made for the parking of motor cars
and other vehicles in the vicinity of the buildings as the licensing authority
may require.(2) No vehicle shall be parked or allowed to stand in such a way as
to obstruct exits or impede the rapid dispersal of persons accommodated, in the
event of fire or panic. (7) Fire Precautions –
(1) Fire extinguishing
appliances suitable to the character of the building and of a patron, class and
capacity approved by the licensing authority shall be provided as prescribed by
him; these appliances shall be disposed to his satisfaction so as to be readily
available for use in case of fire in any part of the building.(2) There shall
always be sufficient means of dealing with the fire readily available within the
enclosure and these shall include a damp blanket, a portals Chemical fire
extinguisher and two buckets of dry sand. 10 (3) All fire extinguishing appliances
shall at all times be maintained in proper working order and available for
instant use, and all Chemical fire extinguishers shall be capable of withstanding
a pressure of not less than 250 lbs. square inch.
(4) During an
exhibition all fire extinguishing appliances shall be in charge of some person or
persons specially appointed for this purpose. Such persons need not be employed
exclusively in looking after the fire appliances but they must not be given any
other work during an exhibition which would take them away from the building or
otherwise prevent them from being immediately available in case of danger or
alarm of fire. (emphasis supplied)INQUIRY REPORTS
6.
Immediately
after the incident, the Lt.Governor constituted an enquiry committee under
Mr.Naresh Kumar (DC, South) to investigate into the incident. He secured several
reports and in turn submitted an exhaustive report on the calamity. When the
investigation was transferred to CBI on 26.7.1997, they also secured several
reports. The court appointed Commissioners also gave a report. These reports,
enumerated below, were considered by the High Court: (i) Report dated 16.6.1997
issued by Delhi Fire Service. (ii) Report dated 25.6.1997 of Mr.K.L Grover, Electrical
Inspector (Labour Department) submitted to Mr.Naresh Kumar.
(iii) Report dated 25.6.1997
submitted by Mr.R.K. Bhattacharya, Executive Engineer (Building) South Zone, MCD
to Mr.Naresh Kumar. (iv) Report dated 26.6.1997 submitted by the Fire Research Laboratory,
Central Building Research Institute to Mr. Naresh Kumar. (v) Report dated 27.6.1997
and 11.8.1997 of Central Forensic Science Laboratory to Station House Officer. (vi)
Report dated 29.6.1997 by Mr.K.V. Singh, Executive Engineer (Electrical) PWD,
to Mr. Naresh Kumar. (vii) Report dated 2.7.1997 by Mr. M.L.Kothari, Electrical
Deptt., IIT affirming the observations of Mr.K.V. Singh.
(viii) Panchnama
dated 2.8.1997 prepared by Sr. Engineer, PWD. (ix) Inspection-cum-Scrutiny Report
dated 11.8.1997 by Eng.Deptt. of MCD. (x) Toxicology Report dated 18.9.1997 by
AIIMS. (xi) Joint Inspection Report dated 7.10.1997 by Representative of Licensing
Authority, MCD, Delhi Fire Service, Electrical Inspector, and General Manger of
Uphaaar Cinema. (xii) Naresh Kumar Report. (xiii) Court Commissioner's Report
dated 30.11.2000.Decision of High Court
7.
The
High Court after exhaustive consideration of the material including the
aforesaid reports, recorded statements and other material, allowed the writ
petition by order dated 24.4.2003. In the said order, the High Court identified
the causes that led to the calamity and persons responsible therefor. It held
the theatre owner, DVB, MCD and the Licensing Authority responsible for the
fire 12tragedy. It exonerated the Delhi Fire Force. We summarise below the
acts/omissions attributed to each of them by the High Court.Acts/omissions by
DVB
8.
DVB
violated several provisions of the Electricity Act and the Rules. It had not
obtained the approval of the Electrical Inspector for installation of the
transformer as required under the Rules. The Rules required that the floor of
the transformer room should be at a higher level than the surrounding areas and
there should be a channel for draining of oil with a pit so that any leaking
oil would not spread outside, increasing the fire hazard, and also to ensure that
water did not enter the transformer. The transformer had to be checked
periodically and subjected to regular maintenance and should have appropriate
covers. The connecting of wires should be by crimping and not by hammering. The
negligence on the part of DVB in maintaining the transformers and repairs led
to the root cause of the incident, namely the starting of the fire.
Acts/Omissions of owner
9.
Though
the starting of the fire in the transformer happened due to the negligence of
DVB, but if the owner had taken the necessary usual precautions and security
measures expected of a theatre owner, even if the transformer had caught fire,
it would not have spread to nearby cars or other stored articles nor would the
balcony and staircases become a death trap on account of the fumes. The
following acts/omissions were attributed to the theatre owner :(i) Parapet
wall:
The owner had
violated the municipal bye-laws by making several unauthorised alterations in the
structure which all contributed to the incident. In particular, the violation by
the owner in raising a parapet wall which was shown to be of three feet height
in the sanctioned plan till the roof level had disastrous effect when the fire broke
out. The stilt floor plan (sanctioned in 1972) showed that what was sanctioned was
a three feet high parapet wall along the ramp which was situated to the rear of
the transformer room.
If the said parapet
wall had been constructed only to a height of three feet as shown in the
sanctioned plan, the entire space above it would have been open and in the event
of any fire in the transformer room or anywhere in the stilt floor, the
fumes/smoke could have dispersed into the atmosphere. But at some point of time
in or around 1973, the Licensee had raised the said three feet wall upto the
ceiling height of twelve feet with the result the stilt floor (parking area)
stood converted into a totally enclosed area.
But for the construction
of the parapet wall to ceiling height, the fumes/smoke from the transformer
room and from the parking area where the cars were burning, would have gone out
of the stilt floor into the open atmosphere. The unauthorized raising of this wall
prevented the smoke from getting dispersed and forced it to seek a way up through
the stairwell causing the chimney effect and also entered the balcony through
the air conditioning system resulting in the concentration of the smoke in the balcony
area of the theatre and the stairwell itself, thereby playing a major role in
spreading the fire/smoke to balcony area and stairwell.
The Court found that
the apparent intention of raising the height of the wall from three to twelve
feet was to use the area between the wall and the transformer room for commercial
purposes.(ii) Closing one exit in balcony and reducing the width of gangways:
Making alterations in the balcony, contrary to the Cinematograph Rules by
closing the gangway/aisle on one side and closing/blocking one of the exits by
construction of an owner's box in front of the right side exit (The details of
these alterations are given in paras 11 to 14 below). The said acts impeded the
free and quick exit of the occupants of balcony as everyone had to use the exit
on the left side. The delay made them victims of asphyxiation due to the poisonous/noxious
gases.(iii) Illegal parking in stilt floor:
The stilt floor where
the three electrical rooms (generator room, HT room and LT room) were situated,
had an earmarked parking space for 15 cars. The sanctioned plan clearly
contemplated a passage way for movement of cars of a width of about 16 ft. The
sanctioned plan required that the area in front of the three electrical rooms
should be left 15free as a part of that passage way and no parking was
contemplated in front of the said three rooms.
However the Licensee
was permitting the patrons to park their cars in a haphazard manner,
particularly in the central passage. Instead of restricting the cars to be parked
in that floor to 15 and leaving the central passage, in particular the passage
in front of the three electrical rooms free for maneuvering the cars, the owner
permitted the entire passage to be used for parking the vehicles, thereby increasing
the parking capacity from 15 to 35. This made exiting of vehicles difficult and
until and unless the vehicles in the passage were removed, other parked
vehicles could not get out. It also made it difficult for any patrons to use
the said area as an exit in an emergency.
Parking of vehicles
in front of the three electrical rooms increased the fire hazard. If the
passageway between two parked row of cars in the stilt floor had been kept free
of parking as per the sanctioned plan and consequently if no cars had been
parked in front of the transformer room, the fire in the transformer room would
not have spread to the cars and the entire calamity could have been avoided. On
that day, a contessa car parked next to the transformer room in the passageway
first caught fire. (Though the sanctioned parking plan showed that the stilt
floor was to be used for parking only fifteen cars with a middle passageway of
fifteen feet width left free for movement of cars), the parking area was used
for parking as many as 35 cars.
As the parking area was
overcrowded with haphazardly parked cars, the entire passageway meant for
movement of cars was blocked. 16Not following the provisions of Electricity Act
and Electricity Rules in regard to the construction of the transformer room with
required safeguard and permitting haphazard parking of large number of
vehicles, particularly near the transformer room started the fire and spread
it.(iv) If the owners had not unjustly and by misrepresenting the facts,
obtained an interim stay in the year 1983 which continued up to the date of the
incident and as a consequence though the irregularities and violations of
safety measures had been noticed and brought to its notice, they had not
rectified them and the continued violations resulted in the
incident.Acts/omissions of MCD
10.
The
sanctioned plan issued in 1972 to the Licensee was for construction of a three
feet high parapet wall. Though the Licensee raised the said wall up to ceiling
height of 12 feet in violation of the Rules, the MCD failed to point out this
violation between 1994 to 1997 and take action against the theatre owners.MCD
was required to give a NOC after inspecting the building, certifying that there
was no violation of the building bye-laws or unauthorized construction, every
year, from the year 1994 so that licence should be renewed. MCD failed to make
such inspections. On the other hand it gave a NOC for grant of licence in the
year 1996.Acts/omissions of the Licensing Authority
11.
The
licensing authority owed a duty to ensure that the cinema theatre complied with
all the requirements of the Cinematograph Act and Rules and to obtain the
necessary NOCs from MCD, Fire Force and Electrical Inspector. If there was any
violation, it ought not to have renewed the licence. The Licensing Authority
failed to note the violations/deviations and take remedial action. Even though
a stay order had been issued by the High Court on 28.6.1983, in a writ petition
challenging the suspension of licences, the said stay order did not come in the
way of the Licensing Authority making appropriate inspections and if necessary to
take action to suspend the licence or seek modification of the interim order.
The Licensing
Authority did not discharge its statutory functions and went on issuing
temporary permits for periods of two months each, for a period of more than 13 years
when the Rules clearly contemplated that the temporary permits could not be
renewed for a period of more than six months.Conclusion of High CourtClosing of
one Balcony Exit and narrowing of gangway
12.
We
may only refer to the unauthorized closure of an exit from balcony and reduction
of width of gangways by addition of seats in greater detail to have a complete
picture. Uphaar Cinema was inaugurated on 27.4.1973. In the year 1975, there
was a general cut of 10% value of the cinema ticket rates fixed by the Delhi
Administration. The licensees made a representation to the Delhi Administration
alleging that the expenses had gradually gone up during the course of years
after the rates were fixed and that even the existing rates were inadequate to
meet the operating costs.
The representation of
the Association of Motion Pictures Exhibitors was considered and the Delhi
Administration agreed to relax the Rules and allowed the licensees to have
additional seats (in addition to the existing seats) in their cinema halls to
make good the loss caused to the licensees by the reduction in the rates by
10%. Uphaar Cinema was permitted to add 43 seats in balcony and 57 seats in the
main hall, as per a notification dated 30.9.1976 issued by the licensing authority.
As a consequence, 43 seats were added in the balcony and 57 seats were added in
the main hall of Uphaar Theatre.
The Chief Fire Officer
inspected the theatre and submitted a report that the addition of seats was a fire
hazard. The Lt. Governor therefore issued a notification dated 27.7.1979 cancelling
with immediate effect the earlier notifications by which relaxation had been
granted to the licensees (including Uphaar Cinema) by allowing them to increase
the number of seats.
The said notification
dated 27.7.1979 was challenged by the Licensees by filing a writ 19petition in
the Delhi High Court. The said writ petition was disposed of by a Division
Bench of the High Court by its judgment dated 29.11.1979 (reported in Isher Das
Sahni & Bros. v. The Delhi Administration - AIR 1980 Delhi 147) holding
that the Delhi Administration could not have granted such relaxations if such
relaxations would have contravened the Rules to an extent as to increase the
risk of fire hazard or to expose the spectators to unhealthy conditions.
The High Court further
held that the opinion and advice of the fire and health authorities had to be
taken before grant of any relaxation. The High Court noted the following view of
Chief Fire Officer showing reluctance to advise relaxation in the rules as the safety
of the visitors to the theatres would be affected thereby: "Even under the
normal circumstances the exit facilities are seriously hampered by people
rushing and it is felt that in case of panicky situation of a minor nature, the
people will be put to great difficulty which may even result in stampede. In
the circumstances, I feel that it would not be advisable to allow extra seats
required by the Managements.
In a few theaters,
however, the difficulty may not be so acute. If at all any relaxation has to be
considered under unavoidable circumstances, our reaction to the proposals but
forward by the management of a few cinema houses may kindly be seen in the
enclosure".
The High Court also noted
that Chief Fire Officer later modified and toned down his report when he was informed
by the Delhi Administration that additional seats were permitted to compensate
the loss on account of reduction 20in cinema fares. The High Court noted that
ultimately the Delhi Administration, Chief Fire Officer and Municipal Corporation
agreed to some relaxation and disposed of the petitions directing the Delhi
Administration to apply their mind and decide how many of the additional seats
were in accordance with the Rules and could be permitted to be retained. The effect
of the order was that only those additional seats which contravened the Rules had
to be removed and cancellation of the Notification dated 30.9.1976 did not result
in automatic removal of all additional seats.
13.
In
the meanwhile by order dated 6.10.1978, the Entertainment Tax Officer permitted
Uphaar Cinema to install a box with eight seats for use without tickets (for complimentaries).
This was not however specifically brought to the notice of the Licensing Authority
nor his permission sought. These additional seats were not sanctioned by the Licensing
Authority. In pursuance of such permission the Licensee closed the exit on the
right side of the balcony for installing the box with eight seats. The central
access was used exclusively for entry. As a result the only exit from the
balcony was the one at the extreme left top corner of the balcony.
14.
After
the decision dated 29.11.1979, a show cause notice was issued to reconsider the
addition of 100 seats and by order dated 22.12.1979, the DCP (Licensing) held
that six additional seats in the balcony (seat No.8 in rows `A' to `F') and 56
additional seats in the main hall were blocking the gangway and causing
obstruction to egress of patrons and directed their removal so that the
original vertical gangway could be restored.
However on a subsequent
application dated 29.7.1980 by the Licensee by order dated 4.10.1980, the
Licensing Authority permitted installation of 15 additional seats in the
balcony, that is two additional rows of 3 seats each in front of the exit in balcony,
addition of one seat against back wall next to seat no.38 and eight additional
seats by adding one seat in each of rows `A' to `H'. As a result (i) the
seating capacity which was 287 plus Box of 14 went up to 302 plus two Boxes
(14+8), (ii) the right side exit was closed and a box of 8 seats added; (iii)
the right side vertical gangway was closed and a new gangway created between
seat Numbers (8) and (9); (iv) the width of the gangways leading to exit from
balcony was reduced.
15.
What
is significant is while obtaining permission of Licensing Authority for
increasing the capacity from 287 to 302, he was not informed about addition of one
box of 8 seats and closing of one exit. As per the 1953 Rules, there should be one
exit for every 100 seats. Under the 1981 Rules, this became minimum of one exit
for every 150 persons. Originally there was one central entry/exit point
between foyer to balcony and two exits at the two top corners of 22the balcony.
After the modifications
and increase in seats, the central door became an exclusive entry from the
foyer; the right side corner of the balcony was permanently closed by installation
of the special box of eight seats and there was only one exit for the entire
balcony with a capacity of 302 persons, situated at the left side top corner of
the balcony. This was the major cause for the tragedy, as when lights went off
and fumes surrounded, the balcony became a death trap.
The left (West) exit
from the balcony led to the staircase leading to the parking area. Patrons from
the balcony who entered the entire stairwell also died, as it was full of noxious
fumes entering from the stilt parking area on account of the chimney effect. The
patrons were denied access to the right (East) exit because of the installation
of the private box and the closing of right (East) exit, which would have otherwise
provided an access to the other staircase with lift well which led to the
ticket foyer outside the parking area and therefore free from noxious
fumes/smoke.
The report shows that
the exit light, ground light, side light, emergency lights and public address system
were all non-functional, adding to the delay, confusion and chaos, making it very
difficult to get out of the balcony which was dark and full of smoke/fumes.
16.
The
High Court held that the theatre owner (Licencee), DVB, MCD and Licensing Authority
being responsible for the incident were jointly and severally liable to
compensate the victims. The High Court directed payment of compensation to the legal
heirs of 59 patrons who died, and also to the 103 persons who were injured. The
High Court determined a uniform compensation of Rs.18 lakhs payable in the case
of deceased who were aged more than 20 years, and 15 lakhs each in the case of
those deceased who were less than 20 years of age.
It also awarded a
compensation of Rs.1,00,000 to each of the 103 injured. It also awarded
interest at 9% per annum on the compensation from the date of filing of writ
petition to date of payment. The High Court apportioned the liability inter se
among the four in the ratio of 55% payable by the theatre owners and 15% each payable
by the Delhi Vidyut Board, MCD and the Licensing Authority.
The High Court
directed that while paying compensation the ex-gratia amount wherever paid
(Rs.1,00,000 in the case of death, Rs.50,000 in case of grievous injuries and Rs.25000
for simple injuries) should be deducted. The High Court directed that the
Licensee shall pay Rs.2,50,00,000/- (Rupees two and half crores) as punitive damages
(being the income earned from installing extra 52 seats unauthorizedly during
the period 1979 to 1996. The said amount was ordered to be paid to Union of India
for setting up a Central Accident Trauma Centre.
17.
The
High Court approved the recommendations of Naresh Kumar Committee which were
extracted in detail in the judgment of the High Court. The High Court also made
the following recommendations: 24A) Several requests by the fire authorities for
adequate maintenance and timely upgradation of the equipment have floundered in
the bureaucratic quagmire. When lives of citizens are involved the requirement
of those dealing in public safety should be urgently processed and no such administration
process of clearance in matters of public safety should take more than 90 days.
The entertainment tax
generates sufficient revenue for the administration to easily meet the
financial requirements of bodies which are required to safeguard public
health.B) Considering the number of theatres and auditoria functioning in the
city, sufficient staff to inspect and enforce statutory norms should be
provided by the Delhi Administration.C) The Delhi police should only be concerned
with law and order and entrusting of responsibility of licensing of cinema
theatres on the police force is an additional burden upon the already over
burdened city police force.D) The inspection and enforcement of the statutory
norms should be in the hands of one specialized multi disciplinary body which should
deal with all aspects of the licensing of public places.
It should contain
experts in the field of (a) fire prevention (b) electric supply (c) law and
order (d) municipal sanctions (e) urban planning (f) public health and (g) licensing.
Such a single multidisciplinary body would ensure that the responsibility of
public safety is in the hands of a body which could be then held squarely
responsible for any lapse and these would lead to a situation which would avoid
the passing of the buck. The existing position of different bodies looking
after various components of public safety cannot be continued. A single body would
also ensure speedier processing of applications for licenses reducing red tape and
avoidable complications and inevitable delay.
E) All necessary
equipment should be provided to ambulances and the fire brigade including gas
masks, search lights, map of water tanks located in the area including the existence
of the location of the underground water tanks. Such water tank locations should
be available to the firemen working in the area. The workshop for the fire
tenders service and maintenance should also be fully equipped with all spares
and other equipment and requisition made by the fire brigade should receive
prompt and immediate attention. There should also be adequate training imparted
to the policemen to control the crowd in the event of a disaster as it is found
that onlookers are a hindrance to rescue operations. Similarly all ambulances dealing
with disaster management should be fully equipped.
18. The Vidyut Board
has accepted the judgment and has deposited 15% of the total compensation. The theatre
owner, Delhi Police and MCD have not accepted the judgment and have filed these
appeals. CAs. 7114-7115/2003 has been filed by the MCD denying any liability.
The Licensing Authority has filed CA No.7116/2003 contending that the theatre
owners should be made liable for payment of the entire compensation. The theatre
owner has filed CA NO.6748/2004 urging two contentions, namely, their share of
liability should have been far less than 55% and the rates of compensation fixed
were excessive.
19. At the outset it
should be noted that the causes for the calamity have been very exhaustively considered
by the High Court and it has recorded a categorical finding about the negligence
and the liability on the part of the licensee and the DVB. On the examination of
the records, we agree with the High Court that such a catastrophic incident would
not have happened if the parapet wall had not been raised to the roof level. If
the said wall had not been raised, the fumes would have dispersed in the
atmospheric air.
Secondly if one of
the exits in the balcony had not been blocked by construction of an owner's box
and if the right side gangway had not been closed by fixing seats, the visitors
in the balcony could have easily dispersed through the other gangway and exit
into the unaffected staircase. Thirdly if the cars had not been parked in the immediate
vicinity of the transformer room and appropriate pit had been made for draining
of transformer oil, the oil would not have leaked into the passage nor would
the burning oil lighted the cars, as the fire would have been restricted only to
the transformer room.
Even if one of the three
causes for which the theatre owner was responsible, was absent, the calamity would
not have occurred. The Licensee could not point out any error in those findings.
Ultimately therefore the contention of the licensee before us was not to deny
liability but only to reduce the quantum of liability fastened by the High
Court and to increase the share of the liability of the three statutory
authorities. DVB, as noticed above, has not challenged the decision of the High
Court. Therefore, 27we do not propose to reconsider and re-examine or re-assess
the material considered and the finding recorded with reference to the Licensee
and DVB.
Therefore the incident
is not disputed. The deaths and injuries are not in dispute. The identity of persons
who died and who were injured is not in dispute. The fact that the Licensee and
DVB are responsible is not in dispute. The limited questions that arise are whether
the MCD and the Licensing Authority could have been made liable to pay compensation
and whether the percentage of liability of the Licensee should be reduced from
55%.
20. On the
contentions urged the following questions arise for consideration: (i) Whether
MCD and Licensing Authority could be made liable to pay compensation to the
victims? (ii) What should be apportionment of liability? (iii) Whether
compensation awarded is excessive? (iv) Whether award of punitive damages of Rs.2.5
crores against the Licensee was justified? We will deal with questions (i) and (ii)
together and questions (iii) and (iv) together as they are interconnected.
Contentions of MCD21.
MCD submitted that the
writ petition focuses on the violations by the licensee, the negligence on the
part of the DVB, Fire Force and the licencing authority; no specific role
assigned to the MCD in regard to the incident; that the writ petition deals
with the responsibilities of the owners (licensees) (paras 2 to 6 and 15);
Delhi Vidyut Board (para 7); licencing authority - Delhi Police (paras 8 to 14)
and seeks to make them liable.
The role of Delhi
Fire Services (para 16) is referred. Role of Licensing Authority, Delhi Police
(para 17), role of medical facilities managed by health authorities (paras 18 to
20) and the cover-up operations by the owners and the role of the licensing
authority; that except a general averment that various instrumentalities of State
including MCD are liable to pay damages, no specific averment of allegation has
been made against MCD.
It is also submitted that
Mr. Naresh Kumar, Deputy Commissioner (South) NCT who was appointed by the Lt. Governor
immediately after the incident to conduct an enquiry, had submitted a report
which also primarily deals with the omissions and commissions of the Licensee,
the Licencing Authority, Delhi Fire Force, Delhi Vidyut Board and does not fix
any specific responsibility on MCD. Similarly the report of the Commissioners
appointed by the Delhi High Court (consisting of an Advocate and Professors
from engineering institutions) submitted its report dated 30.11.2000 which also
does not fix any liability on MCD. 22. MCD next pointed out that even the
impugned judgment of Delhi High Court while exhaustively covering the roles of
the Licensee, Vidyut Board, the 29licensing authority, Delhi Fire Force, makes
only a passing reference to MCD.
The High Court holds
MCD liable only on the ground that it did not take any action in regard to the unauthorised
raising of parapet wall adjoining the transformer from three feet height to
roof level. According to Delhi High Court on account of the raising of the
height of the parapet wall in the year 1973, the noxious fumes/smoke from the burning
of the transformer oil, diesel and the fuel in the tanks of the cars and the
burning of cars themselves could not escape into open atmosphere, and as a consequence,
the noxious fumes and smoke funneled into the stairwell to reach the air-conditioning
ducts providing air-conditioning to the balcony and the landing near the
balcony exit, resulting in asphyxiation of 57 patrons. It is submitted that except
the reference to the parapet wall there is absolutely no reference to the role of
the MCD.
It is contended that
in 1973 it had no role to play to check the construction as at that time, it was
the responsibility of the Executive Engineer, PWD. And by the time it came into
the picture in 1994 replacing the Executive Engineer, PWD, the structure was in
existence for more than two decades and therefore there was no question of MCD
objecting to the said wall.23. MCD submitted that it could easily demonstrate from
the relevant enactment and Rules that it had no role to play in regard to the raising
the height of the parapet wall by the theatre owner, nor any liability for such
action 30by the theatre owner and as a consequence they should have been
exonerated.
It was pointed out that
under the Cinematograph Act the Licensing Authority grants a cinematograph
licence enabling a theatre owner to run cinema shows in the theatre. The Cinematographic
Rules, 1953 contemplated the licensing authority obtaining clearances/consents
from the Executive Engineer PWD and Electrical Inspector. Even the Delhi Cinematographic
Rules of 1983 contemplated certificates/consents being obtained by the Licensing
Authority from the Public Works Department, Electrical Inspector and Chief Fire
Officer every year before renewing the licence.
Even in regard to the
design and construction of the cinema theatre, the rules under the Cinematographic
Act applied and prevailed and the municipal bye-laws did not contain any
provision as to the construction of cinema theatre but on the other hand,
clearly provided that the matter will be governed by the Cinematograph Rules.
Thus, the MCD had no role to play either in construction of the cinema theatre
or in the grant of licence or periodical renewal thereof.
It was only on 3.5.1994
by virtue of amendment of the Delhi Cinematography Rules, 1981, substituted in
place of the Executive Engineer of PWD, that MCD was required to give a report in
regard to the structure/building which was one of the requirements for the licensing
authority to grant or renew any cinema licence. From 1994, the limited role of MCD
was to furnish a report regarding the structures and whether there were any deviations.
But in fact its reports could not even be acted upon by the licensing
authority, in view of the order of stay obtained by the Licensee against the licensing
authority on 28.6.1983, made absolute on 25.3.1986.
In view of such stay,
the licensing authority was not issuing any licences but was only granting
temporary bi-monthly permits for running of the theatre. Even the report given by
the MCD pointing out the various defects/violations was not of any assistance to
the Licensing Authority. This was because in the year 1993 itself, the licensing
authority had made an application for vacating the interim stay but on account
of the time taken by the Licensees for filing objections thereto and thereafter
for hearing, the application was not heard even on the date of the incident and
thereafter the entire matter became infructuous.
In the circumstances
it is submitted that the MCD had no role to play even in the matter of inspection
and giving of reports regarding condition of the premises.24. As far as the parapet
wall is concerned it is contended that it had not sanctioned any plan for
increasing the height of the parapet wall from 3 ft. to roof level. It was
contended even if it granted any licence for construction or given any report or
no objection certificate, in exercise of its statutory functions, it could not
be made liable for any compensation on the ground of grant of such licence or NOC
or report in regard to the parapet wall, as no knowledge can be attributed to
the Corporation about the possible consequences of raising the height of
parapet wall.
25. Lastly it was
contended by MCD that when in exercise of its statutory powers of regulating
the constructions of buildings within its jurisdictional area or in complying
with the request of the Licensing Authority for any report as per Cinematograph
Rules, it acts bona fide and in accordance with the relevant rules and
bye-laws, in the absence of malafides, it can not be made liable even if there
were any errors or irregularities or violations. It was submitted that it cannot
also be made liable for any violation by the theatre owner in putting up the construction
in accordance with the plan sanctioned by the MCD or any violation of the rules
or licence terms or negligence in running the cinema theatre.
26. It was contended by
the victims Association that the liability of the Municipal Corporation arises from
the fact that it was one of the authorities which was required to give Reports/No
Objection Certificates (NOCs) to the licensing authority every year, for
construction and grant of renewal of licence. As admitted by the MCD itself the
responsibility of granting a certificate in regard to the condition of the structure
of the building and the violations in construction thereof was entrusted to the
MCD on 3.5.1994.
It was contended 33that
if the Municipal Corporation had discharged its functions as was expected of
them by thorough inspection of the theatre building and pointed out to the
licensing authority any violations or deviations or unauthorised constructions,
the temporary permit for running the theatre which was being issued by the
licensing authority, could have been stopped and the calamity could have been
averted.
It was pointed out
that on the other hand, when the Licensing Authority sought its report/NOC, by its
communication dated 11.3.1996, seeking inspection and report, MCD represented by
its Administrative Officer sent a report dated 25.9.1996 to the Deputy Commissioner
of Police, (Licensing Authority) stating that it had no objection for the renewal
of annual Cinematograph licence of the Uphaar Theatre.
It was submitted that
the purpose of seeking a No Objection Certificate from the Municipal
Corporation was not an empty formality; and that if statutory authorities like MCD,
ignore the relevance and importance of such no objection certificate and routinely
grant such certificates, as if it is a formality to be complied with
mechanically, the licensing process would become a mockery. It was contended that
statutory authorities like MCD should function diligently relating to public
safety and if they fail to do so, they should be liable for the consequences.
27. We agree with the
MCD that it had no role to play in regard to increasing the height of the parapet
wall. The sanction for licence to 34construction granted in 1972 was in regard
to a three feet high parapet wall. The height of the said wall was increased by
the Theatre owners in or about 1973. The MCD was not the inspecting authority till
1994. There was no structural change, modification or deviation after 1994. When
MCD inspected the theatre, it would have seen a theatre which was running for
more than 20 years and that there was no recent change. In the circumstances,
MCD cannot be found fault with for not complaining about the wall.
28. The Delhi
Cinematographic Rules, 1981 as originally framed had no role for MCD in the grant
of licences by the licensing authority. Rule 14 provided that before granting
or renewing an annual licence the Licensing Authority shall call upon: (i) the
Executive Engineer, PWD, to examine the structural features of the building and
report whether the rules thereto had duly been complied with; (ii) the Electrical
Inspector to examine the electrical equipments used in the building and report
whether they complied with the requirements of the Electricity Act and the Rules
thereunder and whether all precautions had been taken to protect the spectators
and employees from electric shock and to prevent the introduction of fire in
the building through the use of electrical equipments; and (iii) the Chief Fire
Officer to ensure that proper means of escape and safety against fire and to 35report
whether proper fire extinguishers appliances have been provided.
All defects revealed by
such inspections were required to be brought to the notice of the licensee and
the licensing authority who may refuse to grant or renew the licences unless
and until they are remedied to its satisfaction. In fact even for granting a temporary
licence, Rule 15 required the licensing authority to call upon the Executive
Engineer, PWD, to inspect the building and report whether it is structurally
safe for cinematographic exhibition. The said rules were amended by Cinematograph
Amendment Rules, 1994 by notification dated 3.5.1994. By virtue of the said
amendment wherever the term `Executive Engineer' appeared it was to be substituted
by the words `concerned local body'.
The term concerned
local body was also defined as referring to MCD, DDA, NDMC, Cantonment Board,
as the case may be in whose jurisdiction the place of cinematographic exhibition
was situated. Therefore on and after 3.5.1994, the report/certificate of the
MCD about the structural features of the building and whether the Rules in that
behalf had been duly complied with, was a condition precedent for renewing the
annual license or even granting a temporary lease by the licensing authority.
This showed that as
far as the structural features and deviations and defects, the Licensing
Authority relied upon the MCD, for expert opinion after 3.5.1994. The question
is whether MCD can be made liable to compensate the victims of the fire
tragedy, on the ground that it was required to give an inspection 36report or
on the ground that it gave a no objection certificate on 25.9.1996 for renewal
of licence for 1996-97. Contentions of the Licensing Authority
29. The Licensing Authority
contended that the High Court committed an error in holding it responsible for
having contributed to the spreading of fire and smoke by its acts of omission and
commission and consequently making it liable to pay compensation. The licence
was granted initially in the year 1973. At that time the District Magistrate
was the licensing authority. The power to grant licence and renew it yearly was
transferred from the District Magistrate to the Deputy Commissioner of Police (Licensing)
on 25.3.1986. The licensing authority was not an expert on Cinema Theatres nor technically
qualified to assess whether a licence of a cinema theatre should be renewed or
not.
He was required to
obtain the reports/NOCs from the PWD (from MCD from the year 1994), Fire Force
and Electrical Inspector. On the basis of such reports and on personal inspections,
the licensing authority was required to consider and decide whether a theatre
owner was entitled to a licence or renewal of licence to exhibit cinematograph films
in the theatre. The Licensing Authority was empowered to cancel the licence or
refuse to renew it (if he was considering an application for renewal) if the applicant
for licence did not fulfill the 37requirements.
The theatre owners had
filed a writ petition and obtained an interim order of stay in the year 1983 against
the cancellation/suspension of their cinematographic licence. While making the interim
order absolute on 25.3.1986, the High Court had made it clear that if there
were any violations by the theatre owner, the licensing authority was at
liberty to take such steps as were necessary to ensure that the violations or
deviations were set right. The said interim order made it clear that if there
were any violations, he can also move the High Court for vacating the interim
order.
The Licensing
Authority moved an application on 19.4.1993 citing several serious violations
committed by the licensee. But the High Court did not vacate the stay. Therefore
the Licensing Authority had to issue temporary licences inspite of any
irregularities. Therefore the Licensing Authority could not be held
responsible. 30. While sparking in the Delhi Vidyut Board transformer due to
negligence in maintenance, started the fire, the impact of this fire would not
have been so tragic, (i) if the cars not been parked in front of and very close
to the transformer in a haphazard manner; (ii) if adequate exits had been
provided on both sides of the balcony; (iii) if the owners of the theatre had
not closed top right exit of the balcony to provide a private box for the
owners resulting in an exit only on one side of the balcony;
(iv) if the owners
had not constructed an illegal wall the poisonous fumes would not have been funneled
towards the balcony; and as every second's delay in exiting to safer
environment was vital, if the exits been located on both sides of the balcony,
precious minutes would have been saved in getting out and loss of several
innocent lives avoided. It should be remembered that none of the patrons from the
main hall (ground floor) of the cinema died or were injured. Even those who
were on the second floor escaped.
It was only the
occupants of the balcony who were affected and the deaths were due to
asphyxiation on account of the noxious fumes/smoke. The theatre owner and DVB
have been held liable. The question is whether the Licensing Authority and MCD can
be held liable for improper discharge of statutory functions. The Legal
position : 31. In Rabindra Nath Ghosal Vs. University of Calcutta and Ors. -
(2002) 7 SCC 478 this Court held: "The Courts having the obligation to satisfy
the social aspiration of the citizens have to apply the tool and grant compensation
as damages in a public law proceedings.
Consequently when the
Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution
seeking enforcement or protection of fundamental rights and grants
compensation, it does so under the public law by way of penalising the
wrongdoer and fixing the liability for the public wrong on the State which has
failed in its public duty to protect the fundamental rights of the citizens.
But it would not be correct to assume that every minor infraction of public
duty by every public officer would commend the Court to grant compensation in a
petition under Articles 226 and 32 by applying the principle of public law proceeding.
The Court in exercise
of extraordinary power under Articles 226 and 32 of the Constitution, therefore,
would not award damages against public authorities merely because they have made
39 some order which turns out to be ultra vires, or there has been some inaction
in the performance of the duties unless there is malice or conscious abuse. Before
exemplary damages can be awarded it must be shown that some fundamental right
under Article 21 has been infringed by arbitrary or capricious action on the
part of the public functionaries and that the sufferer was a helpless victim of
that act." (emphasis supplied)
This Court in Rajkot
Municipal Corporation v. M.J. Nakum (1997) 9 SCC 552 dealing with a case
seeking damages under law of torts for negligence by municipality, held as
follows: "The conditions in India have not developed to such an extent that
a Corporation can keep constant vigil by testing the healthy condition of the trees
in the public places, road-side, highway frequented by passers-by. There is no
duty to maintain regular supervision thereof, though the local authority/other
authority/owner of a property is under a duty to plant and maintain the- tree.
The causation for accident is too remote. Consequently, there would be no
Common Law right to file suit for tort of negligence. It would not be just and proper
to fasten duty of care and liability for omission thereof.
It would be difficult
for the local authority etc. to foresee such an occurrence. Under these circumstances,
it would be difficult to conclude that the appellant has been negligent in the
maintenance of the trees planted by it on the road-sides."In Geddis v.
Proprietors of Bonn Reservoir (1878) 3 Appeal Cases 430, the House of Lords
held: "For I take it, without citing cases, that is now thoroughly well
established that no action will lie for doing that which the legislature has authorized,
if it be done without negligence, although it does occasion damage to anyone; but
an action does lie for doing that which the legislature has authorized, if it
be done `negligently.
"In X (Minors) v.
Bedfordshire County Council [(1995) 3 All ER 353] the House of Lords held that in
cases involving enactments providing a framework for promotion of social welfare
of the community, it would require exceptionally clear language to show a
parliamentary intention that those responsible for carrying out the duties
under such enactment should be liable in damages if they fail to discharge
their statutory obligations.
It was held: "....a
common law duty of care cannot be imposed on a statutory duty if the observance
of such a common law duty of care would be inconsistent with or have a tendency
to discourage the due performance of the statutory duties by the local
authority."In R v. Dy Governor of Parkhurst Prison (Ex.P.Hague) - [(1991)
3 All ER 733], the House of Lords held that the legislature had intended that the
Prisons Act, 1952 should deal with the administration and management of
prisons, but had not intended to confer on prisoners a cause of action in
damages.
The Prison Rules 1964
were regulatory in nature to govern prison regime, but not to protect prisoners
against loss, injury, or damage nor to give them any right of action.In John
Just v. Her Majesty The Queen -- (1989) 2 SCR 1228, the Canadian Supreme Court
considered the question whether the department of Highways is liable for
payment of damages to a person who was hit by a boulder on a highway on the ground
it was duty of the department to maintain the highway in a safe and secure
manner. The Canadian Supreme Court held: "Prior to the accident the practice
had been for the Department of Highways to make visual inspections of the rock
cuts on Highway.
These were carried
out from the highway unless here was evidence or history of instability in an area
in which case the rock engineer would climb the slope. In addition there were
numerous informal inspections carried out by highway personnel as they drove
along the road when they would look for signs of change in the rock cut and for
rocks in the ditch.......In order for a private duty to arise in this case, the
plaintiff would have to establish that the Rockwork Section, having exercised its
discretion as to the manner or frequency of inspection, carried out the inspection
without reasonable care or at all.
There is no evidence
or indeed allegation in this regard......I would therefore dismiss the
appeal." (emphasis supplied)In Roger Holland v. Government of Saskatchewan
& Ors. (2008) 2 SCR 551 the Canadian Supreme Court held: "The law to
date has not recognized an action for negligent breach of statutory duty. It is
well established that mere breach of a statutory duty does not constitute negligence:
The Queen in right of Canada v. Saskatchewan Wheat Pool (1983) 1 SCR 205. The proper
remedy for breach of statutory duty by a public authority, traditionally viewed,
is judicial review for invalidity."In Union of India v. United India
Insurance Co.Ltd. - (1997) 8 SCC 683 this Court held: ".......But in East
Suffolk Rivers Catchment Board v. Kent 1941 AC 74, Lord Romer had stated: Where
a statutory authority is entrusted with a mere power it cannot be made liable for
any damage sustained by a member of the public by reason of its failure to exercise
that power.
In Anns v.Merton
London Borough [1977 (2) All ER 492] this principle was somewhat deviated from.
As stated earlier the plaintiff in Anns had sued for losses to flats in a new block
which had been damaged by subsidence caused by inadequate foundations. The contention
that the Council was negligent in the exercise of statutory powers to inspect foundations
of new buildings giving rise to a claim for economic damage suffered was
upheld. This principle was however not accepted in Murphy 42 to the extent economic
looses were concerned.
According to Lord Hoffman,
Anns was not overruled in Murphy Brentwood District Council [1990 (2) All ER
908] so far as physical injury resulting from omission to exercise statutory powers
was concerned (p. 410). A duty of care at common law can be derived from the
authority's duty in public law to give proper consideration to the question"
whether to exercise power or not (p.411). This public law duty cannot by itself
give rise to a duty of care.
A public body almost always
has a duty in public law to consider whether it should exercise its powers but that
did not mean that it necessarily owed a duty of care which might require that the
power should be actually exercised. A mandamus could require future consideration
of the exercise of a power. But an action for negligence looked back at what
the authority ought to have done. Question is as to when a public law duty to consider
exercise of power vested by statute would create a private law duty to act, giving
rise to a claim for compensation against public funds '(p. 412). One simply
cannot derive a common law "ought" from a statutory "may".
The distinction made by
Lord Wilberforce in Anns between 'policy' and 'operations' is an inadequate tool
with which to discover whether it was appropriate to impose a duty of care or not.
But leaving that distinction, it does not always follow that the law should
superimpose a common law duty of care upon a discretionary statutory power (p.413).
Apart from exceptions relating to individual or societal reliance on exercise
of statutory power, - it is not reasonable to expect a service to be provided
at public expense and also a duty to pay compensation for loss occasion by failure
to provide the service. An absolute rule to provide compensation would increase
the burden on public funds. (emphasis supplied)
32. It is evident
from the decision of this Court as also the decisions of the English and
Canadian Courts that it is not proper to award damages against public authorities
merely because there has been some inaction in the performance of their
statutory duties or because the action taken by them is ultimately found to be
without authority of law. In regard to performance of statutory functions and duties,
the courts will not award damages unless there is malice or conscious abuse.
The cases where damages
have been 43awarded for direct negligence on the part of the statutory
authority or cases involving doctrine of strict liability cannot be relied upon
in this case to fasten liability against MCD or the Licensing Authority. The position
of DVB is different, as direct negligence on its part was established and it
was a proximate cause for the injuries to and death of victims.
It can be said that in
so far as the licensee and DVB are concerned, there was contributory
negligence. The position of licensing authority and MCD is different. They were
not the owners of the cinema theatre. The cause of the fire was not
attributable to them or anything done by them. Their actions/omissions were not
the proximate cause for the deaths and injuries. The Licensing Authority and
MCD were merely discharging their statutory functions (that is granting licence
in the case of licensing authority and submitting an inspection report or issuing
a NOC by the MCD).
In such circumstances,
merely on the ground that the Licensing Authority and MCD could have performed
their duties better or more efficiently, they cannot be made liable to pay
compensation to the victims of the tragedy. There is no close or direct
proximity to the acts of the Licensing Authority and MCD on the one hand and the
fire accident and the death/injuries of the victims. But there was close and
direct proximity between the acts of the Licensee and DVB on the one hand and
the fire accident resultant deaths/injuries of victims. In view of the well settled
principles in regard to public law liability, in regard to 44discharge of statutory
duties by public authorities, which do not involve malafides or abuse, the High
Court committed a serious error in making the licensing authority and the MCD
liable to pay compensation to the victims jointly and severally with the
Licensee and DVB. 33. We make it clear that the exoneration is only in regard
to monetary liability to the victims.
We do not disagree
with the observations of the High Court that the performance of duties by the
licensing authority and by MCD (in its limited sphere) was mechanical, casual
and lackadaisical. There is a tendency on the part of these authorities to deal
with the files coming before them as requiring mere paper work to dispose it.
They fail to recognize the object of the law or rules, the reason why they are
required to do certain acts and the consequences of non-application of mind or
mechanical disposal of the application/requests which come to them.
As rightly observed
by Naresh Kumar's report, there is a lack of safety culture and lack of the will
to improve performance. The compliance with the procedure and rules is
mechanical. We affirm the observations of the High Court in regard to the
shortcoming in the performance of their functions and duties by the licensing
authority and to a limited extent by MCD. But that does not lead to monetary
liability. 45Re: Questions (iii) and (iv)34. The licensee argued that the
entire liability should be placed upon the DVB. It was contended that DVB have
installed a transformer of a capacity of 1000 KV without obtaining the
statutory sanction/approval and without providing all the safety measures which
it was duty bound to provide under the relevant Electricity Rules, and therefore,
DVB alone should be responsible for the tragedy.
This contention has
no merit. In fact none in the main hall (ground floor of the theatre) died.
Those on the second floor also escaped. It is only those in the balcony caught
in noxious fumes, who died of asphyxiation. The deaths were on account of the
negligence and greed on the part of the licensee in regard to installation of
additional seats, in regard to closing of an exit door, parking of cars in front
of transformer room by increasing parking from 15 to 35 and other acts. We therefore
reject the contention that DVB should be made exclusively liable to pay the
compensation. We have already held that the Licensing Authority and MCD are not
liable.
Therefore, the liability
will be 85% (Licensee) and 15% (DVB). 35. We may next consider whether the
compensation awarded in this case is proper and in accordance with the principles
of public law remedy. As 46noticed above, the High Court has awarded
compensation to the legal heirs of 57 deceased victims at the rate of Rs.18 lakhs
where the deceased was aged more than 20 years and Rs.15 lakhs where the
deceased was aged 20 years or less. It awarded Rs.1 lakh for each of the 103
injured. In regard to the death cases, the High Court adopted the following rationale
: Each person who was sitting in the balcony class where the rate of admission
was Rs.50 per ticket, can be assumed to belong to a strata of society where the
monthly income could not be less than Rs.15,000. Deducting one-third for
personal expenses, the loss of dependency to the family would be Rs.10,000 p.m.
or Rs.120,000/- per annum.
Applying a common
multiplier of 5 in all cases where the deceased was more than 20 years, the
compensation payable would be Rs.18 lakhs. The High Court deducted Rs.3 lakhs and
awarded compensation at a flat rate of Rs.15,00,000/- where the deceased was 20
years or less. The High Court also awarded interest at 9% per annum on the
compensation amount from the date of filing of the writ petition (14.7.1997) to
the date of payment.
36. Having awarded
the said amounts the High Court proceeded to hold as follows : "97. We
have arrived at the compensation on the basis of our estimation of the income
of the victims of the unfortunate incident as we had no means to know their
exact income. We, therefore, leave it open to the injured as 47 well as
relatives of the deceased to claim compensation based on the exact income of
the victims by filing a suit or any other proceeding as may be permissible in law
and if a suit or any other proceedings claiming such compensation are initiated
within one year of this judgment, the same shall not be dismissed only on the
ground of limitation. The amount directed by us to be payable under this
judgment shall be adjusted against the amount which may ultimately be granted in
favor of such persons in the proceedings mentioned above."
37. The contention of
the Licensee is what could be awarded as a public law remedy is only a nominal
interim or palliative compensation and if any claimants (legal heirs of the deceased
or any injured) wanted a higher compensation, they should file a suit for
recovery thereof. It was contended that as what was awarded was an interim or palliative
compensation, the High Court could not have assumed the monthly income of each
adult who died as being not less than Rs.15,000 and then determining the
compensation by applying the multiplier of 15 was improper. This gives rise to the
following question : Whether the income and multiplier method adopted to finally
determine compensation can be arrived while awarding tentative or palliative
compensation by way of a public law remedy under Article 226 or 32 of the
Constitution?
37.1) Rudul Sah vs. State
of Bihar [1983 (4) SCC 141] was one of the earliest decisions where interim compensation
was awarded by way of 48public law remedy in the case of an illegal detention.
This Court explained the rationale for awarding such interim compensation thus:
"This order will not preclude the petitioner from bringing a suit to
recover appropriate damages from the state and its erring officials. The order
of compensation passed by us is, as we said above, in the nature of a palliative.
We cannot leave the petitioner penniless until the end of his suit, the many appeals
and the execution proceedings. A full-dressed debate on the nice points of fact
and law which takes place leisurely in compensation suits will have to await
the filing of such a suit by the poor Rudul Sah."
37.2) In Nilabati
Behera alias Lalita Behera vs. State of Orissa [1993 (2) SCC 746] this court
observed : "Therefore, when the court moulds the relief by granting
"compensation" in proceedings under Article 32 or 226 of the Constitution
seeking enforcement or protection of fundamental rights, it does so under the public
law by way of penalising the wrongdoer and fixing the liability for the public
wrong on the State which has failed in its public duty to protect the fundamental
rights of the citizen. The payment of compensation in such cases is not to be
understood, as it is generally understood in a civil action for damages under the
private law but in the broader sense of providing relief by an order of making
'monetary amends' under the public law for the wrong done due to breach of
public duty, of not protecting the fundamental rights of the citizen. The compensation
is in the nature of 'exemplary damages' awarded against the wrong doer for the
breach of its public law duty and is independent of the rights available to the
aggrieved party to claim compensation under the private law in an action based
on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute
the offender under the penal law."
37.3) In Sube Singh vs.
State of Haryana [2006 (3) SCC 178] this court held: "It is now
well-settled that award of compensation against the State is an appropriate and
effective remedy for redressal of an established 49 infringement of a
fundamental right under Article 21, by a public servant. The quantum of
compensation will, however, depend upon the facts and circumstances of each case.
Award of such compensation (by way of public law remedy) will not come in the way
of the aggrieved person claiming additional compensation in a civil court, in
the enforcement of the private law remedy in tort, nor come in the way of the
criminal court ordering compensation under Section 357 of Cr. PC. Award of compensation
as a public law remedy for violation of the fundamental rights enshrined in
Article 21 of the Constitution, in addition to the private law remedy under the
law of torts, was evolved in the last two-and-a-half decades."
38. Therefore what
can be awarded as compensation by way of public law remedy need not only be a
nominal palliative amount, but something more. It can be by way of making
monetary amounts for the wrong done or by way of exemplary damages, exclusive
of any amount recoverable in a civil action based on tortuous liability. But in
such a case it is improper to assume admittedly without any basis, that every
person who visits a cinema theatre and purchases a balcony ticket should be of
a high income group person. In the year 1997, Rs.15,000 per month was rather a
high income. The movie was a new movie with patriotic undertones.
It is known that
zealous movie goers, even from low income groups, would not mind purchasing a
balcony ticket to enjoy the film on the first day itself. To make a sweeping
assumption that every person who purchased a balcony class ticket in 1997
should have had a monthly income of Rs.15,000 and on that basis apply high
multiplier of 15 to determine the compensation at a uniform rate of Rs.18 lakhs
in the case of persons above the age of 20 years and Rs.15 lakhs for 50persons
below that age, as a public law remedy, may not be proper. While awarding
compensation to a large group of persons, by way of public law remedy, it will
be unsafe to use a high income as the determinative factor.
The reliance upon
Neelabati Behera in this behalf is of no assistance as that case related to a
single individual and there was specific evidence available in regard to the
income. Therefore the proper course would be to award a uniform amount keeping in
view the principles relating to award of compensation in public law remedy
cases reserving liberty to the legal heirs of deceased victims to claim additional
amount wherever they were not satisfied with the amount awarded.
Taking note of the facts
and circumstances, the amount of compensation awarded in public law remedy
cases, and the need to provide a deterrent, we are of the view that award of Rs.10
lakhs in the case of persons aged above 20 years and Rs.7.5 lakhs in regard to
those who were 20 years or below as on the date of the incident, would be
appropriate. We do not propose to disturb the award of Rs.1 lakh each in the
case of injured. The amount awarded as compensation will carry interest at the
rate of 9% per annum from the date of writ petition as ordered by the High
Court, reserve liberty to the victims or the LRs. of the victims as the case
may be to seek higher remedy wherever they are not satisfied with the compensation.
Any increase shall be borne by the Licensee (theatre owner) exclusively.
39. Normally we would
have let the matter rest there. But having regard to the special facts and
circumstances of the case we propose to proceed a step further to do complete
justice. The calamity resulted in the death of 59 persons and injury to 103 persons.
The matter related to a ghastly fire incident of 1997. The victims association has
been fighting the cause of victims for more than 14 years. If at this stage, we
require the victims to individually approach the civil court and claim
compensation, it will cause hardship, apart from involving huge delay, as the
matter will be fought in a hierarchy of courts. The incident is not disputed.
The names and identity of the 59 persons who died and 103 persons who were
injured are available and is not disputed. Insofar as death cases are concerned
the principle of determining compensation is streamlined by several decisions of
this court. (See for example Sarla Verma v. Delhi Transport Corporation (2009) 6
SCC 1
21. If three factors
are available the compensation can be determined. The first is the age of the
deceased, the second is the income of the deceased and the third is number of dependants
(to determine the percentage of deduction for personal expenses). For
convenience the third factor can also be excluded by adopting a standard
deduction of one third towards personal expenses. Therefore just two factors are
required to be ascertained to determine the compensation in 59 individual cases.
First is the annual income of the deceased, two third of which becomes the annual
loss of dependency the age of the deceased which will furnish the multiplier in
terms of Sarla Verma. The annual loss of dependency multiplied by the
multiplier will give the compensation.
40. As this is a comparatively
simple exercise, we direct the Registrar General of Delhi High Court to receive
applications in regard to death cases, from the claimants (legal heirs of the
deceased) who want a compensation in excess of what has been awarded that is Rs.10
lakhs/Rs.7.5 lakhs. Such applications should be filed within three months from
today. He shall hold a summary inquiry and determine the compensation. Any amount
awarded in excess of what is hereby awarded as compensation shall be borne
exclusively by the theatre owner. To expedite the process the concerned
claimants and the Licensee with their respective counsel shall appear before
the Registrar without further notice. For this purpose the claimants and the
theatre owner may appear before the Registrar on 10.1.2012 and take further
orders in the matter. The hearing and determination of compensation may be
assigned to any Registrar or other Senior Judge nominated by the Learned Chief Justice/Acting
Chief Justice of the Delhi High Court. As far as the injured are concerned if they
are not satisfied with the sum of Rs.1 lakh which has been awarded it is open
to them to approach the civil court for claiming higher compensation and if
they do so within 3 months from today, 53the same shall be entertained and
disposed of in accordance with law. It is not possible to refer the injury
cases for summary determination like death cases, as the principles are
different and determination may require a more detailed enquiry. Re: Punitive
damages
41. We may next deal
with the question of award of punitive damages of Rs.2,50,00,000/- against the licensee.
Before examining whether such punitive damages could be awarded at all, we have
to notice the apparent mistake in arriving at the sum of Rs.2.5 crores. The
High Court has stated that the licensee should be made liable to pay punitive
damages to the extent of profit which it would have earned by selling tickets in
regard to extra seats unauthorisedly and illegally sanctioned by the
authorities and installed by the Licensee. The High Court has not stated the
arithmetical calculation of arriving at Rs.2,50,00,000/- but it has indicated
that the said sum has been assessed as the income earned by them by selling
tickets for additional 250 seats between 1979 and 1996.
The High Court has
apparently calculated the ticket revenue at the rate of Rs.50/- per ticket for
52 additional seats for three shows a day to arrive at a sum of Rs.7,800/- per day.
For 17 years, this works out to Rs. Rs.4,83,99,000/-. Presumably, the High
Court deducted Rs. Rs.2,33,99,000/- towards entertainment tax etc., to arrive
at Rs.2.5 crores as 54profit from these additional seats. Initially the seats were
250. Forty three additional seats were sanctioned on 30.9.1976. Subsequently,
the additional seats were cancelled. However, the Delhi High Court permitted the
continuance of such number of seats which were permissible as per Rules.
Therefore, all the 52 seats cannot be held to be illegal.
What were illegal seats
were the 15 seats that were added by securing an order dated 4.10.1980. The
remaining 37 seats were found to be valid by the authorities. Therefore, if at
all the licensee is to be made liable to reimburse the profits earned from
illegal seats, it should be only in regard to these 15 seats and the eight
seats in the Box which was the cause for closing one of the exits. In so far as
the eight seats in the owner's box, though it is alleged that they were intended
to be used only as complimentary seats, for the purpose of award of punitive
damages, they are treated at par with other balcony seats.
The High Court also
wrongly assumed that the ticket value to be Rs.50/- from 1979 to 1996, because it
was Rs.50/- in the year 1997 for a balcony seat. Another erroneous assumption made
is that for all shows on all the days, all these additional seats would be
fully occupied. On a realistic assessment, (at a net average income of Rs.12/- per
seat with average 50% occupancy for 23 seats) the profits earned from these seats
for 17 years would at best Rs.25,00,000/-. Be that as it may.
42. We may next consider
the appropriateness and legality of award of punitive damages. In this context,
we may refer to the decision in M C Mehta vs. Union of India - 1987 (1) SCC 395
wherein this Court considered the question as to what should be the measure of
liability of an enterprise which is engaged in a hazardous or inherently dangerous
industry, if by reason of an accident occurring in such industry, persons die
or are injured. This Court held: "...In a modem industrial society with highly
developed scientific knowledge and technology where hazardous or inherently dangerous
industries are necessary to carry out part of the developmental programme.
This rule evolved in the
19th Century at a time when all these developments of science and technology
had not taken place cannot afford any guidance in evolving any standard of liability
consistent with the constitutional norms and the needs of the present day
economy and social structure. We need not feel inhibited by this rule which was
evolved in this context of a totally different kind of economy. Law has to grow
in order to satisfy the needs of the fast changing society and keep abreast with
the economic developments taking place in the country.
As new situations arise
the law has to be evolved in order to meet the challenge of such new situations.
Law cannot afford to remain static. We have to evolve new principles and lay
down new norms which would adequately deal with the new problems which arise in
a highly industrialized economy. We cannot allow our judicial thinking to be
constricted by reference to the law as it prevails in England or for the matter
of that in any other foreign country.
We no longer need the
crutches of a foreign legal order. We are certainly prepared to receive light from
whatever source it comes but we have to build up our own jurisprudence and we
cannot countenance an argument that merely because the new law does not
recognise the rule of strict and absolute liability in cases of hazardous or
dangerous liability or the rule as laid down in Rylands v. Fletcher as is developed
in England recognises certain limitations and responsibilities. We in India
cannot hold our hands back and I venture to evolve a new principle of liability
which English courts have not done.
We have to develop
our own law and if we find that it is necessary to construct a new principle of
liability to deal with an unusual situation which has arisen and which is
likely to arise in future on account of hazardous or inherently dangerous industries
which are concomitant to an industrial economy, there is no reason why we
should hesitate to evolve such principle of liability merely because it has not
been 56 so done in England.
We are of the view that
an enterprise which is engaged in a hazardous or inherently dangerous industry which
poses a potential threat to the health and safety of the persons working in the
factory and residing in the surrounding areas owes an absolute and non- delegable
duty to the community to ensure that no harm results to anyone on account of hazardous
or inherently dangerous nature of the activity which it has undertaken. The enterprise
must be held to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged must be conducted with the
highest standards of safety and if any harm results on account of such
activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all
reasonable care and that the harm occurred without any negligence on its
part...... ....
Such hazardous or
inherently dangerous activity for private profit can be tolerated only on condition
that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies
all those who suffer on account of the carrying on of such hazardous or inherently
dangerous activity regardless of whether it is carried on carefully or not. This
principle is also sustainable on the ground that the enterprise alone has the
resource to discover and guard against hazards or dangers and to provide
warning against potential hazards.
We would therefore
hold that where an enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to anyone on account of an accident in the operation
of such hazardous or inherently dangerous activity resulting, for example, in escape
of toxic gas the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not subject to any
of the exceptions which operate vis-a-vis the tortious principle of strict liability
under the rule in Rylands v. Fletcher (supra).
We would also like to
point out that the measure of compensation in the kind of cases referred to in
the preceding paragraph must be correlated to the magnitude and capacity of the
enterprise because such compensation must have deterrent effect. The larger and
more prosperous the enterprise the greater must be the amount of compensation payable
by it, for the harm caused on account of an accident in carrying on all the
hazardous or inherently activity by the enterprise."
43. What has been awarded
is not exactly punitive damages with reference to the magnitude or capacity of
the enterprise. All that the High Court pointed out was that the Licensee has installed
additional seats 57illegally. That illegality contributed to the cause for the
death and injuries, as they slowed down the exiting of the occupant's balcony. If
people could have got out faster (which they could have if the gangway was wider
as before, and if there had been two exits as before, instead of only one) many
would not have died of asphyxiation.
Therefore the Licensee
is not only liable to pay compensation for the death and injuries, but should,
in the least be denied the profits/benefits out of their illegal acts. In that
sense it is not really punitive, but a kind of negative restitution. We therefore
uphold in principle the liability of the Licensee to return and reimburse the profits
from the illegally installed seats, but reduce it from Rs.2.5 crores to Rs.25
lakhs for the reasons stated in the earlier para. The award of the said sum, as
additional punitive damages, covers two aspects. The first is because the
wrongdoing is outrageous in utter disregard of the safety of the patrons of the
theatre. The second is the gravity of the breach requiring a deterrent to
prevent similar further breaches. General observations and suggestions
44. The Parliament has
enacted the Disaster Management Act, 2005. Section 1(3) thereof provides that
it shall come into force on such dates as the Central Government may by
notification in the Official Gazette appoint; and different dates may be
appointed for different provisions of the Act for 58different States, and any reference
to commencement in any provisions of the Act in relation to any State shall be construed
as a reference to the commencement of that provision in that State.
All the provisions of
the Act have not been brought into effect in all the States. Having regard to the
object of the Act, bringing the Act into force promptly would be in public
interest. In so far as Delhi is concerned, by notification dated 19.3.2008, the
Government of NCT of Delhi has established the Delhi Disaster Management
Authority for the national capital territory of Delhi. A disaster management helpline
number has been made operational. Emergency operating centre and relief centres
have been established,
A State Disaster
Response Force has been established. Several volunteers have been given
training in disaster management. Attempts are being made to hold regular
mockdrills in regard to various types of disasters (like earthquakes, flood, fire,
road accidents, industrial and chemical disasters, terrorists attacks, gas
leaks etc.). Steps are taken to contact the public in regard to several natural
and man-made disasters. The key to successfully meeting the consequences of
disasters is preparedness.
There can be no
complacency. Human tendency is to be awake and aware in the immediate aftermath
of a disaster. But as the days pass, slowly the disaster management equipment and
disaster management personnel allowed to slip away from their readiness. Only
when the next disaster takes place, there is sudden awakening. In regard to 59preparedness
to meet disasters there could be no let up in the vigil. The expenditure required
for maintaining a high state of alert and readiness to meet disasters may appear
to be high and wasteful regarding `non-disaster periods' but the expenditure
and readiness is absolutely must. Be that as it may.
45. While affirming
the several suggestions by the High Court, we add the following suggestions to the
government for consideration and implementation :
(i) Every licensee (cinema
theatre) shall be required to draw up an emergency evacuation plan and get it approved
by the licensing authority.
(ii) Every cinema theatre
shall be required to screen a short documentary during every show showing the exits,
emergency escape routes and instructions as to what to do and what not to do in
the case of fire or other hazards. (iii) The staff/ushers in every cinema theatre
should be trained in fire drills and evacuation procedures to provide support
to the patrons in case of fire or other calamity.
(iv) While the theatres
are entitled to regulate the exit through doors other than the entry door,
under no circumstances, the entry door (which can act as an emergency exit) in
the event of fire or other emergency) should be bolted from outside. At the end
of the show, the ushers may request the patrons to use the exit doors by
placing 60 a temporary barrier across the entry gate which should be easily movable.
(v) There should be mandatory
half yearly inspections of cinema theatres by a senior officer from the Delhi
Fire Services, Electrical Inspectorate and the Licensing Authority to verify whether
the electrical installations and safety measures are properly functioning and
take action wherever necessary.
(vi) As the cinema
theatres have undergone a change in the last decade with more and more
multiplexes coming up, separate rules should be made for Multiplex Cinemas
whose requirements and concerns are different from stand-alone cinema theatres.
(vii) An endeavour should
be made to have a single point nodal agency/licensing authority consisting of experts
in structural Engineering/building, fire prevention, electrical systems etc. The
existing system of police granting licences should be abolished.
(viii) Each cinema theatre,
whether it is a multiplex or stand-alone theatre should be given a fire safety rating
by the Fire Services which can be in green (fully compliant), yellow (satisfactorily
compliant), red (poor compliance). The rating should be prominently displayed in
each theatre so that there is awareness among the patrons and the building
owners. (ix) The Delhi Disaster Management Authority, established by the Government
of NCT of Delhi may expeditiously evolve standards to manage the disasters relating
to cinema theatres and the guidelines in regard to ex gratia assistance. It
should be directed to conduct mock drills in each cinema theatre at least once
in a year.
Conclusions
46. In view of the
foregoing, we dispose of the appeals as follows: (i) CA Nos.7114-15 of 2003
filed by the Municipal Corporation of Delhi is allowed and that part of the
order dated 24.4.2003 of the Delhi High Court holding MCD jointly and severally
liable to pay compensation to the victims of the Uphaar Fire tragedy, is set
aside.(ii) CA No.7116 of 2003 filed by the Licensing Authority is allowed and
that part of the order dated 24.4.2003 of the Delhi High Court holding the
Licensing Authority jointly and severally liable to pay compensation to the
victims of the Uphaar Fire tragedy, is set aside.(iii) The writ petition filed by
the Victims Association on behalf of the victims, to the extent it seeks compensation
from MCD and Licensing Authority is rejected.
(iv) The licensee (appellant
in CA No.6748 of 2004) and Delhi Vidyut Board are held jointly and severally
liable to compensate the victims of the Uphaar fire tragedy. Though their
liability is joint and several, as between them, the liability shall be 85% on
the part the licensee and 15% on the part of DVB.(v) CA No.6748 of 2004 is
allowed in part and the judgment of the High Court is modified as under : 62(a)
The compensation awarded by the High Court in the case of death is reduced from
Rs.18 lacs to Rs.10 lacs (in the case of those aged more than 20 years) and Rs.15
lacs to Rs. 7.5 lacs (in the case of those aged 20 years and less). The said sum
is payable to legal representatives of the deceased to be determined by a brief
and summary enquiry by the Registrar General (or nominee of learned Chief
Justice/Acting Chief Justice of the Delhi High Court).
(b) The compensation
of Rs.One lakh awarded by the High Court in the case of each of the 103 injured
persons is affirmed.(c) The interest awarded from the date of the writ petition
on the aforesaid sums at the rate of 9% per annum is affirmed. (d) If the legal
representatives of any deceased victim are not satisfied with the compensation awarded,
they are permitted to file an application for compensation with supporting documentary
proof (to show the age and the income), before the Registrar General, Delhi High
Court. If such an application if filed within three months, it shall not be rejected
on the ground of delay.
The Registrar General
or such other Member of Higher Judiciary nominated by the learned Chief
Justice/Acting Chief Justice of the High Court shall decide those applications in
accordance with paras above and place the matter before the Division Bench of
the 63 Delhi High Court for consequential formal orders determining the final
compensation payable to them. (e) The injured victims who are not satisfied
with the award of Rs.One lakh as compensation, may approach the civil court in three
months, in which event the claims shall not be dismissed on the ground of
delay.(f) While disbursing the compensation amount, any ex gratia payment by the
Central Government/Delhi Government shall not be taken into account.
But other payments on
account shall be taken note of.(g) As a consequence, if DVB has deposited any
amount in excess it shall be entitled to receive back the same from any amount in
deposit or to be deposited. (h) The punitive damages ordered to be paid by the
Licensee, to the Union of India, (for being used for setting up a Central
Accident Trauma Centre) is reduced from Rs.2.5 crores to Rs.25 lakhs.(i) The decisions
of the High Court and this Court having been rendered in a public law
jurisdiction, they will not come in the way of any pending criminal proceedings
being decided with reference to the evidence placed in such proceedings. K. S.
Radhakrishnan J. 1. I fully endorse the reasoning as well as the conclusions
reached by my esteemed brother. All the same, I would like to add a few
thoughts which occurred to my mind on certain issues which arose for
consideration in these matters.
2. Private law causes
of action, generally enforced by the claimants against public bodies and individuals,
are negligence, breach of statutory duty, misfeasance in public office etc. Negligence
as a tort is a breach of legal duty to take care which results in damage or
injury to another. Breach of statutory duty is conceptually separate and
independent from other related torts such as negligence though an action for
negligence can also arise as a result of cursory and malafide exercise of statutory
powers. Right of an aggrieved person to sue in ordinary civil courts against the
State and its officials and private persons through an action in tort and the
principles to be followed in considering such claims are well settled and
require no further elucidation. We are in these appeals concerned with the
claims resulting in the death of 59 patrons and injury to 103 patrons in a fire
erupted at Uphaar Cinema Theater, South Delhi on 13.6.1997.
3. We are primarily concerned
with the powers of the Constitutional Courts in entertaining such monetary
claims raised by the victims against the violation of statutory provisions by licensing
authorities, licensees, and others affecting the fundamental rights guaranteed to
them under the Constitution. Constitutional Courts in such situations are expected
to vindicate the parties constitutionally, compensate them for the resulting
harm and also to deter future misconduct. Constitutional Courts seldom exercise
their constitutional powers to examine a claim for compensation, merely due to
violation of some statutory provisions resulting in monetary loss to the
claimants. Most of the cases in which Courts have exercised their constitutional
powers are when there is intense serious violation of personal liberty, right to
life or violation of human rights. But, even in private law remedy against the State
and its instruments they claim immunity on the plea that they are discharging
sovereign functions, even in cases where there is violation of personal
liberty.
4. This Court in State
of Rajasthan v. Vidyawati AIR 1962 SC 933, rejected claim of the State sovereign
immunity and upheld the award of compensation in tort for the death of a pedestrian
due to the rash and negligent driving of a Government jeep. In Kasturi Lal v. State
of U.P. AIR 1965 SC 1039, drawing distinction between sovereign and non- 66sovereign
functions, the apex Court rejected the plea of arrest in violation of the U.P.
Police Regulation on the ground that the arrest was made as a part of the
sovereign powers of the State. Kasturi Lal was a Constitution Bench judgment. However,
in N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663, a three Judge Bench of this
Court drew a distinction between the sovereign and non sovereign functions of
the State and held as follows:-
"No legal or
political system today can place the State above "Law" as it is unjust
and unfair for a citizen to be deprived of his property illegally when negligent
act by the officers of the State without any remedy. From sincerity, efficiency
and dignity of the State as a juristic person, propounded in the nineteenth
century as sound sociological basis for State immunity, the circle has gone
round and the emphasis is now more on liberty, equality and the rule of law. The
modern social thinking of progressive societies and the judicial approach is to
do away with archaic State protection and place the State or the Government on a
par with any other juristic legal entity. Any watertight compartmentalization of
the functions of the State as "sovereign and non- sovereign" or "governmental
and non-governmental" is not sound. It is contrary to modern jurisprudential
thinking.
The need of the State
to have extraordinary powers cannot be doubted. But with the conceptual change
of statutory power being statutory duty for the sake of the society and the
people, the claim of a common man or ordinary citizen cannot be thrown out,
merely because it was done by an Officer of the State even though it was
against law and negligent. Needs of the State; duty of its officials and right
of the citizens are required to be reconciled, so that the rule of law in a
Welfare State is not shaken". The Court further held: "The determination
of vicarious liability of the State being linked with the negligence of his
officers, if they can be sued personally for which there is no dearth of
authority and law of misfeasance in discharge of public duty having marched
ahead, there is no rationale for the proposition that even if the officer is
liable, the State cannot be sued."
5. The Court further
opined that the ratio of Kasturi Lal is available to those rare and limited
cases where the statutory authority acts as a delegate of such functions for
which it cannot be sued in a court of law. The court opined that the same principle
would not be available in large number of other activities carried on by the State
by enacting a law in its legislative competence.
6. The general principle
of law enunciated in Rylands v. Fletcher, (1868) LR 3 HL 330, Donoghue v. Stevenson,
[1932] AC 562, however, still guides us. In several situations, where officials
are dealing with hazardous or explosive substance, the maxim re ipsa loquitor applies.
Reference may be made to the decision in Lloyde v. Westminster, [1972] All E.R.
1240, Henderson v. eHenry Jenkins & Sons, [1969] 2 All E.R. 756. Principles
laid down in Donoghue v. Stevenson, which highlighted the neighbour principle
as a test to determine whether a potential duty of care exists, however is held
to be not applicable to all fact situations.
Lord Weilberfoce enunciated
a dual test in Anns v. Merton London Borough Council [1978] AC 728, of existence
of proximity and reasonable foreseeability and a failure to take care that causes
harm to the claimant. The House of Lords, however, in Murphy v. Brentwood Dsitrict
Council [1990] 3 WLR 414, however, overruled Anns on the ground that there was 68no
duty to take care on the legal authority to prevent power economic loss
occurring. House of Lords, however, in Caparo Industries plc v. Dickman [1990]
2 AC 605 = 1990 All E.R. 568 laid down three tests i.e. the claimants must show
that harm was reasonably foreseeable, the relationship between the parties was
proximate and that the imposition of liability would be just, fair and
reasonable.
Later in X (Minors) v.
Bedfordshire County Council, [1995] 2 A.C. 633, Lord Browne-Wilkinson stated
that an administrative act carried out in the exercise of a statutory
discretion can only be actionable in negligence if the act is so unreasonable
that it falls outside the proper ambit of that discretion. In effect, this
would require that the act to be unlawful in the public law sense under the Wednesbury
principle. House of Lords further held in Barrett v. Enfield London Borough Council
[2001] 2 AC 550 that where a plaintiff claims damages for personal injuries which
he alleges have been caused by decisions negligently taken in the exercise of a
statutory discretion, and provided that the decisions do not involve issues of
policy which the courts are ill-equipped to adjudicate upon, it is preferable
for the courts to decide the validity of the plaintiff's claim by applying
directly the common law concept of negligence than by applying as a preliminary
test the public law concept of Wednesbury unreasonableness to determine if the
decision fell outside the ambit of the statutory discretion.
7. Later, House of
Lords speaking through Lord Slynn stated as follows: "the House decided in
Barrett v Enfield London Borough Council (supra) that the fact that acts which are
claimed to be negligent are carried out within the ambit of a statutory discretion
is not in itself a reason why it should be held that no claim for negligence can
be brought in respect of them. It is only where what is done has involved the
weighing of competing public interests or has been dictated by considerations
on which Parliament could not have intended that the courts would substitute
their views for the views of Ministers or officials that the courts will hold the
issue is non-justiciable on the ground that the decision was made in the exercise
of a statutory discretion." Both Barrett and Phelps, it may be noted, have
highlighted the fact that a public body may be liable for acts done which fell
within its ambit of discretion without the claimant also having to show that
the act done was unlawful in the public law sense, so long as the decision
taken or act done was justiciable.
8. Above decisions
would indicate that in England also there is a lot of uncertainty when claims
are raised against public bodies for negligence or violation of statutory
duties. It is worth noticing that the Law Commission, U.K. in its consultation paper
on "Administrative Redress" proposed that Judges should apply a `principle
of modified corrective justice' when 70deciding negligence claims against public
bodies. (Law Commission Consultation Paper No.187 (2008). The Law Commission consequently
proposed the introduction of a new touchstone of liability: `serious fault'.
The Law Commission's most far-reaching reform proposals relate to "court
based redress" which suggests `the creation of a specific regime for
public bodies' based around a number of common elements such as Judges would
apply a standard of `serious fault' in both judicial review and negligence
proceedings.
9. Richard Mullender in
an essay on Negligence, Public Bodies and Ruthlessness which appeared in
"The Modern Law Review" (2009) 72 (6) MLR 961-98, argues for a reform
of negligence law (as it applies to public bodies) that is different from that
proposed by the Law Commission, such as application of the proportionality
principle at the third stage of the duty of care test applied in Caparo
Industries case.
10. Development
taking place in U.K. has been highlighted only to show the uncertainty that one
faces while deciding claims against public bodies and its officials. But when
we look at the issues from the point of violation of fundamental rights, such
as personal liberty, deprivation of life etc., there is unanimity in approach by
the Courts in India, U.K. and U.S.A. and various other countries, that the
Constitutional Courts have a duty to protect 71those rights and mitigate the
damage caused. Violation of such rights often described as constitutional
torts.
11. The concept of
Constitutional Tort and Compensatory jurisprudence found its expression in Devaki
Nandan Prasad v. State of Bihar 1983 (4) SCC 20 where the petitioner's claim
for pension was delayed for over twelve years. This Court awarded Rs.25,000/- as
against authorities after having found that the harassment was intentional, deliberate
and motivated. Liability to compensate for infringement of fundamental rights
guaranteed under Article 21 was successfully raised in Khatri & Others v. State
of Bihar & Others (1981) 1 SCC 627 (Bhagalpur Blinded prisoners case). In Rudal
Shah v. State of Bihar, (1983) 4 SCC 141, this Court found that the petitioner's
prolonged detention in the prison after his acquittal was wholly unjustified
and illegal and held that Article 21 will be denuded of its significant content
if the power of the Supreme Court was limited to passing orders of release from
illegal detention. Court ordered that to prevent violation of that right and
secure due compliance with the mandate of Article
21, it has to mulct
its violators in the payment of monetary compensation. Court held that right to
compensation is thus some palliative for the unlawful acts of instrumentalities
of the State which act in the name of public interest and which present for their
protection the powers of the State as shield. 72Reference may also be made to
the judgments of this Court in Sebastian M. Hongray v. Union of India, AIR 1984
SC 1026, Bhim Singh v. State of J. & K. (AIR 1986 SC 494), Saheli v.
Commissioner of Police, Delhi, (AIR 1990 SC 513), Inder Singh v. State of
Punjab (AIR 1995 SC 1949), Radha Bai v. Union Territory of Pondicherry AIR 1995
SC 1476, Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), Delhi
Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, Gudalure M.J.
Cherian v. Union of India 1995 Supp (3) SCC 387, Sube Singh v. State of Haryana
2006 (3) SCC 178 etc. Specific reference may be made to the decision of this
Court in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), wherein this
Court held that the concept of sovereign immunity is not applicable to the cases
of violation of fundamental rights and summarized as follows:
"A claim in
public law for compensation for contravention of human rights and fundamental freedoms,
the protection of which is guaranteed in the Constitution is an acknowledged
remedy for enforcement and protection of such rights, and such a claim based on
strict liability made by resorting to a constitutional remedy provided for the
enforcement of a fundamental right is distinct from, and in addition to, the
remedy in private law for damages for the tort resulting from the contravention
of the fundamental right.
The defence of
sovereign immunity being inapplicable, and alien to the concept of guarantee of
fundamental rights, there can be no question of such a defence being available in
the constitutional remedy. It is this principle which justifies award of monetary
compensation for contravention of fundamental rights guaranteed by the Constitution
when that is the only practicable mode of redress available for the contravention
made by the State or its servants in the purported exercise of their powers, and
enforcement of the fundamental right is claimed by resort to the remedy in public
law under the Constitution by recourse to Articles 32 and 226 of the Constitution."
12. Courts have held
that due to the action or inaction of the State or its offices, if the
fundamental rights of a citizen are infringed then the liability of the State, its
officials and instrumentals is strict. Claim raised for compensation in such a
case is not a private law claim for damages, under which the damages
recoverable are large. Claim made for compensation in public law is for compensating
the claimants for deprivation of life and personal liberty which has nothing to
do with a claim in a private law claim in tort in an ordinary civil court.
13. This Court in Union
of India v. Prabhakaran (2008) (9) SCC 527, extended the principle to cover
public utilities like the railways, electricity distribution companies, public
corporations and local bodies which may be social utility undertakings not
working for private profit. In Prabhakaran (supra) a woman fell on a railway track
and was fatally run over and her husband demanded compensation. Railways argued
that she was negligent as she tried to board a moving train. Rejecting the plea
of the Railways, this Court held that her "contributory negligence" should
not be considered in such untoward incidents - the railways has "strict
liability".
A strict liability in
torts, private or constitutional do not call for a finding of intent or
negligence. In such a case highest degree of care is expected from private and public
bodies especially when the conduct causes physical injury or 74harm to persons.
The question as to whether the law imposes a strict liability on the state and
its officials primarily depends upon the purpose and object of the legislation
as well. When activities are hazardous and if they are inherently dangerous the
statute expects highest degree of care and if someone is injured because of
such activities, the State and its officials are liable even if they could
establish that there was no negligence and that it was not intentional.
Public safety
legislations generally falls in that category of breach of statutory duty by a public
authority. To decide whether the breach is actionable, the Court must generally
look at the statute and its provisions and determine whether legislature in its
wisdom intended to give rise to a cause of action in damages and whether the
claimant is intended to be protected.
14. But, in a case,
where life and personal liberty have been violated the absence of any statutory
provision for compensation in the Statute is of no consequence. Right to life
guaranteed under Article 21 of the Constitution of India is the most sacred right
preserved and protected under the Constitution, violation of which is always actionable
and there is no necessity of statutory provision as such for preserving that
right. Article 21 of the Constitution of India has to be read into all public safety
statutes, since the prime object of public safety legislation is to protect the
individual and to compensate him for the loss suffered.
Duty of care expected
from State or its officials functioning under the public safety legislation is,
therefore, very high, compared to the statutory powers and supervision expected
from officers functioning under the statutes like Companies Act, Cooperative
Societies Act and such similar legislations. When we look at the various
provisions of the Cinematographic Act, 1952 and the Rules made thereunder, the
Delhi Building Regulations and the Electricity Laws the duty of care on
officials was high and liabilities strict. CONSTITUTIONAL TORTS - MEASURE OF
DAMAGES
15. Law is well settled
that a Constitutional Court can award monetary compensation against State and its
officials for its failure to safeguard fundamental rights of citizens but there
is no system or method to measure the damages caused in such situations. Quite often
the courts have a difficult task in determining damages in various fact situations.
The yardsticks normally adopted for determining the compensation payable in a
private tort claims are not as such applicable when a constitutional court
determines the compensation in cases where there is violation of fundamental rights
guaranteed to its citizens. In D.K. Basu vs. Union of India (1997) 1 SCC 416, a
Constitution Bench of this Court held that there is no strait jacket formula
for computation of damages and we find that there is no uniformity or yardstick
followed in awarding damages for violation of fundamental rights.
In Rudal Shah's case (supra)
this Court used the terminology "Palliative" for measuring the
damages and The formula of "Ad hoc" was applied in Sebastian
Hongary's case (supra) the expression used by this Court for determining the
monetary compensation was "Exemplary" cost and the formula adopted
was "Punitive" . In Bhim Singh's case, the expression used by the
Court was "Compensation" and method adopted was "Tortious
formula". In D.K. Basu v. Union of India (supra) the expression used by this
Court for determining the compensation was "Monetary Compensation". The
formula adopted was "Cost to Cost" method. Courts have not,
therefore, adopted a uniform criteria since no statutory formula has been laid
down.
16. Constitutional Courts
all over the world have to overcome these hurdles. Failure to precisely articulate
and carefully evaluate a uniform policy as against State and its officials
would at times tend the court to adopt rules which are applicable in private law
remedy for which courts and statutes have evolved various methods, such as loss
earnings, impairment of future earning capacity, medical expenses, mental and physical
suffering, property damage etc.
Adoption of those
methods as such in computing the damages for violation of constitutional torts may
not be proper. In Delhi 77Domestic Working Women's Forum v. Union of India (supra)
the apex Court laid down parameters in assisting the victims of rape including
the liability of the State to provide compensation to the victims and held as
follows :- "It is necessary, having regard to the directive principles contained
under Article 38(1) of the Constitution of India to set up Criminal Injuries
Compensation Board. Rape victims frequently incurred substantial financial loss.
Some, for example were
too traumatized to continue in employment. Compensation for victims shall be
awarded by the Court on conviction of the offender and by the Criminal Injuries
Compensation Board whether or not a conviction has taken place. The Board will take
into account the pain, suffering and shock as well as loss of earnings due to pregnancy
and the expenses of the child but if it is occurred as a result of rape."
17. Legal liability
in damages exist solely as a remedy out of private law action in tort which is
generally time consuming and expensive and hence when fundamental rights are violated
claimants prefer to approach constitutional courts for speedy remedy. Constitutional
courts, of course, shall invoke its jurisdiction only in extraordinary circumstances
when serious injury has been caused due to violation of fundamental rights
especially under Article 21 of the Constitution of India. In such circumstances
the Court can invoke its own methods depending upon the facts and circumstances
of each case. 78Constitutional Torts and Punitive Damages
18. Constitutional Courts'
actions not only strive to compensate the victims and vindicate the constitutional
rights, but also to deter future constitutional misconduct without proper
excuse or with some collateral or improper motive. Constitutional courts can in
appropriate cases of serious violation of life and liberty of the individuals award
punitive damages.
However, the same
generally requires the presence of malicious intent on the side of the wrong doer,
i.e. an intentional doing of some wrongful act. Compensatory damages are intended
to provide the claimant with a monetary amount necessary to recoup/replace what
was lost, since damages in tort are generally awarded to place the claimants in
the position he would have been in, had the tort not taken place which are generally
quantified under the heads of general damages and special damages.
Punitive damages are
intended to reform or to deter the wrong doer from indulging in conduct similar
to that which formed the basis for the claim. Punitive damages are not intended
to compensate the claimant which he can claim in an ordinary private law claim in
tort. Punitive damages are awarded by the constitutional court when the wrong doer's
conduct was egregiously deceitful. Lord Patrick Devlin in leading case on the point
Rookes v. Barnard [1964] All E.R. 367 delineated certain circumstances which
satisfy the test for awarding punitive damages such as the conduct must have
been oppressive, arbitrary, or unconstitutional, the conduct was calculated to
make profit for the wrong doer and that the statute expressly authorizes
awarding of punitive damages.
Above principles are,
however, not uniformly followed by English Courts though the House of Lords in a
decision in Attorney-General Vs. Blake [2001] 1 AC 268, awarded punitive
damages when it was found the defendant had profited from publishing a book and
was asked to give an account of his profits gained from writing the book. In
this case where the wrong doer was made to give up the profits made, through
restitution for wrongs, certainly the claimant gained damages. In United
States, in a few States, punitive damages are determined based on statutes. But
often criticisms are raised because of the high imposition of punitive damages by
courts.
The Supreme Court of United
States has rendered several decisions limiting the awards of punitive damages
through the due process of law clauses of the Fifth and Fourteenth Amendments. In
BMW of North America Inc. v. Gore 517 U.S. 559 (1996) the Court ruled that the
punitive damages must be reasonable, as determined based on the degree of
reprehensibility of the conduct, the ratio of punitive damages to compensatory
damages and any criminal or civil penalties applicable to the conduct. In
Philip Morris USA v. Williams 549 U.S. 346 (2007), the Court ruled that the
award of punitive damages cannot be imposed for the direct 80harm that the
misconduct caused to others, but may consider harm to others as a function of
determining how reprehensible it was.
There is no hard and fast
rule to measure the punitive damages to determine such a claim. In United
States in number of cases the Court has indicated that the ratio 10:1 or higher
between punitive and compensatory damages is held to be unconstitutional. Several
factors may gauge on constitutional court in determining the punitive damages such
as contumacious conduct of the wrong doer, the nature of the statute, gravity of
the fault committed, the circumstances etc. Punitive damages can be awarded
when the wrongdoers' conduct `shocks the conscience' or is `outrageous' or
there is a willful and `wanton disregard' for safety requirements. Normally,
there must be a direct connection between the wrongdoer's conduct and the
victim's injury. Need for legislation
19. Need for a
comprehensive legislation dealing with tortious liability of State, its instrumentalities
has been highlighted by this Court and the academic world on various occasions
and it is high time that we develop a sophisticated jurisprudence of Public Law
Liability.
20. Due to lack of
legislation, the Courts dealing with the cases of tortious claims against State
and his officials are not following a uniform pattern while deciding those claims
and this at times leads to undesirable consequences and arbitrary fixation of
compensation amount.
21. Government of India
on the recommendations of the first Law Commission introduced two bills on the
Government liability in torts in the years 1965-67 in the Lok Sabha but those
bills lapsed. In Kasturi Lal's case (supra), this Court has highlighted the
need for a comprehensive legislation which was reiterated by this Court in
various subsequent decisions as well.
22. Public
Authorities are now made liable in damages in U.K. under the Human Rights Act,
1998. Section 6 of the Human Rights Act, 1998 makes a Public Authority liable
for damages if it is found to have committed breach of human rights. The Court of
Appeal in England in Anufijeva Vs. London Borough Southwork 2004 (2) WLR 603, attempted
to answer certain important questions as to how the damages should be awarded for
breach of human rights and how should damages be assessed. Further, such claims
are also dealt by Ombudsmen created by various Statutes, they are independent and
impartial officials, who investigate compliance of the citizens in cases
mal-administration. The experience shows that majority of the Ombudsman's recommendations
are complied in practice, though they are not enforceable in Courts.
23. The European Court
of Justice has developed a sophisticated jurisprudence concerning liability in damages
regarding liability of public bodies for the loss caused by administrative
Acts. We have highlighted all these facts only to indicate that rapid changes
are taking place all over the world to uphold the rights of the citizens
against the wrong committed by Statutory Authorities and local bodies.
24. Despite the concern
shown by this Court, it is unfortunate that no legislation has been enacted to
deal with such situations. We hope and trust that utmost attention would be given
by the legislature for bringing in appropriate legislation to deal with claims in
Public Law for violation of fundamental rights, guaranteed to the citizens at
the hands of the State and its officials.
.................................J.
[R. V. Raveendran]
.................................J.
[K. S. Radhakrishnan]
New
Delhi;
October
13, 2011.
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