TaxTMI 
TaxTMI 
2011 (10) TMI 712
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....hort '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 a....
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....censing 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 relief's as under: ....
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....er. 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 regarding 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....
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....idth 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. (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 ....
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....nsidered 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. ....
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....ioned 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 up to 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, ther....
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....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. Not 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 ....
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....ors 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 petition 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 and Bros. v. The Delhi Administra....
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....he 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....
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....h 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 o....
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....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....
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.... We will deal with questions (i) and (ii) together and questions (iii) and (iv) together as they are interconnected. Contentions of MCD 21. 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....
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....d 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 re....
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....ssociation 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 that 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 Authori....
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.... authority that 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 relie....
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....porary licences in spite 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 affe....
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.... 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 AC 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 e....
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....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 Company 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 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 exerc....
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....sing 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 Lice....
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....ng 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 noticed 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 15 in all cases where the deceased was more t....
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.... 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 v. 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 w....
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....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 persons 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 ....
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....at 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, the 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....
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.... 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 v. 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....
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.... 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....
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....erence 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....
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....sting 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....
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.... 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) are 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. Panicker Radhakrishnan J. 47. 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 matter....
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....e 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" ....
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....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 t....
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.... 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. 56. 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 those rights and mitigate the damage caused. Violation of such rights often described as constitutional torts. 57. 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 inten....
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.... 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. 58. 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 instrumentalities 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 ....
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....pensate 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 there under, the Delhi Building Regulations and the Electricity Laws the duty of care on officials was high and liabilities strict. CONSTITUTIONAL TORTS - MEASURE of DAMAGES 61. 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 gu....
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....rnings due to pregnancy and the expenses of the child but if it is occurred as a result of rape. 63. 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. Constitutional Torts and Punitive Damages 64. 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....
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.... the award of punitive damages cannot be imposed for the direct harm 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 65. 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 tim....