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TMI Blog2011 (10) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... which were extracted in detail in the judgment of the High Court. The theatre owner, Delhi Police and MCD have not accepted the judgment of HC and have filed these appeals. 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 awarded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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, 15,000 per month was rather a high income. 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 15,000 and on that basis apply high multiplier of 15 to determine the compensation at a uniform rate of 18 lakhs in the case of persons above the age of 20 years and 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, 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 50/- from 1979 to 1996, because it was 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 12/- per seat with average 50% occupancy for 23 seats) the profits earned from these seats for 17 years would at best 25,00,000/-. Be that as it may. 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[ 1986 (12) TMI 378 - SUPREME COURT] wherein this Court considered the question as to what should be the measure of liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and local bodies. 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. xxxx (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 at least 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 passag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncreasing 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 sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplated 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 free 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 Court Closing 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 fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in 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 Licensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, we 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 apportionm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 by the theatre owner and as a consequence they should have been exonerated. It was pointed out that under the Cinematog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there under 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 report whether prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewed 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 requirements. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder 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... would therefore dismiss the appeal. (Emphasis supplied) In Roger Holland v. Government of Saskatchewan and Ors. (2008) 2 SCR 551 the Canadian Supreme Court held: The law to date has not recognized an action for negligent breach of statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Re: 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, which died of asphyxiation. The deaths were on account of the negli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 v. State of Bihar 1983 (4) SCC 141 was one of the earliest decisions where interim compensation was awarded by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, ₹ 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 tic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 121. 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 multipli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the ticket revenue at the rate of ₹ 50/- per ticket for 52 additional seats for three shows a day to arrive at a sum of ₹ 7,800/- per day. For 17 years, this works out to Rs. ₹ 4,83,99,000/-. Presumably, the High Court deducted Rs. ₹ 2,33,99,000/- towards entertainment tax etc., to arrive at ₹ 2.5 crores as profit 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 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 abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Licensee has installed additional seats illegally. 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 ₹ 2.5 crores to ₹ 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 sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) The compensation awarded by the High Court in the case of death is reduced from ₹ 18 lacs to ₹ 10 lacs (in the case of those aged more than 20 years) and ₹ 15 lacs to ₹ 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 Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of 59 patrons and injury to 103 patrons in a fire erupted at Uphaar Cinema Theater, South Delhi on 13.6.1997. 49. 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 Ors. 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. 50. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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. 51. 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. 52. 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 and 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 54. 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 deciding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpensation. 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. Reference 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. and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 harm 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. 60. 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 conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 62. 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 Domestic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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 v. 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 State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated by this Court in various subsequent decisions as well. 68. 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 v. 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 complaints 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. 69. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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