Bombay High Court
Rekha P. Thapar And 7 Ors vs State Of Maharashtra Through Sr. … on 10 June, 2025
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2025:BHC-OS:8463-DB
1-wp-659-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally
signed by
SMITA
SMITA RAJNIKANT
RAJNIKANT JOSHI
JOSHI Date:
WRIT PETITION NO.659 OF 2018
2025.06.10
16:05:58
+0530
1 Rekha P. Thapar ]
Age: 50 years, Occ: Housewife ]
of Mumbai Indian Inhabitant ]
residing at Bldg. No.12, Room No.547, ]
GTB Nagar, Sion Kolivada, ]
Mumbai 400 037. ]
2 Hedric Dsouza ]
Age: 59 years, Occ: Retired ]
of Mumbai Indian Inhabitant ]
residing at Sagittarius, C-706, Divya ]
Park, Jankalyan Nagar, Malad (W), ]
400 095. ]
3 Antony Xavier Fernando ]
of Mumbai Indian Inhabitant ]
Age: 54 years, Occu: Business, residing ]
at Room No.423, A/32, BMC Chawl, ]
Dr. Ambedkar Road, M.L. Camp, ]
Mumbai 400 019. ]
4 Sangeeta Kanaujia ]
of Mumbai Indian Inhabitant ]
Age: 29 years, Occ: Housewife ]
residing at A/203, Geeta Gayatri ]
Apt., Near Kalavati Mandir ]
old M. B. Estate, Near MGM School, ]
Virar (West) 401 303. ]
5 Jalil Ahmed Shaikh ]
of Mumbai Indian Inhabitant ]
Age: 52 years, Occ: Retired ]
residing at J/402, Premier Residences ]
Opp: Kohinoor Kamani, Kurla (W). ]
Mumbai 400 070. ]
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6 Mushtaque Shaikh ]
of Mumbai Indian Inhabitant ]
Age: 49 years, Occ: Business ]
residing at 38/A, Sami Compound, ]
Room No.6, M. P. Marg (Pipe Road), ]
Kurla (W), Mumbai 400 070. ]
7 Jacinta D'Souza ]
of Mumbai Indian Inhabitant ]
Age: 50 years, Occ: Service ]
residing at A3 Everard Nagar, ]
Eastern Express Highway, Sion, ]
Mumbai 400 022. ]
8 Ateeq Rehman Chaudhary ]
of Mumbai Indian Inhabitant ]
Age: 53 years, Occ: Scrap paper ]
Business, residing at Room No.203, ]
Nakhuda Chawl, Idgaah Road, ]
Bhiwandi - Thane. ] .. Petitioners.
Versus
1 State of Maharashtra ]
through Sr. Inspector of Police, ]
Investigation Officer, Vinoba Bhave ]
Police Station, Kurla (West), ]
Mumbai 400 070. ]
2 Mumbai Municipal Corporation ]
Mahapalika Marg, Mumbai 400 001. ]
3 Hindustan Petroleum Corporation Ltd., ]
L. U. Gadkari Marg, Behind H P Refinery ]
Chembur, Mumbai 400 074. ]
4 Municipal Commissioner, ]
Mumbai Municipal Corporation ]
Mahapalika Marg, Mumbai 400 001. ]
5 Adani Electricity Mumbai Limited ]
Santacrus (East), Mumbai 400 055. ]
6 Sudesha Mahabal Hegade ]
Age: 47 years, Occ: Owner of Kinara ]
Hotel, B/2, Premsagar Apartment, ]
Near Shital Cinema, L.B.S. Marg, ]
Kurla (West), Mumbai 400 070. ]
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7 Sharad Ramapati Tripathi ]
Age: 52 years, Occ: Conductor of ]
Kinara Hotel, 2/ Annsalam Lodge, ]
Premier Road, Opp: Sandip Hotel, ]
L.B.S. Marg, Kurla (W), Mumbai 400 070. ] ..
Respondents
Adv. Naushad Engineer, Sr. Advocate with Adv. Hasmit
Trivedi, Adv. Mehek Shah i/b. Jayesh Mestry, for the
Petitioners.
Ms. Purnima H. Kantharia, G. P. with Mr. Abhay L. Patki,
Addl. G. P. for Respondent No.1- State.
Mr. A. Y. Sakhare, Sr. Advocate with Adv. Yashodeep
Deshmukh, Adv. Jyoti Mhatre, Adv. Anuja Tirmali i/b. Adv.
Komal Punjabi, for Respondent Nos. 2 and 4 - MCGM.
Adv. S. R. Page with Adv. Eesha Jaifalkar, Adv. Archana
Joglekar, for Respondent No.3- HPCL.
Adv. Vighnesh Kamat with Adv. Satish Kamat, for Respondent
No.5.
Dr. Shailendra Gujjar, Medical Officer of Health (L Ward),
present in Court.
Mr. Vishal Ghagre, Investigation Officer (D.E. Cell), Enquiry
Department, present in Court.
CORAM: B. P. COLABAWALLA &
FIRDOSH P. POONIWALLA, JJ.
RESERVED ON: MARCH 24, 2025
PRONOUNCED ON: JUNE 10th, 2025
JUDGEMENT (Per FIRDOSH P. POONIWALLA,J.):
–
1. RULE. Rule made returnable forthwith and heard finally
by consent of the parties.
INTRODUCTION:-
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2 On 16th October, 2015, 8 young adults visited a
restaurant named Hotel City Kinara (herein after referred to as
“Kinara”) for lunch at 1.00 p.m.. They were made to sit on a table in
the loft area/ mezzanine floor of Kinara where food was served to
them. At about 1.20 p.m. a fire broke out in the loft area/ mezzanine
floor. The Fire Brigade came at around 1.36 p.m. However, tragically
all 8 young adults lost their lives. The names of these young adults,
the names of the Petitioners who are their parents/ widow and the
relation of each of the Petitioners to the deceased victims is set out
herein below:-
Petitioners Name of the Name of the deceased Relation to the
No. Petitioner victim Victim
1 Rekha P. Thapar Akash Thapar Mother
2 Hendric Dsouza Erwin Dsouza Father
3 Antony Fernando Brian Fernando Father
4 Sangeeta Kanaujia Arvind Kanaujia Wife
5 Jalil Ahmed Shaikh Sharjeel Shaikh Father
6 Musthaque Shaikh Taha Shaikh Father
7 Jacinta D’souza Bernadette D’souza Mother
8 Ateeq Rehman Sajid Chaudhary Father
Chaudhary
3 On 28th August, 2016, a complaint was filed before the
Lokayukta, Maharashtra State, seeking directions for investigation
into the fire incident and compensation to the families of the 8 young
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adults. By an Order dated 27 th February, 2017, the Lokayukta,
Maharashtra State, dismissed the complaint. As far as the claim for
compensation was concerned, it was recorded that, during the course
of hearing, it had transpired that compensation had already been
ordered to be paid to the families of the deceased persons who died
due to the accidental fire at Kinara. It was also recorded that the
compensation amount had already been credited to the account of
the Tahsildar, Kurla, who had been directed to take further steps. In
view thereof, the Lokayukta did not grant any compensation.
4 Being aggrieved by the Order dated 27 th February, 2017
passed by the Lokayukta, Maharashtra State, the Petitioners filed the
present Petition. When the present Petition came up for hearing on
20th August, 2019, this Court was pleased to pass the following
order:-
“2:- In view of the tragic loss of human lives, we would
like to consider the issues arising in the petition, in
particular whether compensation should be paid to the
family of the victims and whether the liability can be
attached to the municipal corporation for negligence or
disregard in discharge of its duties, if any, which may
have resulted into or led to the unfortunate incident.
Both the sides are put to notice that the petition will be
disposed off finally at this stage. Stand over to 17 th
September, 2019 at 03.00 p.m.”
(emphasis supplied)
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5 By virtue of the said Order dated 20 th August, 2019, and
which was not been challenged by any of the parties, the issue, as to
whether compensation has to be paid to the family of the victim and
whether any liability can be attached to Respondent No.2 (MCGM)
for negligence or disregard in discharge of its duties which may have
resulted into or led to the unfortunate incident, would have to be
considered by us in this Petition.
FACTS:-
6 Respondent No.6 is the owner of premises bearing Shop
No.1, Madhur Seth Chawl, Opposite Holy Cross School Gate, Premier
Road, Kurla (West), Mumbai 400 070.
7 In 2009-10, Respondent No.6 entered into an
Agreement with Respondent No.7 whereunder Respondent No.7
commenced the business of running a restaurant under the name
and style of “Hotel City Kinara”. Kinara consists of a ground floor
and a mezzanine floor. The restaurant had a narrow room on the
ground floor and 216 sq. ft on the mezzanine floor where it had
sitting place for 16 persons.
8 One Martin Matthews filed an Application dated 4 th
September, 2012 under the Right to Information Act, 2015 (“RTI
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Act”) with Respondent No.2, seeking certain information in respect
of Kinara.
9 During a routine inspection carried out on 13 th
September, 2012 [of Kinara], the Medical Officer of Health (MOH) of
Respondent No.2 found that Kinara was infringing various
conditions of its license. Amongst the infringements was that no
letter from the Chief Fire Officer granting permission for running the
restaurant was produced at the time of inspection. Further, it was
also found that the restaurant was using extra space outside the
licensed premises for preparation of eatables such as Chinese food.
Accordingly, the inspection report directed Respondent Nos. 6 and 7
to rectify the infringements and cautioned them that failing the
same, Respondent No.2 would take action under Section 394 of the
Mumbai Municipal Corporation Act, 1888 (“MMC Act“). What is
important to note is that this inspection report showed that
Respondent No.2 was aware since 13 th September, 2012 itself that
Kinara did not possess a Fire NOC. However, no action was taken by
Respondent No.2 in that regard.
10 Be that as it may, in response to the RTI Application
dated 4th September, 2012 filed by Martin Matthews, on 27 th
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September 2012, the MOH, ‘L’ Ward provided, inter alia, the
following information:-
(i) No licence had been granted to Kinara in respect of its
verandah;
(ii) The copies of the Police and the Chief Fire Officer’s NOC for
Kinara were not available;
(iii) No information was available regarding where and how many
gas cylinders were stored in Kinara;
(iv) No information was available regarding the water tanks in
Kinara; and
(v) No license had been granted to Kinara in respect of its
bathroom.
11 A complaint dated 22th October, 2012 was made to the
Senior Police Inspector, Vinoba Bhave Nagar Police Station, Kurla
(East), by Martin Matthews regarding, inter alia, the violations by
Kinara in cooking food outside the restaurant area and storing gas
cylinders. The said complaint categorically raised the issue of usage
of gas cylinders by Kinara and the risk of blast of the gas cylinders.
This complaint was forwarded by the Police to Respondent No.2.
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12 On 15th March, 2013, the Assistant Commissioner, ‘L’
ward, of Respondent No.2 held a hearing pursuant to the complaint
dated 22nd October, 2012 made by Martin Matthews. The minutes of
the said hearing recorded that during the meeting, the MOH, ‘L’
ward, of Respondent No.2 had submitted that during certain
previous routine inspections, his section had issued an Inspection
Report mentioning the infringements of the license conditions. The
MOH had also produced a Report from the Mumbai Fire Brigade
dated 5th December, 2012. Despite the same being brought to the
notice to the Assistant Commissioner of ‘L’ ward, he did not take the
complaint seriously, and, in fact, recorded that, with the available
machinery at the disposal of Respondent No.2, it would be a
herculean task to take action every now and then against such
establishments. At the said meeting, the MOH was directed to
urgently inspect the said eating house (Kinara), issue the necessary
Inspection Report and follow the Inspection Report logically to its
end in the future.
13 Accordingly, the MOH carried out another inspection of
Kinara on 20th March, 2013 and once again highlighted the
infringements of the license conditions, which included using extra
space outside the licensed premises for preparation of eatables such
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as Chinese food. Respondent Nos. 6 and 7 were again directed to
rectify the infringements of the license conditions within a period of
7 days, failing which, action would be initiated against them under
Section 394 of the MMC Act. However, no action was taken by
Respondent No.2 pursuant to the said Inspection Report dated 20 th
March, 2013.
14 On 2nd September, 2015, Respondent No.2 carried out a
3rd inspection of Kinara. The Inspection Report in respect of this
inspection set out the infringements of the license conditions by
Kinara. One of the said infringements was that the mezzanine floor
was found to be used for service purpose, when it was meant only for
storage purpose. It is to be noted that the said inspection was carried
out just one and a half months prior to the fire in Kinara, but again
no action was taken by Respondent No.2 pursuant to this Inspection
Report.
15 As mentioned earlier, on 16 th October, 2015, a fire broke
out at Kinara which tragically claimed the lives of the Petitioners’
children/ husband.
16 After the incident, a Fire Inspection Report was
prepared which stated the following as the supposed cause of fire:-
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1-wp-659-2018.doc” While all the above mentioned causes are
ruled out, the supposed cause of fire “Leaked &
accumulated L.P.Gas from the defective main
valve/ regulator assembly came in contact with
unknown ignition sources.” needs to be
examined. As stated by the eye witnesses, Origin
of fire (location) was on loft /mezzanine floor
containing combustible materials like wooden
table & chairs, plastic chair etc. The LPG
cylinders were kept on loft / mezzanine floor&
electrical switch board for loft / mezzanine floor
is located in its close vicinity (marking of the
electrical switch board could be easily seen on
wall near entrance door to balcony, same is
verified through C.C. TV footage recording
received from police personnel). The electrical
cable is routed very close to LPG cylinders Gas
Manifold installed in the balcony of loft /
mezzanine floor. As per the statement of the
witness no 1 & 3 at the initial stage, large flames &
thereafter dense Black smoke was started coming
out from the loft/mezzanine floor.
Considering the statement of eye witnesses, the
location of fire, and elimination process to rule
out other probable causes of fire as mentioned
above, the supposed cause of fire could not be
establish at this stage. However prima facia
probable cause of fire could be “Leaked &
accumulated L.P.Gas from the defective main
valve/ regulator assembly of L.P. Gas cylinder
(H.P.C.L. Co. Make) came in contact with
unknown ignition sources.”
(emphasis supplied)
17 The Fire Inspection Report also noted the following:-
“The loft mezzanine floor is used for dinning
purpose & balcony is used for storage purpose.
Party has installed water storage tank in the
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produce valid permission from competent
Municipal authority for the authenticity of the
loft/mezzanine floor.
d. Asst. Commissioner/A.E. (B. & F.), ‘L’- Ward,
requested to inspect the premises to check the
authenticity i.e. to check the relevant permissions
from competent Municipal Authority with respect
to loft / mezzanine floor & addition – alteration, if
any made in the premises etc. if party failed to
produce relevant permissions from competent
Municipal Authority action shall be initiated
deemed fit for the same.”
(emphasis supplied)
18 Respondent No.3 (Hindustan Petroleum Limited)
addressed a letter dated 20 th October, 2015 to the Senior Police
Inspector, Vinoba Bhave Nagar Police Station, stating that its officers
had visited Kinara and, upon inspection, it was observed that there
was no leakage of LPG.
19 On 28th October, 2015, Respondent No.1 recorded the
statement of one Mohd. H. Shamim Khan, a gas cylinder delivery
boy, who stated that he was providing one gas cylinder to Kinara
every alternate day. He also stated in his statement to the Police that
while supplying gas cylinders to Kinara, he would sometimes store
the gas cylinder on the loft and some times on the ground floor as
directed by the Seth of the hotel.
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20 On 31st October, 2015, the Bombay Fire Brigade issued
another report in respect of the fire at Kinara which, inter alia, stated
as under:-
” With reference to above subject this is to inform
you that on 16/10/2015 fire incident occurred at above
mentioned address. Fire was confined to wooden table
& chairs, plastic chairs, electric wiring, electric
installation, leaked & accumulated L.P. Gas etc. on 1 st
floor & in balcony. Fire was extinguished by the
personnel from Mumbai Fire Brigade.
Fire involved premises was inspected thoroughly from
fire investigation point of view it was observed that in
the 1st floor in balcony two L. P. Gas cylinders of H.P.C.L.
Co. having capacity 19 kg were found. One was empty &
another was filled connected to LPG manifold through
regulator & corrugated metal tube through substandard
regulator.
As per fire safety norms commercial cylinders of LPG
should not be permitted on upstairs. In this case
cylinders were kept at first floor balcony of restaurant.
It is learnt from police personnel that the manager of
M/s. Laxmi Gas Agency, Kurla (East) has agreed that
M/s. Laxmi Gas Agency (H.P.C.L. Co. Distributer), Kurla
(East) supplying refilled H.P.C.L. LPG Cylinder to the
City kinara restaurant (Premiere lunch Home). Police
personnel are investigating the matter in detail.”
(emphasis supplied)
21 In November/ December 2015, a representative from the
office of the Collector, Bombay, handed over a cheque of Rs.1 lakh to
each of the Petitioners as ex-gratia compensation.
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22 By a letter dated 14th December, 2015 addressed to the
Police Inspector of Vinoba Bhave Nagar Police Station, Respondent
No.3 (Hindustan Petroleum Ltd.) once again contended that there
was no evidence to suggest that the cause of fire was because of a
leakage of LPG. Respondent No.3 stated that the mention of LPG
leakage as cause of the fire should be dropped from the FIR.
23 The Electrical Inspector (Santacruz Inspection
Department, Industry, Energy and Labour Department,Bandra) of
Respondent No.1 addressed a letter dated 8th January, 2016 to the
Police Inspector of Vinoba Bhave Police Station, stating that due to
the fire that took place on the first floor of Kinara, the electrical set
up at the said place had been completely burned out. Therefore, it
was not possible to make any type of electrical inspection at the said
place. Therefore, he was unable to say as to whether the fire took
place due to some electrical reasons or otherwise.
24 By a letter dated 30 th March, 2016, the Public
Information Officer of the Bombay Fire Brigade informed Nicholas
Almeida of Watchdog Foundation, in response to a RTI application,
that, as per the records of the Fire Department, no fire NOC had
been given to Kinara.
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25 Further, by a letter dated 5th April, 2016, addressed to
Mr. Godfrey Pimenta of Watchdog Foundation, Respondent No.3,
pursuant to an RTI enquiry, informed him that, as per its records,
Kinara was not a registered customer of M/s. Laxmi Gas Agency,
Kurla (East), Mumbai, which supplied gas cylinders to Kinara.
26 On 1st June, 2016, the Deputy Municipal Commissioner
of Respondent No.2 issued show cause notices against (i) Rajendra
Rathod – Jr. Engineer (B & F); (ii) Vijay J. Chavan, Sanitary
Inspector of ‘L’ ward from 2011 to 3 rd June, 2015; (iii) Deepak
Bhurke, Sanitary Inspector of ‘L’ ward after Vinod J. Chavan and
(iv) Tulsiram Waghvale – Mukadam.
27 On 28th August, 2016, the Petitioners and Watchdog
Foundation filed a complaint before the Lokayukta, Maharashtra
State, seeking a proper investigation into the incident and grant of
compensation to the Petitioners for the loss of lives in the tragedy.
28 Pursuant to the departmental enquiry made by it,
Respondent No.2 issued a Report dated 19 th January, 2017. The said
Report includes various findings against the said officials of
Respondent No.2 to whom Show Cause Notices had been issued. As
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far as Deepak Bhurke, Sanitary Inspector, was concerned, it was
noted that he deliberately suppressed the fact that LPG gas cylinders
were being stored on the loft area in Kinara. It was held that the
charge stood proved and he was held guilty of breach of duty,
particularly because the aforesaid inspection conducted by him was
only one and a half months before the incident. Pertinently, during
the enquiry, an issue arose as to how Kinara would have been
granted an eating house license without a fire NOC. In this context,
the Report (as translated into English) stated as under:-
“As per the Fire Brigade Department’s questioners
submitted on 26.10.2015 (Q. No. 3) and as per the
questioners submitted by the Building and Factory
Department on 27.10.2015 ( Q. No. 10) it was
mentioned that it is necessary to obtain No
Objection Certificate of said Fire Brigade
Department and Building and Factory Department
at the time of issuance of the license to the said
City Kinara Premier Lunch Home Establishment
on 04.01.1995 and it is seen that the Medical
Health Officer had issued the permission to the
said establishment without obtaining NOC from
the Fire Brigade Office and Building and Factory
Department. The said fact is committing the
breach of the rules for issuance of license and
hence possibility cannot be denied that the
Medical Health Officer L Ward may have
intentionally lost the said original file / paper /
documents / plan.”
(emphasis supplied).
29 Further, though the MOH was not the subject of the
departmental enquiry, a specific direction was given to confirm the
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records/ register of MOH ‘L’ Ward and to initiate action as per Rules
and Regulations by inspection as to whether the issued license to
Kinara by the MOH ‘L’ ward is just and proper, and if any
irregularities are found in this regard. Despite the aforesaid specific
findings of the departmental enquiry, no action was taken against the
MOH by Respondent No.2.
30 The Deputy Commissioner (Zone 5) of Respondent No.2
passed an Order dated 27th January, 2017, accepting the
Departmental Enquiry Report dated 19th January, 2017. Further,
additional observations were made to the effect that the loft area of
Kinara was being used as a service area instead of a store room and
that, as per the Rules of the Health Department, it was not
permissible to have a loft above the kitchen.
31 As stated herein above, by an Order dated 27th February,
2017 passed by the Lokayukta, Maharashtra State, the complaint of
the Petitioners was dismissed.
32 By an Order dated 15th March, 2017, the Assistant Chief
Officer (Inquiry) of Respondent No.2 also confirmed the findings/
observations contained in the Report dated 19 th January, 2017 and
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recommended punishment in accordance with Section 83 of the
MMC Act. The Assistant Chief Officer (Inquiry), additionally
recorded as under:
(i) The Fire Brigade had found that LPG cylinders were kept on
the upper floor of Kinara. It was the duty of the Cleanliness
Inspectors (viz. Deepak Bhurke and Vinod Chavan) to inspect
and initiate action against Kinara in respect of such
irregularity;
(ii) Respondent Nos. 6 and 7 were regularly violating Rules and
Regulations and it was necessary on the part of the Cleanliness
Inspector to frequently visit Kinara and initiate action.
33 Thereafter, Deputy Commissioner (Zone 5) of
Respondent No.2 passed an Order dated 22 nd March, 2017 imposing
a monetary penalty of Rs.70,000/- on the Cleanliness Inspectors, viz.
Deepak Bhurke and Vinod Chavan. Their suspension duration was
considered as “excusable”. Despite the conclusive findings against
them in the Report dated 19 th January, 2017, the Cleanliness
Inspectors were not dismissed. The other officers, namely –
Rajendra Rathod (Jr. Engineer) and Tulsiram Waghvale (Mukadam),
against whom charges were purportedly not proved, were deputed to
service immediately.
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34 From the aforesaid, it is clear that Respondent No.2’s
officers faced no real consequence for their negligence in preventing
the fire at Kinara and the deaths of the Petitioners’
children/husband.
35 On 12th January, 2018, the present Petition was filed.
36 Pursuant to the filing of the present Petition, MOH, ‘L’
ward, addressed a letter to 18 different departments of Respondent
No.2 in ‘L’ ward as well to 23 Health Officer of 23 different wards,
calling upon them to search their records for the original file of
Kinara, since the same was untraceable by the MOH, ‘L’ ward. None
of Respondent No.2’s departments or Health Officers have
responded to the aforesaid letters.
37 The MOH, ‘L’ ward, addressed a letter dated 12 th July,
2017 to the Senior Inspector of Police of Respondent No.1,
requesting to file an FIR against the Public Information Officer of ‘L’
ward. This request was made since the Public Information Officer
had stated in response to a RTI application filed by one Vijay
Manthena, on 26th October, 2015, that the file of permissions in
respect of Kinara was untraceable.
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38 In the aforesaid context, it is important to note that, as
of 19th August, 2019, i. e. nearly about four years after the tragedy at
Kinara, the enquiry against the Public Information Officer still
remains pending. The belated nature of Respondent No.2’s enquiry
is all the more appalling since this was not for the first time that the
Public Information Officer of the Health Department, ‘L’ ward, had
refused to give information on the ground of unavailability of files.
As far back in September, 2012, even before the fire broke out at
Kinara, the Public Information Officer had, in response to a RTI
application made by Martin Matthews, stated that the permissions
pertaining to Kinara were not available with it. At that time, no
action, whatsoever, were taken to locate the files or hold the
concerned officials responsible. More importantly, findings have
been rendered in Respondent No.2’s own departmental enquiry that
the MOH may have deliberately misplaced the files to conceal his
wrongdoings. Instead of acting upon these findings and uncovering
the actual perpetrator behind the missing files, Respondent No.2 was
merely penalizing the Public Information Officer.
39 The MOH ‘L’ ward addressed a letter dated 6th August,
2019 to the Mumbai Fire Brigade, requesting for a certified copy of
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the fire NOC granted to Kinara. This request was made since the file
had been ‘misplaced’ by Respondent No.2’s Health Department at
‘L’ ward. Similarly, another letter dated 6 th August, 2019 was
addressed by the MOH, ‘L’ ward, to the Building and Factories
Department, requesting for a certified copy of the permission
granted by it to Kinara.
40 By a letter dated 7th August, 2019, the Mumbai Fire
Brigade responded to the letter dated 6th August, 2019, reiterating
that no fire NOC in respect of Kinara was found on the records of the
Mumbai Fire Brigade.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:-
41 In this factual backdrop, Mr. Naushad Engineer, the
learned Senior Counsel appearing on behalf of the Petitioners, relied
upon the aforesaid facts and submitted that a higher standard of care
was imposed on Respondent No. 2 in matters concerning public
safety. Mr. Engineer submitted that Respondent No.2 owed a duty to
the members of the public (including the Petitioners’ children/
husband) to ensure that public safety legislations are effectively
implemented. Mr. Engineer submitted that, in matters concerning
public health and safety, the standard of care imposed on the public
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authorities is even higher. In this context, Mr. Engineer relied upon
the judgements of the Hon’ble Supreme Court in MCD v/s. Uphaar
Tragedy Victims Association, (2011) 14 SCC 481 and Sanjay Gupta
v/s. State of UP (2022) 7 SCC 203.
42 Mr. Engineer submitted that the supervision and
maintenance of adequate fire prevention measures in places of public
entertainment, such as eating houses, is the statutory duty of
Respondent No.2. Mr. Engineer submitted that since this duty
pertains to public safety, higher standard of care is imposed upon
Respondent No.2 and its officials. Mr. Engineer submitted that, it is
in this backdrop, that the degree of Respondent No. 2’s negligence is
to be ascertained.
43 Mr. Engineer further submitted that there was gross
negligence on the part of Respondent No.2 in discharge of its duties,
despite complaints and known breaches. Mr. Engineer submitted
that, in the present case, Respondent No.2 received complaints,
carried out inspections and was fully aware of fire safety violations
committed in Kinara. Despite being aware of such violations,
Respondent No.2 did not take any action against Kinara.
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44 Mr. Engineer submitted that the breaches committed by
Kinara are as under:-
(i) use of loft area/ mezzanine floor for serving patrons;
(ii) operation of the restaurant without fire NOC;
(iii) use of LPG cylinders without license and storage of the same in
the loft area / mezzanine floor; and
(iv) cooking outside the restaurant premises.
45 Mr. Engineer further submitted that, in the present case,
there has been an utter and gross failure of discharge of statutory
duties by Respondent No.2 and its officials. Mr. Engineer submitted
that Respondent No.2 was guilty of the following breaches towards
its statutory duties:- (i) Respondent No.2’s officials did not regularly
inspect Kinara, (ii) Respondent No.2 did not act on the complaint
and inspection reports, and (iii) Respondent No.2 did not cancel
Kinara’s eating house license.
46 Mr. Engineer further submitted that Respondent No.2’s
conduct, particularly in (i) issuing a eating house license without a
fire NOC in place; (ii) taking no action despite having noted the fire
hazards in its inspections; (iii) failing to remove LPG cylinders on
the mezzanine floor/ loft area of Kinara and (iv) allowing Kinara to
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serve patrons on the mezzanine floor / loft area; shows a complete
breach of its statutory duties.
47 Mr. Engineer submitted that Respondent Nos.2′ s
negligence has a proximate cause to the tragic fire in Kinara and,
therefore, Respondent No.2 can and should be held liable. In this
context, Mr. Engineer submitted that Respondent No.2 and its
officials were grossly negligent in (i) granting the eating house
license to Kinara despite the fire NOC and other NOCs not having
been obtained; (ii) failing to act on the complaints about the
illegalities being committed in Kinara; (iii) failing to take action
pursuant to 3 inspections wherein it was specifically noted that (a)
Kinara did not have a fire NOC; (b) the mezzanine floor was illegally
being used for service; and (c) it was storing LPG cylinders without a
license.
48 Mr. Engineer submitted that it is only due to the
negligence on the part of Respondent No.2, in matters of public
health and safety, as also the failure to act timely, that the fire took
place, and which could have been entirely prevented had Respondent
No.2 taken the necessary action.
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49 In this context, Mr. Engineer relied upon a Division
Bench decision of this Court in Tri-Sure India Ltd., v/s. A. F.
Ferguson and Co., (1985) SCC Online Bom 342. Mr. Engineer
submitted that the ‘but for’ test which has been laid down in the
said decision was squarely met in the facts of the present case. Mr.
Engineer submitted that had Respondent No.2 promptly discharged
its statutory duties by acting upon the fire safety violations,
cancelling Kinara’s license under Section 479 of the MMC Act,
seizing the LPG cylinders under Section 394 of the MMC Act and
preventing the use of the mezzanine floor/ loft area for serving
patrons, the fire would not have occurred, and in any event, no lives
would have been lost. Mr. Engineer submitted that Respondent
No.2’s officials’ deliberate inaction and negligence in fulfilling their
duties was the main reason for the loss of lives at Kinara.
50 Mr. Engineer submitted that where officials fail to
perform their duties, it is settled law that the Court can not only
penalize the wrongdoer but can fix vicarious liability on the public
authority as the public authority would have failed in its duties to
protect the fundamental rights of the citizens. In this context, Mr.
Engineer placed reliance on the judgement of the Hon’ble Supreme
Court in Khatri (IV) v/s. State of Bihar (1981) 2 SCC 493 , wherein the
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defence of the State that it would not be liable for the unauthorized
acts of its officials was rejected.
51 Mr. Engineer submitted that Respondent No.2 ought to
be held vicariously liable for the negligent acts and omissions of its
officers in causing the fire at Kinara.
52 Mr. Engineer further submitted that the investigation by
Respondent Nos. 1 and 2 into the Kinara tragedy was wholly
inadequate and granted no reliefs to the Petitioners. In this context,
Mr. Engineer submitted that for the loss of 8 young lives,
Respondent No.2 had held merely two Cleanliness Officers
responsible for not conducting regular / proper inspections in
respect of Kinara. Further, the only punishment imposed was a
monetary penalty of Rs.70,000/- deducted from their salary. The
Cleanliness Officers were not even dismissed from their services.
Mr. Engineer submitted that no reason has been given for
exonerating the concerned officers on such a minor penalty. Mr.
Engineer submitted that punishment imposed on Respondent No.2’s
Officials can hardly be considered appropriate for the death of 8
young adults, which would have been prevented if these officials had
done their duties.
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53 Mr. Engineer further submitted that, save and except the
above, Respondent No.2 had not held any its officials responsible for
causing the tragedy in Kinara. This was nothing but an attempt on
the part of Respondent No.2 to shield the actual culprits responsible
for the loss of the lives of the Petitioners’ children/ husband.
54 Mr. Engineer submitted that Respondent No.2’s
investigation could not be stated to be proper and complete without
an enquiry into the acts/ omissions of the MOH, the authorized
officers of Respondent No.2, and the officials of the Fire Department
and the Building and Factories Department.
55 Further, Mr. Engineer submitted that, in matters
pertaining to breaches of fundamental rights by the State or public
authorities, compensation can be awarded under Article 226 of the
Constitution of India. In this context, Mr. Engineer submitted that
the loss of lives of the Petitioners’ children/ husband had caused
immense trauma and agony to the Petitioners. In addition, the
Petitioners, who are from low to middle income backgrounds, had
lost the only potential bread-earners of their families. Mr. Engineer
submitted that the negligence on the part of Respondent No.2 had
occasioned a gross violation of the Petitioners’ fundamental right to
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life under Article 21 of the Constitution of India. He further
submitted that it is now well settled law that where the violation of
fundamental rights under Article 21 of the Constitution of India is
concerned, the Courts have power to compensate the victims. In this
regard, Mr. Engineer relied upon the following judgements of the
Hon’ble Supreme Court:
(a) Rudul Sah v/s. State of Bihar (1983) 4 SCC 141;
(b) Nilabati Behera v/s. State of Orissa (1993) 2 SCC 746;
(c) D. K. Basu v/s. State of West Bengal (1997) 1 SCC 416; and
(d) Common Cause v/s. Union of India (1999) 6 SCC 667.
56 Mr. Engineer submitted that in addition to the aforesaid
judgements, there was a consistent line of judicial precedent over 40
to 50 years, upholding the powers of a writ Court to grant
compensation for the violation of fundamental rights, and, in this
context, referred to the following judgements:-
(a) Khatri (IV) v/s. State of Bihar (1981) 2 SCC 493;
(b) Bhim Singh v/s. State of J & K (1985) 4 SCC 677;
(c) M C Mehta v/s. Union of India (1987) 1 SCC 395;
(d) Saheli, A Women’s Resources Centre v/s. Commissioner of
Police (1990) 1 SCC 422; and
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(e) Sube Singh v/s. State of Haryana (2006) 3 SCC 178.
57 Mr. Engineer further submitted that from the catena of
judgements passed the Hon’ble Supreme Court on the subject, the
following principles can be summarized:-
(a) A writ court has not only the power but the obligation to grant
compensation to a victim whose fundamental rights have been
infringed;
(b) Notwithstanding the alternate civil remedy, the victims ought
not to be relegated to filing a civil suit, which is a long-drawn
out and cumbersome process;
(c) The State or the Public Authority ought to be held vicariously
liable for the negligent act of its officers.
58 Mr. Engineer further submitted that in cases where fire
has broken out at public spaces on account of the negligence of
statutory authorities in enforcing safety norms and rules, the Hon’ble
Supreme Court has been pleased to direct the statutory authorities to
grant compensation to the families of the victims. In this context,
Mr. Engineer relied upon the judgement of the Punjab & Harayana
High Court in Dabwali Fire Tragedy Victims Assn v./s. Union of
India, (2009) SCC Online P & H 10273, and the judgements of the
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Hon’ble Supreme Court in DAV Managing Committee v/s. Dabwali
Fire Tragedy Victims Assn., (2013) 10 SCC 494, Sanjay Gupta v/s.
State of U. P. (2015) 5 SCC 283 and Sanjay Gupta v/s. State of U P.
(2022) 7 SCC 203.
59 Next, Mr. Engineer made submissions on the quantum
of compensation payable to the Petitioners by Respondent No.2. In
this regard, Mr. Engineer relied upon the judgement of the Hon’ble
Supreme Court in Nilabati Behera (supra) and submitted that the
said judgement had held that the compensation in matters
concerning violation of fundamental rights cannot be equated with
damages in a civil action. He submitted that it was held in Nilabati
Behere (supra), that, while granting compensation,the approach of
the Court must be to penalize the wrongdoer by directing it to make
monetary amends for the wrong done due to breach of public duty.
Mr. Engineer submitted that, in the said case, the Hon’ble Supreme
Court had held that the compensation to be awarded by the Courts in
such matters must be in the nature of ‘exemplary damages’.
60 In support of his aforesaid submissions, Mr. Engineer
also relied upon the judgement of the Hon’ble Supreme Court in
Raman v/s. Uttar Haryana Bijli Vitran Nigam Limited (2014) 15 SCC
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1 and the judgement of this Court in Umakant Kisan Mane v/s. Dean,
Rajawadi Municipal Hospital, Mumbai, (2016) 2 Mah, L J 266.
61 Mr. Engineer submitted that the age and educational
qualifications of the Petitioners’ children/husband and the
occupation and financial background of their family members are as
under:-
Sr. Name Age No. of Educational Skills Working
No Family Qualification status of the
. Members victim or their
family
members
1 Erwin Dsouza 18 3 2nd year – Athlete, Alden
Bachelors’ in Guitarist, Dsouza, the
Mass Media Studious victim’s
brother is
working
2 Akash Pradeep 19 3 3rd year Footballer and Rekha P.
Thapar Engineering (IT) Studious Thapar, the
victim’s
mother,
conducts
Tutions
3 Brian Antony 20 4 3rd year Footballer None
Fernando Engineering (IT) with many
accolades to
his name
4 Arvind Kumar 32 3 … …. Employee at
Kanaujia Sterling
Engineering
Consultants
5 Sharjeel Jalil Shaikh 20 4 3rd year Footballer and The victim’s
Engineering (IT) Studious mother is a
teacher
6 Taha Mushtaque 20 4 3rd year – Footballer and The victim’s
Shaikh Engineering (IT) Studious father dealt in
second hand
cars
7 Bernadette Alein 18 2 2nd year – Basketball The victim’s
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8 Sajid Chaudhary 20 4 3rd year Footballer and The victim’s
Engineering (IT) Studious father is
working.
62 Mr. Engineer further submitted that most of the
Petitioners came from low to middle income group. The Petitioners
had poured their life’s savings into the education of their children,
with the hopes and aspirations of a brighter future ahead. The
Petitioners’ children, who were pursuing their engineering degrees,
would ultimately be the only breadwinners of their families and look
after the Petitioners in their old age. At the tender age of just 18-22
years, their lives have been taken in the most unfortunate and tragic
manner.
63 Mr. Engineer submitted that, till date, each of the
Petitioners had been granted compensation of only Rs. 1 lakh by the
State Government for the loss of lives of their children/ husband. Mr.
Engineer submitted that, considering the appalling facts of the
present case, the grant of such a meager amount as compensation
was unjust and inadequate.
64 Mr. Engineer also submitted that, for all the aforesaid
reasons, the Order dated 27th February, 2017 of the Lokayukta
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Maharashtra State, ought to be set aside and compensation be
granted to all the Petitioners, as this Court may deem fit.
SUBMISSIONS OF RESPONDENT NOS.2 (MCGM) AND 4
(MUNICIPAL COMMISSIONER OF MCGM):-
65 An Affidavit of Sunil M. Dhamane, the Deputy Municipal
Commissioner (Public Health Department of Respondent No.2),
dated 19th August, 2019, has been filed on behalf of Respondent Nos.
2 and 4. A further Affidavit of the said Sunil Dhamane, affirmed in
September 2019, has also been filed on behalf of Respondent Nos. 2
and 4. On the basis of these Affidavits filed opposing the Petition,
Mr. Sakhare, the learned Senior Advocate appearing on behalf of
Respondent Nos. 2 and 4, made submissions opposing the Petition.
66 Mr. Sakhare submitted that the Petitioners had already
been granted ad-hoc compensation of Rs.1 lakh each and it was for
this reason that the Lokayukta, Maharashtra State had dismissed
their complaint. Mr. Sakhare submitted that, in these circumstances,
the Petitioners were always at liberty to file a Civil Suit for
appropriate amount of compensation for loss of life, which can be
ascertained only after trial, as it depends on several factors like age of
the victim, number of dependents, income etc. Mr. Sakhare
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submitted that the Petitioners instead chose to invoke the writ
jurisdiction and filed a misconceived Writ Petition.
67 Mr. Sakhare next submitted that the present Writ
Petition was originally filed challenging the order of the Lokayukta,
Maharashtra State. Mr. Sakhare submitted that the scope of the
present Writ Petition cannot be allowed to be expanded as the
Petitioners appear to have abandoned their original proceedings
initiated before the Lokayuktya and have sought to argue the present
Writ Petition as if it was an original proceeding.
68 Mr. Sakhare submitted that, after the Kinara fire
incident, one Vijay Manthena had invoked writ jurisdiction, raising a
similar grievance against the actions/ in-action of Respondent No.2.
He submitted that the said Writ Petition was disposed of by this
Court by an Order dated 16th July, 2019 after considering the detailed
Affidavits filed on behalf of Respondent No.2. Mr. Sakhare submitted
that hence this Court had occasion to consider the steps taken and
default on the part of Respondent No.2 against the backdrop of the
very same incident, and, therefore, nothing survives in the present
Writ Petition and the present Writ Petition ought to be dismissed.
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69 Next, Mr. Sakhare submitted that this Court, by an
Order dated 23rd July, 2019, had, inter alia, directed Respondent
No.1 as well as Respondent No.2 to produce on record a policy, if
any, in existence, for grant of ex-gratia compensation in case of death
due to unfortunate incidents and payments if any made to families of
victims till date. Mr. Sakhare submitted that Respondent No.2 does
not have any such policy framed for grant of ex-gratia compensation
covering incidents like the present case.
70 Mr. Sakhare further submitted that Respondent No.2,
through the contentions made in its Affidavit in Reply, had made it
clear that there was no gross negligence or willful or blatant
disregard by the officers of Respondent No.2 in the discharge of
their duties, and the facts of the present case did not satisfy the test
laid down by the Hon’ble Supreme Court for award of compensation
against a public authority by public law remedy/ in exercise of writ
jurisdiction.
71 Mr. Sakhare next submitted that it was the Kinara Hotel
which was guilty of negligence and disregard towards compliance
with the rules. He submitted that the owner of Kinara had set up a
storage area 1.5 ft. above the mezzanine floor, where two 500 litre
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water tanks, plastic chairs and other items were kept. He submitted
that, after the incident, it was discovered that both an empty and a
partially filled LPG cylinder were stored in this area, with a gas
connection running to the kitchen, in violation of safety regulations
prohibiting cylinders on upper floors. Mr. Sakhare submitted that
the reckless act by the owner/ manger/ conductor were the sole
cause of the fire incident on 16 th October, 2015 turning fatal. Mr.
Sakhare submitted that, in the past, prosecution had been lodged
against Kinara for improper storage of cylinders, which culminated
in imposition of penalty.
72 Mr. Sakhare submitted that, in these circumstances, the
owner and conductor of Kinara were solely liable to compensate the
victims and had absolute responsibility for their reckless acts which
directly endangered lives and was the sole cause of the fatalities. He
submitted that the owner and conductor of Kinara owe direct and
exclusively liability for compensating the victims. In support of his
submissions, Mr. Sakhare relied upon the judgement of the Hon’ble
Supreme Court in Municipal Corporation of Delhi v/s. Association of
Victims of Uphaar Tragedy & Others (2011) 14 SCC 481.
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73 Mr. Sakhare further submitted that the liability of
Respondent No.2 cannot be presumed in the absence of a direct and
proximate causal link between the acts of commission and/or
omission of the municipal officers and the fire incident and the
fatalities in question. Mr. Sakhare submitted that the doctrine of
proximate cause, which is well recognized both in constitutional and
tort law, mandates that the liability be attributed only to the party
whose actions or omissions were the direct and immediate cause of
the harm suffered. Mr. Sakhare submitted that, in the present case,
the evidence established that illegal and unsafe storage of LPG
cylinders on the mezzanine floor by the hotel owner was apparently
the cause of the explosion and the resultant loss of life. Mr. Sakhare
submitted that the role of Respondent No. 2 is confined to municipal
administration, and no act or omission by its officers could be shown
to have directly contributed to the tragedy. Mr. Sakhare submitted
that, in the light of the above, the principle of strict liability of the
State is wholly inapplicable to the facts of the present case.
74 Further, Mr. Sakhare submitted that, after the incident,
departmental enquiry was first initiated against various officials of
Respondent No.2. In the said enquiry, it was found that no complaint
was received or any report found in the record of the Building and
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Factories Department in respect of unauthorized constructions and
the assessment record also did not indicate any change in area of the
hotel.
75 Mr. Sakhare submitted that Circular dated 8th June,
1963 issued by the Public Health Department, laying down rules for
construction of a mezzanine floor to be used for services of eatables,
contains no absolute bar to use the mezzanine floor for customer
service by an eating house and permissibility of such use depends on
compliance of certain criteria like height, light and air ventilation,
etc.
76 Mr. Sakhare further submitted that there was no
significant variation noticed at any time in the height of the hotel
structure as compared to the average line i.e. height of structures on
the said street, though there appears to be some increase in height of
the subject structure, which went unnoticed.
77 Mr. Sakhare submitted that the assessment record
indicates that the structure was prior to cut off date of 1 st April, 1962
and therefore was treated as a ‘tolerated structure’. He submitted
that the record indicates that there always existed a structure
referred to in the records as loft area, ad-measuring 21 sq. mtrs, with
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total area ad-measuring 42.70 sq. mtrs. inclusive of the ground floor,
and the said area had not undergone any change in the assessment
records.
78 Further, Mr. Sakhare submitted that the Circular dated
3rd September, 1984, pertaining to loft area/ mezzanine floor,
tolerated structures existing prior to the cut off date. He submitted
that different criteria applies with respect to structures existing prior
to cut off date and those which have came up after 1 st April, 1962.
He submitted that as the subject structure is a tolerated structure
under the relevant circulars/ rules, no separate application for
regularization of the loft / mezzanine floor is required to be
submitted by the owner as the loft existed prior to the cut off date.
79 In respect of the role of the Health Department of
Respondent No.2, Mr. Sakhare submitted that the Health
Department of Respondent No.2 is concerned with issuance of
licenses under Section 394 of MMC Act for establishment and
running of a restaurant/ eating house. In this context, Mr. Sakhare
submitted that the duty of a Sanitary Inspector and Senior Sanitary
Inspector is to report to sister departments for action, if there is any
violation i.e. for example unauthorized construction works carried
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out in an establishment, to inspect food establishments and other
traders in its jurisdiction and to see whether the conditions of the
license are observed or whether there is any breach of the provisions
of Sections 394 & 412A of the MMC Act.
80 Mr. Sakhare further submitted that duties and
responsibilities of the MOH consists, inter alia, of inspecting and
controlling the food establishments and other trades covered under
Sections 394 and 412A of the MMC Act in his ward, to implement the
provisions of Maharashtra Prevention of Food Adulteration Rules
1962 and to carry out surprise inspections of trades and operations
in his ward to see whether they are carried out in conformity with the
conditions of the license they hold etc.
81 Mr. Sakhare submitted that Respondent No.2, with the
limited manpower and other resources available at its disposal, aims
and strives to provide best standard of service to the people and is
aware of its responsibilities towards the people and need for better
governance.
82 Mr. Sakhare submitted that it should be noted that
Kinara is situated in ‘L’ ward, which is the largest ward in the
Corporation, with an area of 15.88 sq. kms, which stretches from
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Sion to Ghatkopar and Chembur to Powai. The population of the said
ward, as per the 2011 census, was around 8,92,279, and considering
the growth in population, it might have been around 10 to 11 lakhs in
the year 2015. He submitted that the number of licensed eateries in
the said ward are 313. Mr. Sakhare submitted that, as per the
organizational structure of the Public Health Department, MOH is
the licensing authority under whom there is a Senior Sanitary
Inspector, and below the Senior Sanitary Inspector are Sanitary
Inspectors. He submitted that, at the time of the incident, there was
only one Senior Sanitary Inspector, and against four posts of
Sanitary Inspector, there were only three Sanitary Inspectors
available. He submitted that the said officers had the humongous
task of ensuring strict compliance of regulatory requirements in the
‘L’ ward, in addition to their other duties and responsibilities.
83 In support of his submissions, Mr. Sakahre relied upon
the judgement of the Hon’ble Supreme Court in Rajkot Municipal
Corporation v/s. Manjulben Jayantilal Nakum and Others (1997) 9
SCC 552. Mr. Sakhare submitted that, in the said judgement, the
Hon’ble Supreme Court has evolved the doctrine of direct and
immediate causation which mandates that accountability be affixed
only to the party whose negligent act or omission proximately
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resulted in the harm suffered. Mr. Sakhare submitted that applying
the said principle of the judgement to the present case, the explosion
at Kinara was a direct and exclusive consequence of the wilful
violation of statutory safety norms by the hotel owner and manager,
specifically concerning the improper storage and handling of LPG
cylinders. Mr. Sakhare submitted that Respondent No.2, in its
capacity as a regulatory authority, cannot be held liable for the said
incident in the absence of any proximate act or omission on its part
that directly contributed to the explosion or fatalities. Mr. Sakhare
submitted that the actions of the hotel management constitute an
independent and intervening cause which severs any casual link
between Respondent No.2 and the resulting harm.
84 Further, in the context of the MOH of ‘L’ ward, Mr.
Sakhare submitted that, it was only when an application under the
RTI Act was received by the MOH, ‘L’ ward, from one Vijay
Manthena, that it was realized that the file of Kirana was not
traceable. This was after the incident of the fire. Mr. Sakhare
submitted that the MOH of ‘L’ ward ought to have lodged a
complaint with the police in respect of the missing file. However, in
the present case, the said step was not taken for a considerably long
period. Mr. Sakhare submitted that when it was learnt that the files
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are not traceable after the incident of fire, for such lapse,
departmental enquiry had been initiated against the MOH of ‘L’
ward.
85 Further, Mr. Sakhare submitted that, in the
departmental enquiry, which was held subsequent to the unfortunate
fire incident at Kinara, Show Cause Notices were issued to two
Sanitary Inspectors, the charge was found partially proved and
recommendation was made to impose appropriate punishment.
Pursuant to the recommendation, the competent authority approved
the findings of the Enquiry Officer and imposed a penalty of
Rs.70,000/- and a suspension period not to be treated as ‘on duty’
period.
86 Next, Mr. Sakhare submitted that the probable cause of
the fire at Kinara was gas leakage and explosion. He submitted that
the fire investigation report of the Mumbai Fire Brigade as well as
the photographs referred to by Respondent No.2 in its second
Affidavit in Reply indicate that the probable and most likely cause of
the fire is gas leakage and explosion of gas which had accumulated
on the mezzanine floor. He submitted that, as a result of the same,
the roof and/or ceilings of the mezzanine floor had collapsed
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trapping the Petitioners’ children and husband who came for lunch
to the said hotel and prevented their escape. Mr. Sakhare submitted
that the statement of witnesses recorded by the police in the course
of investigation confirms that there was a sound of a fire explosion.
87 Further, Mr. Sakhare submitted that the Teflon tape
seen in the photographs of the cylinder, taken immediately after the
fire was doused, indicates that there was a leakage problem and the
hose (Gas Cylinder Regulator) was not of standard quality as it was
easily removable by simple pulling it, whereas the standard hose
(Gas Cylinder Regulator) has a lock feature, and, without unlocking,
the hose (Gas Cylinder Regulator) cannot be removed.
88 Mr. Sakhare submitted that the aforesaid demonstrates
that the report of Respondent No.3 (HPCL) was false and
misleading. Mr. Sakhare submitted that it was important to note the
statement of the LPG cylinder delivery boy to the police wherein he
had admitted to have kept the new/ filled gas cylinders on the
mezzanine floor storage area and sometimes in the kitchen. Mr.
Sakhare submitted that, inspite of there being prohibition of using /
storing filled cylinders on the upper floor / mezzanine floor in any
commercial structure and near electric circuit/ wiring, the gas
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agency delivering the HPCL cylinders had also acted recklessly and
with complete disregard to the applicable fire safety rules / norms,
which had ultimately resulted in the unfortunate fire accident and
death of 8 persons. Mr. Sakhare submitted that, hence, apart from
the owner and manager of the restaurant, Respondent No.3 would
also be liable.
89 Mr. Sakhare reiterated that the tragic fire incident at
Kinara, on 16th October, 2015, was a direct result of the reckless and
negligent actions of the hotel owner and operator, who violated the
safety norms and regulations. Mr. Sakhare submitted that the
Departmental Enquiry of Respondent No.2 had taken action against
such officers who were found guilty of lapse of vigilance/ duty.
However, such a lapse cannot be equated with the blatant negligence
of the hotel owner/ operator and the gas supplying agency to fasten
monetary liability on Respondent No.2.
90 Mr. Sakhare next submitted that the Hon’ble Supreme
Court has held that Article 14 mandates fairness and reasonableness
in State action but does not impose absolute liability on the State
officials for every unfortunate incident. Mr. Sakhare submitted that
the Hon’ble Supreme Court in Nilabati Behera (supra) has
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categorically held that compensation under public law remedy is
available only in cases where the violation is caused directly by the
State or its instrumentalities in the course of exercising their
sovereign functions. Mr. Sakhare submitted that, in the present
case, the tragic deaths were not caused by any act of the officers of
Respondent No.2 but were the direct consequence of the hotel
management’s reckless failure to adhere to fire safety regulations. He
submitted that Respondent No.2 had undertaken due diligence in
regulatory enforcement, including prior prosecution of the said hotel
for safety violations. He submitted that Offence Sheets were drawn in
the years 2012, 2013 and 2015, which showed that the officers were
vigilant and recorded the transgressions when noticed. He submitted
that the facts of the case show that Respondent No.2 had acted
uniformly in accordance with municipal law and regulations and has
not granted any undue favour or special treatment to Kinara.
Further, upon the occurrence of the unfortunate incident,
Respondent No.2 had initiated a departmental inquiry against its
officials and appropriate penalties were imposed on those found
guilty of lapses.
91 Without prejudice to the aforesaid, Mr. Sakhare
submitted that Respondent No.2, as a public body, may not be
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fastened with liability, considering the steps taken after the incident
and the strain which such award would put on the public funds.
92 As regards payment of compensation in exercise of writ
jurisdiction, Mr. Sakhare relied upon the Order dated 8 th August,
2019 passed by this Court in Writ Petition No. 4066 of 2018. Mr.
Sakhare submitted that, by the said Order, this Court had directed
the Municipal Council to pay Rs.2 lakhs to the mother of the
deceased by way of ad-hoc compensation and left it open for the
Petitioners to file appropriate civil proceedings seeking further
compensation. Mr. Sakhare submitted that the said approach is the
correct one and deserves to be followed in the present case too. He
submitted that, in the case before this Court, the wall which fell and
led to death was built and managed by the Municipal Council, and
yet such a course was adopted.
SUBMISSIONS OF RESPONDENT NO. 1 (STATE OF MAHARASHTRA)
93 On behalf of Respondent No.1, an Affidavit in Reply has
been filed by Sunil Murkate, the Assistant Commissioner of Police,
Kurla Division, Mumbai, affirmed in March, 2025. On the basis of
the said Affidavit, Ms. Kantharia, the learned G. P., made
submissions on behalf of Respondent No.1.
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94 Ms. Kantharia pointed out that, in respect of the fire
incident at Kinara, FIR No. 280/2015 dated 16 th October, 2015 was
registered at Vinoba Bhave Nagar Police Station, and after
completion of investigation, the charge-sheet was filed on 15 th
January, 2016, vide case No. 186 of 2016.
95 Ms. Kantharia further pointed out that Accused No.2
had filed an Application for discharge under Section 227 of the
Criminal Procedure Code, 1973, and the same was rejected by an
Order dated 7th December, 2019. Accused No.1 had also preferred an
Application for discharge before the Sessions Court in October, 2021.
The said discharge application is not disposed of till date and is
pending hearing. Further, charges are not framed against accused
persons and trial has not yet commenced.
96 Ms. Kantharia further pointed out that the Inspector of
Vinoba Bhave Nagar Police Station is conducting further
investigations to ascertain the cause of fire, since there is no opinion
given either by the Fire Officer of Respondent No.2 or the Electrical
Inspector, State of Maharashtra or the Officer of HPCL with regards
to actual cause of fire. Ms. Kantharia referred to the Affidavit filed on
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behalf of Respondent No.1 which gives details of the further
investigation which have commenced from 12th March, 2025.
97 Further, Ms. Kantharia submitted that there was no
dilution of charge. She submitted that the charge sheet is filed under
Sections 304, 285 and 34 of the Indian Penal Code, 1860.
98 Ms. Kantharia denied that there was any improper
investigation in the matter. She submitted that since the cause of fire
was not ascertained, further investigation is being done by Vinoba
Bhave Nagar Police Station and a supplementary charge sheet could
be filed on completion of further investigation.
SUBMISSIONS OF RESPONDENT NO. 5 (ADANI ELECTRICITY,
MUMBAI LIMITED)
99 An Affidavit dated 30th January, 2025 of one Jayprakash
Ghotekar, Manager (Legal) and authorized signatory of Respondent
No.5, has been filed on behalf of Respondent No.5. On the basis of
the said Affidavit, Mr. Vighnesh Kamat, the learned Counsel
appearing on behalf of Respondent No.5, made submissions.
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100 Mr. Kamat submitted that the incident of fire at Kinara
had not been caused due to any electric problem. He submitted that
Section 161 of the Electricity Act, 2003 empowers the Electrical
Inspector to enquire whether the cause of fire arose out of an electric
problem. In the letter dated 8 th January, 2016 issued by the Electrical
Inspector, Santacruz Inspection Departments, Industry, Energy and
Labour Department, Bandra, it was observed that the electric meter,
cut-off and main switch board installation were found to be intact.
He submitted that this established that the incident had not been
caused due to any fault on the part of Respondent No.5. He further
submitted that, in any case, the responsibility of the Distribution
Licensee (Respondent No.5) is limited only till the point of supply
and not beyond.
SUBMISSIONS OF RESPONDENT NO.3 (HPCL):-
101 Mr. S. R. Page, the learned Advocate appearing on
behalf of Respondent No.3, submitted that Respondent No.3
had addressed a letter dated 20 th October, 2015 to the Senior
Police Inspector, Vinoba Bhave Nagar Police Station, Mumbai,
stating therein that the Officers of Respondent No.3 had visited
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the accident site and had recorded the observation that there
was no leakage of LPG.
102 Mr. Page further submitted that Respondent No.3 had
addressed a letter dated 14th December, 2015 to the Police Inspector,
Vinoba Bhave Nager Police Station, Mumbai, stating therein that the
investigation detail is not substantiating any evidence of fire due to
any LPG leakage and that there was no evidence to suggest that the
cause of fire was LPG Leakage.
103 Mr. Page also submitted that a letter dated 5 th April,
2016 was addressed to one Godfrey Pimenta, under the RTI Act,
providing information to the effect that Kinara was not a registered
customer of M/s. Laxmi Gas Agency, Kurla (East), Mumbai of
Respondent No.3. Mr. Page submitted that, in light of the same also,
Respondent No.3 is not liable or responsible for the fire which led to
the loss of lives.
FINDINGS AND CONCLUSIONS:-
104 This Petition was initially filed challenging an Order
dated 27th February, 2016 of the Lokayukta, Maharashtra State.
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105 As mentioned earlier, by an Order dated 20 th August,
2019 passed by this Court in the present Writ Petition, it was held as
under:-
” In view of the tragic loss of human lives, we would like
to consider the issues arising in the petition, in particular
whether compensation should be paid to the family of the
victims and whether the liability can be attached to the
municipal corporation for negligence or disregard in
discharge of its duties, if any, which may have resulted into
or led to the unfortunate incident. Both the sides are put to
notice that the petition will be disposed off finally at this
stage. Stand over to 17th September, 2019 at 03.00 p.m.”
106 In the light of the aforesaid, the issues that we are
considering in this Petition are the validity of the Order dated 27th
February, 2017 passed by the Lokayukta, Maharashtra State and
secondly, whether compensation should be paid to the families of the
victims and whether liability can be attached to the Municipal
Corporation (Respondent No.2) for negligence or disregard in
discharge of its duties, if any, which may have resulted into or led to
the unfortunate fire incident.
107 The second issue, namely whether compensation should
be paid to the families of the victims and whether liability can be
attached to Respondent No.2 for negligence or disregard in discharge
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of its duties, if any, which may have resulted into unfortunate fire
incident, raises the following questions:
(A) What is the standard of care imposed on Respondent No.2
in matters concerning public safety?
(B) Whether there was any negligence on the part of Respondent
No.2 in the discharge of its duties?
(C) Whether Respondent No.2’s negligence has a proximate
cause to the fire and whether Respondent No.2 can be held
liable?
(D) In matters pertaining to breach of fundamental rights by
an authority like Respondent No.2 (which is a State within the
meaning of Article 12 of the Constitution of India) whether
compensation can be awarded under Article 226 of the
Constitution of India?
(E) If the answers to the aforesaid questions are in the
affirmative, what should be the quantum of compensation
payable to the Petitioners by Respondent No.2?
ON QUESTION ‘A’ ABOVE:-
108 As far as the question, as to what is the standard of care
imposed on Respondent No.2 in matters concerning public safety, is
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concerned, it would be apposite to refer to the judgement of the
Hon’ble Supreme Court in Uphaar Tragedy Victims Assn. (supra).
In the said judgement, Justice K. S.Radhakrishnan, in his concurring
opinion, has held as under:-
“96. Courts have held that due to the action or
inaction of the State or its officers, if the fundamental
rights of a citizen are infringed then the liability of the
State, its officials and instrumentalities, is strict. The
claim raised for compensation in such a case is not a
private law claim for damages, under which the damages
recoverable are large. The claim made for compensation
in public law is for compensating the claimants for
deprivation of life and personal liberty which has
nothing to do with a claim in a private law claim in tort
in an ordinary civil court.
97. This Court in Union of India v. Prabhakaran
Vijaya Kumar, extended the principle to cover public
utilities like the Railways, electricity distribution
companies, public corporations and local bodies which
may be social utility undertakings not working for
private profit. In Prabhakaran a woman fell on a railway
track and was fatally run over and her husband
demanded compensation. The Railways argued that she
was negligent as she tried to board a moving train.
Rejecting the plea of the Railways, this Court held that
her “contributory negligence” should not be considered
in such untoward incidents-the Railways has “strict
liability”. A strict liability in torts, private or
constitutional do not call for a finding of intent or
negligence. In such a case the 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 the highest
degree of care and if someone is injured because of such
activities, the State and its officials are liable even if they
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was not intentional. Public safety legislations generally
fall 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.
98. But, in a case, where life and personal liberty
have been violated, the absence of any statutory
provision for compensation in the statute is of no
consequence. Right to life guaranteed under Article 21 of
the Constitution of India is the most sacred right
preserved and protected under the Constitution,
violation of which is always actionable and there is no
necessity of statutory provision as such for preserving
that right. Article 21 of the Constitution of India has to
be read into all public safety statutes, since the prime
object of public safety legislation is to protect the
individual and to compensate him for the loss suffered.
Duty of care expected from State or its officials
functioning under the public safety legislation is,
therefore, very high, compared to the statutory powers
and supervision expected from the officers functioning
under the statutes like the Companies Act, the
Cooperative Societies Act and such similar legislations.
When we look at the various provisions of the
Cinematograph Act, 1952 and the Rules made
thereunder, the Delhi Building Regulations and the
Electricity laws the duty of care on officials was high and
liabilities strict.”
(emphasis supplied)
109 The same view has been reiterated by the Hon’ble
Supreme Court in Sanjay Gupta (supra).
110 From the aforesaid judgements, it is clear that the
question, as to whether the law imposes a strict liability on the public
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authorities and their officials primarily depends upon the purpose
and object of the legislation as well. When activities are hazardous
and are inherently dangerous, the statute expects the highest degree
of care, and if some one 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 fall 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 the legislature, in its wisdom, intended to give
rise to a cause of action in damages and whether the claimant is
intended to be protected.
111 Further, the Hon’ble Supreme Court has held that
Article 21 of the Constitution of India has to be read into all public
safety statutes since the prime object of public safety legislations is to
protect the individual and to compensate him for the loss suffered.
Duty of care expected from the State or its officials functioning under
the public safety legislation is, therefore, very high, compared to the
statutory powers and supervision expected from the officers
functioning under statutes like the Companies Act, the Cooperative
Societies Act and such similar legislations.
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112 The supervision and maintenance of adequate fire
prevention measures in places of public entertainments such as a
eating house like Kinara, is a statutory duty of Respondent No.2.
Since this duty pertains to public health and safety, on the basis of
the law laid down by the Hon’ble Supreme Court, a higher standard
of care is imposed upon Respondent No.2 and its officials. Thus, to
answer question A, a higher standard of care is imposed on
Respondent No.2 in matters concerning public safety.
ON QUESTION B:-
113 In the light of the aforesaid position in law, that a higher
standard of care is imposed on Respondent No.2 in matters
concerning public safety, we will have to examine as to whether there
was any negligence on the part of Respondent No.2 in discharging its
duties.
114 In the present case, various breaches of the license
conditions were committed by Kinara. These breaches increased the
danger of fire in Kinara. Respondent No. 2 received complaints in
that regard, carried out inspections, and was fully aware of the said
fire safety violations committed in Kinara. Despite being aware of
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such fire safety violations, Respondent No.2 did not take any action
against Kinara.
115 The first breach committed by Kinara was the use of the
loft area/ mezzanine floor for serving the patrons. General Condition
No.14 of the eating house license issued to Kinara did not permit it to
serve food in the loft area/ mezzanine floor, which was to be used
only for storage purpose. Further, the Advisory issued by the Chief
Fire Officer of the Mumbai Fire Brigade also prohibits the usage of
loft area for any purpose other than storage. In contravention of the
said license condition and the Advisory, the loft area/ mezzanine
floor of Kinara was being used to serve patrons. In fact, the
Petitioners’ children/ husband were made to sit in this loft area /
mezzanine floor for serving food to them, where the fire ultimately
broke out. In an inspection carried out by an official of Respondent
No.2 on 2nd September, 2015, i.e. merely 44 days before the fire
broke out, it was specifically noted that the mezzanine floor/loft
area, which can be used only for storage purposes as per the eating
house license, was being used to serve patrons. Though this breach,
which was a fire hazard, was specifically known to Respondent No.2,
no action was taken by Respondent No.2 in that regard.
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116 The other major breach committed by Kinara was
running the restaurant without a fire NOC from the Chief Fire Officer
(CFO). In order to operate a restaurant, an ‘eating house license’ is to
be obtained from Respondent No.2 under Section 394 of the MMC
Act. As a precondition to obtaining the eating house license,
approximately 33 other licenses have to be obtained. It is an
admitted position that one of these licenses to be obtained is a Fire
NOC from the CFO. It is also admitted by Respondent No.2 that the
procedure to apply for a eating house license from Respondent No.2
postulates outright rejection of the application if no Fire NOC is
obtained by the applicant. In fact, a Circular dated 16 th November,
1990 issued by Respondent No.2, and produced by it in the
proceedings, clarifies that the independent satisfaction of
Respondent No.2 – Health Department as to compliance with fire
safety measure is not adequate to grant an eating house license and
that a fire NOC from the CFO is a must.
117 It is an admitted fact that Kinara did not have a fire
NOC. The Petitioners have produced on record a letter dated 30th
March, 2016, issued by the Public Information Officer of the Mumbai
Fire Brigade to one Nicholas Almeida of Watchdog Foundation,
wherein it has been stated that, as per the record of the Fire
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Department, no fire NOC had been given to Kinara. Further, the
Departmental Enquiry Report of Respondent No.2 also states that, in
response to the questionnaire submitted to the Fire Brigade
Department by the Deputy Commissioner (Zone V) on 26th
October,2015, the Fire Brigade Department had informed that NOC
had not been obtained by Kinara to run the establishment. Further,
the said Report stated that the MOH of Respondent No.2 had issued
a license to Kinara without obtaining any NOC from the Fire Brigade
Department. It is also recorded in the said Report that the said fact
amounted to a breach of the rules for issuing of license, and, hence,
the position, that the MOH might have intentionally lost the said
original file/ papers/ documents/ plan in respect of Kinara, could
not be denied. In our view, these factors clearly show that Kinara was
granted a eating housing license without it obtaining any fire NOC
from the Fire Brigade Department. This, in our view, was one of the
most egregious breaches committed not only by the owner and
operator of Kinara but also by Respondent No.2 by issuing an eating
house license to Kinara without obtaining any fire NOC.
118 Further, in our view, even more shocking is the fact that
even after Respondent No.2 became aware that a eating house
license was issued to Kinara without it obtaining a fire NOC,
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Respondent No.2 did not take any action in that regard. As early as
on 13th September, 2012, when an inspection was carried out of
Kinara, Respondent No.2 had noted in the Inspection Report dated
13th September, 2012 that Kinara was being operated without a fire
NOC. Once again on 27th September, 2012, in response to a RTI
Application, Respondent No.2 admitted that the fire NOC for Kinara
was not available in its records. Despite having knowledge of the fact
that Kinara was being operated without a fire NOC, Respondent No.2
took no action.
119 In our view, by initially granting an eating house license
to Kinara without a fire NOC, and thereafter not taking any action
against Kinara when it was discovered that Kinara was operating
without a fire NOC, Respondent No.2 has committed gross
negligence and has acted totally in breach of its statutory duties.
120 Another breach committed was allowing Kinara the use
of LPG cylinders without a license and storage of the same in the loft
area/ mezzanine floor. Under Section 394 (1) (b), read with part (III)
of Schedule M of the MMC Act, LPG cannot be stored without a
license. No such license has been brought on record. In fact, in the
letter dated 5th April, 2016 issued by Respondent No.3 to Godfrey W.
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Pimenta, under the RTI Act, it has been stated by Respondent No.3
that no documents had been provided by the owner/ occupants of
Kinara to Respondent No.3, and, as per the records of Respondent
No.3, Kinara was not a registered customer of M/s. Laxmi Gas
Agency, Kurla (E), Mumbai.
121 Section 394 (4) of the MMC Act empowers Respondent
No.2 to take all necessary measures in respect of premises such as
Kinara where unauthorized articles are stored, including
discontinuance of use of the premises, seizure of offending articles
etc. However, no measure was taken by Respondent No.2 in respect
of Kinara, in gross breach of its statutory duties.
122 Further, Kinara could not have stored LPG cylinders on
the loft area/ mezzanine floor as per the prevailing fire safety norms.
This is recorded in a letter dated 31st October, 2015 issued by the
Mumbai Fire Brigade to Respondent No.3. Further, according to the
Fire Inspection Report dated 16th October, 2015 prepared by the
Mumbai Fire Brigade in respect of the fire at Kinara, it has been
recorded that it was the LPG stored on the loft area that had leaked,
accumulated and ultimately caused the fire to spread rapidly. In our
view, if Respondent No.2 had taken necessary action against Kinara
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for the aforesaid breaches, the LPG cylinders would not have been
stored in the loft area/ mezzanine floor and the fire would not have
taken place, and in any event, there would have been no loss of life.
123 The aforesaid facts clearly show that there has been an
utter and gross failure by Respondent No.2 and its officials in the
discharge of their statutory duties.
124 In addition to the aforesaid, Respondent No.2 is also
guilty of other breaches of its statutory duties. As per Circular
No.HO/39667/C of the Public Health Department of Respondent
No.2 dated 9th January, 1980, the Sanitary Inspector of Respondent
No.2 was required to check all food establishments once in three
months. However, the Sanitary Inspector of Respondent No.2 did
not do so. This is recorded in the Departmental Enquiry Report of
Respondent No.2. Hence, this was one more breach of its statutory
duties by Respondent No.2.
125 Further, Respondent No.2 did not act on the complaints
made to it in respect of Kinara nor did it act on its own inspection
reports. In October 2012, a complaint was made by one Martin
Matthews regarding various violations in Kinara to the Senior Police
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Inspector, Vinoba Bhave Nagar Police Station, who forwarded the
said complaint to Respondent No.2 . Despite the Assistant
Commissioner, ‘L’ ward, recording in his Order dated 13th March,
2013, passed in respect of said complaint, that the MOH should
urgently inspect Kinara, issue the necessary inspection report and
follow the inspection report to its logical conclusion, no appropriate
action was taken by Respondent No.2 in that regard.
126 Further, three inspections of Kinara were carried out by
Respondent No.2’s officials on 13th September, 2012, 20th March,
2013 and 2nd September, 2015. These inspection reports have been
produced by Respondent No.2 in the present proceedings. The
Inspection Report dated 13th September, 2012 recorded that the
permission letter from the Chief Fire Officer had not been produced
at the time of inspection. Further, the Inspection Report dated 2nd
September, 2015 recorded that the mezzanine floor was being used
for service, although it was meant for storage purposes. Both these
breaches were dangerous and a fire hazard. Despite warning
Respondent Nos. 6 and 7, that action would be taken against them
under Section 394 of the MMC Act, Respondent No.2 never
proceeded to take action, and, as a result thereof, the illegality being
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committed in Kinara, continued unabated and ultimately led to the
fire and the loss of life.
127 Further, Respondent No.2 committed a major breach of
its statutory duties by not cancelling the eating house license of
Kinara. As referred to herein above, Kinara was violating various
conditions of the eating house license like operating without the NOC
of the CFO and serving food on loft area/ mezzanine floor. In our
view, in the face of the said egregious violations by Kinara,
Respondent No.2 was bound to take steps under Section 479 (3) of
the MMC Act, which empowers Respondent No.2 to revoke or
suspend the license granted under the MMC Act if any of its
restrictions or conditions are infringed or violated.
128 In our view, in the light of what is stated herein above,
there was gross negligence on the part of Respondent No.2 in the
discharge of its duties. We answer Question B accordingly.
ON QUESTION C:-
129 As can be seen from what is recorded by us herein above,
Respondent No.2 and its officials were grossly negligent in (i)
granting the eating house license despite the fire NOC and other
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NOCs not having been obtained by Kinara; (ii) failing to act on the
complaints about the illegalities being committed in Kinara; (iii)
failing to take action pursuant to three inspections wherein it was
specifically noted that Kinara did not have a fire NOC, that the
mezzanine floor was illegally being used for services and LPG
cylinders were being stored without a license. In our view, it was
only due to gross negligence on the part of Respondent No.2 in
matters of public health and safety, as also the failure to act timely,
that the fire took place as a result of the very same breaches, and
which could have been entirely prevented by Respondent No.2, by
taking the necessary action.
130 The test, as to whether the negligence of Respondent
No.2 was the proximate cause for the damage suffered, is succinctly
set out in a judgement of this Court in Tri – Sure India (supra).
Paragraph 33 of the said judgement in Tri – Sure India (supra) is
relevant and reads as under:-
“33. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill,
but one need not possesss the highest expertise or skill at
the risk of being found negligent. It is well established
that it is sufficient if one exercises the ordinary skill of an
ordinary competent man exercising that particular art. It
hardly requires to be stated that burden to prove any
action of negligence rests primarily on the plaintiffs, who,
to maintain action, must show that he was injured by a
negligent act or omission for which the defendant in law is
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defendant to the plaintiff, some breach of duty, and an
injury to the plaintiff between which and the breach of
duty, a causal connection must be established. In order to
establish contributory negligence, the defendant has to
prove that the plaintiff’s negligence was a cause of harm
which he has suffered in consequence of the defendant’s
negligence. Knowledge by the plaintiff of an existing
danger or of the defendant’s negligence may be an
important element in determining whether or not he has
been guilty of negligence. The question is not whether the
plaintiff realised the danger but whether the plaintiff had
knowledge which would have caused the reasonable
person in his position to realise the danger. It is also
essential for the plaintiff in an action for damages on the
ground of negligence to establish that on the balance of
probabilities the defendant’s negligence was an essential
pre-condition of the damage suffered and which is
normally done by reference to the “but for” test. The test
demands that the negligence was a factual cause of
damage. A reference can be made in support of this aspect
on”Factual causation”in Dugdale and Santon’s
‘Professional Negligence’, Chapter 28, paragraph 28.01. A
reference can be usefully made in this connection to the
short passage from the speech of Lord Reid in the case of
McWilliams v. Sir William Arrol and Co. Ltd., [1962] 1
WLR 295 (HL) and which has been quoted with approval
in Karak Rubber Co., Ltd. v. Burden (No. 2), [1972] 1 WLR
602, 631 (Ch D):
“If I prove that my breach of duty in no way caused
or contributed to the accident, I cannot be liable in
damages. And if the accident would have happened
in just the same way whether or not I fulfilled my
duty, it is obvious that my failure to fulfil my duty
cannot have caused or contributed to it. No reason
has ever been suggested why a defender should be
barred from proving that his fault, whether common
law negligence or breach of statutory duty, had
nothing to do with the accident.”
(emphasis supplied)
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131 In the aforesaid judgement, this Court has
recommended what is known as the ‘ but for’ test. In our view, the
‘but for’ test is squarely met in the facts of the present case. Had
Respondent No.2 promptly discharged its statutory duties by acting
upon the fire safety violations and canceled Kinara’s license under
Section 479 of the MMC Act, seized the LPG cylinders under Section
394 of the MMC Act and prohibited the use of loft area/ mezzanine
floor for serving patrons, the fire would definitely not have occurred.
Respondent No.2’s officials’ deliberate inaction and negligence in
fulfilling their duties was an essential pre-condition for the loss of
lives at Kinara.
132 Further, it is settled law that when officials of a public
authority fail to perform their duties, the Court can not only penalize
the wrongdoer but can also fix vicarious liability on the public
authority, as the public authority has failed in its public duty to
protect the fundamental rights of its citizens. In this regard, it would
be appropriate to refer to the judgement of the Hon’ble Supreme
Court in Khatri (IV) (supra) wherein the State’s defense that it would
not be liable for the unauthorized acts of its officials was expressly
rejected. Paragraph 7 of the judgement in Khatri (IV) (supra) is
relevant and is set out herein below:-
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1-wp-659-2018.doc“7. That takes us to the question whether the
reports made by Sh. L. V. Singh as a result of the
investigation carried by him and his associates are
relevant under any provision of the Indian Evidence Act
so as to be liable to be produced and received in
evidence. It is necessary in order to answer this
question, to consider what is the nature of the
proceeding before us and what are the issues which arise
in it. The proceeding is a writ petition under Article 32
for enforcing the fundamental rights of the petitioners
enshrined in Article 21. The petitioners complain that
after arrest, whilst under police custody, they were
blinded by the members of the police force, acting not in
their private capacity, but as police officials and their
fundamental right to life guaranteed under Article 21
was therefore violated and for this violation, the State is
liable to pay compensation to them. The learned
Attorney-General who at one stage appeared on behalf
of the State at the hearing of the writ petition contended
that the inquiry upon which the court was embarking in
order to find out whether or not the petitioners were
blinded by the police officials whilst in police custody
was irrelevant, since, in his submission, even if the
petitioners were so blinded, the State was not liable to
pay compensation to the petitioners first, because the
State was not constitutionally or legally responsible for
the acts of the police officers outside the scope of their
power or authority and the blindings of the under-trial
prisoners effected by the police could not therefore be
said to constitute violation of their fundamental right
under Article 21 by the State and secondly, even if there
was violation of the fundamental right of the petitioners
under Article 21 by reason of the blindings effected by
the police officials, there was, on a true construction of
that Article, no liability on the State to pay
compensation to the petitioner. The attempt of the
learned Attorney- General in advancing this contention
was obviously to pre-empt the inquiry which was being
made by this Court, so that the court may not proceed to
probe further in the matter. But we do not think we can
accede to this contention of the learned Attorney-
General. The two questions raised by the learned
Attorney-General are undoubtedly important but the
arguments urged by him in regard to these two
questions are not prima facie so strong and appealing as
to persuade us to decide them as preliminary objections
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without first inquiring into the facts. Some serious
doubts arise when we consider the argument of the
learned Attorney-General. If an officer of the State
acting in his official capacity threatens to deprive a
person of his life or personal liberty without the
authority of law, can such person not approach the court
for injuncting the State from acting through such officer
in violation of his fundamental right under Article 21?
Can the State urge in defence in such a case that it is not
infringing the fundamental right of the petitioner under
Article 21, because the officer who is threatening to do so
is acting outside the law and therefore beyond the scope
of his authority and hence the State is not responsible
for his action? Would this not make a mockery of Article
21 and reduce it to nullity, a mere rope of sand, for, on
this view, if the officer is acting according to law there
would ex concessionis be no breach of Article 21 and if
he is acting without the authority of law, the State would
be able to contend that it is not responsible for his action
and therefore there is no violation of Article 21. So also if
there is any threatened invasion by the State of the
fundamental right guaranteed under Article 21, the
petitioner who is aggrieved can move the court under
Article 32 for a writ injuncting such threatened invasion
and if there is any continuing action of the State which is
violative of the fundamental right under Article 21, the
petitioner can approach the court under Article 32 and
ask for a writ striking down the continuance of such
action, but where the action taken by the State has
already resulted in breach of the fundamental right
under Article 21 by deprivation of some limb of the
petitioner, would the petitioner have no remedy under
Article 32 for breach of the fundamental right
guaranteed to him? Would the court permit itself to
become helpless spectator of the violation of the
fundamental right of the petitioner by the State and tell
the petitioner that though the Constitution has
guaranteed the fundamental right to him and has also
given him the fundamental right of moving the court for
enforcement of his fundamental right, the court cannot
give him any relief. These are some of the doubts which
arise in our mind even in a prima facie consideration of
the contention of the learned Attorney-General and we
do not, therefore, think it would be right to entertain
this contention as a preliminary objection without
inquiring into the facts of the case. If we look at the
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averments made in the writ petition, it is obvious that
the petitioners cannot succeed in claiming relief under
Article 32 unless they establish that their fundamental
right under Article 21 was violated and in order to
establish such violation, they must show that they were
blinded by the police officials at the time of arrest or
whilst in police custody. This is the foundational fact
which must be established before the petitioners can
claim relief under Article 32 and logically therefore the
first issue to which we must address ourselves is
whether this foundational fact is shown to exist by the
petitioners. It is only if the petitioners can establish that
they were blinded by the members of the police force at
the time of arrest or whilst in police custody that the
other questions raised by the learned Attorney-General
would arise for consideration and it would be wholly
academic to consider them if the petitioners fail to
establish this foundational fact. We are, therefore, of the
view, as at present advised, that we should first inquire
whether the petitioners were blinded by the police
officials at the time of arrest or aftci arrest, whilst in
police custody, and it is in the context of this inquiry
that we must consider whether the reports made by Sh.
L. V. Singh are relevant under the Indian Evidence Act
so as to be receivable in evidence.”
(emphasis supplied)
133 Hence, in our view, the negligence and breach of
statutory duties by Respondent No.2 is a proximate cause of the fire
and Respondent No.2 can be held vicariously liable for the acts of
commission and omission of its officials. We, accordingly, answer
Question C in the affirmative.
ON QUESTION D
134 The loss of life of the Petitioners’ children/ husband, has
resulted in violation of their fundamental right to life under Article
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21 of the Constitution of India. Further, as far as the Petitioners are
concerned, the loss of life of their children/ husband has caused
immense trauma and agony to the Petitioners. In addition, the
Petitioners, who are from low to middle income backgrounds, have
lost the potential bread earners of their families. This has resulted in
a gross violation of Petitioners’ right to life under Article 21 of the
Constitution of India.
135 This violation of the fundamental rights of the
Petitioners and their children/ husband under Article 21 of the
Constitution of India has been caused as a direct result of the
negligence and breach of statutory duties on the part of Respondent
No.2.
136 It is now well settled that where there is a violation of
fundamental rights under Article 21 of the Constitution of India by a
public authority, the Court has the power to direct the wrongdoers to
compensate the victims. In this regard, the following judgements are
relevant:-
A In Rudul Sah (supra), the Petitioner was seeking
compensation for his illegal detention for more than 14
years after his acquittal by a Court. Paragraphs 9 to 12 of
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under:-
“9. It is true that Article 32 cannot be used as a
substitute for the enforcement of rights and obligations
which can be enforced efficaciously through the ordinary
processes of courts, civil and criminal. A money claim has
therefore to be agitated in and adjudicated upon in a suit
instituted in a court of lowest grade competent to try it. But
the important question for our consideration is whether in
the exercise of its jurisdiction under Article 32, this Court
can pass an order for the payment of money if such an order
is in the nature of compensation consequential upon the
deprivation of a fundamental right. The instant case is
illustrative of such cases. The petitioner was detained
illegally in the prison for over 14 years after his acquittal in a
full-dressed trial. He filed a habeas corpus petition in this
Court for his release from illegal detention. He obtained that
relief, our finding being that his detention in the prison after
his acquittal was wholly uniustified. He contends that he is
entitled to be compensated for his illegal detention and that
we ought to pass an appropriate order for the payment of
compensation in this habeas corpus petition itself.
10. We cannot resist this argument. We see no
effective answer to it save the stale and sterile objection that
the petitioner may, if so advised, file a suit to recover
damages from the State Government. Happily, the State’s
counsel has not raised that objection. The petitioner could
have been relegated to the ordinary remedy of a suit if his
claim to compensation was factually controversial, in the
sense that a civil court may or may not have upheld his
claim. But we have no doubt that if the petitioner files a suit
to recover damages for his illegal detention, a decree for
damages would have to be passed in that suit, though it is
not possible to predicate, in the absence of evidence, the
precise amount which would be decreed in his favour. In
these circumstances, the refusal of this Court to pass an
order of compensation in favour of the petitioner will be
doing mere lip-service to his fundamental right to liberty
which the State Government has so grossly violated. Article
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detention. One of the telling ways in which the violation of
that right can reasonably be prevented and due compliance
with the mandate of Article 21 secured, is to mulct its
violators in the payment of monetary compensation.
Administrative scicrosis leading to flagrant infringements of
fundamental rights cannot be corrected by any other
method open to the judiciary to adopt. The right to
compensation is some palliative for the unlawful acts of
instrumentalities which act in the name of public interest
and which present for their protection the powers of the
State as a shield. If civilization is not to perish in this
country as it has perished in some others too well-known to
suffer mention, it is necessary to educate ourselves into
accepting that, respect for the rights of individuals is the
true bastion of democracy. Therefore, the State must repair
the damage done by its officers to the petitioner’s rights. It
may have recourse against those officers.
11. Taking into consideration the great harm done
to the petitioner by the Government of Bihar, we are of the
opinion that, as an interim measure, the State must pay to
the petitioner a further sum of Rs 30,000 (Rupees thirty
thousand) in addition to the sum of Rs 5000 (Rupees five
thousand) already paid by it. The amount shall be paid
within two weeks from today. The Government of Bihar
agrees to make the payment though, we must clarify, our
order is not based on their consent.
12. This order will not preclude the petitioner from
bringing a suit to recover appropriate damages from the
State and its erring officials. The order or 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. The Leviathan will have liberty to raise those points in
that suit. Until then, we hope, there will be no more Rudul
Sahs in Bihar or elsewhere.”
(emphasis supplied)
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B In Nilabati Behera (supra), the Hon’ble Supreme Court was
dealing with grant of compensation for the custodial death of the
Petitioner’s child. The Hon’ble Supreme Court, while discussing the
law on the issue of awarding compensation, held that the Court is not
helpless to grant relief in a case of violation of the right to life and
personal liberty. Paragraphs 17 and 19 of the majority judgement
in Nilabati Behera (supra) and paragraphs 33 to 35 of the concurring
judgement of Justice Dr. A. S. Anand are relevant and are set out
here under:-
“17. It follows that ‘a claim in public law for
compensation’ for contravention of human rights and
fundamental freedoms, the protection of which is
guaranteed in the Constitution, is an acknowledged
remedy for enforcement and protection of such rights,
and such a claim based on strict liability made by
resorting to a constitutional remedy provided for the
enforcement of a fundamental right is ‘distinct from, and
in addition to, the remedy in private law for damages for
the tort’ resulting from the contravention of the
fundamental right. The defence of sovereign immunity
being inapplicable, and alien to the concept of guarantee
of fundamental rights, there can be no question of such a
defence being available in the constitutional remedy. It
is this principle which justifies award of monetary
compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only
practicable mode of redress available for the
contravention made by the State or its servants in the
purported exercise of their powers, and enforcement of
the fundamental right is claimed by resort to the remedy
in public law under the Constitution by recourse to
Articles 32 and 226 of the Constitution. This is what was
indicated in Rudul Sah and is the basis of the
subsequent decisions in which compensation was
awarded under Articles 32 and 226 of the Constitution,
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19. This view finds support from the decisions
of this Court in the Bhagalpur Blinding cases: Khatri
(II) v. State of Bihar and Khatri (IV) v. State of Bihar
wherein it was said that the court is not helpless to grant
relief in a case of violation of the right to life and
personal liberty, and it should be prepared “to forge new
tools and devise new remedies” for the purpose of
vindicating these precious fundamental rights. It was
also indicated that the procedure suitable in the facts of
the case must be adopted for conducting the inquiry,
needed to ascertain the necessary facts, for granting the
relief, as the available mode of redress, for enforcement
of the guaranteed fundamental rights. More recently in
Union Carbide Corpn. v. Union of India Misra, CJ.
stated that “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… there is no
reason why we should hesitate to evolve such principle
of liability …”. To the same effect are the observations of
Venkatachaliah, J. (as he then was), who rendered the
leading judgment in the Bhopal gas case with regard to
the court’s power to grant relief.
* * * *
33. The old doctrine of only relegating the
aggrieved to the remedies available in civil law limits the
role of the courts too much as protector and guarantor of
the indefeasible rights of the citizens. The courts have the
obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and
expected to respond to their aspirations.
34. The public law proceedings serve a different
purpose than the private law proceedings. The relief of
monetary compensation, as exemplary damages, in
proceedings under Article 32 by this Court or under Article
226 by the High Courts, for established infringement of
the indefeasible right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is
based on the strict liability for contravention of the
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guaranteed basic and indefeasible rights of the citizen. The
purpose of public law is not only to civilize public power
but also to assure the citizen that they live under a legal
system which aims to protect their interests and preserve
their rights. Therefore, when the court moulds the relief by
granting “compensation” in proceedings under Article 32
or 226 of the Constitution seeking enforcement or
protection of fundamental rights, it does so under the
public law by way of penalising the wrongdoer and fixing
the liability for the public wrong on the State which has
failed in its public duty to protect the fundamental rights
of the citizen. The payment of compensation in such cases
is not to be understood, as it is generally understood in a
civil action for damages under the private law but in the
broader sense of providing relief by an order of making
monetary amends’ under the public law for the wrong
done due to breach of public duty, of not protecting the
fundamental rights of the citizen. The compensation is in
the nature of ‘exemplary damages’ awarded against the
wrongdoer for the breach of its public law duty and is
independent of the rights available to the aggrieved party
to claim compensation under the private law in an action
based on tort, through a suit instituted in a court of
competent jurisdiction or/and prosecute the offender
under the penal law.
35. This Court and the High Courts, being the
protectors of the civil liberties of the citizen, have not only
the power and jurisdiction but also an obligation to grant
relief in exercise of its jurisdiction under Articles 32 and
226 of the Constitution to the victim or the heir of the
victim whose fundamental rights under Article 21 of the
Constitution of India are established to have been
flagrantly infringed by calling upon the State to repair the
damage done by its officers to the fundamental rights of
the citizen, notwithstanding the right of the citizen to the
remedy by way of a civil suit or criminal proceedings. The
State, of course has the right to be indemnified by and take
such action as may be available to it against the wrongdoer
in accordance with law through appropriate proceedings.
Of course, relief in exercise of the power under Article 32
or 226 would be granted only once it is established that
there has been an infringement of the fundamental rights
of the citizen and no other form of appropriate redressal
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by the court in the facts and circumstances of the case, is
possible. The decisions of this Court in the line of cases
starting with Rudul Sah v. State of Bihar granted monetary
relief to the victims for deprivation of their fundamental
rights in proceedings through petitions filed under Article
32 or 226 of the Constitution of India, notwithstanding the
rights available under the civil law to the aggrieved party
where the courts found that grant of such relief was
warranted. It is a sound policy to punish the wrongdoer
and it is in that spirit that the courts have moulded the
relief by granting compensation to the victims in exercise
of their writ jurisdiction. In doing so the courts take into
account not only the interest of the applicant and the
respondent but also the interests of the public as a whole
with a view to ensure that public bodies or officials do not
act unlawfully and do perform their public duties properly
particularly where the fundamental right of a citizen under
Article 21 is concerned. Law is in the process of
development and the process necessitates developing
separate public law procedures as also public law
principles. It may be necessary to identify the situations to
which separate proceedings and principles apply and the
courts have to act firmly but with certain amount of
circumspection and self-restraint, lest proceedings under
Article 32 or 226 are misused as a disguised substitute for
civil action in private law. Some of those situations have
been identified by this Court in the cases referred to by
Brother Verma, J.”
(emphasis supplied)
C In B. K.Basu (supra), the Hon’ble Supreme Court once again
held that monetary compensation ought to be granted by a Writ
Court as redressal for infringed fundamental rights. The Hon’ble
Supreme Court took judicial notice of the fact that the ordinary civil
remedy for damages is a long-drawn and cumbersome process, and
thus held that the grant of compensation by a Writ Court would be
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the only effective remedy. Paragraphs 45 and 54 of the said
judgement are relevant and are set out here under:-
“45. The old doctrine of only relegating the
aggrieved to the remedies available in civil law limits the
role of the courts too much, as the protector and custodian
of the indefeasible rights of the citizens. The courts have
the obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and
expected to respond to their aspirations. A court of law
cannot close its consciousness and aliveness to stark
realities. Mere punishment of the offender cannot give
much solace to the family of the victim- civil action for
damages is a long drawn and a cumbersome judicial
process. Monetary compensation for redressal by the court
finding the infringement of the indefeasible right to life of
the citizen is, therefore, useful and at time perhaps the only
effective remedy to apply balm to the wounds of the family
members of the deceased victim, who may have been the
breadwinner of the family.
54. Thus, to sum up, it is now a well-accepted
proposition in most of the jurisdictions, that monetary or
pecuniary compensation is an appropriate and indeed an
effective and sometimes perhaps the only suitable remedy
for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants
and the State is vicariously liable for their acts. The claim
of the citizen is based on the principle of strict liability to
which the defence of sovereign immunity is not available
and the citizen must receive the amount of compensation
from the State, which shall have the right to be indemnified
by the wrongdoer. In the assessment of compensation, the
emphasis has to be on the compensatory and not on
punitive element. The objective is to apply balm to the
wounds and not to punish the transgressor or the offender,
as awarding appropriate punishment for the offence
(irrespective of compensation) must be left to the criminal
courts in which the offender is prosecuted, which the State,
in law, is duty bound to do. The award of compensation in
the public law jurisdiction is also without prejudice to any
other action like civil suit for damages which is lawfully
available to the victim or the heirs of the deceased victim
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1-wp-659-2018.docwith respect to the same matter for the tortious act
committed by the functionaries of the State. The quantum
of compensation will, of course, depend upon the peculiar
facts of each case and no strait-jacket formula can be
evolved in that behalf. The relief to redress the wrong for
the established invasion of the fundamental rights of the
citizen, under the public law jurisdiction is thus, in
addition to the traditional remedies and not in derogation
of them. The amount of compensation as awarded by the
Court and paid by the State to redress the wrong done, may
in a given case, be adjusted against any amount which may
be awarded to the claimant by way of damages in a civil
suit.”
(emphasis supplied)
137 From the aforesaid judgements passed by the Hon’ble
Supreme Court, it is clear that a Writ Court has the power to grant
compensation in cases where fundamental rights have been
infringed. In cases involving breach of fundamental rights by a public
authority like Respondent No.2, and, in particular, the fundamental
rights under Article 21 of the Constitution of India, the parties ought
not to be relegated to file a civil suit which is a long-drawn out and a
cumbersome process.
138 Further, significantly, in cases where a fire has broken
out at public places on account of the negligence of statutory
authorities in enforcing safety norms and rules, the Courts have
been pleased to direct Governmental authorities to grant
compensation to the families of the victims. The Punjab & Haryana
High Court in Dabwali Fire Tragedy Victims Assn (supra) held the
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State liable to pay compensation to the families of victims of a fire.
Paragraphs 18, 19 and 225 (1) and (2) of the said judgement are
relevant and are set out here under:-
“18 Dealing with the liability of the Municipal
Committee, Dabwali, the Commission came to the
conclusion that Rajiv Marriage Palace was constructed
in complete violation of the sanctioned plans. No
Completion Certificate was obtained by the owners and
the building occupied without clearance from the
Municipal Authorities. There were no fire fighting
equipments nor any exit gate except one that was
barely 10×12 feet wide. The onwers of the Marriage
Palace had never obtained “No ObjectionCertificate”
from the Fire Officer nor made any arrangement for
fire fighting equipment and other such essential
services before putting the Marriage Palace to use. The
Commission observed :-
“As stated by Shri Ramesh Chander,
Assistant Engineer of the Municipal Committee, he
did not care to inspect the site after the sanction of
the building plan. He did not care to see as to
whether the construction is being done according to
the site plan and all the constructions made by the
owners are according to the sanctioned site plan
and that after completion of the construction, a
completion certificate has been obtained or not and
whether a ‘no objection certificate’ from the Fire
Officer has been procured or not. In this view of the
matter, the Municipal Committee (respondent No.
7) was certainly negligent and so also respondents
No. 4 & 5 alongwith them”.
XXX XXX XXX
“This further shows that the Municipal Committee was
also negligent in so far as the maintenance and upkeep
of its fire station and the presence of the officials at the
Fire Station is concerned. It appears that the Municipal
Committee perhaps had no control or supervision on
the staff of its Fire Station, so much so, that even the
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the time when his presence was of utmost importance
at the time of such an emergency”.
19 The Commission then summed up its
findings regarding the negligence of the Municipal
Committee and its officials, in the following words :-
“It has also been held in this report that the officials
of the Municipal Committee, who were duty bound
to check the unauthorized construction in the town
and the construction of the Marriage Palace
according to the sanctioned plan, miserably failed
in the discharge of their duties. Had the officials of
the Municipal Committee taken due and timely
care, the tragedy might have been minimized. It has
been held above that the building of respondent No.
9 was constructed in violation of the sanctioned
plan; that no completion certificate was obtained by
the owners of the building before occupying the
same nor any fire fighting equipment was installed
and there was only one gate of entry and exit of the
size of 10′ x 12′. The Fire Officer of the Municipal
Committee took no pains to see that the owners of
the Marriage Palace had never obtained ‘No
Objection Certificate’ from him nor made any
arrangement for keeping fire-fighting equipment in
the case of emergency. Under the circumstances
and as held above the Municipal Committee
(respondent No. 7) and its officials were certainly
negligent in the discharge of their duties.
* * * *
225 In the result we pass the following order :--
(1) The amounts determined in each one of the cases
referred to in the body of this judgment are hereby
awarded in favour of the claimants with interest at the
rate of 6% per annum with effect from date of the filing
of the claim petition before the One Man Commission.
(2) Out of the total amount payable to each one of the
claimant, the State of Haryana shall pay 45% of the total
amount of compensation awarded in each one of the
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1-wp-659-2018.doccases dealt with by us with liberty to recover 15% each of
the amount so paid from Dakshin Haryana Bijli Virtran
Nigam and Municipal Committee, Dabwali. The balance
55% of the amount awarded shall be payable by
respondents No. 4, 5 and 9 jointly and severally.”
139 Further, in its judgement in DAV Managing Committee
(supra), the Hon’ble Supreme Court upheld the aforesaid findings of
the Punjab & Haryana High Court.
140 In the case of Sanjay Gupta v/s. State of U. P. (2015) 5
SCC 283, it was again the case of a fire breaking out at a Consumer
Show at Meerut. The Hon’ble Supreme Court directed the payment
of interim compensation to the families of the victims of the fire.
Paragraphs 13, 27 and 33 of the said judgement are relevant and are
set out here under:-
“13. Having so opined, we cannot comatose our
judicial conscience to the plight of the victims who have
approached this Court. Some of the petitioners are
themselves the victims or next kin of the deceased and
the injured persons who have suffered because of this
unfortunate man-made tragedy. It is the admitted
position that 64 deaths have occurred and a number of
persons have suffered grievous injuries. There are also
persons who have suffered simple injuries as has been
asserted by the State. We have been apprised at the Bar
that the State Government has already paid Rs 2 lakhs to
the legal representatives of the persons who have
breathed their last, and a sum of rupees one lakh has
been paid by the Central Government. As far as seriously
injured persons are concerned, rupees one lakh has been
paid by the State Government and Rs 50,000 has been
paid to the victims who have suffered simple injuries.”
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27. The Principal of the Government Inter College
granted the permission subject to certain restrictions.
Be it clarified, the said premises was an additional one.
It is averred in the petition that though the pandals
were not properly constructed, there was only one
entry and one exit gate, there had been violation of the
U.P. Fire Services Act, 1944, there were no proper fire
safety arrangements, yet the permission was granted to
hold the exhibition. Few things are extremely clear
from the entire assertion of facts. The Consumer Show
was organised at a place belonging to the State
Government, permission was granted by the Additional
District Magistrate in consultation with the
Superintendent of Police, the State Government had
not taken pains to see whether the other statutory
authorities as required under law had granted “No-
Objection Certificate” or not and also how far the
organisers had complied with the directions. The
primary obligation of the State was to see whether the
preparations made at the place of exhibition by the
organisers involved any risk or not and whether there
was proper arrangement for extinguishing the fire or
not in the covered area. Under these circumstances, we
are disposed to think that there has to be some initial
arrangement for payment of compensation by the State
awaiting the report from the Commission.
33. We have referred to the aforesaid authorities as
Mr Bhatia has impressed upon us for apportionment at
this stage. The principle of apportionment can be
thought of only after the Commission’s report is
received, but, a pregnant one, the victims and the
families cannot be left in the lurch. As we find, there
have been statutory violation and negligence on the part
of the authorities in not taking due care while granting
permission and during the exhibition was in progress,
we intend to direct payment of compensation, by way of
interim measure, by the State. Regard being had to the
facts and circumstances of the case and taking note of
the fact that some amount has already been given, we
direct, as an interim measure, that the legal
representatives of the deceased shall be paid Rs 5 lakhs
more and the seriously injured persons would be paid a
further sum of Rs 2 lakhs each and the persons who
have suffered minor injuries would be paid an additional
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sum of Rs 75,000. The said amount shall be deposited
before the District Judge, Meerut within two months
hence. The learned District Judge may nominate an
Additional District Judge, who, on making summary
enquiry, shall pay the amount to the legal
representatives and the victims. Be it noted, as
asseverated by the State, the legal representatives of the
deceased have been paid certain ex gratia amount and
the injured persons have been paid certain amount ex
gratia, their identity is known and, therefore, the
Additional District Judge shall conduct a summary
enquiry only for proper identification and disburse the
amount. The Collector, Meerut shall produce all the
documents for facilitating the summary enquiry at the
earliest so that the victims should not suffer and for the
said purpose we grant four weeks’ time to the Collector,
Meerut. The disbursement shall be made within one
month from the date of deposit.”
141 In very same matter, after the Commission appointed in
2015 returned its findings, the Hon’ble Supreme Court in Sanjay
Gupta v/s. State of U. P. (2022) 7 SCC 203, directed the State
Government to pay compensation on account of its negligence.
Paragraphs 16 to 19 and 21 and 22 of the said judgement are relevant
and are set out here under:-
“16. We find the precedents for payment of
compensation in a writ petition under Article 32 of the
Constitution fall under three categories of cases. First
category is where the acts of commission or omission are
attributed to the State or its officers such as Nilabati
Behera, Sube Singh, Rudul Sah v. State of Bihar, Bhim
Singh v. State of J& K and D.K. Basu v. State of W.B.
17. The second category of cases is where
compensation has been awarded against a corporate
entity which is engaged in an activity having the
potential to affect the life and health of people such as
M.C. Mehta wherein the Court held as under:
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1-wp-659-2018.doc“31. We would therefore hold that where in
enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on
account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, for
example, in escape of toxic gas the enterprise is strictly
and absolutely liable to compensate all those who are
affected by the accident and such liability is not subject
to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the rule in
Rylands v. Fletcher.”
18. The third category comprises of the cases where
the liability for payment of compensation has been
apportioned between the State and the Organisers of the
function. In Dabwali Fire Tragedy Victims Assn. v.
Union of India wherein in a fire accident, 446 persons
died and many others received burn injuries. The High
Court in a writ petition under Article 226 of the
Constitution held that the school which organised the
function and Respondent 8, the owner of the venue,
would be jointly and severally liable to pay 55% of the
compensation, remaining liability was to be borne out by
the State.
19. An appeal was filed by the school disputing the
liability of payment of compensation. This Court did not
interfere with the percentage of liability reduced to 55%
by the High Court from 80% held by the Inquiry
Commission in a judgment reported as DAV Managing
Committee v. Dabwali Fire Tragedy Victims Assn.
* * * *
21. The contentions raised by Mr Bhushan are
substantially same as were raised before the Delhi High
Court in Uphaar Tragedy Victims Assn., which were not
accepted. This Court in appeal had accepted the view of
the High Court except to the extent of the finding of
negligence against certain respondents. We are in
complete agreement with the findings recorded by this
Court in appeal that:
“98. where life and personal liberty have been
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compensation in the statute is of no consequence.
Right to life guaranteed under Article 21 of the
Constitution of India is the most sacred right preserved
and protected under the Constitution, violation of which
is always actionable and there is no necessity of
statutory provision as such for preserving that right.
Article 21 of the Constitution of India has to be read into
all public safety statutes, since the prime object of
public safety legislation is to protect the individual and
to compensate him for the loss suffered. Duty of care
expected from the State or its officials functioning
under the public safety legislation is, therefore, very
high….”
22. Keeping in view the judgments referred to by
this Court in its order dated 31-7-2014, as also the
judgments referred to above, we find that infringement
of Article 21 may be an individual case such as by the
State or its functionaries; or by the Organisers and the
State; or by the Organisers themselves have been
subject-matter of consideration before this Court in a
writ petition under Article 32 or before the High Court
under Article 226 such as Uphaar Tragedy or Dabwali
Fire Tragedy. Similar arguments have not found favour
with the Delhi High Court and in appeal by this Court.
The view taken therein does not warrant any
interference and we respectfully endorse the same.”
142 In our view, in the present case, Respondent No.2, by
committing gross breach of its statutory duties, has violated the
fundamental rights of the Petitioners and their children/ husband
under Article 21 of the Constitution of India. In these circumstances, in
our view, Respondent No.2 is liable to pay compensation to the
Petitioners as held by the Hon’ble Supreme Court and the Punjab and
Haryana High Court in the various judgements referred to by us
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herein above. We accordingly answer Question D in the affirmative.
QUESTION E
143 On the question as to what should be the compensation
payable to the Petitioners by Respondent No.2, the Hon’ble Supreme
Court has held in Nilabati Behera (supra) that the compensation in
matters concerning violation of fundamental rights cannot be
equated with damages in a civil action. While granting
compensation, the approach of the Court must be to penalize the
wrongdoers by directing them to make monetary amends for the
wrong done due to breach of public duties. The Hon’ble Supreme
Court held that the compensation to be awarded by Courts in such
matters must be in the nature of exemplary damages. Paragraph 34
of the said judgement is relevant in this regard and is set out here
under:-
“34. The public law proceedings serve a different purpose
than the private law proceedings. The relief of monetary
compensation, as exemplary damages, in proceedings under
Article 32 by this Court or under Article 226 by the High
Courts, for established infringement of the indefeasible right
guaranteed under Article 21 of the Constitution is a remedy
available in public law and is based on the strict liability for
contravention of the guaranteed basic and indefeasible rights
of the citizen. The purpose of public law is not only to civilize
public power but also to assure the citizen that they live
under a legal system which aims to protect their interests
and preserve their rights. Therefore, when the court moulds
the relief by granting “compensation” in proceedings under
Article 32 or 226 of the Constitution seeking enforcement or
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law by way of penalizing the wrongdoer and fixing the
liability for the public wrong on the State which has failed in
its public duty to protect the fundamental rights of the
citizen. The payment of compensation in such cases is not to
be understood, as it is generally understood in a civil action
for damages under the private law but in the broader sense
of providing relief by an order of making ‘monetary amends’
under the public law for the wrong done due to breach of
public duty, of not protecting the fundamental rights of the
citizen. The compensation is in the nature of ‘exemplary
damages’ awarded against the wrongdoer for the breach of
its public law duty and is independent of the rights available
to the aggrieved party to claim compensation under the
private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law.”
144 Further, in the case of Raman (supra), where a live
electrical wire electrocuted a five year old boy, the Hon’ble Supreme
Court held that the educational qualifications of the victim, his future
prospects including potential income, the number of dependents in
his family etc. ought to be considered while granting compensation.
Paragraphs 16 to 19, 21 and 22 of the said judgement are relevant
and are set out here under:-
“16. The learned Single Judge of the High Court
has awarded compensation keeping all these aspects of
the matter and has applied the guiding principle of
multiplier method after adverting to the case of Sarla
Verma v. DTC for the purpose of computation of just and
reasonable compensation in favour of the appellant
which method should not have been applied to the case
on hand, particularly, having regard to the statutory
negligence on the part of the respondents in not
providing the safety measures to see that live electric
wires should not fall on the roof of the building by
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1-wp-659-2018.docstrictly following the Rules to protect the lives of the
public in the residential area. This Court in Balram
Prasad v. Kunal Saha, has deviated from following the
multiplier method to award just and reasonable
compensation in favour of the claimant in a medical
negligence case. The same principle will hold good in the
case on hand too. The following case law is followed by
this Court in the abovereferred case, the relevant
paragraphs are extracted herein to award just and
reasonable compensation in favour of the appellant:
(SCC pp. 425, 437-39 & 445, paras 68, 99, 101, 103.1. &
112)
“68… three-Judge Bench decision of this Court in
Indian Medical Assn. v. V.P. Shantha, wherein this
Court has categorically disagreed on this specific
point in another case wherein ‘medical negligence’
was involved. In the said decision, it has been held at
para 53 that to deny a legitimate claim or to restrict
arbitrarily the size of an award would amount to
substantial injustice to the claimant.
99. In Govind Yadav v. New India Insurance Co. Ltd
this Court at para 15 observed as under which got
reiterated at SCC pp. 639-40, рага 13 of Ibrahim v.
Raju : (Govind Yadav case, SCC pp. 691-92)
15. In Reshma Kumari v. Madan Mohan this Court
reiterated that the compensation awarded under the
Act should be just and also identified the factors
which should be kept in mind while determining the
amount of compensation. The relevant portions of
the judgment are extracted below: (SCC pp. 431-32 &
440-41, paras 26-27 & 46-47)
26. The compensation which is required to be
determined must be just. While the claimants are
required to be compensated for the loss of their
dependency, the same should not be considered to be a
windfall. Unjust enrichment should be discouraged. This
Court cannot also lose sight of the fact that in given
cases, as for example death of the only son to a mother,
she can never be compensated in monetary terms.
27. The question as to the methodology required
to be applied for determination of compensation as
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regards prospective loss of future earnings, however, as
far as possible should be based on certain principles. A
person may have a bright future prospect; he might have
become eligible to promotion immediately; there might
have been chances of an immediate pay revision,
whereas in another (sic situation) the nature of
employment was such that he might not have continued
in service; his chance of promotion, having regard to the
nature of employment may be distant or remote. It is,
therefore, difficult for any court to lay down rigid tests
which should be applied in all situations. There are
divergent views. In some cases it has been suggested that
some sort of hypotheses or guesswork may be inevitable.
That may be so.
* ***
46. In the Indian context several other factors
should be taken into consideration including education
of the dependants and the nature of job. In the wake of
changed societal conditions and global scenario, future
prospects may have to be taken into consideration not
only having regard to the status of the employee, his
educational qualification; his past performance but also
other relevant factors, namely, the higher salaries and
perks which are being offered by the private companies
these days. In fact while determining the multiplicand
this Court in Oriental Insurance Co. Ltd. v. Jashuben
held that even dearness allowance and perks with regard
thereto from which the family would have derived
monthly benefit, must be taken into consideration.
47. One of the incidental issues which has also to
be taken into consideration is inflation. Is the practice of
taking inflation into consideration wholly incorrect?
Unfortunately, unlike other developed countries, in India
there has been no scientific study. It is expected that with
the rising inflation the rate of interest would go up. In
India it does not happen. It, therefore, may be a relevant
factor which may be taken into consideration for
determining the actual ground reality. No hard-and-fast
rule, however, can be laid down therefor.”‘
101. … he has also strongly placed reliance upon the
observations made at para 170 in Malay Kumar Ganguly
case referred to supra wherein this Court has made
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observations as thus: (SCC p. 282)
‘170. Indisputably, grant of compensation involving
an accident is within the realm of law of torts. It is
based on the principle of restitutio in integrum. The
said principle provides that a person entitled to
damages should, as nearly as possible, get that sum
of money which would put him in the same position
as he would have been if he had not sustained the
wrong. (See Livingstone v. Rawyards Coal Co.)’
103.1. In Ningamma case this Court has observed at para
34 which reads thus: (SCC p. 721)
’34. … in our considered opinion a party should not
be deprived from getting “just compensation” in case
the claimant is able to make out a case under any
provision of law. Needless to say, the MVA is
beneficial and welfare legislation. In fact, the court is
duty-bound and entitled to award ‘just
compensation’ irrespective of the fact whether any
plea in that behalf was raised by the claimant or not.’
112. The claimant has also placed reliance upon
Nizam’s Institute of Medical Sciences v. Prasanth S.
Dhananka in support of his submission that if a case is
made out, then the Court must not be chary of awarding
adequate compensation. The relevant paragraph reads as
under: (SCC pp. 38-39, para 88)
’88. We must emphasise that the court has to strike a
balance between the inflated and unreasonable
demands of a victim and the equally untenable claim
of the opposite party saying that nothing is payable.
Sympathy for the victim does not, and should not,
come in the way of making a correct assessment, but
if a case is made out, the court must not be chary of
awarding adequate compensation. The “adequate
compensation” that we speak of, must to some
extent, be a rule of thumb measure, and as a balance
has to be struck, it would be difficult to satisfy all the
parties concerned.’
(emphasis supplied)
17. Further in para 119, it is held: (Kunal Saha case, SCC
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pp. 447-48)
“119. ..this Court has rejected the use of multiplier
system to calculate [and award] the quantum of
compensation [which must be just and reasonable].
The relevant paragraph is quoted hereunder:
(Nizam’s Institute case, SCC para 92)
’92. Mr Tandale, the learned counsel for the
respondent has, further submitted that the proper
method for determining compensation would be the
multiplier method. We find absolutely no merit in
this plea. The kind of damage that the complainant
has suffered, the expenditure that he has incurred
and is likely to incur in the future and the possibility
that his rise in his chosen field would now be
restricted, are matters which cannot be taken care of
under the multiplier method.” “
(emphasis in original)
18. Further under para 121, the relevant
paragraph from United India Insurance Co. Ltd. v.
Patricia Jean Mahajan reads as under: (Kunal Saha case,
SCC p. 448)“121…. ’20. The court cannot be totally oblivious to
the realities. The Second Schedule while prescribing
the multiplier, had maximum income of Rs 40,000
p.a. in mind, but it is considered to be a safe guide
for applying the prescribed multiplier in cases of
higher income also but in cases where the gap in
income is so wide as in the present case income is
2,26,297 dollars, in such a situation, it cannot be
said that some deviation in the multiplier would be
impermissible. Therefore, a deviation from applying
the multiplier as provided in the Second Schedule
may have to be made in this case. Apart from factors
indicated earlier the amount of multiplicand also
becomes a factor to be taken into account which in
this case comes to 2,26,297 dollars, that is to say, an
amount of around Rs 68 lakhs per annum by
converting it at the rate of Rs 30. By Indian
standards it is certainly a high amount. Therefore,
for the purposes of fair compensation, a lesser
multiplier can be applied to a heavy amount of
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permissible in the figure of multiplier even according
to the observations made in Susamma Thomas
where a specific example was given about a person
dying at the age of 45 leaving no heirs being a
bachelor except his parents.’ (Patricia Jean Mahajan
case, SCC p. 295, para 20)”
(emphasis supplied)
19. Further, in para 177, it was held as under:
(Kunal Saha case, SCC p. 475)
“177. Under the heading of loss due to pain and
suffering and loss of amenities of the wife of the
claimant, Kemp and Kemp write as under:
‘The award to a plaintiff of damages under the
head “pain and suffering” depends as Lord Scarman
said in Lim Poh Choo v. Camden and Islington Area
Health Authority, upon the claimant’s personal
awareness of pain, her capacity of suffering.
Accordingly, no award is appropriate if and insofar
as the claimant has not suffered and is not likely to
suffer pain, and has not endured and is not likely to
endure suffering, for example, because he was
rendered immediately and permanently unconscious
in the accident. By contrast, an award of damages in
respect of loss of amenities is appropriate whenever
there is in fact such a loss regardless of the
claimant’s awareness of the loss.’‘Even though the claimant may die from his injuries
shortly after the accident, the evidence may justify an
award under this head. Shock should also be taken
account of as an ingredient of pain and suffering and the
claimant’s particular circumstances may well be highly
relevant to the extent of her suffering.
* * * *
By considering the nature of amenities lost and the
injury and pain in the particular case, the court must
assess the effect upon the particular claimant. In
deciding the appropriate award of damages, an
important consideration is how long he be deprived of
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been and will be endured. If it is for the rest of his life the
court will need to take into account in assessing damages
the claimant’s age and his expectation in life. …” ”
21. In view of the law laid down by this Court in
the abovereferred cases which are extensively
considered and granted just and reasonable
compensation, in our considered view, the
compensation awarded at Rs 60 lakhs in the judgment
of the learned Single Judge of the High Court, out of
which Rs 30 lakhs were to be deposited jointly in the
name of the appellant represented by his parents as
natural guardian and the Chief Engineer or his nominee
representing the respondent Nigam in a nationalised
bank in a fixed deposit till he attains the age of majority,
is just and proper but we have to set aside that portion
of the judgment of the learned Single Judge directing
that if he survives, he is permitted to withdraw the
amount, otherwise the deposit amount shall be reverted
back to the respondents as the same is not legal and
valid for the reason that once the compensation amount
is awarded by the court, it should go to the
claimant/appellant. Therefore, the victims/ claimants
are legally entitled for compensation to be awarded in
their favour as per the principles/guiding factors laid
down by this Court in a catena of cases, particularly, in
Kunal Saha case referred to supra. Therefore, the
compensation awarded by the Motor Accidents Claims
Tribunals/Consumer Forums/State Consumer Disputes
Redressal Commissions/National Consumer Disputes
Redressal Commission or the High Courts would
absolutely belong to such victims/claimants. If the
claimants die, then the Succession Act of their
respective religion would apply to succeed to such estate
by the legal heirs of victims/claimants or legal
representatives as per the testamentary document if
they choose to execute the will indicating their desire as
to whom such estate shall go after their death. For the
aforesaid reasons, we hold that portion of the direction
of the learned Single Judge contained in sub-para (v), to
the effect of Rs 30 lakhs compensation to be awarded in
favour of the appellant, if he is not alive at the time he
attains majority, the same shall revert back to the
respondent Nigam after paying Rs 5 lakhs to the parents
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be set aside. Accordingly, we set aside the same and
modify the same as indicated in the operative portion of
the order.
22. The remaining compensation amount of Rs
30 lakhs to be deposited in a fixed deposit account in
the name of the petitioner (minor) under joint
guardianship of the parents of Raman and the
Engineer-in-Chief or his nominee representing the
respondent Nigam, in a nationalised bank as corpus
fund, out of which an interest of Rs 20,000 p.m.
towards the expenses as indicated in sub- para (vi) of
the order passed by the learned Single Judge, cannot be
said to be on the higher side, but in our view, the said
amount of compensation awarded is less and not
reasonable and having regard to the nature of 100%
permanent disability suffered by the appellant, it should
have been much higher as the appellant requires
permanent assistance of an attendant, treatment
charges as he is suffering from agony and loss of marital
life, which cannot be compensated by the amount of
compensation awarded by the learned Single Judge of
the High Court. Hence, having regard to the facts and
circumstances of the case, it would be just and proper
for this Court to restore the judgment of the learned
Single Judge on this count and we hold that the
directions contained in the said judgment are justifiable
to the extent indicated above. The Division Bench while
exercising its appellate jurisdiction should not have
accepted the alleged requisite instructions received by
the counsel on behalf of the appellant and treated as ad
idem and modified the amount as provided under sub-
para (vi) of the order of the learned single judge and
substituted para 4 in his judgement as indicated in the
aforesaid portion of the judgment which is wholly
unreasonable and therefore, it is unsustainable in law as
it would affect the right of the appellant for getting his
legal entitlement of just and reasonable compensation
for the negligence on the part of the respondents.
(emphasis supplied)
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145 Further, the judgement of this Court in Umakant B.
Mane (supra) also laid down principles for the grant of
compensation by the State or public authorities for negligence and
violation of fundamental rights. Paragraphs 28 to 30 of the said
judgement are relevant and are set out here under:-
“28. While determining compensation, the age,
income, impairment of future earning capacity and
number of dependents are determining factors. There
is no straight jacket formula. There is no uniformity or
yardstick followed in awarding damages for violation
of fundamental rights. In a similar matter, 2014 SCC
OnLine SC 1089, Alfred Benddict and anr. vs. M/s
Manipal Hospital, Bangalore and ors., the Apex Court
awarded 20 lakhs for a two year old child. The
relevant paragraphs are reproduced herein :-
“The facts in a nutshell are that complainants
took their two years old daughter, who was
suffering from normal cold and cough, to Dr.
Arvind Shenoy, Consultant Pediatric, who
after giving treatment for few days, advised
for her admission to M/s Manipal Hospital
Bangalore (in short, “the Hospital”). On
admission, she was taken to pediatric
intensive care unit and diagnosed that she
was suffering from cold and cough as well as
from pneumonia. She was given intravenous
fluids by inserting needle on the dorsal aspect
of right wrist from August 26, 2002 to August
28, 2002. However, the baby developed
gangrene initially in the finger tips, which
spread to the portion of the hand below writs
joint, due to blockage of blood supply. It is
contended on behalf of complainants (parents
of the baby) that Hospital Doctors conducted
Angiogram and confirmed that there was
complete blockage of blood supply to the right
forearm and they conducted operation on the
right forearm to restore blood supply but the
same could not be restored and, eventually,
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lose her right forearm. It is alleged that the
complainants, thereafter, came to know that
the needle was wrongly inserted into artery
instead of vein due to which the blood supply
was blocked.
The complainants were shocked and highly
dismayed at the conduct of the hospital
Doctors, who had admitted their daughter for
treating cough, cold and fever and now she
was on the brink of losing her hand due to
utter negligence of the Hospital and their
Doctors. The complainants-Parents did not
agree for the amputation as the child was
merely two years old at that time. It is
alleged that Dr. Vasudeva Rao,Vascular
Surgeon of the Hospital, even threatened
and forced the parents to give their
consent for amputation on the pretext that
any delay would endanger the life of child.
Thus imputing the opposite parties i.e. the
Hospital and the concerned Doctors,
complainants filed a complaint before the
Karnataka State Consumer Disputes
Redressal Commission, Bangalore (in short,
“the State Commission”) praying for grant of
compensation of Rs. One crore.
The National Commission affirmed the
quantum of compensation and directed to
pay a further sum of Rs.10,000/- to the
complainants towards the cost. We have
heard learned counsel for the parties and
have gone through the finding recorded by
the State Commission as also the National
Commission. We do not find any reason to
differ with the finding that it was only
because of the negligence on the part of the
Hospital the two years’ child developed
gangrene resulting into amputation of her
right arm.
However, taking into consideration the
sufferings of the girl child, who is now 13
years of age, in our opinion the compensation
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Learned counsel appearing for the
complainant submitted that every year she
has to incur battery charges for the artificial
limb, which costs 80,000/- annually. There
cannot be any dispute that the girl will have
to suffer throughout her life and has to live
with artificial limb. Not only she would have
to face difficulty in her education but would
have also to face problem in getting herself
married. Although the sufferings, agony and
pain, which the girl child will carry cannot
be compensated in terms of money, but, in
our view, a compensation of 20,00,000/-
(Rupees Twenty Lakhs only) will be just and
reasonable in order to meet the problems
being faced by her and also to meet future
troubles that will arise in her life.
With the aforesaid reason, we allow the
appeal filed by the complainants being Civil
Appeal arising out of SLP(C)No. 35632 of
2013 by enhancing the compensation to
20,00,000/- (Rupees Twenty Lakhs only),
which shall carry simple interest of 9 per cent
per annum from the date of this order. It
may be made clear that out of the total
compensation, a sum of ₹10 lakhs shall be
deposited in a long term fixed deposit in a
nationalized bank so that this amount
along with interest, that may accrue, shall
take care of her future needs. The
balance Rs.10 lakhs shall be utilized by
investing Rs.5 lakhs in a short term fixed
deposit in a nationalized bank so that this
amount along with accrued interest will
take care of her needs in near future. The rest
Rs. 5 lakhs may be spent for her further
medical treatment.
The aforesaid compensation amount shall be
paid by owner of the Hospital within six
weeks from today. It is needless to say that
the amount, which has already been paid,
shall be adjusted out of the amount
awarded by this Court.”
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29. As stated in the petition, the petitioner was
about 21/22 years of age and he was doing an ITI –
fitter course but now due to amputation of his right
hand fingers he could not complete the course and is
not in a position to secure any job. The petitioner had
prayed for a direction to the respondent No. 2 to
employ him so that he gets means of his livelihood.
The respondent No. 2 declined to employ him. It is
stated in the petition that there are 10 members in the
family of the petitioner and the father of the petitioner
was old and the only earning member in the family.
Due to amputation of the fingers, the petitioner is a
physically challenged person. Though in the service of
the respondent No. 2 there are reservations made for
physically challenged/disabled persons, still the
respondent No. 2 refused to employ the petitioner on
humanitarian ground. In fact the petitioner had even
offered to work as a peon. The respondent No. 2 is a
large organisation and could have employed the
petitioner but had declined to do so. Moreover
negligence attributable to the responsible staff not
only ruined the future of the petitioner but also
permanently handicapped him.
30. In our view, the cause for the petitioner losing
the fingers of his right hand is directly attributable to
the gross and direct negligence on the part of the
doctors and nursing staff of Rajawadi Hospital run by
the respondent-State. There has been gross negligence
on the part of the respondents in performing its
duties. The petitioner, therefore, is certainly entitled
to compensation in the nature of exemplary damages
from the respondents. The petitioner in the petition
has stated that fitters earn in the region of Rs. 5000/–
₹7000/- per month, which in our view is rather
reasonable. This was the position in 2002/2003 when
the petition was filed. Based on this, the petitioner has
claimed 10,00,000/-. Factoring inflation and the
changed economic scenario, the petitioner should be
entitled to higher compensation. The petitioner,
however, is claiming only 10 lakhs. We are, therefore,
granting this amount as compensation. The
respondents are, therefore, directed to pay the amount
of ₹ 10 lakhs to the petitioner. The respondents also to
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pay interest @ 9% p.a. on the said amount for the
period beginning from 1st November, 2002 until
payment/realisation. The principal and interest
amount shall be deposited in this Court with the
Prothonotary and Senior Master within two months
from today. Failure to do so will attract further
interest @9% p.a. on the principal amount of 10 lakhs
and the accumulated interest.”
146 The details of the victims of the fire incident at Kinara
are set out herein below:-
Sr. Name Age No. of Educational Skills Working
No Family Qualification status of the
. Members victim or their
family
members
1 Erwin Dsouza 18 3 2nd year – Athlete, Aledn
Bachelors’ in Guitarist, Dsouza, the
Mass Media Studious victim’s
brother is
working
2 Akash Pradeep 19 3 3rd year Footballer and Rekha P.
Thapar Engineering (IT) Studious Thapar, the
victim’s
mother,
conducts
Tuitions
3 Brian Antony 20 4 3rd year Footballer None
Fernando Engineering (IT) with many
accolades to
his name
4 Arvind Kumar 32 3 … …. Employee at
Kanaujia Sterling
Engineering
Consultants
5 Sharjeel Jalil Shaikh 20 4 3rd year Footballer and The victim’s
Engineering (IT) Studious mother is a
teacher
6 Taha Mushtaque 20 4 3rd year – Footballer and The victim’s
Shaikh Engineering (IT) Studious father dealt in
second hand
cars
7 Bernadette Alein 18 2 2nd year – Basketball The victim’s
D’souza Bachelors’ in Player and mother is
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8 Sajid Chaudhary 20 4 3rd year Footballer and The victim’s
Engineering (IT) Studious father is
working.
147 From the aforesaid table, it can be seen that except for
the victim mentioned at Serial No.4, namely – Arvind Kanaujia, the
other victims are all students and are 20 years of age or below.
Further, as far as these students are concerned, five of them were
studying Engineering (IT) and two of them were doing graduation in
Mass Media. As far as the victim at Sr. No.4, Arvind Kumar Kanaujia,
is concerned, his age is 32 years and he was gainfully employed at
Sterling Engineering Consultants. Hence, in the case of all the
victims, they had a full working life ahead of them. Further, since the
students were studying Engineering (IT) or Mass Media, and Arvind
Kanaujia was employed at Sterling Engineering Consultants, it would
be safe to presume that, during their whole working life, they would
earn a good salary. Further, looking at the table above, shows that all
these persons had dependents, only few of whom were working. The
wife of Arvind Kanaujia and the parents of the other victims would
thus have relied upon the victims for their maintenance and
upkeeping. Keeping all these factors in mind, in our view, in respect
of each victim, compensation of atleast Rs.30 lakhs would be payable
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in 2015. Considering inflation and the interest that the said sum of
Rs. 30 lakhs would have earned over the period of 10 years, the
compensation payable to each of the Petitioners, in 2025, would be
Rs. 50 lakhs.
148 For all the aforesaid reasons, we are of the view that
Respondent No.2 would be liable to pay compensation of Rs.50 lakhs
to each of the Petitioners. We answer Question E accordingly.
DEFENSES RAISED BY RESPONDENT NO.2:-
149 It is the submission of Respondent No.2 that the present
Petition was originally filed challenging the Order dated 27 th
February,2017 passed by the Lokayukta, Maharashtra State. It is the
submission of Respondent No.2 that the scope of the present writ
proceedings cannot be allowed to be expanded. Respondent No.2
submitted that the Petitioners appear to have abandoned their
original proceedings initiated before the Lokayukta and have sought
to argue the present Writ Petition as if it is an original proceeding.
This submission of Respondent No.2 cannot be accepted in light of
the Order dated 20th August, 2019 passed by this Court in the present
Writ Petition wherein this Court has recorded that, in view of the
tragic loss of human lives, this Court would like to consider the
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issues arising in the Petition and, in particular, whether
compensation should be paid to the families of the victims and
whether liability can be attached to Respondent No.2 for negligence
or disregard in discharge of its duties , if any, which may have
resulted into or led to the unfortunate incident at Kinara. This Order,
passed by this Court in the present Writ Petition, has not been
challenged or set aside, and that is the reason why we have, in the
present Writ Petition, considered the issue as to whether Respondent
No.2 is liable to pay any compensation to the Petitioners or
otherwise.
150 Respondent No.2 submitted that after the Kinara Fire
Incident, one Vijay Manthena, had filed a Writ Petition, being Writ
Petition No. 1443 of 2018, raising a similar grievance against the
actions/ in-action of Respondent No.2. Respondent No.2 further
submitted that the said Writ Petition was disposed of by this Court
by its Order dated 16th July, 2019. It is the submission of
Respondent No.2 that this Court had occasion to consider the steps
taken and default on the part of Respondent No.2 against the
backdrop of the Kinara Incident, and, therefore, nothing survives in
the present Writ Petition.
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151 Firstly, it important to note that the said Order dated
16th July, 2019 does not consider or discuss the issues raised in the
present Writ Petition. Further, in any case, the said Writ Petition, in
which the said Order dated 16th September, 2019 was passed, was not
filed by any of the Petitioners, and, therefore, does not bind the
Petitioners. For these reasons, we are unable to accept the aforesaid
submission of Respondent No.2.
152 It is further the submission of Respondent No.2 that the
owner and conductor of Kinara Hotel (who are Respondent No.6 and
Respondent No.7) are solely liable for the fire at Kinara on account of
their acts of gross negligence and recklessness. It is further the
submission of Respondent No.2 that therefore it is these
Respondents who are liable to compensate the Petitioners. As stated
by us herein above, in the present Petition, in the light of Order
dated 20th August, 2019 passed in this Petition, we are considering
only whether Respondent No.2 is liable to compensate the
Petitioners. Further, as held by us herein above, there has been gross
negligence on the part of Respondent No.2 and gross breach of its
statutory duties, despite receiving complaints and despite being
aware of very serious breaches of the license conditions made by
Kinara. Further, as already held herein above, Respondent No.2’s
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negligence has a proximate cause to the tragic fire and, therefore,
Respondent No.2 must be held liable. In these circumstances, we are
unable to accept the submission of Respondent No.2 that the owner
and conductor of Kinara Hotel (Respondent Nos. 6 and 7) are solely
liable to compensate the Petitioners. Further, in any case, it would be
open to Respondent No.2 to recover from other persons [including
the owner and conductor of Kinara Hotel] the compensation paid by
it to the Petitioners.
153 Next, it is the submission of Respondent No.2 that the
liability of Respondent No.2 cannot be presumed in the absence of a
direct and proximate causal link between the acts of commission
and/or omission of the officers of Respondent No.2 and the fire
incident at Kinara and the fatalities in question. This argument of
Respondent No.2 also cannot be accepted as, for all the reasons
stated herein above, we have held that Respondent No.2’s negligence
has a proximate cause to the tragic fire, and, therefore, Respondent
No.2 must be held liable.
154 Respondent No.2 has also submitted that Respondent
No.2, within the limited manpower and other resources available at
its disposal, aims and strives to provide best standard of service to
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the people and is aware of its responsibilities towards the people and
need for better governance. Respondent No.2 submitted that its
resources are already strained. In this context, Respondent No.2
submitted that the Health Department has to undertake varied forms
of duties, in addition to issuance of license and monitoring of trade
establishments for compliance. Respondent No.2 submitted that this
is coupled with the fact of the fast paced growth in activity in a city
like Mumbai. Respondent No.2 further submitted that Kinara is
situated in ‘L’ ward, which is the largest ward in the Corporation with
an area of 15.88 sq. kms, which stretches from Sion to Ghatkopar
and Chembur to Powai. The population of the said ward, as per the
2011 census, was around 8,92,279, and considering the growth in
population, it might have been around 10 to 11 lakhs in the year
2015. He submitted that the number of licensed eateries in the said
ward are 313. Respondent No.2 submitted that, as per the
organizational structure of the Public Health Department, the MOH
is the licensing authority under whom there is a Senior Sanitary
Inspector, and below the Senior Sanitary Inspector, are Sanitary
Inspectors. Respondent No.2 submitted that, at the time of the
incident, there was only one Senior Sanitary Inspector and against
four posts of Sanitary Inspector, there were only three Sanitary
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Inspectors available. He submitted that the said officers had the
humongous task of ensuring strict compliance of regulatory
requirements in the ‘L’ ward in addition to their other duties and
responsibilities.
155 In this context, Respondent No.2 relied upon the
decision of the Hon’ble Supreme Court in Rajkot Municipal
Corporation (supra). Respondent No.2 submitted that in the said
judgement, the Hon’ble Supreme Court has evolved the doctrine of
direct and immediate causation which mandates that accountability
be affixed only to the party whose negligent act or omission
proximately resulted in the harm suffered. Respondent No.2
submitted that applying the said principle to the present case, the
explosion at Kinara was a direct and exclusive consequence of the
wilful violation of statutory safety norms by the hotel owner and
manager, specifically concerning the improper storage and handling
of LPG cylinders. Respondent No.2 submitted that in its capacity as a
regulatory authority, it could not be held liable for the said incident
in the absence of any proximate act or omission on its part that
directly contributed to the explosion or fatalities. Respondent No.2
submitted that the actions of the hotel management constitute an
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independent and intervening cause which severs any casual link
between Respondent No.2 and the resulting harm.
156 In the case of Rajkot Municipal Corporation (supra), the
deceased Jayantilal was residing in Padadhri. He used to daily come
on a railway season ticket to Rajkot to attend his office. On 25 th
March, 1975, while he was walking on the footpath on the way to his
office, a roadside tree suddenly fell on him as a result of which he
sustained injuries on his head and other parts of the body and later
died in the hospital. The Respondent therein filed a suit for damages
claiming a sum of Rs. 1 lakhs from the Appellant- Corporation. The
Trial Court decreed the suit for a sum of Rs.45,000/-, finding that
the Appellant had failed in its statutory duty to check the healthy
condition of trees and to protect the deceased from the tree falling on
him, resulting in his death. On Appeal, the Division Bench held that
the Appellant had a statutory duty to plant trees on the roadsides as
also the corresponding duty to maintain the trees in proper
condition. While the tree was in a still condition, it had suddenly
fallen on the deceased Jayantilal who was passing on the footpath.
The statutory duty gives rise to tortious liability on the State and as
its agent,the Appellant-Corporation being a statutory authority was
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guilty of negligence on its part in not taking care to protect the life of
the deceased. The Division Bench further held that the Respondents
therein could not be called upon to prove that the tree had fallen due
to the Appellant’s negligence. Statutory obligation to maintain trees
being absolute, and since the tree had fallen due to its decay, the
Appellant had failed to prove that the occurrence had taken place
without negligence on its part. The Appellant failed to make
periodical inspection whether the trees were in good and healthy
condition subjecting them to seasonal and periodical treatment and
examination. Therefore, the Appellant had not taken care to foresee
the risk of the tree’s falling and causing damage to the passers-by.
Thus, the Appellant is liable to pay damages for the death of
Jayantilal. The Division Bench accordingly confirmed the decree of
the Trial Court and therefore the Appeal by Special Leave was filed
before the Hon’ble Supreme Court. The Hon’ble Supreme Court
allowed the said Appeal.
157 In the said judgement, after discussing the law of torts in
detail, the Hon’ble Supreme Court held that, in that case, since the
Municipal Corporation was not in know of the discoverable defect or
danger and the damage was caused by an accident like sudden fall of
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the tree, it would be difficult to visualize that the Appellant-
Corporation had knowledge of the danger and omitted to perform
the duty of care to prevent its fault. In this context, paragraphs 58,
59,62 and 63 of the said judgement are relevant and are set out here
under:-
“58:- But when the defendant was not in know of
the discoverable defect or danger and it caused the
damage by accident like sudden fall of the tree, it would
be difficult to visaulise that the defendant had
knowledge of the danger and he omitted to perform the
duty of care to prevent its fault. There would no special
relationship between the statutory authority and the
plaintiff who is a remote user of the footpath or the
street by the side of which the trees were planted,
unless the defendant is aware of the condition of the
tree that it is likely to fall on the footpath on which the
plaintiff/class of persons to which he belongs frequents
it. The defendant by his non-feasance is not responsible
for the accident or cause of the death since admittedly
there was no visible sign that the tree was affected by
disease. It had fallen in a still condition of weather.
59:- Therefore, there must exist some proximity of
relationship, foreseeability of danger and duty of care
to be performed by the Defendant to avoid the accident
or to prevent danger to person of the deceased
Jayantilal. The requisite degree of proximity requires to
be established by the plaintiff in the circumstances in
which the plaintiff was injured. The plaintiff would not
succeed by establishing that the accident had occurred
due to negligence,i.e. the defendant’s failure to take
reasonable care as ordinary prudent man, under the
circumstances, would have taken and the liability in
tort to pay damages had arisen. If the defendant had
become aware of the decayed condition or that the tree
was affected by disease and taken no action to prevent
the accident, it would be actionable, though for non-
feasance. Mere appearance of danger, gives rise to no
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1-wp-659-2018.docliability. Actual damage had occurred before tortious
liability for negligence arose. When the defendant is
under a statutory duty to take care not to create latent
source of physical danger to the property or the person
who in the circumstances is considered to be
reasonably foreseeable as likely to be affected thereby,
the defendant would be liable for tort of negligence. If
the latent defect causes actual physical damages to the
person, the defendant is liable to damages for tortious
liability. The negligent act or omission of the statutory
authority must be examined with reference to the
statutory provisions, creating the duty and the
resultant consequences. The negligent act or omission
must be specifically directed to safeguard the public or
some sections of the public to which the plaintiff was a
member from the particular danger which has resulted.
62 The question, therefore, is whether the
respondents in the present case have established the
three essential ingredients? The statute enjoins a power
to plant trees on the roadsides or in public places.
There is no statutory sanction for negligence in that
behalf. But the question is whether the statutory
function to plant trees gives rise to a duty of
maintaining the trees. In a developing society it is but
obligatory on every householder, when he constructs a
house and equally for a public authority to plant trees
and properly nurture them in a healthy condition so as
to protect and maintain the eco-friendly environment.
But the question is whether the public authority owes a
statutory duty towards that class of persons who
frequent and pass and repass on the public highway or
road or the public places. If the local
authority/statutory body has neglected to perform the
duty of maintaining trees in a healthy condition and
when damage, due to fall of the tree occurs, the
question emerges whether the neighbour relationship
and proximity of the causation and negligence and the
duty of care towards the plaintiff have been
satisfactorily proved to have existed so as to fasten the
defendant with the liability due to tort of negligence. It
depends on a variety of facts and circumstances. It is
difficult to lay down any set standards for proof thereof.
Take for instance, where a hanging branch of a
tree/tree is gradually falling on the ground. The
statutory/local authority fails to take timely action to
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1-wp-659-2018.dochave it cut and removed and one of the passers-by dies
when the branch/tree falls on him. Though the injured
or the deceased has contributed to the negligence for
the injury or death, the local authority etc. is equally
liable for its negligence/omission in the performance of
the duty because the proximity is anticipated. Suppose
a boy not suspecting the danger climbs or reaches the
falling tree and gets hurt, the defendant would be liable
for tort of negligence. The defect is apparent.
Negligence is obvious, proximity and neighbourhood
anticipated and lack of duty of care stands established.
The plaintiff, in common law action, is entitled to sue
for tort of negligence. The authority will be liable to pay
the damages for omission or negligence in the
performance of the duty. Take another instance, where
while ‘A’ is passing on the road, there is sudden
lightning and thunder and ‘A’ takes shelter under a tree
and the lightning falls on the tree and consequently ‘A’
dies. In this illustration, there is no corresponding
obligation or a duty of care on the part of the
Corporation or the statutory authority to warn that ‘A’
should not take shelter under the tree to avoid harm to
him. Take yet another instance, where a road is being
laid and there is no warning or signal and a cyclist or a
motorcyclist during night falls in the ditch, i.e., place of
repair due to negligence on the part of the defendant.
The injury is caused to the victim/vehicle. The plaintiff
is entitled to lay suit for tort of negligence. But in a
situation like the present one where the victim being
not aware of the disease/decay, the tree suddenly falls
in a still weather condition, no one can anticipate and it
is difficult to foresee that a tree would fall suddenly and
thereby a person who would be passing by on the
roadside, would suffer injury or would die in
consequence. The Corporation or the authority is not
liable to be sued for tort of negligence since the
causation is too remote. Novus actus inconveniens
snaps the link and, therefore, it is difficult to establish
lack of care resulting in damage and foreseeability of
the damage. The case in hand falls in this category.
Jayantilal was admittedly passing on the roadside to
attend to his office duty. The tree suddenly fell and he
sustained injury and consequently died. It was difficult
to foresee that a tree would fall on him.
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63. 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, roadsides, highways frequented by
passers-by. There is no duty to maintain regular
supervision thereof, though the local authority/ other
authority/ owner of a property is under a duty to plant
and maintain the tree. The causation for accident is too
remote. Consequently, there would be no common law
right to file suit for tort of negligence. It would not be
just and proper to fasten duty of care and liability for
omission thereof. It would be difficult for the local
authority etc. to foresee such an occurrence. Under
these circumstances, it would be difficult to conclude
that the appellant has been negligent in the
maintenance of the trees planted by it on the
roadsides.”
(emphasis supplied)
158 We fail to see how this decision would come to the
rescue of Respondent No. 2. As stated in this decision, the Hon’ble
Supreme Court clearly found, on facts, that the causation of the
accident was too remote and it was difficult for the local authority to
forsee such an accident. In the facts of the present case, as stated in
detail herein above, Respondent No.2 was aware of the various
breaches and illegalities in Kinara which were a fire hazard, and
despite complaints and their own Inspection Reports noting the
same, did not take any action. Further, as can be seen from the other
judgements of the Hon’ble Supreme Court referred to herein above,
some of which are subsequent to the judgement in Rajkot Municipal
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Corporation (supra), the Hon’ble Supreme Court has clearly held
that when breach of a statutory duty by a public authority leads to
violation of fundamental rights under Article 21 of the Constitution
of India, the public authority is liable to pay compensation. We,
therefore, find that the reliance placed by Respondent No. 2 on the
decision of the Hon’ble Supreme Court in the case of Rajkot
Municipal Corporation (supra) is wholly misplaced.
159 Respondent No.2 has submitted that in the
Departmental Enquiry held by it, two Sanitary Inspectors were given
appropriate punishment, and, for this reason also, Respondent No.2
should not be held liable for payment of any compensation. In our
view, awarding punishment in a Departmental Enquiry to certain
officers does not absolve Respondent No.2 from paying
compensation to the Petitioners for the violation of the fundamental
rights of the Petitioners and their children/ husband under Article 21
of the Constitution of India. Therefore, in our view, this argument of
Respondent No.2 is stated only to be rejected.
160 Respondent No.2 further submitted that since it is a
public body, it should not be fastened with any liability for
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compensation considering the steps taken by it after the incident and
the strain which any such award of compensation would put on the
public funds. In our view, any steps that may have been taken by
Respondent No.2 after the incident cannot absolve Respondent No.2
of its liabilities. Further, the alleged strain on public funds also
cannot be a ground to absolve Respondent No.2 of its liability. At the
cost of repetition, we would like to reiterate that Respondent No.2,
by not taking action against Kinara, despite being aware of serious
breaches committed by Kinara of the license conditions, committed a
breach of its statutory duties. This breach of statutory duties on the
part of Respondent No.2 is the direct and proximate cause of the
incident of fire at Kinara. If Respondent No.2 had performed its
statutory duties, the fire at Kinara would not have taken place. It is in
these circumstances, that we have held Respondent No.2 liable to
pay compensation.
161 Finally, Respondent No.2 relied upon an Order dated 8th
August, 2019 passed by this Court in Shri Anil B. Kamble v/s. The
Barshi Municipal Council and Another (Writ Petition No. 4066 of
2018). Relying upon this Order, Respondent No.2 submitted that by
the said Order, this Court had directed the Municipal Council to pay
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Rs.2 lakhs to the mother of the deceased by way of ad-hoc
compensation and had left it open to the Petitioners to file
appropriate civil proceedings seeking further compensation.
Respondent No.2 submitted that this approach was the correct one
and deserves to be followed in the present case too. Respondent No.2
submitted that, in that case, the wall which fell and led to death was
built and managed by the Municipal Council, and yet such a course
was adopted by this Court. Respondent No.2 submitted that, in the
present case also, such a course should be adopted by this Court. We
are afraid that we are not inclined to accept the said submission of
Respondent No.2. In Shri Anil Kamble (supra), in the facts of the
said case, this Court came to the conclusion that the task of
computing compensation cannot be done in a Writ Petition in the
absence of full material facts before this Court, and, therefore,
relegated the Petitioner therein to file appropriate civil proceedings,
seeking such compensation. In our view, the said decision is clearly
distinguishable on facts. In the present case, the material facts for
claiming compensation have been placed before this Court. Further,
as held by the Hon’ble Supreme Court in the various decisions
referred to in this judgement, if a breach of statutory duties by a
public authority has led to violation of fundamental rights under
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Article 21 of the Constitution of India, then compensation can and
ought to be awarded in a Writ Petition.
SUBMISSIONS OF OTHER RESPONDENTS:-
162 As stated herein above, we are only considering the
validity of the Order dated 27th February, 2017 of the Lokayukta,
Maharashtra State, and the issue as to whether Respondent No.2 is
liable to pay any compensation to the Petitioners. In these
circumstances, we are not dealing with the submissions of the other
Respondents which are set out herein above in this judgement.
LOKAYUKTA ORDER DATED 27th FEBRUARY, 2017:-
163 The Order dated 27th February, 2017 of the Lokayukta, in
so far as it deals with the payment of compensation is as under:-
” … …. ….. …. … …. ….
During the course of hearing, it has transpired
that the compensation has already been ordered
to be paid to the families of deceased persons
due to accidental fire at ‘Hotel City Kinara’. It is
submitted that the compensation amount has
already been credited to the account of
Tahsildar, Kurla and he has been directed to
take further steps. In view thereof, this authority
cannot interfere in the matter as far as the
compensation issue is concerned.”
164 A perusal of the said Order dated 27th February, 2017 of
the Lokayukta shows that the Lokayukta failed to consider that the
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compensation of Rs.1 lakh each paid by the State Government to the
families of victims of the Kinara fire, was only ad-hoc compensation.
The Lokayukta failed to consider that it had to be considered as to
what was the actual compensation, if any, that was payable to the
Petitioners. On this ground alone, we are inclined to quash and set
aside the Order dated 27th February, 2017 of the Lokayukta,
Maharashtra State.
165 Further, in any case, the said Order of the Lokayukta,
Maharashtra State, cannot prevent this Court from considering,
under Article 226 of the Constitution of India, whether any
compensation is payable to the Petitioners by Respondent No.2.
ORDER
166 For all the aforesaid reasons, we pass the following
orders:-
(i) The Order dated 27th February, 2017 of the Lokayukta,
Maharashtra State, is hereby quashed and set aside;
(ii) Respondent No.2 is directed to pay to each of the
Petitioners compensation of Rs.50 lakhs (Rupees Fifty
Lakhs only) within a period of 12 (twelve) weeks from the
date of this Order. If compensation is not paid within a
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lakhs (Rupees Fifty lakhs only) shall carry interest at the
rate of 9% p.a. from today till payment and/or realisation.
(iii) Respondent No.2 is at liberty to recover the amount paid to
the Petitioners from any other person, if it is so entitled to
in law;
167 Rule is made absolute in the aforesaid terms. The
Writ Petition is also disposed of in terms thereof. However, in the
facts and circumstances of the case, there shall be no order as to
costs.
168 This order will be digitally signed by the Private
Secretary/ Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
[FIRDOSH P. POONIWALLA, J.] [B. P. COLABAWALLA, J.]
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