Sanjay Gupta & Ors. v. State of Uttar Pradesh

484. The record clearly suggests that the Contractor had some contribution to make in the matter of organizing the event. From the materials brought on record by the parties hereto, it is clear and evident that the Contractor had erected the pandals, made the stalls, etc. There is, however, no conclusive proof that. he had also arranged for the air conditioners or the generators, or had appointed some other contractor to lay the cables and wires.

485. Except ipse dixit on the part of the Organizers and a couple of their witnesses, who said that in case of any difficulty, they used to contact Mr. Pandey, etc. no other evidence has been brought on record to show that Shri Naresh Garg had any role to play in the matter of running the event. It is beyond any cavil of doubt that the entire event was under the direct control and supervision of the Organizers. There are sufficient indications on record to show that the Contractor was not personally present during the period of erection of the pandals, or the decoration thereof, nor was he present on all or any of the days during the period of event i.e. between 06.04.2015 and 10.04.2015. The contention of the Contractor that he had merely supplied the materials, however, does not appear to be correct.

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

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

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

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

947. In the present matter, moreover, it has been noticed hereto before that the Organizers were primarily liable to:a) obtain all permissions/NOCs from all concerned authorities including the Managing Committee of the Meerut College; and b) they being in control of the event, would be deemed to be the occupier of the Exhibition premises, and thus had a special 'duty to care' having regard to the fact that large number of persons had-put up their stalls, and thousands of visitors had been visiting the Exhibition.

948. The Organizers, in the opinion of this Commission, were wholly negligent in so far as they organized the event without taking due care and caution without obtaining the requisite permissions and without complying with the relevant provisions of the statute.”

X. DETERMIANTION OF LIABILTY AND ITS EXTENT

968. The liabilities of the parties to the reference have been discussed heretobefore elaborately.

969. Laxity on the part of the authorities and the cavalier manner in which actions have been taken by them deserves severe criticism.

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

971. The profession of the architects are governed by the Architects Act, 1972. It is expected that they would not commit any professional misconduct. Their ability and competence is not in dispute. In the said capacity they are required to advise the builders of the requirements of law which they are liable to comply with. If they could not be negligent in discharge of their professional duties, it was expected that they would not be negligent when they were themselves event managers.

972. A building (the height specified in Section 3 of the U.P. Fire Services Act, 2005 and the rules framed thereunder) may be inspected by the authority to see that adequate precautions for the purpose of fire prevention and fire safety have been undertaken. For the purpose of construction of high rise buildings, steps are required to be taken by the builders in this behalf, particularly having regard to the fact such incidents of fire take place very often in the country. In this context also the Architects and the Builders should have been aware of the provisions of 1944 Act and the 2005 Act.

973. It has been contended that the Organizers were not aware of the provisions of the Electricity Act, 2003, or the rules framed thereunder and the executive instructions issued in this behalf, which by itself does not give them any immunity. It is wholly unlikely that the Organizers were not aware of the promulgation of the prohibitory order under Section 144 of the Code of Criminal Procedure. It is also wholly unlikely that they were not aware of the Environmental laws governing the construction of the buildings.

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

975. In Chanderkant Bansal Vs. Rajender Singh Anand reported in (2008) 5 SCC 117, it is stated as under:- "16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by DraiDyspnea (Permanent Edn. 13-A) "due-diligence'', in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence, it means such diligence as a prudent man would exercise in the conduct of his own affairs."

976. Ignorance of different statutes and/or their relevant provisions has been pleaded by the responsible officers of the District Administration and Police Authorities, cannot be appreciated.

977. Mr. Ram Krishna, the District Magistrate was not even aware of the provisions of under Section 54 of the Electricity Act, 2003. Even Mr. Shirish Dubey or Mr. S.S. Yadav were not aware of the said provision. Mr. Ram Krishna could not plead ignorance of the said provisions particularly when he was a designated authority under Section 54 of the Electricity Act, 2003.

978. It appears that despite the fact that in terms of the 2005 Act, the officers of the Fire Safety Department are under the control of the Police Authorities, the requirements of law had not been followed by the police authorities.

979. The conduct on the part of the college authorities cannot also be lost sight of.

980. How and on what basis the Principal of the Meerut College, Meerut had accorded his approval in principle raises serious doubt in the mind of the Commission.

981. It has also been noticed hereinbefore that the Organizers are guilty of misrepresentation in regard thereto before the SSP Meerut, while filing an Application for grant of permission for organizing the exhibition.

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

983. It has been noticed heretobefore that the manner in which things proceeded leave no manner of doubt that, at all material times, the Organizers were more than sure that the requisite permissions would be granted to them on mere asking.

984. It has further been noticed heretobefore that no satisfactory explanation has been given by the Organizers as to why instead and in place of approaching the District Magistrate, Meerut at the first instance, they filed an application for grant of permission before the Senior Superintendent of Police, Meerut on 01.02.2006, having regard to the fact that even according to them, the Principal of Meerut College, Meerut, had asked them to obtain necessary permissions from both the District Magistrate, Meerut and Police Authorities.

985. Under the 2005 Act, the police authorities exercised over all control over the members of the fire services. Mr. Yadav, however, put the onus on the District Administration. The fact remains that in terms of the provisions of the Act, it was obligatory on the part of the concerned authorities, be it the District Administration or be it the Police Authorities to ask the fire department to cause inspection to be made and a report submitted. It is difficult to appreciate as to why such procedure was not followed either by the District Administration or by the Police Authorities.

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

987. Emboldened by the grant of the No Objection Certificate and treating the same to be an order granting permission to hold the exhibition both by the District Administration and Police Authorities, the Organizers approached the Chief Fire Officer with a letter. It was more by way of information and not a request for inspection and issuance of permission to hold the exhibition, as stated by Mr. Lakhan Tomar.

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

989. Before the SFO submitted his joining report, Mr. Naresh Kumar Singh who was the SSFO made a purported inspection and submitted a report to the CFO evidently ignoring the procedure prescribed namely to forward the report through the SFO. According to Mr. Singh when the report was submitted both the CFO and the SFO were sitting together.

990. So many persons lost their lives and a large number of persons suffered serious injuries to their person and property because of the acts, omissions and commissions on the part of the statutory authorities of the State.

991. The State of Uttar Pradesh no doubt is liable to pay due compensation to the kin of the victims, as also the injured persons, because of acts of omission and commission on the part of its officers. However, as such omissions led to the benefit of the Organizers and they had also organized the Exhibition in violation of the legal provisions, they are also liable for their act of gross negligence. Having considered the facts and circumstances of the case and the conduct of the Organizers and those of the public servants, this Commission is of the opinion that the liability of the Organizers was to the extent of 60% and that of the State was 40%.”

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

6. In pursuance of the said order, the State had filed its affidavit disclosing inter alia the action taken against the responsible officials including lodging of First Information Report and initiation of disciplinary proceedings.

7. Mr. Shanti Bhushan, learned senior counsel appearing for the Organizers has raised preliminary objection about the entertainment of the writ petition by this Court in respect of private law liability of the Organizers and contended that such liability does not fall within the scope of Article 32 of the Constitution of India. To support such contention, reliance was placed upon Nilabati Behera (Smt.) alias Lalita Behera v. State of Orissa & Ors.3, Sube Singh v. State of Haryana & Ors.4, Shri Sohan

Lal v. Union of India & Anr.5, Radhey Shyam & Anr. v. Chhabi Nath & Ors.6, Radhey Shyam & Anr. v. Chhabi Nath & Ors.7, Praga Tools Corporation v. Shri C.A. Imanual & Ors.[8] and Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil[9].

8. Nilabati Behera and Sube Singh are the cases involving high handedness on behalf of a public servant and vicarious liability of the State. Such cases would stand on a different footing. Radhey Shyam-I is a case of a writ petition arising out of a purely civil dispute relating to property and when the civil suit was pending before the Civil Court. In Shalini Shyam Shetty, an order passed by the Bombay High Court was challenged in a writ petition under Article 226 of the Constitution. Such writ petition was dismissed in view of concurrent findings of the Trial Court and the First Appellate Court arising out of a suit for eviction. Radhey Shyam-II is a three-Judge Bench judgment examining the question as to whether an order of the Civil Court was amenable to the writ jurisdiction under Article 226 of the Constitution. The issues arising in the aforesaid cases have no semblance with the facts of the present case and are thus not applicable. AIR 1957 SC 529

9. The findings in Shri Sohan Lal are not relevant in the present case as such judgment of this Court arose in respect of restoration of possession of a house, the title over which was disputed. One of the claimants had approached the High Court in a petition under Article 226 of the Constitution. Therefore, purely civil dispute in relation to title to the property was sought to be raised in a writ petition. In Praga Tools Corporation, a writ petition was filed claiming writ of Mandamus against a company and not against the conciliation officer in respect of any public or statutory duty imposed upon him by the Act. Hence, it does not provide any assistance in the present matter wherein the rights of the victims are emanating from Article 21 of the Constitution of India. This Court held as under:

10. Mr. Vikas Pahwa, learned senior counsel appearing for the writ petitioners, has referred to the judgment of this Court reported as M.C. Mehta & Anr. v. Union of India & Ors.10 wherein, in case of oleum gas leakage from the factory premises of Shriram Foods and Fertiliser Industries, a writ petition under Article 32 of the Constitution of India was entertained and the negligence was fixed. It was only in respect of quantum of compensation, the matter was referred to the Delhi Legal Aid and Advice Board. Para 30 of the order reads thus: “30. Before we part with this topic, we may point out that this Court has throughout the last few years expanded the horizon of Article 12 primarily to inject respect for human rights and social conscience in our corporate structure. The purpose of expansion has not been to destroy the raiso d'etre of creating corporations but to advance the human rights jurisprudence. Prima facie we are not inclined to accept the apprehensions of learned counsel for Shriram as well founded when he says that our including within the ambit of Article 12 and thus subjecting to the discipline of Article 21, those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to the policy of encouraging and permitting private entrepreneurial activity. Whenever a new advance is made in the field of human rights, apprehension is always expressed by the status quoists that it will create enormous difficulties in the way of smooth functioning of the system and affect its stability. Similar apprehension was voiced when this Court in R.D. Shetty case [(1979) 3 SCC 489: AIR 1979 SC 1628: (1979) 3 SCR 1014] brought public sector corporations within the scope and ambit of Article 12 and subjected them to the discipline of fundamental rights. Such apprehension expressed by those who may be affected by any new and innovative expansion of human rights need not deter the court from widening the scope of human rights and expanding their reach and ambit, if otherwise it is possible to do so without doing violence to the language of the constitutional provision. It is through creative interpretation and bold innovation that the human rights jurisprudence has been developed in our country to a remarkable extent and this forward march of the human rights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. But we do not propose to decide finally at the present stage whether a private corporation like Shriram would fall within the scope and ambit of Article 12, because we have not had sufficient time to consider and reflect on this question in depth. The hearing of this case before us concluded only on December 15, 1986 and we are called upon to deliver our judgment within a period of four days, on December 19, 1986. We are therefore, of the view that this is not a question on which we must make any definite pronouncement at this stage. But we would leave it for a proper and detailed consideration at a later stage if it becomes necessary to do so.” (Emphasis Supplied)

11. Mr. Pahwa also referred to an order passed by the Delhi High Court in a writ petition under Article 226 of the Constitution in a judgment reported as Association of Victims of Uphaar Tragedy v. Union of India & Ors.11. The claim was of compensation for the victims against the respondents for showing callous disregard to their statutory obligations and to the fundamental and indefeasible rights guaranteed under Article 21 of the Constitution of India of the public in failing to provide safe premises, free from hazards that could reasonably be foreseen. In that case, a fire broke out at Uphaar Theatre, New Delhi in the evening of 13.6.1997. The High Court after examining the various precedents held as under:

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

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

14. An appeal against the said order was partly allowed in Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association & Ors.14 wherein this Court held as under:

15. In a separate order, Hon’ble Mr. Justice K.S.P. Radhakrishnan held as 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 & Anr.15, Bhim Singh, MLA v. State of J & K & Ors.16 and D.K. Basu v. State of W.B.17.

17. The second category of cases is where compensation 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:

“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 [(1868) LR 3 HL 330: 19 LT 220: (1861-73) All ER Rep 1].”

18. The third category comprises of the cases where the liability for payment of compensation has been apportioned between the State and the Organizers of the function. In Dabwali Fire Tragedy Victims Association v. Union of India & Ors.18 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 organized the function and respondent No. 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 & Anr. v. Dabwali Fire Tragedy Victims Association & Ors.19.

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

21. The contentions raised by Mr. Bhushan are substantially same as were raised before Delhi High Court in Assn. of Victims of Uphaar Tragedy, 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 “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”.

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 Organizers and the State; or by the Organizers 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.

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

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

25. The argument of Mr. Bhushan was that the word ‘safety’ used in the work order would also include safety from fire as well. Therefore, the responsibility of providing fire safety measures was upon the Contractor. It was further submitted that 25 fire extinguishers were provided by the Organizers in view of the request made by the Contractor as he was not locally available and therefore, the same was procured from Meerut with the payment being made by the Organizers to his account.

26. We do not find any merit in the said argument raised. The word ‘safety’ appearing in the work order cannot be read in isolation but has to be read in the context in which the word has been used. The term ‘safety’ was used for the rides to be provided by the Contractor with proper material for ensuring both safety and reasonable light blockade general lighting. Therefore, the expression safety used in Para 1 of the work order does not lead to any inference that fire safety measures were to be adopted by the Contractor. Still further, the advance rental for the fire extinguishers was paid by the Organizers vide receipt dated 06.04.2006 and 07.04.2006. Shri N.K. Singh, Fire Station Second Office (FSSO) was asked the question by the Organizers as to whether 25 fire extinguishers were shown to him by Mr. Pandey, a representative of the Contractor. He has responded that 25 fire extinguishers were lying there and were shown to him by Lakhan Tomar, one of the Organizers. Therefore, to say the fire extinguishers were provided at the asking of the Contractor appears to be far-fetched as the invoices were raised on 06/07.04.2006. The exhibition was to start from 06.04.2006, therefore, it is unbelievable that the Contractor would not be available at Meerut as the exhibition was just around the corner. Our attention has not been drawn to any assertion or the question put to the Contractor that these fire extinguishers were provided at his asking, which were to be paid by the him subsequently.

27. It was argued that the Organizers had given a turn-key project to the Contractor on 9.3.2006 and the consequences of the tragedy had to be borne by him. It was argued that the report has not given any finding regarding negligence of the Organizers, therefore, the apportionment of liability on them is an unjust conclusion drawn by the Commission. The reliance is placed upon Halsbury’s Laws of India21, American Jurisprudence22, Haseldine v. C.A. Daw and Son Limited & Ors.23 and Green v. Fibreglass Ltd.24.

28. The Organizers had submitted a request for providing temporary firefighting on 1.4.2006 representing that they have taken permission from the administration for using the premises and conducting the event. After submitting such request, the Organizers paid an advance rental for Fire Extinguishers to one Uni Fire Systems on 6.4.2006 and for certain Fire Extinguishers on returnable basis on 7.4.2006. Though the Commission has found that the Contractor was not an independent Vol. 29 (1) Pg. 285.093 (pg 91) Vol. 41 (2d) page-774/777 Pr. 24 (1941) 3 All. E. R. 156 (C.A.) Pg. 159, 168 & 169 (1958) 2 All. E. R. 521 (pg 523 bottom to 524-H/525-B) contractor and there is interpolation in the work order issued, but the said aspect is not necessary to be examined as admittedly, the work order issued on 9.3.2006 by the Organizers does not contemplate any duty on the Contractor to provide for fire safety measures as well. Still further, the victims or the visitors to the exhibition have no privity of contract with the Contractor. The ticket proceeds were collected by the Organizers. It is the responsibility of the Organizers, having collected the entry fee, to ensure the safety and well-being of the visitors. The Organizers have failed in that duty causing loss of life of the innocent victims who came to see the exhibition, which was purely a commercial event with an intention to earn profit by the organizers.

29. The Court Commissioner found that the contract with the Contractor was neither a turn-key project nor was he appointed as an independent contractor. Therefore, the argument of the Organizers that they are not liable for the acts of omission or commission on the part of the contractor was rejected by the Commission. Even otherwise, the Organizers were vicariously liable for the alleged acts of negligence on the part of the contractor. The Contractor was only responsible for executing work as assigned to him by the Organizers.

30. Mr. Bhushan has relied on Halsbury’s Laws of India in the context of negligence on the part of independent contractor. However, it is to be noted that the inter-se relationship between the Organizers and the Contractor is not the subject matter of examination in the present proceedings. The question is as to the liability of the Organizers qua the visitors who had paid for the tickets to visit the exhibition. Even if the Contractor who has provided services be an independent contractor, but that will not absolve the Organizers from their responsibility as there was no privity of contract of the visitors with the Contractor who was providing services to the Organizers alone and not to the visitors.

31. The reliance of Mr. Bhushan on American Jurisprudence refers to preliminary examination for filing of an information charging a misdemeanor. The said text book is not relevant to the issues raised in the present proceedings.

32. In Haseldine, a visitor to a flat availed the service of a lift to reach the flat located on fifth floor. However, the lift collapsed and the visitor suffered spinal injury. Though, the landlord was found to be permitting the visitor to the flat let out but the responsibility of maintenance of the lift was passed on to the engineer who was entrusted with the task of maintenance of lift. We do not find that the said judgment in any way supports the argument raised. It was held that the landlord could not have been expected to have the technical knowledge, but which is not the case in the present matter.

33. In Green, the occupiers had employed independent contractors to rewire their office. Due to negligence of one of the contractor’s workmen, a fire broke out. In an attempt to clean the fire, the plaintiff received severe electrical burns and thus sued the occupiers for breach of their duty to use reasonable care to prevent damage. It was found that the occupier was not responsible for the defaults of the independent contractor. We find that the present case is not applicable in the light of facts and circumstances in the present dispute as the Organizers herein cannot be absolved from their duty of providing safety, even though the Contractor was engaged for providing certain services. These services were also to be performed for the Organizers and not for the victims/visitors.

34. The U.P. Fire Service Act, 1944, though is more concerned with the duties and responsibilities of the fire officers, also talks about liability of the property owners to pay compensation. Section 16 of the said Act contemplates that any person whose property catches fire on account of any act of his own or of his agent done deliberately or negligently shall be liable to pay compensation to any other person suffering damage to his property. The Organizers were the persons responsible for organizing the exhibition and informing people to visit such exhibition after purchase of the ticket. Therefore, the property of the Organizers has caught fire on account of their negligence and hence are liable to pay compensation.

35. The Uttar Pradesh Fire Prevention and Fire Safety Act, 2005 was enacted to make more effective provisions for fire prevention and fire safety measures in certain buildings and premises in the State of Uttar Pradesh. The occupier as defined in Section 2(g) of the said Act includes any person who for the time being is paying or is liable to pay to the owner rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable. The Organizers have paid Rs.40,000/- for obtaining permission to conduct exhibition in the lawns of the college, therefore, the Organizers are occupiers within the meaning of Section 2(g) of the said Act. Sub-section (1) of Section 3 of the said Act permits the nominated authority to enter and inspect the building or premises at any time for ascertaining the adequacy or contravention of fire prevention and fire safety measures. Sub-section (2) of Section 3 further contemplates assistance by the owner or occupier to the nominated authority for carrying out the inspection under sub-section (1) of Section

3. The nominated authority has to give a report of any inspection made by it under Section 3 to the District Magistrate. Sections 3 and 4 of the said Act read thus: “3.(1) The nominated authority may, after giving three hours notice to the occupier or, if there be no occupier, to the owner of any building having such height as may be prescribed or premises, enter and inspect the said building or premises at any time between sunrise and sunset where such inspection appears necessary for ascertaining the adequacy or contravention of fire prevention and fire safety measures: Provided that the nominated authority may enter into and inspect any building or premises at any time if it appears to it to be expedient and necessary to do so in order to ensure safety of life and property. (2) the nominated authority shall be provided with all possible assistance by the owner or occupier, as the case may be, of the building or premises for carrying out the inspection under subsection (1). (3) When any building or premises used as a human dwelling is entered under sub-section (1) due regard shall be paid to the social and religious sentiments of the occupiers; and before any apartment in the actual occupancy of any woman, who according to the custom does not appear in public, is entered under subsection (1), notice shall be given to her that she is at liberty to withdraw, and every reasonable facility shall be afforded to her for withdrawing. 4.(1) The nominated authority shall, after the completion of the inspection of the building or premises under section 3, record its views on the deviations from, or the contraventions of, the building bye-laws with regard to the fire prevention and fire safety measures and inadequacy of such measures provided therein with reference to the height of the building or the nature of activities carried on in such building or premises and issue a notice to the owner or occupier of such building or premises directing him to undertake such measures as may be specified in the notice. (2) The nominated authority shall also give a report of any inspection made by it under section 3 to the District Magistrate.”

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

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

38. Though the power is to remove any building, tent or structure, or any tree which is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhood, such power could be exercised only after the structure is raised. Thus, in case any structure is raised without the permission of the civil administration, the Organizers could be directed to remove such tent or structure. Therefore, it was a pre-requisite condition for the Organizers to inform the civil administration about the structure which they are putting up for the purpose of exhibition so that the civil administration does not pass an order subsequently for removal of such structure so as to avoid any disruption on account of order which may be passed by civil administration.

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

40. The argument of Mr. Bhushan is that since permission under Section 144 of the Code was granted, therefore, no separate permission under Section 133 of the Code was required. Reliance is placed upon the order dated 31.03.2006 wherein the order passed by the Sub-Divisional Magistrate shows that the District Administration has conveyed its noobjection in organization of the events from 06.04.2006 to 10.04.2006 on the basis of the report of Superintendent of Police, City Meerut dated 13.03.2006. However, the Organizers were to ensure maintenance of peace and order under Section 144 of the Code. Therefore, the permission under Section 144 was for the organization of the event by ensuring maintenance of peace and order whereas no approval of the structure raised was sought under Section 133 of the Code. The promulgation was to maintain peace in the city area, therefore, the permission was granted to allow gathering of people for the purpose of exhibition only. The permission under Section 144 of the Code is to allow gathering of people in relaxation of the promulgation, whereas, Section 133 permission was required to ensure that structure put by the organizers is safe so as to not to endanger the life of the visitors.

41. The Court Commissioner has further found that the Organizers are liable for not taking permission under the provision of Section 54 of the Electricity Act, 200325 and Rule 47A of the Indian Electricity Rules,

195626. It was however argued that the onus of seeking permission was on the installer of generators and that the Organizers were not the suppliers of generators. Thus, the liability has been wrongly fixed on the Organizers. Section 54 of the Electricity Act and Rule 47A of the Electricity Rules read as thus:

42. The Contractor was working on behalf of the Organizers in terms of the work order issued. Therefore, whatsoever may be the relationship between the two, the Organizers cannot be absolutely absolved of their liability. All permissions were required to be sought and were in fact sought by the Organizers. Even the permission to use the generators was obtained by the Organizers themselves. Moreover, when the application made by the Organizers for grant of load of 1540 KVA was not sanctioned by the Power Corporation, they themselves met the additional electricity requirement from the generators alone. Thus, the Court Commissioner has rightly fixed the liability on the Organizers to the extent of 60%, and on account of negligence in performing statutory duties by the officers of the State, the State has been burdened with 40% of the total liability. We do not find such distribution of liability suffers from any illegality which may warrant interference by this Court.

43. We find that the Court Commissioner has examined each issue pertaining to the incident extremely minutely. Thus, the judgments referred to by Mr. Bhushan are not helpful to hold that the Organizers were not responsible for the violation of fundamental right to life of the victims under Article 21 of the Constitution of India.

44. Furthermore, Mr. Bhushan has referred to judgments reported as Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors.27, T.T. Antony v. State of Kerala & Ors.28, Sham Kant v. State of Maharashtra29 to contend that the report of the Commissioner30 cannot be made basis of any action against the Organizers as it is merely recommendations submitted to the State. The argument is that the Commissioner appointed by this Court is to substitute the Commissioner appointed by the State, therefore, the Commissioner appointed by this Court would only be a Commissioner under the Inquiry Act.

45. Such argument has been rebutted by Mr. Pahwa to contend that the appointment of the Court Commissioner by this Court was not made AIR 1958 SC 538

1992 Supp (2) SCC 521 Court Commissioner under the Inquiry Act as appointment under the said Act has to be made by the State Government. The appointment of the Court Commissioner was that of a Judicial Commission to make inquiry into the factual aspects leading to the fire tragedy and the persons responsible for its cause.

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

47. The judgment in Shri Ram Krishna Dalmia arises out of a writ petition filed by an aggrieved person against appointment of a commission under the Inquiry Act inter alia on the ground that the action of the Government in appointing an inquiry commission is malafide and amounts to abuse of power. The appeals filed by the aggrieved persons were dismissed. State of Karnataka v. Union of India & Anr.31 arises out of an original suit filed by the State of Karnataka against Government of India appointing an inquiry commission under the Inquiry Act inter alia on the ground that Inquiry Act does not authorize the Central Government to constitute a Commission of Inquiry in regard to matters falling exclusively within the sphere of the State’s legislative and executive power. On the other hand, the State also appointed an Inquiry Commission. The appointment of the Commission by the Central Government was not interfered with. This Court found that the two notifications authorize the enquiries into the matters which are substantially different in nature and object and the Inquiry Commission appointed by the Government of India cannot be said to be barred in view of the notifications issued by the State Government.

48. In T.T. Antony, this Court held that the civil or criminal courts are not bound by the report or findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law. The investigating agency may with advantage make use of the report of the Commission in its onerous task of investigation bearing in the mind that it does not preclude the investigating agency from forming a different opinion under Sections

169/170 of Criminal Procedure Code if the evidence obtained by it supports such a conclusion. In Sham Kant, for convicting an accused in a criminal trial, reliance was sought on the report of the Commission under the Inquiry Act. This Court held that the report of the Commission is not relevant to determine the commission of offence tried by the Criminal Court. Each of the cases referred to above are on a different factual background. Thus, none of the judgments relied upon by Mr. Bhushan supports his argument that the Court Commissioner was a Commission under the Inquiry Act or that the report of the Commission cannot form a basis for proceeding against the organizers or the State.

49. Still further, none of the judgments have laid down that the report of the Commission is not relevant. In respect of criminal charges, an accused can be tried by a Court of law and not merely on the basis of the report of the Commissioner under the Inquiry Act. Such report is not conclusive and an independent action has to be taken by the State or by the victims against the Organizers before the competent court of law to prove the criminal offences said to be committed by certain accused.

50. We find that the appointment of the Court Commissioner was though to substitute the Commissioner appointed under the Inquiry Act, but under the Inquiry Act, the Court could not appoint a Commissioner. Such power is conferred only on the executive and the legislature. Thus, the jurisdiction exercised in appointing Hon’ble Mr. Justice S.B. Sinha (Retd.) was vesting with this Court under Article 142 of the Constitution. It was a Court Commission to find out the factual positions on the questions of reference. We do not find any merit in the argument that the appointment of the Court Commissioner was as a Commissioner of Inquiry under the Inquiry Act and the same is made out from the fact that this Court has sought comments from the State on the basis of the report so furnished.

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

52. The argument of Mr. Bhushan that the Court Commissioner has not given any conclusive finding on the cause of the fire is not relevant in determining the civil liability. The maxim res ipsa loquitur would be applicable as organizing an exhibition of such substantial magnitude without proper and adequate safety factors which may endanger the life of the visitors, has been rightly found by the Court Commissioner, an act of negligence including negligence of the officers of the State.

53. In Shyam Sunder & Ors. v. State of Rajasthan32, this Court observed that the maxim res ipsa loquitor is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. It was observed as thus:

11. The plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendants, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.”

54. Further, this Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr.33 held that where the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant, such hardship is sought to be avoided by applying the principle of res ipsa loquitor. It was observed thus:

55. The said aspect of res ipsa loquitor has also been commented upon by the Court Commissioner holding the Organizers and the State liable to apportion the liability. Thus, we are of the opinion that the report of the one-man Commission is not suffering from any infirmity so as to absolve the Organizers from their responsibility of organizing the exhibition.

56. In terms of the order passed, as mentioned above, the Commission has submitted its report and apportioned the liability between the Organizers and the State as 60:40. No dispute was raised regarding percentage of liability determined by any of the party to the present proceedings. Therefore, what remains to be seen now, is the question of compensation payable to the victims and/or their families.

57. The State has paid Rs.[2] lakhs each as ex-gratia compensation to the families of the deceased, Rs.[1] lakh each for the persons who suffered serious injuries and Rs.50,000/- each for the persons suffering from minor injuries whereas the Union of India has paid ex-gratia compensation of Rs.[1] lakh each for the deceased and Rs.50,000/- each for those with serious injuries. In terms of the order of this Court, the State has paid Rs.[5] lakhs each to the deceased, Rs.[2] lakhs each to the victims suffering serious injuries and Rs. 75,000/- each to the victims suffering minor injuries, apart from the amount paid by the Union of India.

58. The list of deceased and injured persons has been produced by the learned counsel for the petitioners. The amount of compensation payable to each of the victim including the families of the deceased have not been computed and such amount is required to be computed in accordance with the principles of just compensation as in the case of accident under the Motor Vehicle Act, 1988 by the Motor Accidents Claims Tribunal.

59. We, therefore, request the Hon’ble Chief Justice of the Allahabad High Court to entrust the work of determination of compensation to a Judicial Officer in the rank of District Judge/Additional District Judge at Meerut within two weeks of the order of this Court to work exclusively on the question of determination of the compensation on day-to-day basis. The High Court shall provide all necessary infrastructure to enable the Officer to discharge his duties. The nominated Judicial Officer may permit the parties to lead such evidence as may be permissible. We hope that the nominated Judicial Officer shall calculate the amount of compensation and forward the report to this Court for consideration in respect of compensation in accordance with law. The amount paid by the State and a sum of Rs.30 Lakhs deposited by the Organizers has been disbursed to the victims. The said amount, excluding the ex-gratia payments made, be taken into consideration while determination of the amount payable by the Organizers and the State. List after four months .............................................. J. (HEMANT GUPTA) ............................................. J. (V. RAMASUBRAMANIAN) NEW DELHI; APRIL 12, 2022.