SANJAY GUPTA & ORS.versusSTATE OF UTTAR PRADESH & ORS.

                       (2014) 8 S.C.R. 992


A                    SANJAY GUPTA & ORS.
                                 V.
              STATE OF UTIAR PRADESH & ORS.
               (Writ Petition (Civil) No. 338 of 2006)

                          JULY 31, 2014
B
         [DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

       Commission of Enquiry Act, 1952 - ss. B8 and BC - Non-
  compliance - Effect of - Held: Since the Commission
C constituted under the Act, did not comply with the provisions
  of ss. B8 and BC which seriously prejudiced the accused, the
  report submitted by the Commission cannot be sustained -
  Appointment of new Commissioner.

       Constitution of India, 1950 - Art. 32 - Writ petition -
0
  Seeking damages and other reliefs - Against the State as well
  as private parties-accused - Holding them responsible for the
  64 deaths and above 100 injuries in a fire accident which
  broke-out in a consumer exhibition - Held: Fact finding
  Commission constituted under Commission of Enquiry Act,
E was not sustainable for non-compliance of statutory provisions
  - New Commissioner appointed and directed to submit his
  report - So long as the Commission is awaited, liability to pay
  damages cannot be fastened on the parties - The facts of the
  case show that there has been statutory violations and
F negligence by the State authorities - Therefore, as an interim
  measure, State directed to pay some more amount to the
  victims, in addition to the amount it has already paid as
  compensation - The accused-organizers of the event also
  directed to deposit an amount of ss. 30 lakhs with the Court
G to be kept in fixed deposit interest bearing account -
  Apportionment of the liability between different erring parties
  a/so to be decided after receipt of the report of the
  Commission - Commission of Enquiry Act, 1950 - Damages.

H                               992
  SANJAY GUPTA v. STATE OF UTTAR PRADESH                  993


    A consumer show organized by the organizers                   A
(respondent Nos. 10 to 12), caught fire resulting in death
of 64 persons and injuries to more than hundred
persons. FIR was lodged against the accused persons
u/ss. 304A, 337, 338 and 427 IPC. In view of the magnitude
of the tragedy, the State Government appointed a one-             B
man Commission under the Commissions of Enquiry Act,
1952. The petitioners also filed the present writ petition
u/Art. 32 of the Constitution, seeking inter alia to awar,:
damages against the respondents jointly and severally tc
be paid to the victims.                                           c
    Respondent Nos. 10 to 12 (the organizers of the
event) contended that they have been seriously
prejudiced due to non-compliance of ss. 88 and SC of
the Act by the Commission.
                                                                  D
    Issuing certain directions and granting interim relief,
the Court
    HELD: 1.1. The notices were sent by the
Commission of Inquiry in the nature of notice requiring
the respondents to appear. They have to be construed              E
as notices under Section 4(a) of the Act. That apart, on a
scrutiny of the list of witnesses who were examined by
the Commission, it is found that the respondents 10 to
12 were summoned almost after examination of 45
witnesses and the respondent-organisers were not
                                                                  F
afforded opportunity of cross-examination. The
Commission, on the basis of the evidence and taking
recourse to certain violation of statutory provisions, has
submitted the report. Therefore, it is difficult to sustain the
report. [Para 8] [1003-H; 1004-A-B]
                                                                  G
   State of Bihar v. Lal Krishna Advani and others 2003 (3)
Suppl. SCR 844 (2003) 8 sec 361 - relied on.
    1.2. Regard being had to the gravity of the situation
and the magnitude of the tragedy, Justice S.B. Sinha,
formerly a Judge of the Supreme Court is appointed, as            H
    994     SUPREME COURT REPORTS           [2014] 8 S.C.R.


A the one man Commission. The witnesses, who were
  examined by the previous Commission and not cross-
  examined by respondents 10 to 12, their depositions shall
  be treated as examination-in-chief and they shall be made
  available for cross-examination by the respondent. It has
B also been conceded that the documents which have been
  marked as exhibits, unless there is a cavil over the same,
  they shall be treated as exhibited documents. The
  contractors who were engaged by the organizers, as they
  were summoned by the previous Commission, should be
c summoned by the present Commission. The Commission
  should issue notices to the contractors so that the
  proceeding under the Act can continue in accordance
  with the provisions of the Act. They shall have the similar
  opportunity that has been made available to the
0
  organizers. The organizers as well as the contractors
  would be at liberty to adduce evidence in support of their
  respective pleas. The Comrnission shall record the
  evidence at Meerut and hear the arguments in Delhi. [Para
  1OJ [1005-C-G]
E       2.1. The Consumer Show was organized 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
 F statutory authorities as required under law had granted
   "No Objection Certificate" or not and also how far the
   organizers had complied with the directions. The primary
   obligation of the State was to see whether the
   preparations made at the place of exhibitions by the
 G organizers involved any risk or not and whether, there
   was proper arrangement for extinguishing the fire or not
   in the covered area. Under these circumstances, there
   has to be some initial arrangement for payment of
   compensation by the State awaiting the report from the
   Commission. [Para 22] [1014-E-G]
.H
'
      SANJAY GUPTA v. STATE OF UTTAR PRADESH                995


        Nilabati Behera (Smt) alias Lalita Behera (through the A
    Supreme Court Legal Aid Committee) v. State .of Orissa and
    others 1993 (2) SCR 581 = (1993) 2 SCC 746; Union
    Carbide Corpn. v. Union of India 1991 (1) Suppl. SCR 251
    = (1991) 4 SCC 584; Chairman, Railway Board and others
    v. Chandrima Oas (Mrs.) and others 2000 (1) SCR 480       =B
    (2000) 2 SCC 465; Sube Singh v. State of Haryana and
    others 2006 (2) SCR 67 = (2006) 3 SCC 178; Raghuvansh
    Dewanchand Bhasin v. State of Maharashtra and another
    2011 (11) SCR 300 = (2012) 9 SCC 791; Mehmood Nayyar
    Azam v. State of Chhattisgarh and others 2012 (8) SCR 651 c
    = (2012) 8 SCC 1; Hardeep Singh v. State of MP. (2012) 1
    sec 748 - relied on.
        Union of India v. Prabhakaran 2008 (7) SCR 673 =
    (2008) 9 sec 527 - referred to.
                                                                   D
         2.2. As far as respondents 10 to 12 are concerned,
    no liability can be fastened under Article 32 of the
    Constitution of India, and definitely not at this stage. The
    principle of apportionment also can be thought of only
    after the Commission's report is received, but, the            E
    victims and the families cannot be left on the lurch. [Paras
    12 and 27] [1006-E; 1019-B]
         2.3. Since there has been statutory violations and
    negligence on the part of the State authorities in not
    taking due care while granting permission and during the       F
    exhibition was in progress, the Court directs payment of
    compensation, by way of interim measure, by the State.
    [Para 27] [1019-C]
         2.4. Regard being had to the facts and circumstances      G
    of the case and taking note of the fact that some amount
    has already been given, it is directed, 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 w~uld         H
    996      SUPREME COURT REPORTS               (2014] 8 S.C.R.


 A be paid an additional sum of Rs.75,000/-. 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
,B summery enquiry only for proper identification and
   disburse the amount. [Para 27] [1019-C-F]
       2.5. The direction to the State Government, at present,
  is only to see that the victims do not remain in a constant
  state of suffering and despair. The issue of maintainability
C of the writ petition would be addressed after submission
  of the report. But the organizers cannot be allowed to
  remain as total strangers in this regard. The organizers
  should deposit certain amount before the Registry of this
  Court and regard being had to the said observation, the
D respondents 10 to 12 are directed to deposit a sum of
  Rs.30 lakhs before the Registry of this Court within a
  period of two months. The said amount shall be kept in
  a fixed deposit on an interest bearing account. [Para 28]
  [1020-A-D]
E
        2.6. This arrangement is absolutely interim in nature
    and without prejudice to the contentions to be raised by
    the State and the respondent Nos. 10 to 12. [Para 28]
    [1020-D]
F        Municipal Corporation of Delhi v. Association of Victims
    of Uphaar Tragedy and Ors. 2011 (16) SCR 1 = AIR 2012
    SC 100; DAV Managing Committee and another v. Dabwali
    Fire Tragedy Victims Association and others (2013) 10 SCC
    494 - referred to.
G                       Case Law Reference :
      2003 (3) Suppl. SCR 844        relied on        Para 9
      1993 (2) SCR 581               relied on        Para 13

H     1983 (3) SCR 508               referred to      Para 13
 SANJAY GUPTA v. STATE OF UTTAR PRADESH                    997


  1991 (1) Suppl. SCR 251         relied on          Para 13       A

  2000 (1) SCR 480                relied on          Para 15
  2006 (2) SCR 67                 relied on          Para 16
  2011 (11) SCR 300               relied on          Para 17       B
  2012 (8) SCR 651                relied on          Para 18
  (2012) 1 sec 148                relied on          Para 18
  2011 (16) SCR 1                 relied on          Para 23
                                                                   c
  2008 (7) SCR 673                referred to        Para 25
  (2013) 1o sec 494               referred to        Para 26
    CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
338 of 2006.                                                       D
    Under Article 32 of the Constitution of India.

     Tushar Mehta, ASG., Vikas Pahwa, Shanti Bhushan,
G<!urav Bhatia, AAG., B. Badrinath, Rishi Malhotra, Prem
Malhotra, Dr. Ashok Dhamija, B.V.B. Das, Kamlendra Mishra,         E
P. Parmeswaran, R.D. Upadhyay, Sunil Kumar Jain, Ravi
Prakash Mehrotra, Vibhu Tiwari, Anuvrat Sharma, Gunnam
Venkateswara Rao, Manoj K. Mishra, Rohit Kumar Singh,
Kartik Seth for the appearing parties.
                                                                   F
    The Judgment of the Court was delivered by

      DIPAK MISRA, J. 1. The 10th of April, 2006, the last day
of the India Brand Consumer Show organized by Mrinal Events
and Expositions at Victoria Park, Meerut, witnessed the dawn
of the day with hope, aspiration, pleasure and festivity at the    G
Victoria Park, Meerut, but, as ill-fortune (man made) would have
it, as the evening set in, it became the mute spectator to a
devastating fire inside the covered premises of the brand show
area which extinguished the life spark of sixty-four persons and
                                                                   H
    998         SUPREME COURT REPORTS             [2014] 8 S.C.R.


A left more than hundreds as injured; and with the clock ticking,
  the day turned to be a silent observer of profused flow of human
  tears, listener of writhing pain and cry, and eventually, marking
  itself as a dark day of disaster in human history. Some, who
  were fortunate to escape death, sustained serious injuries, and
B some minor injuries. The cruelest day of April converted the last
  day of the festival of Consumer Show to that of a horrifying
  tragedy for the families of the persons who were charred to
  death, the victims who despite sustaining serious injuries did
  not fall prey to the claw of fatality, and the others, slightly
c fortunate, who had got away with minor injuries bearing the
  mental trauma. The dance of death, as it appears, reigned
  supreme and the· cruel demon of injury caused serious injuries
  as well as minor injuries. The assembly of pleasure paled into
  total despair and before the people could understand the gravity
  of the tragedy, it was over, leaving the legal representatives who
0
  have lost their parents, or the parents who have forever been
  deprived of seeing their children, or the wives who had become
  widows within fraction of a minute, blaming and cursing the
  officials of the State Government. The contemporaneous history
E records it as "Great Meerut Fire Tragedy.

        2. After the tragedy paraded at the Victoria Park a First
  Information Report was lodged against the accused persons
  under Sections 304A, 337, 338 and 427 of Indian Penal Code.
  The State Government, regard being had to the magnitude of
F the tragedy, vide notification No. 2155/p/Chh.p-3-2006-12(51)p/
  2006 dated 2.6.2006, appointed Justice O.P. Garg, a former
  Judge of Allahabad High Court, as one man Commission under
  the Commissions of Enquiry Act, 1952 (for short "the Act"). The
  Commission was required to submit the report in respect of four
G issues, namely: -

          "1.    To find out the facts, causes on account of which
                 the aforesaid accident occurred.

          2.     To decide the ways and means to keep up the
H                situation in control.
  SANJAY GUPTA v. STATE OF UTTAR PRADESH                     999
              [DIPAK MISRA, J.]

     3.    In respect of the aforesaid occurrence,                   A'
           determination of liability and the extent thereof.

     4.    Measures to be adopted to avoid the occurrence
           of such incident in future."

      3. Almost at the time the Commission was appointed, the        B
present writ petition under Article 32 of the Constitution was
filed seeking the following reliefs: -

     "A.   Pass appropriate writ, order or direction directing
           the respondent No. 13, CBI to take up the                 c
           investigation of the case FIR No. 95 of 2006,
           registered at Civil Lines, Meerut, UP, u/s 304A/337/
           338/427, IPC and investigate the case. in
           accordance with law, and this Hon'ble Court may
           be pleased to monitor the investigation from time         0
           to time, to ensure that no person guilty of any of the
           offences is able to escape the clutches of law and
           that the investigation is carried out as expeditiously
           as possible in a free and fair manner.

      B.   Pass appropriate writ, order or direction directing       E
           the State Government to initiate action against the
           erring administrative officers for their atrocious and
           negligent ehavior while dealing with tragedy of this
           magnitude.
                                                                     F
      C.   Pass appropriate writ order or direction awarding
           damages against the respondents, jointly and
           severally, to the petitioners including all victims who
           lost their lives, the names and particulars of which,
           are given in Annexure P .6 for a sum of Rs.106            G
           crores (Rs.20 lakhs for 53 dead) with the direction
           to equally distribute the same to the first degree
           heirs of all the victims evenly or in such manner as
           may be considered just and proper, by this Hon'ble
           Court.
                                                                     H
    1000        SUPREME COURT REPORTS             [2014] 8 S.C.R.


A          D.    Award damages against the respondents, jointly
                 and severally, to the tune of Rs.63 crores (Rs.5
                 lakhs for 126 injured) to the injured whose names
                 and addresses are mentioned in Annexure P-6 to
                 be distributed evenly or in such manner as may be
B                considered just and proper, by this Hon'ble Court.

           E.    Award punitive damages against the respondents
                 to pay a sum of Rs.50 crores jointly and severally
                 for the purpose of setting up and augmenting the
                 Centralized Accident and Trauma Services and
c                other allied services in Western UP. Respondent
                 No. 3, the District Magistrate may be directed to
                 create a fund for the purpose and submit a detailed
                 report to this Hon'ble Court in accordance with
                 which the said services will be set up under the
D                supervision of this Hon'ble Court.

           F.    Pass appropriate writ, order or direction issuing
                 guidelines to be followed by all, at the time of
                 creating a temporary structure for organizing
E                Seminars, Exhibitions etc."

       4. In course of hearing of the writ petition we have been
  apprised by Mr. Vikas Pahwa, learned senior counsel that 64
  persons have died in the incident and not 53. The said fact is
  not disputed by learned counsel for the State. As the hearing
F progressed, this Court directed for filing of the translated copy
  of the relevant portion of the report of the commission as it had
  already been submitted to the competent authority. In
  compliance with the order learned counsel for the State has
  brought on record the report dated 5.6.2007. On a perusal of
G the said report, we have found that the Commission has
  returned its findings in respect of all the aspects.

        5. Mr. Shanti Bhushan, learned senior counsel appearing
  for respondents 10 to 12, the organizers of the event, submitted
H that the Commission has fallen into grave error by not complying
  SANJAY GUPTA v. STATE OF UTTAR PRADESH                    1001
              [DIPAK MISRA, J.]

with Sections B8 and BC of the Act as a consequence of which A
the said respondents have been seriously prejudiced. It is his
further proponement that they were only issued notices under
Section 4(a) of the Act, but that would not meet the requirement
as mandated under Sections B8 and BC of the Act.
                                                                   B
      6. To ap'preciate the said submission, it is apposite to refer
to Sections B, 8A, 88 and 8C of the Act. Section 8 provides
for procedure to be followed by the Commission empowering
it to have power to regulate its own procedure including the
fixing of place and time of its sitting and deciding whether to C
sit in public or in private. Section BA stipulates that the inquiry
not to be interrupted by reason of vacancy or change in
constitution of the Commission. Sections 88 and BC on which
emphasis has been placed by Mr. Shanti 8hushan need to be
reproduced. They read as follows: -                                  D
     "88. Persons likely to be prejudicially affected to be
     heard. - If, at any state of the inquiry, the Commission, -

      i.    considers it necessary to inquire into the conduct      E
            of any person; or

      ii.   is of opinion that the reputation of any person is
            likely to be prejudicially affected by the inquiry,

     the Commission shall give to that person a reasonable          F
     opportunity of being heard in the inquiry and to produce
     evidence in his defence:

     Provided that nothing in this section shall apply where the
     credit of a witness is being impeached.                        G

     SC. Right of cross-examination and representation
     by legal practitioner. - The appropriate Government,

                                                                     H
    1002         SUPREME COURT REPORTS            [2014] 8 S.C.R.


A       every person referred to in section 88 and, with the
        permission of the Commission, any other person whose
        evidence is recorded by the Commission, -

           (a)    may cross-examine a witness other than a witness
B                 produced by it or him;

           (b)    may address the Commission; and

           (c)    may be represented before the Commission by a
                  legal practitioner or, with the permission of the
c                 Commission, by any other person."

        7. It is submitted by Mr. Shanti Bhushan, learned senior
  counsel, that no opportunity was given to the respondents 1O
  to 12 to cross-examine the witnesses though they are directly
D affected by the said inquiry and the findings recorded by the
  Commission. It is canvassed by him that the notice that was
  sent to the said respondents is basically under Section 4(a) of
  the Act. To bolster his submission he has drawn our attention
E to the notices that have been sent by the Commission. We may
  fruitfully refer to one of the notices sent by the Commission to
  one of the organizers, namely, Lakhan Tamar, respondent No.
  10. The said notice reads as follows: -
        "Sh. Lakhan Tomar, (in Jail),
F       Organizer, Consumer Show,
        Victoria Park,
        Meerut,
        Via
        Superintendent, District Jail, Meerut,
G       Meerut
        On 10th of April, a sad incident of massive fire occurred
        in the 3 Pandals of Brand Consumer Show at Victoria
        Park, Civil Lines area of police station, District Meerut. In
H
     SANJAY GUPTA v. STATE OF UTIAR PRADESH                  1003
                 [DIPAK MISRA, J.]

      order to ascertain the reasons, circumstances and fixing        A
      of responsibilities, the Government of Uttar Pradesh
      issued notification bearing No. 2155p/Chh.p-3-2006-
      12(51 )p/2006 dated 2 June, 2006 appointing a one
      member Enquiry Commission un~r the Commission of
      Inquiry Act 1952 (Government Order no. 60 of 1952) and          B
      the said Commission is in progress. The Commission is
      enquiring into the following issues:
~-


       1.   To find out the circumstances and causes on
            account of which the aforesaid accident occurred.         c
       2.   To recommend ways and means to keep up such
            incidents in check in future.

       3.    In respect of the aforesaid occurrence,
             determination of liability and fixing the same.          D

       4.    Measures to be adopted to prevent such
             occurrences in future.

      Xour presence is mandatorily required for the said Enquiry.
      You are hereby directed to appear before the Commission         E
      on the 27th of September 2006 at 10:30 AM and ensure
      the recording of your Statement. You are also required to
      present before the Commission all the Documents,
      correspondence, Acts, Rules, Governmerit Orders,
      Departmental orders, if any, related to the circumstances       F
      of the incident.

      You are also informed that the above notice is issued under
      the provisions G>f Commission of Enquiry Act 1952
      (Government Order no. 60 of 1952) and the compliance            G
      of which is necessary, mandatory and binding."

      8: Similar notices were sent to the other organizers. On a
perusal of the said notice, it is limpid that the said notice is in
the nature of notice requiring him to appear. It has to be
                                                                      H
    1004       SUPREME COURT REPORTS                  [2014) 8 S.C.R.


A construed as a notice under Section 4(a) of the Act. That apart,
  on a scrutiny of the list of witnesses who were examined by the
  Commission, we find that the respondents 10 to 12 were
  summoned almost after examination of 45 witnesses and the
  respondent-organise'i5 were not afforded opportunity of cross-
B examination. The Commission, on the basis of the evidence
  and taking recourse to certain violation of statutory provisions,
  has submitted the report.

         9. In State of Biharv. Lal Krishna Advani and others 1 while
C interpreting Section 88 of the Act which has been brought into
  the statute by the Amending Act 79 of 1971, the Court has
  opined thus: -

         "8. It may be noticed that the amendment was brought
         about, about 20 years after passing of the main Act itself.
D        The experience during the past two decades must have
         made the legislature realize that it would but be necessary
         to notice a person whose conduct the Commission
         considers necessary to inquire into during the' course of
         the inquiry or whose reputation is likely to be prejudicially
E        affected by the inquiry. It is further provided that such a
         person would have a reasonable opportunity of being
         heard and to adduce evidence in his defence. Thus the
         principles of natural justice were got inducted in the shape
         of a statutory provision. It is thus incumbent upon the
F        Commission to give an opportunity to a person, before any
         comment is made or opinion is expressed which is likely
         to prejudicially affect that person. Needless to emphasise
         that failure to comply with the principles of natural justice
         renders the action non est as well as the consequences
         thereof."
G
         10. In view of the aforesaid enunciation of law, it is difficult
    to sustain the report. We are obliged to state here that in
    course of hearing, we had asked the learned counsel for the

H   1.   (2003) a sec 361.
  SANJAY GUPTA v. STATE OF UTTAR PRADESH                  1005
              [DIPAK MISRA, J.]

parties that in case the report of the Commission would be set A
aside, the Commission has to proceed after following the
provisions of the Act. The said ·position was acceded to. On a
further suggestion being made, learned counsel for the parties
had fairly agreed for appointment of another retired Judge as
Commission. Learned counsel for the parties had suggested B
certain names in sealed covers but there was no commonality.
Regard being had ·to the gravity of the situation and the
magnitude of the tragedy, on due deliberation we appoint
Justice S.B. Sinha, formerly a Judge of this Court, as the one
man Commission. It is agreed by the learned counsel for the c
parties that the witnesses, who were examined by the previous
Commission and not cross-examined by respondents 10 to 12,
their depositions shall be treated as examination-in-chief and
they shall be made available for cross-examination by the
respondent. It has also been conceded that the documents D
which have been marked as exhibits, unless there is a cavil over
the same, they shall be treated as exhibited documents. Mr.
Shanti Bhushan, learned senior counsel, submitted that the
contractors who were engaged by the organizers, as they were
summoned by Justice O.P. Garg Commission, should be
                                                                   E
summoned by the present Commission. Appreciating the said
 submission, we think it apposite that the Commission should
 issue notices ~o the contractors so that the proceeding under
the Act can continue in accordance with the provisions of the
Act. Needless to say, they shall have the similar opportunity that
 has been made available to the organizers. The organizers as F
well as the contractors would be at liberty to adduce evidence
 in support of their respective pleas. The Commission shall
 record the evidence at Meerut and hearthe arguments in Delhi.
 It needs no special emphasis to say that the State shall provide
 the requisite infrastructure, secretarial staff to the Commission G
 for its smooth functioning and pay the fees of the Commission
 which shall be fixed by the Commission. The Commission is
 requested to submit the report by the end of January, 2015.

     11. ·Having so opined, we cannot comatose our judicial       H
    1006       SUPREME COURT REPORTS               [2014] 8 S.C.R.


A conscience to the plights 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 number
B of persons have suffered grievous injuries. There are also
  persons who have s.uffered simple injuries as ilas 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
c 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.
D       12. The question that we would like to pose is whether this
  Court should wait for the Commission's report and then direct
  the State Government to pay the amount of compensation to
  the grieved and affected persons, who have been waiting for
  the last eight years, or should they get certain sum till the matter
E is finalized. We will be failing in our duty if we do not take into
  consideration the submission of Mr. Shanti Bhushan, learned
  senior counsel, that as far as respondents 10 to 12 are
  concerned, no liability can be fastened under Article 32 of the
  Constitution of India, and definitely not at this stage. As far as
F first part of the submission is concerned, we keep it open to
  be dealt with after the report is obtained by this Court. As far
  as second aspect is concerned, we shall deal with it after we
  address the issue of public law remedy and the liability of the
  State in a case of this nature.
G
        13. In Nilabati Behera (Smt) alias Lalita Behera (through
    the Supreme Court Legal Aid Committee) v. State of Orissa
    and others2, J.S. Verma, J. (as his Lordship then was) speaking


H   2.   (1993) 2 SCS'746.
     SANJAY GUPTA v. STATE OF UTTAR PRADESH                    1007
                 [DIPAK MISRA, J.]

for himself and Venkatachala,J., after referring to various            A
authorities, opined thus: -

      "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           8
      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    C
      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 w~ich justifies award of monetary   D
      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        E
      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 v.
      State of Bihar3 and is the basis of the subsequent
      decisions in which compensation was awarded under                F
      Articles 32 and 226 of the Constitution, for contravention
      of fundamental rights.

      18. A useful discussion on this topic which brings out the
      distinction between the remedy in public law based on strict G
      liability for violation of a fundamental right enabling award
      of compensation, to which the defence of sovereign
      immunity is inapplicable, and the private law remedy,

3.    (1983) 4 sec 141.                                                H
    1008       SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A        wherein vicarious liability of the State in tort may arise, is
         to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd
         Edition, 1992, by Justice G.P. Singh, at pages 44 to 48.

        Thereafter, the learned Judge referred to the authority in
    Union Carbide Corpn. v. Union of lndia 4 and observed: -
B
         "We respectfully concur with the view that the court is not
         helpless and the ·vvide powers given to this Court by Article
         32, which itself is a fundamental right, imposes a
         constitutional obligation on this Court to forge such new
c        tools, which may be necessary for doing complete justice
         and enforcing the fundamental rights guaranteed in the
         Constitution, which enable the award of monetary
         compensation in appropriate cases, where that is the only
         mode of redress available. The power available to this
D        Court under Article 142 is also an enabling provision in this
         behalf. The contrary view would not merely render the court
         powerless and the constitutional guarantee a mirage, but
         may, in certain situations, be an incentive to extinguish life,
         if for the extreme contravention the court is powerless to
E        grant any relief against the State, except by punishment
         of the wrongdoer for the resulting offence, and recovery of
         damages under private law, by the ordinary process. If the
         guarantee that deprivation of life and personal liberty
         cannot be made except in accordance with law, is to be
         real, the enforcement of the right in case of every
F
         contravention must also be possible in the constitutional
         scheme, the mode of redress being that which is
         appropriate in the facts of each case. This remedy in public
          law has to be more readily available when invoked by the
          have-nots, who are not possessed of the wherewithal for
G
         enforcement of their rights in private law, even though its
         exercise is to be tempered by judicial restraint to avoid
          circumvention of private law remedies, where more
          appropriate."

H   4.   (1991) 4 sec 584.
  SANJAY GUPTA v. STATE OF UTTAR PRADESH                1009
              [DIPAK MISRA, J.]

    14. Dr. Anand,J. (as his Lordship then was) in his         A
concurring opinion has observed that: -

    "34. The public law proceedings serve a different purpose
    than the private law proceedings. The relief of monetary
    compensation, as exemplary damages, in proceedings 8
    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 C
    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 D
    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 E
     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 F
     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 G
     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."
                                                                H
    1010       SUPREME COURT REPORTS               [2014] 8 S.C.R.


A        15. In Chairman, Railway Board and others v. Chandrima
    Oas (Mrs.) and others5, this Court while dealing with an appeal
    arising out of a public interest litigation before the High Court
    pertaining to the grant of damages by the railways after referring
    to earlier decisions came to hold as follows:-
B
         "Running of the Railways is a commercial activity.
         Establishing the Yatri Niwas at various railway stations to
         provide lodging and boarding facilities to passengers on
         payment of charges is a part of the commercial activity of
         the Union of India and this activity cannot be equated with
c        the exercise of sovereign power. The employees of the
         Union of India who are deputed to run the Railways and to
         manage the establishment, including the railway stations
         and the·Yatri Niwas, are essential components of the
         government machinery which carries on the commercial
D        activity. If any of such employees commits an act of tort,
         the Union Government, of which they are the employees,
         can, subject to other legal requirements being satisfied, be
         held vicariously liable in damages to the person wronged
         by those employees."
E
         16. In Sube Singh v. State of Haryana and others 5, while
    dealing with the grant of compensation in a public law remedy,
    the Court ruled thus:-

           "It is thus now well settled that the award of compensation
F
          against the State is an appropriate and effective remedy
          for redress of an established infringement of a fundamental
          right under Article 21, by a public servant. The quantum of
          compensation will, however, depend upon the facts and
          circumstances of each case. Award of such compensation
G         (by way of public law remedy) will not come in the way of
          the aggrieved person claiming additional compensation in
          a civil court, in the enforcement of the private law remedy

    5.   (2000) 2 sec 465.
H   6.   (2006) 3 sec 11a.
     SANJAY GUPTA v. STATE OF UTTAR PRADESH                 1011
        .        [DIPAK MISRA, J.]

      in tort, nor come in the way of the criminal court ordering    A
      compensation under Section 357 of the Code of Criminal
      Procedure."

      17. In Raghuvansh Dewanchand Bhasin v. State of
Maharashtra and another7 , the Court reiterated the view that
                                                                     B
the power and jurisdiction of this Court and the High Courts to
grant monetary compensation in respect of petitioners under
Articles 32 and 226 of the Constitution of India and fundamental
rights under Article 21 of the Constitution of India are violated
are well-established.
                                                                     c
       18. In Mehmood Nayyar Azam v. State of Chhattisgarh
and others8while dealing with the mental torture of the petitioner
- an Ayurvedic doctor in custody, the Court after referring to
the earlier judgments including in Hardeep Singh v. State of
M.P. 9 ruled:                                                        D
       "35. We have referred to these paragraphs to understand
       how with the efflux of time, the concept of mental torture
       has been understood throughout the world, regard being
       had to the essential conception of human dignity.
                                                                     E
       36. From the aforesaid discussion, there is no shadow of
       doubt that any treatment meted out to an accused while
       he is in custody which causes humiliation and mental
       trauma corrodes the concept of human dignity. The
       majesty of law protects the dignity of a citizen in a society F
       governed by law. It cannot be forgotten that the welfare
       State is governed by the rule of law which has ,
       paramountcy. It has been said by Edward Biggon "the laws
       of a nation form the most instructive portion of its history".
       The Constitution as the organic law of the land has G
       unfolded itself in a manifold manner like a living organism

7.    (2012) 9 sec 791.
s.    (2012) a sec 1.
9.    (2012) 1 sec 748.                                              H
    1012      SUPREME COURT REPORTS                [2014] 8 S.C.R.


A       in the various decisions of the court about the rights of a
        person under Article 21 of the Constitution of India. When
        citizenry rights are sometimes dashed against and pushed
        back by the members of City Halls, there has to be a
        rebound and when the rebound takes place, Article 21 of
B       the Constitution springs up to action as a protector. That
        is why, an investigator of a crime is required to possess
        the qualities of patience and perseverance as has been
        stated in Nandini Satpathy v. P.L. Dani. 10"

      Thereafter placing reliance on Raghuvansh Dewanchand
C Bhasin (supra), Sube Singh (supra) and Hardeep Singh
  (supra), the Court granted a sum of Rs.5,00,000/- (rupees five
  lakhs only) as compensation.

        19. Having stated about the legal position pertaining to
O public law remedy under Article 32 of the Constitution of India
  as regards the grant of compensation we are obliged to
  address with regard to the responsibility and involvement of the
  State. Mr. Vikas Pahwa, learned senior counsel appearing for
  the petitioners, would submit that the organizers had sought
E permission from the Additional District Magistrate, Meerut City,
  vide letter dated 27.3.2006 for conducting the Consumer Show
  and in the said letter they had undertaken to follow all the
  guidelines and all suggested security and precautionary
  measures and also sought other permissions from the
F competent authorities under the U.P. Fire Services Act, 1944
  and the authorities of the State had granted permission without
  proper verification and hence, they should be held liable to pay
  first subject to recovery of the same proportionately from the
  organizers and contractors after recording the findings on all
G the contentions issues including the quantum of compensation
  that may be determined in the report by the Commission.

       20. Mr. Gaurav Bhatia, learned Additional Advocate
    General appearing for the Sate, submitted that the liability that

H   10. (1978) 2 sec 424.
  SANJAY GUPTA v. STATE OF UTTAR PRADESH                      1013
              [DIPAK MISRA, J.]

would be eventually determined, has to be apportioned between           A
the State and the organizers and the same has to be done on
percentage basis, that is to say, the liability of the organizers
should be 85% and that of the State should be 15% and said
proportionality should be followed at this stage also.
                                                                        B
     21. Mr. Shanti Bhushan, learned senior counsel, would
submit that the liability cannot be fastened on the organizers
under Article 32 of the Constitution as the grievance is not
tenable against the private persons and, in any case, the
organizers cannot vicariously be held liable for the act of the         C
contractors. We have noted these submissions but we are not
intending to address these aspects in praesenti. Be it stated,
with regard to the precise exact quantum, liability of the
organizers, liability of the contractors and, if found liable by this
Court, would depend upon the eventual verdict, regard being
had to the report of the Commission. As stated hereinbefore,            D
we have to see whether the State and its authorities prima
facie are responsible to make them liable to pay the
compensation. The issue of apportionment would come
afterwards. As we find from the material on record, pursuant
to the letter of request issued by the organizers, the Additional       E
District Magistrate obtained a report from the Superintendent
of Police, Meerut and expressed the view that there was no
objection if the programme was organized from 6.4.2006 to
 10.4.2006. It has also come on record that after obtaining
permission from the Additional District Magistrate the                  F
organizers requested the Principal, Government Inter College,
Meerut, requesting for providing of the GIC Play Ground and
toilet facilities for hosting of the build-in-style exhibition on the
said dates. The relevant part of the said letter reads as follows:
                                                                        G

     "The event is assured to be both an elite and very tidy affair
     conducted in the maximum possible professional manner,
     with support and involvement of many a senior officials/
                                                                        H
    1014     SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A       technocrats, major companies and well placed
        professionals. Moreover it has been purposely scheduled
        at the time when it does not interfere with the regular school
        classes or other activity.

        With the above inference it is earnestly requested that we
8
        may please graciously be allowed to use the GIC
        Playground and the allied services for toilet etc. for the
        purpose on the above dates and also make the ground
        available for general maintenance/preparatory works etc.
        4 days prior to the proposed event."
c
       22. The Principal of the Government 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
D only one entry and one exit gate, there had been violation of
  UP Fire Services Act, 1944, there was no proper fire safety
  arrangf;!ments yet the permission was granted to hold the
  exhibition. Few things are extremely clear from the entire
  assertion of facts. The Consumer Show was organized at a
E 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
F not and also how far the organizers had complied with the
  directions. The primary obligation of the State was to see
  whether the preparations made at the place of exhibitions by
  the organizers involved any risk or not and whether, there was
  proper arrangement for extinguishing the fire or not in the
G 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.

         23. We will be failing in our duty if we do not take note of
H
  SANJAY GUPTA v. STATE OF UTTAR PRADESH 1015
              [DIPAK MISRA, J.]

another submission of Mr. Gaurav Bhatia, who would                  A
vehemently urge that the principles stated in Municipal
Corporation of Delhi v. Association of Victims of Uphaar
Tragedy & ors. 11 , as regards the apportionment of damages
should be considered. In the said case the Municipal
Corporation had approached this Court assailing the decision        B
of the Division Bench of the High Court of Delhi. This Court
analysed the factual matrix, took note of the contentions of
various parties and modified the award as follows: -

     "Taking note of the facts and circumstances, the amount
     of compensation awarded in public law remedy cases, and        C
     the need to provide a deterrent, we are of the view that
     award of Rs.10 lakhs in the case of persons aged above
     20 years and Rs.7.5 lakhs in regard to those who were 20
     years or below as on the date of the incident, would be
     appropriate. We do not propose to disturb the award of         D
     Rs.1 lakh each in the case of injured. The amount awarded
     as compensation will carry interest at the rate of 9% per
     annum from the date of writ petition as ordered by the High
     Court, reserve liberty to the victims or the L.Rs. of the
     victims as the case· may be to seek higher remedy              E
     wherever they are not satisfied with the compensation. Any
     increase shall be borne by the Licensee (theatre owner)
   · exclusively."

     24. Thereafter, in the concluding portion the Court recorded
                                                                    F
its conclusion in seriatim. Some of the conclusions we
reproduce below: -

    "(iv) The licensee (appellant in CA No. 6748 of 2004) and
    Delhi Vidyut Board are held jointly and severally liable to
    compensate the victims of the Uphaar fire tragedy. Though       G
    their liability is joint and several, as between them, the
    li(lbility shall be 85% on the part the licensee and 15% on
    the part of DVB.

11. AIR 2012 SC 100.
                                                                    H
    1016         SUPREME COURT REPORTS               [2014) 8 S.C.R.


A      (v) CA No. 6748 of 2004 is allowed in part and the
       judgment of the High Court is modified as under:

           (a)    The compensation awarded by the High Court in
                  the case of death is reduced from Rs.18 lacs to
                  Rs.10 lacs (in the case of those aged more than
B
                  20 years) and Rs.15 lacs to Rs.7.5 lacs (in the case
                  of those aged 20 years and less). The said sum is
                  payable to legal representatives of the deceased
                  to be determined by a brief and summary enquiry
                  by the Registrar General (or nominee of learned
c                 Chief Justice/Acting Chief Justice of the Delhi High
                  Court).

           (b)    The compensatior:i of Rs. One lakh awarded by the
                  High Court in the case of each of the 103 injured
D                 persons is affirmed.

           (c)    The interest awarded from the date of the writ
                  petition on the aforesaid sums at the rate of 9% per
                  annum is affirmed.

E          (d)    If the legal representatives of any deceased victim
                  are not satisfied with the compensation awarded,
                  they are permitted to file an application for
                  compensation witn supporting documentary proof
                  (to show the age and the income), before the
F                 Registrar General, Delhi High Court. If such an
                  application if filed within three months, it shall not
                  be rejected on the ground of delay. The Registrar
                  General or such other Member of Higher Judiciary
                  nominated by the learned Chief Justice/Acting
G                 Chief Justice of the High Court shall decide those
                  applications in accordance with paras above and
                  place the matter before the Division Bench of the
                  Delhi High Court for consequential formal orders
                  determining the final compensation payable to
                  them."
H
  SANJAY GUPTA v. STATE OF UTIAR PRADESH                    1017
              [DIPAK MISRA, J.]

    25. In the said case, Radhakrishnan, J., in his concurring       A
opinion, after referring to earlier decisions of this Court,
especially the pronouncements in Nilabati Behera (supra) and
Union of India v. Prabhakaran 12 , came to hold as follows: -

    "Right to life guaranteed under Article 21 of the                B
    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      C
    statutes, since the prime object of public safety legislation
    is to protect' the individual and to compensate him for the
    loss suffered. Duty of care expected from State or its
    officials functioning under the public safety legislation is,
    therefore, very high, compared to the statutory powers and
    supervision expected from officers functioning under the         D
    statutes like Companies Act, Co-operative Societies Act
    and such similar legislations. When we look at the various
    provisions of the Cinematographic Act, 1952 and the Rules
    made thereunder, the Delhi Building Regulations and
     Electricity Laws the duty of care on officials was high and     E
     liabilities strict."

     xx                                                   xxx
     Legal liability in damages exist solely as a remedy out of
                                                                     F
     private law action in tort which is generally time consuming
     and expensive and hence when fundamental rights are
     violated claimants prefer to approach constitutional courts
     for speedy remedy. Constitutional courts, of course, shall
     invoke its jurisdiction only in extraordinary circumstances
     when serious injury has been caused due to violation of         G
     fundamental rights especially under Article 21 of the
     Constitution of India. In such circumstances the Court can


 12. (2008) 9 sec 527.
                                                                     H
    1018      SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A       invoke its own methods depending upon the facts and
        circumstances of each case."

        26. Relying on the said decision, Mr. Bhatia has placed
   emphasis on the facet of apportionment. We have also been
   commended to the decision in DAV Managing Committee and
8
   another v. Dabwali Fire Tragedy Victims Association and
   others 13 wherein the Court took note of the fact that the High
   Court had modified the percentage of the compensation as
   fixed by the Inquiry Commission and appreciating the factual
  .score held as follows:
c
        "It is not possible for this Court to apportion the liability of
        compensation between the appellants and Respondent 8,
        particularly in the absence of the material evidence on
        record either before the Inquiry Commission or before the
D       High Court and particularly having regard to the fact that
        what is stated that economic capacity of the partners of
        Raj iv Marriage Palace. In the absencEi of such findings it
        is not proper for this Court to frustratE;)1the judgment of the
        High Court which is based on the Commission of Inquiry
E       report submitted by a retired Judge of the Allahabad High
        Court and further on behalf of Respondent 8 it is ~tated
        that out of six family members, two persons, namely, Kewal
        Krishan and Chander Bhan died on account of the burn
        injuries in the said function and further the land where Rajiv
F       Marriage Palace was built up has been taken over by the
        district authorities and the same has been converted into
        "Shahid Smarak Park" and what is the other properties left
        out of the partners of Rajiv Marriage Palace and the
        evidence is not forthcoming in this Court or before the High
        Court or in these proceedings. In this way, in the absence
G
        of the same it is not possible for this Court to apportion
        the liability of compensation and confine the same upon
        the appellants and Respondent 8 out of 55% of the liability


H   13. (2013) 1o sec 494.
 SANJAY GUPTA v. STATE OF UTTAR PRADESH                    1019
             [DIPAK Ml$RA, J.]

    of compensation confined and holding both the appellants        A
    and ~espondent 8 responsible jointly and severally."

      27. We have referred to 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
                                                                   B
 Commission's report is received, but, a pregnant one, the
 victims and the families cannot be left on the lurch. As we find,
 there has been statutory violations 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, C
 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 D
 sum of Rs.2 lakhs each and the persons who have suffered
 minor injuries would be paid an additional 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 E
 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 F
  and, therefore, the Additional District Judge shall conduct a
  summery 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 G
 weeks' time to the Collector, Meerut. The disbursement shall
'be made within one month from the date of deposit.

       28. We are absolutely conscious about the fixation of
liability, the quantification and their apportionment as has been
                                                                    H
    1020       SUPREME COURT REPORTS               [2014] 8 S.C.R.


A held in Uphaar Tragedy and DabwaliFire Tragedy cases. Our
  direction to the State Government, at present, is only to see that
  the victims do not remain in a constant state of suffering and
  despair. We have taken note of the submission of Mr. Shanti
  Bhushan and observed hereinbefore that we will address the
8 issue of maintainability of the writ petition after submission of
  the report. Needless to say, in any event the issue of
  apportionment is kept open. But the organizers cannot be
  allowed to remain as total strangers in this regard. In course of
  hearing we had observed that the organizers should deposit
C certain amount before the Registry of this Court and regard
  being had to the said observation we direct the respondents
  10 to 12 to deposit a sum of Rs.30 lakhs before the Registry
  of this Court within a period of two months. The said amount
  shall be kept in a fixed deposit on an interest bearing account.
  We repeat at the cost of repetition that this arrangement is
D absolutely interim in nature and without prejudice to the
  contentions to be raised by the learned Additional Advocate
  General for the State and Mr. Shanti Bhushan, learned senior
  counsel for the respondent Nos. 10 to 12.

E        29. As we have fixed the date i.e. 31.1.2015 for submission
    of the report by the Commission, let the matter be listed on 11th
    February, 2015. In case the report is submitted earlier, the
    registry shall list the matter immediately before the Court.
    Kalpana K. Tripathy                               Matter adjourned.   j