Delhi High Court
Jaipur Golden Gas Victims ... vs Uoi & Ors. on 23 October, 2009
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6415/2006
JAIPUR GOLDEN GAS VICTIMS
ASSOCIATION ..... Petitioner
Through: Ms. Aruna Mehta, Advocate.
versus
UOI & ORS. ..... Respondents
Through: Mr. D.R. Thadani, Advocate for
R-5.
Mr. V.K. Tandon, Advocate for
R-2 & 4.
Mr. Mukesh Gupta, Advocate for
R-3.
Reserved on : 17th September, 2009
% Date of Decision : 23rd October, 2009
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
MANMOHAN, J :
1. Present writ petition has been filed by petitioner-Association in
public interest under Article 226 of the Constitution of India for
issuance of an appropriate writ, direction or order inter alia directing
respondents to pay victims of Jaipur Golden fire tragedy suitable
amount of compensation for loss of lives and injuries suffered.
Petitioner-Association has also prayed for identification and
prosecution of erring officials who were responsible for Jaipur Golden
fire tragedy as well as for implementation of recommendations of
earlier committees to prevent future tragedies in Delhi like the Jaipur
Golden fire tragedy.
CASE OF PETITIONER
2. Ms. Aruna Mehta, learned counsel for petitioner-Association
stated that on 4th April, 2004 at about 10.30 p.m. there was a huge fire
in the godown of respondent no. 5 at Mitra Wali Gali, Roshnara Road,
Delhi. She stated that in the said godown, respondent no. 5 had stored a
consignment of rodent killing pesticides which contained Aluminum
Phosphate and Zinc Phosphate. She further stated that the officials of
respondent no. 5 along with fire brigade officials poured water over the
fire in a bid to extinguish it. According to Ms. Mehta, due to pouring of
water, Aluminum Phosphate and Zinc Phosphate reacted with water
resulting in emission of highly poisonous Phosphine gas which
continued to emit till 7th April, 2004. She stated that due to inhalation
of the aforesaid gas, about thirty five persons living in the
neighbourhood of respondent no. 5‟s godown were taken unwell and
were rushed to the hospital with symptoms of breathlessness, pain in
chest, vomiting, diarrhea, nausea and stomach ache. While most of sick
persons were admitted in Hindu Rao Hospital for a period of a few
days, a 19 years old boy, namely, Akash died in the morning of 7th
April, 2004.
3. According to Ms. Mehta, subsequently three more persons,
namely, Babu Lal (40 yrs.), Ved Prakash @ Raju (25 yrs.) and Poonam
(18 yrs.) died due to exposure to chemical gases that were emitted
during the fire in respondent no. 5‟s godown. In the case of Babu Lal,
Ms. Mehta referred to the discharge slip prepared by Hindu Rao
Hospital wherein it was stated that he had been treated for irritant gas
inhalation. She also referred to prescriptions issued by Chest Clinic,
Gulabi Bagh to Babu Lal to show that he had been treated for
respiratory distress on account of gas inhalation. An affidavit of widow
of Babu Lal was also relied upon by Ms. Mehta. In the said affidavit it
was stated that though Babu Lal was suffering from initial stages of
Pulmonary Tuberculosis, his condition deteriorated due to inhalation of
gas that leaked from the godown of respondent no. 5 for a continuous
period of four days and he subsequently died on 8th January, 2007.
4. In the case of Ved Prakash @ Raju, Ms. Mehta referred to Hindu
Rao Hospital‟s medical record to show that he had been admitted in the
said hospital on 7th April, 2004 on account of chemical smoke
exposure. Though Ved Prakash @ Raju was discharged on the next day,
his mother has filed an affidavit in the present proceedings stating that
his pulmonary tuberculosis got aggravated to a great extent due to
inhalation of gas and he ultimately expired on 14th April, 2007. In the
said affidavit his profession and his monthly salary have also been
mentioned.
5. In the case of deceased Poonam, Ms. Mehta once again referred
to the medical record of Hindu Rao Hospital which showed that she had
been admitted in the hospital on account of inhalation of phosphine gas.
She also referred to an affidavit filed by deceased Poonam‟s mother
which stated that Poonam was not suffering from any ailment and it
was only due to ill-effects of gas leak that she died on 3rd November,
2005. Poonam‟s monthly income has also been mentioned in the said
affidavit.
6. Though Ms. Mehta admitted that Babu Lal and Ved Prakash @
Raju were suffering from early stages of Tuberculosis, she stated that
prognosis of Tuberculosis was excellent and in recent years death rate
had declined from 25% to 2.5%. In this regard, she referred to an
article on Tuberculosis published by Healthline Network as well as to
the statement of Health Minister, Government of NCT of Delhi
published in the Tribune newspaper.
7. Ms. Mehta stressed upon the fact that respondent no. 5 had
neither taken any precautions nor obtained any prior licence from the
Municipal Corporation of Delhi as mandated by Section 417 of Delhi
Municipal Corporation Act, 1957 (hereinafter referred to as "DMC
Act").
8. Ms. Mehta reiterated that petitioner is an Association which was
formed by victims of the fire tragedy as well as the next of kith and kin
of those who had died due to inhalation of phosphine gas. She stated
that petitioner-Association is headed by one Shri Raj Kumar Jain, who
had been authorised by its members to file and pursue the present writ
petition and to seek compensation on behalf of gas victims as well as to
ensure that the erring officials are prosecuted for non-performance of
their statutory duties.
9. Ms. Mehta stated that some of the poor victims are still suffering
from the after-effects of emission of poisonous gases that had escaped
from respondent no. 5‟s godown. According to her, as the gas victims
belonged to the poor section of the society, this Court should grant a
fair and just compensation to them by applying the principle of strict
liability as enunciated in M.C. Mehta and another Vs. Union of India
and others reported in 1987 (1) SCC 395 and Association of Victims of
Uphaar Tragedy and Others Vs Union of India and Others reported in
2003 III AD (Delhi) 321.
10. In this context, Ms. Mehta claimed the following compensation
for the four deceased in accordance with the Motor Vehicles Act 1988:
A. Babu Lal
Compensation should comprise two parts
I) Pecuniary loss of dependency.
II) Non pecuniary loss i.e. standard compensation or
conventional amount for losses such as loss of
consortium, loss of parents, pain and suffering and
loss of amenities of life.
For pecuniary loss
Age: 40 yrs. Carpenter
Income Rs.4,000/- per month.
Deducting 1/3rd for personal expenses of the deceased
Rs.1,333/-.
Dependency comes out to be Rs.2,667/- per month.
Multiplier 15 at the age of 40 yrs.
Rs.2,667 x 12 x 15 = Rs.4,80,060/-.
For non pecuniary loss
This Court in Kamla vs. Govt. of NCT reported in 2005
ACJ 216 and in Kishan Lal & Ors. vs. Govt. of NCT &
Ors. W.P.(C) 5072/2005 decided on 3rd July, 2007 has
calculated the non pecuniary loss by taking the consumer
price index for industrial worker (CPI(IW) (source labour
bureau Govt. of India) with base year 1982 (=100)m the
average CPW(IW) for the year 1989 was 171 and for
January 2005 was 526. Due to inflation corrected value of
Rs.50,000/- in 1989 would work out to Rs.1,53,801 in
January, 2005.
Hence non pecuniary loss can be taken as Rs.1,53,801/-.
Total compensation works out to Rs.4,80,060 +
Rs.1,53,801 = Rs.6,33,861/- along with interest at the rate
of 7.5% per annum from the date of petition till realization.
B. Ved Prakash @ Raju
Pecuniary loss :-
Age: 25 yrs.
Income Rs.5000/- annual income Rs.60,000/-.
Deducting 1/3rd for personal expenses of the deceased
dependency comes out to Rs.40,000/-.
Multiplier 17
Rs.40,000 x 17 = Rs.6,80,000/-.
Non-pecuniary loss as discussed above Rs.1,53,801/-.
Total Rs.6,80,000 + Rs.1,53,801/- = Rs.8,33,801/- along
with interest at the rate of 7.5% per annum from the date of
petition till realization.
C. Poonam
Age : 18 yrs.
Income : Rs.3000/-.
Deducting 1/3rd for personal expenses of the deceased
dependency comes out to be Rs.2000/- per month or
Rs.24,000/- per annum.
Multiplier 13 as per the age of mother
Rs.24,000 x 13 = Rs.3,12,000/-.
Non-pecuniary loss as discussed above Rs. 1,53,801/-
Total 3,12,000/- + Rs. 1,53,801/- = Rs.4,65,801/- along
with interest at the rate of 7.5.% per annum from the date
of petition till realization.
D. Akash
Age of deceased : 19 yrs. Age of father : 55 yrs.
Income: 5000/- per month so annual income Rs.60,000/ -
per annum. Skilled
Future Prospects: Not claimed.
Deducting 1/3rd for personal expense of the deceased
dependency comes out to be Rs. 40,000/-.
Multiplier 11 as per age of the father
Rs. 40,000 x 11 = Rs.4,40,000/-.
Non pecuniary as discussed above Rs.1,53801/-.
Total Rs.4,40,000/- + Rs.1,53,801/- = Rs.5,93,801/- along
with interest at the rate of 7.5% per annum from the date of
petition till realization.
CASE OF MCD
11. Respondent-MCD in its counter-affidavit has stated that as soon
as they got information of the incident, they inspected the property in
question and found that the respondent no. 5 had stored pesticide boxes
which caused fire in the godown. It has been further stated in the said
affidavit that in order to prevent recurrence of such incidents, the
property was sealed on 9th April, 2004 under the orders of the
Competent Authority.
CASE OF RESPONDENT NO.5
12. On the other hand, Mr. D.R. Thadani, learned counsel for
respondent no. 5 stated that the said respondent had been using the
aforesaid godown since 1998. He further stated that despite an
application for licence having been filed on 04th December, 1998 by
respondent no.5, respondent-MCD took no action. According to him,
respondent no. 5 was constrained to file a writ petition being CWP No.
1346/2004 before this Court, which was disposed of on 10th March,
2004 by a learned Single Judge of this Court after recording MCD‟s
undertaking that respondent no. 5‟s representation would be disposed of
within three weeks.
13. Mr. Thadani stated that despite respondent no. 5 filing all the
requisite papers, respondent-MCD did not take any action in pursuance
to this Court‟s order dated 10th March, 2004.
14. Though Mr. Thadani admitted the fact that on 4th April, 2004
there was an incident of fire in respondent no. 5‟s godown and as a
consequence of the said fire, about 34 persons were admitted on 7 th
April, 2004 in Hindu Rao Hospital, he did not admit that fire was
caused due to negligence attributable to any official of respondent no.5.
In this connection, he relied upon a report prepared by the Loss
Prevention Association of India Ltd. for respondent no. 5‟s insurance
company. According to him, the said report concluded that an
electrical spark in all probability was the cause of the fire.
15. He further submitted that M.C. Mehta‟s case (supra) was not
applicable to the present facts as opening of a godown could not by any
stretch of imagination be said to be an inherently dangerous and
hazardous activity.
16. On merits, Mr. Thadani submitted that there was no conclusive
evidence that death of Babu Lal, Ved Prakash @ Raju and Poonam was
attributable to inhalation of gas released. Mr. Thadani repeatedly
emphasised that Babu Lal and Ved Prakash @ Raju were already
suffering from Tuberculosis and, therefore, it could not be said with
certainty that „but for‟ emission of gas from godown of respondent no.
5, they would have survived.
17. Mr. Thadani raised a number of preliminary objections to
maintainability of the present writ petition. He submitted that
petitioner-Association had no locus standi to maintain the present
public interest writ petition inasmuch as petitioner-Association was not
a registered body and further the Minutes of the petitioner-Association
Meeting held on 2nd May, 2005 indicated that it had been formed at the
instance of the Advocates appearing for the Association. Mr. Thadani
submitted that its advocates cannot take up the cause of people by way
of a public interest litigation. In this regard, he relied upon Chhetriya
Pardushan Mukti Sangharsh Samiti Vs. State of U.P. and others
reported in AIR 1990 SC 2060 wherein the Supreme Court held as
under:
"8. Article 32 is a great and salutary safeguard for
preservation of fundamental rights of the citizens. Every
citizen has a fundamental right to have the enjoyment of
quality of life and living as contemplated by Article 21 of the
Constitution of India. Anything which endangers or impairs
by conduct of anybody either in violation or in derogation of
laws, that quality of life and living by the people is entitled to
be taken recourse of Article 32 of the Constitution. But this
can only be done by any person interested genuinely in the
protection of the society on behalf of the society or
community. This weapon as a safeguard must be utilised and
invoked by the Court with great deal of circumspection and
caution. Where it appears that this is only a cloak to "feed
fact ancient grudge" and enemity, this should not only be
refused but strongly discouraged. While it is the duty of this
Court to enforce fundamental rights, it is also the duty of this
Court to ensure that this weapon under Article 32 should not
be misused or permitted to be misused creating a bottleneck
in the superior Court preventing other genuine violation of
fundamental rights being considered by the Court. That
would be an act or a conduct which will defeat the very
purpose of preservation of fundamental rights."
18. Mr. Thadani strenuously urged that as respondent-MCD as well
as deceased and injured claimants were silent spectators to running of
respondent no. 5‟s godown for a period of six years, they could not file
the present writ petition claiming compensation.
19. According to him, present writ petition was also barred by
limitation as it had been filed two years after the incident of fire which
occurred on 4th April, 2004 and further the impleadment application had
been filed only on 17th March, 2009 on behalf of legal heirs of deceased
Babu Lal, Ved Prakash @ Raju and Poonam. In any event, according
to him, no writ petition for monetary claim was maintainable.
20. Mr. Thadani further submitted that present writ petition was also
not maintainable as no writ petition lies against a private company like
respondent no. 5. Moreover, according to him, in view of the voluntary
settlements having already been executed between respondent no. 5 and
the claimants, this Court could not award any compensation. Mr.
Thadani pointed out that on 19th May, 2004, respondent no. 5 entered
into contracts with affected persons and paid them compensation under
concluded contracts.
21. In the context of the aforesaid settlement agreements, Mr.
Thadani referred to a judgment of the Supreme Court in Punjab
National Bank Vs. Virender Kumar Goel and others reported in
(2004) 2 SCC 193 wherein the Supreme Court held as under :-
"16. We make it clear that the sentence, "accepted a part of
benefit under the scheme", which appeared in our direction
as noticed above, would include the withdrawal of the benefit
and utilisation thereof. By no stretch of imagination,
unilateral deposit of a part of benefit under the scheme into
the bank account that too after withdrawal of the application,
would construe as to have accepted the part of the benefit
under the scheme, when the same was neither withdrawn nor
utilised by the employee concerned.
xxxxx xxxxxx xxxxx
19. I.A. No. 14 has been filed by an employee of the bank
sought to clarify/modify our order dated 17.12.2002. In this
case, admittedly, the benefit of the Scheme had been
withdrawn by the applicant on 27.2.2001. The applicant had
clearly admitted, in ground E of the application, withdrawal
of the amount so credited in his account albeit compelling
financial constraints.
xxxxx xxxxxx xxxxx
21. As noticed in our judgment, having accepted the benefit
under the Scheme by withdrawing and utilisation thereof they
are not permitted to approbate and reprobate.
22. Mr. Thadani also submitted that the writ petition should not be
heard at the present stage as criminal case against officers of respondent
no. 5 was pending and any detrimental order in the present writ petition
would adversely affect the course of justice in the said criminal case.
UNDISPUTED FACTS
23. Having heard the parties and having perused the papers, we are
of the view that the admitted position is that respondent no. 5 was using
the premises at Roshnara Road as a godown without any prior
mandatory statutory permission. In fact, in the present case, the
undisputed position was that there had been violation of Section 417 of
the DMC Act. The relevant portion of the said Section is reproduced
hereinbelow :-
"417. Premises not to be used for certain
purposes without license-
(1) No person shall use or permit to be used any
premises for any of the following purposes
without or otherwise than in conformity with the
terms of a license granted by the Commissioner
in this behalf, namely:-
(a) any of the purposes specified in Part I of the
Eleventh Schedule;
(b) any purpose which is, in the opinion of the
Commissioner dangerous to life, health or
property or likely to create a nuisance;....."
24. Moreover, the incident of fire and emission of gases on 4th April,
2004 in respondent no. 5‟s godown wherein pesticides were stored was
not disputed. It was also not denied that as a consequence of the fire
and inhalation of chemical gases, thirty four persons were hospitalised.
In fact, death of Akash due to inhalation of poisonous phosphine gas
immediately in the aftermath of the fire incident was also not disputed.
25. In this connection, we may refer to first DD entry and FIR No.
123/2004 lodged by police at Subzimandi Police Station, Delhi. The
said DD entry reads as under :-
"DD No.30-A dated 4-4-04 PS Subzi Mandi Delhi.
Information received through PCR
and Departure
Time 10.40 PM the Wireless Operator N. 61 from P.S.
informed through intercom that from PCR, ASI Beni Arun, he
received message that there is a fire at Jaipur Golden
Godown and requested for sending police. The message was
recorded and SI Rajiv Kumar was informed at Wire Less Set
SM-1. For necessary action.
ASI
True as per original.
Sir DO Sahab, PS Subzi Mandi, Delhi, it is submitted
that I, SI on receipt of DD No. 30-A along with my
companion Ct. Tejpal No. 1256/N went to the place of
occurrence at Roshnara Road, Jaipur Golden Tpt Company
Godown where there was an incident of very big fire and the
fire brigade was engaged in extinguishing the fire.
Apparently the fire broke out due to inflammable and
combustible chemicals stored in the godown and there was
fear and possibility of the fire spreading to the nearby
localities and there was also danger of loss of lives and
property, which was due to the godown owners storing
combustible chemicals in the godown without taking any
precaution, which constitutes an offence under Section
285/336 IPC. Ct. Tejpal was sent to P.S. for lodging an FIR
in this regard and I S.I. is present at the place of occurrence.
Date 4-4-04 at about time unknown.
Jaipur Godlen Tpt Company Godown, Roshnara Road, Delhi.
5-4-04 at 12.55 AM.
Sd/-
SI Rajeev Kumar
No. D/1172
P.S. Subzi Mandi
Dated 5-4-04."
(emphasis supplied)
26. The FIR lodged by the police reads as under :-
FIRST INFORMATION REPORT
1. District North P.S. Subzi Mandi Year 2004
FIR No. 123 date 7.4.04
2. Act IPC Section : 284/337/304A
3. Occurrence of
Offence Day : Wednesday Date from 7.4.04
Date to : 7.4.04
Time from 0330 Hrs. Time to 0330 hrs.
(b) Information received at P.S.
Date 7.4.04 Time 07.35 hrs.
(c) General Diary
Reference Entry No. D.D. No. 7A Time 07.35 hrs.
4. Type of information :
5. Place of occurrence :
(a) Direction and distance from PS 1/2 KM West Side
(b) Address : H.No. 4801 Gali Mitra, Arya Pura, Subzi
Mandi, Delhi.
6. Complainant/Informant
(a) Shri Duli Chand
(b) Father‟s Name: Shri Dhalu Ram
(c) Date/year of birth 55 years Nationality : Indian
Occupation : Baildari
Address : H.No.4801 Gali Mitra Sabzi
Mandi Delhi
7. Details of known/suspected accused
8. Reasons for delay in reporting No Delay
by me
STATEMENT OF DULI CHAND S/O. late Shri Dhadhu Ram,
R/O.House No.4801 Gali Mitra Roshanara Road, Sabzi
Mandi Delhi-7 aged 58 years who stated that I am residing at
the above said address along with my family members and
does the work of a labourer. In his street, there is a godown
of Jaipur Golden Transport Company. It was set to fire. This
godown was full of chemicals, clothes and cartons. Carton of
tin were having poisonous pills which lost due to fire and
poisonous smoke came out of the pills. Today in the morning
my son Akash due to inhailing of poisonous smoke started
vomiting and diarrhea and at about 3.30 in the night his
condition deteriorated so I took him to Hindu Rao Hospital
where the doctor on duty declared him as brought dead.
Thereafter I took the dead body at home. The condition of the
other neighbourers of the vicinity also became worsen due to
the above said smoke which was coming out from the said
godown. The treatment of all the neighbourers are continued
in Hindu Rao Hospital. This mishappening took place to the
negligency of the owner of Jaipur Golden Transport
Company as he preserved poisonous things in his godown
and did not take precautionary measures to avoid such
incidences. The necessary action may kindly be taken against
him. I have read my statement which is correct.
Sig. in Hindi
Attested by Jai Kumar
A.S.I. P.S. Sabzi Mandi
7.4.04
Sir,
It is submitted to the Duty Officer, P.S. Sabzi Mandi,
that I ASI after receiving the D.D. No. 6A along with
Constable Amarjit No. 919/N visited Roshnara Road House
No. 4801 Gali Mitranwali Subzi Mandi where one person‟s
dead body named as Akash son of Duli Chand was lying there
where the father of the deceased, Duli Chand got recorded
his statement. Thereafter I ASI with the Constable visited
Hindu Rao Hospital and took the MLC of the injured. From
the facts and circumstances the case is made out under
Section 284/337/304A IPC against the accused. I sent the
case for registration of rukka through Constable Amarjeet
Singh No. 919/N who will inform him after registration of the
case.
I am busy at the spot.
Date and time of accident : 7.4.04 at about 3.30 p.m.
Place of incident : House no. 4801 Gali Mitranwali, Subzi
Mandi : Delhi
Date and time of departure : 7.4.04 at 7.25 AM
Signature in English Jai Kumar
ASI No. 28740594
13. Action taken
Name of IO Jai Kumar Rank ASI No. 2406/D PIS No.
28740594
Sd/- Signature of Officer
Incharge/Duty Officer, P.S.
Name : Manrakhan
Rank HC No. 417/N
RO&AC PIS No. 28850255
Sd/- Duli Chand
15. Date and time of departure to the court : By Dak.
(emphasis supplied)
27. The fact that Mr. Akash died due to inhalation of poisonous
gases, is confirmed by the FSL report dated 30 th September, 2004
which concluded that exhibits tested positive for presence of Aluminum
Phosphide and Zinc Phosphide. The said report is reproduced
hereinbelow:-
FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI
MADHUBAN CHOWK, ROHINI SECTOR-14, DELHI-110085
REPORT No. FSL.....2004/C-1019 Dated 30/09/04
Please quote the Report (Opinion) No. & Date in all future
correspondence & Summons.
To
The Station House Officer
PS Subzi Mandi
Distt. North,
Delhi-7
Your letter No. 1021/SHO/S.Mandi Dated 25.05.2004
regarding six parcels in connection with case FIR No. 123/04
dated 07.04.04 U/S 284/337/304A IPC P.S. Subzi Mandi duly
received in this office on 25.05.2004.
DESCRIPTION OF PARCELS & CONDITIONS OF SEAL/S
The Parcels six in numbers marked „1A‟, „2A‟, „2B‟,
„3A‟, „3B‟ & „3C‟ which were sealed and tallied with
specimen seal impression forwarded.
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
Parcel-1 : One wooden box sealed with the seals of
„KLS SUBZI MANDI MORTUARY AAA HOSPITAL, DELHI‟
labeled as PMR No. 497/04 Viscera of Akash. It was found to
contain exhibits „1A‟, „1B‟ & „1C‟.
Exhibit-1A: Stomach and piece of small intestine with
contents kept in a sealed jar.
Exhibit-1B : Pieces of liver, spleen and kidney kept in a
sealed jar.
Exhibit-1C : Lung pieces kept in a sealed jar.
Parcel-2A : One sealed glass vial sealed with the seal of
„hrh‟ labelled as MLC No. 3171. It was found to
contain exhibit „2A‟.
Exhibit-2A : Blood sample vol. 1 ml approx. of Ankush.
Parcel-2B: One sealed glass vial sealed with the seal of
„hrh‟ labelled as MLC No. 3184/04. It was
found to contain exhibit „2BA‟
Parcel-3A: One cloth parcel sealed with the seals of „JK‟. It
was found to contain exhibit „3A‟.
Exhibit-3A : Dark Grey coloured tablets, kept in the sixteen
metallic container, kept in a tin container
labelled as ALUMINUM PHOSPHIDE 56%
W/W SANPHOS. Manufactured by SANDHYA
ORGANIC CHEMICALS PVT. LTD.
Parcel-3B : One cloth parcel sealed with the seals of „JK‟. It
was found to contain exhibit „3B‟.
Exhibit-3B : Black colour powder substance, kept in plastic
packet labelled as RODENTICIDE ZINC
PHOSPHIDE RATIL Manufactured by
SANDHYA ORGANIC CHEMICALS PVT. LTD.
Parcel-3C : One cloth parcel sealed with the seals of „JK‟. It
was found to contain exhibit „3C‟.
Exhibit-3C : Dark Grey coloured tablets kept in a metallic
container.
RESULTS OF EXAMINATION
On chemical examination (i) Exhibits „1B‟, „1C‟, „2A‟ & „2B‟
gave positive tests for the presence of phosphide.
(ii) Exhibits „3A‟ & „3C‟ gave positive tests for the
presence of aluminum phosphide.
(iii) Exhibit „3B‟ gave positive tests for the presence of zinc
phosphide.
(iv) Metallic poisons, ethyl and methyl alcohol, cyanide,
phosphide, alkaloids, barbiturates, transquillizers and
insecticides could not be detected in exhibit „1A‟.
Note : Remnants of the exhibits have been sealed with the seal
of APS FSL DELHI.
Sd/-
(AMARPAL SINGH)
(emphasis supplied)
28. The subsequent opinion given by a doctor of Aruna Asaf Ali
Government Hospital, Delhi confirmed that Mr. Akash died due to
respiratory distress caused as a consequence of phosphide poisoning.
The relevant portion of the said report is reproduced hereinbelow:-
"Subsequent Opinion
Reference page ante, written application of Police I.O
and FSL report No. FSL. 2004/C-1019 dated 30-09-04 which
gave positive test for phosphide in pieces of lungs, liver,
kidneys and spleen, the subsequent opinion is as follows :-
"The cause of death is respiratory distress, asphyxia
and myocardial anoxia as a result of phosphide
poisoning.
Sd/-
Dr. Kulbhushan Goyal
Senior Medical Officer
Aruna Asaf Ali Govt. Hospital
Delhi.
(emphasis supplied)
29. It is pertinent to mention that Dr. K.S. Narayan Reddy in his
book "The Essentials of Forensic Medicine and Toxicology" has stated
as under:-
ALUMINUM PHOSPHIDE
Aluminum phosphide (ALP) is a solid fumigant pesticide,
insecticide and rodenticide. In India it is available as white
tablets of Celpnos, Alphos, Quickphos, Phostoxin,
Phosphotex, etc., each weighing 3 g. and has the capacity to
liberate one gram of phosphine (PH3). On coming in contact
with moisture ALP liberates phosphine. Phosphine is a
systemic poison and affects all organs of the body. The
chemical reaction is accelerated by the presence of HCL in
the stomach. ALP has garlicky odour. It is widely used as
grain preservative. Phosphite and hypophosphite of
aluminum which are non-toxic residues are left in the grains.
Absorption and Excretion : Phosphine is rapidly absorbed
from the GI tract by simple diffusion and causes damage to
the Internal organs. It is also rapidly absorbed from the
lungs after inhalation. After ingestion, some ALP is also
absorbed and is metablised in the liver, where phosphine is
slowly released accounting for the prolongation of symptoms.
Phosphine is oxidized slowly to oxyacids and excreted in the
urine as hypophosphite. It is also excreted in unchanged
form though the lungs.
Action : Phosphine inhibits respiratory chain enzymes and
has cytotoxic action. It acts by inhibiting the electron
transport resulting from preferential inhibition of cytochrome
oxide.
Inhalation : Mild inhalation exposure produces irritation of
mucous membranes and acute respiratory distress. Other
symptoms are dizziness, easy fatigue, tightness in the chest,
nausea, vomiting, diarrhea and headache. Moderate toxicity
produces ataxia, numbness, paraesthesia, tremors, diplopia,
jaundice, muscular weakness, incoordination and paralysis.
Concentration of PH3 in air higher than 03 ppm causes severe
illness. Severe toxicity produces adult respiratory distress
syndrome, cardiac arrhythmias, congestive heart failure,
pulmonary oedema, convulsions and coma."
30. According to the New Jersey Department of Health and Senior
Services‟ Hazardous Substance Fact Sheet, contact with Aluminum
Phosphide can irritate the skin and eyes and its repeated exposure can
damage lungs, kidneys and liver. The Fact Sheet further states that
Aluminum Phosphide reacts with water or moisture to release highly
toxic and flammable Phosphine gas, which is a highly reactive
chemical and a dangerous fire and explosion hazard.
31. The website of BOC Gases states that release of phosphine gas
can aggravate pre-existing respiratory, kidney and nervous system
disorders.
LIMITATION OBJECTION
32. We fail to understand as to how a writ petition can be said to be
barred by limitation inasmuch as no period of limitation has been
statutorily prescribed for filing a writ petition under Article 226 of the
Constitution. In fact, writ petitions are dismissed on account of delay
on the ground of laches and not as barred by limitation. The test to be
applied is whether laches on the part of the Petitioner are such as to
hold that petitioners by their act or conduct have given a go-by to their
rights. On perusal of the present case we find that present writ petition
was filed in about two years‟ time from the date of fire and delay in
filing the present petition was on account of the fact that victims of the
fire and gas tragedy were extremely poor and not organized. In any
event the alleged delay, if any, has not prejudiced the rights of any
third party including that of respondent no.5.
33. As far as allowing of the impleadment application in 2009 is
concerned, we find that by virtue of the said application, legal heirs of
three deceased victims were brought on record. In fact, two out of three
deceased had died after filing of the present writ petition.
Consequently, plea of limitation is without any merit and is accordingly
rejected.
LOCUS-STANDI OBJECTION
34. Respondent no. 5‟s objections that petitioner-Association has no
locus standi to maintain the present writ petition as it is an unregistered
body, is without any merit. In fact, the earlier narrow concept of person
aggrieved and individual litigation has become obsolete and Courts are
today even converting letter petitions into Public Interest Litigations.
The Supreme Court in Akhil Bharatiya Soshit Karamchari Sangh
(Railway) vs. Union of India & Ors. reported in AIR 1981 SC 298 held
as under:
"63. A technical point is taken in the counter-affidavit that the
1st petitioner is an unrecognized association and that, therefore,
the petition to that extent, is not sustainable. It has to be
overruled. Whether the petitioners belong to a recognized union
or not, the fact remains that a large body of persons with a
common grievance exists and they have approached this Court
under Article 32. Our current processual jurisprudence is not of
individualistic Anglo-Indian mould. It is broad-based and
people-oriented, and envisions access to justice through „class
actions‟, „public interest litigation‟ and „representative
proceedings‟. Indeed, little Indians in large numbers seeking
remedies in courts through collective proceedings, instead of
being driven to an expensive plurality of litigations, is an
affirmation of participative justice in our democracy. We have
no hesitation in holding that the narrow concept of „cause of
action‟ and „person aggrieved‟ and individual litigation is
becoming obsolescent in some jurisdictions."
35. Respondent no.5‟s further plea that Advocates were behind the
petitioner-Association, is contrary to facts and untenable in law. In any
event, Advocates have in the past filed many public interest litigations
including those seeking compensation. In this context, we may refer to
a judgment of Karnataka High Court in P.A. Kulkarni & Anr. vs. State
of Karnataka & Anr. reported in AIR 1999 Karnataka 284 wherein it
was held as under:
"Careless conduct and casual approach adopted by the
respondent-State in the matter of fundamental right dealing with
life and safety forced the petitioners, belonging to a noble
profession of advocates to put off their robes and stand before us
as litigant seeking justice for the legal heirs of the dead and
compensation for the injured. The deaths and injuries are
admitted to have been caused on account of the collapse of a
building constructed by the builders by using substandard
material besides ignoring the structural guidelines and
protections. The rolling tears and the soar wailing cries of the
victims of the tragedy did not affect the mighty and careless State
but did touch the tender hearts of the petitioners, who initiated
this action in public interest with prayer for granting appropriate
relief to the needy and deserving."
PENDENCY OF CRIMINAL PROCEEDINGS IS NO BAR TO
MAINTAINABILITY OF PRESENT WRIT PETITION
36. Mr. Thadani‟s plea that any decision in the present writ
proceedings would prejudicially affect the criminal trial, is untenable in
law as in the present proceedings we are not holding anyone criminally
liable. In fact, we are only considering application of the principle of
strict liability according to which those engaged in certain activities
have to compensate for the damages caused by them irrespective of any
fault on their part. Consequently, Mr. Thadani‟s aforesaid objection is
without any merit.
„SILENT SPECTATORS‟ OBJECTION
37. Respondent no.5‟s plea that as the deceased and injured were
silent spectators to running of a godown by respondent no. 5 for six
years, they could not claim compensation, is only to be stated to be
rejected. If this plea were to be accepted it would amount to placing a
premium on dishonesty and any infringer of law would claim that he is
not liable to pay any compensation as he had not been prevented prior
in time from violating the law.
VOLUNTARY SETTLEMENT‟S PLEA
38. Respondent no. 5‟s further plea that in view of the voluntary
settlement having been executed, they were not liable to pay any
compensation is equally untenable in law. One of the sample
agreements executed between respondent no. 5 and an affected party is
reproduced hereinbelow for ready reference :-
AGREEMENT
This agreement is made at Delhi on this 3rd day of May
2004 between Shri Sumer Chand S/o. Shri Faquir
Chand R/o. 4808, Gali Mitra, Arya Pura, Delhi
(hereinafter called the FIRST PARTY AND Jaipur
Golden Trasnport Co. (Pvt.) Ltd. through its Jt.
Managing Director, Shri V.L. Bahri having its
registered office at 4736/41, Roshnara Road, Delhi,
hereinafter called the SECOND PARTY.
WHEREAS the expressions FIRST PARTY AND
SECOND PARTY shall mean and includes their
respective heirs, successors, assigns etc.
WHEREAS the SECOND PARTY M/s. Jaipur Golden
Transport Co. (Pvt.) Ltd. is running the business of
transportation, all over the India and is having it one
of godown at 4776, Roshnara Road, Delhi.
AND WHEREAS the First Party is living in House No.
4808 which is situated adjacent to the same Godown.
AND WHEREAS an unfortunate fire broke out in the
above stated godown on the night of 4th April, 2004
and resulting into loss of the entire consignments lying
in the same.
AND WHEREAS the first party has approached the
second party seeking the compensation in terms of
money to the tune of Rs. 5000/- (Rupees Five
Thousand only), as he has stated that he suffered
simple suffocation due to smoke which emanated from
the fire in the Godown.
AND WHEREAS both the parties have also arrived to
this conclusion that the same fire was an accidental
fire which took place due to short circuit and there
was no negligence on the part of the Second Party.
AND WHEREAS keeping in view its pride and
reputation and also the fact that the First Party is the
neighbourer to the Second Party, the Second Party,
without prejudice to its rights and contentions that the
same fire took place due to an accident, beyond the
control and powers of the Second Party, has
voluntarily offered to pay as a goodwill gesture, a sum
of Rs. 5000/- (Rupees Five Thousand only) by way of
Cash towards the full and final satisfaction of the First
Party, which amount is also acceptable to the First
Party.
NOW THIS DEED WITNESSETH as under :
1) That the First Party has made this claim on the
contention that he suffered simple suffocation due to
smoke and by making this contention he has not
concealed the material facts and further has not
concocted any false story.
2) That the First Party has accepted the amount of
Rs. 5000/- (Rupees Five Thousand only) in (cash) and
the First Party undertakes not to claim any amount
whatsoever from the Second Party and the First Party
hereinafter also undertakes & not to file any legal
proceedings and/or to file any other claim/case against
the Second Party.
4. That this Agreement has been arrived at
between the parties with their free consent and
consciences as no pressure or coercion has been
applied upon.
IN WITNESS WHEREOF both the Parties have signed
this Agreement on the day and date mentioned above
in presence of the following witnesses.
First Party Suresh Chand
S/o. Faquirchand
R/o. 4808, Gali
Mitra, Delhi
(Seal)For Jaipur Golden Transport Co. (P) Ltd.)
Second Party Sd
Witnesses :
1) Rajiv Khanna
S/o. SH. K.L. Khanna,
R/o. 34/505, Kang Roshnara Appt.
Sec-13, Rohini, Delhi - 85
39. A chart filed by Mr. Thadani indicating the list of persons with
whom respondent no. 5 had executed settlements is reproduced
hereinbelow :-
LIST OF PERSONS WHO WERE ADMITTED TO THE HOSPITAL,
SHOWING THEIR DATE ADMISSION & DATE OF DISCHARGE AS
FILED BY THE PETITIONER
S. NAME OF DATE OF DATE REMARKS
NO. PERSON ADMISSION DISCHARGE
1. Duli Chand 05/05/2004 13/5/2004 Father of Akash-
deceased
2. Babu Lal 07/04/2004 12/04/2004
3. Raju 07/04/2004 08/04/2004
S/O Anna
Ram
4. Jai Devi 07/04/2004 08/04/2004
5. Tejwati 07/04/2004 10/04/2004
6. Jitender S/o 07/04/2004 19/04/2004
Davi Lal
7. Anil 08/04/2004 10/04/2004 All persons
8. Suman 07/04/2004 08/04/2004
Chand paid Rs. 4000/-
9. Tej Pal 07/04/2004 08/04/2004 or Rs. 5000/-
10. Doli 07/04/2004 08/04/2004
11. Raju 07/04/2004 08/04/2004
12. Davi Lal 07/04/2004 08/04/2004
13. Sanjay 07/04/2004 08/04/2004
14. Vishal 07/04/2004 10/04/2004
15. Ruby 07/04/2004 10/04/2004
16. Ankush 07/04/2004 10/04/2004
17. Mangal 07/04/2004 08/04/2004
18. Birju 07/04/2004 17/04/2004
19. Gango Devi 07/04/2004 10/04/2004
20. Deepa 07/04/2004 08/04/2004
21. Moni Devi 07/04/2004 08/04/2004
22. Ravi Devi 07/04/2004 08/04/2004
23. Poonam 07/04/2004 08/04/2004
24. Seema Jain 07/04/2004
25. Shanti Devi 07/04/2004 10/04/2004
26. Kailash 07/04/2004 08/04/2004
27. Phoolwati 07/04/2004 08/04/2004
28. Brijesh 07/04/2004 12/04/2004
29. Sohan Lal 07/04/2004 08/04/2004
30. Radha Devi 07/04/2004 08/04/2004
31. Parmanand 07/04/2004 12/04/2004
32. Sohan Lal 07/04/2004 08/04/2004
S/o Prabu
Dayal
33. Meena 07/04/2004 08/04/2004
34. Nanhaee 07/04/2004 12/04/2004
40. The insignificant compensation as well as the standard format of
agreements leaves no room for doubt that the said agreements are
unfair, unreasonable, unconscionable, opposed to public policy and
consequently void. (See: Central Inland Water Transport
Corporation Limited & Anr. vs. Brojo Nath Ganguly & Ors. (1986) 3
SCC 156, paras 89 and 93).
PRESENT WRIT PETITION IS MAINTAINABLE
41. As far as the maintainability of present writ petition against
respondent no. 5 is concerned, it is submitted that Article 226 of
Constitution makes no distinction between a public function and a
private function. In U.P. State Cooperative Land Development Bank
Ltd. Vs. Chandra Bhan Dubey and Ors. reported in 1999 1 SCC 741
the Supreme Court held as under :-
"27. .........When any citizen or person is wronged, the High
Court will step in to protect him, be that wrong be done by
the State, an instrumentality of the State, a company or a
cooperative society or association or body of individuals,
whether incorporated or not, or even an individual. Right that
is infringed may be under Part III of the Constitution or any
other right which the law validly made might confer upon
him. But then the power conferred upon the High Courts
under Article 226 of the Constitution is so vast, this Court has
laid down certain guidelines and self-imposed limitations
have been put there subject to which the High Courts would
exercise jurisdiction, but those guidelines cannot be
mandatory in all circumstances........"
42. Moreover, in our opinion, the present writ petition is
maintainable as undoubtedly respondent-MCD has been remiss and
negligent in discharging its statutory obligations and in ensuring that a
citizen‟s fundamental right to health and pollution free environment
was not infringed. Consequently, present writ petition is maintainable.
MONETARY RELIEF CAN BE AWARDED IN THE PRESENT WRIT
PETITION
43. As far as respondent no. 5‟s submission that no writ petition for
money claim is maintainable is concerned, we are of the view that the
same is untenable in law. In our opinion, the Constitution does not
place any fetter on the exercise of extra ordinary jurisdiction of the
Court and reliefs to be granted under such extra ordinary jurisdiction is
left to the discretion of the Court in the light of facts and circumstances
of each case. Moreover in the present case what has been sought is
award of compensation and not payment of monetary claim.
COMPENSATION CAN BE AWARDED IN ARTICLE 226
PROCEEDINGS
44. It is further well settled that proceedings under Article 226 of the
Constitution of India, enable the courts, to reach out to injustice, and
make appropriate orders, including directions to pay damages or
compensation. The Supreme Court in Dwarka Nath Vs. Income-Tax
Officer & Anr. reported in AIR 1966 SC 81 held as under :-
"(4).........This article is couched in comprehensive
phraseology and it ex facie confers a wide power on the
High Courts to reach injustice wherever it is found. The
Constitution designedly used a wide language in
describing the nature of the power, the purposes for
which and the person or authority against whom it can
be exercised. It can issue writs in the nature of
prerogative writs as understood in England; but the
scope of those writs also is widened by the use of the
expression "nature", for the said expression does not
equate the writs that can be issued in India with those in
England, but only draws in analogy from them. That
apart, High Courts can also issue directions, orders or
writs other than the prerogative writs. It enables the
High Courts to mould the reliefs to meet the peculiar
and complicated requirements of this country. Any
attempt to equate the scope of the power of the High
Court under Art.226 of the Constitution with that of the
English Courts to issue prerogative writs is to introduce
the unnecessary procedural restrictions grown over the
years in a comparatively small country like England
with a unitary form of Government to a vast country like
India functioning under a federal structure. Such a
construction defeats the purpose of the article itself. To
say this is not to say that the High Courts can function
arbitrarily under this Article. Some limitations are
implicit in the article and others may be evolved to
direct the article through defined channels. This
interpretation has been accepted by this Court in T. C.
Basappa v. Nagappa, 1955-1 SCR 250: (AIR 1954 SC
440) and Irani v. State of Madras, 1962-(2) SCR 169 :
(AIR 1961 SC 1731)."
45. Further the Supreme Court in Air India Statutory Corporation
reported in 1997 (9) SCC 377 held that, "the Founding Fathers placed
no limitation or fetters on the power of the High Court under Article
226 of the Constitution except self-imposed limitations. The arm of the
Court is long enough to reach injustice wherever it is found. The Court
as sentinel on the qui vive is to mete out justice in given facts."
46. The concept of compensation under public law, for injuries
caused due to negligence, inaction or indifference of public
functionaries or for the violation of fundamental rights is well known.
In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 at page 762,
the Supreme Court held as under:
"17. ......a claim in public law for compensation for
contravention of human rights and fundamental
freedoms, the protection of which is guaranteed in the
Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and such a
claim based on strict liability made by resorting to a
constitutional remedy provided for the enforcement of a
fundamental right is „distinct from, and in addition to,
the remedy in private law for damages for the tort‟
resulting from the contravention of the fundamental
right. The defence of sovereign immunity being
inapplicable, and alien to the concept of guarantee of
fundamental rights, there can be no question of such a
defence being available in the constitutional remedy. It
is this principle, which justifies award of monetary
compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only
practicable mode of redress available for the
contravention made by the State or its servants in the
purported exercise of their powers."
47. In Chairman, Railway Board Vs. Chandrima Das reported in
(2000) 2 SCC 465 Supreme Court emphasised the obligation of the
State to protect women from violence, including rape and held that this
right is a part of Right to Life guaranteed under Article 21 of the
Constitution. In that case, the aggrieved party was a victim of rape
committed in a railway compartment. The court rejected the Central
Government‟s disclaimer of liability, and declared that the right of the
victim under Article 21 had been violated. It awarded Rs.10 lakhs as
pubic law damages. It is pertinent to mention that the court did not
examine who was the perpetrator, or what duty he owed to the
Government. It was held sufficient that a wrong had occurred in a
railway coach, which was under the control of the railway authorities.
48. It is pertinent to mention that this Court has also awarded
compensation in writ jurisdiction in Raj Kumar vs. Union of India
(2005) 125 DLT 653, Delhi Jal Board vs. Raj Kumar (2005) 8 AD
(Delhi) 533, Chitra Chary vs. DDA (2005) 1 AD (Del) 29, Shri Chand
vs Chief Secretary 2004 (112) DLT 37, Shobha vs. GNCTD (2003) IV
AD (Delhi) 492, Shyama Devi vs. GNCTD (1999) 1 AD (Cr) Delhi
549, All India Lawyers' Union (Delhi Unit) vs. Union of India AIR
1999 Del 120, B.L. Wali vs Union of India (2004) VIII AD (Delhi)
341, Ram Kishore & Ors. Vs. Municipal Corporation of Delhi 2007
VII AD (Delhi) 441, WP(C) 5072-73/2005 titled as Kishan Lal Vs.
Govt. of NCT of Delhi decided on 3rd July, 2007, Kamla Devi Vs.
Govt. of NCT of Delhi & Anr. 2005 ACJ 216, and WP(C) 3370/2000
titled as Master Dheeru Vs. Govt. of NCT of Delhi & Ors. decided on
9th February, 2009.
IN ARTICLE 226 PROCEEDINGS, THE COURT CAN ALWAYS
MOULD THE RELIEF
49. The power of the High Courts and the Supreme Court under
Article 226 and Article 32 respectively, to mould the relief so as to
compensate the victim has been affirmed by the Supreme Court on
numerous occasions including Common Cause, A Registered Society v.
Union of India (1999) 6 SCC 667, Chairman Railway Board v.
Chandrima Das (2000) 2 SCC 465 Delhi Domestic Working Women's
Forum v. Union of India (1995) 1 SCC 14, D.K. Basu v. State of W.B
(1997) 1 SCC 416 and Rudul Sah v. State of Bihar (1983) 4 SCC 141.
APPLICATION OF RULE IN RYLAND VS. FLETCHER
50. The principle of liability without fault was enunciated in Ryland
Vs. Fletcher reported in (1868) LR 3 HL 330. Facts of the said case
were that defendant, who owned a mill, constructed a reservoir to
supply water to the mill. This reservoir was constructed over old coal
mines, and the mill owner had no reason to suspect that these old
diggings led to an operating colliery. The water in the reservoir ran
down the old shafts and flooded the colliery. Blackburn J. held the mill
owner to be liable, on the principle that the person who for his own
purposes brings on his land and collects and keeps there anything likely
to do mischief if it escapes, must keep it at his peril, and if he does not
do so, he is prima facie answerable for all the damage which is the
natural consequence of its escape. On appeal this principle of liability
without fault was affirmed by the House of Lords (per Cairns, J.) but
restricted to non- natural users.
51. To oppose the application of Ryland Vs. Fletcher rule the only
submission advanced by respondent no. 5 before us was that running of
a godown per se is not an inherently dangerous or hazardous industry
and further the cause of fire could not be attributed to negligence of
respondent no. 5.
52. But the fact is that the Rule in Rylands v. Fletcher (supra) was
subsequently interpreted to cover a variety of things likely to do
mischief on escape, irrespective of whether they were dangerous per se
e.g. water, electricity, explosions, oil, vibralious, noxious fumes,
colliery spoil, poisonous vegetation, a flagpole, etc. (see „Winfield and
Jolowiez on „Tort‟, 13th Edn. P. 425) vide National Telephone Co. v.
Baker, (1893) 2 Ch 186, Eastern and South African Telegraph Co. Ltd.
v. Cape Town Tramways Co. Ltd., (1902) AC 3 81 ; Hillier v. Air
Ministry, (1962) CLY 2084, etc. (See: Delhi Jal Board vs. Raj Kumar
reported in ILR (2005) 2 Del 778).
53. Consequently, in our view, the submission of respondent no. 5
that running of a godown would not attract the rule enunciated in
Ryland Vs. Fletcher is untenable in law.
54. Moreover, in our opinion, the dispute raised with regard to cause
of fire is irrelevant for attraction of the rule in Ryland Vs. Fletcher
inasmuch as one has only to see as to whether a person has put the land
to a non-natural use and whether as a consequence of such use, some
damage has been caused to the public at large. In the present instance,
the above test is admittedly satisfied as respondent no. 5‟s premises was
situated in a residential area which could not have been used as a
godown and further as a consequence of fire in the godown containing
consignment of pesticides, gas escaped which caused loss of lives and
injuries to people living in the neighbourhood. Accordingly, the rule in
Ryland vs. Fletcher is attracted in the present case.
APPLICATION OF PRINCIPLE EVOLVED IN M.C. MEHTA‟S CASE
55. In any event, storage of chemical pesticides was certainly an
inherently dangerous and/or hazardous activity and, therefore, the
principle evolved by the Supreme Court in M.C. Mehta and another
Vs. Union of India and others reported in 1987 (1) SCC 395 would
apply. In the said judgment, Supreme Court held as under :-
"31. We must also deal with one other question which was
seriously debated before us and that question is as to what is
the measure of liability of an enterprise which is engaged in
an hazardous or inherently dangerous industry, if by reason
of an accident occurring in such industry, persons die or are
injured. Does the rule in Rylands v. Fletcher apply or is there
any other principle on which the liability can be determined?
The rule in Rylands v. Fletcher was evolved in the year 1866
and it provides that a person who for his own purposes brings
on to his land and collects and keeps there anything likely to
do mischief if it escapes must keep it at his peril and, if he
fails to do so, is prima facie liable for the damage which is
the natural consequence of its escape. The liability under this
rule is strict and it is no defence that the thing escaped
without that person's wilful act, default or neglect or even
that he had no knowledge of its existence. This rule laid down
a principle of liability that if a person who brings on to his
land and collects and keeps there anything likely to do harm
and such thing escapes and does damage to another, he is
liable to compensate for the damage caused. Of course, this
rule applies only to non-natural user of the land and it does
not apply to things naturally on the land or where the escape
is due to an act of God and an act of a stranger or the default
of the person injured or where the thing which escapes is
present by the consent of the person injured or in certain
cases where there is statutory authority. Vide Halsbury Laws
of England, Vol. 45 para 1305. Considerable case law has
developed in England as to what is natural and what is non-
natural use of land and what are precisely the circumstances
in which this rule may be displaced. But it is not necessary for
us to consider these decisions laying down the parameters of
this rule because in a modem industrial society with highly
developed scientific knowledge and technology where
hazardous or inherently dangerous industries are necessary
to carry part of the developmental programme. This rule
evolved in the 19th Century at a time when all these
developments of science and technology had not taken place
cannot afford any guidance in evolving any standard of
liability consistent with the constitutional norms and the
needs of the present day economy and social structure. We
need not feel inhibited by this rule which was evolved in the
context of a totally different kind of economy. Law has to
grow in order to satisfy the needs of the fast changing society
and keep abreast with the economic developments taking
place in the country. As new situations arise the law has to be
evolved in order to meet the challenge of such new situations.
Law cannot afford to remain static. We have to evolve new
principles and lay down new norms which would adequately
deal with the new problems which arise in a highly
industrialised economy. We cannot allow our judicial
thinking to be constricted by reference to the law as it
prevails in England or for the matter of that in any other
foreign country. We no longer need the crutches of a foreign
legal order. We are certainly prepared to receive light from
whatever source it comes but we have to build up our own
jurisprudence and we cannot countenance an argument that
merely because the law in England does not recognise the
rule of strict and absolute liability in cases of hazardous or
inherently dangerous liability or the rule as laid down in
Rylands v. Fletcher as developed in England recognises
certain limitations and exceptions, we in India must hold back
our hands and not venture to evolve a new principle of
liability since English courts have not done so. We have to
develop our own law and if we find that it is necessary to
construct a new principle of liability to deal with an unusual
situation which has arisen and which is likely to arise in
future on account of hazardous or inherently dangerous
industries which are concomitant to an industrial economy,
there is no reason why we should hesitate to evolve such
principle of liability merely because it has not been so done in
England. We are of the view that an enterprise which is
engaged in a hazardous or inherently dangerous industry
which poses a potential threat to the health and safety of the
persons working in the factory and residing in the
surrounding areas owes an absolute and non-delegable duty
to the community to ensure that no harm results to anyone on
account of hazardous or inherently dangerous nature of the
activity which it has undertaken. The enterprise must be held
to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any
harm results on account of such activity, the enterprise must
be absolutely liable to compensate for such harm and it
should be no answer to the enterprise to say that it had taken
all reasonable care and that the harm occurred without any
negligence on its part. Since the persons harmed on account
of the hazardous or inherently dangerous activity carried on
by the enterprise would not be in a position to isolate the
process of operation from the hazardous preparation of
substance or any other related element that caused the harm
the enterprise must be held strictly liable for causing such
harm as a part of the social cost of carrying on the hazardous
or inherently dangerous activity. If the enterprise is permitted
to carry on an hazardous or inherently dangerous activity for
its profit, the law must presume that such permission is
conditional on the enterprise absorbing the cost of any
accident arising on account of such hazardous or inherently
dangerous activity as an appropriate item of its over-heads.
Such hazardous or inherently dangerous activity for private
profit can be tolerated only on condition that the enterprise
engaged in such hazardous or inherently dangerous activity
indemnifies all those who suffer on account of the carrying on
of such hazardous or inherently dangerous activity regardless
of whether it is carried on carefully or not. This principle is
also sustainable on the ground that the enterprise alone has
the resource to discover and guard against hazards or
dangers and to provide warning against potential hazards.
We would therefore hold that where an enterprise is engaged
in a hazardous or inherently dangerous activity and harm
results to anyone on account of an accident in the operation
of such hazardous or inherently dangerous activity resulting,
for example, in escape of toxic gas the enterprise is strictly
and absolutely liable 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 (supra).
(emphasis supplied)
56. A Division Bench of this Court in the case of Association of
Victims of Uphaar Tragedy and Others Vs Union of India and Others
reported in 2003 III AD (Delhi) 321 held that where an accident occurs
at an enterprise engaged in a hazardous or inherently dangerous
activity, then the said enterprise would be strictly and absolutely liable
to compensate all those who are affected by the said accident and such
liability is not subject to any of the exceptions which operate under the
Rylands Vs. Fletcher Rule. In the said case, each injured was directed
to be paid a compensation of rupees one lakh for mental pain, shock
and agony suffered by them.
57. In fact, the Supreme Court in Union of India (UOI) Vs.
Prabhakaran Vijaya Kumar and Ors. reported in 2008 (9) SCC 527
referred to Ryland Vs. Fletcher rule and after pointing out its
limitations, reiterated the principle of strict liability in M.C. Mehta case
(supra) as under:
"21. Rylands v. Fletcher (supra) in fact created a new
legal principle (the principle of strict liability in the case
of hazardous activities), though professing to be based
on analogies drawn from existing law. The judgment is
noteworthy because it is an outstanding example of a
creative generalization. As Wigmore writes, this epoch
making judgment owes much of its strength to 'the broad
scope of the principle announced, the strength of
conviction of its expounder, and the clarity of his
exposition'.
22. Strict liability focuses on the nature of the
defendants' activity rather than, as in negligence, the
way in which it is carried on (vide 'Torts by Michael
Jones, 4th Edn. p. 247). There are many activities which
are so hazardous that they may constitute a danger to
the person or property of another. The principle of strict
liability states that the undertakers of these activities
have to compensate for the damage caused by them
irrespective of any fault on their part. As Fleming says
"permission to conduct such activity is in effect made
conditional on its absorbing the cost of the accidents it
causes, as an appropriate item of its overheads" (see
Fleming on 'Torts' 6th Edn p. 302).
23. Thus in cases where the principle of strict liability
applies, the defendant has to pay damages for injury
caused to the plaintiff, even though the defendant may
not have been at any fault.
24. The basis of the doctrine of strict liability is two fold
(i) The people who engage in particularly hazardous
activities should bear the burden of the risk of damage
that their activities generate and (ii) it operates as a loss
distribution mechanism, the person who does such
hazardous activity (usually a corporation) being in the
best position to spread the loss via insurance and higher
prices for its products (vide 'Torts' by Michael Jones 4th
Edn p. 267).
25. As pointed out by Clerk and Lindsell (see 'Torts',
14th Edn) "The fault principle has shortcomings. The
very idea suggests that compensation is a form of
punishment for wrong doing, which not only has the
tendency to make tort overlap with criminal law, but
also and more regrettably, implies that a wrongdoer
should only be answerable to the extent of his fault. This
is unjust when a wholly innocent victim sustains
catastrophic harm through some trivial fault, and is left
virtually without compensation"......
xxxxx xxxxx xxxxx
33. As Winfield remarks, because of the various
limitations and exceptions to the rule "we have virtually
reached the position where a defendant will not be
considered liable when he would not be liable according
to the ordinary principles of negligence" (see Winfield
on Tort, 13th Edn p. 443).
34. This repudiation of the principle in Rylands v.
Fletcher (supra) is contrary to the modern judicial
philosophy of social justice. The injustice may clearly be
illustrated by the case of Pearson v. North Western Gas
Board (1968) 2 All ER 669. In that case the plaintiff was
seriously injured and her husband was killed by an
explosion of gas, which also destroyed their home. Her
action in Court failed, in view of the decision in Dunne
v. North Western Gas Board (1964) 2 QB 806. Thus the
decline of the rule in Rylands v. Fletcher (supra) left the
individual injured by the activities of industrial society
virtually without adequate protection.
35. However, we are now witnessing a swing once again
in favour of the principle of strict liability. The Bhopal
Gas Tragedy, the Chernobyl nuclear disaster, the crude
oil spill in 1988 on to the Alaska coast line from the oil
tanker Exxon Valdez, and other similar incidents have
shocked the conscience of people all over the world and
have aroused thinkers to the dangers in industrial and
other activities, in modern society.
36. In England, the Pearson Committee recommended
the introduction of strict liability in a number of
circumstances (though none of these recommendations
have so far been implemented, with the exception of that
related to defective products).
37. In India the landmark Constitution Bench decision of
the Supreme Court in M.C. Mehta v. Union of India AIR
1987 SC 1086 has gone much further than Rylands v.
Fletcher in imposing strict liability. The Court observed
"31...... if the enterprise is permitted to carry on
any hazardous or inherently dangerous activity
for its profit the law must presume that such
permission is conditional on the enterprise
absorbing the cost of any accident arising on
account of such hazardous or inherently
dangerous activity as an appropriate item of its
overheads".
58. In Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat reported
in (1994) 4 SCC 1 the Supreme Court held as under :
"9......What is fundamental is injury and not the manner in
which it has been caused. 'Strict liability', 'absolute liability',
'fault liability, and neighbour proximity', are all refinements
and development of law by English courts for the benefit of
society and the common man. Once the occasion for loss or
damage is failure of duty, general or specific, the cause of
action under tort arises. It may be due to negligence,
nuisance, trespass, inevitable mistake etc. It may be even
otherwise. In a developed or developing society the concept
of duty keeps on changing and may extend to even such
matters as was highlighted in Donoghue v. Stevenson (1932
AC 562: 1932 All ER Rep 1) where a manufacturer was held
responsible for injury to a consumer. They may individually
or even collectively give rise to tortuous liability. Since the
appellant suffered loss on facts found due to action of
respondent's officers both at the stage of construction and
failure to take steps even at the last moment it was liable to be
compensated."
59. In Research Foundation for Science (18) Vs. Union of India
reported in (2005) 13 SCC 186 the Supreme Court held as under :
"32......Law cannot afford to remain static. The Court cannot
allow judicial thinking to be constricted by reference to the
law as it prevails in England or in any other foreign country.
Though the Court should be prepared to receive light from
whatever source it comes but it has to build up its own
jurisprudence. It has to evolve new principles and lay down
new norms which would adequately deal with the new
problems which arise in a highly industrialized economy. If it
is found that it is necessary to construct a new principle of
liability to deal with an unusual situation which has arisen
and which is likely to arise in future on account of hazardous
or inherently dangerous industries which are concomitant to
an industrial economy, the Court should not hesitate to evolve
such principle of liability because it has not been so done in
England. An enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat
to the health and safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and
non-delegable duty to the community to ensure that no harm
results to anyone. The enterprise must be held to be under an
obligation to provide that the hazardous or inherently
dangerous activity in which it is engaged must be conducted
with the highest standards of safety and if any harm results to
anyone on account of an accident in the operation of such
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 as a part of the social
cost for carrying on such activity, regardless of whether it is
carried on carefully or not. Such liability is not subject to any
of the exceptions which operate vis-a-vis the tortuous
principle of strict liability under the rule in Rylands v.
Fletcher. If the enterprise is permitted to carry on a
hazardous or inherently dangerous activity for its profit, the
law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident arising on
account of such activity as an appropriate items of its
overheads. The enterprise alone has the resource to discover
and guard against hazards or dangers and to provide
warning against potential hazards."
60. The Law Commission of India Report No. 186 (September,
2003) regarding the proposal to constitute environment courts in
Chapter 3 - The Constitutional Mandate and Survey of Supreme
Court‟s judgments on Environmental Issues states:-
"In 1987, the Court laid down principles of strict liability in
the matter of injury on account of use of hazardous substances.
Under the rule in Rylands vs. Fletcher (1868) LR 3 HL 330,
absolute liability for negligence could be imposed only for
non-natural use of land and for „foreseeable damage‟.
However, such exceptions were held by the Court as no longer
available in the case of injury on account of use of hazardous
substances. Hazardous industries which produced gases
injuring the health of the community took a beating in M.C.
Mehta vs. Union of India AIR 1987 SC 1086 (the Oleum gas
leak case) where the rule in Rylands vs. Fletcher was modified,
holding that the „enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat to
the health and safety of persons working in the factory and
residing in the surrounding areas, owes an absolute and non-
delegable duty to the community to ensure that no harm results
to anyone on account of hazardous or inherently dangerous
nature of the activity which it has undertaken...the enterprise
must be absolutely liable to compensate for such harm and it
should be no answer to the enterprise to say that it had taken
all reasonable care and that the harm occurred without any
negligence on its part...The larger and more prosperous the
enterprise, greater must be the amount of compensation
payable for the harm caused on account of an accident in the
carrying on of the hazardous or inherently dangerous activity
by the enterprise."
61. From the undisputed facts, it is apparent that respondent no. 5
was engaged in an inherently dangerous or hazardous activity as it had
stored chemical pesticides and consequently, its duty of care was
absolute. Accordingly, the exceptions to strict liability as evolved in
Ryland Vs. Fletcher rule are not applicable. Therefore, respondent no.5
is liable to compensate the victims of the gas and fire tragedy in
accordance with the strict liability principle evolved by the Supreme
Court in M.C. Mehta case (supra).
MCD IS ALSO LIABLE
62. In the present case, MCD was remiss and negligent in
discharging its statutory obligations and in ensuring that a citizen‟s
fundamental right to health and pollution free environment was not
infringed.
63. In fact, the present case was not the first incident of gas leak or
fire in Delhi which occurred due to storage of hazardous substances. In
this context, we may refer to the following extract of P.P. Chauhan
Committee‟s report:-
"REPORT OF SHRI P.P. CHAUHAN, COMMISSIONER,
MUNICIPAL CORPORATION OF DELHI REGARDING
ADMINISTRATIVE REVIEW OF THE FIRE INCIDENT IN
GANDHI GALI, TILAK BAZAR, DELHI ON THE NIGHT OF
23RD JUNE, 1987.
xxxxx xxxxxx xxxxx
The congested areas of the walled city are being used for
storage of chemicals and other highly hazardous inflammable
materials. There have been fire incidents in the past also.
The remedy lies in shifting of such hazardous and chemicals
godowns from the congested areas of the walled city. The
Department of Industries, Delhi Administration had
conducted a survey of the entire walled city area and had
suggested shifting of hazardous industries from the entire
walled city area and had suggested shifting of hazardous
industries and godowns to the outskirts of the city. Unless
immediate steps are taken to shift such hazardous units and
godowns storing highly inflammable material from the walled
city, the people inhabiting this area would continue to face
danger and risk to their life and property.
The following short term remedial measures are
suggested with a view to overcome the present situations :-
A. Grant of licences for storage of chemicals and other
inflammable materials.
(i) Grant of further Adhoc licences for storage of
chemicals and other inflammable materials etc. should not be
permitted. Any attempt at establishing new trade units
including godowns etc. in these congested areas should be
dealt with firmly. The Adhoc licencing policy has been, to a
large extent, responsible for mushrooming growth of such
units. It should be made abundantly clear that no adhoc
licences shall be sanctioned in future in the contested areas of
the walled city.
(ii) For the existing units, any violation of the conditions
of licence should be dealt with severely including sealing of
premises which the Chief Fire Officer considers hazardous or
risky form the first point of view. The limit of fine of Rs.
5000/- provided in the DMC Act should be enhanced
substantially.
(iii) Storage of hazardous and dangerous substances
without licence should be made a cognizable offence.
(iv) Assistance of the market/residents association of the
katras etc. should be sought in providing adequate fire safety
measures.
(v) Strict enforcement of the various provisions of the
various acts mentioned in the annexure IV should be ensured
through a concentrated and coordinated action of all the
implementing agencies."
64. This Court in C.W.P. No. 3678/1999 titled as All India Lawyers
Union (Delhi Unit) Vs. Union of India & Ors. decided on 6th May,
2002 gave directions to MCD to ensure that hazardous substances are
not stored in Delhi. The relevant extract of the said judgment is
reproduced hereinbelow :
"1. A fire broke out at Lal Kuan on 31st May, 1999 in a
godown of New Aligarh Transport Company, which was a
devastating one.
xxxxx xxxxxx xxxxx
3. After this Court entertained the writ petition, a
Committee was constituted. A magisterial enquiry was
ordered purported to be in terms of Section 174 of the Code
of Criminal Procedure (hereinafter referred to as „Cr. P.C.‟)
4. The report of the Committee suggests that the incident
occurred due to negligence on the part M/s. New Aligarh
Transport Company in handling highly explosive chemicals
stored in the godown. It further appears that the whole of the
walled city is lined with booking offices and godowns of
transporters. Consignments are kept by the transporters
outside their respective offices/godowns allegedly because of
paucity of space causing traffic congestion. In the godowns
there existed no storage facility for Chemicals and other
hazardous substances. It was noted that having regard to the
fact that the walled city is a congested area it was not
desirable to allow storage and transport of such hazardous
substance. Such activities were recommended to be shifted to
the peripheral areas of Delhi where safety measures can be
ensured. Apprehensions were raised that similar other
incidences may take place. While holding that the said
transporter is responsible for the incident, the following
suggestions had been made:
1) Area should be declared „No Traffic Zone'.
In case that is not feasible, then traffic should
be strictly regulated and all steps taken to
reduce traffic congestion.
2) The wholesale Chemical Trading Market
should be shifted out to peripheral areas of
NCT of Delhi.
3) Till the time the market is shifted, no
unauthorized trading in dangerous or
hazardous chemicals should be allowed by the
regulatory authorities like MCD or Delhi
Police.
4) The booking offices/godowns of transporter
must be shifted out of the walled city to
peripheral areas to reduce congestion on the
roads and to minimize fire and other hazards.
5) A vigorous campaign should be launched
against unauthorized construction and
conversion of residential houses into markets,
to reduce traffic congestion and unauthorized
storage of hazardous material, thereby
endangering public safety.
6) A massive public awareness campaign
should be launched to educate the public
regarding preventive measures to be taken to
minimize the risk of fire. Adequate fire safety
measures should be insisted to be adopted by
the traders.
5. It was recorded that in past, several such major fires had
taken place, as a result whereof, 55 persons in total were
killed and several shops were gutted. Despite
recommendations made by the Committee afore-mentioned,
no action had been taken. This Court, keeping in view the
urgency of the matter, from time to time issued various
direction. A direction was also issued to the Municipal
Corporation of Delhi (in short „MCD') to conduct survey in
order to evict the occupiers from the premises where there
were unauthorized storage of hazardous substance and
chemicals.
xxxxx xxxxx xxxxx
15. The matter relating to storage of hazardous substance is
covered by the provisions of Section 417 of the Delhi
Municipal Corporation Act, 1957 (in short the „DMC Act').....
16. The afore-mentioned provisions does not show that
storage must be made only by the traders and not by the
transporters. Such storage may be temporary in nature, but
when it comes to storage of hazardous substances, the law
must strictly be complied with. It will not be out of place of
notice that the Apex Court in Shriram Foods & Fertilizer
Industries and another v. Union of India and others
reported in AIR 1987 SC 965 evolved a principle that those
who manufacture hazardous substance, in the event an
accident takes place, must show they took all the
precautionary measures to prevent the same.
17. When Court is faced with a question of law arising out of
a fire accident caused owing to negligence of the owner of he
premises who did not take adequate precautions in preventing
the same, not only the strict liability for the payment of
compensation may imposed, steps must be taken to prevent
recurrence of such accident. It is in this situation, we wonder
as to why the authority of the MCD did not take recourse to
the precautionary principles which must be viewed with grave
concern.
18. The Commissioner of MCD was present in Court on 6th
March 2002. He assured us that the Director of Vigilance
MCD would conduct an enquiry so as to ascertain the
individual liability of the concerned officers, if any. It must be
done with expedition and a report in this regard must be
submitted within four weeks from the date. So far as items of
hazardous goods are concerned, MCD must issue an
appropriate list identifying those goods and take adequate
steps for publishing thereof including furnishing of copies
thereof to the learned counsel for the parties appearing for
the transporters and shops owners, who in turn should
communicate the same to their respective clients. All steps
must be taken as expeditiously as possible and not later than
three months from date. By that date all concerned are
directed to see that transporters shift their business to the
newly allocated area. They for no reason whatsoever should
be permitted to transport or store hazardous substances. In
the event, it is found that hazardous substances are stored in
violation of the provisions of the statute the authorities of the
MCD must take adequate steps for proceeding against the
defaulters without any delay whatsoever.
19. We may notice that in the survey report dated 2nd August
1999, it is stated:
11. The issue of shifting of Chemicals market is
still pending before the Government. A high
level meeting under the Chairmanship of
Hon'ble L.G. was held on 1/6/99 following the
Lal Kuan fire incident. Chief Minister, Delhi
was also present in this meeting. Chief Secy.,
Delhi, Vice Chairman DDA, Commissioner
Police, Chief Fire Officers Delhi, Divisional
Commissioner, Delhi were among the highest
officers present in the meeting. The Dy. Com.
(City) represented the Commissioner, MCD in
the said meeting. It was consciously decided to
shift the godowns of non-pharmaceutical and
inflammable trades from the congested
residential and commercial areas of the capital
in accordance with the Master Plan of Delhi. A
Committee headed by Divisional Commissioner
of Delhi has been constituted to identify the
Chemicals trade which need to be shifted and to
evolve principles and procedures of such
shifting. A detailed survey of the dealers of the
Chemicals was decided to be carried out to
identify those who will be eligible to provide
with space in the new complex.
12. In this meeting, various measures and
modalities for shifting of all Chemical
godowns/shops dealing in inflammable material
and stores from the city to the freight complex
to be developed at Ghazipur by DDA were
discussed. The Vice Chairman of DDA informed
the Hon'ble L.G. that it would take about a year
to develop a new complex Along with the
peripheral facilities before the physical shifting
of the trade is possible.
13. The Law Secretary of the Delhi Got. Has
been entrusted with the responsibilities of
examining the existing legislation for storage
and shifting of Chemicals and suggest
amendments in case this was found inadequate.
20. We do not know what action had been taken by the
National Capital Territory of Delhi (in short „NCT of Delhi‟)
in this regard. An appropriate action to fill up the lacuna, if
any, is expected to be taken by the MCD as expeditiously as
possible, although no direction in this behalf can be granted
by us.
21. We, therefore, direct that appropriate steps be taken by
the respondents to remove all occupants dealings in
hazardous substances. The transporters may keep their
offices but they shall not store any hazardous substances in
Lal Kuan area. Arrangement for storage of such hazardous
substances shall be made in the area allotted. While handling,
transporting or storing hazardous substances appropriate
rules operating in the field as also the provisions of other
relevant statutes must strictly be complied with. All exercises
must be undertaken and completed within a period of three
months from date.
Writ petition is accordingly disposed of."
65. However, despite the aforesaid categorical directions,
respondent-MCD failed to take any precautions and/or remedial
measures.
66. Moreover, the Supreme Court in Vellore Citizen Welfare Forum
Vs. Union of India & Ors. reported in (1996) 5 SCC 647 has held that
in view of constitutional and statutory provisions, the Precautionary
Principle and Polluter Pays Principle are part of the environmental law
of the country. The Supreme Court in the said judgment held as under:-
"11. ......We are, however, of the view that "The
Precautionary Principle" and "The Polluter Pays Principle"
are essential features of "Sustainable Development". The
"Precautionary Principle" - in the context of the municipal
law - means :
(i) Environmental measures - by the State Government and
the statutory authorities - must anticipate, prevent and attack
the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible
damage, lack of scientific certainty should not be used as a
reason for postponing measures to prevent environmental
degradation.
(iii) The "Onus of proof" is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
12. "The Polluter Pays Principle" has been held to be a
sound principle by this Court in Indian Council for Enviro-
Legal Action v. Union of India, J.T. [(1996) 3 SCC 212]. The
Court observed : (SCC p. 246, para 65),
"....we are of the opinion that any principle evolved in
this behalf should be simple, practical and suited to
the conditions obtaining in this country".
The Court ruled that : (SCC p. 246, para 65)
"......once the activity carried on is hazardous or
inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any
other person by his activity irrespective of the fact
whether he took reasonable care while carrying on his
activity. The rule is premised upon the very nature of
the activity carried on".
Consequently the polluting industries are "absolutely
liable to compensate for the harm caused by them to villagers
in the affected area, to the soil and to the underground water
and hence, they are bound to take all necessary measures to
remove sludge and other pollutants lying in the affected
areas". The "Polluter Pays Principle" as interpreted by this
Court means that the absolute liability for harm to the
environment extends not only to compensate the victims of
pollution but also the cost of restoring the environmental
degradation. Remediation of the damaged environment is
part of the process of "Sustainable Development" and as such
polluter is liable to pay the cost to the individual sufferers as
well as the cost of reversing the damaged ecology.
13. The Precautionary Principle and the Polluter Pays
Principle have been accepted as part of the law of the land.
Article 21 of the Constitution of India guarantees protection
of life and personal liberty......."
67. Consequently, we are of the view that in the present case MCD
has breached the precautionary principle and is also liable to pay
damages to the fire and gas victims.
MATERIAL CONTRIBUTOR AND NOT "BUT FOR" TEST WILL
APPLY IN THE PRESENT CASE
68. Mr. Thadani‟s argument that "but for" test is applicable in the
present case is not correct. Undoubtedly, the "but for" test remains the
starting point in tort, and in the case of single cause it is likely to be
determinative of the factual aspect of causation, but if there is more
than one cause, provided that the cause under consideration is a
material contributor, it will satisfy the factual test.
69. In Heskell v. Continental Express Ltd. & Anr. reported in
(1950) 1 All ELR 1033, Devlin, J said:
"Where the wrong is a tort, it is clearly settled that the
wrongdoer cannot excuse himself by pointing to another
cause. It is enough that the tort should be a cause and it is
unnecessary to evaluate competing causes and ascertain
which of them is dominant... In the case of breach of contract
the position is not so clear."
(emphasis supplied)
70. In Fairchild v. Glenhaven Funeral Services Limited & Ors.
reported in (2002) UK HL 22, the claimant had contracted
mesothelioma after being exposed - in breach of duty - to significant
quantities of asbestos dust at different times by more than one employer
or occupier of premises, but in circumstances where he could not prove
on the balance of probabilities which period of exposure had caused or
materially contributed to the cause of the disease. The House of Lords
held that the claimant could nevertheless succeed, on the basis that the
defendant‟s conduct in exposing the claimant to a risk to which he
should not have been exposed should (in the words of Lord Bingham)
be treated as,"making a material contribution to the contracting of the
condition against which it was the defendant‟s duty to protect him."
71. The difficulties facing claimants in proving causation in cases of
industrial disease have persuaded the courts to relax the causal rules in
some instances. The claimant does not have to prove that the
defendant‟s breach of duty was the sole, or even the main, cause of his
damage, provided he can demonstrate that it made a material
contribution to the damage. The origin of this approach is the decision
of the House of Lords in Bonnington Castings Ltd. Vs. Wardlaw
reported in 1956 A.C. 613 in which the plaintiff contracted
pneumoconiosis from inhaling air which contained silica dust at his
workplace. The main source of the dust was pneumatic hammers for
which the employers were not in breach of duty (the "innocent dust").
Some of the dust (the "guilty dust") came from swing grinders for
which they were responsible by failing to maintain the dust-extraction
equipment. There was no evidence as to the proportions of innocent
dust and guilty dust inhaled by the plaintiff. Indeed, such evidence as
there was indicated that much the greater proportion came from the
innocent source. On the evidence the plaintiff could not prove "but for"
causation, in the sense that it was more probable than not that had the
dust-extraction equipment worked efficiently he would not have
contracted the disease. Nonetheless, the House of Lords drew an
inference of fact that the guilty dust was a contributory cause, holding
the employers liable for the full extent of the loss. The plaintiff did not
have to prove that the guilty dust was the sole or even the most
substantial cause if he could show, on a balance of probabilities, the
burden of proof remaining with the plaintiff, that the guilty dust had
materially contributed to the disease. Anything which did not fall
within the principle de minimis non curat lex would constitute a
material contribution. Bonnington Castings is significant for two
reasons. First, it was an express departure from the normal requirement
to prove "but for" causation. Despite recovering damages in full in
respect of the disease the claimant was not required to prove that the
defendant‟s breach of duty caused the disease, merely that it
contributed to its onset. Secondly, and perhaps more significantly, was
the fact that the Court was willing to draw an inference that there must
have been a material contribution in circumstances where the
connection between the "guilty dust" and the plaintiff‟s medical
condition was, in reality, little more than speculation.
72. In McGhee Vs. National Coal Board reported in (1973) 1
W.L.R. 1, HL the plaintiff contracted dermatitis from the presence of
brick dust on sweaty skin. Some exposure to brick dust was an
inevitable result of working in brick kilns in respect of which there was
no breach of duty by his employers. But his employers negligently
failed to provide washing facilities at the site so that the plaintiff cycled
home every day coated with abrasive brisk dust. Medical evidence
established that brick dust caused the dermatitis but it was impossible to
prove whether it was the additional "guilty" exposure to dust which
triggered dermatitis in this plaintiff or whether he would have
developed the disease in any event as a result of the "innocent"
exposure during the normal working day. At best it could be said that
the failure to provide washing facilities materially increased the risk of
the plaintiff contracting dermatitis. The House of Lords held the
defendants breach of duty made the risk of injury more probable even
though it was uncertain whether it was the actual cause. By a majority
judgment the Court treated a "material increase in the risk" as
equivalent to a material contribution to the injury. Lord Simon, for
example, said that "a failure to take steps which would bring about a
material reduction of the risk involves, in this type of a case, a
substantial contribution to the injury."
73. In Jon Athey v. Ferdinando Leonati & Kevin Johnson reported
in (1996) 3 S.C.R. 458 (British Columbia), the Plaintiff had a history of
"minor back problems" since 1972. He was then involved in two motor
vehicle accidents injuring his back in both of them. As he recovered
from the second accident his physician encouraged him to get back to
his exercise program. While stretching, he heard a "pop". He was
unable to move having suffered from a herniated disc that required a
discectomy. He was disabled from his position doing heavy lifting as
an auto body repairman and took a lesser job, which caused economic
loss. The Trial Judge awarded 25% responsible of Mr. Athey‟s
damages finding that the motor vehicle accidents were 25% responsible
for his back problems and that his preexisting condition was 75% of the
cause of his disc herniation. The Court of Appeal for British Columbia
agreed with that decision. Both were reversed by Mr. Justice Major of
the Supreme Court of Canada. While reconfirming the traditional "but
for/material contribution" test, Mr. Justice Major confirmed that
causation need not be determined by scientific precision. It is
essentially a practical question of fact to be answered by ordinary
common sense. At paragraph 17 of the decision he said as follows:
"It is not now necessary, nor has it ever been, for the
plaintiff to establish that the defendant‟s negligence was
the "sole cause" of the injury. There will frequently be a
myriad of other background events which were necessary
preconditions to the injury occurring.... As long as the
defendant is part of the cause of an injury, the defendant is
liable, even though his act alone was not enough to create
the injury."
At paragraph 19 of the decision he says:
"The law does not excuse a defendant from liability merely
because other causal factors for which he is not
responsible also helped to produce the harm... It is
sufficient if the defendant‟s negligence was a cause of the
harm."
At paragraph 20 he went on to say:
"If the law permitted apportionment between tortuous
causes and non-tortuous causes, a plaintiff could recover
100% of his or her loss only when the defendant‟s
negligence was the sole cause of the injuries... This would
be contrary to the established principles and the essential
purpose of tort law, which is to restore the plaintiff to the
position he or she would have enjoyed but for the
negligence of the defendant."
(emphasis supplied)
74. In Resurfice Corp. v. Hanke reported in [2007] 1 S.C.R. 333, the
Supreme Court of Canada held that material contribution test can be
applied if two requirements are met. "First, it must be impossible for
the plaintiff to prove that the defendant‟s negligence caused the
plaintiff‟s injury using the "but for" test. The impossibility must be due
to factors that are outside of the plaintiff‟s control; for example, current
limits of scientific knowledge. Second, it must be clear that the
defendant breached a duty of care owed to the plaintiff, thereby
exposing the plaintiff to an unreasonable risk of injury, and the plaintiff
must have suffered that form of injury."
75. In the present case, we find that respondent no. 5 breached the
duty of care owed to the fire and gas victims, thereby exposing them to
an unreasonable risk of injury. In fact, the loss of lives and injury falls
within the ambit of risk created by respondent no. 5‟s breach. In our
opinion, it would also offend the basic notion of fairness and justice to
deny liability by applying a "but for" approach in the cases of Babu Lal
and Ved Prakash.
„EGG-SHELL SKULL‟ RULE (YOU TAKE YOUR VICTIMS AS THEY
CAME) APPLIES
76. It is further an established principle of law that a party in breach
has to take his victim talem qualem, which means that if it was
reasonable to foresee some injury, however slight, to the claimant,
assuming him to be a normal person, then the infringing party is
answerable for the full extent of the injury which the claimant had
sustained owing to some peculiar susceptibility.
77. In Marconato v. Franklin reported in [1974] 6 W.W.R. 676
(B.C.S.C.) while on the road, Franklin (defendant) crashed into
Marconato, causing her to incur some mild physical injuries. But
Marconato had some paranoid tendencies and the accident caused her to
develop a debilitating syndrome of psychological problems. Thin skull
rule was applied and that means you take your victims as they come.
Although the damage is remote and not reasonably foreseeable, the
accident operated on plaintiff‟s pre-existing condition and the defendant
must pay damages for all the consequences of her negligence. This
doctrine applies only when the claimant‟s pre-existing hypersensitivity
is triggered into inflicting the injury complained of, or an existing
injury is aggravated by the infringing party‟s act. A clear example of
the hypersensitivity type of case is that of persons suffering from
hemophilia or "egg-shell" skulls. MacKinnon L.J. said that "one who
is guilty of negligence to another must put up with idiosyncrasies of his
victim that increase the likelihood or extent of damage to him: it is no
answer to a claim for a fractured skull that its owner had an unusually
fragile one. (See: Owens vs. Liverpool Corporation (1939) 1 K.B. 394
at 400-401).
78. In Smith v. Leech Brain & Co. Ltd. & Anr. reported in (1962) 2
Q.B. 405, a workman, who was working with molten metal, suffered a
burn on his lip when a fleck of metal splashed onto it. His employers
were at fault in not having provided him with a proper shield. The burn
eventually turned cancerous and the man died. It was proved that he
had a predisposition to cancer, but this condition might never have
become malignant were it not for the burn. The defendants were held
liable for his death. Nervous shock cases are also consistent with this
principle. The rule is that if injury from nervous shock is reasonably
foreseeable to an ordinarily strong-nerved person situated in the
position of the claimant, the defendant is liable for the full extent of the
shock. Hypersensitivity to shock may prevent there being any initial
liability; but once that is established by showing that even a strong
nerved person would have suffered some shock, the defendant is liable
for the full extent of the shock actually suffered by the plaintiff. [See
Clerk & Lindsell on Torts (Eighteenth Edition)].
79. Consequently, Mr. Thadani‟s arguments that Babu Lal and Ved
Prakash @ Raju are not entitled to any compensation as they were
already suffering from Tuberculosis is not tenable in law.
80. Accordingly, keeping in view the medical record of deceased
Babu Lal and Ved Prakash @ Raju as well as the affidavits filed by
their wife and mother respectively and the fact that their Pulmonary
Tuberculosis got aggravated due to inhalation of phosphine gas and
they died at a premature age, we are of the opinion that they are entitled
to full compensation along with deceased Akash.
RELIEF
81. In view of the aforesaid discussion, the following compensation
is payable to victims of Jaipur Golden fire and gas tragedy:-
(i) Legal heirs of Akash are entitled to a sum of Rs.5,93,801/-
as mentioned in para 10 of the present petition along with
interest @ 7.5% per annum from the date of filing of the
present petition upto the date of payment.
(ii) Legal heirs of Babu Lal are entitled to a sum of
Rs.6,33,861/- as mentioned in para 10 of the present
petition along with interest @ 7.5% per annum from the
date of filing of the present petition upto the date of
payment.
(iii) Legal heirs of Ved Prakash @ Raju are entitled to a sum of
Rs.8,33,801/- as mentioned in para 10 of the present
petition along with interest @ 7.5% per annum from the
date of filing of the present petition upto the date of
payment.
(iv) Victims mentioned at serial nos. 4 to 34 of the chart
furnished by Mr. Thadani and extracted in para 39
hereinabove are entitled to a compensation of Rs.50,000/-
each on account of pain and suffering along with interest
@ 7.5% per annum from the date of filing of the present
petition upto the date of payment.
82. The aforesaid compensation shall be paid to the extent of 85% by
respondent no.5 and 15% by Municipal Corporation of Delhi. Both the
parties shall make payment to the victims or legal heirs of the victims
as the case may be by Account Payee cheques in their names. The said
cheques would be paid within a period of twelve weeks from today.
83. Since criminal proceedings arising out of the Jaipur Golden fire
tragedy incident are already sub judice, no further order can be passed
for identification and prosecution of those involved and responsible for
the said incident.
84. However, the petitioner association shall be entitled to costs of
Rupees one lac payable by respondent no.5.
85. Consequently, the present petition stands allowed in the above
terms.
MANMOHAN, J
CHIEF JUSTICE
OCTOBER 23, 2009
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