# 8 S.C.R. 992 SANJAY GUPTA & ORS v. STATE OF UTIAR PRADESH & ORS

- **Citation:** [2014] 8 S.C.R. 992
- **Court:** Supreme Court of India
- **Decided:** 2014-07-31
- **Bench:** Dipak Misra, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-992-sanjay-gupta-ors-v-state-of-utiar-pradesh-ors-30040
- **Pages:** 29

## Headnote

Commission of Enquiry Act, 1952 - ss. B8 and BC - Noncompliance - Effect of - Held: Since the Commission
C constituted under the Act, did not comply with the provisions
of ss. B8 and BC which seriously prejudiced the accused, the
report submitted by the Commission cannot be sustained -
Appointment of new Commissioner.
0
Constitution of India, 1950 - Art. 32 - Writ petition -
Seeking damages and other reliefs - Against the State as well
as private parties-accused - Holding them responsible for the
64 deaths and above 100 injuries in a fire accident which
broke-out in a consumer exhibition - Held: Fact finding
Commission constituted under Commission of Enquiry Act,
E was not sustainable for non-compliance of statutory provisions
- New Commissioner appointed and directed to submit his
report - So long as the Commission is awaited, liability to pay
damages cannot be fastened on the parties - The facts of the
case show that there has been statutory violations and
F negligence by the State authorities - Therefore, as an interim
measure, State directed to pay some more amount to the
victims, in addition to the amount it has already paid as
compensation - The accused-organizers of the event also
directed to deposit an amount of ss. 30 lakhs with the Court
G to be kept in fixed deposit interest bearing account -
Apportionment of the liability between different erring parties
a/so to be decided after receipt of the report of the
Commission - Commission of Enquiry Act, 1950 - Damages.
H
992
SANJAY GUPTA v. STATE OF UTTAR PRADESH
993
A consumer show organized by the organizers
A
(respondent Nos. 10 to 12), caught fire resulting in death
of 64 persons and injuries to more than hundred
persons. FIR was lodged against the accused persons
u/ss. 304A, 337, 338 and 427 IPC. In view of the magnitude
of the tragedy, the State Government appointed a oneB
man Commission under the Commissions of Enquiry Act,
1952. The petitioners also filed the present writ petition
u/Art. 32 of the Constitution, seeking inter alia to awar,:
damages against the respondents jointly and severally tc
be paid to the victims.
c
Respondent Nos. 10 to 12 (the organizers of the
event) contended that they have been seriously
prejudiced due to non-compliance of ss. 88 and SC of
the Act by the Commission.
Issuing certain directions and granting interim relief,
the Court
HELD: 1.1. The notices were sent by the
Commission of Inquiry in the nature of notice requiring
the respondents to appear. They have to be construed
as notices under Section 4(a) of the Act. That apart, on a
scrutiny of the list of witnesses who were examined by
the Commission, it is found that the respondents 10 to
12 were summoned almost after examination of 45
witnesses and the respondent-organisers were not
afforded opportunity of cross-examination. The
Commission, on the basis of the evidence and taking
recourse to certain violation of statutory provisions, has
submitted the report. Therefore, it is difficult to sustain the
report. [Para 8] [1003-H; 1004-A-B]
State of Bihar v. Lal Krishna Advani and others 2003 (3)
Suppl. SCR 844 (2003) 8 sec 361 - relied on.
D
E
F
G
1.2. Regard being had to the gravity of the situation
and the magnitude of the tragedy, Justice S.B. Sinha,
formerly a Judge of the Supreme Court is appointed, as
H
994
SUPREME COURT REPORTS
[2014] 8 S.C.R.
A the one man Commission. The witnesses, who were
examined by the previous Commission and not crossexamined by respondents 10 to 12, their depositions shall
be treated as examination-in-chief and they shall be made
available for cross-examination by the respondent. It has
B also been conceded that the documents which have been
marked as exhibits, unless there is a cavil over the same,
they shall be treated as exhibited documents. The
contractors who were engaged by the organizers, as they
were summoned by the previous Commission, should be
c summoned by the present Commission. The Commission
should issue notices to the contractors so that

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A
B
(2014) 8 S.C.R. 992
SANJAY GUPTA & ORS.
V.
STATE OF UTIAR PRADESH & ORS.
(Writ Petition (Civil) No. 338 of 2006)
JULY 31, 2014
[DIPAK MISRA AND V. GOPALA GOWDA, JJ.]
Commission of Enquiry Act, 1952 - ss. B8 and BC - Noncompliance - Effect of - Held: Since the Commission
C constituted under the Act, did not comply with the provisions
of ss. B8 and BC which seriously prejudiced the accused, the
report submitted by the Commission cannot be sustained -
Appointment of new Commissioner.
0
Constitution of India, 1950 - Art. 32 - Writ petition -
Seeking damages and other reliefs - Against the State as well
as private parties-accused - Holding them responsible for the
64 deaths and above 100 injuries in a fire accident which
broke-out in a consumer exhibition - Held: Fact finding
Commission constituted under Commission of Enquiry Act,
E was not sustainable for non-compliance of statutory provisions
- New Commissioner appointed and directed to submit his
report - So long as the Commission is awaited, liability to pay
damages cannot be fastened on the parties - The facts of the
case show that there has been statutory violations and
F negligence by the State authorities - Therefore, as an interim
measure, State directed to pay some more amount to the
victims, in addition to the amount it has already paid as
compensation - The accused-organizers of the event also
directed to deposit an amount of ss. 30 lakhs with the Court
G to be kept in fixed deposit interest bearing account -
Apportionment of the liability between different erring parties
a/so to be decided after receipt of the report of the
Commission - Commission of Enquiry Act, 1950 - Damages.
H
992
SANJAY GUPTA v. STATE OF UTTAR PRADESH
993
A consumer show organized by the organizers
A
(respondent Nos. 10 to 12), caught fire resulting in death
of 64 persons and injuries to more than hundred
persons. FIR was lodged against the accused persons
u/ss. 304A, 337, 338 and 427 IPC. In view of the magnitude
of the tragedy, the State Government appointed a oneB
man Commission under the Commissions of Enquiry Act,
1952. The petitioners also filed the present writ petition
u/Art. 32 of the Constitution, seeking inter alia to awar,:
damages against the respondents jointly and severally tc
be paid to the victims.
c
Respondent Nos. 10 to 12 (the organizers of the
event) contended that they have been seriously
prejudiced due to non-compliance of ss. 88 and SC of
the Act by the Commission.
Issuing certain directions and granting interim relief,
the Court
HELD: 1.1. The notices were sent by the
Commission of Inquiry in the nature of notice requiring
the respondents to appear. They have to be construed
as notices under Section 4(a) of the Act. That apart, on a
scrutiny of the list of witnesses who were examined by
the Commission, it is found that the respondents 10 to
12 were summoned almost after examination of 45
witnesses and the respondent-organisers were not
afforded opportunity of cross-examination. The
Commission, on the basis of the evidence and taking
recourse to certain violation of statutory provisions, has
submitted the report. Therefore, it is difficult to sustain the
report. [Para 8] [1003-H; 1004-A-B]
State of Bihar v. Lal Krishna Advani and others 2003 (3)
Suppl. SCR 844 (2003) 8 sec 361 - relied on.
D
E
F
G
1.2. Regard being had to the gravity of the situation
and the magnitude of the tragedy, Justice S.B. Sinha,
formerly a Judge of the Supreme Court is appointed, as
H
994
SUPREME COURT REPORTS
[2014] 8 S.C.R.
A the one man Commission. The witnesses, who were
examined by the previous Commission and not crossexamined by respondents 10 to 12, their depositions shall
be treated as examination-in-chief and they shall be made
available for cross-examination by the respondent. It has
B also been conceded that the documents which have been
marked as exhibits, unless there is a cavil over the same,
they shall be treated as exhibited documents. The
contractors who were engaged by the organizers, as they
were summoned by the previous Commission, should be
c summoned by the present Commission. The Commission
should issue notices to the contractors so that the
proceeding under the Act can continue in accordance
with the provisions of the Act. They shall have the similar
opportunity that has been made available to the
0
organizers. The organizers as well as the contractors
would be at liberty to adduce evidence in support of their
respective pleas. The Comrnission shall record the
evidence at Meerut and hear the arguments in Delhi. [Para
1 OJ [1005-C-G]
E
2.1. The Consumer Show was organized at a place
belonging to the State Government, permission was
granted by the Additional District Magistrate in
consultation with the Superintendent of Police, the State
Government had not taken pains to see whether the other
F statutory authorities as required under law had granted
"No Objection Certificate" or not and also how far the
organizers had complied with the directions. The primary
obligation of the State was to see whether the
preparations made at the place of exhibitions by the
G organizers involved any risk or not and whether, there
was proper arrangement for extinguishing the fire or not
in the covered area. Under these circumstances, there
has to be some initial arrangement for payment of
compensation by the State awaiting the report from the
Commission. [Para 22] [1014-E-G]
.H
'
SANJAY GUPTA v. STATE OF UTTAR PRADESH
995
Nilabati Behera (Smt) alias Lalita Behera (through the
A
Supreme Court Legal Aid Committee) v. State .of Orissa and
others 1993 (2) SCR 581 = (1993) 2 SCC 746; Union
Carbide Corpn. v. Union of India 1991 (1) Suppl. SCR 251
= (1991) 4 SCC 584; Chairman, Railway Board and others
v. Chandrima Oas (Mrs.) and others 2000 (1) SCR 480 = B
(2000) 2 SCC 465; Sube Singh v. State of Haryana and
others 2006 (2) SCR 67 = (2006) 3 SCC 178; Raghuvansh
Dewanchand Bhasin v. State of Maharashtra and another
2011 (11) SCR 300 = (2012) 9 SCC 791; Mehmood Nayyar
Azam v. State of Chhattisgarh and others 2012 (8) SCR 651 c
= (2012) 8 SCC 1; Hardeep Singh v. State of MP. (2012) 1
sec 748 - relied on.
Union of India v. Prabhakaran 2008 (7) SCR 673 =
(2008) 9 sec 527 - referred to.
2.2. As far as respondents 10 to 12 are concerned,
D
no liability can be fastened under Article 32 of the
Constitution of India, and definitely not at this stage. The
principle of apportionment also can be thought of only
after the Commission's report is received, but, the
E
victims and the families cannot be left on the lurch. [Paras
12 and 27] [1006-E; 1019-B]
2.3. Since there has been statutory violations and
negligence on the part of the State authorities in not
taking due care while granting permission and during the
F
exhibition was in progress, the Court directs payment of
compensation, by way of interim measure, by the State.
[Para 27] [1019-C]
2.4. Regard being had to the facts and circumstances
G
of the case and taking note of the fact that some amount
has already been given, it is directed, as an interim
measure, that the legal representatives of the deceased
shall be paid Rs.5 lakhs more and the seriously injured
persons would be paid a further sum of Rs.2 lakhs each,
and the persons who have suffered minor injuries w~uld H
996
SUPREME COURT REPORTS
(2014] 8 S.C.R.
A be paid an additional sum of Rs.75,000/-. The legal
representatives of the deceased have been paid certain
ex gratia amount and the injured persons have been paid
certain amount ex gratia, their identity is known and,
therefore, the Additional District Judge shall conduct a
,B summery enquiry only for proper identification and
disburse the amount. [Para 27] [1019-C-F]
2.5. The direction to the State Government, at present,
is only to see that the victims do not remain in a constant
state of suffering and despair. The issue of maintainability
C of the writ petition would be addressed after submission
of the report. But the organizers cannot be allowed to
remain as total strangers in this regard. The organizers
should deposit certain amount before the Registry of this
Court and regard being had to the said observation, the
D respondents 10 to 12 are directed to deposit a sum of
Rs.30 lakhs before the Registry of this Court within a
period of two months. The said amount shall be kept in
a fixed deposit on an interest bearing account. [Para 28]
E
F
G
H
[1020-A-D]
2.6. This arrangement is absolutely interim in nature
and without prejudice to the contentions to be raised by
the State and the respondent Nos. 10 to 12. [Para 28]
[1020-D]
Municipal Corporation of Delhi v. Association of Victims
of Uphaar Tragedy and Ors. 2011 (16) SCR 1 = AIR 2012
SC 100; DAV Managing Committee and another v. Dabwali
Fire Tragedy Victims Association and others (2013) 10 SCC
494 - referred to.
Case Law Reference :
2003 (3) Suppl. SCR 844
1993 (2) SCR 581
1983 (3) SCR 508
relied on
relied on
referred to
Para 9
Para 13
Para 13
SANJAY GUPTA v. STATE OF UTTAR PRADESH
997
1991 (1) Suppl. SCR 251
relied on
Para 13
2000 (1) SCR 480
relied on
Para 15
2006 (2) SCR 67
relied on
Para 16
2011 (11) SCR 300
relied on
Para 17
2012 (8) SCR 651
relied on
Para 18
(2012) 1 sec 148
relied on
Para 18
2011 (16) SCR 1
relied on
Para 23
2008 (7) SCR 673
referred to
Para 25
(2013) 1 o sec 494
referred to
Para 26
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
338 of 2006.
Under Article 32 of the Constitution of India.
Tushar Mehta, ASG., Vikas Pahwa, Shanti Bhushan,
G<!urav Bhatia, AAG., B. Badrinath, Rishi Malhotra, Prem
A
B
c
D
Malhotra, Dr. Ashok Dhamija, B.V.B. Das, Kamlendra Mishra,
E
P. Parmeswaran, R.D. Upadhyay, Sunil Kumar Jain, Ravi
Prakash Mehrotra, Vibhu Tiwari, Anuvrat Sharma, Gunnam
Venkateswara Rao, Manoj K. Mishra, Rohit Kumar Singh,
Kartik Seth for the appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The 10th of April, 2006, the last day
of the India Brand Consumer Show organized by Mrinal Events
and Expositions at Victoria Park, Meerut, witnessed the dawn
F
of the day with hope, aspiration, pleasure and festivity at the
G
Victoria Park, Meerut, but, as ill-fortune (man made) would have
it, as the evening set in, it became the mute spectator to a
devastating fire inside the covered premises of the brand show
area which extinguished the life spark of sixty-four persons and
H
998
SUPREME COURT REPORTS
[2014] 8 S.C.R.
A left more than hundreds as injured; and with the clock ticking,
the day turned to be a silent observer of profused flow of human
tears, listener of writhing pain and cry, and eventually, marking
itself as a dark day of disaster in human history. Some, who
were fortunate to escape death, sustained serious injuries, and
B some minor injuries. The cruelest day of April converted the last
day of the festival of Consumer Show to that of a horrifying
tragedy for the families of the persons who were charred to
death, the victims who despite sustaining serious injuries did
not fall prey to the claw of fatality, and the others, slightly
c fortunate, who had got away with minor injuries bearing the
mental trauma. The dance of death, as it appears, reigned
supreme and the· cruel demon of injury caused serious injuries
as well as minor injuries. The assembly of pleasure paled into
total despair and before the people could understand the gravity
0 of the tragedy, it was over, leaving the legal representatives who
have lost their parents, or the parents who have forever been
deprived of seeing their children, or the wives who had become
widows within fraction of a minute, blaming and cursing the
officials of the State Government. The contemporaneous history
E records it as "Great Meerut Fire Tragedy.
2. After the tragedy paraded at the Victoria Park a First
Information Report was lodged against the accused persons
under Sections 304A, 337, 338 and 427 of Indian Penal Code.
The State Government, regard being had to the magnitude of
F the tragedy, vide notification No. 2155/p/Chh.p-3-2006-12(51)p/
2006 dated 2.6.2006, appointed Justice O.P. Garg, a former
Judge of Allahabad High Court, as one man Commission under
the Commissions of Enquiry Act, 1952 (for short "the Act"). The
Commission was required to submit the report in respect of four
G issues, namely: -
"1.
To find out the facts, causes on account of which
the aforesaid accident occurred.
2.
To decide the ways and means to keep up the
H
situation in control.
SANJAY GUPTA v. STATE OF UTTAR PRADESH
999
[DIPAK MISRA, J.]
3.
In respect of the aforesaid occurrence,
A'
determination of liability and the extent thereof.
4.
Measures to be adopted to avoid the occurrence
of such incident in future."
3. Almost at the time the Commission was appointed, the
present writ petition under Article 32 of the Constitution was
filed seeking the following reliefs: -
B
"A.
Pass appropriate writ, order or direction directing
B.
C.
the respondent No. 13, CBI to take up the c
investigation of the case FIR No. 95 of 2006,
registered at Civil Lines, Meerut, UP, u/s 304A/337/
338/427, IPC and investigate the case. in
accordance with law, and this Hon'ble Court may
be pleased to monitor the investigation from time 0
to time, to ensure that no person guilty of any of the
offences is able to escape the clutches of law and
that the investigation is carried out as expeditiously
as possible in a free and fair manner.
Pass appropriate writ, order or direction directing
the State Government to initiate action against the
erring administrative officers for their atrocious and
negligent ehavior while dealing with tragedy of this
magnitude.
Pass appropriate writ order or direction awarding
damages against the respondents, jointly and
severally, to the petitioners including all victims who
lost their lives, the names and particulars of which,
E
F
are given in Annexure P .6 for a sum of Rs.106
G
crores (Rs.20 lakhs for 53 dead) with the direction
to equally distribute the same to the first degree
heirs of all the victims evenly or in such manner as
may be considered just and proper, by this Hon'ble
Court.
H
A
B
c
D
E
1000
SUPREME COURT REPORTS
[2014] 8 S.C.R.
D.
Award damages against the respondents, jointly
and severally, to the tune of Rs.63 crores (Rs.5
lakhs for 126 injured) to the injured whose names
and addresses are mentioned in Annexure P-6 to
be distributed evenly or in such manner as may be
considered just and proper, by this Hon'ble Court.
E.
Award punitive damages against the respondents
to pay a sum of Rs.50 crores jointly and severally
for the purpose of setting up and augmenting the
Centralized Accident and Trauma Services and
other allied services in Western UP. Respondent
No. 3, the District Magistrate may be directed to
create a fund for the purpose and submit a detailed
report to this Hon'ble Court in accordance with
which the said services will be set up under the
supervision of this Hon'ble Court.
F.
Pass appropriate writ, order or direction issuing
guidelines to be followed by all, at the time of
creating a temporary structure for organizing
Seminars, Exhibitions etc."
4. In course of hearing of the writ petition we have been
apprised by Mr. Vikas Pahwa, learned senior counsel that 64
persons have died in the incident and not 53. The said fact is
not disputed by learned counsel for the State. As the hearing
F progressed, this Court directed for filing of the translated copy
of the relevant portion of the report of the commission as it had
already been submitted to the competent authority. In
compliance with the order learned counsel for the State has
brought on record the report dated 5.6.2007. On a perusal of
G the said report, we have found that the Commission has
returned its findings in respect of all the aspects.
5. Mr. Shanti Bhushan, learned senior counsel appearing
for respondents 10 to 12, the organizers of the event, submitted
H that the Commission has fallen into grave error by not complying
SANJAY GUPTA v. STATE OF UTTAR PRADESH
1001
[DIPAK MISRA, J.]
with Sections B8 and BC of the Act as a consequence of which A
the said respondents have been seriously prejudiced. It is his
further proponement that they were only issued notices under
Section 4(a) of the Act, but that would not meet the requirement
as mandated under Sections B8 and BC of the Act.
6. To ap'preciate the said submission, it is apposite to refer
to Sections B, 8A, 88 and 8C of the Act. Section 8 provides
for procedure to be followed by the Commission empowering
B
it to have power to regulate its own procedure including the
fixing of place and time of its sitting and deciding whether to C
sit in public or in private. Section BA stipulates that the inquiry
not to be interrupted by reason of vacancy or change in
constitution of the Commission. Sections 88 and BC on which
emphasis has been placed by Mr. Shanti 8hushan need to be
reproduced. They read as follows: -
D
"88. Persons likely to be prejudicially affected to be
heard. - If, at any state of the inquiry, the Commission, -
i.
considers it necessary to inquire into the conduct E
of any person; or
ii.
is of opinion that the reputation of any person is
likely to be prejudicially affected by the inquiry,
the Commission shall give to that person a reasonable
F
opportunity of being heard in the inquiry and to produce
evidence in his defence:
Provided that nothing in this section shall apply where the
credit of a witness is being impeached.
G
SC. Right of cross-examination and representation
by legal practitioner. - The appropriate Government,
H
1002
SUPREME COURT REPORTS
[2014] 8 S.C.R.
A
every person referred to in section 88 and, with the
permission of the Commission, any other person whose
evidence is recorded by the Commission, -
(a)
may cross-examine a witness other than a witness
B
produced by it or him;
c
(b)
may address the Commission; and
(c)
may be represented before the Commission by a
legal practitioner or, with the permission of the
Commission, by any other person."
7. It is submitted by Mr. Shanti Bhushan, learned senior
counsel, that no opportunity was given to the respondents 1 O
to 12 to cross-examine the witnesses though they are directly
D affected by the said inquiry and the findings recorded by the
Commission. It is canvassed by him that the notice that was
sent to the said respondents is basically under Section 4(a) of
the Act. To bolster his submission he has drawn our attention
E to the notices that have been sent by the Commission. We may
fruitfully refer to one of the notices sent by the Commission to
one of the organizers, namely, Lakhan Tamar, respondent No.
10. The said notice reads as follows: -
"Sh. Lakhan Tomar, (in Jail),
F
Organizer, Consumer Show,
Victoria Park,
Meerut,
Via
Superintendent, District Jail, Meerut,
G
Meerut
H
On 10th of April, a sad incident of massive fire occurred
in the 3 Pandals of Brand Consumer Show at Victoria
Park, Civil Lines area of police station, District Meerut. In
~-
SANJAY GUPTA v. STATE OF UTIAR PRADESH
1003
[DIPAK MISRA, J.]
order to ascertain the reasons, circumstances and fixing
A
of responsibilities, the Government of Uttar Pradesh
issued notification bearing No. 2155p/Chh.p-3-200612(51 )p/2006 dated 2 June, 2006 appointing a one
member Enquiry Commission un~r the Commission of
Inquiry Act 1952 (Government Order no. 60 of 1952) and
B
the said Commission is in progress. The Commission is
enquiring into the following issues:
1.
To find out the circumstances and causes on
account of which the aforesaid accident occurred. c
2.
To recommend ways and means to keep up such
incidents in check in future.
3.
In respect of the aforesaid occurrence,
determination of liability and fixing the same.
D
4.
Measures to be adopted to prevent such
occurrences in future.
Xour presence is mandatorily required for the said Enquiry.
You are hereby directed to appear before the Commission
on the 27th of September 2006 at 10:30 AM and ensure
the recording of your Statement. You are also required to
present before the Commission all the Documents,
correspondence, Acts, Rules, Governmerit Orders,
Departmental orders, if any, related to the circumstances
of the incident.
You are also informed that the above notice is issued under
E
F
the provisions G>f Commission of Enquiry Act 1952
(Government Order no. 60 of 1952) and the compliance
G
of which is necessary, mandatory and binding."
8: Similar notices were sent to the other organizers. On a
perusal of the said notice, it is limpid that the said notice is in
the nature of notice requiring him to appear. It has to be
H
1004
SUPREME COURT REPORTS
[2014) 8 S.C.R.
A construed as a notice under Section 4(a) of the Act. That apart,
on a scrutiny of the list of witnesses who were examined by the
Commission, we find that the respondents 10 to 12 were
summoned almost after examination of 45 witnesses and the
respondent-organise'i5 were not afforded opportunity of crossB examination. The Commission, on the basis of the evidence
and taking recourse to certain violation of statutory provisions,
has submitted the report.
9. In State of Biharv. Lal Krishna Advani and others1while
C interpreting Section 88 of the Act which has been brought into
the statute by the Amending Act 79 of 1971, the Court has
opined thus: -
D
E
F
G
"8. It may be noticed that the amendment was brought
about, about 20 years after passing of the main Act itself.
The experience during the past two decades must have
made the legislature realize that it would but be necessary
to notice a person whose conduct the Commission
considers necessary to inquire into during the' course of
the inquiry or whose reputation is likely to be prejudicially
affected by the inquiry. It is further provided that such a
person would have a reasonable opportunity of being
heard and to adduce evidence in his defence. Thus the
principles of natural justice were got inducted in the shape
of a statutory provision. It is thus incumbent upon the
Commission to give an opportunity to a person, before any
comment is made or opinion is expressed which is likely
to prejudicially affect that person. Needless to emphasise
that failure to comply with the principles of natural justice
renders the action non est as well as the consequences
thereof."
10. In view of the aforesaid enunciation of law, it is difficult
to sustain the report. We are obliged to state here that in
course of hearing, we had asked the learned counsel for the
H
1.
(2003) a sec 361.
SANJAY GUPTA v. STATE OF UTTAR PRADESH
1005
[DIPAK MISRA, J.]
parties that in case the report of the Commission would be set
A
aside, the Commission has to proceed after following the
provisions of the Act. The said ·position was acceded to. On a
further suggestion being made, learned counsel for the parties
had fairly agreed for appointment of another retired Judge as
Commission. Learned counsel for the parties had suggested
certain names in sealed covers but there was no commonality.
Regard being had ·to the gravity of the situation and the
magnitude of the tragedy, on due deliberation we appoint
Justice S.B. Sinha, formerly a Judge of this Court, as the one
man Commission. It is agreed by the learned counsel for the c
parties that the witnesses, who were examined by the previous
Commission and not cross-examined by respondents 10 to 12,
their depositions shall be treated as examination-in-chief and
they shall be made available for cross-examination by the
respondent. It has also been conceded that the documents
which have been marked as exhibits, unless there is a cavil over
B
D
the same, they shall be treated as exhibited documents. Mr.
Shanti Bhushan, learned senior counsel, submitted that the
contractors who were engaged by the organizers, as they were
summoned by Justice O.P. Garg Commission, should be
summoned by the present Commission. Appreciating the said
submission, we think it apposite that the Commission should
issue notices ~o the contractors so that the proceeding under
the Act can continue in accordance with the provisions of the
Act. Needless to say, they shall have the similar opportunity that
has been made available to the organizers. The organizers as
well as the contractors would be at liberty to adduce evidence
in support of their respective pleas. The Commission shall
record the evidence at Meerut and hearthe arguments in Delhi.
It needs no special emphasis to say that the State shall provide
the requisite infrastructure, secretarial staff to the Commission
for its smooth functioning and pay the fees of the Commission
which shall be fixed by the Commission. The Commission is
requested to submit the report by the end of January, 2015.
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11. ·Having so opined, we cannot comatose our judicial
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conscience to the plights of the victims who have approached
this Court. Some of the petitioners are themselves the victims
or next kin of the deceased and the injured persons who have
suffered because of this unfortunate man made tragedy. It is
the admitted position that 64 deaths have occurred and number
B of persons have suffered grievous injuries. There are also
persons who have s.uffered simple injuries as ilas been
asserted by the State. We have been apprised at the Bar that
the State Government has already paid Rs.2 lakhs to the legal
representatives of the persons who have breathed their last, and
c a sum of rupees one lakh has been paid by the Central
Government. As far as seriously injured persons are concerned,
rupees one lakh has been paid by the State Government and
Rs.50,000/- has been paid to the victims who have suffered
simple injuries.
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12. The question that we would like to pose is whether this
Court should wait for the Commission's report and then direct
the State Government to pay the amount of compensation to
the grieved and affected persons, who have been waiting for
the last eight years, or should they get certain sum till the matter
E is finalized. We will be failing in our duty if we do not take into
consideration the submission of Mr. Shanti Bhushan, learned
senior counsel, that as far as respondents 10 to 12 are
concerned, no liability can be fastened under Article 32 of the
Constitution of India, and definitely not at this stage. As far as
F first part of the submission is concerned, we keep it open to
be dealt with after the report is obtained by this Court. As far
as second aspect is concerned, we shall deal with it after we
address the issue of public law remedy and the liability of the
State in a case of this nature.
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13. In Nilabati Behera (Smt) alias Lalita Behera (through
the Supreme Court Legal Aid Committee) v. State of Orissa
and others2, J.S. Verma, J. (as his Lordship then was) speaking
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2.
(1993) 2 SCS'746.
SANJAY GUPTA v. STATE OF UTTAR PRADESH
1007
[DIPAK MISRA, J.]
for himself and Venkatachala,J., after referring to various A
authorities, opined thus: -
"17. It follows that 'a claim in public law for compensation'
for contravention of human rights and fundamental
freedoms, the protection of which is guaranteed in the
8
Constitution, is an acknowledged remedy for enforcement
and protection of such rights, and such a claim based on
strict liability made by resorting to a constitutional remedy
provided for the enforcement of a fundamental right is
'distinct from, and in addition to, the remedy in private law C
for damages for the tort' resulting from the contravention
of the fundamental right. The defence of sovereign
immunity being inapplicable, and alien to the concept of
guarantee of fundamental rights, there can be no question
of such a defence being available in the constitutional
remedy. It is this principle w~ich justifies award of monetary D
compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only
practicable mode of redress available for the contravention
made by the State or its servants in the purported exercise
of their powers, and enforcement of the fundamental right E
is claimed by resort to the remedy in public law under the
Constitution by recourse to Articles 32 and 226 of the
Constitution. This is what was indicated in Rudul Sah v.
State of Bihar3 and is the basis of the subsequent
decisions in which compensation was awarded under F
Articles 32 and 226 of the Constitution, for contravention
of fundamental rights.
18. A useful discussion on this topic which brings out the
distinction between the remedy in public law based on strict G
liability for violation of a fundamental right enabling award
of compensation, to which the defence of sovereign
immunity is inapplicable, and the private law remedy,
3.
(1983) 4 sec 141.
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wherein vicarious liability of the State in tort may arise, is
to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd
Edition, 1992, by Justice G.P. Singh, at pages 44 to 48.
Thereafter, the learned Judge referred to the authority in
Union Carbide Corpn. v. Union of lndia4 and observed: -
"We respectfully concur with the view that the court is not
helpless and the ·vvide powers given to this Court by Article
32, which itself is a fundamental right, imposes a
constitutional obligation on this Court to forge such new
tools, which may be necessary for doing complete justice
and enforcing the fundamental rights guaranteed in the
Constitution, which enable the award of monetary
compensation in appropriate cases, where that is the only
mode of redress available. The power available to this
Court under Article 142 is also an enabling provision in this
behalf. The contrary view would not merely render the court
powerless and the constitutional guarantee a mirage, but
may, in certain situations, be an incentive to extinguish life,
if for the extreme contravention the court is powerless to
grant any relief against the State, except by punishment
of the wrongdoer for the resulting offence, and recovery of
damages under private law, by the ordinary process. If the
guarantee that deprivation of life and personal liberty
cannot be made except in accordance with law, is to be
real, the enforcement of the right in case of every
contravention must also be possible in the constitutional
scheme, the mode of redress being that which is
appropriate in the facts of each case. This remedy in public
law has to be more readily available when invoked by the
have-nots, who are not possessed of the wherewithal for
enforcement of their rights in private law, even though its
exercise is to be tempered by judicial restraint to avoid
circumvention of private law remedies, where more
appropriate."
4.
(1991) 4 sec 584.
SANJAY GUPTA v. STATE OF UTTAR PRADESH
1009
[DIPAK MISRA, J.]
14. Dr. Anand,J. (as his Lordship then was) in his
A
concurring opinion has observed that: -
"34. The public law proceedings serve a different purpose
than the private law proceedings. The relief of monetary
compensation, as exemplary damages, in proceedings
8
under Article 32 by this Court or under Article 226 by the
High Courts, for established infringement of the
indefeasible right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is
based on the strict liability for contravention of the
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guaranteed basic and indefeasible rights of the citizen. The
purpose of public law is not only to civilize public power
but also to assure the citizen that they live under a legal
system which aims to protect their interests and preserve
their rights. Therefore, when the court moulds the relief by
granting "compensation" in proceedings under Article 32
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or 226 of the Constitution seeking enforcement or
protection of fundamental rights, it does so under the public
law by way of penalising the wrongdoer and fixing the
liability for the public wrong on the State which has failed
in its public duty to protect the fundamental rights of the
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citizen. The payment of compensation in such cases is not
to be understood, as it is generally understood in a civil
action for damages under the private law but in the broader
sense of providing relief by an order of making 'monetary
amends' under the public law for the wrong done due to
F
breach of public duty, of not protecting the fundamental
rights of the citizen. The compensation is in the nature of
'exemplary damages' awarded against the wrongdoer for
the breach of its public law duty and is independent of the
rights available to the aggrieved party to claim
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compensation under the private law in an action based on
tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal
law."
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15. In Chairman, Railway Board and others v. Chandrima
Oas (Mrs.) and others5, this Court while dealing with an appeal
arising out of a public interest litigation before the High Court
pertaining to the grant of damages by the railways after referring
to earlier decisions came to hold as follows:-
"Running of the Railways is a commercial activity.
Establishing the Yatri Niwas at various railway stations to
provide lodging and boarding facilities to passengers on
payment of charges is a part of the commercial activity of
the Union of India and this activity cannot be equated with
the exercise of sovereign power. The employees of the
Union of India who are deputed to run the Railways and to
manage the establishment, including the railway stations
and the·Yatri Niwas, are essential components of the
government machinery which carries on the commercial
activity. If any of such employees commits an act of tort,
the Union Government, of which they are the employees,
can, subject to other legal requirements being satisfied, be
held vicariously liable in damages to the person wronged
by those employees."
16. In Sube Singh v. State of Haryana and others5, while
dealing with the grant of compensation in a public law remedy,
the Court ruled thus:-
"It is thus now well settled that the award of compensation
against the State is an appropriate and effective remedy
for redress of an established infringement of a fundamental
right under Article 21, by a public servant. The quantum of
compensation will, however, depend upon the facts and
circumstances of each case. Award of such compensation
(by way of public law remedy) will not come in the way of
the aggrieved person claiming additional compensation in
a civil court, in the enforcement of the private law remedy
5.
(2000) 2 sec 465.
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(2006) 3 sec 11a.
SANJAY GUPTA v. STATE OF UTTAR PRADESH
1011
.
[DIPAK MISRA, J.]
in tort, nor come in the way of the criminal court ordering
compensation under Section 357 of the Code of Criminal
Procedure."
17. In Raghuvansh Dewanchand Bhasin v. State of
Maharashtra and another7, the Court reiterated the view that
the power and jurisdiction of this Court and the High Courts to
grant monetary compensation in respect of petitioners under
Articles 32 and 226 of the Constitution of India and fundamental
rights under Article 21 of the Constitution of India are violated
are well-established.
18. In Mehmood Nayyar Azam v. State of Chhattisgarh
and others8while dealing with the mental torture of the petitioner
- an Ayurvedic doctor in custody, the Court after referring to
the earlier judgments including in Hardeep Singh v. State of
M.P. 9 ruled:
"35. We have referred to these paragraphs to understand
how with the efflux of time, the concept of mental torture
has been understood throughout the world, regard being
had to the essential conception of human dignity.
36. From the aforesaid discussion, there is no shadow of
doubt that any treatment meted out to an accused while
he is in custody which causes humiliation and mental
trauma corrodes the concept of human dignity. The
majesty of law protects the dignity of a citizen in a society
governed by law. It cannot be forgotten that the welfare
State is governed by the rule of law which has ,
paramountcy. It has been said by Edward Biggon "the laws
of a nation form the most instructive portion of its history".
The Constitution as the organic law of the land has
unfolded itself in a manifold manner like a living organism
7.
(2012) 9 sec 791.
s.
(2012) a sec 1.
9.
(2012) 1 sec 748.
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in the various decisions of the court about the rights of a
person under Article 21 of the Constitution of India. When
citizenry rights are sometimes dashed against and pushed
back by the members of City Halls, there has to be a
rebound and when the rebound takes place, Article 21 of
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the Constitution springs up to action as a protector. That
is why, an investigator of a crime is required to possess
the qualities of patience and perseverance as has been
stated in Nandini Satpathy v. P.L. Dani. 10"
Thereafter placing reliance on Raghuvansh Dewanchand
C Bhasin (supra), Sube Singh (supra) and Hardeep Singh
(supra), the Court granted a sum of Rs.5,00,000/- (rupees five
lakhs only) as compensation.
19. Having stated about the legal position pertaining to
O public law remedy under Article 32 of the Constitution of India
as regards the grant of compensation we are obliged to
address with regard to the responsibility and involvement of the
State. Mr. Vikas Pahwa, learned senior counsel appearing for
the petitioners, would submit that the organizers had sought
E permission from the Additional District Magistrate, Meerut City,
vide letter dated 27.3.2006 for conducting the Consumer Show
and in the said letter they had undertaken to follow all the
guidelines and all suggested security and precautionary
measures and also sought other permissions from the
F competent authorities under the U.P. Fire Services Act, 1944
and the authorities of the State had granted permission without
proper verification and hence, they should be held liable to pay
first subject to recovery of the same proportionately from the
organizers and contractors after recording the findings on all
G the contentions issues including the quantum of compensation
that may be determined in the report by the Commission.
20. Mr. Gaurav Bhatia, learned Additional Advocate
General appearing for the Sate, submitted that the liability that
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10. (1978) 2 sec 424.
SANJAY GUPTA v. STATE OF UTTAR PRADESH
1013
[DIPAK MISRA, J.]
would be eventually determined, has to be apportioned between
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the State and the organizers and the same has to be done on
percentage basis, that is to say, the liability of the organizers
should be 85% and that of the State should be 15% and said
proportionality should be followed at this stage also.
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21. Mr. Shanti Bhushan, learned senior counsel, would
submit that the liability cannot be fastened on the organizers
under Article 32 of the Constitution as the grievance is not
tenable against the private persons and, in any case, the
organizers cannot vicariously be held liable for the act of the
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contractors. We have noted these submissions but we are not
intending to address these aspects in praesenti. Be it stated,
with regard to the precise exact quantum, liability of the
organizers, liability of the contractors and, if found liable by this
Court, would depend upon the eventual verdict, regard being
had to the report of the Commission. As stated hereinbefore,
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we have to see whether the State and its authorities prima
facie are responsible to make them liable to pay the
compensation. The issue of apportionment would come
afterwards. As we find from the material on record, pursuant
to the letter of request issued by the organizers, the Additional
District Magistrate obtained a report from the Superintendent
of Police, Meerut and expressed the view that there was no
objection if the programme was organized from 6.4.2006 to
10.4.2006.