TASKINUDDIN & ORS. vs. STATE (NCT OF DELHI) & ANR.

W.P.(C) 5812/2011 Page 1 of 49


2. An unfortunate fire incident took place on 25.01.2011 in the premises
of M/s Amazing Creation Garment Export Factory at Tughlakabad area of
South Delhi, where 14 workmen died and 5 other workmen were injured.
The FIR of the said incident was registered on 26.01.2011 with PS
Govindpuri, u/s 287,337,338,304-A IPC as FIR No 23/2011.
3. Petitioner no 1 is the father of the deceased workman Amir Siddiqui,
petitioner no 2 is the husband of the deceased workman Lalita Devi,
petitioner no 3 is the father of deceased workman Shabbo, petitioner no 4 is
the father of the deceased workman Mohd. Nizamuddin, petitioner no 5 is
the husband of deceased workman Suman Devi, petitioner no 6 is the father
of the deceased workman Mohd. Rais , petitioner no 7 is the father of the
deceased workman Alam, and petitioner no 8 is the injured workman
Rizwan in person. The deceased workmen along with petitioner no 8 were
working as “helper” with M/s Amazing Creation, dealing in the manufacture
and packing of garments and export of various type of garments – according
to the petitioners and, dealing in dry cleaning, according to respondent No.2.
According to the petitioners, the duties performed by the workmen included
the acts of thread cutting, ironing, and chemical washing of the garments for
export.
4. The respondent no 1 is the State (NCT of Delhi) and respondent no 2
is the owner of the factory, M/S Amazing Creations Co, Mr. Shamim Khan.
5. It is the case of the petitioners that on the fateful day of the fire
accident, all the deceased workmen and the injured workmen were working
on the fifth floor of the factory, when suddenly the boiler in the hall area of
the said floor burst, resulting into a massive fire. Due to highly inflammable
W.P.(C) 5812/2011 Page 2 of 49


liquid being stored near the boiler, the fire spread rapidly - engulfing the
area where the workers had been working. The petitioners further allege that
due to the narrow staircase, and placement of generator near the staircase,
the workmen could not escape from the fire. Moreover, the walls and roof of
the floor were made of fibre sheet, which aggravated the fire, trapping all the
workmen in its embrace. The petitioners claim that the loss of life and
injuries to the injured has resulted in severe impairment of the fundamental
right to life guaranteed by Article 21 of the Constitution of India, and the
said accident took place due to the acts and omissions of the respondents.
6. Ld Counsel for the petitioners submit that the respondent no 1 i.e the
State, NCT of Delhi has miserably failed to discharge their statutory duties
by not preventing the factory owner, respondent no 2 from running the said
factory in flagrant violation of all statutory laws relating to fire prevention,
building bye laws, labour laws etc which resulted into the deaths and injury
of the workmen.
7. Ld counsel for the petitioners further submit that even after the fire
incident, the various agencies of respondent no 1 have been lackadaisical in
their attitude to grant compensation for the incident, or initiate appropriate
and prompt action against respondent no 2.and have, instead, been passing
the buck to each other.
8. The petitioners’ grievance is that they have been running from pillar
to post to secure compensation from respondent no 1 and its agencies, but to
no avail. The petitioners first approached the Hon’ble Chief Minister Lt.
Governor of Delhi vide letter dated 11.03.2011 which was forwarded to the
Deputy Commissioner, Labour, (South), Government of NCT to enquire
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about the status regarding the complaints of the petitioners. The Petitioners
again wrote a letter dated 14.03.2011 to the concerned authorities of
respondent no 1 and further sent another complaint vide letter no 07.05.2011
to the Commissioner of Police.
9. However, there was no response from respondent no 1 and, finally, on
22.06.2011 a letter was sent by the Deputy Labour Commissioner, (South),
Government of NCT of Delhi addressed to the Public Grievance Cell, Office
of the Chief minister, Delhi through which it was informed to the petitioners
that a notice dated 04.02.2011, and another dated 03.032011 was sent to the
respondent no 2 / factory owner demanding compensation, and regarding the
issuance of Recovery Certificate of compensation amount of Rs.79,74,841/-
alongwith interest and penalty thereon. Via the said letter, the petitioners
came to know that respondent no 1 had directed respondent no 2 to deposit a
sum of Rs 5,00,000 in respect of each dead workman, and Rs 50,000 in
respect of each injured workman as provisional compensation in accordance
with section 4A r/w section 8 (i) of the Employees’ Compensation Act, 1923
(Act).
10. The letter dated 03.03.2011 was sent by the Deputy Labour
Commissioner, (South), Government of NCT to the respondent no 2, upon
which the wife of respondent no 2 - factory owner filed a reply seeking four
weeks time. Respondent No 1, thereafter, issued a recovery certificate dated
21.03.2011 to the District Collector requesting to initiate recovery
proceedings against respondent no 2 / factory owner to recover the
compensation amount of Rs 79,74,841 plus interest at the rate of 12% from
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the date of the accident till the date of payment along with penalty of 50%
on the principal amount of each workmen.
11. Ld counsel for the petitioners submits that an ex-gratia amount of
Rs.1,00,000 was granted to the kin of the deceased workmen, and Rs 20,000
to all the injured workmen by the SDM, Kalkaji, South Delhi. All the
Petitioners, except petitioner no 1& 4 have accepted the aforesaid ex-gratia
compensation.
12. The petitioners submit that despite the issuance of Recovery
Certificate dated 21.03.2011 - issued by the Deputy Labour Commissioner,
(South), Government of NCT of Delhi/respondent no 1, no action has been
taken on the same till date, and no money has been received by the
petitioners till date.
13. The Ld counsel for the petitioner submits that all the petitioners are
destitute persons and were dependent upon the deceased persons and
therefore speedy justice should be meted to them.
14. The Ld Counsel for the petitioners submits they cannot be relegated
to the remedy under the Act, because the deceased workmen died due to the
negligence attributable to the respondents, and the same resulted in serious
infraction of the most valuable of the fundamental rights of the deceased and
injured workmen. Moreover, its a blatant case of negligence on the part of
the respondents, which resulted in the aforesaid accident, and the things
speak for themselves.
15. Ld counsel for the petitioner further submits that that the amount of
compensation calculated under the Act is grossly inadequate and nothing but
a travesty of justice. The said Recovery Certificate has also been challenged
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by respondent no 2 before this court, and notice has been issued to
respondent no 1. Thus, the compensation may be granted in terms of the
Motor Vehicles Act,1988 (MV Act)
16. The petitioner has placed heavy reliance on a division bench
judgment of this court in Jaipur Golden Gas Victim Association v Union of
India & Ors [ 164(2009) DLT 346 DB] wherein compensation was granted
in terms of the MV Act to the victims of the Jaipur Golden fire tragedy. In
this case, the petitioners had approached the Court with the plea that a huge
fire broke out in the godown of respondent no 5. In the said godown,
respondent no 5 had stored a consignment of rodent killing pesticides, which
contained Aluminium Phosphate and Zinc Phosphate. The officials of
respondent no 5 along with fire brigade officials poured water over the fire
in a bid to extinguish it. Aluminium Phosphate and Zinc Phosphate reacted
with water, resulting in emission of highly poisonous Phosphine Gas which
th
continued to emit till 7 April, 2004. 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. In all four persons died due to exposure to chemical gases that were
emitted during the fire in respondent No. 5's godown. The petitioners relied
upon the medical record of the deceased/injured. The court found that
respondent No.5 was using the premises as a godown without any prior
mandatory statutory permission. There had been violation of Section 417 of
the Delhi Municipal Corporation Act. The court relied upon the DD entry
and FIR lodged by the police. The court also relied upon the FSL reports
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and subsequent opinion of a doctor from a government hospital, which
indicated the cause of death of one of the victims.
17. The court held that not only the respondent godown owner was liable,
but also respondent MCD was equally liable as it was negligent in
discharging its statutory function and ensuring that citizens’ right to health
and pollution free environment was not infringed. The court dealt with
various issues with regard to the maintainability of writ proceedings; award
of monetary relief in writ proceedings; power to mould the relief in writ
jurisdiction; the applicability of the principle contained in Rylands v.
Fletcher (1868) LR 3 HL 330 and in the case of M.C. Mehta & Anr. v.
Union of India & Ors., 1987 (1) SCC 395 and, inter alia , held as follows.
Though the extract is rather lengthy, I consider it appropriate to quote the
same in extenso on account of it being very relevant, scholarly and lucid.
“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. v. 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
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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 v. Income Tax Officer and 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
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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 Article 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 case 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."
W.P.(C) 5812/2011 Page 9 of 49


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 v. 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
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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 v. Union of
India 125 (2005) DLT 653, Delhi Jal Board v. Raj Kumar
(2005) VIII AD (Delhi) 533, Chitra Chary v. DDA (2005) I AD
(Del) 29, Shri Chand v. Chief Secretary (112) 2004 DLT 37,
Shobha v. GNCTD : (2003) IV AD (Delhi) 492, Shyama Devi v.
GNCTD (1999) I AD (Cr) Delhi 549, All India Lawyers' Union
(Delhi Unit) v. Union of India : AIR 1999 Del 120, B.L. Wali v.
Union of India (2004) VIII AD (Delhi) 341, Ram Kishore and
Ors. v. Municipal Corporation of Delhi 2007 VII AD (Delhi)
441, WP(C) 5072-73/2005 titled as Kishan Lal v. Govt. of NCT
of Delhi decided on 3rd July, 2007, Kamla Devi v. Govt. of
NCT of Delhi and Anr. : 2005 ACJ 216, and WP(C) 3370/2000
titled as Master Dheeru v. Govt. of NCT of Delhi and 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 V. FLETCHER
50. The principle of liability without fault was enunciated in
Ryland v. 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
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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 v. 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 v. Raj
Kumar reported in ILR (2005) Delhi 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 v. 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
v. 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
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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 v. 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 Anr. v. Union of India and Ors. reported in : 1987
(1) SCC 395 would apply ” (emphasis supplied)


18. The Supreme Court, in M.C. Mehta (supra), held that the law has to
develop with the times. The decision in Rylands v. Fletcher (supra) was
rendered in the older days. The ground realities have undergone a change
with industrialization. In any event, our courts are not inhibited by the rule
laid down in Rylands v. Fletcher (supra). The Supreme Court held:
“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
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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). ”

19. The Division Bench in Jaipur Golden Gas Victim Association (supra)
further observed:
“56. A Division Bench of this Court in the case of Association
of Victims of Uphaar Tragedy and Ors. v. Union of India and
Ors. reported in 2003 III AD (Delhi) 321 held that where an
accident occurs at an enterprise engaged in a hazardous or
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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 v.
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) v.
Prabhakaran Vijaya Kumar and Ors. reported in
MANU/SC/7608/2008 : 2008 (9) SCC 527 referred to Ryland v.
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
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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"....
x x x x x x x x
58. In Jay Laxmi Salt Works (P) Ltd. v. 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
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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.”
(emphasis supplied)
20. After discussing the entire law as it stands on the concept of “strict
liability” the court in the above cited judgment held as under:
“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 v. 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).”

21. The petitioner further relies on a judgment of this court in Kamla Devi
v Government of NCT of Delhi & Anr, 114 (2004) DLT 57 . In this case, the
court granted compensation on the death of a deceased electrician, due to an
explosion caused by terrorist activity. The court further held that public law
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demands, as distinct from private law tort remedy, is that crime victims be
given compensation even in no fault situations by state, as it is the breach of
constitutional guarantee under Article 21 of the constitution. The petitioner
relies on the following paragraphs:
“5. Let us see who are the persons responsible for the wrong.
Primarily it is the terrorist who was assembling the bomb.
Next, it is the State as it failed in living up to its guarantee
that ''no person shall be deprived of his life .. except
according to procedure established by law''. The State failed
to prevent the terrorist from harming innocent citizens like
Uday Singh. Terrorism itself is an indicia of the inability of
the State to curb resentment and to quell fissiparous activities.
Social malaise in itself is a reflection of the State's
inefficiency in dealing with the situation in a proper manner.
Apart from the general inability to tackle the volatile
situation, in this case, the State agencies failed in their duty to
prevent terrorists from entering Delhi. It was their
responsibility to see that dangerous explosives such as RDX
were not available to criminals and terrorists. The incident
occurred as there was a failure on the part of state to prevent
it. There was failure of intelligences they did not pick up the
movement of this known and dangerous terrorist. So, it would
be extremely difficult even to suggest that the State did not fail
in its duty towards the late Uday Singh and his family. The
other players in this sad drama could be the owner of the Guest
House. Did he take due care in permitting such a dangerous
person to enter and reside in the guest house? Did he maintain
his guest house in good repair so as to have prevented the same
from collapsing under the impact of the explosion? Then, the
municipal officials may also be roped in. Did they inspect the
property from time to time? Did they take any action if the
building was in any way not in accordance with the
regulations and law? Did they find the building to be
structurally sound? Of course, these are questions which need
a thorough investigation and cannot be gone into in this writ
W.P.(C) 5812/2011 Page 18 of 49


petition. But, this does not mean that without these questions
being answered the petitioner is to be left without a remedy.
6. A crime has been committed. A wrong has been done and a
citizen has lost his life because the State was not vigilant
enough. A fundamental right has been violated. But, mere
declarations such as these will not provide any succour to the
petitioner.
She needs to be compensated. It is too late in the day to now
suggest, that in a situation such as this, the petitioner should
be relegated to the ordinary civil courts to seek her tort law
remedy.
7. It is true that the cases which came up before the Supreme
Court related to custodial death, death of school children on a
picnic, death of a passenger in a train as a result of the inaction
on the part of the railway employees. In all these cases it could
be said that the victims were under some sort of State custody,
punitive or protective. It could be argued that Uday Singh was
not in any such situation. He died as a result of a terrorist act
and, perhaps, contributed, in part, due to the structural defect
in the guest house building. What has the State got to do with
this? I am afraid, the State has everything to do with this. The
state owed a duty to protect the life and liberty of an innocent
citizen such as Uday Singh. The State owes a duty to the widow
(Kamla Devi) and the child (Mukesh), now that Uday Singh has
been snatched away from them, that they live their lives with
dignity. Compensation, in this case, would not only be a balm
on their scars, it would also provide them with hope or the
future. The fact of the matter is that Uday Singh lost his life on
account of an act of terrorism. The State failed to prevent it.
The Primary duty of the State is to maintain peace and harmony
amongst its citizens. If for some reason, it is unable to put the
lid on simmering discontent, then it is its duty to protect
innocent citizens from harm. If it fails in this duty, then it must
compensate the citizens who have been wronged.”
Finally, the court culls up the following principles:
“21. The principles which emerge can be summarized as
follows:-
W.P.(C) 5812/2011 Page 19 of 49


1. Whenever an innocent citizen is killed as a result of a crime,
particularly when it is an act of terror or communal violence or
a case of custodial death, the State would have failed in its
public duty to ensure the guarantee enshrined in Article 21 of
the Constitution.
2. The modern trend and the international norm is to focus on
the victims of crime (and their families) by, inter alia, ensuring
that they are promptly compensated by the State in adequate
measure under a well-laid out Scheme.
3. In India, there is no such criminal injury compensation
scheme in place and the private law remedies of damages and
compensation are grossly inadequate. Legislation on this
aspect is not forthcoming.
4. In such a situation the High Court, in exercise of its powers
under article 226 of the Constitution can and ought to direct the
State to compensate the crime victim and/or his family. ”

22. The petitioners have filed an additional affidavit in compliance of the
order dated 14.03.2013 of this court in the present writ petition where they
have calculated the quantum of compensation for each petitioner separately
in terms of the MV Act whilst placing reliance on a Supreme Court
judgement of Sarla Verma amd Ors v Delhi Transport Corporation and
Anr, (2009) 6 SCC 121
23. Ld Counsel further submits that the respondent no 1 in the counter
affidavit to the writ petition has not given parawise reply to the same. The
averments made in the writ petition have not been denied by them.
24. Lastly, Ld Counsel for the petitioner has handed over in this court a
copy of the Delhi Victims Compensation Scheme, 2011 (The Scheme)
framed by the Lt Governor of National Capital Territory of Delhi in exercise
of the powers conferred by Section 357 A of the Code of Criminal
W.P.(C) 5812/2011 Page 20 of 49


Procedure, 1973 for the purpose of providing compensation to the victims or
their dependent(s) who have suffered loss or injury or require rehabilitation
as a result of an offence. Ld counsel has also handed over a copy of the
reply of the Delhi State Legal Services Authority (DLSA), to information
sought under the Right to Information Act,2005, on the number of victims
who have been granted compensation in compliance to the Scheme, and also
the categories of cases in which the DLSA has granted compensation till
may 2013. The Ld counsel points out from the reply that 72 victims have
been compensated so far, and in 4 cases compensation has been granted in
writ petitions against MCD and BSES.
25. Ld counsel has further prayed during his arguments that this court
may direct the State to formulate a comprehensive Victims of Crime
Compensation Scheme for timely and justifiable relief to the victims, in line
with the Criminal Injuries Compensation Scheme 2001 - as prevalent in UK
and other countries, in terms of the General Assembly Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power.
26. Counter affidavit on behalf of respondent no 1 has been filed by Mr.
V. S Arya , Joint Labour Commissioner, District South, Labour Department.
It is admitted in the counter affidavit that on 25.01.2011, a fire accident did
occur in the premises of M/S Amazing Creation Garment Factory at
Tughlakabad area in South Delhi, and that an F.I.R was lodged on
26.01.2011 at P.S Govindpuri.
27. It is further stated in the counter affidavit that Employee’s
Compensation Commissioner had initiated a suo moto action by issuing
notice dated 04.02.2011 to the employer of the M/S Amazing Creation
W.P.(C) 5812/2011 Page 21 of 49


Garment Export Factory for depositing the amount of compensation to the
tune of Rs 5,00,000 in respect of each deceased workmen, and Rs 50,000 in
respect of each injured workmen within 3 days from issue of notice.
Recovery Certificate dated 21.03.2011 was issued for Rs.79,74,841/- along
with interest @ 12% p.a. from the date of accident till payment along with
penalty of 50% of the principal amount. The respondent no.1 has objected
to the application of the Sarla Verma (supra) on the ground that the formula
prescribed therein is applicable only on the claims filed before the MACT,
and not on the claims under the Act. Therefore, the compensation should be
calculated as per the provisions of Section 4 of the Act.
28. The Respondent no 2 claims that there are disputed questions of facts
involved in this case, which cannot be adjudicated on the basis of affidavits
of parties - in the absence of cogent evidence and without leading evidence,
and without conducting cross- examination and, therefore, the appropriate
remedy would be to initiate a civil action.
29. He further states that the fire report dated 27.03.2012 has failed to
ascertain the exact cause of fire and, therefore, he cannot be held liable in
the absence of conclusive facts. Respondent no 2 has completely denied
responsibility for the incident and has further stated that he was only running
a “dry cleaning business” in the premise which is not a “manufacturing”
process. As such, the provisions of the Act are not applicable. He has
further asserted that no manufacturing activity was carried out in the said
premises, and there was no employer-employee relationship, or master -
servant relationship between him and the deceased/injured workmen. He
avers that he himself is one of the victims of the accident and has filed his
W.P.(C) 5812/2011 Page 22 of 49


medical reports to that effect. He further claims that the place of the accident
has been sealed by the police/SDM for the purpose of investigation and the
title deeds of the property have been seized. As such, he does not have the
means to survive himself and even the State has not extended any help to
him for rehabilitation and better treatment.
30. Respondent no 2 in his counter affidavit has stated that there has been
a gross violation of natural justice in passing the Recovery Certificate by
Commissioner, Workmen Compensation (CWC), without giving any
opportunity of being heard to the respondent no 2.
31. Ld counsel for respondent no 2 has submitted that in view of the
decision in Grid Corporation of Orissa Ltd v Sukamani Das, 1997 (7)SCC
298, this petition is not maintainable. In this case, respondent's husband died
due to electrocution and the respondent claimed compensation on ground of
negligence of appellant authority i.e GRIDCO as they failed in their duty to
maintain the electricity transmission line. The appellant authority denied the
liability on the ground that the wire had snapped due to thunderbolt and
lightening, and not because of the negligence as proper guarding was
provided for the electricity line and also pleaded that the writ petition was
not maintainable because disputed questions of facts were involved. The
writ petition was allowed by the High Court, but on appeal to the Supreme
court, the decision was reversed. The following paragraphs from the
judgement are relied on:
“6. In our opinion, the High Court committed an error in
entertaining the writ petitions even though they were not fit
cases for exercising power under Article 226 of the
Constitution. The High Court went wrong in proceeding on the
W.P.(C) 5812/2011 Page 23 of 49


basis that as the deaths had taken place because of
electrocution as a result of the deceased coming into contact
with snapped live wires of the electric transmission lines of the
appellants, that "admittedly prima facie amounted to
negligence on the part of the appellants". The High Court failed
to appreciate that all these cases were actions in tort and
negligence was required to be established firstly by the
claimants. Mere fact that the wire of the electric transmission
line belonging to the appellant No. 1 had snapped and the
deceased had come into contact with it and had died was not by
itself sufficient for awarding compensation. It also required to
be examined whether the wire had snapped as a result of any
negligence of the appellants and under which circumstances the
deceased had come into contact with the wire. In view of the
specific defences raised by the appellants in each of these cases
they deserved an opportunity to prove that proper care and
precautions were taken in maintaining the transmission lines
and yet the wires had snapped because of circumstances
beyond their control or unauthorised intervention of third
parties or that the deceased had not died in the manner stated
by the petitioner. These questions could not have been decided
properly on the basis of affidavits only. It is the settled legal
position that where disputed questions of facts are involved a
petition under Article 226 of the Constitution is not a proper
remedy…”
32. Reliance is also placed on a judgement of this court in Shri
Dharampal v Delhi Transport Corporation & Anr in C.W.P No 1108 of
2001 , where the petitioner in the writ petition had claimed compensation of
Rs 5 Lakhs each from both the respondents on account of the death of his
wife due to electrocution. The petitioner had alleged negligence on the part
of the respondents in failing to repair and maintain the dilapidated electric
lines due to which short circuit had occurred and his wife died. The
following paragraphs are relied upon:
W.P.(C) 5812/2011 Page 24 of 49


“19. Where the compensation had been claimed on account of
death and injury on the basis of constitutional wrong but not
due to electrocution, the approach of the Supreme Court has
been different. Some of the prominent decisions are Rudul shah
V State of Bihar (1983) 3 SCR 508, Nilabeti Behera, D.K Basu
v State of West Bengal (1997) 1 SCC 416 and Chairman
Railway Board V Chandrima Das. However, it has been held
that in cases of electrocution involving disputed questions of
fact, a writ petition under Article 226 is not maintainable. it is
in the electrocution cases as can be seen …that the approach
has been different…..The net result is that in cases involving
claim for compensation on account of death due to
electrocution , where the facts are disputed , the Supreme Court
has held that a writ petition for payment of compensation is not
maintainable under Article 226 of the Constitution . The
remedy in such cases will obviously be only before civil court.
x x x x x x x x x x
….. ….. ….. …..this court has no other option but to hold that
the writ petition in the facts and circumstances which involves
disputed questions of facts is not maintainable and the
petitioner will have to approach the Civil Court to claim
compensation for the death of his wife on account of alleged
negligence of the respondents…”
33. Further, the respondent no 2 submits that respondent no 1 has not
denied any allegations in the petition, and, therefore, have allegedly
admitted their negligence. Consequently, they alone have the constitutional
liability and obligation to pay the complete monetary compensation to the
petitioners.
34. The respondent no 2 in response to the additional affidavit of claim
for compensation by the petitioners, has also averred that 8 petitioners have
filed the present petition , whereas 5 others have filed their cases before the
Employee’s Compensation Commissioner (South District), Delhi. It is
W.P.(C) 5812/2011 Page 25 of 49


pertinent to mention here that that respondent no 2 has only provided certain
case nos. that he claims are pending, and has not filed any document to show
this. In the same affidavit, respondent no 2 has also denied the particulars of
the petitioners with regard to their age, marital status, employment, income,
salary etc.
35. The respondent no 2 also submits that a writ petition under Article
226 of the Constitution is only maintainable against the State - who have a
constitutional duty and obligation to protect the fundamental rights of the
people.
36. The petitioners in their rejoinder have denied having filed any claim
petition under the Act, as averred by the respondent no 2 in his counter
affidavit.
37. The petitioners submit that the respondent no 2 was given a fair
opportunity to be heard, before issuance of the Recovery Certificate. He
was, in fact, issued a show cause notice by the District Collector’s office of
the Deputy Labour Commissioner, South, Govt of NCT to which the
respondent no 2 had replied by stating that he does not own any movable or
immovable properties. Further, it is clear from the F.I.R that the accident
had taken place due to the negligent acts of the respondents, inter alia , by
not keeping the machine boiler etc in proper condition by the owner of the
factory and by permitting the running of the factory premises in a highly
congested and residential premises without clearances by the fire
department, the municipality and the labour department.
38. The petitioners have placed on record the compensation claimed on
the basis of the judgment in Sarla Verma (supra). They have also claimed
W.P.(C) 5812/2011 Page 26 of 49


interest @ 7.5% p.a. from date of filing of the writ petition upto the date of
payment in addition to costs as granted in the case of Jaipur Golden Gas
Victims Association v UOI & Ors (Supra).
39. The respondent no 1, has calculated the compensation according to
the provisions of the Act, as follows:

W.P.(C) 5812/2011 Page 27 of 49


40. Also, it has been stated that as per Section 4 A(3)(b) of the ECA,
interest @ 12% is also payable.
41. It is well settled by now that a writ court can award compensation
while exercising the extraordinary constitutional jurisdiction. The question
has been dealt with extensively by the Supreme Court in Rudul Shah V
State of Bihar (1983) 3 SCR 508, Smt Nilabati Behera v State of Orissa &
Ors (1993) 2 SCC 746, D.K Basu v Union of India (1997) 1 SCC 416,
Chairman, Grid Corporation of Orissa Ltd (GRIDCO) and Ors (Supra) ,
Tamil Nadu Electricity Board v Sumathi and Ors (2000) 4 SCC 543 , S.P.S
Rathore V State of Haryana (2005) 10 SCC 1 and by this court in Jaipur
Golden (supra) and Kamla Devi (supra).
42. The position that emerges from the afore mentioned decisions is that
at least in cases, where the relevant facts are not in dispute; there is
established negligence in the acts and omissions of the respondent authority
/ authorities on the face of the record, and; there is consequent deprivation of
a fundamental right of the petitioner, the writ court may award monetary
compensation.
43. In Darshan & Others V Union Of India & Others, 200ACJ 578 , the
deceased had died of drowning after falling into an open manhole. The
Division bench of this court held as follows:
“Coming to instant case, it is one of rest ipsa liquitor, where
the negligence of the instrumentalities of the State and
dereliction of duty is writ large on the record in leaving the
manhole uncovered. The dereliction of duty on their part in
leaving a death trap on a public road led to the untimely death
of Skattar Singh. It deprived him of his fundamental right under
Article 21 of the Constitution of India. The scope and ambit of
W.P.(C) 5812/2011 Page 28 of 49


Article 21 is wide and far reaching. It would, undoubtedly,
cover a case where the State or its instrumentality failed to
discharge its duty of care cast upon it, resulting in deprivation
of life or limb of a person. Accordingly, Article 21 of the
Constitution is attracted and the petitioners are entitled to
invoke Article 226 to claim onetary compensation as such a
remedy is available in public law, based on strict liability for
breach of fundamental rights.”
44. In the case of Varinder Prased v BSES Rajdhani Power Ltd and
Others , 2012(127)DRJ 630 , this court took into account its earlier decision
in Ram Kishore v MCD 2007(97) DRJ 445 , to hold that a writ petition to
claim compensation is maintainable under Article 226 of the constitution of
India, in case there is a violation of fundamental rights. In Varinder Prasad
(supra) an unfortunate boy died in an accident, when the shed of the house,
where under he was playing, collapsed on him. This court in several other
cases as well viz. Chob Singh v Govt of NCT of Delhi and Anr 192 (2012)
DLT 100 , Santu Ram & Anr v State and Ors in W.P. (C) 768/2009 has
granted compensation.
45. In Subramanium and Anr V Delhi Metro Rail Corporation and Ors
in W.P No 5024/2007 this court held as under:
“10.… the courts in India have over a period of time unshackled
its conservative approach of not entertaining causes while
exercising extraordinary original jurisdiction under Article 226
of the Constitution, in such like cases. The rigour of
conservatism has been relaxed, not only in the field of civil
wrongs that is, torts, but also in the area of contracts where
State or its instrumentalities are parties. As a matter of fact, the
courts have gone to the extent of saying that it would be
incorrect to state that where facts are disputed, a writ court
would not have jurisdiction to entertain a petition under Article
226 of the Constitution. It is one thing to say that the court in its
W.P.(C) 5812/2011 Page 29 of 49


discretion may not entertain a petition in which disputed
questions of fact arise for consideration, it is another thing to
contend that a court does not have jurisdiction to entertain a
petition which raises disputed questions of fact. The latter
proposition is now discarded by the Supreme Court. [See. Smt.
Gunwant Kaur & Ors. Vs. Municipal Committee Bhatinda &
Ors. : (1969) 3 SCC 769 and ABL International Ltd. And Anr.
Vs. Export Credit Guarantee Corporation of India Ltd. and
Ors. : (2004) 3 SCC 553
10.1 The approach, with regard to civil wrongs committed by
officers of the State or the instrumentalities of the State are on
no different footing where claims are based on strict liability.
While there is no gainsaying that, an affected person could
vindicate his right qua a civil wrong committed on him, by
instituting a civil suit, a claim in public law for compensation,
for unconstitutional deprivation of the fundamental right to life,
would also be available to him. This claim would be in addition
to the claim available in private law for damages caused on
account of tortious acts of the public servants. Compensation, if
any, would be paid by constitutional courts for 'established
infringement of rights granted under Article 21 of the
Constitution'.
10.2 In this behalf, the courts have eschewed the policy of
relegating an aggrieved party to a remedy of a civil suit, where
there is established violation of the victim's right under Article
21 of the Constitution, on the ground that it may be long drawn
and cumbersome, and at times, result in illusory relief to the
victim's family. The power conferred on the court, whether
under Article 32 or Article 226 of the Constitution is exercised,
where the violation of the fundamental right is gross and patent
- it affects a large number of persons, or it would be unjust or
unduly harsh and oppressive either on account of the poverty of
the claimant or his socially and economically disadvantaged
position, to relegate him to a civil action for infringement of his
rights.”
46. In the present case, it is not in dispute that the near relatives of
petitioner nos. 1 to 7 died, and petitioner no 8 was injured due to the
W.P.(C) 5812/2011 Page 30 of 49


breakout of a fire while they were working in the factory premises of
respondent no 2 . The occurrence of the said incident has been recorded in
the FIR and subsequent charge sheet has also been filed by the police.
Respondent No.1 has admitted the said incident. Even respondent No.2 has
admitted the incident – as he claims that he was also injured in the said
incident, though he denies his negligence and also the nature of activity
allegedly found in the premises, the cause of the fire and the relationship of
workmen and employer. Whether, or not, the unit was a manufacturing unit,
or only a dry cleaning unit – as claimed by respondent no.2 is not at all
relevant to my mind.
47. There is no dispute that the said factory/unit was being run in an
illegal manner in a “low rise residential building”, as is evident from the fire
report. Neither respondent no 1, nor respondent no.2 have claimed that the
former had permitted the use of the building for commercial/manufacturing
purpose, nor respondent no.2 has disclosed that he had obtained the requisite
municipal licenses or fire clearances before running his unit. It is not their
claim that the activity was being run in a proper manner, and that there were
checks and measures in place. The factory/unit seems to be operating from
2005 in flagrant violation of all statutory laws, rules and regulations. There
is no explanation offered by the Respondent no 1 as to how an export
factory, or a dry cleaning unit (as claimed by respondent no.2) storing and
using highly inflammable substances was permitted to run in a residential
building in a congested area. There can be no denying the fact that
respondent no 1 owed a duty of care towards public, so that no action or
inaction on their part causes harm to the citizens. Even after the incident,
W.P.(C) 5812/2011 Page 31 of 49


they have not done anything substantial to provide relief to the petitioners,
except for sending letters and reminders. It is absolutely clear that
respondent no 1 has been utterly negligent in discharging its statutory
obligations and in ensuring that the citizen’s fundamental rights to life was
not infringed.
48. Though from a perusal of the report of the Assistant Electrical
Inspector dated 08.04.2011 it is seen that the electrical installation of the
premises was found completely burnt out/ damaged, and the exact cause of
fire could not be ascertained, however, from the perusal of the copy of
charge sheet filed in the court of Sh Samar Vishal, MM Saket Courts, it
appears that the incident has occurred due to the use and presence of a
highly inflammable liquid. The relevant extract there from reads as follows:
“ In the investigation carried out so far, it was found that the
accused ( respondent no 2) had been using a highly flammable
liquid for washing of the prepared garments on the fourth floor
of the building which did not have any proper ventilation and
th
the 4 floor of the building was used for washing of the
garments on 25.01.2011 at about 4 p.m with solvent and the
solvent spread in the air and the electrical spark which came
from the hydro machine in which the washed garments were
being dried , caused fire which caused a big sound resulting in
engulfing the workers working there and falling off the roof of
th
the 4 floor of the building . Hence, there are sufficient
evidences against the accused Shamim of Column No. 11 and
the challan against him is prepared u/s 287/285/337/338/304A
IPC. The case may be heard please.”

49. Further, it is clear from the FSL report no 2011/C-1123 dated
24.06.2011, that on gas chromatography examination most of the exhibits
“ were found to contain residue of kerosene” which is a highly inflammable
liquid.
W.P.(C) 5812/2011 Page 32 of 49


50. The cause of fire in the premises of respondent no.2 is of not
relevance to fix the liability of the respondents. I may only refer to para 54
of the judgment in Jaipur Golden (supra) which has been extracted herein
above. As observed by the Supreme Court in Prabhakaran Vijaya Kumar
& Ors. (supra) (taken note of in para 57 of Jaipur Golden (supra)), strict
liability focuses on the nature of the defendants activities, rather than on the
way in which it is carried out. Therefore, the respondents would be liable,
irrespective of their being/not being any negligence. I may, however, hasten
to add that there is sufficient undeniable evidence on record to conclude that
there has been immense neglect and dereliction of duty by the respondent
authorities i.e. a duty of care – owed to those serving in the unit of
respondent no.2.
51. Respondent no 2’s contention that he being a private person, therefore
a writ is not maintainable against him is unfounded. In Anadi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust and Ors v V.R Rudani and Ors AIR 1989 SC 1607:
“The words "Any parson or authority" used in Article 226 are.
therefore, not to be confined only to statutory authorities and
instrumentalities of the State. They may cover any other person
or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the
nature of the duty imposed on the body. The duty must be
judged in the light of positive obligation owed by the person or
authority to the affected party. No matter by what means the
duty is imposed. If a positive obligation exists mandamus
cannot be denied”
52. In S. Radhika Sameena v S.H.O , Habbenagar Police Station ,
Hyderabad , 1996 (4) ALD 1 , the court entertained a writ petition against a
W.P.(C) 5812/2011 Page 33 of 49


private person and granted relief of compensation against him in the nature
of mandamus. The public interest litigation concerned an innocent woman
and her treacherous husband. The High Court of Andhra Pradesh directed
the respondent no 4 (the husband) to pay a compensation of Rs 5 lakh
provisionally estimated. Though the order was against a private person, the
respondent no 1 to 3, who were public servants, were directed to ensure
compliance of the order.
53. In Sandhu Varahala Babu and Ors v Government of Andhra
Pradesh , Co operation Department and Ors , 2005(5)ALT 126. In para 35
of the said judgement the court summarized as follows:
“ (1) Article 226 empowers the High Court to issue writs to
'persons' or 'authorities' to enforce ordinary rights.
(2) An order can be issued against private persons by granting
appropriate relief under Article 226 of the Constitution.
x x x x x x x x x x
(5) A writ can be maintained under Article 226 if there is
flagrant violation of the principles of natural justice, which are
required to be followed under a statute.
(6) The power of the High Court is not confined only to issue of
writs to a public authority. It can also issue directions to
enforce any of the fundamental rights or for any other purpose.
(7) The scope of Article 226 has been widened by maintaining
the writ petition against other authorities and persons also.”

54. As noticed above, the issue stands settled by, inter alia , Jaipur
Golden (supra). There have been several instances where high courts have
issued writs against private persons when fundamental rights of a person
have been violated.
W.P.(C) 5812/2011 Page 34 of 49


55. Moreover, in the present case, the petitioners are also seeking relief
against the respondent State on account of their failure to take steps to
prevent the horrible incident. Had the State been vigilant, the factory/unit
could not have been set up or operated in a low rise residential premises.
Had the State been vigilant, fire protection mechanisms, proper fire escape,
clear passages and ventilation would have been ensured. Had the State been
vigilant, respondent No.2 would not have been permitted to store highly
inflammable substances without license and without making proper
arrangement therefor. Neither of the respondents paid heed to these aspects,
which is what led to the incident. The liability of the State is coextensive
with that of respondent no.2.
56. In these proceedings, this court is not examining the validity of the
Recovery Certificate in question. The same is the subject matter of a
separate writ proceedings initiated by respondent no.2. In my view,
whatever be the outcome of the said recovery proceedings, the petitioners
right to claim compensation from the respondents cannot be denied. If,
eventually, the compensation found legally due against respondent no.2 is
found to be higher than that awarded in these proceedings, the compensation
realized in these proceedings would be adjustable.
57. Respondent no.2’s next contention that he was running a Dry
Cleaning business, and hence it cannot be termed as a manufacturing
business, thereby excluding him from the purview of the Act, appears to be
an attempt on his part to escape his liability for the said incident under the
Act. I do not consider it necessary to get embroiled in this dispute, which
may be resolved in other appropriate proceedings i.e. under the Act or under
W.P.(C) 5812/2011 Page 35 of 49


the I.P.C. Prima face, though, it appears from the F.I.R that respondent no.2
was in fact running an export factory at the premises of the fire accident.
The same records :
“…on inspecting the house it was found that in the house, the
work of cutting clothes, pressing and finishing used to be
carried out”
(Translated from Hindi)
58. Further, a copy of the reply dated 25.07.2011 sent by the Additional
Deputy Commissioner of Police (South East), New Delhi to Deputy
Secretary, Delhi Minorities Commission has been filed in this court, also
shows that he may have been running an export factory. The reply says:
“ Enquiry has been got conducted through ACP, Kalkaji which
revealed that on 25.01.2011 at about 5.00 PM an incident of
fire in Gali no 8, RZ H. No. 58-1, TKD Extension, New Delhi
took place where a garment export factory in the name and
style of Amazing Creations was being run. Immediately all the
19 injured persons were evacuated and sent to Safdarjung and
JPN hospitals in Private and PCR vans . ..During enquiry it
revealed that 14 persons succumbed to their burn injuries at the
JPN & safdarjung hospital….
….The establishment is registered with Ministry of Commerce
and Industry vide Certificate of Import/Export Code dated
07.06.2010 … The factory was established in 2005 as per
certificate issued by Apparel Export Promotion Council.”
59. As noticed above, to grant compensation in these proceedings, it is
not necessary to determine the issue whether a garment manufacturing unit
or a dry cleaning unit was being run in the premises. The liability would, in
either case, fall on the respondents since they have failed to exercise due
care and caution that they were obliged to, under the law.
W.P.(C) 5812/2011 Page 36 of 49


60. In any event, it is clear that respondent no 2 was carrying out an
inherently dangerous/ hazardous activity and, therefore, the principle of
“strict liability” evolved by the Supreme Court in M.C Mehta (supra) and
followed in Jaipur Golden (supra) would apply . In light of the above
discussions and precedents, this writ petition for grant of compensation is
maintainable against both the respondents, and the petitioners are entitled to
grant of compensation for the undeniable right to life of the near relatives of
the petitioner nos.1 to 7 and of petitioner no.8.

61. Now, I proceed to consider the method of calculation to be applied for
the computation for quantum of damages to be granted in the present case.
62. In General manager, Kerala State Road Transport Corporation,
Trivandrum v Mrs Susamma Thomas & Ors (1994) 2 SCC 176 , the
Supreme Court held as under:
“ The determination of the quantum must answer what
contemporary society "would deem to be a fair sum such as
would allow the wrongdoer to hold up his head among his
neighbours and say with their approval that he has done the
fair thing". The amount awarded must not be niggardly since
the “law values life and limb in a free society in generous
scales.” All this means that the sum awarded must be fair and
reasonable by accepted legal standards .”
63. The Supreme Court in Sube Singh v State Of Haryana AIR 2006
SC1117 has held that :
“ It is thus now well settled that 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
W.P.(C) 5812/2011 Page 37 of 49


remedy) will not come in the way of the aggrieved person
claiming additional compensation in a civil court, in
enforcement of the private law remedy in tort, nor come in the
way of the criminal court ordering compensation under Section
357 of Code of Civil Procedure”
64. In Oriental Insurance Co Ltd v Ram Prasad Varma & Ors 2009(2)
SCC 712, the Supreme held that “just ” must be given its logical meaning.
Though, the compensation awarded cannot be a bonanza or a source of profit
but in considering as to what would be just and equitable, all facts and
circumstances must be taken into consideration.

65. The Supreme court in Association of Victims of Uphaar Tragedy and
Ors AIR 2012 SC 100 held:
“ Therefore what can be awarded as compensation by way of
public law remedy need not only be a nominal palliative
amount, but something more.”
66. The accident in question is not covered by the provisions of the MV
Act. In my view, the MV Act cannot, therefore, be invoked for purpose of
calculation of damages to which the petitioners may be entitled to. The
decision in Sarla Verma (supra) was rendered in a case arising under the
MV Act. The petitioners have not shown as to how the principles for
computation of damages under the said Act can be extended to claim for
compensation when the same is not arising out of accident involving a motor
vehicle. I may note that in Jaipur Golden (supra), the petitioners had
claimed compensation in accordance with the MV Act. However, it appears
that there was no opposition to the said manner of computation of damages
and the court awarded compensation as framed by the petitioners.
Pertinently, in Kamla Devi (supra), this court applied its mind to the
W.P.(C) 5812/2011 Page 38 of 49


aforesaid aspect from para 17 onwards. This court referred to U.P. State
Road Transport Corporation v Trilok Chandra (1996) 4 SCC 30 , wherein
the Supreme Court had observed that calculation of compensation and the
amount worked out in the Schedule suffers from several defects and that
neither the tribunals nor the courts can go by the ready reckoner. It can only
be used as a guide. This court, therefore, held that the structured formula
nd
given in the 2 Schedule to the MV Act cannot be relied upon as a ready
reckoner, but this does not mean that it has to be debunked altogheter. For
instance, it may be used for arriving at the appropriate multiplier.
67. The court applied the principle that the petitioner would be eligible to
receive a standard compensation for the fatal injury caused to the deceased.
Over and above the same, the petitioners were held entitled to receive
additional compensation in respect of loss of dependency.
68. In Kamla Devi (supra), the court held as under:
5. The compensation to be awarded by the Courts, based on
international norms and previous decisions of the Supreme
Court, comprises of two parts:-
(a) `standard compensation' or the so-called `conventional
amount' (or sum) for non-pecuniary losses such as loss of
consortium, loss of parent, pain and suffering and loss of
amenities; and
(b) Compensation for pecuniary loss of dependency.
6. The `standard compensation' or the `conventional amount
has to be revised from time to time to counter inflation and the
consequent erosion of the value of the rupee. Keeping this in
mind, in case of death, the standard compensation in 1996 is
worked out at Rs. 97,700/-. This needs to be updated for
subsequent years on the basis of the Consumer Price Index for
W.P.(C) 5812/2011 Page 39 of 49


Industrial Workers (CPI-IW) brought out by the Labour
Bureau, Government of India.
7. Compensation for pecuniary loss of dependency is to be
computed on the basis of loss of earnings for which the
multiplier method is to be employed. The table given in
Schedule II of the MV Act, 1988 cannot be relied upon,
however, the appropriate multiplier can be taken there from.
The multiplicand is the yearly income of the deceased less the
amount he would have spent upon himself. This is calculated by
dividing the family into units - 2 for each adult member and 1
for each minor. The yearly income is then to be divided by the
total number of units to get the value of each unit. The annual
dependency loss is then calculated by multiplying the value of
each unit by the number of units excluding the two units for the
deceased adult member. This becomes the multiplicand and is
multiplied by the appropriate multiplier to arrive at the figure
for compensation of pecuniary loss of dependency.
8. The total amount paid under 6 and 7 above is to be awarded
by the Court along with simple interest thereon calculated on
the basis of the inflation rate based on the Consumer Prices as
disclosed by the Government of India for the period
commencing from the date of death of the deceased till the date
of payment by the State.
9. The amount paid by the State as indicated above would be
liable to be adjusted against any amount which may be
awarded to the claimants by way of damages in a civil suit or
compensation under the Criminal Procedure Code.”
69. Applying the aforesaid principle, the compensation to which each of
the petitioners would be entitled would be as follows:
70. The standard compensation has to be awarded by taking the base
amount as Rs 50,000/- in 1989, as mentioned in Kamla Devi( supra). The
said amount would require to be adjusted for Jan 2011 when the deaths of
the near relatives of Petitioner no 1 to 7 occured , based on the Consumer
Price Index for Industrial Workers (CPI –1W), published by Labour
W.P.(C) 5812/2011 Page 40 of 49


Bureau, Govt. of India (Bureau). The average CPI (IW) for the year 1989,
(in which as afore mentioned, the standard compensation was of Rs 50,000)
is 171 with the base year being 1982 (having being indexed at 100). The said
index chart with base year 1982, ranges from 1988 to 2005. Indexes from
2006 onwards have been fixed by the Labour Bureau with base year 2001
(having being indexed at 100). To integrate i.e to link the new series of CPI
(IW) with base year 2001 and previous series , with base year 1982, the
Bureau has fixed the linking factor at 4.63. Therefore, to arrive at index
numbers from 2006 onwards with base year 1982, the original values as
provided for in the new series are multiplied with the link factor of 4.63.
71. In the present case, the index for the year January 2011, is 188 (with
base year 2001). To arrive at the index value for January 2011 with base
year 1982 , the said index of 188 is multiplied by 4.63 , which comes to 870.
Therefore, the standard compensation, as per inflation corrected value comes
to (50,000×870/171)= Rs 2,54,385.97
72. As far as the pecuniary compensation is concerned, the appropriate
multiplier is taken from the MV Act, the last drawn wages as claimed by the
petitioners no 1 to 7 is used for calculating the multiplicand. It is relevant to
mention here that respondent no 2 has simply made a bald denial of the last
drawn wages without putting anything on record to prove the contrary.
73. Accordingly, the total compensation as per Kamla Devi (supra) is
calculated as under:

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74. I may observe that the amount granted to petitioner no 3 and
petitioner no 7 is more than what they have claimed. The said discrepancy
has arisen because , in their claim, they seem to have taken the wrong
multiplier while calculating the amount of compensation.
75. As far as the quantum of compensation to be granted to petitioner
no.8, who has been injured in the accident, this court will base its
compensation based on the guidelines provided by the Supreme Court in Raj
Kumar V Ajay Kumar & Anr 2011 (1) SCC 343, though dealing with a case
of motor accident, the court considered the “General Principles relating to
compensation in injury cases”. It was observed as under:
“ General principles relating to compensation in injury cases
5….. The object of awarding damages is to make good the loss
suffered as a result of wrong done as far as money can do so,
in a fair, reasonable and equitable manner. The court or
tribunal shall have to assess the damages objectively and
exclude from consideration any speculation or fancy, though
some conjecture with reference to the nature of disability and
its consequences, is inevitable. A person is not only to be
compensated for the physical injury, but also for the loss
which he suffered as a result of such injury. This means that
he is to be compensated for his inability to lead a full life, his
inability to enjoy those normal amenities which he would have
enjoyed but for the injuries, and his inability to earn as much as
he used to earn or could have earned. (See C.K. Subramonia
Iyer v. T. Kunhikuttan Nair : AIR 1970 SC 376, R.D.
Hattangadi v. Pest Control (India) Ltd. : 1995 (1) SCC 551 and
Baker v. Willoughby 1970 AC 467.
6. The heads under which compensation is awarded in personal
injury cases are the following:
Pecuniary damages (Special Damages)
W.P.(C) 5812/2011 Page 43 of 49


(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous
expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence
of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded
only under heads (i), (ii)(a) and (iv). It is only in serious cases
of injury, where there is specific medical evidence
corroborating the evidence of the claimant, that compensation
will be granted under any of the heads (ii)(b), (iii), (v) and (vi)
relating to loss of future earnings on account of permanent
disability, future medical expenses, loss of amenities (and/or
loss of prospects of marriage) and loss of expectation of life.
7.Assessment of pecuniary damages under item (i) and under
item (ii)(a) do not pose much difficulty as they involve
reimbursement of actuals and are easily ascertainable from the
evidence. Award under the head of future medical expenses -
item (iii) -- depends upon specific medical evidence regarding
need for further treatment and cost thereof. Assessment of non-
pecuniary damages - items (iv), (v) and (vi) --involves
determination of lump sum amounts with reference to
circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant and the
effect thereof on the future life of the claimant. Decision of this
Court and High Courts contain necessary guidelines for award
under these heads, if necessary. What usually poses some
difficulty is the assessment of the loss of future earnings on
W.P.(C) 5812/2011 Page 44 of 49


account of permanent disability - item (ii)(a). We are concerned
with that assessment in this case.”
76. In Oriental Insurance Company Ltd v V.S Vijay Kumar Mittal ,
2008 ACJ 1300 , this Court discussed the principles relating to the award of
non-pecuniary compensation towards pain and suffering, loss of amenities
of life and disfiguration. This Court examined all the previous judgments
with respect to the non-pecuniary compensation awarded in the case of
permanent disability and held that the courts have awarded about
`
3,00,000/- under the heads of non-pecuniary damages for permanent
disability of 50% and above. The findings of this Court are as under:-
“ 10. The possession of one's own body is the first and most
valuable of all human rights and while awarding compensation
for bodily injuries this primary element is to be kept in mind.
Bodily injury is to be treated as a deprivation which entitles a
claimant to damages. The amount of damages varies on
account of gravity of bodily injury. Though it is impossible to
equate money with human suffering, agony and personal
deprivation, the Court and Tribunal should make an honest and
serious attempt to award damages so far as money can
compensate the loss. Regard must be given to the gravity and
degree of deprivation as well as the degree of awareness of the
deprivation. Damages awarded in personal injury cases must
be substantial and not token damages.
11. The general principle which should govern the assessment
of damages in personal injury cases is that the Court should
award to injured person such a sum as will put him in the same
position as he would have been in if he had not sustained the
injuries.
12. Broadly speaking, while fixing an amount of compensation
payable to a victim of an accident, the damages have to be
assessed separately as pecuniary damages and non pecuniary
W.P.(C) 5812/2011 Page 45 of 49


damages. Pecuniary damages are those which the victim has
actually incurred and which is capable of being calculated in
terms of money. Whereas, non pecuniary damages are those
which are incapable of being assessed by arithmetical
calculations.
13. Pecuniary loss may include the following:
(i) Special damages or pre-trial pecuniary loss.
(ii) Prospective loss of earnings and profits.
(iii) Medicinal expenses.
(iv) Cost of future care and other expenses.
14. Non pecuniary loss may include the following:
(i) Pain and suffering.
(ii) Damages for mental and physical shock.
(iii) Loss of amenities of life which may include a variety of
matters i.e. on account of injury the injured may not be able to
walk, run or sit etc.
(iv) Loss of expectation of life i.e. on account of injury normal
longevity of the life of the person concerned is shortened.
(v) Disfigurement.
(vi) Discomfort or inconvenience, hardship, disappointment,
frustration and mental stress in life”.
77. This court has also taken note of the above judgements and granted
compensation in accordance with the same in Harinder Kaur v Add. District
and Sessions Judge and Ors 2012 (131)DRJ 63.
78. Therefore, Petitioner no 8 is granted the following amounts under
Pecuniary and non pecuniary damages:

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79. It is pertinent to mention here that the petitioner no 8 has put nothing
on record to substantiate his claims under A(i). Claim under A(ii) and A
(iii) is calculated based on his last drawn wages .However, following claims
has not been objected to by the respondents, therefore, the same is taken as it
is claimed. Though as can be ascertained from the F.I.R that he has suffered
80%-90% burn according to MLC No 11256/11, and therefore, the
compensation under A(iii) should be higher, if we assume, that the effect of
the disablement on the petitioner on his actual future earning capacity should
be at least more than 50%. But the petitioner himself has claimed “20%
presumptive permanent disability taken on account of 80%-90% burn
injuries as per F.I.R”, it is granted accordingly . The Court in Vijay Kumar
Mittal (supra) cited various examples from decided cases wherein non
pecuniary damages had been awarded in varied circumstances. These
instances show that in cases of bodily injury, the non pecuniary damages
have varied between Rs 2.80 lakhs to Rs 4 lakhs. Thus, the claim of
petitioner no 8 under non pecuniary damages seems to be justified and the
same is awarded accordingly.
80. It goes without saying that the same is without prejudice to the
petitioners to claim additional compensation, if they are so entitled in law, in
other appropriate proceedings. The compensation that may have already
been received, or that may be realized under this judgment would be
adjusted against any further compensation to which they are held entitled to.
It shall be open to the petitioners to realize the compensation from either of
the respondents.
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81. The petitioners shall be entitled to an interest @7.5% p.a from the
date hereof till the date of realization of the amount.
82. So far as the petitioner’s plea that this court should direct the framing
of a scheme for compensation to the victims is concerned, I am not inclined
to issue any such direction in the present writ petition, as I am concerned
with the specific disputes raised in the present petition. If the petitioners are
so minded, it is open to them to initiate appropriate public interest petition in
that respect.

83. Petition stands disposed of in the aforesaid terms.

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