W.P. (C) No. 3499/2005 1

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ WRIT PETITION (CIVIL) NO. 3499 OF 2005

Reserved on : 3

rd December, 2009.

% Date of Decision : March 26th

, 2010.

NAGRIK SANGARSH SAMITI & OTHERS ….. Petitioners

Through Mr. A Guneshwar Sharma and Mr. Devanand, Advocates.

VERSUS

UNION OF INDIA & OTHERS ....Respondents

Through Ms. Sweta Kakkad, Mr. Ankit Bhutani, Mr. S.K. Dubey and Mr. Vanshdeep Dalmia, Advocates for UOI. Ms. Maninder Acharya, Advocate for respondent No. 4. Ms. Zubeda Begum & Ms. Sana Ansari, Advocates for GNCTD (respondent nos. 5-7.)

CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ?

SANJIV KHANNA, J.:

1. On 14th September, 2004 at about 7 p.m. fire engulfed

property No. A-27, Gali No. 7, Brij Puri, Delhi. Thirteen persons

died in the said incident and six persons sustained injuries.

Nagrik Sangharsh Samiti, an association of the victims of the fire

tragedy, has filed the present writ petition for payment of

W.P. (C) No. 3499/2005 2

compensation and damages to the dependants and legal heirs of

the victims who had lost their lives in the said fire and for

compensation/damages to six persons who had sustained

injuries. They have prayed for proper investigation to ensure that

the culprits responsible for the said fire are punished and to direct

the respondent authorities to ensure that no illicit business of

petrol/diesel or highly inflammable chemicals is carried out

contrary to the law.

2. Union of India, Government of NCT of Delhi, Commissioner

of Police and Municipal Corporation of Delhi, through

Commissioner are respondent Nos. 1 to 4 respectively.

Respondent Nos. 5 to 7 are Kaushlya Devi, Mr. Harish Arora and

Mr. Satish Arora being the wife and two sons of late Mohan Lal,

who died as a result of the said fire.

3. In the counter affidavit filed by respondent Nos. 5 to 7, they

have admitted that late Mohan Lal was carrying on business of

sale of petrol/diesel and other combustible chemicals in Brij Puri,

Delhi for the last ten years. They have also admitted that on 14th

September, 2004 at about 7.12 p.m. fire broke out in the depot

where petrol/diesel and other combustible commodities were

stored. It is however stated that Mr. Mohan Lal also died in the

said fire and despite all care, precautions and safety measures

taken by him fire had broken out due to a short circuit. The said

respondents have denied for want of knowledge that twelve

persons had died in the said fire and some others were injured.

4. The fire incident on 14th

September, 2004 leading to death

of twelve persons and injuries to six others has been established

and proved beyond any doubt. The petitioners along with the writ

petition have filed copy of post mortem reports in respect of the

twelve deceased. As per the post-mortem report, the cause of

W.P. (C) No. 3499/2005 3

death has been stated to be septicemia upon burn injuries with

persons suffering burns on their body. The injuries have been

stated to be ante-mortem caused due to flames of fire. They have

also filed copies of death certificate in ten cases. The respondent

No. 2, Government of NCT of Delhi along with their counter

affidavit filed on 17th

November, 2005 has enclosed a list of

persons, who had died in the fire incident of 14th

September,

2004. The said list mentions names of thirteen persons including

late Mohan Lal and also gives details of compensation paid to the

dependants of the said persons by the Delhi Government and

from the Prime Minister‟s National Relief Fund. Delhi Police along

with their counter affidavit has filed copy of magisterial inquiry

report dated 8th October, 2004 conducted by Deputy

Commissioner (East Delhi). As per the findings recorded in the

said report, on 14th

September, 2004 at about 1910 hours,

information was received in the Control Room Delhi Fire Service

and Police Control Room about fire in a shop/godown, which was

later on identified as area, 27A, Gali No. 7, Brij Puri, Khureji Khas,

Delhi. In the said property, petrol/diesel and other inflammable

chemical materials had been stored, which had caught fire. The

report records that six drums of inflammable materials and burnt

chemicals were collected from the spot and sent to the forensic

laboratory for tests. This report states that twenty persons were

affected by serious burns all over upto 70% (Annexure C to the

report: The said report gives details of percentage of burns

suffered by each victim and whether or not the said victim had

expired, was under treatment or discharged.) It is stated that

some of these persons had succumbed to their injuries. Deputy

Commissioner (East Delhi) had recorded statements of various

persons during the course of enquiry and had come to the

W.P. (C) No. 3499/2005 4

conclusion that the said premises was being used for the sale of

inflammable material contrary to law which caught fire and

resulted in burn injuries and even death. He has held that the said

trade was being run for over ten years. Other findings of the

report have been referred to in other paragraphs of the judgement.

5. In view of the aforesaid position, it is established beyond

pale of doubt that on 14th September, 2004 at about 7 p.m.

inflammable chemicals and petrol/diesel caught fire in premises

No. A-27, Gali No. 7, Brij Puri, Delhi in which the following persons

had died or had sustained injuries:-

S.

No

Victim

Name

Age/ Sex

Father‟s

Name

Address %

Burn

s

Status

1. Ansar Ahmed

35/

M

Nisar Ahmad

C-19/20, New Brij Puri Parwana Road Delhi.

55% Expired 18.9.04

2. Md. Saeed 35/

M

Gulam Mohd.

19A, Old Brij Puri, Parwana Road, Delhi

45% Expired 21.9.04

3. Md. Raees 27/

M

Jan Mohd. B-38/4, Old Brij Puri, Parwana Road, Delhi

75% Expired 17.9.04

4. Md. Yunus 40/ Chhiddu Pahalwan

B-31, Gali

55% Expired 19.9.04

W.P. (C) No. 3499/2005 5

M No.7, Old Brij Puri, Parwana Road, Delhi

5. Md. Asif 18/

M

Md. Faiyyaz

170, Village Khureji, School Wali Gali, Delhi

85% Expired, 18.9.04

6. Md. Subhan

17/

M

Md Irfan 11, Shahi Masjid, Rashir Market, Delhi

50% Expired, 18.9.04

7. Deepika 10/

F

Raj Kumar Malhotra

A-27, Gali No 7, Old Brij Puri, Parwana Road, Delhi

75% Expired, 27.9.04

8. Sahil Malhotra

13/

M

Raj Kumar Malhotra

A-27, Gali No.7, Old Brij Puri, Parwana Road, Delhi

70% Expired 28.9.04

9. Md Qamar 9/

M

Md Mazdar A-32, Gali No.7, Old Brij Puri, Parwana Road, Delhi

98% Expired, 18.9.04

W.P. (C) No. 3499/2005 6

10. Md. Haroon

26/

M

Yaseen 118, Village Khureji Khas, near Jama Masjid, Delhi

75% Expired 18.9.04

11. Mrs. Farida 45/

F

w/o Md Farhatullah

27, Gali No.7, Old Brij Puri, Parwana Road, Delhi

70-

75%

Expired 17.9.04

12. Md. Amir 11/

M

Md. Farhatullah

27, Gali No7, Old Brij Puri, Parwana Road, Delhi

60% Expired 19.9.04

13. Devraj 35/

M

Laxman Dass

C-5, Gali No. 5 New Govind Pura, Delhi

- The petitioner in their additional affidavit have stated that he could not be contacted but had incurred some burn injury.

14. Md Ubaid 10/

M

Md Haroon 32, Gali No 7, Old Brij Puri, Parwana Road, Delhi

81% Permanent Disability Certificate records that he is suffering from post burn

W.P. (C) No. 3499/2005 7

contracture in all four limbs and his permanent disability is of 81%.

15. Harsh Khurana

24/

M

O.P Khurana

E-18, new Gobind Pura, Parwana Road, Delhi

67% Disability certificate records 67% in relation to both upper limbs which is not likely to improve.

16. Vishal 7/

M

Tilak Raj A-27, Gali No.7, Old Brij Puri, Parwana Road, Delhi

8-

10%

-

17. Sarfaraj 32/

M

Abdul Gafoor

B-41, Gobind Pura, Parwana Road, Delhi

20-

22%

-

18. Shamshad Ali

30/

M

Ali Ahmad B-49, New Gobind Pura, Delhi

14% Disability certificate records that he is a case of post burns amputation (removal of index finger) There is

W.P. (C) No. 3499/2005 8

14% disability in relation to his upper limb which is not likely to improve.

6. Thus, the causal connection between the fire incident and

the death of twelve victims (late Mohan Lal is the 13th

victim) and

the injuries sustained by six others in the list mentioned above has

been established. It has also been established that highly

inflammable chemicals, petrol/diesel were stored in the premises

No. A-27, Gali No. 7, Brij Puri, Delhi. The magisterial inquiry

report, the FIR, statement of witnesses confirm the vending of

petroleum/chemicals and other combustible products from the

place of incident. Further, Respondent Nos. 5 to 7 have admitted

that late Mohan Lal was selling and dealing with inflammable

chemicals/petrol/diesel from the property for last more than last

ten years. There is some dispute whether respondent No. 7, Mr.

Satish Arora was a partner with late Mohan Lal and was

conducting the said business. This aspect need not be examined

in the present writ petition.

7. It is an admitted position that the said trade/sale of

inflammable and combustible material was being carried on

without the permission from the concerned authorities, contrary to

the provisions of the Petroleum Act, 1934 and Rules 116, 117 and

122 of the Petroleum Rules, 2002. The aforesaid Rules provide

as under:-

W.P. (C) No. 3499/2005 9

“116. License for storage- Save as provided in sections 7,8 & 9 of the Act no person shall store petroleum except under and in accordance with a license granted under these rules: Provided that no license shall be necessary-

(i) For the storage of petroleum in well head tanks; or

(ii) For the storage of petroleum as transit cargo within

the limits of a port subject to the conditions as

maybe prescribed by the Conservator.

117. Precautions against fire- (1) No person shall smoke in any installation, storage

shed or service stations save in places specially

authorized by the licensing authority for the

purpose.

(2) No person shall carry matches, fuses or other

appliances capable of producing ignition or

explosion in any installation or storage shed, which

is used for the storage of petroleum.

(3) No fire, furnace or other source of heat or light

capable of igniting inflammable vapour shall be

allowed in any installation, storage shed or service

station save in places specially authorized by the

licensing authority for the purpose.

(4) (i) An adequate number of portable fire-

extinguishers capable of extinguishing oil tires

shall always be kept in every installation, storage

shed and service station at strategic point and all

persons employed in such installation, storage

shed and service station shall be conversant with

the use of such fire-extinguishers.

(ii) Scale of fire fighting provided in other areas

should be as per the requirement given to OISD

Standard-117 for all installation approved by the

Chief Controller after publication of the original

standard OISD-117. For installation existing prior

to the publication of the standard the fire fighting

facilities shall be improved to the extent feasible

W.P. (C) No. 3499/2005 10

(keeping this standard in mind) and approved by

the Chief Controller.

122. Petroleum only to be stored- No installation, service station or storage shed shall, without permission in writing from the Chief Controller be used for any purpose other than the storage or distribution of petroleum and for purposes directly connected therewith.”

8. Admittedly, no licence had been procured for sale of

petroleum from the premises and the respondents have not

placed any material to show and establish that they had taken

proper precautions prescribed under Rule 117. Rules 4, 5, and 6

of the Petroleum Rules, 2002 prescribe quality and the type of

containers in which petroleum products of different classes can be

stored.

9. Petroleum or inflammable chemicals, it is well known, carry

inherent risk and are innately dangerous and hazardous.

Possibility of fire and loss of life as a result thereof is a well known

and accepted peril associated with the said activity. When an

enterprise is engaged in activity, which is inherently dangerous

and poses potential threat to health and safety of others, the

enterprise is held to be absolutely liable for compensation in case

of any harm or damage. The duty in this regard is absolute and

not delegable. The enterprise engaged in hazardous and

dangerous activity is liable to indemnify and is responsible to all

persons who suffer any loss or damage irrespective of whether

the enterprise had taken reasonable care and caution. In these

circumstances, the principle of strict liability as propounded in

Ryland versus Fletcher, (1868) LR 3 HL 330 is applicable. As per

the said principle, when a person allows or puts his land to non

W.P. (C) No. 3499/2005 11

natural use, which is likely to cause mischief is responsible and

answerable for the damage caused to public at large as a

consequence of the said use. (Refer, Jaipur Golden Gas Victims

Association versus Union of India and Others, 164 (2009) DLT

346 (DB) and other cases referred to in the said judgment).

Referring to the said principle in M.C. Mehta and Another versus

Union of India and Others, (1987) 1 SCC 395 it was observed:-

“31. ……….we are of the view that an enterprise which is engaged in 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 has taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for 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

W.P. (C) No. 3499/2005 12

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-à-vis the tortious principle of strict liability under the rule in Rylands v Fletcher (supra).”

10. In Union of India versus Prabhakaran Vijya Kumar and

Others, (2008) 9 SCC 527, the aforesaid principle was reiterated

holding, inter alia, that the doctrine of strict liability focuses on the

nature of the activity rather than proof of negligence. When a

person undertakes activities which are hazardous and constitute

danger to others, the permission to undertake the activity is

conditional upon the person undertaking the activity indemnifying

and paying costs of all accidents irrespective of its cause. The

question of negligence, reasonable care, etc., are not valid

defences in such cases. It was observed:

“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

W.P. (C) No. 3499/2005 13

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 4

th Edn. p.267).

25. As pointed out by Clerk and Lindsell (see „Torts‟, 14

th 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 wrong-doer 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…..”

11. In these circumstances, respondent Nos. 5 to 7 are held

liable and are responsible to pay compensation for loss or

damage caused due to the said activity and thereby the accident.

They cannot escape liability by merely pleading that adequate

care and precaution had been exercised especially in the absence

of any material or evidence placed on record to show and

establish that care and caution was taken. The said respondents

have not filed and referred to specific safeguards and precautions

taken to prevent such incidents. The admitted position is that

requisite permissions and approvals were not taken before

conducting the said trade, which is inherently dangerous and

hazardous.

12. By the order dated 27th September, 2007, respondent No. 5

to 7 were restrained from parting with possession or in any

manner selling or transferring property being shop No. 28, Ground

Park, South Anarkali (Juice and Confectionary Corner) and house

W.P. (C) No. 3499/2005 14

No. 49 B, Gali No. 2, Shyam Nagar, New Govindpura, Delhi. It

appears that after the fire incident the property in question, viz., A-

27, Gali No. 7, Brij Puri, Delhi was sealed. Subsequently, it was

ordered to be de-sealed vide order dated 22nd

September, 2006.

Respondent Nos. 5 to 7 had filed two applications CM Nos.

16004 and 16005 for vacation of the interim order passed on 27th

September, 2007. In the applications it was stated that property

No. A-27, Gali No. 7, Brij Puri, Delhi and 49-B, Gali No. 2, Shyam

Nagar, Delhi were self acquired properties of late Mr. Girdhari lal

father of late Mr. Mohan Lal. It was further stated that after the

death of Mr. Girdhari Lal, the said two properties were inherited by

his wife Ms. Shanti Devi, who is also the mother of late Mohan Lal.

No copy of Will of late Mr. Girdhari Lal has been placed on record.

Under the Hindu Succession Act, 1956, the two properties were

also inherited by late Mr. Mohan Lal son of late Girdhari Lal.

Further, it is admitted in the applications that Ms. Shanti Devi had

allowed Mr. Mohan Lal to use the property No. A-27, Gali No. 7,

Brij Puri, Delhi as a godown and for sale of petroleum products

and inflammable chemicals. It is also stated that shop bearing no.

28 Govind Park, South Anarkali, Delhi was property owned by

Harish Arora s/o Late Mohan Lal. The respondent Nos. 5 to 7 are

therefore, liable to pay compensation to the extent they have

inherited the estate left behind by late Mr. Mohan Lal, viz. property

Nos. A-27, Gali No. 7, Brij Puri, Delhi and 49 B, Gali No.2, Shyam

Nagar, New Govindpura Delhi and the entire estate left behind

him.

12. The magisterial inquiry report dated 8th October, 2004 has

also examined the question of responsibilities and lapses by the

authorities. It has been categorically found that late Mohan Lal

was conducting the said trade in petroleum products and

W.P. (C) No. 3499/2005 15

inflammable chemicals for a period of ten years prior to the

incident. There are also findings that local beat constable and

other senior officers in the police station were aware and had

knowledge about sale of petroleum products and chemicals by

late Mohan Lal and others. The magisterial inquiry report

mentions earlier incidents when fire had occurred in 1996, 1999

and 2003 on account of illegal retail vending of petrol, kerosene,

thinner, etc. Delhi Police in their counter affidavit has admitted

that disciplinary action has been taken against some police

officers. Clauses (b), (c), (f), (m), (n) of Section 60 of Delhi Police

Act, 1978 stipulate as under:-

“60. Other duties of a police officer- (b) to the best of his ability, to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to lay such information and to take such steps consistent with law and with the order of his superiors as shall be best calculated to bring offenders to justice and to prevent the commission of cognizable and, within his view, of non-cognizable offences. (c) to prevent to the best of his ability the commission of public nuisances. (f) to prevent the breach of the public peace. (m) to use his best endeavours to prevent any loss or damage by fire. (n) to use his best endeavours to avert any accident or danger to the public.”

13. Further Commissioner of Police/Deputy Commissioner of

Police are district authority under Rule 2(x) of the Petroleum

Rules, 2002, which reads as under:-

W.P. (C) No. 3499/2005 16

“Rule 2(x) “District Authority” means- (a) in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police; (b) In any other place, the District Magistrate;”

14. Under Rule 160 of the Petroleum Rules, 2002, the District

authority is under the obligation to inform the Chief Controller of

the action taken by him on any reports of infringements of the Act

or Rules. In view of the aforesaid position, the Delhi Police has to

share the blame and responsibility for the said incident.

15. Similarly, Municipal Corporation of Delhi, respondent No. 4

is also responsible and liable. Section 42(I) of the Delhi Municipal

Corporation Act, 1957 (DMC Act for short) imposes the following

obligation:-

“42. Obligatory functions of the Corporation- Subject to the provisions of this Act and any other law for the time being in force, it shall be incumbent on the Corporation to make adequate provision by any means or measures which it may lawfully use or take, for each of the following matters, namely:- (l) the regulation and abatement of offensive of dangerous trade or practices;”

16. In this regard, it may be appropriate to reproduce below the

findings recorded in the Magisterial inquiry:-

“35. The section 417 of the DMC Act 1957 provides that no person shall use or permit to be used any premises for storing any of the articles specified in part II of the Eleventh Schedule of Act except for domestic use. At entry no.74 of the schedule is listed Petroleum, other than dangerous petroleum as defined in the Petroleum Act 1934 & Thinners at entry no. 91. The schedule also list number of chemicals for whose storage permission u/s 417 of DMC is required. In case of violation of the aforesaid

W.P. (C) No. 3499/2005 17

section, Section 419 of the DMC Act 1957 empowers the Commissioner to stop the use of such premises by such means, as he considers necessary for enforcing provisions of section 417 of the DMC Act. 36. Dy. Municipal Commissioner Shahdara South who appeared before the Inquiry officer has mentioned that there is full fledged unit of licensing deptt.in the zonal office. The licensing unit is headed by an officer of the rank of Asstt. Commissioner who is responsible for enforcement of provisions u/s 417 of the DMC Act, 1957. Statement of Asstt. Municipal Commissioner Shahdara South has been recorded. The Asstt. Commissioner is assisted by Zonal Suptd, Chief licensing inspector and area licensing inspectors who have jurisdiction municipal ward wise assigned to them. One of the duties of the licensing unit is to ensure provisions of section 417 of DMC Act. To quote from the statement of Asstt. Commissioner recorded on 28.9.04 “….that I have no knowledge about the policy of license of storing. Due to not submission of any report in written shape from CLI, I could not submitted such inspection report….”(Annexure D). Asstt. Commissioner was unable to confirm, if he has any knowledge about the licensing of the godown under DMC Act. Till the date of recording of his statement on 28.9.04, the Asstt. Commissioner had not visited the site of incident nor bothered to carry out corrective measures required to be taken by the licensing unit. The Asstt. Commissioner again appeared before the inquiry office on 1.10.04 and submitted a list of 40 addresses. As per his report, at all of these 40 addresses only automobile lubricants are being sold and no inflammable product like kerosene, diesel, petrol were found there. As per report of the Asstt. Commissioner, aforesaid survey was carried out between 28 Sept to 30 Sept,04 and is in pursuance of the request sent by the

W.P. (C) No. 3499/2005 18

inquiry officer to the Dy. Municipal Commissioner Shahdara South to have a quick survey of the area to ascertain if any such hazardous trade is being carried out in the area. Though there has been statements by independent witnesses that there has been unauthorized and illegal sale of kacchha petrol, the MCD survey could not find any such instance. 37. Statement of Chief licensing Inspector Shahdara South MCD and licensing Inspector have also been recorded. The Chief licensing inspector surprisingly in his statement has stated that he does not have any knowledge about godown and storage license under DMC Act (Annexure E). Similar statement has also been made by the licensing inspector. The Chief Licensing Inspector visited the site at much later. Till the time of recording of statement on 28.9.04, no written record of the incident was prepared by MCD nor any corrective steps taken. 38. Ignorance posed by the officers of licensing unit Shahdara South and inaction on their part is a serious matter and cannot be ignored. Officer responsible for enforcement of statutory provisions of law cannot absolve themselves for non performance. It is difficult to condon (sic) such omissions particularly when human lives are involved.”

17. Learned counsel appearing for MCD relying upon the

Petroleum Act, 1934 had submitted that the articles and trade

undertaken by late Mohan Lal are not specified in Part I and Part

II of the 11th

Schedule of the DMC Act and, therefore, there was

no lapse on the part of MCD. Secondly, it is also alleged that late

Mohan Lal was clandestinely carrying on the said trade. The

W.P. (C) No. 3499/2005 19

second contention has to be rejected for the reason that the

concerned authorities cannot plead ignorance as an excuse for

statutory mandates, which they are duty bound to enforce and

comply; for the security and safety of all. Secondly, the trade was

being carried on for nearly ten years before the incident took place

and it is difficult to accept that MCD or their officers were not

aware. The findings recorded by the magisterial inquiry are also

to the contrary. Even the first contention is without merit because

the trade carried on by late Mohan Lal was dangerous to life,

health and property and was likely to cause nuisance and,

therefore, is covered by Section 417 Clause (b). The said clause

does not require reference and inclusion in Part I and II of the 11th

Schedule. Even if it is presumed that the articles of trade stored

and sold from the premise are not covered in Part II or Part I of the

11th

Schedule, MCD will be responsible and liable. Part I of the

11th

Schedule deals with the purpose for which the premises can

be used and the requirement to obtain a licence. Part II deals with

storage of articles specified in the said Schedule. Petroleum other

than dangerous petroleum are listed at item No. 74 of Part II.

Thinner is also listed in Part II item No. 91. There is also an

allegation that late Mohan Lal was dealing with automobile

lubricants which again require a licence. The charge sheet and

the FIR also record that late Mohan Lal used to store and sell

petrol/thinner. MCD in their counter affidavit have themselves

stated that late Mr. Mohan Lal had stored petroleum/chemical

products.

19. Maintainability of the present Writ Petition is beyond doubt

in the light of the judgment of the Supreme Court in the case of

Lata Wadhwa versus State of Bihar (2001) 8 SCC 197. The

Delhi High Court in the Association of Victims of Uphaar

W.P. (C) No. 3499/2005 20

Tragedy versus Union of India 104 (2003) DLT 234 (DB) and in

Jaipur Golden Gas Victims versus Union of India 164 (supra),

has held where there was breach of a statutory duty on the part of

the respondent authorities and there was lack of care on behalf of

others, a writ petition would be maintainable.

20. Learned counsel for the private respondents 5 to 7 has

placed reliance on Dharampal versus DTC 2008 III AD (Delhi)

178. In the said case the High Court had refused to entertain the

Writ Petition as there were factual disputes on the question

whether the respondents therein were negligent. The deceased

had died as a result of electrocution while residing in the

accommodation allotted to him by DTC. Why and how the

electrocution was caused was uncertain. It was noticed that claims

of compensation on account of negligence in cases of

electrocution were not entertained in a writ petition. However, in

the present case, negligence on the part of the respondents is

established beyond doubt. Negligence implies failure to exercise

due care expected from a prudent person. In Black‟s Law

dictionary, negligence has been defined as breach of duty or lack

of proper care in doing something. In short, it is doing something

which a prudent or reasonable man would or would not do. To

establish claim for damages under tort of negligence, three

requirements are required to be satisfied: (i) existence in law,

duty to take care. The claim must belong to class of persons who

have accountable right against the claimants on account of failure

to take care (ii) there is breach of duty to take care and failure to

live upto the standard required by law; and (iii) causal connection

between failure to take care and the resultant damage. The said

W.P. (C) No. 3499/2005 21

conditions are satisfied in the present case. Question of

negligence and strict liability has been dealt with above.

21. In the cases of death, the dependents are entitled to be

compensated for (i) pecuniary loss of dependency and (ii) Non-

Pecuniary loss i.e. standard compensation or conventional

amount for losses such as loss of consortium, loss of parents,

pain and suffering and loss of amenities of life. Pecuniary loss of

compensation is determined by applying the multiplier method

which has been accepted as legally sound and the correct legal

method for determining compensation by the Supreme Court in

Lata Wadhwa versus State of Bihar (supra) by the Delhi High

Court in the Association of Victims of Uphaar Tragedy versus

Union of India (supra) and in Jaipur Golden Gas Victims

versus Union of India (supra). Most of the deceased above the

age of 15 years were self-employed and were not mere

vagabonds who were not interested in working and earning

livelihood. In cases of self-employed persons engaged in

professions like carpenters, plumber, embroidery work, etc. it is

difficult to furnish proof of exact income and earning. However,

these persons earn more than the minimum income prescribed for

unskilled workers under the Minimum Wages Act, 1948. Some

amount of guess work is, therefore, required to compute their

annual income, keeping in mind normal earning of such workers in

Delhi.

21-A. In Kamla vs Govt. of NCT 2005 ACJ 216 and Kishan Lal

& Others Vs Govt. of NCT & Others, Writ Petition (Civil) No.

5072/2005 decided on 3rd

July, 2007 this Court had calculated the

non-pecuniary loss by taking the consumer price index for

industrial worker (CPI (IW) (source labour bureau Govt. of India)

W.P. (C) No. 3499/2005 22

with base year 1982 (=100)m the average CPW (IW) for the year

1989 was 171 and for January 2005 was 526. Due to inflation

corrected value of Rs. 50000/- in 1989 would work out to

Rs.1,53,802 in January,2005. Hence non pecuniary loss can be

taken as Rs.1,53,801/-.

Applying the multiplier method, compensation payable is

computed as under:-

1. Farida

Age- 45 yrs. Occupation- Ladies Suit Tailor. However suitable addition has been made she was also a house wife. Dependants - Husband and four daughters (two of marriageable age) Annual Income - Rs. 48,000/- per annum. After deducting 1/3

rd for personal expenses, dependency is

taken as Rs. 32000/-

Multiplier of 14 is applied as the age of the deceased was

45 years : Rs. 32000 x 14 = 4,48,000 /-

Total compensation = Rs. 4,48,000 + 1,53,801 i.e.

Rs.6,01,801/-.

Compensation shall be equally divided amongst the

husband and the two daughters.

2. Md. Raees

Age - 27 yrs. Occupation - Embroidery Work Income - Rs. 60000/- per annum

W.P. (C) No. 3499/2005 23

Dependants-Parents and two sisters aged about 16 and 17

years,

After deducting 1/2 for personal expenses, dependency is

taken as Rs. 30000/- per annum.

Multiplier 13 is applied in view of the age of the parents and

sisters : Rs. 30000 x 13 = 3,90,000/-

Non pecuniary loss, as discussed above, : Rs. 1,53,801/- Total Compensation = Rs. 3,90,000 + Rs. 1,53,801 =

Rs. 5,43,801/-

Parents will equally share 60% of the above compensation

amount and the balance 40% will be equally divided

between the sisters.

3. Md. Asif

Age - 18 yrs. Occupation - Steel fabricator Income – Rs. 50,000/- per annum Dependants - Father 52 years and Mother 45 years. After deducting 50% towards personal expenses,

dependency is taken at Rs. 25,000/- per annum.

Multiplier 14 is applied in view of the age of the parents : Rs.

25,000 x 14 = Rs. 3,50,000/-

Non pecuniary loss, as discussed above : Rs. 1,53,801/- Total Compensation = Rs. 3,50,000 + Rs. 1,53,801 = Rs. 5,03,801/-.

Compensation will be equally shared by the two parents.

W.P. (C) No. 3499/2005 24

4. Md. Haroon

Age - 26 yrs. Occupation - Driver and also doing embroidery work Income - Rs. 60,000/- per annum. Dependents- Father aged 63 years and mother aged 58 years and two sisters of marriageable age (16 and 18 years). After deducting 50% as personal expenses, dependency is

taken as Rs. 30,000/- per annum. The deceased was bound

to take care of his sisters and settle them. Therefore only

1/3 has been deducted towards personal expenses.

Multiplier 11 is applied in view of the age of the parents :

Rs. 30000 x 11 = Rs. 3,30,000/- Total Compensation= Rs. 3,30,000 + Rs. 1,53,801 =

Rs.4,93,801/-

Parents will equally share 60% of the compensation and the

sisters will equally share the balance 40%.

5. Ansar Ahmed

Age - 35 yrs. Occupation - Repair and Sale of watches Income - Rs. 60,000/- per annum. Dependents - Parents, wife and twin sons (aged 4 years). After deducting 1/4

th for personal expenses, dependency is

taken as Rs. 45,000/- per annum. The deceased had a large

family of parents, wife and children and therefore

dependency has been taken as 75%.

W.P. (C) No. 3499/2005 25

Multiplier of 15 is applied in view of the age of wife and

children : Rs. 45000 x 15 = Rs.6,75,000/-

Total Compensation = Rs. 6,75,000 + 1,53,801 =

Rs.8,28,801/- .

Wife and children will share compensation in the ratio of

35% and 35% each. Parents will equally share the balance

30% of the compensation.

6. Md. Subhan

Age - 17 yrs. (Age is taken as per Post Mortem report) Occupation-Embroidery Work Income- Rs. 48,000/- per annum. (Annual income has been

reduced in view of the age.)

Dependents-Parents (father 47 years and mother 42

years), two sisters (aged 19 and 13) and two brothers (aged

20 and 6 respectively).

After deducting 50% for personal expenses , dependency is

taken as Rs. 24,000/- per annum.(Father was working as a

barber and dependency is taken at 50% keeping in view the

large family).

Multiplier 14 is applied in view of the age of parents,

sisters/one brother : 24000x 14 = Rs.3,36,000/-

Total Compensation = Rs. 3,36,000 + Rs. 1,53,801 =

Rs.4,89,801/-

W.P. (C) No. 3499/2005 26

Parents will equally share 70% of the total compensation.

The two sisters and minor brother will equally share the

balance 30%.

7. Md Qamar

Age - 9 yrs. Dependants - Parents, five sisters and three brothers. Annual Income - 36,000/- per annum. Deducting 50% as personal expenses, dependency is Rs.

18,000/- per annum.

Multiplier 14 is applied: 18000 x 14= 2,52,000/- Total Compensation = 2,52,000 +1,53,801 = Rs.4,05,801/- Parents will equally share the compensation.

8. Md. Yunus

Age - 40 yrs. Occupation - Wood Carvings Income - Rs. 60,000/- per annum Survived by - Wife and eight children (four minor daughters and four minor sons). After deducting 1/5

th for personal expenses, dependency is

taken as Rs. 48,000/- per annum. Dependency has been

taken as 80% in view of the large family.

Multiplier of 15 is applied : 48,000x 15 = Rs.7,20,880/- Total Compensation = Rs. 7,20,880 + Rs. 1,53,801 = Rs.8,73,801/- 50% compensation will be paid to wife and the balance 50%

will be equally divided amongst the children.

9. Md. Amir

Age - 11 yrs. Dependents - Father and two sisters.

W.P. (C) No. 3499/2005 27

Annual Income - Rs. 36,000 per annum. Deducting 1/2 as personal expenses ,dependency is Rs.

18,000/- per annum.

Multiplier 14 is applied : 18000 x 14 = 2,52,000/-. Total Compensation = 2,52,000 + 1,53,801 = Rs. 4,05,801/-. Parents will equally share the compensation.

10. Md. Saeed

Age - 35 yrs. Occupation - Driver of a private bus. Income - Rs. 60000/- per annum. Dependents/survived by- Mother(50 years) Sister (aged 30 and mentally retarded) and brother. After deducting 1/3

rd as personal expenses , dependency is

taken as Rs. 40000 per annum. The deceased was un

married even at the age of 35 years and had a mentally

retarded sister.

Multiplier 13 is applied in view of the age of the mother and

sister : 40000 x 13= Rs.5,20,000/-.

Total Compensation = Rs. 5,20,000 + 1,53,801 =

Rs.6,73,801/-

Mother and mentally retarded sister will equally share the

compensation.

11. Sahil

Age -13 yrs. Dependants - Parents Annual Income taken as- 36,000/- per annum.

W.P. (C) No. 3499/2005 28

Deducting 50% as personal expenses i.e. 18,000/- , thus

dependency comes to Rs. 18,000/- per annum.

Multiplier 14 is applied : 18000 x 14 = 2,52,000/- Total Compensation = 2,52,000 +1,53,801 = Rs. 4,05,801/- Parents will equally share the compensation.

12. Deepika

Age - 10 yrs. Dependents – Parents Annual Income taken as –36000/- per annum. Deducting 50% as personal expenses i.e. 18,000/- , thus

dependency comes to Rs. 18,000/- per annum.

Multiplier 14 as per parents‟ age : 18000 x 14 = 2,52,000/- Total Compensation = 2,52,000 +1,53,801 = Rs.4,05,801/- Parents will equally share the compensation.

23. Compensation payable in cases of disability/injuries

suffered:

1. Mohd. Ubaid, has suffered permanent disability

of 81%. At the time of fire, he was only 9 years old.

Burn scars/marks are visible all over his body

including hands with contractures on cheeks and

head. The petitioners have given different figures

about the total expenditure on medical treatment.

Keeping in view the nature of disability, it will be

difficult for him to even get married. In these

circumstances, compensation of Rs.3.5 lacs is

awarded to him.

W.P. (C) No. 3499/2005 29

2. Mr. Harsh Khurana, age 27 years, as per the

certificate placed on record has suffered permanent

disability of 67% on both upper limbs which is not

likely to improve. Compensation of Rs.2.5 lacs is

awarded.

3. Mr.Shamshad Ahmed, age 32 years, has lost

his right index finger which has been amputated as a

result of the burn injury. As per the disability certificate

issued to him he has suffered permanent disability to

the extent of 14% in relation to right upper limb. The

disability is not likely to improve but is not

progressive. He is awarded compensation of Rs.1 lac.

4. Mohd. Sarfaraz and Mr.Vishal, age 32 years

and 7 years respectively, have suffered burn injuries

of 20-22% and 8-10% respectively, but have not

suffered any permanent disability. They are awarded

compensation of Rs.20,000/- each. Similarly,

Mr.Dheeraj,(who has been referred to as Mr.Devraj at

some places in the writ petition) age 35 years is

awarded compensation of Rs.50,000/- in the absence

of details. As per Annexure-„C‟ to the report of the

Deputy Commissioner East District he had 60%

burns. It is stated that the petitioner association has

not been able to in touch with him. It is however

clarified that in case Mr.Dheeraj @ Devraj so desires,

he will be at liberty to file a separate petition and

substantiate his claim for higher compensation.

24. The respondent Nos. 5 to 7 will be liable to pay 70% of the

compensation amount and the statutory respondents will be liable

W.P. (C) No. 3499/2005 30

to pay the balance 30%, which will be equally shared by the

Government of NCT of Delhi representing Delhi Police, and MCD.

The amounts already received by the dependants from the

Government of NCT of Delhi will be deducted from the amount

due and payable by the Government of NCT of Delhi and then

from the amount payable by MCD. The payments received from

the Prime Minister‟s relief fund, however, will not be deducted as

the said payment has not been made by any of the statutory

respondents, but has been made out of donations/gifts received

from the public from the said fund.

25. The petitioners will be also entitled to interest @ 7.5% p.a.

from the date of filing of the Petition till payment is made.

26. Private respondent nos. 5-7 are given time to make

payment within two months. Till then they shall not sell deal with

or dispose of property no. A-27, Gali No.7, Brijpuri, Delhi, B-49,

Gali No.2, Sham Nagar, Delhi and Shop No. 28, Ground Park,

South Anarkali, Delhi without permission of the Court. In case,

respondent nos. 5-7 do not make payment of their share of

compensation along with interest within two months, the share of

the late Mohan Lal in the properties in question will be sold in

accordance with law.

27. 50% of the compensation amount will be paid to the

dependents of the deceased after verification of papers and

particulars by Registrar (Vigilance).Balance 50% will be kept in

monthly Post Office Scheme or in Bank Fixed Deposits for a

period of six years. The dependants will be entitled to receive the

periodical interest accruing on the said deposit. In case of minor

dependents, the entire compensation amount will be deposited in

a Post Office Scheme or in Bank Fixed Deposits and interest

W.P. (C) No. 3499/2005 31

accruing thereon will be paid to them periodically till they attain the

age of 21 years. On their attaining 21 years of age, 50% of the

compensation amount will be paid to them and the balance 50%

will be paid in equal installments in the next five years thereafter.

In case of difficulty, parties will be at liberty to move an application

and the matter will be posted before the Court for appropriate

orders.

(SANJIV KHANNA) JUDGE MARCH 26, 2010. VKR/P