Karnataka High Court
P.A. Kulkarni And Another vs State Of Karnataka And Another on 18 December, 1998
Equivalent citations: ILR1999KAR869, 1999(1)KARLJ706, AIR 1999 KARNATAKA 284, 1999 (1) KANTLD 244, (1999) ILR (KANT) 869, (1999) 1 KANT LJ 706
Author: R.P. Sethi
Bench: R.P. Sethi, Mohamed Anwar
ORDER R.P. Sethi, C.J.
1. Careless conduct and casual approach adopted by the respondent-State in the matter of fundamental right dealing with life and safety forced the petitioners, belonging to a noble profession of advocates to put off their robes and stand before us as litigants seeking justice for the legal heirs of the dead and compensation for the injured. The deaths and injuries are admitted to have been caused on account of the collapse of a building constructed by the builders by using sub-standard material besides ignoring the structural guidelines and protections. The rolling tears and the soar wailing cries of the victims of the tragedy did not affect the mighty and careless State but did touch the tender hearts of the petitioners, who initiated this action in public interest with prayer for granting appropriate relief to the needy and deserving. This Court has been moved to take appropriate action by the issuance of requisite directions in furtherance of its obligation to protect the fundamental right of life, personal liberty and safety of the people in the country. It is submitted that the State has failed in its obligation to protect the life and safety of the people as enshrined under Article 21 of the Constitution. Right to life, as guaranteed by Article 21 has been acknowledged to be more than survival or animal existence. Such right includes the right to live with human dignity ensuring all aspects of life which go to make a man's life meaningful, complete and worth living. It has cast an obligation upon the State to ensure such right by taking effective legislative and administrative actions as and when required. As the State is alleged to have failed in its obligations as cast upon it under Part III of the Constitution of India, this Constitutional Court which is under oath to protect such rights of the citizens has been approached for relief without caring for the technicalities of law and wrangles of procedure.
2. 118 people are admitted to have died beneath the debris of a multi-storeyed building under construction which collapsed on 12th September 1983 at 3.13 p.m. The aforesaid building was being constructed by one Gangaram abutting Subedar Chatram Road and Ananthashram Road, a busy and commercial area in the city of Bangalore. Besides 118 deaths caused on account of the collapse of the building another 67 persons were seriously injured. The Government of Karnataka ordered a judicial enquiry vide Notification No. HUD 281 MNY 83, dated 8-11-1983 by constituting three-member committee under Section 3 of the Commission of Inquiry Act, 1952 with the following terms of reference:
(i) The cause of the collapse of the Hotel Building under construction at [Gopal] Film Theatre Complex in Bangalore City on 12-9-
1983;
(ii) Whether the necessary licences under the prevailing statutes/rules/regulations had been obtained before the commencement of the construction;
(iii) Whether the concerned licensing authorities had exercised sufficient care and examined the various aspects connected with the issue of the licence before the issue of the same;
(iv) Whether construction had been made as per the sanctioned plan or whether there were any deviations;
(v) To fix responsibility regarding lapses on the part of officials or other persons connected with licensing, supervision and construction;
(vi) Precautionary measures to be taken to prevent the recurrence of such tragedies in future; and
(vii) To examine any other question relevant to the issue and make suitable recommendations.
The Commission submitted its report to the Government on 26th July, 1985. According to the information received by the petitioners, the Commission found that the cause of collapse of the hotel building under construction was the cumulative effect of the following:
(i) Gross underdesign by the structural Engineer;
(ii) Poor co-ordination and lack of proper supervision by the Architect;
(iii) Poor quality materials brought by the owner; and
(iv) Poor quality construction by the Contractors.
The Commission, further, found that the Corporation Officers/Officials of the City of Bangalore were primarily responsible and answerable regarding the lapses for not having insisted on the survey regarding the safety of the existing two storeyed structure to ensure as to whether the said building could hold the burden of additional load of 7 floors and also failing to examine the feasibility of granting the licence with reference to the Zoning Regulation regarding off-street parking, coverage, and Bye-law No. 38 regarding set-back and fire safety measures. The Commission found the following persons responsible for the acts of commission and omission resulting in collapse of building and the death of 118 persons besides injury to 67 citizens:
(i) Mr. Deepak C. Master, Partner, M/s. Master and Associates, Architects of Bombay (who can be reached through) Shri N. Gangaram Gangaram Commercial Enterprises Private Limited, No. 72-73, M.G. Road, Bangalore - 560 001. (ii) Shri H.R. Bhanumurthy, Structural Engineer, (who can also be reached through) Shri N. Gangaram, Gangaram Commercial Enterprises Private Limited, No. 72-73, M.G. Road, Bangalore-560 001. (iii) Shri H.B. Shivakumar, Managing Director, M/s. Digvijaya Engineering Enterprises Private Limited, Contractors (who can also be reached through) Shri N. Gangaram, Gangaram Commercial Enterprises Private Limited, No. 72-73, M.G. Road, Bangalore - 560 001. (iv) Shri N. Gangaram, Employer, Gangaram Commercial Enterprises Private Limited, No. 72-73, M.G. Road, Bangalore - 560 001; and (v) The Licensing Authority, i.e., Bangalore City Corporation, Bangalore.
According to the petitioners the huge loss could have been averted, had the Corporation authorities exercised due care, caution and attention while granting/renewing of the building licence and also had the persons mentioned hereinabove done their job assigned to them with due care, caution and attention. It is contended that all the aforesaid persons were capable of purchasing anything and everything including human lives with their money power and influence. They are shown to have played with the innocent lives of the victims despite being aware that what they were doing was not at all that all right.
3. The Government of Karnataka accepted the report of the Commission of Enquiry on 3rd of July, 1986 and directed:
(i) that criminal proceedings may be launched if not done already against the Architect (M/s. Master and Associates, Bombay), the Structural Engineer (Sri H.R. Bhanu Murthy), the Contractor (M/s. Digvijaya Engineering Enterprises Private Limited) and the Owner (Sri Gangaram) for their respective lapses leading to the collapse of the building;
(ii) all cases relating to grant of licences for construction of buildings exceeding 4 floors (basement plus 4 floors) shall be first considered by an Experts' Committee to be appointed by the Government. No licence shall be granted in respect of such a building unless it is cleared by the Committee. Necessary amendments to the existing law may be made, immediately;
(iii) a separate Official Committee comprising of the Officers concerned shall be constituted by Government to examine quickly the other recommendations made by the Commission of Inquiry in respect of terms of Reference Nos. (vi) and (vii);
(vi) that in view of the observations made by the Commission of Inquiry, disciplinary action be taken against:
(a) Sri V.T. Arasu, the then Superintending Engineer, Bangalore City Corporation (presently working as Chief Engineer, Government of Karnataka);
(b) Dr. K. Rangappa, IAS, former Commissioner of the Bangalore City Corporation;
(c) the persons who had issued the licences right from 1973-74 in respect of this building without any regard for the Zoning Regulations and Building bye-laws.
Disciplinary action was also directed to be initiated against the officers of Engineering Department for the collapse who had submitted their notes leading the orders compounding the deviation made by Dr. K. Rangappa, IAS, the then Commissioner of Bangalore City Corporation, for their failure in bringing out correct facts and provisions of law in their notes. However, no directions were issued and action initiated for compensating the dependants of the victims for the loss of life of their near and dear ones. The dead are reported to be workers who are stated to have left behind their families for starvation, if not duly compensated as the victims of the occurrence were alleged to be only their bread earners. The victims are reported to have been paid meagre amounts of money as an ex gratia payment from the Chief Minister's and Prime Minister's Fund and no compensation for the loss of life or infliction of the injuries suffered and caused on account of the culpable negligence attributable to the persons responsible for the collapse of building as concluded by the Commission of Inquiry. The State is alleged to have failed in initiating any action against the guilty and responsible for the tragedy and in this way failed to perform the obligations enshrined upon it under Article 21 of the Constitution. Relying upon the Bhopal Gas Leak Disaster case, the petitioners have submitted that a statutory provision similar as Bhopal Gas Leak Disaster (Processing Claims) Act, 1985 was required to be enacted by the State for ensuring the payment of compensation claims to the dependants of the victims of the tragedy. Prayer has been made for issuance of directions against the respondents for making payment of full and proper compensation to the victims-relations of the dead and to the people who were injured in the Gangaram Building Collapse case.
4. In the affidavit filed on behalf of the respondent 1, Sri A.S. Gadavi, Under-Secretary to the Government, Housing and Urban Development Department has admitted the occurrence of the tragedy, the appointment of the Enquiry Commission and submission of the report by it. On the basis of the report the State Government is claimed to have taken action as per Government Order dated 3rd January, 1986, the details of which have been already noticed hereinabove. As per the enquiry report 118 persons are admitted to have died in the collapse of the building and number of persons injured is stated to be 50. The premises in question is stated to be coming within the limits of Corporation of the City of Bangalore. A sum of Rs. 5,000/- is stated to have been sanctioned by the Bangalore City Corporation for the distribution of food and clothing for those who were affected. A sum of Rs. 2,91,500/- is stated to have been distributed as compensation at the rate of Rs. 2,000/- per dead person and Rs. 500/- per person injured. A sum of Rs. 5,000/- per head per death is stated to have been paid from the Chief Minister's Fund and Rs. 2,500/- per head per death from the Prime Minister's Relief Fund. Disciplinary proceedings initiated against the official responsible for the collapse are stated to be pending till the time when the objections filed in the Court on 23rd February, 1995. Subsequent to the collapse of Gangaram building one union by name, the Karnataka State Construction Workers Central Union is stated to have filed 34 cases for grant of compensation, out of which 15 are reported to have been withdrawn and the awards were passed in the remaining cases.
5. In the statement of objections filed on behalf of the respondent 2 it is admitted that the building called 'Gangaram Building' situated in Subedar Chatram Road had collapsed in September, 1983 resulting in loss of life of inmates and workers and causing injury to others. It is contended that the present petition filed by the petitioners is bereft of the matter. The constitution of the Commission of Inquiry and the submission of the report by it has been admitted. It has acknowledged that the respondent had sanctioned the plan for the construction of the building which is, however, claimed to be in accordance with the then existing law, rules and regulations. Respondent 2 is stated to have exercised sufficient care and caution in issuing the licences and also in compounding the deviation. The collapse of the building is termed as an 'Act of God' absolving the respondent from any liability.
6. During the course of the arguments the respondent did not seriously contest the right of the petitioners herein to file and prosecute the present writ petition. Otherwise also we are satisfied that the present petition has been filed in public interest and is maintainable as such, in view of the test laid down by the Apex Court and various other High Courts including the guidelines provided by this Court in K.V. Amarnath and Another v State of Karnataka and Others. It cannot be disputed that the violation of the fundamental right granted under Article 21 of the Constitution which requires determination by the Court. The petitioners cannot be termed to be busybody or interlopers. Their bona fides are beyond doubt. The prayer sought is for the benefit of the victims of the tragedy who are indisputably poor and down-trodden admittedly not capable of approaching the Court themselves. The present petition has not been filed for any publicity or political purpose. The consistency and the bona fides of the petitioners is apparent from the fact that immediately after the occurrence they approached the Supreme Court and as no action was taken by the Supreme Court Legal Aid Committee despite direction, they approached this Court and filed the petition in public interest on 11th April, 1988. The petition is, therefore, held to have been filed in public interest and the objection raised by the respondent in this regard is rejected.
7. Taking a clue from the observations made by the Court during the arguments, the respondents have submitted that the petition was liable to be dismissed on account of non-joinder of necessary parties. According to them, the owners of the building were necessary parties and as admittedly such owners have not been impleaded as parties in the petition, the same deserves dismissal. Such a submission has to be noticed for only to be rejected. No such plea has been raised by the respondents in their objections despite pendency of the writ petition in this Court for more than 10 1/2 years. Accepting such a belated and stale plea, at this stage, would defeat ends of justice particularly when the objection raised is found to be neither bona fide nor affecting merits of the case. Otherwise also the objection raised is without any substance. The owners of the building cannot be held to be necessary parties in these proceedings where the relief is claimed against the State for the enforcement of the fundamental rights of the citizens. The prayer is based upon the failure of the State machinery to take effective steps for protecting the fundamental rights of the people. Admittedly the owners are not the 'States' within the meaning of the Article 12 of the Constitution of India. It is well recognised principle of law that necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question. All persons who are likely to be directly affected by the decision are necessary parties to the proceedings and persons who are apprehended to be remotely affected by such order cannot be termed to be necessary parties. A person would be necessary party only if he is likely to be adversely affected by the grant of relief to the petitioner in the proceedings. If, however, relief can be appropriately moulded which does not directly affect a person not treated as a party, the petition cannot be rejected on the ground of non-joinder of necessary parties. Strict rules of procedures cannot be insisted upon in writ petitions filed in public interest where the party approaching the Court has no personal interest. We are of the opinion that it would have been appropriate if the owners of the building were also added as party-respondent to the present petition but by non impleading them as parties particularly when respondent herein have not raised any such objection, this petition filed in public interest for protecting the right of life and liberty as enshrined under Article 21 of the Constitution of India and for the benefit of the legal heirs of the dead in the Gangaram building collapse resulting on account of the failure of the respondents to take effective measures, cannot be dismissed on this technical objection half-heartedly raised at the fag end of the proceedings.
8. Dealing with the scope and ambit of Article 21 of the Constitution, one of us (Sethi, J.), in M/s. Inder Puri General Store and Others v Union of India and Another, had held:
"5. Article 21 of the federal Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This Article embodies the general principle that no person shall be deprived of his life or personal liberty and guarantees the most essential of all the rights as enshrined in Part III of the Constitution. This Article puts a limitation on the powers of the executive. The terms 'life' used in the Article is not only restricted to the more nominal existence but extends to the inhibition against its deprivation to all those limits and faculties by which life is enjoyed. It also included the right to livelihood. The ambit and scope of 'right to life' conferred by this Article is wide and far-reaching which does not mean merely that life cannot be extinguished or taken away but embraces within its ambit the right to livelihood because no person can live without the means of living. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Chief Justice Chandrachud (as His Lordship then was) of the Supreme Court in Olga Tellis and Others v Bombay Municipal Corporation and Others held at page 194:
'..... Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. Deprive of a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live. Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey, (1954)347 MD 442, that the right to work is the most previous liberty that man possesses. It is the most precious liberty because, sustains and enables a man to live and the right to life is a precious freedom. 'Life', as observed by Field, J. in Munn v Illinois, means something more than mere animal exist-
ence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v State of Uttar Pradesh and Others'.
His Lordship further held at page 194:
'..... If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenged the deprivation as offending the right to life conferred by Article 21'.
In M.C. Mehta and Another v Union of India and Others, it was held, The application for compensation had been made in this case for enforcement of right under Articles of the persons affected by oleum gas leak. Merely because the petitioner could not apply for amendment of the writ petition so as to include the claim for compensation the application for compensation cannot be thrown out. The Court while making an application for enforcement of a fundamental right must look at the substance and not form'. In Bandhua Mukti Morcha v Union of India and Others, the Supreme Court issued appropriate directions for the release of bonded labour and in Bhim Singh v State of Jammu and Kashmir and Others, directed the payment of compensation for wrongful detention of the petitioner. In the Bhopal Gas Leak case, of an industrial unit owned by Union Carbide, the Supreme Court has already awarded compensation to the effect and still seized of the matter for awarding adequate compensation to the gas victims. The constitutional set up in this country envisages that all communities have a right to life and practice their religion according to their conscience. All citizens of the country have a right to carry on any profession or trade within the limits of law and the State is under an obligation to protect their life and property ensuring them all the benefits of fundamental rights enshrined under the Part III of the Constitution. As and when life and property, as discussed herein above, is taken away by any individual or organisation, a duty is cast upon the State representing the will of people to compensate the victim by granting adequate compensation. The monarchial rule has to be distinguished from democratic set up and the State cannot shirk in its responsibility to protect the life, liberty and property of the citizens, State is under a constitu-
tional obligation to compensate the victim adequately. The argument of the learned Advocate General that the State was under no obligation to compensate the victims of communal riots, is without any basis and contradictory in terms in view of the actions already taken in that behalf. If it was not the responsibility of the State to provide compensation, what was the necessity of passing orders for providing ex gratia grant and lumpsum amounts as compensation for the losses suffered. The State represents the will of the lapses of the Rulers, a right accrues to them for award of compensation. As and when the life and liberty of any person is taken away, a presumption arises of the failure of the State machinery to protect the life and property of the individuals involved".
To the same effect are the judgments reported in R. Ghandi and Others v Union of India and Others, and Peoples Union for Democratic Rights and Another v Ministry of Home Affairs.
9. In the light of various pronouncements of the Apex Court and different High Courts it cannot be denied that protecting life and liberty of the citizen is the duty of a responsible Government who cannot abdicate its function and allow the life and liberty of the citizen in jeopardy. Wherever a loss is caused to a person on account of proved acts of commission and omission of an authority, a welfare State under a democratic system of responsible Government is under an obligation to take effective steps against the erring parties and ensure adequate compensation to the victims of the calamity caused on account of the acts of commission and omission. Failure to take any action against the erring and responsible person or Authority would be a sufficient ground for this Court to intervene and compel the State to perform its constitutional obligations. Technical pleas and procedural wrangles cannot be permitted to be put as obstruction in granting the relief to the victims and their families. Accepting the pleas of the respondents, at this belated stage, would amount to give licence to the defaulters and violators of the law to perpetuate more agony and torture upon the victims and their families, resulting to facilitate filling up the coffers of the rich, wealthy and influential. The Constitutional Courts in the country cannot permit any individual person or Authority to build their glittering castles on the heaps of human skeletons affixed with their flesh and blood. This Court, under the peculiar circumstances of the case, can mould relief appropriately for ensuring the preservance of the rule of law in furtherance of and strengthening the democratic institutions in the welfare State, as we have in this country.
10. The omission in the discharge of their functions which have been attributable to the respondents are writ large reflecting their casual approach and careless attitude. Even while constituting the Commission of Enquiry, the then political executive of the State did not even deem it proper to make a reference with respect to the plight of the victims of the calamity and ascertaining the responsibility of the guilty vis-a-vis the legal heirs of the deceased and persons who had actually received injuries on account of the collapse of the Gangaram Building. No responsible Government could have ignored the loss of life of 118 persons and serious injuries to 67 persons. The payment of meagre amount out of the Relief Funds cannot be held to be the discharge of constitutional obligation of the respondents. Even after getting report of the Commission of Enquiry no follow-up action appears to have been taken for granting the relief to the victims of the families of the deceased as has been prayed in the present case. What prevented the State from making a law similar to one which the Central Government had got enacted in Bhopal Gas Leak case is a mystery shrouded with doubts, not tried to be explained on any hypothesis much less reasonably. The respondent-State has been found to have failed in its discharge of constitutional obligations forcing the present petitioners to approach this Court for issuance of appropriate directions. Similarly respondent 2 which was found by the Commission of Enquiry, to have failed in the performance of its duties did not take any step either for recovering the amount from the guilty or paying the compensation to the needy and deserving. The respondent-Corporation was proved to have failed in exercising sufficient care and examining various aspects specially Zoning Regulations in regard to the coverage, off-street parking, Bye-law No. 38 regarding set-back of fire safety measures while sanctioning or renewing the licence in favour of the owners which ultimately resulted in the death of 118 and injury to 67 persons in Gangaram Building collapse. In view of the finding of the Commission that no valid licence as per the Act had been obtained by the owners of the building before the commencement of the construction, the respondent-Corporation failed to take any action against the erring persons resulting in loss of human lives and injuries to many.
11. Under similar circumstances, a Division Bench of this Court in Miss Pushpaleela v State of Karnataka, while dealing with a public interest litigation filed on behalf of the victims who had lost their eye sight consequent upon the operations conducted in the free eye camp at Chintamani during the year 1988 issued appropriate directions against the State and awarded different amounts of compensation to different categories of victims. The present petition is no exception. We are satisfied that the respondents herein have failed in the performance of their constitutional and statutory obligations which necessitates the issuance of appropriate directions for enforcement of fundamental right guaranteed under Article 21 of the Constitution of India. It is true that ascertaining the compensation with respect to each individual victim is difficult particularly in the absence of the claims and lapse of time. However, we feel that the interests of the justice can be protected by prescribing some guidelines for payment of the compensation to the legal heirs of the deceased and the injured who were victims of the Gangaram Building collapse. Remanding the case or issuing directions to the Authorities for ascertaining the compensation at this belated stage is likely to result in the failure of justice, which if permitted, would result in weakening the belief of a common man in the institution of judiciary. We have heard the learned Counsel in this behalf also. It is not disputed by the learned Counsel appearing for the parties that in case if the petition is allowed, tentative scheme for award of compensation be prescribed by the Court itself and proper directions be issued by protecting the interests of all concerned. We are of the opinion that the ends of justice would be served if the legal heirs of such persons who had died in the tragedy are awarded compensation on the basis of the following criterion:
(a) legal heirs of the deceased, in the age group of upto 25 years, be paid compensation amounting to Rs. 50,000/- if male; and Rs. 40,000/- if female;
(b) legal heirs of the deceased, in the age group between 25-50 years, be paid compensation amounting to Rs. 1,25,000/- if male; and Rs. 1,00,000/- if female;
(c) legal heirs of the deceased, in the age group between 50-75 years, be paid compensation amounting to Rs. 75,000/- if male; and Rs. 65,000/- if female;
(d) victims of the age group of 75 years and onwards be paid compensation of Rs. 40,000/- if male; and Rs. 35,000/- if female.
12. Similarly in case of injured (a) persons suffering, receiving grievous injuries be paid a sum of Rs. 20,000/-; and (b) in case of persons who sustained simple injuries be paid a sum of Rs. 10,000/-. Both the respondents are held responsible for making payment of compensation jointly and severally.
13. Under the circumstances, writ petition is allowed. Rule issued is made absolute and direction is issued to the respondents to pay the legal heirs of the deceased and the persons who had suffered injuries in the Gangaram Building collapse as detailed in Annexure-V of the report of the Commission of Enquiry dated 26th July, 1985 (Annexure-A) to the extent and limits as prescribed in paras 11 and 12 herein above. The liability of the respondents in paying the compensation is held to be joint and several. Respondent 1 is further directed to intimate the persons entitled to compensation about their right to get compensation in terms of this order. Such notice be issued individually as also by publication in newspapers having wide circulation in the State of Karnataka. Respondent-State is further authorised to take effective steps for the recovery of the aforesaid amount from the defaulters viz., the owners of the building by taking recourse to law including the enactment of a statute for the said purpose if so needed. Upon the payment of amount of compensation and pending recovery if so desired from the owners of the building, the respondents shall be entitled to withhold the facilities including water and electricity provided to such owners till the amount paid to the victims is recovered. The petitioners are also entitled to costs assessed at Rs. 10,000/-.