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47 Mr. Engineer submitted that Respondent Nos.2' s negligence has a proximate cause to the tragic fire in Kinara and, therefore, Respondent No.2 can and should be held liable. In this context, Mr. Engineer submitted that Respondent No.2 and its officials were grossly negligent in (i) granting the eating house license to Kinara despite the fire NOC and other NOCs not having been obtained; (ii) failing to act on the complaints about the illegalities being committed in Kinara; (iii) failing to take action pursuant to 3 inspections wherein it was specifically noted that (a) Kinara did not have a fire NOC; (b) the mezzanine floor was illegally being used for service; and (c) it was storing LPG cylinders without a license.

JUNE 10th, 2025 S.R.JOSHI 1-wp-659-2018.doc 73 Mr. Sakhare further submitted that the liability of Respondent No.2 cannot be presumed in the absence of a direct and proximate causal link between the acts of commission and/or omission of the municipal officers and the fire incident and the fatalities in question. Mr. Sakhare submitted that the doctrine of proximate cause, which is well recognized both in constitutional and tort law, mandates that the liability be attributed only to the party whose actions or omissions were the direct and immediate cause of the harm suffered. Mr. Sakhare submitted that, in the present case, the evidence established that illegal and unsafe storage of LPG cylinders on the mezzanine floor by the hotel owner was apparently the cause of the explosion and the resultant loss of life. Mr. Sakhare submitted that the role of Respondent No. 2 is confined to municipal administration, and no act or omission by its officers could be shown to have directly contributed to the tragedy. Mr. Sakhare submitted that, in the light of the above, the principle of strict liability of the State is wholly inapplicable to the facts of the present case. 74 Further, Mr. Sakhare submitted that, after the incident, departmental enquiry was first initiated against various officials of Respondent No.2. In the said enquiry, it was found that no complaint was received or any report found in the record of the Building and JUNE 10th, 2025 S.R.JOSHI 1-wp-659-2018.doc Factories Department in respect of unauthorized constructions and the assessment record also did not indicate any change in area of the hotel.

(B) Whether there was any negligence on the part of Respondent No.2 in the discharge of its duties?
(C) Whether Respondent No.2's negligence has a proximate cause to the fire and whether Respondent No.2 can be held liable?
(D) In matters pertaining to breach of fundamental rights by an authority like Respondent No.2 (which is a State within the meaning of Article 12 of the Constitution of India) whether compensation can be awarded under Article 226 of the Constitution of India?

130 The test, as to whether the negligence of Respondent No.2 was the proximate cause for the damage suffered, is succinctly set out in a judgement of this Court in Tri - Sure India (supra). Paragraph 33 of the said judgement in Tri - Sure India (supra) is relevant and reads as under:-

"33. The test is the standard of the ordinary skilled man exercising and professing to have that special skill, but one need not possesss the highest expertise or skill at the risk of being found negligent. It is well established that it is sufficient if one exercises the ordinary skill of an ordinary competent man exercising that particular art. It hardly requires to be stated that burden to prove any action of negligence rests primarily on the plaintiffs, who, to maintain action, must show that he was injured by a negligent act or omission for which the defendant in law is JUNE 10th, 2025 S.R.JOSHI 1-wp-659-2018.doc responsible.This was to prove some duty owed by the defendant to the plaintiff, some breach of duty, and an injury to the plaintiff between which and the breach of duty, a causal connection must be established. In order to establish contributory negligence, the defendant has to prove that the plaintiff's negligence was a cause of harm which he has suffered in consequence of the defendant's negligence. Knowledge by the plaintiff of an existing danger or of the defendant's negligence may be an important element in determining whether or not he has been guilty of negligence. The question is not whether the plaintiff realised the danger but whether the plaintiff had knowledge which would have caused the reasonable person in his position to realise the danger. It is also essential for the plaintiff in an action for damages on the ground of negligence to establish that on the balance of probabilities the defendant's negligence was an essential pre-condition of the damage suffered and which is normally done by reference to the "but for" test. The test demands that the negligence was a factual cause of damage. A reference can be made in support of this aspect on"Factual causation"in Dugdale and Santon's 'Professional Negligence', Chapter 28, paragraph 28.01. A reference can be usefully made in this connection to the short passage from the speech of Lord Reid in the case of McWilliams v. Sir William Arrol and Co. Ltd., [1962] 1 WLR 295 (HL) and which has been quoted with approval in Karak Rubber Co., Ltd. v. Burden (No. 2), [1972] 1 WLR 602, 631 (Ch D):