Articles

Mr Ramani IPSMr. S. Ramani is an officer of the Indian Police Service from 1970 batch of Tamil Nadu Cadre and retired as Director General of Police, Police Training College. Earlier, he had a long tenure as the Director of Fire and Rescue Services and did a lot to professionalize the working of the Department. In recognition of his deep interest in matters relating to fire and safety, the Government of Tamil Nadu made him a Member of the Fire and Rescue Commission constituted to study the working of the Department and suggest improvements.


THE UPHAAR CINEMA TRAGEDY CASE
DELHI HIGH COURT JUDGEMENT

A WAKE-UP CALL

S. Ramani, I.P.S.(Retd)
(formerly Director General of Police, PTC)

 

The Delhi High Court delivered a land mark judgment recently in Civil Writ No. 4567/1999 on 24.04.2003, in what is commonly called the Uphaar Tragedy Case.  This was widely reported in the media. It is important to have a close look at the judgment by the law enforcement agencies, because several critical issues have been raised and directions given. It has opened up a totally new dimension in the area of public safety. Many important legal issues such as payment of compensation and other statutory issues and administrative issues etc. have been dealt with in the judgment and it is necessary to understand them. 

2.   The facts in brief are that in the posh area of South Delhi called Green Park, is located the Uphaar Cinema.  It was constructed in 1973 and renovated in 1996/1997.  The first film screened after renovation was “Border”, which had a patriotic theme.  On 13.06.1997, during the matinee show of the film, immediately after the interval, the audience in the cinema hall saw smoke coming out of the side of the screen. Most of the patrons sitting in the hall thought that it was some special effect, which was part of the film, little realizing that a fire had broken out.  By the time they realized the gravity, smoke had engulfed half the building.  The entire balcony and the stairs leading to it were full of smoke.  It was impossible for the people to leave and as a result 59 people died which included infants and children.  103 others sustained injuries.

3.     A petition was filed in the Delhi High Court by the Association of victims of Uphaar Tragedy.  By this writ, besides claiming compensation, the petitioners have also tried to highlight the shocking state of affairs in the cinema hall and the inadequate safety arrangements.  The petitioners claimed that there was complete disregard to the statutory obligations prescribed under the law for the prevention of fire hazards in public places.  They alleged that each and every public authority not only failed to discharge its statutory obligations but in fact acted in a manner which was hostile to the discharge of their public duties.  Licence and permits were issued with utter disregard to the mandatory provisions of inspections and ensuring safety standards. They contended that scores of cinema halls were and are permitted to run without any inspection and without licence.  Permits are issued mechanically and for a price.  The petitioners prayed for adequate compensation for the victims and punitive damages against the respondents for showing disregard to the statutory obligations.

4. An initial objection was raised on behalf of the respondents, viz. the Government officials and it was argued that a writ petition was not an appropriate proceeding for deciding the cause and responsibility for the unfortunate incident.  The Court ruled that the petition was maintainable.  It held that enterprises which are engaged in hazardous activities and which pose a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owe an absolute and non-delegable duty to the community to ensure that no harm results to any one.  The enterprise has an obligation to conduct its activity with highest standards of safety and if any harm results, it is liable to compensate for such harm.  The Court held that even if there was no negligence, but it was proved that there were statutory violations of safety standards by the authorities, these violations may be sufficient to hold the respondents liable to pay compensation for the victims and for the damages.  It is very important to note this point.

5.   Building Plan Violations:

Uphaar Cinema was started in 1973 and licence was given under the provision of the Delhi Cinematographic Act, 1953 by the District Magistrate.  In 1975,the Delhi Administration reduced the cinema tickets rates by 10%. The cinema owners felt aggrieved and represented to Delhi Administration that their expenses had gone up and the reduced  rates, were unbearable.  This representation was considered by the Lt. Governor and Delhi Administration agreed to relax the rules and allowed the licencee to add more seats in their halls to make good the loss.  Uphaar Cinema was permitted to add 43 seats in the balcony and 57 seats in the main hall as per a notification, dated 30.09.1976.  The cinema owners accordingly added the extra seats.  However the Chief Fire Officer reported that the additional seats were a fire hazard.  So the Lt. Governor cancelled the notification permitting extra seats and issued a new notification to this effect.  The cinema owners went to the High Court and filed a writ petition.  The Delhi High Court held that action taken was legal. The Court also held that simply by withdrawing the notification, it did not mean that all the additional seats were  contrary to rules.  The Court directed the administration to apply its mind afresh to the additional seats with a view to determine which of them had contravened which rule and to what extent.  As a result of the addition of these seats, though the number of vertical gangways remained the same, the exit from the right hand side balcony was closed.  Even the vertical gangway to the extreme right of the balcony along the wall was closed.  A new vertical gangway was introduced between seat 8 & 9 on the right side of the balcony and the width of the gangway was reduced from 120 cm to 90 cm.  There was absence of foot lights near the floor.  As a result of the closure of exits, a patron sitting on the extreme right of the balcony had to come out from the left exit door and there was only one stairway available for him to go to the ground floor,  to get out of the building.  As per rules there should have been two stairways.  From the foyer in the balcony, if one wanted to go to the right side stairway, he would come across a glass door, which used to remain closed.  These deviations contributed to a large extent in obstructing smooth egress of patrons at the time of the fire  which resulted in deaths in the balcony.

6.   After the incident, the Lt. Governor instituted an inquiry headed by  Naresh Kumar, Deputy Commissioner (South), Government of NCT.  The High Court also appointed Commissioners to visit the site and note down the violations.  This was done and the  violations were found as under:

A.   Basement Floor:

Four partition walls were constructed in the basement meant for parking;  Inflammable materials were stored; A number of rooms were made in the basement. A temporary wooden structure was put up; Air conditioning plant room did not conform to regulations; Staircase leading to basement was not enclosed type.

B.   Ground Floor:

Space meant for restaurant was let out for offices, banks etc ; Ticket booth was constructed near car parking , Partition walls between LT & HT transformers were altered ; A dispensary was constructed behind the transformer room over the ramp, One toilet adjoining the A/C duct was constructed; Cars were parked in front of the Transformer room ; Cycles and scooters were parked in front of the stairs.

C.   First Floor:

Two additional refreshment counters were constructed in the rear stall foyer ; One additional seat was added in the rear most row near the left side exit door.

D.   Mezzanine Floor:

One additional refreshment counter was constructed ; An air conditioning unit was installed in the area sanctioned for a washroom.

E.   Second Floor (balcony):

52 additional seats were provided over and above the 250 originally sanctioned.  When granting licence, DCP (Licensing) did not take sufficient care to facilitate free egress of patrons sitting on the right side ; Two gangways and one exit on the right side were closed ; Inspection room was converted into a 18 seater box; A toilet block was converted into an office.

F.   Third Floor:

The sanctioned administrative area was converted an office complex using wooden partitions and let out to various companies ; A few offices were also constructed around the lift well with wooden floors and let out.  Part of a sanctioned toilet block was also converted into an office.

G.   Terrace:

Existing machine room was bigger in size than sanctioned.

7.   Thiru. Naresh Kumar in his report observed that there were major deviations from the building bye laws which converted the whole building into a death-trap.

8.   Electricity Act & Rules and Delhi Municipal Corporation Act Violations:

When Uphaar Cinema was being constructed, a transformer had to be installed by Delhi Vidyut Board.   What was needed for a Cinema Hall was a transformer of 100 KW and a HT connection and so the owners had to provide space of 10.5 x 15 feet for housing it.  While it was being processed, the Delhi Vidyut Board asked the owner to additionally provide land measuring over 45’ x 75’ for installing a sub-station, required for a colony developed by the Delhi Development Authority.  Initially the owners refused, but ultimately gave in, owing to arm-twisting methods of the Vidyut Board.  The Delhi Vidyut Board not only put up the sub-station on the ground floor in the car parking area, but the transformer meant for the theatre was also installed along with the same.  A 500 KVA sub-station was put up and later augmented to 750 KVA and then to 1000 KVA.  There are rules governing the installation of transformers, under the Delhi Municipal Corporation Act and the Indian Electricity Act. There are also  detailed guidelines with regard to the installation of transformers under the Indian Electricity Act and Rules. One important rule in 50-A, which stipulates that in case of Multi-storey buildings of more than 15 meters height, the supplier/owner of the transformer shall provide at the point of commencement of supply, a suitable isolation device with cut-out or breaker to operate four wire circuit and fixed in a conspicuous position, 2.75 meters above ground level so as to completely isolate the power supply to the building in case of emergency.   All conductors are required to be completely enclosed in a mechanically strong metal casting or metallic covering and adequately protected against mechanical damage.  Before installation of a transformer, approval of the Electrical Inspector has to be obtained u/r 63.  U/r 64 & 64-A. At the time of installation of the transformer, relays must be provided and cable trenches inside the sub station and switch station containing cables are to be filled with sand and pebbles and non-inflammable materials.  All apparatus, cables and supply lines should be kept in a healthy condition and a record of all tests, checks and maintenance works are to be maintained.  However in the case of Uphaar, the entire framework right from the installation to maintenance was defective and rules were breached.  Neither circuit breakers, nor relays, nor earthing were provided.   Approval was not taken before installation of 1000 KVA transformer and cable trenches were not provided.  No maintenance schedule was maintained by the Vidyut Board nor were the mandatory and periodic tests carried out.  There were no inspections between July 89 & 22.01.1997, when a foreman did an inspection.  He noticed defects, which were brought to the notice of his superiors. The Delhi Vidyut Board was clearly negligent in the installation and maintenance of the transformer.  Cable trenches were not of proper size and cables were over crowded without any cover.  Electrical cables were found laid in a haphazard manner making it difficult to make out as to which cable was connected to which transformer.  Arrangements were not made to prevent the flow of transformer oil from the sub station to the other parts of the building. The standards prescribed for such a power installation in the Indian Electricity Act & Rules & Bureau of Indian Standards, were not adhered to.

9.   Sequence of Events:

Tracing the sequence of events on the fateful day, the Court held that on 13.06.1997, there was no electric supply to Uphaar between 3.55 PM and 4.55 PM. At about 4.57/4.58 when the power was restored, there was sparking in the transformer of the Delhi Vidyut Building which was observed by K.L. Malhotra, the Manager of the Cinema Hall.  He reached the spot and tried to control it by throwing sand.  Due to intense sparking, the socket of B-1 lead of B-Phase started melting and came out of the nut and bolt of the bus bar and fell on the radiator fin.  As there was electric supply still in the cable, the sparking contained when it came in contact with the fins, leading to melting of the fin metal and thus creating a hole.  Oil came gushing out of the hole and spread on the floor.  Because the kerb at the entrance of the transformer was not of the approved height and the slope, oil came out from the transformer room into the parking lot.  According to some eye witnesses, the oil was on fire.  The burning oil came in contact with a car which caught fire.  This fire came in contact with a few more cars, with the result that 27 cars burnt.  The burning cars created a lot of smoke.  Since the smoke had no other place to go and it has a tendency to go upward, it started going up through the stairway to the balcony foyer.  Some of the smoke entered the hall.  Patrons saw smoke coming from behind the screen.  They thought that it was some special effect.  When they realized that it was due to a fire, they reached the foyer and entered the balcony also.   Those who left the balcony could not go out because of the dense smoke and so went into the toilet.  Thus they got trapped in the balcony, foyer and in the toilets.  Since the right side box had closed the exit that side, people came out from the left side.  They had only one stairway to leave the building on the left side.  They could not go to the stairway on the right because the path was blocked by a glass door.  Hence, as time passed, the balcony became a gas chamber, resulting in suffocation.  Most of the visitors who died of suffocation, died here.  Some who managed to break the windowpanes in the foyer were rescued by the fire brigade.  Emergency lights were not on and there was no public address system to guide the visitors.  No assistance was provided by the officials of the Cinema Hall.  The result of all this was that 59 people died due to asphyxiation and 103 were injured.   

10. Compensation:

The Court ruled that any enterprise which is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the safety of the persons working in the premises or vicinity owes an absolute and non delegable duty to ensure that no harm results to anyone on account of hazardous or inherent nature of the activity undertaken.  It should be held strictly liable for causing harm as part of the social cost of carrying on the hazardous activity.  The Court went on to held that if the hazardous activity resulted in profit, the law must presume that the permission given to the enterprise to carry on the activity was conditional on it absorbing the cost of any accident on account of such activity.  It must indemnify all those who suffer regardless of whether it has carried on carefully or not.  The observation of the Supreme Court in MC Metha Vs Union of India, 1987 (1) SCC 395 are relevant and it holds an enterprise liable to compensate all those who are affected by the accident and such liability is not subject to any condition.

11.      While going into the negligence and responsibility of the public authorities in the non compliance of the rules, Court held that the Delhi Vidyut Board was very negligent in regard to installation and maintenance of the transformers.  The provisions of the Indian Electricity Act & Rules were not followed.  The raising of the 3 feet parapet wall at the back of the transformer room in 1972 or early 1973 to the ceiling level was without obtaining the permission from the Municipal Corporation of Delhi.  The Court faulted the Delhi Vidyut Board (DVB), the licensing authority, owners of the cinema and the Municipal Corporation of Delhi (MCD) for this wall and held them responsible and liable.

12.      Regarding licensing authority, the Court held that, by his order dated 24.12.1979, 43 of the 56 additional seats added to the main hall in theatre were blocking the vertical gang ways.  The 37 additional seats in the balcony were found to be in accordance with the rules, this despite the fact that they were blocking the exits and in contravention of the Cinematographic Rules, which prescribes clearly the number of exits for every hundred patrons.  It is not only the number of exits, but also their location, which are important.  The licensing authority did not care to move the Delhi High Court for obtaining appropriate directions, consequent on its earlier order.  The Court held that most of the violations, which existed in the cinema hall due to which the licence was briefly suspended for four days in 1983 existed even on the date of the accident.  Scant respect was shown to adherence to safety regulations. The authorities were not strict and vigilant in compliance of regulations meant for safety.

13.      Delhi Fire Service:

The Delhi High Court then examined the role played by the Delhi Fire Service.  An allegation was raised that they arrived late, did not do well and were more engaged in fire fighting than in rescue of the people and their equipments were out of order. The High Court noted that there might have been shortcoming in the kind of equipment provided to the Fire Service by the Government; however the staff of the Fire Brigade, with the available infrastructure, performed commendably.   The court refused to give a ruling as to whether fire fighting or rescue should have been done first.  It was not an expert on the matter and it is entirely for the fire fighting staff to decide in a situation as to how they have to meet it.  The Court did not want to make any further comment.

14.  The Court finally concluded that the licensee of Uphaar Cinema, the licensing branch of the Delhi Police, the Delhi Vidyut Board and the Municipal Corporation of Delhi were all responsible for having contributed to the spreading of fire and smoke and by their acts of omission and commission were are all jointly and severally liable to payment of compensation to the victims.  There was no act of omission or commission on the part of the Delhi Fire Service.  The Court held that the petitioner claming for damages in public law for wrongful acts done by the respondents is maintainable.  Once the Court came to a conclusion that there was a breach of statutory duty on the part of some of the respondents and there was lack of proper care on the part of the others, it was sufficient to hold them liable for damages under the public law.  Taking all this into account the High Court ordered the respondents to pay the one lakh to each of the persons injured in the accident by way of compensation for the mental pain, shock and agony.  Regarding those who died, the Court arrived at a figure of Rs. 18 lakhs each to the relatives of the victims in case of adults and Rs.15 lakhs in case of children.  The relatives will also be entitled to interest at 9% per annum from the date of filing petition, on the amount of compensation now allowed.  Since the liability of each one of the respondents viz. Delhi Vidyut Board, Owners of cinema, Licensing Authority & Municipal Corporation of Delhi, was joint and several, the court apportioned the compensation amount payable by each.  The owners of the cinema, who earned profit, were directed to pay compensation to the extent of 55%.  The other respondents viz. Delhi Vidyut Board (DVB), Licensing authority & Municipal Corporation of Delhi (MCD) were each liable to pay 15%.

15.  Punitive Damages and other recommendations:

Besides the compensation amount, the Court also directed that the owners of the cinema would be liable to pay punitive damages to the extent of profit made by selling extra tickets to the seats illegally sanctioned by the authorities. It arrived at a figure of Rs. 2,50,00,000/- (Rupees Two crores fifty lakhs) being the income earned by selling 52 additional seats between 1979 and 1996, and held that the amount to the paid in this regard  will be used for setting up a “Central Accident Trauma Service”.  The Court also recommended the creation of a City Health Services on the lines of Delhi Fire Services consisting solely of medical, paramedical persons & Ambulances & equipment.  It should be designed to provide medical assistance to the people in emergency situation.  The Court suggested a legislation to provide for Public Liability Insurance for providing relief to victims of accident in public buildings.  It also recommended the constitution of a Fire Safety Fund, which can be used to create safety awareness and in fire safety engineering.  It further recommended upgradation and modernization of the Fire Service and fixed a time limit of 90 days to process the proposals of those Departments dealing in public safety.  It observed that entertainment tax generated sufficient revenue, which can meet financial requirement of bodies, which are required to safe guard public health. 

TAMIL NADU RESPONSE TO UPHAAR

 16. In Tamil Nadu, fortunately there has been no accident of the type at Uphaar in the recent past. But a far more grave tragedy had struck on 29.07.1979 at 4.30 P.M. in a touring cinema called Lakshmki Talkies situated in Lourdhammalpuram in Tuticorin.  It was made of thatch and in a devastating fire on the fateful day 73 people died and 88 were injured.  A Commission was appointed to go into the incident and make recommendations.  Most of them have been implemented but how far are the cinema halls safe and how far are the safety norms being followed or violated is a moot point.

17. Inspection of Cinema Halls:

Government of Tamil Nadu have recently reviewed the system of periodic inspection of Cinema Halls.  If inspections of such places are properly and periodically carried out, accidents can be prevented.  In order to streamline the system of inspections and make them effective, Government of Tamil Nadu, vide GO Ms.No. 922, Home (Cinema.I) Department, dated 24.08.2000, constituted a multi-departmental committee headed by the Director of Fire Service, to undertake annual inspection of all Cinema Halls in the State.  The committee would have representatives from Health, Chief Electricity Inspectorate, CMDA, Town & Country Planning Licensing Authority, PWD and Police.  It would conduct joint inspection of Cinema Halls so that the defects are noticed then and there and the licensee is put on notice to rectify them.  The licensing authority is also told about the state of affairs so that he too can step in appropriately. The Director of Fire & Rescue Services is also required to submit an annual report to Government in this regard.

18. Revision of the Cinemato-graphic Act and Rules:

Government of Tamil Nadu has also taken up an exercise of amending the Cinematographic Act & Rules, so that the specifications prescribed by the National Building Code, in so far as cinema halls are concerned, are incorporated in the Act itself.   Cinematographic Act  needs to be amended urgently so as to incorporate the latest technological development in the area of fire prevention, fire fighting and safety.  The   National Building Code is an official document, which prescribes different parameters for construction of different classes of buildings.  All types of buildings are covered in the Code and it is the ‘Bible’ insofar as construction of buildings are concerned.  It is in eight volumes of which Volume-IV pertains to Fire Safety.  It is desirable that buildings are constructed in accordance with the provisions of this code.

19.      Regarding the whole lot of other recommendations made by the Delhi High Court in the Uphaar judgement, including establishment of a Fire Safety Fund, Modernization of the Fire Service and Publicity and awareness campaigns, safety of buildings etc., Tamil Nadu Government has vide GO. 1102, Home (Pol.17) Department, dated 19.11.2002 established a  high-powered commission with a retired High Court   Judge (Justice Bhakthavatchalam) as its Chairman.  I am a member of the Commission.  The Commission has been given a 19 point term of reference which covers all issues that are important and relevant for fire prevention, fire fighting and fire safety.  This Commission is perhaps the first of its kind in the country or even in the world and its findings will go a long way to address the issues involved. I understand that there is also a move to establish a similar Commission at the National Level.

20.             Be as it may, the Delhi High Court judgment has sounded a wake-up call to all concerned.  The judgment is indeed a landmark, having far reaching consequences.  Hereafter the various agencies will have to pay hefty damages for lapses and failure to ensure safety.  That is why the judgment has been examined in depth in this article.  It is now time to wake up.


BACK