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
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.
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.
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.
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:
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.
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.
refreshment counters were constructed in the rear stall foyer ; One
additional seat was added in the rear most row near the left side
refreshment counter was constructed ; An air conditioning unit was
installed in the area sanctioned for a washroom.
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.
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.
Existing machine room was
bigger in size than sanctioned.
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.
Electricity Act & Rules and Delhi Municipal Corporation
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
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
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.
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.
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.
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.
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.
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.
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%.
Punitive Damages and other recommendations:
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.
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
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
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
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.
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
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.