Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 116 (MP)

Abhishek Malviya v. Addl. Welfare Commissioner

2001-02-05

DIPAK MISRA

body2001
Judgment ( 1. ) IN the case of Union Carbide Corporation Vs. Union of India, 1991 SCC (4) 584, the Apex Court observed as under :-- "early in the morning of December 3, 1984, one of the greatest industrial tragedies that history has recorded got clamped down on the otherwise quiet township of Bhopal, the capital of Madhya Pradesh. The incident was large in magnitude 2,660 people died instantaneously and quite a good number of the inhabitants of the town suffered from several ailments. In some cases the reaction manifested contemporaneously and in others the effect was to manifest itself much later. " ( 2. ) THE present litigation relates to a situation wherein the manifestation was really at a much later stage inasmuch as the petitioner was in his mothers womb. In the puranas it has been narrated that "ashtabakra" learnt shashtras while he was in the womb of his mother and listened to the sagacious discourses of his father and abhimanyu son of sabyasachi acquired the knowledge of penetrating into the imbroglio of a chakravyuha but in the case at hand the petitioner became a victim of the Bhopal Gas Leak Disaster. ( 3. ) IT is apposite to state here the unprecedented tragedy required a different legal outlook and the Apex Court took a pragmatic approach and remembered the wise saying of Oliver Wendall Holmes, an eminent American Judge, that life of the law has not been logic : it has been experience and giving a go by to the rigmarole of the legal process initially passed a decree obtained on consent and at a later stage refused to review the same. While expressing hope and trust that the refusal to review the earlier decree would be the epitaph on the litigation their Lordships touched many an aspect. In Paragraph 205 the Apex Court raised a question : "then comes the question which we posed at the end of the Paragraph 135. This concerns the exposed members of the populace of Bhopal who were put at risk and who though presently asymptomatic in future. In Paragraph 205 the Apex Court raised a question : "then comes the question which we posed at the end of the Paragraph 135. This concerns the exposed members of the populace of Bhopal who were put at risk and who though presently asymptomatic in future. How should cases of yet unborn children of mothers exposed to MIC toxicity where the children are found to have or develop congenital defects be taken care of ?" Their Lordships referred to the report of the Law Commission in United Kingdom on injuries to unborn children and the Congenital Disabilities (Civil Liabilities) Act, 1976 and came to hold as under :- "it is not necessary for the present purpose to go into other features of that legislation and the state of corresponding law in India. Our present question is as to how and who would provide compensation to the two classes of cases referred to by us earlier. We hold that these two classes of cases are compensatable if the claimants are able to prove injury in the course of the next eight years from now. " Keeping in view the aforesaid enunciation of law the petitioner who had become a victim of the effect of the MIC gas and developed problems in his heart, liver and respiratory system being represented by his father, filed an application for claim bearing No. 3649 (ka)/93 before the Deputy Commissioner. The Deputy Commissioner granted compensation of Rs. 45,000/- by his order dated 17-6-1996. Feeling aggrieved the petitioner preferred an appeal before the First Additional Welfare Commissioner, Bhopal, who by order dated 13-3-1997 enhanced the compensation amount to Rs. 55,000/ -. Being dissatisfied with the aforesaid order the petitioner preferred a Special Leave Petition wherein the Apex Court on 6-5-1999 passed the following order:- "learned counsel for the petitioner points out that there is a mistake in the impugned judgment viz. deceased was in the womb of his mother and he was born on 14-5-1985 in Ujjain Hospital. The statement in the judgment according to the learned counsel is incorrect and, in fact, the petitioner is very much alive. He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf. The Special Leave Petition is dismissed as withdrawn. The statement in the judgment according to the learned counsel is incorrect and, in fact, the petitioner is very much alive. He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf. The Special Leave Petition is dismissed as withdrawn. " After the aforesaid order was passed, the petitioner filed a review, bearing No. M. R. P.-312/99 before the First Additional Commissioner, Bhopal. Before the appellate authority it was contended that the Deputy Commissioner had not appreciated the evidence in proper perspective and the material on record to show the serious sufferings of the petitioner. Many a ground was urged for enhancement of the amount of compensation to Rs. 10 lacs. The appellate authority referred to the order passed by the Apex Court and came to hold that there was no direction by the Apex Court for re-appreciation of evidence or reconsideration of the material on record. The appellate authority observed that it has only jurisdiction to rectify the mistake in regard to the description of the claimant as deceased and accordingly directed the word deceased should be deleted and it would be substituted by claimant. The aforesaid order was assailed by the petitioner in S. L. P. (Civil) No. 19076/99 wherein the Apex Court passed the following order: "in our opinion, it will be more appropriate for the petitioner to approach the High Court under Article 226 of the Constitution or any other forum as permitted by law rather than to file Special Leave Petition in this regard directly against the order of the Welfare Commissioner. The Special Leave Petition is dismissed. " After the aforesaid order was passed the petitioner approached the First Additional Welfare Commissioner in Appeal No. 8451/01/2000 for re-appreciation of the evidence. The Appellate Court reiterated that there was no scope for review as the Apex Court has not given any direction in this regard. The aforesaid order is sought to be quashed by the petitioner in the present writ petition. ( 4. ) I have heard Smt. Anjili Varshney, learned counsel for the petitioner and Mr. P. D. Gupta, learned Deputy Advocate General for the State. It is urged by the learned counsel for the petitioner that the petitioner had availed treatment at various hospitals for various diseases and disorders and the compensation granted is grossly low. ( 4. ) I have heard Smt. Anjili Varshney, learned counsel for the petitioner and Mr. P. D. Gupta, learned Deputy Advocate General for the State. It is urged by the learned counsel for the petitioner that the petitioner had availed treatment at various hospitals for various diseases and disorders and the compensation granted is grossly low. The learned counsel has pointed that there is material on record that his heart ailment is connected with the M. I. C. gas which had affected his mother. It has been canvassed by the learned counsel that his respiratory track has been damaged and there has been no proper assessment of compensation on that score. It is submitted by Mrs. Varshney that the adjudicating authority proceeded with the assumption that the deceased was in the womb of his mother, whereas he was very much alive and had filed the claim petition. It is proponed by her that the future suffering of the petitioner are to be taken into consideration and compensation is to be fixed. The learned counsel has highlighted that the evidence was brought on record that a person affected by the gas disaster is the potential victim of disorder of liver and lungs, but the said aspects have not been kept in view. The learned counsel has seriously criticised that the appellate authority has totally erred in law by opining that the matter was put to rest as the Apex Court had not directed for review or reconsideration of the material on record. Mr. P. D. Gupta, learned Deputy Advocate General for the State, resisting the aforesaid submissions, has contended that the application for review was not tenable before the First Additional Welfare Commissioner inasmuch as the Apex Court had not directed for any review. The learned counsel for the State has further submitted that the circumstances do not warrant any reconsideration and the award passed is commensurate with the sufferings. ( 5. ) THE core question that falls for consideration is whether the First Additional Welfare Commissioner is justified in refusing to address himself to the application for review. The said authority has referred to the first order passed by the Apex Court and refused to advert to the application for review on merits. After the second order was passed by the Apex Court the authority reiterated its view. The said authority has referred to the first order passed by the Apex Court and refused to advert to the application for review on merits. After the second order was passed by the Apex Court the authority reiterated its view. Submission of the learned counsel for the petitioner is that on reading of the two orders passed by the Apex Court it is quite clear that the Apex Court had not expressed any opinion in the matter and had dismissed the petition on the first occasion and on the second occasion had expressed its opinion that it would be proper for the petitioner to approach the High Court under Article 226 of the Constitution or any other forum as permitted by law. It is urged by her that correction with regard to the status of the petitioner in its ambit and sweep would include such consequences that flow from such correction. To appreciate the aforesaid submission, I have bestowed my anxious consideration and perused the orders passed by the Apex Court to understand the purport and effect of the same. It is to be borne in mind that the order passed by the First Additional Welfare Commissioner on 3-3-1997 contained in Annexure P-3 was assailed before the Apex Court in the year 1999. Their Lordships recorded the statement of the learned counsel appearing therein to the effect that a mistake had occurred in the judgment as the order described the petitioner as deceased and the learned counsel desired to apply to the Additional Welfare Commissioner for correction. Their Lordships made it absolutely clear that they were not expressing any opinion in that behalf. As has been indicated earlier the Special Leave Petition was dismissed as withdrawn. It is apparent that the order passed by the Additional Welfare Commissioner, Bhopal was assailed before the Apex Court. Their Lordships have not made any observation with regard to the merits of the order passed by the appellate authority. No liberty has been granted seeking review of the order of the appellate authority on any ground. Their Lordships only recorded the statement of the learned counsel who had submitted that he would file an application for correction of the error. Thus, liberty, if any is inferable from the said order can only be relatable to the correction of the error that had crept in. Their Lordships only recorded the statement of the learned counsel who had submitted that he would file an application for correction of the error. Thus, liberty, if any is inferable from the said order can only be relatable to the correction of the error that had crept in. In view of the aforesaid the appellate authority was justified in not opening the entire case for review. ( 6. ) ON the second occasion the Apex Court observed that it is appropriate for the petitioner to approach the High Court under Article 226 of the Constitution or any other forum. The submission of Mr. P. D. Gupta, learned Dy. A. G. for the State is that the appellate authority had no jurisdiction to review the order on merits after the Apex Court has dismissed the Special Leave Petition as withdrawn. The learned counsel for the State has urged that no liberty was granted for filing of an application for review. It is also putforth by him that in view of the first order of the Apex Court this Court would not like to reverse the order passed by the appellate authority inasmuch as the controversy was put to rest in all aspects by the Apex court barring the correction of the error. Appreciating the factual matrix in proper perspective and upon perusal of the orders passed by the Apex Court, I am of the considered view that the submission made by the learned counsel for the State has substantial force. Accordingly, I am inclined to give stamp of approval to the order passed the appellate authority. ( 7. ) AT this juncture, I feel obliged to mention that the learned counsel for the petitioner has submitted that a humanitarian attitude, should be adopted in a case of this nature as an unborn child suffered the trauma before he arrived on mother earth. In this context, I may profitably refer to few lines from Mamie Gene Cole which have been quoted with approval in the case of M. C. Mehta Vs. State of Tamil Nadu and others, AIR 1997 SC 699 : ( 8. ) I have suffered to the aforesaid aspects to highlight that the petitioner might have arrived on this earth with certain abnormalities and potential features for developing more abnormalities but a Court of Law has its own limitations. State of Tamil Nadu and others, AIR 1997 SC 699 : ( 8. ) I have suffered to the aforesaid aspects to highlight that the petitioner might have arrived on this earth with certain abnormalities and potential features for developing more abnormalities but a Court of Law has its own limitations. It cannot be forgotten that reason is the life of law and the law is the perfection of reason. It cannot be lost sight of the fact the petitioner who has been litigating through his natural guardian, had begun his journey and proceeded to arrive at its finality, when the learned counsel for the petitioner withdrew the Special Leave Petition with a statement for correction of an error. The petitioner may have the feeling that he has been undergoing an odyssey but the law which is founded on reason cannot render any assistance to the petitioner for the simple reason that invoking of jurisdiction under Article 226 of the Constitution after the order of the Apex Court at this stage would be contrary to all reason and logic. ( 9. ) RESULTANTLY, the writ petition deserves to be dismissed and accordingly I so do. However, in the peculiar facts and circumstances there shall be no order as to costs.