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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. __________ OF 2010 (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)(From the impugned judgment and order dated 30.11.2009 passed by the High Court of Madhya Pradesh in Writ Petition No.11276/2009.)

IN THE MATTER OF:ABDUL JABBAR KHAN & 7 Ors. PETITIONERS VERSUS OFFICE OF THE WELFARE COMMISSIONER & ANR. . RESPONDENTS

PAPER BOOK WITH IA No. ___ of 2010: An application for condonation of delay of _____ days of filing SLP.

(FOR INDEX KINDLY SEE INSIDE) ADVOCATE FOR THE PETITIONERS: MS. ANITHA SHENOY NEW DELHI DATED: March ___, 2010

INDEX Serial No. 01. 02. 03. 04. 05. Particulars. Office Report of Limitation. Listing Pro forma Checklist Synopsis and List of Dates True copy of the Impugned order and judgment dated 30.11.2009 passed by the High Court of Madhya Pradesh in Writ Petition No.11276/2009. SLP with Affidavit Annexure P1: True copy of Supreme Court order dated 19.07.04 passed in I.A. Nos. 46-47 in C.A. Nos. 3187-88 of 1988. 08. Annexure P2: True copy of the chart filed by the Union of India in its affidavit dated 26.10.06 filed in I.A.Nos. 48-49 of 2004 in C.A.Nos. 3187-88 of 1988. 09. Annexure P3: True copy of the Supreme Court order dated 25.02.2008 in I.A.Nos.1 & 2 of 2007 in I.A. Nos.48-49 of 2004 in C.A. Nos.3187-88 of 1988. 10. Annexure P4: True copy of the petition dated 28.08.2008 filed by the Petitioners in the court of the Welfare Commissioner, Bhopal. 11. Annexure P5: True copy of the order dated 31.01.2009 passed by the learned Welfare Commissioner, Bhopal. Page. No.

06. 07.

12

Annexure P6: True copy of the Writ Petition No. 11276 of 2009 filed by the Petitioners in the High Court of Madhya Pradesh.

13

IA No. ______ 2010: An application for condonation of delay of ____ days in filing SLP.

LISTING PROFORMA IN THE SUPREME COURT OF INDIA 1. 2. 3. 4. 5. 6. 7. 8. 8A 8B Nature of the matter Name(s) of Petitioner(s) / Appellant(s) Civil Abdul Jabbar Khan & Seven Others. Name(s) of Respondent(s) Office of the Welfare Commissioner Number of case SLP(C) No._________/2010. Advocate(s) for Petitioner(s) Anitha Shenoy Advocate(s) for Respondent(s) Section dealing with the matter Date of the Impugned Order/Judgment 30.11.2009 Name of the Honble Judges Honble Mr. Dipak Misra, J. & Mr. R.K. Garg, J. In Land Acquisition Matters:i) Notification / Govt. Order No. (u/s 4.6) NA Dated issued by Centre/State of NA ii) Exact purpose of acquisition & village involved NA In Civil Matters: i) Suit No. Name of Lower Court NA Date of Judgment NA In Writ Petition:Catchword of other similar matters NA In case of Motor Vehicle Accident Matters Vehicle No. NA In service Matters (i) Relevant service rule, if any NA (ii) G.O./Circular Notification, NA if applicable or in question In Labour Industrial Disputes Matters I.D. Reference /Award No, if applicable Nature of urgency: In case it is a Tax matter:a) Tax amount involved in the matter b) Whether a reference/statement of the case was called for or rejected c) Whether similar tax matters of same parties filed earlier (may be for earlier/other Assessment year)? NA NA

8C

8D 8E 8F

8G

9. 10.

NA NA

NA

d) 11. 12.

Exemption Notification/Circular No

NA NA

Valuation of the matter Classification of the matter (please fill up the number and name of relevant category with sub category as per the list circulated) No. of Subject Category with full name No. of sub-category with full name Title of the Act involved (Centre /State) The Bhopal Gas Leak Disaster (Registration & Processing of Claims) Act, 1985 a) Sub-classification (indicate section/ Article of the status) b) Sub section involved c) Title of the Rules involved (Centre/State) d) Sub-classification (indicate Rule/Sub-rule/State)

13.

14.

15.

Point of law and question of law raised in the case Whether victims of the Bhopal Gas Tragedy have a right to compensation in the changed circumstances under the Bhopal Gas Leak Disaster (Registration & Processing of Claims) Act, 1985 and their claims / issues arising of these changed circumstances warrants consideration by the courts? Whether matter is not to be listed before any Honble Judge? NA Mention the name of the Honble Judge Particulars of identical/similar cases, if any a) Pending cases b) Decided cases with citation 17A Was S.L.P. /Appeal/Writ filed against same impugned Judgment / Order earlier? If yes, particulars Whether the petition is against Interlocutory/final order/decree in the case Final Order If it is a fresh matter, please state the name of the High Court and the Coram in the impugned Judgment / Order

16.

17.

NA NA NA

18. 19.

20.

High Court of Madhya Pradesh, Principal Seat at Jabalpur order dated 30.11.2009. CORAM: Honble Mr. Dipak Misra, J. & Mr. R.K. Gupta, J. If the matter was already listed in this Court a) When was it listed? NA b) What was the coram? NA c) What was the direction of the Court NA Whether a date has already been fixed either by Court or on being mentioned for the hearing of matter? If so, please indicate the date fixed NA Is there a caveator? If so, whether a notice has been issued to him? Whether date entered in the Computer?

21.

22.

NA NA

23. 24.

If it is a criminal matter please state: NA a) Whether accused has surrendered NA b) Nature of Offence i.e. Convicted under Section with Act NA c) Sentenced awarded NA d) Sentence already undergone by the accused NA e) 24 e) (i)FIR/RC/etc NA f) Date of Registration of FIR etc. NA g) Name and place of the Police Station NA (ii) Name and place of Trial Court NA Case No. in Trial Court and Date of Judgment NA iii) Name and Place of 1st Appellate Court NA st Case No. in 1 Appellate Court and date of Judgment NA

Date:

___/__/2010 ANITHA SHENOY Advocate for Petitioners

SYNOPSIS This Special Leave Petition raises an important question pertaining to the claims of victims of the Bhopal Gas Tragedy that, whether, in light of changed circumstances, the High Court and the Welfare Commissioner were justified in not exercising their jurisdiction, including suo motto, to review the findings and undo any injustice. These changed circumstances have a crucial bearing on grant of relief to the victims, non-redressal of which is resulting in serious miscarriage of justice, violation of constitutional and legal rights of thousands of victims. The High Court as well as the Welfare Commissioner ought to have acted in furtherance and in light of the observations made by this Honble Court permitting review and the assurance that it will leave no stone unturned in undoing any injustice done owing the changed circumstances. This Honble Court held in Union Carbide v. Union of India & Ors. (1989) 3 SCC 38 regarding the increase in the total number of victims of the tragedy, that,Para 30: If the total number of cases of death or of permanent, total or partial, disabilities or of what may be called catastrophic injuries is shown to be so large that the basic assumptions underlying the settlement become wholly unrelated to the realities, the element of justness of the determination and of truth of its factual foundation would be seriously impaired. The justness of the settlement is based on these assumptions of truth.

Later this Honble Court in Charan Lal Sahu v. Union of India (1990) 1 SCC 613 held that,Para 165: ... A correct picture as to whether the amount of compensation for which the claims have been settled is meager, adequate or excessive will emerge only at the stage when the claims have been processed and their aggregate is determined.

With regard to the duty of the Union of India this Honble Court in Union Carbide Corporation v. Union of India (1991) 4 SCC 584 has held that the Union of India is bound by its commitment having acted as Parens Patriae on behalf of the victims The changed circumstances which have crucially impaired the fundamental assumptions drawn by this Honble Court are many. Foremost among them is the glaring reality that the original estimates of dead and injured persons on the basis of which the settlement figure was calculated is far below the actual, which is five times the former. As per Union of India records, the total number of claims filed was 10,01,723 of which 5,53,015 cases were awarded a total sum of Rs. 1,442.11 Crores. The number of claims of deaths registered was 22,149 of which 15,180 were awarded. Important issues, raised by the Petitioners before this Honble Court and the courts below, arising from the changed circumstances like, unjustness of compensation in the event of aggravation of injury, delay in disbursement of compensation, denial of interest on delayed compensation, review of wholesale conversion of more than 10,044 death claim cases, arbitrary ban on registration of death claim cases since 1997, etc. require adjudication to provide relief and undo the injustice meted out to the victims of the disaster whose suffering continues unabated. These crucial issues need to be addressed and adjudicated upon by the courts keeping in mind the object of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the scheme under this act along with the role of parens patriae played by the Union of India. The Welfare Commissioner vested with suo motto jurisdiction under the Bhopal Act declined to address these questions on the

ground that these questions have been settled by this Honble Court. The High Court only quoted the findings of the Welfare Commissioner and did not apply its independent mind in dismissing these crucial issues in limine.

LIST OF DATES

02-03.12.1984

Bhopal gas leak disaster exposes residents of 36 of the 56 municipal wards of Bhopal to highly toxic gases, which inflicted injuries in varying degrees to nearly two-thirds of the citys population of 900,000 people ultimately causing over 20,000 deaths.

29.03.1985

Enactment

of the The Bhopal Gas Leak Disaster

(Processing of Claims) Act, 1985. 24.09.1985 Framing of the The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme 1985 and publication of the same in the Gazette of India. 14/15.02.1989 The Bhopal Settlement was reached between Union of India and Union Carbide Corporation (UCC), USA, under the aegis of the Supreme Court of India for a sum of 470 million U.S. Dollars in C.A No.3187-88 of 1988. The order approving the settlement is reported in (1989) 1 SCC 674. March, 1989 The Settlement was challenged by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS), the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) and others vide Review Petition No. 229 of 1989 in Civil Appeals Nos. 3187-88 of 1988 and vide Writ Petition (Civil) No. 293 of 1989 before this Honble Court, mainly on three grounds: (a) that the Settlement sum was less than one-sixth of the claim originally made by the Union of India before the Bhopal District Court in January, 1986; (b) that the Settlement did not disclose the number of beneficiaries (c) that the Settlement quashed all pending and future criminal cases against all the accused in the case.

04.05.1989

Responding to the criticisms raised against the Settlement, the Supreme Court issued a clarificatory order [reported in (1989) 3 SCC 38] disclosing that the Settlement was based on the assumption that the disaster caused only 3000 deaths and inflicted injuries in varying degree to 1,02,000 others. The justification given by the Court was the urgency to provide relief to the vast majority of the victims. In order to justify the settlement amount, the Court took into consideration the figures which were available and also certain assumptions and on that basis observed that in those circumstances it appears to be just. The basis of calculations and assumptions drawn by this Honble Court appears in paras 22, 24, 25 & 27 in (1989) 3 SCC 38 and is shown in tabular form given below.S.No. 1. CATEGORY Death (3000 cases) 2. Permanent total or partial disability (30,000 cases) Temporary total or partial disability (20,000 cases) Injuries of utmost severity (2000 cases) Minor injuries (50,000 cases) Loss of personal belongings (50,000 cases) Loss of livestock (50,000 cases) Specialised Medical Treatment RANGE OF COMPENSATION AND AMOUNT ALLOCATED Rs.1 lakh to Rs. 3 lakhs (Total Amount Allocated = Rs.70 crores) Rs.50,000/- to Rs.2 lakhs (Total Amount Allocated = Rs.250 crores) Rs.25,000 to Rs.1 lakh (Total Amount Allocated = Rs.100 crores) Rs.4 lakhs (Total Amount Allocated = Rs.80 crores) Rs.20,000/- (Total Amount Allocated = Rs.100 crores) Rs.15,000/- (Total Amount Allocated = Rs.75 crores) Rs.10,000/- (Total Amount Allocated = Rs.50 crores) (Total Amount Allocated =Rs.25 crores)

3.

4. 5. 6. 7. 8.

However this Honble Court added that, (1989) 3 SCC 38: Para 37 A settlement has been recorded upon material and in circumstances which persuaded the court that it was a just settlement. This is not to say that this Court will shut out any important material and compelling circumstances which might impose a duty on it to exercise the powers of review. Like all other human

22.12.1989

This Honble Court in Charan Lal Sahu v. Union of India reported in (1990) 1 SCC 613, where constitutional validity of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was challenged observed on the object and purpose of the Act that, Para 128. The Act was conceived on the noble promise of giving relief and succour to the dumb, pale, meek and impoverished victims of a tragic industrial gas leak disaster, a concomitant evil in this industrial age of technological advancement and development. The Act had kindled high hopes in the hearts of the weak and worn, wary and forlorn. The Act generated hope of humanity. The implementation of the Act must be with justice... Further this Honble Court defined the role of the Union of India in the Act and the Scheme as parens patriae. Defining this jurisdiction of parens patriae the Supreme Court observed that: Para 35: ... Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. (Ranganathan, J.) Para 165: ... A correct picture as to whether the amount of compensation for which the claims have been settled is meager, adequate or excessive will emerge only at the stage when the claims have been processed and their aggregate is determined.

03.10.1991

The Supreme Court dismissed the review and writ petitions filed against the Settlement as far as the civil liability of UCC was concerned in its order reported in (1991) 4 SCC 584. However, it revoked the quashing of criminal cases. On the issue of future claims this Honble Court held that, (1991) 4 SCC 584: Para 135 The likelihood of future complications though they may mean mere assessment or evaluation of mere chances are also put into the scales in quantifying damages. This principle may, as rightly pointed out by Sri Nariman, take care of the victims who have manifested symptoms. But what about those who are presently wholly asymptomatic and have no material to support a present claim? Who will provide them surveillance costs and if at some day in the future they develop any dreaded symptoms, who will provide them with compensation? Even if the award is an once and for all determination, these aspects must be taken into account. With respect to the ground of inadequacy of the settlement fund owing to exclusion of a large number of claims this Honble Court gave the assurance that, (1991) 4 SCC 584: Para 198: After a careful thought, it appears to us that while it may not be wise or proper to deprive the victims of the benefit of the settlement, it is, however, necessary to ensure that in the perhaps unlikely event of the settlement fund being found inadequate to meet the compensation determined in respect of all the present claimants, those persons who may have their claims determined after the fund is exhausted are not left to fend for themselves. But, such a contingency may not arise having regard to the size of the settlement fund. If it should arise, the reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare State and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.

Concluding this Honble Court held that,

19.07.2004

The Supreme Court formally acknowledged the actual magnitude of the disaster in terms of the number of dead and injured in I.A. Nos. 46-47 in C.As. Nos. 3187-3188 of 1988. Vide the said order the learned Welfare Commissioner was directed to disburse the remaining settlement fund on a pro-rata basis to all those who had been awarded compensation after taking into account the remaining unsettled claims. In the said order, it was held that, Ms. Indira Jaisingh, learned Senior Counsel submitted that the amount available may fall short to satisfy the claims of all persons fully and in that regard, she would make necessary application. It is open for her to do so. A true copy of the said order dated 19.07.04 is hereto marked and annexed as ANNEXURE P1.

14.09.2004

Since the Supreme Court had ipso facto recognized that the magnitude of the Bhopal disaster was FIVE times greater than was assumed at the time of the Settlement, the Bhopal Gas Peedith Mahila Udyog Sanghathan (hereinafter referred to as BGPMUS) & the Bhopal Gas Peedith Sangharsh Sahayog Samit (hereinafter referred to as BGPSSS) filed I.A.Nos. 48-49 of 2004 in Civil Appeals Nos. 3187-3186 of 1988 in the Supreme Court.

26.10.2006

Union of India in an affidavit filed in I.A.Nos. 48-49 of 2004 in C.A. Nos. 3187-88 of 1988 disclosed the position of settlement of claim cases as on 31.07.2006 wherein it was admitted that the total number of gas victims who were awarded compensation was,a) Under category 04 (death) - 15,327 cases b) Under category 01 (injury) - 5,58,125 cases

A true copy of the chart filed by the UOI in the said affidavit dated 26.10.2006 is hereto marked and annexed as ANNEXURE P2. 04.05.2007 The Supreme Court disposed of I.A. Nos. 48-49 of 2004 in C.A. Nos. 3187-88 of 1988 by judgment reported in (2007) 9 SCC 707, after referring to the directions given in various judgments felt that the Welfare Commissioner, Bhopal is competent to adjudicate these issues. 13.10.2007 On behalf of all gas-victims and particularly the 1,01,000 gas-victims, who had made individual appeals, BGPMUS & BGPSSS filed I.A. Nos.1 & 2 of 2007 in I.A. Nos.48-49 of 2004 seeking clarification & modification of the Order of Nos.3187-88 of 1988. 25.02.2008 The Supreme Court disposed of I.A.Nos.1 & 2 of 2007 in I.A. Nos.48-49 of 2004 in C.A. Nos.3187-88 of 1988 as withdrawn after BGPMUS & BGPSSS withdrew their applications primarily to first seek clarifications from the learned Welfare Commissioner in accordance with the observations made by the Supreme Court vide order dated 04.05.2007 for the purposes of determination of facts. A true copy of the said order dated 25.02.2008 is hereto marked and annexed as ANNEXURE P3. Supreme Court dated 04.05.2007 in I.A. Nos.48-49 of 2004 in C.A.

28.08.2008

Nine gas-victims, who were members of BGPMUS & BGPSSS, filed a joint application before the Court of the learned Welfare Commissioner, Bhopal, for purpose of determination of issues regarding the magnitude and gravity of the disaster. A true copy of the petition dated 28.08.2008 filed by the Petitioners in the court of the learned Welfare Commissioner, Bhopal is hereto marked and annexed as ANNEXURE P4.

31.01.2009

The Court of the learned Welfare Commissioner dismissed the application filed by the said Petitioners ___________________. A true copy of the said order dated 31.01.2009 is hereto marked and annexed as ANNEXURE P5.

28.10.2009

The Petitioners filed Writ Petition No. 11276 of 2009 before the High Court of Madhya Pradesh at Jabalpur against the order dated 31.01.09 of the learned Welfare Commissioner. A true copy of the Writ Petition No. 11276 of 2009 is hereto marked and annexed as ANNEXURE P6.

30.11.2009

The High Court of Madhya Pradesh, Principal Seat at Jabalpur dismissed in limine W.P. No. 11276/2009 filed by the Petitioners after quoting the Welfare Commissioners order and without going into the questions raised by the Petitioners.

__.03.2010

Hence, the present SLP.

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P.No. 11276 of 2009 Abdul Jabbar Khan, Convenor, Bhopal Gas Peedith Mahila Udyog Sangathan & 7 Ors. Versus Office of the Welfare Commissioner & Anr. ..Respondents

.. Petitioner

For the petitioners:

Mr. Aagney Sail and Akash Choudhary, Advocates

------------------------------------------------------------------Present: Honble Mr. Justice Dipak Misra Honble Mr. Justice R.K. Gupta ----------------------------------------------------------------------------------------ORDER (30.11.2009) As per Dipak Misra, J: The Convenor and the Members of Bhopal Gas Peedith mahila Udyog Sangathan, have preferred this public interest litigation seeking directions to respondents to provide adequate compensation as per the terms of the Bhopal Settlement on examination of the claim petitions pertaining to death claims that have been rejected/converted to injury claims, seeking upgradation of injury claims. 2. The specific reliefs which the petitioners seek in the present public interest litigation are as follows:(a) Pass an Order directing the Office ofthe Welfare Commissioner to permit the Petitioners, or any other competent body, such as the Advisory Committee on Medical Research that was set up by the Honble Supreme Court vide Order dated

17.8.2004 in W.P.(C) No,50 of 1998, to re-examine the medical documentation & categorisation records and to review the basis on which 6812 death-claim (04Category) cases were rejected as unrelated to the Bhopal disaster. (b) Pass an Order directing the Office of the Welfare Commissioner to permit the Petitioners, or any other competent body, such as the Advisory Committee on Medical Research that was set up by the Honble Supreme Court vide Order dated 17.8.2004 in W.P.(C) No,50 of 1998, to re-examine the medical documentation & categorisation records and to review basis on which 10,044 death-claim (04-Category) cases were downgraded to injury cases (effectively as 01-Category) and awarded compensation for INJURY and not for death. (c) Pass an Order declaring that all gas victims, who are forced to seek medical treatment for gas-related ailments even twenty-five years after the disaster, are permanently injured and that their compensation should be enhanced accordingly. (d) Pass an order giving liberty to the petitioners to file necessary interlocutory application, writ or any other appropriate petition, at a later stage, to challenge the Order of this Hon'ble Court date 16.04.2004 in MCC No.490 of 2004 (Union of India vs. Smt.Sumitra Saini), which upheld the denial of interest payment to the gas-victims, after collecting the case file and relevant documents. (e) Pass an Order directing the Office of the Welfare Commissioner to disclose the methodology by which the Settlement Fund of 465 million U.S. Dollars, which was earmarked as compensation to 1,05,000 gas-victims as per the terms of the Bhopal Settlement, was awarded as compensation to 574,367 gas-victims, i.e., to Five times

more the number of beneficiaries than was determined at the time of the Settlement; (f) Pass an order to award compensation to the 5,74,367 gas-victims at the value of the Rupee vis--vis the US Dollar as prevalent on the date of the Bhopal Settlement..

3. In respect of the claims for re-examination of medical documents and categorization of records and to review 6812 death claims (Category-A) rejected being unrelated to Bhopal disaster, we observe from the order dated 31.1.2009 passed by the learned Welfare Commissioner, Bhopal Gas Victims that the issue has been extensively dealt with in paragraphs 13, 17 and 18: 13. As held in 1991 4 SCC 584, the petitioners seriously assailed the correctness of the guidelines for medical evaluation and also the results of the actual operational process of evaluation based thereon. The Honble Supreme Court held that particular care has gone into the prescription of the medical documentation tests and the formulation of the results for purposes of evaluation and categorization. xxxx xxxxxx xxxxxx 17. Now coming to the maintainability of the present petition, on May 4, 2007, Supreme Court dismissed two interlocutory applications filed by BGPMUS and BGPSSS (the petitioners before me). These I.A.Nos. 48-49 filed in two disposed of Civil Appeal Nos. 3187-3188 of 1988 were for issuing appropriate Writ, direction or Order to re-examine the inadequacy of Bhopal Gas Settlement, to direct Government of India to compensate the settlement fund five times the initial fund; to Order the Reserve Bank of India to provide detailed information on management and utilization of the settlement fund by rendering faithful

account relating to withdrawal of funds by Welfare Commissioner; to command Welfare Commissioner, Bhopal to provide complete information regarding process of identification and categorization of gas victims and the manner of disbursement of compensation to them; to rectify the methodology in the process of identification and categorization of gas victims and the manner of disbursement of compensation of amounts by enhancing compensation appropriately. 18. Dismissing I.A.Nos. 48-49 the Supreme Court observed that no case has been made out to issue any directions; since the Act has been enacted, a Scheme has been framed under the Act and the Procedure has been laid down, which has to be constitutional and intra vires, which protect the rights of the victims. The Court held Any person lodging a claim is required to make an application and a duty is cast on the Authority to take an appropriate decision on the basis of the Scheme and Guidelines. Such adjudication has been held quasi-judicial in nature subject to appeal, revision and judicial review before the High Court under Articles 226 & 227 and even thereafter before this Court under the Article 136 of the Constitution. Since the consideration of claim and adjudication thereof requires determination of facts, the Court ruled that it must be done in accordance with the Scheme, Guidelines and Procedure under the Act and not in any other manner. So far as compensation is concerned, this Court has held that it should be in Indian currency and even under the Scheme, such amount is fixed in Indian currency and even under the Scheme, such amount is fixed in Indian Rupees. We, therefore, see no grievance now can be made on that issue.

4. Regarding methodology of settlement of fund, the said aspect has also been extensively dealt with by the learned Commissioner after taking into consideration the conditions laid down by the Apex Court in Union Carbide India Ltd. And Ors. Vs. Union of India and Ors. 1995 Supp (4) SCC 537. The learned Commissioner has observed as follows: 16..and the court accepted the submission that while withdrawing funds the rupee deposit and the amount representing accrued interest, should be utilized and progressively exhausted so that the benefit of any prospect of higher exchange rate of dollar may be preserved, as this would protect the interests of the victims in the event of increase in the exchange rate of the dollar. From above Para (I) it would clearly appear that the fund is to be used for making payment towards compensation as determined. The process of determination was to be undertaken by us. The Apex Court never said that amount of compensation was to be determined in US$. In fact, the Apex Court in Para 9v) to maintain the position of the fund directed that regard be had to the conversion rate. Thus, the question of making payment in dollar does not arise. 5. The contentions put forth by the petitioners in present public

interest litigation having being exhaustively dealt with by the learned Commissioner after taking into consideration the orders of the Apex Court from time to time, we are of the considered opinion that no relief can be granted to the petitioners in this public interest litigation and accordingly the same stands dismissed in limine. (Dipak Misra) JUDGE (R.K. Gupta) JUDGE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. __________ OF 2010 (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)(From the impugned judgment and order dated 30.11.2009 passed by the High Court of Madhya Pradesh in Writ Petition No.11276/2009.)

BETWEEN POSITION OF THE PARTIES Before Ld. Before Before this Commissioner High Court, Honble Division Court BenchABDUL JABBAR KHAN Convenor, Bhopal Gas Peedith Mahila Udyog Sangathan, S/o Lt. Abdul Sattar, Aged about 52 years, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. HAMIDA BI Member, Bhopal Gas Peedith Mahila Udyog Sangathan, W/o Lt. Mohd. Idris, Aged about 57 years, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. MOHINI DEVI Member, Bhopal Gas Peedith Mahila Udyog Sangathan, W/o Puran Lal, Aged about 51 years, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. MOHAMED IDRIS Member, Bhopal Gas Peedith Mahila Udyog Sangathan, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. Petitioner No. 1 Petitioner No. 1 Petitioner No. 1

Petitioner No. 2

Petitioner No. 2

Petitioner No. 2

Petitioner No. 3

Petitioner No. 3

Petitioner No. 3

Petitioner No. 4

Since Deceased

Since Deceased

RAISA BI Member, Bhopal Gas Peedith Mahila Udyog Sangathan, W/o Lt. Naseer Khan, Aged about 46 years, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. SHAZIA Member, Bhopal Gas Peedith Mahila Udyog Sangathan, D/o Shahnawaz Khan, Aged about 25 years, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. MOHAMED SALIM Member, Bhopal Gas Peedith Mahila Udyog Sangathan, S/o Lt. Shakhur Ullah Khan, Aged about 51 years, R/o 51, Rajendar Nagar, Bhopal 462010, M.P. PREM NARAYAN VARMA Member, Bhopal Gas Peedith Sangharsh Sahayog Samiti, S/o Hamant Singh Varma, Aged about 53 years, R/o A-108, Padmanabh Nagar, New Subash Nagar, Bhopal 462023, M.P. M.K. BALAN Member, Bhopal Gas Peedith Sangharsh Sahayog Samiti, S/o Keshav Balan, Aged 63 years, R/o A-108, Padmanabh Nagar, New Subash Nagar, Bhopal 462023, M.P.

Petitioner No. 5

Petitioner No. 4

Petitioner No. 4

Petitioner No. 6

Petitioner No. 5

Petitioner No. 5

Petitioner No. 7

Petitioner No. 6

Petitioner No. 6

Petitioner No. 8

Petitioner No. 7

Petitioner No. 7

Petitioner No. 9

Petitioner No. 8

Petitioner No. 8

VERSUS OFFICE OF THE WELFARE COMMISSIONER, Through the Assistant Welfare Commissioner, Dr. Rajendra Prasad Bhavan, Opposite Old Vidhan Sabha, Bhopal, M.P. UNION OF INDIA, Through its Secretary, Ministry of Chemical & Fertilisers, Shastri Bhavan, New Delhi 110001 Respondent No. 1Contesting Respond ent No. 1

Respondent No. 2

Contesting Respond ent No. 2

TO

THE HON'BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON'BLE SUPREME COURT OF INDIA: THE HUMBLE PETITION OF THE PETITONER ABOVE NAMED MOST RESPECTFULLY SHEWETH: 1. This Special Leave Petition is filed against the order and the judgment dated 30.11.2009 of a Division Bench of Honble High Court of Madhya Pradesh, principal seat at Jabalpur in Writ Petition No. 11276 of 2009. 2. QUESTION OF LAW: That the present Petition involves substantial questions of law of general importance inter alia including the following question: Whether the High Court and the Welfare

a)

Commissioner were justified in rejecting the prayers sought for by the Petitioners which were in the interest of victims of Bhopal Gas Tragedy? Whether the High Court and the Welfare

b)

Commissioner were justified in observing that the issues raised in the petition stood covered by the judgments of this Honble Court when the correct fact is otherwise: the directions given by this Honble Court permit review of the entire process of grant of compensation circumstances?c)

/

settlement

in

the

changed

Whether the unjustness of compensation in the

event of aggravation of injury, delay in disbursement of compensation, denial of interest on compensation for

the delay award of interest/compensation for the delay, review of wholesale conversion of death claims to injury claims the death claim cases etc. were not the important issues which ought to have been decided by the Welfare Commissioner and by the High Court?d)

Whether the Welfare Commissioner as well as

the High Court did not commit an error by not noticing that this Honble Court had extended its promise to the victims for doing justice and that promise extends as long as the impacts of injury in the said disaster continues?e)

Whether the Welfare Commissioner and the High

Court ought not to have decided the issues raised by the Petitioners on the basis of Constitutional mandate in particular Article 21 of the Constitution and the parens patriae doctrine? 3. DECLARATION IN TERMS OF RULE 4(2): The Petitioners state that no other petition seeking leave to appeal has been filed by them against the impugned order. 4. DECLARATION IN TERMS OF RULE- 6: Annexures P to P produced along with the SLP are true and correct copies of the pleadings / documents which form part of the record of the case in the Court below against whose order leave to appeal is sought for in this petition. 5. GROUNDS: The Petitioners prefer this petition under Article 136 of the Constitution of India for Special Leave to appeal inter alia on the following grounds:

5.1

Because the settlement was based on the

circumstances which this Honble Court took into consideration to arrive at the finding that it was a just settlement. This Honble Court however, had put a word of caution that the entire aim behind the exercise is that there should not be miscarriage of justice and violation of legal and constitutional rights of the persons affected and that if such an eventuality arises, this Honble Court will review its findings and will endeavour to undo any such injustice (vide Union Carbide Corporation Vs Union of India (1989) 3 SCC 38). Because, the judgments given by this Honble

5.2

Court regarding the Bhopal case recognized the duty of the State parens patriae doctrine and that this human tragedy has to be looked at from the constitutional perspective including Article 21 of the Constitution. This Honble Court also recognized that, in a matter of this nature the approach of granting relief cannot be static, it has to be modified or moulded in the changed circumstances brought to the knowledge of this Court. It is with this idea that the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (hereinafter referred to as Bhopal Act) was enacted, in any case the provisions of this Act have to be interpreted in harmony with the directions given by this Honble Court. It is the reason why, the Welfare Commissioner has been given suo motto powers, namely, that not only the Welfare Commissioner himself can take up the issues where he discovers violation of legal/constitutional rights but, even on the application moved by a third

party. The exercise of powers of suo motto have been settled by this Honble Court. Because the issues which were raised by the

5.3

Petitioners before the Welfare Commissioner were of fundamental importance, the decision on which would have given further cause of action to the affected persons to seek remedy/relief under the provisions of the Bhopal Act. The determination of these questions was not dependent on an individual raising those questions. They could have been raised collectively as they represented collective legal and constitutional rights of a class of affected people. The Welfare Commissioner could have entertained these issues either within its suo motto jurisdiction or on the basis of the judgments of this Honble Court in the Bhopal Case. The Welfare Commissioner however, declined to address these questions on a totally untenable ground that these questions have been settled by this Honble Court. The High Court only quoted the findings of the Welfare Commissioner and did not apply its independent mind.5.4

Because, one of the issues regarding which relief

was sought by the Petitioners was regarding a group of affected people who had received compensation on certain basis looking at the injury/harm they sustained but during the course of time the said injury/harm aggravated resulting in permanent disability/injury. What should be the methodology for looking into the enhancement of their claims was an important question. The judgments of this Honble Court have accepted that the impacts of the lethal gas were so

great that their after-effects could not be known immediately. This Honble Court had also emphasized on the grant of just compensation. A compensation which was just at a particular point of time became unjust with the passage of time where the injury got aggravated because of the impact of the lethal gas. The remedy in this situation was available only within the provisions of the Bhopal Act and if the provisions of the Bhopal Act were deficient then, under Article 226 of the Constitution and Article 32 to this Honble Court. This was the assurance given by this Honble Court to the people in Krishna Mohan Shukla v. Union of India, (2000) 2 SCC 690. Because the amount which was covered by the

5.5

settlement had proceeded on the assumption that the total number of victims were 1,05,000. However, this number increased to more than five times and the official figure of the Government of India is that 5,73,452 people are affected. The actual number of affected people is many times more. Instead of enhancing the compensation amount which should have been five times the initial amount, the settlement amount of Rs. 750 crores was distributed amongst 5,74,367 lakh people in a manner which is unjust and unfair. In cases of death claim, the Welfare Commissioner has awarded only Rs. 1 lakh in maximum cases when they are entitled to a maximum compensation of Rs. 3 lakhs. The total number of death cases which have been rejected is as many as 10,044. The injured persons have been granted only Rs. 25,000, that too after a prolonged period of more than a decade. When the circumstances have substantially

changed there was no reason not to review/modify the settlement amount. This was not only required but is the mandate of the judgments given by this Honble Court. Because the argument with regard to payment of

5.6

interest and to disburse the compensation amount on the basis of exchange rate of dollar on the day when the amount was disbursed was not adverted to either by the Welfare Commissioner or by the High Court. To illustrate, if the claim was filed in the year 1991 and the amount of Rs. 25,000/- was disbursed in the year 1999 there was no reason not to give that said amount on the basis of exchange rate of dollars. In any case the delay resulted in violation of rights of the affected people under Article 21 of the Constitution and therefore, under the public law remedy they could have asked for payment of further compensation. The victims had suffered during this period because on one hand, the money was not available and on the other, the injury caused was affecting their health. Because the High Court as well as the Welfare

5.7

Commissioner did not consider the very crucial issue which was raised by the Petitioners namely that 10,044 claim cases of death were rejected. The State has, in fact, arbitrarily stopped registering the claim cases of death, which means that, even if a person dies because he was affected by the lethal gas, his case will not be registered as a death claim case and he will not be entitled to compensation on that basis. The massive number of deaths which took place could not be said to be natural deaths. The petitioners have analyzed the

facts and the following factors emerge which call for a reopening of these death cases so that relief can be granted to the affected families of the deceased victims. 6. GROUNDS FOR INTERIM RELIEF: No interim relief is sought. 7. MAIN PRAYER : It is therefore, most respectfully, prayed that this Honble Court may be pleased to:(a)Grant Special Leave to Appeal against the judgment and order dated 30.11.2009 passed by the Division Bench of the Honble High Court of Madhya Pradesh, principal seat at Jabalpur in Writ Petition No. 11276 of 2009. (b)Pass any such other or further orders which this Honble Court may deem fit and proper on the facts and in the circumstances of the case. 8. PRAYER FOR INTERIM RELIEF: No interim relief is sought AND FOR THIS ACT OF KINDNESS, THE PETITIONERS AS IN DUTY BOUND SHALL EVER BE GRATEFUL. Place: New Delhi Drawn by: Aagney Sail, Advocate Settled by: Sanjay Parikh, Advocate Drawn on: March Filed on: March , 2009 , 2009 (Ms. ANITHA SHENOY)

Advocate for Petitioners IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. _____ OF 2010 (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF :ABDUL JABBAR KHAN & 7 Ors. PETITIONERS VERSUS OFFICE OF THE WELFARE COMMISSIONER & ANR. . RESPONDENTS CERTIFICATECertified that the Special Leave Petition is confined only to the pleadings before the Court whose order is challenged and the other documents relied upon in those documents. No additional facts, documents or grounds have been taken or relied upon in this Special Leave Petition. It is further certified that the copies of the documents / annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the petition or to make the grounds urged in the Special Leave Petition for consideration of this Honble Court. This certificate is given on the basis of the instructions given by the petitioners / person authorized by the petitioners whose affidavit is filed in support of the Special Leave Petition.Filed By:

(Ms. ANITHA SHENOY) COUNSEL FOR PETITIONERS New Delhi Dated: ___.03.2010

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. _____ OF 2010 (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF :ABDUL JABBAR KHAN & 7 Ors. PETITIONERS VERSUS OFFICE OF THE WELFARE COMMISSIONER & ANR. . AFFIDAVIT I, Abdul Jabbar Khan, S/o Late Shri Abdul Sattar, aged about 52 years, residing at 51, Rajendra Nagar, Bhopal 462010 do hereby affirm and state as follows:1.

RESPONDENTS

I am the Petitioner No. 1 and the Convenor of Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS) in the above Special Leave Petition. I am aware of the facts and as such I am competent to swear this affidavit. I state that the contents of the Special Leave Petition to appeal in paragraphs 1 to 8 at pages to are true to my information received from the records and legal advice received and believed by me to be correct. I say that the facts contained in the form of List of Dates at pages to are true and correct. I say that the contents of the other IAs are true and correct. That the Annexures P1 to at pages to are true and

2.

3.

correct copies of the respective originals. 4. I say that the facts stated in this Affidavit are true and correct, no part of it is false and nothing material has been concealed therefrom.

Verified at New Delhi on 16th day of February, 2010. DEPONENT VERIFICATION: Verified at New Delhi on this __ day of February, 2009 that the contents of the above affidavit are true and correct to my knowledge and that nothing material has been concealed therefrom. DEPONENT

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. No. ______ of 2010 IN SPECIAL LEAVE PETITION (CIVIL) NO. _______ OF 2010 (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: ABDUL JABBAR KHAN & 7 Ors. PETITIONERS VERSUS OFFICE OF THE WELFARE COMMISSIONER & ANR. . RESPONDENTS APPLICATION FOR CONDONATION OF DELAY OF _____ DAYS IN FILING SLP TO THE HONOURABLE CHIEF JUSTICE OF INDIA AND HIS LORDSHIPS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA. THE HUMBLE APPLICATION OF THE APPLICANT ABOVE NAMED. MOST RESPECTIVELY SHOWETH:The Petitioners above named are filing the present petition for seeking Special Leave to Appeal against the judgment and order dated 30.11.2009 passed by the Division Bench of the Honble High Court of Madhya Pradesh, principal seat at Jabalpur in Writ Petition No. 11276 of 2009.

1.

2.

That the contents of the above Petition are not being repeated herein in the interests of brevity. That the Petitioners seek leave to refer and rely on the above Petition at the time of hearing of this application. That the Petitioners could not file this Special Leave Petition earlier as they have been collecting information about death claim cases rejected in the court of Welfare Commissioner and also by the High Court. In addition to this, the Petitioners have also been pursuing other cases pending in various courts including this Honble Court pertaining to the Bhopal Gas Tragedy including the criminal case ongoing in Bhopal. These have been consuming a lot of time, in particular the ongoing case before this Honble Court wherein the Welfare Commissioner has moved an application seeking directions to close down the Office of the Welfare Commissioner. Therefore it is prayed that the delay in filing the Special Leave Petition against the judgment and order dated 30.11.2009 passed by the Division Bench of the Honble High Court of Madhya Pradesh, principal seat at Jabalpur in Writ Petition No. 11276 of 2009 may please be condoned and the Special Leave Petition may be entertained, in the interest of justice and equity.

3.

4.

5. That the present application is bonafide and is made in the interest of justice. PRAYER In the facts and circumstances stated hereinabove, it is Most Respectfully prayed that this Hon'ble Court may be pleased to:

a)

Condone the delay of _____ days in filing of the SLP against the judgment and order dated 30.11.2009 passed by the Division Bench of the Honble High Court of Madhya Pradesh, principal seat at Jabalpur in Writ Petitionl No. 11276 of 2009.

b)

Pass any such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances stated herein above.

FOR THIS ACT OF KINDNESS THE PETITIONERS/APPLICANTS HEREIN AS IN DUTY BOUND SHALL EVER PRAY. Filed By: (Ms. Anitha Shenoy) Advocate for Petitioners Place: New Delhi. FILED ON: .03.2010