Bhopal Gas Slp Final 2

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. Particulars. Page. No.

01. Office Report of Limitation.

02. Listing Pro forma

03. Checklist

04. Synopsis and List of Dates

05. 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.

06. SLP with Affidavit

07. 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.


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.


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.


True copy of the petition dated 28.08.2008 filed by the Petitioners in the court of the Welfare Commissioner, Bhopal.


True copy of the order dated 31.01.2009 passed by the learned Welfare Commissioner,

Bhopal.

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 PROFORMAIN THE SUPREME COURT OF INDIA

1. Nature of the matter Civil2. Name(s) of Petitioner(s) / Appellant(s) Abdul Jabbar Khan

& Seven Others.3. Name(s) of Respondent(s) Office of the

Welfare Commissioner4. Number of case SLP(C) No._________/2010.5. Advocate(s) for Petitioner(s) Anitha Shenoy 6. Advocate(s) for Respondent(s) -7. Section dealing with the matter8. Date of the Impugned Order/Judgment 30.11.20098A Name of the Hon’ble Judges

Hon’ble Mr. Dipak Misra, J. & Mr. R.K. Garg, J.8B In Land Acquisition Matters:-

i) Notification / Govt. Order No. (u/s 4.6) NADated issued by Centre/State of NA

ii) Exact purpose of acquisition & village involved NA8C In Civil Matters:

i) Suit No. Name of Lower Court NADate of Judgment NA

8D In Writ Petition:-‘Catchword’ of other similar matters NA

8E In case of Motor Vehicle Accident MattersVehicle No. NA

8F In service Matters(i) Relevant service rule, if any NA(ii) G.O./Circular Notification, NA

if applicable or in question 8G In Labour Industrial Disputes Matters NA

I.D. Reference /Award No, if applicable NA

9. Nature of urgency:10. In case it is a Tax matter:-

a) Tax amount involved in the matter NAb) Whether a reference/statement of the

case was called for or rejected NAc) Whether similar tax matters of same parties

filed earlier (may be for earlier/other Assessment year)? NA

d) Exemption Notification/Circular No NA

11. Valuation of the matter NA12. 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

13. Title of the Act involved (Centre /State) The Bhopal Gas Leak Disaster (Registration & Processing of Claims) Act, 1985

14. a) Sub-classification (indicate section/ Article of the status)

b) Sub section involvedc) Title of the Rules involved

(Centre/State) d) Sub-classification (indicate Rule/Sub-rule/State)

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?

16. Whether matter is not to be listed before any Hon’ble Judge? NA

Mention the name of the Hon’ble Judge

17. Particulars of identical/similar cases, if anya) Pending cases NAb) Decided cases with citation NA

17A Was S.L.P. /Appeal/Writ filed against same impugned NA Judgment / Order earlier? If yes, particulars

18. Whether the petition is against Interlocutory/final order/decree in the case Final Order

19. If it is a fresh matter, please state the name of the High Court and the Coram in the impugned Judgment / Order

High Court of Madhya Pradesh, Principal Seat at Jabalpur order dated 30.11.2009. CORAM: Hon’ble Mr. Dipak Misra, J. & Mr. R.K. Gupta, J.

20. If the matter was already listed in this Courta) When was it listed? NAb) What was the coram? NAc) What was the direction of the Court NA

21. 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

22. Is there a caveator? If so, whether a notice has been issued to him? NA

23. Whether date entered in the Computer? NA

24. If it is a criminal matter please state: NAa) Whether accused has surrendered NAb) Nature of Offence i.e. Convicted under Section with

Act NAc) Sentenced awarded NAd) Sentence already undergone by the accused NAe) 24 e) (i)FIR/RC/etc NAf) Date of Registration of FIR etc. NAg) Name and place of the Police Station NA

(ii) Name and place of Trial Court NACase No. in Trial Court and Date of Judgment NA

iii) Name and Place of 1st Appellate Court NACase No. in 1st Appellate Court and date of Judgment NA

Date: ___/__/2010ANITHA SHENOY

Advocate for Petitioners

S Y N O P S I S

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 Hon’ble Court permitting review and the assurance that it will

leave no stone unturned in undoing any injustice done owing the

changed circumstances. This Hon’ble 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 Hon’ble 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 Hon’ble 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 Hon’ble 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 Hon’ble

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 Hon’ble

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

city’s 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 Hon’ble 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 Hon’ble Court

appears in paras 22, 24, 25 & 27 in (1989) 3 SCC 38 and is

shown in tabular form given below.

S.No. CATEGORY RANGE OF COMPENSATIONAND AMOUNT ALLOCATED

1. Death (3000 cases)

Rs.1 lakh to Rs. 3 lakhs(Total Amount Allocated = Rs.70 crores)

2. Permanent total or partial disability (30,000 cases)

Rs.50,000/- to Rs.2 lakhs(Total Amount Allocated = Rs.250 crores)

3. Temporary total or partial disability (20,000 cases)

Rs.25,000 to Rs.1 lakh (Total Amount Allocated = Rs.100 crores)

4. Injuries of utmost severity (2000 cases)

Rs.4 lakhs (Total Amount Allocated = Rs.80 crores)

5. Minor injuries (50,000 cases)

Rs.20,000/- (Total Amount Allocated = Rs.100 crores)

6. Loss of personal belongings (50,000 cases)


7. Loss of livestock (50,000 cases)


8. Specialised Medical Treatment

(Total Amount Allocated =Rs.25 crores)

However this Hon’ble 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 institutions, this Court is human and fallible. What appears to the court to be just and reasonable in that particular context and setting, need not necessarily

appear to others in the same way.”

“(1989) 3 SCC 38: Para 38… If, owing to the pre-settlement procedures being limited to the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this Court to undo any such injustice. But that, we reiterate, must be by procedures recognized by law. Those who trust this Court will not have cause for despair.”

This Hon’ble Court also effectively assured the petitioners

that,

“(1989) 3 SCC 38: 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.”

22.12.1989 This Hon’ble 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 Hon’ble 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 Hon’ble Court held that,

“(1991) 4 SCC 584: Para 135The 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

Hon’ble 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 Hon’ble Court held that,

“Para 214: We might now sum up the conclusions reached, the findings recorded and directions issued on various contentions:

viii. The settlement is not vitiated for not affording the victims and victim groups an opportunity of being heard. However, if the settlement fund is found to be insufficient, the deficiency is to be made good by the Union of India as indicated in paragraph 198.”

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 casesb) 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

Supreme Court dated 04.05.2007 in I.A. Nos.48-49 of 2004

in C.A. 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.

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 Commissioner’s

order and without going into the questions raised by the

Petitioners.

__.03.2010 Hence, the present SLP.

HIGH COURT OF MADHYA PRADESHPRINCIPAL SEAT AT JABALPUR

W.P.No. 11276 of 2009

Abdul Jabbar Khan, Convenor, Bhopal GasPeedith Mahila Udyog Sangathan & 7 Ors. …….. Petitioner

Versus

Office of the Welfare Commissioner & Anr. ……..Respondents

For the petitioners: Mr. Aagney Sail and AkashChoudhary, Advocates

-------------------------------------------------------------------Present: Hon’ble Mr. Justice Dipak Misra

Hon’ble Mr. Justice R.K. Gupta-----------------------------------------------------------------------------------------

O R D E R(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 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 Hon’ble 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 (04-Category) 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 Hon’ble 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-à-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 Hon’ble 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) (R.K. Gupta)

JUDGE JUDGE



SPECIAL LEAVE PETITION (CIVIL) NO. __________ OF 2010


(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. Commissioner

Before High Court, Division Bench

Before this Hon’ble Court

ABDUL JABBAR KHANConvenor, Bhopal Gas PeedithMahila Udyog Sangathan,S/o Lt. Abdul Sattar,Aged about 52 years,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.

Petitioner No. 1 Petitioner No. 1 Petitioner No. 1

HAMIDA BIMember, Bhopal Gas PeedithMahila Udyog Sangathan,W/o Lt. Mohd. Idris,Aged about 57 years,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.


MOHINI DEVIMember, Bhopal Gas PeedithMahila Udyog Sangathan,W/o Puran Lal,Aged about 51 years,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.


MOHAMED IDRISMember, Bhopal Gas PeedithMahila Udyog Sangathan,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.

Petitioner No. 4 Since

Deceased

Since Deceased

RAISA BIMember, Bhopal Gas PeedithMahila Udyog Sangathan,


W/o Lt. Naseer Khan,Aged about 46 years,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.

SHAZIAMember, Bhopal Gas PeedithMahila Udyog Sangathan,D/o Shahnawaz Khan,Aged about 25 years,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.


MOHAMED SALIMMember, Bhopal Gas PeedithMahila Udyog Sangathan,S/o Lt. Shakhur Ullah Khan,Aged about 51 years,R/o 51, Rajendar Nagar,Bhopal – 462010, M.P.


PREM NARAYAN VARMAMember, Bhopal Gas PeedithSangharsh 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. BALANMember, Bhopal Gas PeedithSangharsh Sahayog Samiti,S/o Keshav Balan, Aged 63 years,R/o A-108, Padmanabh Nagar,New Subash Nagar,

Bhopal – 462023, M.P.


VERSUS

OFFICE OF THE WELFARE COMMISSIONER,Through the Assistant Welfare Commissioner, Dr. Rajendra Prasad Bhavan,Opposite Old Vidhan Sabha,Bhopal, M.P.

Respondent

No. 1

Contesting

Respondent No. 1

UNION OF INDIA,Through its Secretary, Ministry of Chemical & Fertilisers,Shastri Bhavan,New Delhi – 110001

Respondent

No. 2

Contesting

Respondent 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 Hon’ble

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:

a) Whether the High Court and the Welfare Commissioner

were justified in rejecting the prayers sought for by the

Petitioners which were in the interest of victims of

Bhopal Gas Tragedy?

b) Whether the High Court and the Welfare Commissioner

were justified in observing that the issues raised in the

petition stood covered by the judgments of this Hon’ble

Court when the correct fact is otherwise: the directions

given by this Hon’ble Court permit review of the entire

process of grant of compensation / settlement in the

changed circumstances?

c) 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

Hon’ble 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 Hon’ble Court took into

consideration to arrive at the finding that it was a just

settlement. This Hon’ble 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 Hon’ble 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).

5.2 Because, the judgments given by this Hon’ble 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

Hon’ble 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 Hon’ble 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 Hon’ble Court.

5.3 Because the issues which were raised by the

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 Hon’ble 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 Hon’ble

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 Hon’ble Court have

accepted that the impacts of the lethal gas were so

great that their after-effects could not be known

immediately. This Hon’ble 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 Hon’ble Court. This

was the assurance given by this Hon’ble Court to the

people in Krishna Mohan Shukla v. Union of India,

(2000) 2 SCC 690.

5.5 Because the amount which was covered by the

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 Hon’ble

Court.

5.6 Because the argument with regard to payment of

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.

5.7 Because the High Court as well as the Welfare

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 Hon’ble

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 Hon’ble 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 Hon’ble

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, AdvocateSettled by: Sanjay Parikh, Advocate

Drawn on: March , 2009

Filed on: March , 2009

(Ms. ANITHA SHENOY)




SPECIAL LEAVE PETITION (CIVIL) NO. _____ OF 2010


IN THE MATTER OF :-


VERSUS


CERTIFICATE

Certified 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 Hon’ble 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 DelhiDated: ___.03.2010



SPECIAL LEAVE PETITION (CIVIL) NO. _____ OF 2010


IN THE MATTER OF :-

ABDUL JABBAR KHAN & 7 Ors.

…PETITIONERS

VERSUS

OFFICE OF THE WELFARE COMMISSIONER & ANR.

. …RESPONDENTS

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. 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.

2. 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.

3. That the Annexures P1 to at pages to are true and

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



I.A. No. ______ of 2010

IN

SPECIAL LEAVE PETITION (CIVIL) NO. _______ OF 2010


IN THE MATTER OF:


VERSUS


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:-

1. 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 Hon’ble High Court of Madhya Pradesh, principal seat at

Jabalpur in Writ Petition No. 11276 of 2009.

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.

3. 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 Hon’ble 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 Hon’ble Court wherein the Welfare

Commissioner has moved an application seeking directions

to close down the Office of the Welfare Commissioner.

4. 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 Hon’ble 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.

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 Hon’ble 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)


Place: New Delhi.

FILED ON: .03.2010

Documents

Bhopal Gas Slp Final 2