UNION OF INDIA & ORS. versus M/S. UNION CARBIDE CORPORATION & ORS on 14 March 2023

O R D E R

1. A horrendous tragedy occurred on the night of 2[nd] and 3[rd]December 1984, due to the escape of deadly chemical fumes from thefactory owned and operated by M/s Union Carbide India Limited(hereinafter referred as ‘UCIL’) in Bhopal. This Court labelled the massdisaster as “unparalleled in its magnitude and devastation and … a ghastlymonument to the dehumanizing influence of inherently dangeroustechnologies”. Union of India has filed the present curative petitionsseeking reconsideration of the settlement that was effected in theaftermath of the tragedy.

Background and claims in the present petitions

2. In order to provide remuneration to victims, and to create aninstitutional framework for disbursal of remedies, the Bhopal Gas LeakDisaster (Processing of Claims) Act, 1985 (hereinafter referred as ‘thesaid Act’), was enacted by the Government of India on 20.02.1985.This granted the Central Government an exclusive right to representand act in place of every person who was entitled to make a claim forcompensation. It also empowered the Central Government to institutesuits or other proceedings and to enter into a compromise. Consequently,the Bhopal Gas Leak Disaster (Registration and Processing of Claims)Scheme, 1985, was framed in exercise of powers conferred underSection 9 of the said Act. This Scheme dealt with the procedure for A

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Afiling and processing of claims made to the Welfare Commissioner asper Section 6 of the said Act.

3. Thereafter, several actions for compensation were brought inthe United States District Court for the Southern District of New Yorkagainst Union Carbide Corporation (hereinafter referred as ‘UCC’).BUCC was a New York based corporation which owned 50.9% stock inUCIL at the time of the tragedy. UCC resisted the jurisdiction of theNew York Court on grounds of forum non conveniens, claiming that ithad subjected itself to the Courts of India. Judge Keenan allowed thisplea vide order dated 10.06.1986 and dismissed the consolidated actionon the basis of several factors, including the presence of witnesses andCevidence in India. The order however recorded UCC’s statement that itshall consent to submit to the jurisdiction of the Courts of India.

4. As a result of the same, a suit was filed by the Union of Indiaagainst UCC before the District Judge, Bhopal, seeking compensationof approximately US $ 3.3 billion. Being apprehensive about funds beingDmade available for compensation to victims, the Union sought interimcompensation from UCC. This prayer received a favourableconsideration from the District Judge, who passed an interim order on17.12.1987 directing UCC to deposit a sum of Rs. 350 crores by way ofinterim compensation. However, in a revision petition(s) filed by UCC,Ethis amount was reduced to Rs. 250 crores by the Madhya PradeshHigh Court vide an order dated 04.04.1988.

5. Being aggrieved by this order, both contesting parties i.e. Unionof India and UCC, filed SLPs before this Court. In terms of orderspassed in those proceedings, the parties endeavoured to negotiate aFsettlement, possibly with a little nudge from the Court. The endeavourwas successful and UCC agreed to pay a sum of US $ 470 million to theUnion of India in settlement of all claims, rights, and liabilities relating toand arising out of the Bhopal Gas disaster. The terms of the settlementwere set out in the orders of this Court passed on 14[th] and 15[th] February,1989. This Court observed that there had been careful consideration forGseveral days to the facts and circumstances placed before the Court bythe parties; including the pleadings, data, material relating to proceedingsin the Courts of USA, the offers and counter offers between the partiesat different stages of various proceedings, the complex issues of lawand facts raised, as well as the enormity of human suffering occasionedHby the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster. Thus, it was observedthat a sum of US $ 470 million would be just, equitable, and reasonable.This was to be paid on or before 31.03.1989 and all civil and criminalproceedings were to be closed in the process.

6. A detailed order setting out the reasons that persuaded thisCourt to make the order of settlement was passed thereafter on04.05.1989, reported as Union Carbide Corporation v. Union of India& Ors.[1] We would like to highlight a few aspects of the said order. ThisCourt noted that the basic consideration motivating the settlement wasthe compelling need for urgent relief. It was considered necessary togrant immediate remedy as it was a question of survival for the thousandsof persons rendered destitute by the ghastly disaster. Regarding thequantum of the settlement, this Court added a caveat in paragraph 14 ofthe said order. It was observed that if any material was placed beforethe Court for drawing a reasonable inference that UCC had earlier offeredto pay any sum higher than the out-right down payment of US $ 470million; it would result in the Court initiating a suo motu action, requiringthe parties to show why the settlement should not be set aside and theparties relegated to their respective original positions. Discussion thenproceeded to the reasonableness of the settlement amount. It was opinedthat the question of reasonableness need not necessarily be construedon the basis of an accurate assessment by way of adjudication. Instead,the quantum was a broad and general estimate. What was significantwas whether such settlement would avoid delays, uncertainties, andassure immediate payment. The Court considered it appropriate toproceed on some prima facie undisputed figures of cases of death andof substantially compensatable personal injuries. This Court referred tothe factual scenario emanating from the High Court order dated04.04.1988, where it was recorded that as per the Union of India, a totalnumber of 2660 persons died and between 30,000 to 40,000 sustainedserious injuries as a result of the disaster. The figures before the SupremeCourt at the time were stated to be about 3000 fatal cases, and thenumber of grievous and serious personal injuries was about 30,000, asverifiable from hospital records. In estimating the amount of compensation,this Court set out the following basis in paragraph 24, which reads asunder:

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A“24. So far as personal injury cases are concerned, about30,000 was estimated as cases of permanent total or partialdisability. Compensation ranging from Rs. 2 lakhs toRs. 50,000 per individual according as the disability is totalor partial and degrees of the latter was envisaged. This alonewould account for Rs. 250 crores. In another 20,000 casesBof temporary total or partial disability compensation rangingfrom Rs. 1 lakh down to Rs. 25,000 depending on the natureand extent of the injuries and extent and degree of thetemporary incapacitation accounting for a further allocationof Rs. 100 crores, was envisaged. Again, there might beCpossibility of injuries of utmost severity in which case evenRs. 4 lakhs per individual might have to be considered. Rs.80 crores, additionally for about 2000 of such cases wereenvisaged. A sum of Rs. 500 crores approximately was thoughtof as allocable to the fatal cases and 42,000 cases of suchserious personal injuries leaving behind in their trail total orDpartial incapacitation cither of permanent or temporarycharacter.”

7. Outlays were also made for specialised institutional medicaltreatment (Rs. 25 crores) and provision for cases which were not ofpermanent/temporary disabilities but of minor injuries, loss of personalEbelongings, loss of livestock etc. (Rs. 225 crores). The interest accruingon the corpus of settlement was also taken into account, being 14% to14 ½ %.

8. On the aspect of the aforesaid broad allocations, it was clearlyobserved that even if a particular case was found to fall within suchFbroad categories, the determination of actual compensation payable tothe claimant had to be done by the authorities under the said Act.However, the Court concluded that if the total number of cases of deathor disability became so large so as to counter the ‘basic assumptionsunderlying the settlement’, then it would not hesitate to exercise itsGpowers of review.

9. The next round in the matter related to an endeavour by privateparties to open the settlement by filing a review, inter alia on the powersof this Court to record a settlement. A Constitution Bench examined thisissue in the Union Carbide Corporation & Others v. Union of India & Others.[2]The settlement was upheld with one caveat. Theextinguishment of criminal liabilities by the settlement was held to not beappropriate and thus, that aspect of the original order was reviewed. Asto the need to arrive at a settlement, Ranganath Mishra, J. (as he thenwas) detailed the factors that had guided this Court. The Court had to becognizant of the fact that the Indian assets of UCC, through UCIL werearound Rs. 100 crores at the time. Thus, any decree in excess of thatamount would have to be executed in the courts of USA. If such decreewere determined on the basis of prevailing law in India, i.e. absoluteliability (different from the accepted basis in the USA, i.e. strict liability);the decree would be open to challenge on the grounds of due processand may not be executable. On this aspect, the principal judgment of themajority laid emphasis on balancing factors such as the need for expedientrelief, as recorded in the original judgment. In so far as the presentcontroversy before us is concerned, we would like to flag the Court’sobservations on the path to be followed if the compensation is found tobe inadequate. These are set out in paragraph 198 of Union CarbideCorporation & Others v. Union of India & Others[3], which reads asunder:

“198. After a careful thought, it appears to us that while itmay not be wise or proper to deprive the victims of the benefitof the settlement, it is, however, necessary to ensure that inthe — perhaps unlikely — event of the settlement fund beingfound inadequate to meet the compensation determined inrespect of all the present claimants, those persons who mayhave their claims determined after the fund is exhausted arenot left to fend themselves. But, such a contingency may notarise having regard to the size of the settlement fund. If itshould arise, the reasonable way to protect the interests ofthe victims is to hold that the Union of India, as a welfareState and in the circumstances in which the settlement wasmade, should not be found wanting in making good thedeficiency, if any. We hold and declare accordingly.”

10. The aforesaid would show that the burden would fall on theUnion of India, as a welfare state, to protect the interest of the victims.

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AIt is to be noted that Ahmadi J., dissented on this aspect of liability of theUnion. However, naturally, the majority view prevails.

11. Another aspect noted in the review was qua the members ofthe population of Bhopal who were put at risk; and who thoughasymptomatic at the time and not having filed for compensation, mightBbecome symptomatic in future. In addition, care had to be taken of unbornchildren of mothers exposed to toxicity, where such children later developcongenital defects. For such an eventuality, a medical group insurancecover was envisaged. This is set out in paragraph 207 of Union CarbideCorporation & Others v. Union of India & Others[4], which reads asunder:C

“207. We are of the view that such contingencies shall betaken care of by obtaining an appropriate medical groupinsurance cover from the General Insurance Corporation ofIndia or the Life Insurance Corporation of India forcompensation to this contingent class of possible prospectiveDvictims. There shall be no individual upper monetary limit forthe insurance liability. The period of insurance cover shouldbe a period of eight years in the future. The number of personsto be covered by this Group Insurance scheme should be aboutand not less than one lakh of persons. Having regard to theEpopulation of the seriously affected wards of Bhopal city atthe time of the disaster and having regard to the addition tothe population by the subsequent births extrapolated on thebasis of national average of birth rates over the past yearsand the future period of surveillance, this figure broadlyaccords with the percentage of (sic the) population of theFaffected wards bears to the number of persons found to beaffected by medical categorisation. This insurance cover willvirtually serve to render the settlement an open ended one sofar as the contingent class of future victims both existing andafter-born are concerned. The possible claimants fall intoGtwo categories: those who were in existence at the time ofexposure; and those who were yet unborn and whosecongenital defects are traceable to MIC toxicity inherited orderived congenitally.”

12. There is no dispute that the compensation was deposited within time.

13. Subsequently, certain endeavours were made on behalf ofvictims from time to time to open up the settlement. However, thesewere opposed by the Union of India and were not successful. The mostrecent such attempt was Bhopal Gas Peedith Mahila UdyogSangathan & Anr. V. Union of India & Ors.[5]

14. We are confronted here with an application filed under thisCourt’s curative jurisdiction by the Union of India 19 years post thesettlement (i.e. in 2010) seeking to reopen the same. It is noteworthythat the Union chose not to file the review petitions which culminated inthis Court’s order dated 02.05.1989. Naturally, the present petitions havebeen strongly opposed by UCC, whereas groups stated to be representingthe victims have endeavoured to ride piggyback on the curative petitions.

15. The curative petitions are broadly predicated on account of“wrong assumption of facts and data” which undergirded the quantumof the settlement. Thus, the plea is that this ‘incompleteness of facts’,particularly with respect to the number of victims, has vitiated thesettlement itself. On this basis, the settlement amount needs to be re-examined by this Court. Nevertheless, we may note that the Union ofIndia was quite conscious of the fact that if the settlement were to bereopened, it would result in a revival of the suit, something which theUnion has not even claimed. What the Union of India claims in essenceis to top up the settlement i.e. maintain the factum of the settlement butto increase the amount as canvassed by Mr. R. Venkataramani, thelearned Attorney General.

16. The Union of India’s claims, as set out in the petitions, arebased on three categories:

“Claim – I: Claim on account of incorrect and wrongassumption of facts and data in the impugned judgments andorders on following grounds:

(i) Error in computation of Death Cases – Court recorded theestimated number of death cases was 3,000 whereas actualfigure of death is 5,295 cases.

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A(ii) Error in computation of Temporary Injury Cases – Courtrecorded the estimated number of temporary disability caseswas 20,000 whereas actual figure of temporary disability is35,455 cases.

(iii) Error in computation of Minor Injury Cases – CourtBrecorded that the estimated number of Minor Injury caseswas 50,000 whereas actual figure of Minor Injury is 5,27,894cases.

(iv) Other Cases – In certain categories (viz. Permanentdisability, utmost severe injuries, loss of property and loss ofClivestock), the actual number assumed by the court has beenfound to be on the higher side resulting in the extra provisionof compensation in those categories.”

17. The total amount claimed under this category was Rs. 675.96crore at the time of filing the curative petitions. This Court vide orderDdated 11.10.2022 requested for the latest figures available as on the saiddate. These details have been set out in tabular form below:

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18. The last column of the chart shows the additional amountrequired to be paid. While there is an increase in the amount required forcompensation for death and temporary disability, there is also a decreasein the amounts required for cases of permanent disability and utmostH

severe cases, as also for loss of property and loss of life. This may havebeen the result of some changes in the categorisation of cases on accountof the available material. The real increase is on account of minor injurieswhere it is stated that the additional amount required is of Rs. 955.45crores. Undoubtedly, a decision was taken by the Government of Indiaon 08.09.1992 to increase the amount of compensation to victims inview of representations filed by various social action groups.

“Claim – II: Claim of Rs.1,743.15 cr. on account of actualexpenditure incurred by the State towards relief andrehabilitation measures.”

19. The aforesaid claim was further updated to Rs. 4,949.67 crores.

“Claim – III: Claim of Rs.315.70 crore on account ofenvironment degradation.”

20. The updated amount under this category is Rs. 486.78 crores.

21. The Union of India has also claimed that since the revisedamount is being claimed a number of years after the settlement; severalaspects, such as the devaluation of the rupee, interest rate, purchasingpower parity, and the inflation index ought to be taken into account.These considerations were pleaded in alternative and are summarized inthe following table:

* Calculations based on Yearly LIBOR

$ Calculations by applying Consumer Price Index (CPI) forindustrial workers & Calculations based on 7% Compound Interest UCC’s Submissions

22. The curative petitions were strongly opposed by Mr. HarishSalve, learned senior counsel appearing for UCC.

23. The preliminary objection was on the very maintainability of acurative petitions after two decades of the settlement. It was submittedthat this was in breach of the principles enshrined in Rupa Ashok Hurra A

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Av. Ashok Hurra & Anr.[6], wherein this Court had specified very limitedcontours for its curative jurisdiction:

“51. Nevertheless, we think that a petitioner is entitled to reliefex debito justitiae if he establishes (1) violation of principlesof natural justice in that he was not a party to the lis but theBjudgement adversely affected his interests or, if he was a partyto the lis, he was not served with notice of the proceedingsand the matter proceeded as if he had notice and (2) where inthe proceedings a learned Judge failed to disclose hisconnection with the subject-matter or the parties giving scopefor an apprehension of bias and the judgment adverselyCaffects the petitioner.”

24. It was submitted that the present curative petitions did not fallunder any of these parameters. Counsel for UCC also highlighted anotherprocedural deficiency on the basis of paragraph 52 of Rupa AshokHurra,[7]wherein the petitioner is required to specifically aver that theDgrounds mentioned in the curative petition had been taken in the reviewpetition and subsequently dismissed by circulation. Since Union of Indiahad not filed review petition(s), the curative petitions ought to be thrownout at the threshold.

25. In response, the Learned Attorney General contended that itEwas this Court’s prerogative to chart a new course in terms of its curativejurisdiction, and to not limit itself to the extant norms specified in RupaAshok Hurra.[8]

On maintainability

F26. On this preliminary point, we may note that a curative petitionrelates to a re-examination of a final judgment of this Court, particularlyone that has already undergone such re-examination through the Court’sreview jurisdiction. Since this Court’s review jurisdiction itself is sorestrictive, we find it difficult to accept that this Court can devise acurative jurisdiction that is expansive in character.G

27. On the facts of this case, we have already noticed that whenreview petitions were filed against the orders recording the settlement,the Union of India sought to support the same. However, the Union 6 (2002) 4 SCC 388.

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subsequently opposed all other applications filed for reopening thesettlement. We understand that such a strategy was adopted as the Unionof India’s endeavour is not to set aside the settlement but merely to ‘topup’ the settlement amount.

28. We have great hesitation in allowing such a prayer and grantingsuch sui generis relief through the means of curative petitions. Althoughthis Court in Rupa Ashok Hurra[9] chose not to enumerate all the groundson which a curative petition could be entertained; the Court was clear inobserving that its inherent power ought not to be exercised as a matterof course, and that it should be circumspect in reconsidering an order ofthis Court that had become final on dismissal of the review petition.Nevertheless, looking at the nature of the matter before us, it would beadvisable to also examine the curative petition(s), apart from the aforesaidpreliminary objection.

On Merits

29. Turning to the objections on merits of the claims in the curativepetitions, counsel for UCC emphasised that the US$ 470 million (Rs.750 crore), required to be deposited were so deposited and, thus, if thesettlement is to be set aside, then the only consequence would be torevive the suit. As a corollary, the Union of India would be required tolead evidence to establish UCC’s liability, and UCC would be entitled tohave US$ 470 million remitted back to it by the Union of India withinterest.

30. It was pointed out that an endeavour was made in the year2007 by way of interlocutory applications to seek enhancement of thesettlement fund by private organisations. This prayer was rejected bythis Court in Bhopal Gas Peedith Mahila Udyog Sangathan[10] on theground that re-examination of the settlement could not be done as theissue had already been decided. With regards to individual victims andorganisations, any grievances towards the amount of compensation hadto be taken up before the appropriate authorities constituted under thesaid Act. It is noteworthy that the Union of India had opposed the pleaof the private parties, and had taken a stand before this Court that claimshad been adjudicated and compensation had been paid in terms of thescheme devised under the said Act.

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A31. The aforesaid was the latest endeavour prior to the filing ofthe present curative petitions. However, even before this, certain privateorganisations had filed interlocutory applications for disbursal of thesurplus amount left from the settlement fund. This Court in UnionCarbide Corporation Ltd. V. Union of India[11]observed thatapproximately Rs. 1,503.01 crores from the settlement fund were availableBas on that date, and thus ordered that this amount be distributed on prorata basis to those persons whose claims had been settled.

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32. There appear to be two reasons for the growth of the fund –(a) interest on it and (b) more importantly, an exchange rate fluctuationin favour of the US Dollar. We may hasten to add that the learnedCAttorney General was correct in submitting that UCC could not havetaken benefit of a hypothetical fluctuation in the opposite direction, i.e. infavour of the Rupee. Nevertheless, the fact remains that the settlementfund, and the disbursement from the same underwent a significantincrease considering the lapse of time.D

33. Next, learned counsel for UCC contended that the languageof this Court’s orders dated 14.02.1989 and 15.02.1989 left no doubt asto the comprehensive nature of the settlement. UCC had agreed to thesettlement even without a finding as to its liability. UCC’s Indian holding,i.e. UCIL had been wound up. The settlement was accepted only on theEbasis that it was an overall settlement, which ended its potential exposuretowards any legal proceedings. As a final stamp upon the settlement;this Court’s order dated 15.02.1989 had imposed a duty on the Union ofIndia and the State of Madhya Pradesh to ensure that any suit, claim, orcivil complaint filed in the future against UCC would be defended by theUnion of India and would be disposed of in terms of the said order.F

34. It was urged that the review judgment had confirmed the‘basic assumptions underlying the settlement’ and the settlement itselfhad been upheld, save the aspect of closure of criminal proceedings.Moreover, the issues sought to be raised in the present curative petitionswere in fact raised in the review petitions filed by the private parties andGwere finally decided by the order of this Court dated 03.10.1991.

35. Thus, it was contended that the substance of Union of India’sClaim-I, i.e. on account of error in computation of deaths, injuries etc.had actually been addressed by this Court in its review judgment. This Court had dealt with the risk of asymptomatic individuals later becomingill and had directed the Union of India to obtain insurance cover for eightyears and to provide free medical monitoring and treatment of victims.In case of any deficit in the settlement fund, the responsibility was placedon the Union of India as a welfare State to fulfil such deficiency. Mr.Salve emphasised that it would be hazardous to belittle the advantagesof a settlement by questioning it on the anvil of adequacy or fairness,considering the complexity of the matter and the need to protect victimsfrom the prospects of a protracted, exhausting, and uncertain litigation.

36. It was further contended that the settlement decree passedby this Court was not an adjudication upon either UCC’s liability or thequantum of compensation payable, as the suit never went to trial. Aconsensual settlement cannot be unilaterally enhanced without the consentof both the parties. The Union of India has not brought forth any allegationagainst the settlement or any ground to set it aside. The Union was fullyaware of the consequences of setting aside the settlement and thus,restricted their petitions to a prayer for ‘topping up’ the settlement amount.

37. It was also emphasised that there was no basic assumptionthat could be considered to have gone wrong. In the table reproducedabove, it would appear that the only head in which there was any majorchange was with respect to ‘minor injuries’. This however resulted fromthe Union’s own categorisation of injuries suffered in the aftermath ofthe tragedy, and their decision to expand the coverage of relief to alarger number of individuals. This was possible only because of the largeamount of funds available with the Union, as is evident from the factthat this Court had in its order dated 19.05.2004 noted the availability ofmore than Rs. 1,500 crores available with the RBI and consequentlyawarded disbursal of the same on a pro rata basis. The WelfareCommissioner had recorded that after paying Rs.1,548.95 crores in thefirst round, a further Rs.1,509.14 crores had been disbursed on pro ratabasis. Thus, a total of over Rs.3,000 crore had been paid to the victims.

38. In fact, it is admitted before us by the learned Attorney Generalthat a sum of Rs. 50 crore was still lying with the Reserve Bank of Indiato take care of victims.

39. We may note that the intervenors, who are organisationsrepresenting victims, have also raised a similar line of arguments andtheir prayer is also to enhance the settlement amount. Mr. Sanjay Parekh, AB

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Alearned senior counsel, while seeking enhancement appeared to mirrorthe arguments of the learned Attorney General. In addition, he prayedfor digitisation of medical records for the benefit of victims who hadbeen attended to in the hospitals so as to enable a fair assessment oftheir injuries. This aspect is however stated to be pending before theMadhya Pradesh High Court.B

Analysis

40. We have bestowed our anxious consideration to the argumentsput forth by both sides. While we sympathize with the victims of theawful tragedy, we are unable to disregard settled principles of law,Cparticularly at the curative stage. Mere sympathy for the sufferers doesnot enable us to devise a panacea; more so while looking into the natureof dispute, and the multifarious occasions on which this Court has appliedits mind to the settlement.

41. The very basis for the original settlement was the need toDprovide immediate succour to the victims - through medical relief,rehabilitation measures, setting up of facilities etc. This has been clearlyobserved by this Court at every step; be it in the orders recording thesettlement, the order detailing reasons for the same, and the reviewjudgment. We thus do not appreciate the endeavour by Ms. KarunaNundy, counsel for the intervenors, in making out a case that there wasEa ‘midnight settlement’ whereby a fraud was played upon this Court andthe Union. The Court was clearly occupied with the aspect of a settlementbeing entered into, and it was found, after a number of sittings and roundsof hearings, that this was the most appropriate course of action.

42. On the aspect of adequacy, we must also take note of theFfactual scenario which emerges as per the figures of the Union itself.Except for cases of minor injuries, the settlement amount was actuallyin excess as is apparent from the table reproduced above. As far as theissue of minor injuries is concerned, it appears from the Union’s ownaffidavit in IA Nos. 48-49/2004 in Civil Appeal No. 3187-88 of 1998 thatGin cases of injury, Rs. 50,000 to Rs. 4 lakh (original and pro ratacompensation) and an additional Rs. 50,000 were paid in cases of merepresence in the gas affected areas of Bhopal on the fateful night. It hasalso been admitted in the said affidavit that the amount of compensationfor all categories was allocated on the higher side, and after disbursal ofthe leftover amount on a pro rata basis, the overall rate of compensationH

has in fact been doubled. Suffice for us to say that as per the learnedAttorney General, a figure of Rs. 50 crore remains with the ReserveBank of India lying undisbursed.

43. We are conscious of the fact that the exchange rate workedin the Union’s favour as the exchange rate of the Dollar rate escalated.Some interest on the settlement amount also came in. This has allowedthe Union to work out a more wholesome allotment for the claimants.

44. We are cognizant that no amount is truly adequate when suchincidents occur. Nevertheless, a monetary determination had to takeplace, and the only compensatory mechanism known to common law isthat of a lump-sum settlement. This was deemed far more preferable tothe alternative option, whereby the suit would be allowed to be triedwithout a reasonable expectation of knowing when the trial would cometo an end. This determination would of course be subject to further appealsand the process of execution, particularly as UCIL’s assets in India wereonly about Rs. 100 crores. Without a settlement, immediate funds wouldnot have been available for the victims. All these factors weighed withthis Court while arriving at the settlement.

45. It is the Union’s own stand that the Commissioner hasadjudicated all claims through procedure established by law where thepossibility of appeal was provided. Further, it has been admitted in theproceedings culminating in this Court’s order dated 19.07.2004 that theamount of settlement was found to be in surplus of the actual requirement,and thus the claimants had been “provided compensation that wasmore than what was reasonably awardable to them under law”. Thisreinforces the position that the settlement amount was sufficient tocompensate the claimants.

46. The Union has filed the present curative petitions seeking toreopen the settlement after opposing attempts by private parties to doso. The scenario arising in case of a shortage was clearly outlined in thereview judgment, i.e. the responsibility was placed on the Union of India,being a welfare State to make good the deficiency and to take out therelevant insurance policies. Surprisingly, we are informed that no suchinsurance policy was taken out. This is gross negligence on part of theUnion of India and is a breach of the directions made in the reviewjudgment. The Union cannot be negligent on this aspect and then seek aprayer from this Court to fix such liability on UCC.

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A47. Union of India’s claim for a ‘top up’ has no foundations in anyknown legal principle. Either a settlement is valid or it is to be set asidein cases where it is vitiated by fraud. No such fraud has been pleaded bythe Union, and their only contention relates to a number of victims, injuries,and costs that were not contemplated at the time the settlement waseffected. There is also specifically no pleading under the heading ofBClaims 2 and 3 that can be said to be admissible, or one that could not beenvisaged at the stage of settlement. It was known that medical facilitieswould have to be extended to rehabilitate people and there was bound tobe environmental degradation. In fact, it is the UCC’s allegation that theUnion and State Governments did not proactively detoxify or decomissionCthe site, thereby aggravating the problem. In any case, this cannot be aground to seek annulment of the compromise, particularly as the settlementhad to be reached in an expedient manner. The learned Attorney General’sresponse has been that a method for ‘topping up’ the settlement amountbe devised under Article 142 of the Constitution of India. We believe thiswould not be an appropriate course of action or a method to impose aDgreater liability on UCC than it initially agreed to bear.

48. We are equally dissatisfied with the Union being unable tofurnish any rationale for raking up this issue more than two decadesafter the incident. Even assuming that the figures of affected personsturned out to be larger than contemplated earlier, an excess amount ofEfunds remained available to satisfy such claims. The WelfareCommissioner has in fact held in its order dated 31.01.2009 that onincluding the pro rata compensation, nearly six times the amount ofcompensation has been disbursed to victims in comparison with MotorVehicle Accident claims. This order came in an application filed byForganisations who sought enhancement of their claim amounts due tofluctuation in the conversion value of the Dollar vis-à-vis the Rupeeprevailing at the time of the settlement in 1989. A sum of Rs.50 crorelying with the RBI shall be utilised by the Union of India to satisfy pendingclaims, if any, in accordance with the Bhopal Gas Leak Disaster(Processing of Claims) Act, 1985 and the Scheme framed thereunder.G

49. Providing closure to a lis is also a very important aspect. Thisis more so in the context of the scenario faced by the Indian judiciary,where delay is almost inevitable. This concern would be further amplifiedin respect of a tort claim such as the present one - if evidence were tobe led for each claimant, this would open a pandora’s box in UCC’sH

favour and would only be to the detriment of the beneficiaries. Themoney was needed in the immediate aftermath of the tragedy and notafter three decades.

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50. Thus, finality was reached at an early stage by way of thesettlement. Endeavours to reopen the same proved unsuccessful. Nowthe curative petitions have been filed by the Union of India having notBfiled review petitions. Private parties who are here before us seek toride on the coattails of the Union. This is not something we cancountenance.

Conclusion:

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51. We are thus of the view that for all the aforesaid reasons thecurative petitions cannot be entertained and we thus dismiss it leavingthe parties to bear their own costs.

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Petitions dismissed.

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