it is not correct to say that for being an occupier one must necessarily be the owner of the premises

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
84. Before we deal with the factual backdrop, in which the question whether the Ansal Brothers were occupiers of the Cinema has to be answered, we must steer clear of the impression that an occupier must be the owner of the premises. While it is true that an owner may in a given fact situation be also the occupier of the premises owned by him, it is not correct to say that for being an occupier one must necessarily be the owner of the premises in question. What is important is whether the premises in question was sufficiently and not exclusively under the control of defendant/accused, and for being in such control, ownership of the premises is not a condition precedent. An occupier may be in control of the premises even when he does not own the same whether fully or jointly with others. It is also not necessary that the control must be full and all pervasive. It follows that if there are more than one occupiers of a building, and each one neglects the duty to care, the liability whether civil or criminal will fall on all of them. The law on the subject is settled in England by the
decision of the House of Lords in Wheat v. E. Lacon & Co. (supra), where Lord Denning applied the test of sufficient degree of control and not exclusive or entire control to determine whether the person concerned was an occupier. The following passage is apposite in this regard:
It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises. In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be occupiers. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure but each may have a claim to contribution from the other.
85. To the same effect is the decision in H & N Emanuel Ltd. v. Greater London Council & Anr. (supra) where the Court made the following observations:
Any person was an occupier for the purposes of fire if he had a sufficient degree of control over the premises and could say with authority to anyone who came there, Do or do not light a fire, or Put out that fire. If he could, he was liable for negligence on the part of any person who came there.
86. Coming to the facts of the case at hand, merely because the company was the legal owner of the Cinema premises, did not mean that the Company and Company alone was the occupier thereof.
The question whether the Ansal Brothers (Sushil and Gopal) exercised any control over the affairs of the Cinema, and its maintenance was a pure and simple question of fact, on which a great deal of evidence was led at the trial, and appreciated by the two Courts below. We have in the preceding part of this judgment referred to the findings of fact recorded by the Courts below on that aspect. But, for the sake of completeness, we may refer to those findings in some detail at this stage over again.
87. The trial Court and, so also, the High Court have both concurrently held that Sushil and Gopal Ansal were, at all material times, at the helm of the affairs of the company that owned Uphaar cinema. All crucial decisions relating to the cinema including decisions regarding installation of DVB transformer on the premises, closure of the right side exit & gangway and rearrangement of the seating plan in the balcony were taken while either one or the other of the two was either a Director or Managing Director of the company. Both the Courts have further found that Ansal brothers control over the day-to-day affairs and the staff employed to look after the cinema management
continued even upto the date of the incident. In particular the Courts below have concurrently held that the decision to install the DVB transformer and to let out various parts of the premises for  commercial use in violation of the sanctioned plan were taken by Sushil Ansal as Managing Director of the company. Applications for grant of the cinema license and subsequent renewals were found to have been made by him as the representative licensee on behalf of the company even after his purported retirement from the Board of Directors. Not only that, the Courts below have concurrently held that Sushil Ansal was exercising a high degree of financial control over the affairs
of the company and the cinema owned by him. Gopal Ansal was similarly exercising an equally extensive degree of financial control even after his retirement as Director. The Courts below have also found that all decisions relating to changes in the balcony seating arrangement and installation of additional seats were taken during Gopal Ansals term as Managing Director and at his request.

The Courts have noticed and relied upon the Show Cause Notice dated 28th May, 1982 in which Gopal Ansal, the Managing Director, was cautioned about the dangerous practice being followed by the cinema management of bolting the doors of the cinema hall during the exhibition of the films. An assurance to the effect that such a practice would be discontinued was given by Gopal Ansal as
Managing Director of the company.

88. In conclusion the High Court has outlined eight decisions which were directly attributable to the Ansal brothers including decisions relating to the day-to-day affairs and commercial use of the cinema premises as also the seating arrangement in the balcony and in no uncertain terms rejected the argument that Ansal brothers had nothing to do with the company and the cinema after their retirement from the Board of Directors in 1988. All these findings are, in our opinion, supported by overwhelming evidence on record which satisfactorily proves not only that Ansal brothers continued to exercise all pervasive control over the affairs of the cinema but also because the cinema license, at all material times, showed Sushil Ansal as the representative license of the Uphaar Cinema. Our attention was also drawn to an affidavit filed by Sushil Ansal marked as EX.PW.50/B in which Sushil Ansal unequivocally acknowledged that he was the occupier of the cinema. The relevant portion of the affidavit reads as under:
I, Sushil Ansal, s/o Late Shri Charanji Lal, R/o N-148, Panchshila Park, New Delhi, Chairman of Green Park Theatres Associated (P) Ltd., 115 Ansal Bhawan, 16 Kastuba Gandhi Marg, New Delhi  110001, am applying for renewal of License for the year
1992-93. I have not without permission, transferred the License or the Licensed place or the Cinematographs to any person during the year 1991-92 to exhibit films in the Licensed place. I am still the occupier of the licensed premises and owner of the Cinematograph. (emphasis supplied)
89. The Courts below have, in our view, correctly noticed the fact that not one out of a total of 5000 shares of the company was ever owned by anyone outside the Ansal family. The Courts have also placed reliance upon the depositions of Pranav Ansal (PW-109), V.K. Aggarwal (PW-113), Subhash Verma (PW-114) and Kusum Ansal, wife of Sushil Ansal (PW-115) to conclude that all these persons
who were Directors or had financial powers on the date of the incident were completely unaware of the affairs of the company as well as the cinema enterprise, a fact, that goes a long way to prove that the cinema was being managed by Ansal brothers who had a complete sway over its affairs. What is worse is that some of these witnesses expressed their ignorance about whether they were Directors or whether they had financial powers within the company or that the company was still involved in cinema business.

90. The cumulative effect of the above facts and circumstances proved by cogent evidence placed on record by the prosecution, in our view, fully supports the prosecution case that Sushil and Gopal Ansal were in full control over the affairs of the company which owned the cinema, as well as the cinema itself, at all material times, including the date of the incident. We have, therefore, no hesitation in affirming the finding that the Ansal brothers - Sushil and Gopal were both occupiers of the cinema complex as on the date of the incident in which capacity they owed a duty to care for the safety of the patrons visiting/coming to the premises.