Delhi High Court
Mohd. Neejam And Anr vs The State, Govt. Of Nct Of Delhi And Ors on 27 July, 2026
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th April, 2026
Pronounced on: 27th July, 2026
+ W.P.(C) 12566/2019
MOHD. NEEJAM AND ANR. .....Petitioners
Through: Mr. Kartik Venu, Mr. R Jude Rohit
and Mr. Arjan Ajai Singh, Advocates
Mob: 9655612276
Email: [email protected]
versus
THE STATE, GOVT. OF NCT OF DELHI AND
ORS. .....Respondents
Through: Mr. Raghvendra Upadhyay, Panel
Counsel, GNCTD with Ms. Purnima
Jain, Ms. Shilpa Taneja and Mr.
Madhur Yadav, Advocates
Mob: 9818720615
Email: [email protected]
Mr. Hilal Haider and Ms. Neha
Tiwari, Advocates for DJB
Mr. Abhimanyu Garg, Ms. Preety
Makkar and Mr. Vishal Yadav,
Advocates for R-3, 4 and 6.
Mob: 9811092113
Email: [email protected]
Mr. Vineet Tayal & Ms. Monalika
Chaudhary, Advocates for R-7
Mob: 9871191442
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Signing Date:27.07.2026
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CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
MINI PUSHKARNA, J.
INTRODUCTION:
1. The present writ petition has been filed under Article 226 of the
Constitution of India (“Constitution”), seeking compensation for the death
of the petitioners’ minor son, i.e., Mohd. Nazim, aged 10 years, on account
of the claim of negligence on part of the respondents.
2. At the outset, it is noted that at the time of filing of the writ petition,
the petitioners had prayed for compensation/damages to the tune of Rs.
25,00,000/-. However, in view of time having passed from the date of the
incident, i.e., 27th September, 2014, and the tenure of the present
proceedings, the petitioners also seek simple interest @ 12% per annum,
thereby, claiming an amount of Rs. 40,40,495.36/-.
PROCEEDINGS BEFORE THE COURT:
3. Before adverting to the facts of the case, it would be apposite to
record the developments that have occurred during the course of the present
proceedings.
4. On account of the submissions made by respondent nos. 3 and 4, this
Court vide order dated 12th January, 2023, impleaded respondent no. 6, i.e.,
Engineers India Limited (“EIL”) in the array of the parties. Further,
respondent no. 6 stated that they adopt response to the present petition filed
by respondent nos. 3 and 4. The relevant portion of the order dated 12th
January, 2023, is reproduced as under:
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“xxx xxx xxx
1. Learned counsel appearing for respondent Nos. 3 and 4 submits
that only officials of Engineers India Ltd. (EIL) have been impleaded
and the company itself has not been impleaded.
2. At this stage, learned counsel for the petitioners submits that he
has no objection to the impleadment of EIL to the array of the
parties to the present petition.
3. Accordingly, Engineers India Ltd., Bhikaji Cama Palace, New
Delhi – 110029 is impleaded as respondent No. 6 to the present
petition. Let an amended memo of parties be placed on record.
4. Learned counsel for respondent Nos. 3 and 4 accepts notice on
behalf of newly impleaded respondent No. 6 and submits that the
response filed on behalf of respondent Nos. 3 and 4 be read as
response filed on behalf of respondent No. 6.
xxx xxx xxx”
(Emphasis Supplied)
5. Subsequently, upon oral request from the petitioners, this Court vide
order dated 30th October, 2023, impleaded M/s DSCL-Fengshun-Wabag
Consortium (“DSCL/Contractor”), i.e., respondent no. 7 in the array of
parties. The relevant portion of order dated 30th October, 2023, is reproduced
as under:
“xxx xxx xxx
2. At the oral request of learned counsel for the petitioners, DSCL
Ltd. being the contractors who were executing the work on the site
where the accident occurred [or their successors in interest] are
impleaded as respondent No.7. Amended memo of parties be filed
within one week from today. Notice will thereafter be issued to
respondent No.7 by all permissible modes, dasti in addition. Affidavit
of service be filed within two weeks. Counter affidavits be filed by the
respondents within four weeks thereafter.
xxx xxx xxx”
(Emphasis Supplied)
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PARTIES:
6. The petitioners in the present case are the parents of the deceased. The
respondent no. 1 is the State, i.e., Government of NCT of Delhi
(“GNCTD”), which is responsible for the implementation of any welfare
schemes, which are meant for the victims and their family members.
Respondent no. 2 is the Delhi Jal Board (“DJB”), which is the principal
authority/employer for the sewer project at the site of incident. Respondent
nos. 3 and 4, i.e., Mr. Rajesh Kumar Maurya and Mr. Shahjad Ahmad, were
in the position of ‘Senior Engineer’ at respondent no. 6, i.e., EIL, an Indian
government owned engineering consultancy service provider under the
ownership of Ministry of Petroleum and Natural Gas, Government of India,
who were appointed to provide project management consultancy services for
‘Laying of Interceptor Sewer along Najafgarh, Supplementary and
Shahdara drains for abatement of pollution in Yamuna river’ (“Project”).
Respondent no. 5 was in the position of ‘Safety Officer’ at respondent no. 7,
i.e., DSCL, which was appointed as the Contractor for the project.
7. It is noted that respondents were carrying out some sewerage related
work near the site of incident, i.e., Bhagirathi Vihar Canal, Delhi – 110094,
specifically, Shahdara drain (receiving shaft RS-14 – Package 5) (“site of
incident”), wherein, they had dug a deep / large pit in which dirty water was
stored. The respondent no. 2, i.e., DJB entered into an Agreement with
respondent no. 6 – EIL for the purposes of project management consultancy
of the Project which consisted of six different Packages. Pursuant to the
aforesaid Agreement, EIL invited bids on behalf of DJB to undertake the
said works and awarded the bid to respondent no. 7, i.e. DSCL for Packages
4 and 5, namely, ‘Rohini/Rithala’ and ‘North Yamuna’, respectively.
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Consequently, a Tripartite Agreement dated 07th February, 2012, was
executed amongst the respondent no. 2, 6 and 7 for the purposes of
execution of the Project.
FACTUAL MATRIX:
8. The son of the petitioners was born on 21 st September, 2004, and was
deceased on 27th September, 2014, on account of the occurrence of the
unfortunate incident, wherein, on the date of incident, i.e., 27th September,
2014, the deceased fell into a pit of sewerage near site of the incident.
9. After the incident occurred, some persons took the deceased to GTB
Hospital, where the doctors, vide MLC No. B-4031/14, declared the boy as
‘brought dead’ to the hospital, and accordingly a Death Certificate dated
03rd November, 2014, was also issued towards the same.
10. It is noted that pursuant to the incident, the police of Police Station –
Gokalpuri, Delhi reached the spot and registered the information vide DD
No. 29A. The First Information Report (“FIR”) of the incident was
registered vide F.I.R. No. 975/2014 under Section 304A of the Indian Penal
Code, 1860 (“IPC“). Further, a Chargesheet was filed by the Investigating
Officer, arraying Mr. Rajesh Kumar Maurya (respondent no. 3), Mr. Shahjad
Ahmad (respondent no. 4), and Mr. Zubair Alam (respondent no. 5), as the
Contractors working on the site of incident.
SUBMISSIONS BY THE PARTIES:
11. On behalf of the petitioners, the following submissions have been
made:
11.1 The minor son of the petitioners’, Mohd. Nazim, died after falling
down in a pit of sewerage due to negligence on part of the respondents.
Respondent no. 2, i.e., DJB, is the state body responsible for the collection,
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treatment and disposal of waste water/sewerage in Delhi. The works being
carried out at the site of incident were under their supervision.
11.2 The petitioners have suffered great loss due to the unfortunate and
untimely demise of their minor son. The State has failed to protect the
fundamental rights of the petitioners’ son, and therefore, the petitioners are
entitled to compensation as a public law remedy.
11.3 The present writ petition is maintainable despite respondent nos. 6 and
7 being private bodies as they are amenable to the writ jurisdiction in view of
them being contracted to facilitate a public-welfare project on behalf of
respondent no. 2 – DJB.
11.4 The objection of delay and laches, raised by the respondent no. 7,
disregards the ground realities faced by the victims of negligence, especially,
those from economically weaker sections of society, in a case, where a death
has occurred owing to the said negligence. The pain, trauma, and financial
distress cannot be measured in mere legal timelines.
11.5 An FIR bearing No. 975/2014 was lodged immediately after the
incident and the proceedings are pending. However, the ongoing criminal
proceedings do not preclude the petitioners’ right to seek compensation
under a public law remedy. It is well-settled that a criminal trial and a claim
for compensation under public law operate in separate domains. Moreover,
the fundamental principle of justice dictates that where a person has suffered
irreparable loss, due to wrongful actions or omissions of another, mere
procedural technicalities cannot be allowed to frustrate the legitimate claim
of compensation.
11.6 Article 226 of the Constitution empowers this Court to adjudicate
upon issues of grave injustice, and the mere existence of disputed questions
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of facts does not constitute a ground for dismissal of the present writ
petition. Further, the petitioners’ remedy is not frustrated by disputes qua the
inter-se liabilities between the respondents.
11.7 In the present case, foundational facts stand clearly established and are
not in contest, viz., the death of the petitioners’ minor child, the cause of
death confirmed in FIR and post-mortem report, the jurisdiction and
administrative control of the DJB over the area, and the element of gross
negligence apparent from the record. These undisputed facts establish clear
breach of public duty and violation of the fundamental right to life under
Article 21 of the Constitution. It is a settled law that on such a breach of
fundamental right, a writ petition seeking compensation is maintainable.
11.8 The fatal incident involved an open and unguarded manhole situated
in a public space, which raises an irrebuttable presumption of negligence on
the part of the respondents. Thus, the principle of res ipsa loquitur is
applicable. In view thereof, the burden of proof shifts from the petitioners to
the respondents as a prima facie case is established.
11.9 The public law remedy is based on strict liability where a prima facie
case of violation of fundamental rights has been made out. Compensation for
violation of fundamental right is a public law remedy, distinct from the
private remedy under the law of tort. It is well-settled in law that a trial and
claim for compensation under public law operate in separate domains.
11.10 The respondents have jointly and severally failed to discharge their
duty of care and responsibility by neglecting to take any safety precautions.
The respondents had not placed any warning signs or boards near the site of
the incident.
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11.11 Respondent no. 1, i.e., GNCTD, in their Counter Affidavit has not
controverted the chain of liability, and such non-denial amounts to implied
admission in law. Therefore, the said respondent admits that the
responsibility of safety and supervision of the site of incident was with
respondent nos. 6 and 7. While, respondent nos. 4, 5, and 6, in their reply,
admit that the obligation to ensure safety and proper supervision was
contracted to respondent no. 7.
11.12 It is an admitted case of respondent no. 7 that it was the executing
Contractor entrusted with carrying out works at the site of incident, and that
it had the physical possession and operational control of the site of incident.
It is further admitted by respondent no. 7 that they had the responsibility of
ensuring safety measures at the project site. Moreover, the said respondent
also admits the unavailability of a security guard at the site at the time of
incident, thereby, reinforcing culpable negligence.
11.13 In light of the unequivocal admissions, the responsibility of the
respondent no. 7, along with the supervisory roles of respondent nos. 3, 4,
and 6, under the aegis of respondent nos. 1 and 2, stands established. Thus,
the present case calls for invocation of this Court’s jurisdiction under Article
226 of the Constitution.
11.14 The plea of the respondents about the existence of a boundary wall is
untenable in light of the material on record. The Chargesheet reveals the
presence of a crowd at the site. However, had the boundary wall been intact,
such crowd could not have gathered there. Clearly, the wall was either non-
existent or broken in parts, and most certainly did not constitute any sort of
restriction in entry.
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11.15 The purported map of the site of incident, as cited by the respondent
no. 7, is almost two years prior to the incident, as is clearly apparent from the
date on the endorsement seal affixed thereto. The map does not reflect
whether a boundary wall existed or not. Furthermore, even the photographs
used by respondent no. 7 indicate a dilapidated boundary wall.
11.16 The respondents’ plea that the security measures installed by them at
the site of incident were stolen by the local persons does not absolve them of
their duty of care towards the public at large. The respondents were obligated
to either replace the said security measures or adopt more stringent or
permanent measures.
11.17 The respondents’ defence of contributory negligence is bad in law as
the standard of contributory negligence applied to a child differs from an
adult.
11.18 It has been claimed by respondent no. 7 that they could not obstruct
the drain during the monsoon period, and therefore, were not working
actively at the site of incident. However, even during the periods of
inactivity, standard industry safety protocols are essential and have to be
followed.
11.19 Furthermore, the Letter dated 03rd November, 2014, issued by
respondent no. 6 – EIL to the Additional District Magistrate, CEO, DDMA
(North East) Deputy Commissioner Office Complex, Nand Nagari, Delhi
(“ADM”) stating that all safety measures have been duly installed, has
neither been properly annexed nor been proved. Moreover, the said
respondent has raised factually unfounded allegations, viz., one boy pushing
the deceased, which has been wrongfully attributed to the respondent no. 6 –
EIL, who, in its reply, has never made any such assertion.
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11.20 The plea of respondent no. 6 that some children were playing near the
site and the deceased may have been responsible for his own death, is vague
and unsupported by any evidence on record. There is no such statement by
any witness or in any enquiry report. The respondent no. 6 – EIL has relied
upon the hearsay of respondent no. 7 – DSCL, i.e., the Contractor. Moreover,
the standard of care expected from a child is entirely different from that
expected from an adult. The respondents, who are public authorities and their
Contractors, owed a higher duty of care to the public.
11.21 The mere exclusion from the criminal Chargesheet, as claimed by
respondent no. 7, does not act as a shield against public law liability as
omissions or decisions by the police cannot exonerate the said respondent
from civil or constitutional responsibility.
11.22 The specific terminology used to describe the place of death is not
material, but what is material is whether a dangerous opening was left
unprotected and whether children had access to it. The respondents cannot
evade liability by contending that the structure at the site of the incident was
either called a pit, well, shaft, manhole or something else.
11.23 The respondents have not annexed any other document showing the
conclusion of enquiry or the findings of the ADM. Neither any report of the
enquiry, nor any contemporaneous photographs, taken immediately after the
incident, have been placed on record. Furthermore, the respondents failed to
produce before this Court, the Tripartite Agreement dated 07 th February,
2012, despite being in exclusive possession of the respondents. The
respondents have virtually produced every form of document irrelevant to
the dispute except those documents which would actually be material. The
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said concealment or selective reliance must be adversely inferred against the
respondents.
SUBMISSIONS OF THE RESPONDENTS:
Submissions of respondent no. 1 / GNCTD:
12. Through their Counter Affidavit dated 11th January, 2023, the GNCTD
denied all averments of the petitioners, and stated that no relief can be sought
herein, as the site of incident does not fall within the jurisdiction of the
answering respondent, i.e., Public Works Department (“PWD”), GNCTD.
Submissions of respondent no. 2 / Delhi Jal Board (“DJB”):
13. The contentions on behalf of the respondent no. 2 – DJB are as
follows:
13.1 Respondent no. 2 has not violated any rules and regulations or any of
the legal or constitutional rights of the petitioners as alleged, therefore, the
present petition is not maintainable and is liable to be dismissed qua
respondent no. 2.
13.2 It is the admitted case of the petitioners that respondent no. 6 – EIL is
the sole responsible agency, acting through respondent no. 7 – DSCL, of the
works being undertaken in respect of the Project, at the site of incident.
Thus, the DJB had no role of any sort at the site of incident, even in view of
the agreement between the parties.
13.3 The present petition is barred by delay and laches, for the reason that
the incident occurred in the year 2014 but the petition was only filed in the
year 2019.
Submissions of respondent nos. 3, 4 and 6:
14. The submissions on behalf of respondent nos. 3, 4 and 6, are as
follows:
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14.1 It is the executive mandate of respondent no. 2 – DJB to undertake
water supply, sewerage disposal and drainage projects within the National
Capital Region of Delhi. Under the said mandate, the DJB entered into an
agreement with EIL, which clearly records that EIL is to provide the Project
management consultancy services on behalf of the DJB.
14.2 A Tripartite Agreement dated 07th February, 2012, was executed
between the DJB, EIL and DSCL for the Project, and an agent-principal
relationship between the EIL and DJB was formed, with DSCL acting as the
executing agency for the works. Further, respondent nos. 3 and 4 were
deployed at the site of incident on behalf of the EIL, and had no involvement
with the construction or safety standards of the Project in any way, therefore,
they cannot be held liable for any mishap.
14.3 The present petition is not maintainable against the answering
respondents as they are neither ‘the State’ nor a ‘Statutory Body’.
Furthermore, it is neither the case of the petitioners that respondent nos. 3
and 4 have acted negligently in violation of their public duties, nor have the
petitioners established or specified which of the answering respondent’s
action or inaction has violated the fundamental or legal rights of the
petitioners. Moreover, unless negligence can be attributed and established,
the present writ petition is not maintainable against the answering
respondents.
14.4 It is the Contractor, which is responsible for ensuring the safety of life
and property on the site, and any damage or loss caused to any third-party
life and property should be repaired/replaced/compensated by the Contractor
at their own expense. Furthermore, the Contractor undertakes complete
indemnification of any and all third-party claims on both EIL and DJB. If the
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Contractor fails to compensate for any third-party life and property, the same
shall be done by respondent no. 2, on account of them being the principal
employer.
14.5 It is also that the Contractor is mandated to take out relevant insurance
policies for numerous contingencies and third-party liabilities, up to the
value of the contract amount. In view thereof, the Contractor is bound to
have adequate and significant third-party insurance cover to compensate
and/or undertake all activities as may be required. Accordingly, respondent
nos. 3 and 4 cannot be held liable in both law and equity to compensate the
petitioners.
14.6 The answering respondents have acted within the scope of their work
and authority to facilitate the public-welfare Project on behalf of the DJB.
Additionally, the work site had numerous safety measures installed, such as
caution tapes, safety nets, barricading boards, etc. and the Contractor
adopted such measures on the directions of EIL. However, the said safety
measures were stolen on various occasions and a complaint dated 21 st
March, 2013, was registered at Police Station – Gokulpuri.
14.7 The record in the present petition reveals substantial ambiguities about
the precise nature of the structure in which the boy fell, the exact location of
the incident, the authority or entity in possession and control of the site at the
relevant time, and the existence or absence of safety measures at the material
time.
14.8 The present petition is barred by limitation and suffers from delay and
laches, as the date of incident was in September, 2014, however, the present
petition has been filed in November, 2019, and the petitioners have failed to
provide any cogent reason for the same.
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14.9 The present petition is not maintainable as per the principle of sub –
judice, in view of the pending criminal matter under FIR No. 975/2014,
before the Karkardooma Courts, Delhi, and as such, in the absence of a firm
establishment/indictment of the alleged negligence on part of the respondent
nos. 3 and 4, the present petition cannot stand. Furthermore, negligence on
part of the respondent nos. 3 and 4 is a question of fact, yet to be determined
by a competent Court.
14.10 The Chief Metropolitan Magistrate in FIR No. 975/2014 vide the order
dated 29th May, 2015 held that it is unclear how the respondent no. 3 and 4,
are responsible for the safety of the site. Thus, there is no evidence to
showcase that the said respondents were responsible for the safety of the site.
14.11 Respondent nos. 3 and 4 have acted within their scope of work and
authority as employees of the project management consultant to facilitate the
public-welfare project on behalf of the owner, i.e., respondent no. 2, and
without prejudice, there is nothing to show otherwise.
14.12 The Chargesheet is a mere mechanical reproduction of the FIR and it
does not disclose any independent investigation, analysis or evidentiary
augmentation. It therefore, does not contain the level of technical detail
required by this Court to draw a conclusion of civil or public law liability. It
fails to annex any detailed photographs, measured or scaled site plan, and the
description of the site, while the alleged hazard remains generic and
unsupported by cogent evidence.
14.13 The FIR and Chargesheet interchangeably describe the structure as a
“गड्डे “, “नाले”, “water pit” and a “sewer”. The final report also refers to the
site as a “gutter”. The petitioners’ own pleadings alternately describe the
structure as a “pit of sewerage” or a “deep/large pit”, or elsewhere as an
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“open sewer”. In the rejoinder, the terminology shifts again to an “open &
uncovered pit of sewerage”.
14.14 In contrast, the respondents describe the structure in specific technical
terms that contradict the “open pit” narrative. the reply of respondent no. 7
identifies the structure variously as an “interceptor chamber,” a
“shaft/manhole,” or a “well”. The site of incident is identified in Project
records of the answering respondent, as a “receiving shaft”, and it is a
controlled construction zone.
14.15 In view thereof, without precise technical identification of the
structure, no presumption of negligence can arise as different structures
attract different safety protocols, statutory obligations, and foreseeability
standards, as the duty of care varies depending on the nature of the
instrumentality.
14.16 The respondents were diligent in their duty of care and that any
absence of covers at the time of the incident was the result of illegal third-
party intervention rather than any systemic failure or oversight by the EIL.
14.17 The site plan/drawing annexed on record by respondent no. 7 is a
rough hand-sketch rather than a measured or scaled plan. Such a sketch
cannot assist this Court in determining the precise location of the structure,
its proximity to public pathways or residential areas, the accessibility of the
site to children, or the placement or absence of barricades or covers. These
deficiencies materially weaken the factual foundation of the petition.
14.18 The petitioners seek an improper invocation of doctrine of res ipsa
loquitur, which is wholly inapplicable on the present record. Further, the
material on record does not establish exclusive control of respondent nos. 3,
4 and 6, nor does it rule out any third-party interventions.
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14.19 There is a multi-tier contractual arrangement involving a principal
employer, a project management consultant and an executing Contractor. The
answering respondents, i.e., respondent nos. 3, 4 and 6, are not executing
agencies, and any such determination of liability without examination of
contractual allocation, indemnity and insurance coverage, is legally
unsustainable.
14.20 The determination of liability depends upon identifying which
authority had possession, custody, or operational control of the site of
incident on the relevant date. By way of a Letter dated 03rd November, 2014,
to the ADM, respondent no. 6 had, inter-alia, expressed their role as the
project management consultant. The aforesaid communication is purely
explanatory and it contained no admission of negligence by respondent no.
6. Furthermore, the respondents complied with the subsequent administrative
suggestion of increasing the height of the structure to 1.5 metres, and such
action is standard post-incident safety enhancement, which cannot be
retrospectively treated as an admission of prior negligence or
acknowledgment of pre-existing hazard.
14.21 The doctrine of attractive nuisance cannot be invoked merely because
the victim was a child, it requires proof that the site was inherently alluring
and that children habitually accessed it, and that reasonable precautions were
not taken. No such materials exist on record.
14.22 The doctrine of strict liability is not applicable in the present case as
there has been no ‘escape’ of anything dangerous from the work site which
caused the incident.
14.23 Granting compensation would lower the threshold for public claims,
and encourage a template-based litigation founded on sympathy than legal
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proof and attributability. The compensation of Rs. 25 Lacs, as sought by the
petitioners, is without any basis or justification, as they have suffered no
pecuniary loss. The petitioners, if at all, can be entitled to a maximum of Rs.
2,53,000/- as standard compensation, on the basis of the law laid down by
the Supreme Court on standard compensation.
Submissions of respondent no. 7:
15. The respondent no. 7, i.e., DSCL has made the following submissions:
15.1 The contracted works had to be executed in terms of instructions
issued by EIL and under their supervision and continuous inspection. The
DJB/EIL was also responsible for carrying out continuous Health, Safety &
Environment audits and meetings. Part of the aforesaid works, concerning
Package 5, was to be carried out on the edge of the Shahdara drain.
15.2 On one side of the interceptor chamber was the edge of the drain, on
the other side was the boundary wall of the Irrigation & Flood Control
Department (“I&FCD”) of respondent no. 1. Further, at the onset of the
monsoons, works were not being carried out at the subject area by the
answering respondent, pursuant to the directions by I&FCD that the drain
could not be obstructed during monsoons and all such obstructions have to
be removed by 15th June, each year.
15.3 I&FCD carries out works in drains for monsoon preparations,
including, desilting among other works. The process of cleaning/desilting of
the drain by I&FCD leads to the interceptor chamber & shaft structure being
filled with slush and debris. The answering respondent, in the aforesaid
position, could not carry out the works, which could only be resumed in the
month of October of each year. The incident in question took place during
such period in September, 2014.
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15.4 The answering respondent had even otherwise put requisite safety
measures in place. However, there were incidents of theft of the said safety
measures, therefore, there was no negligence or laxity in adopting safety
measures. EIL’s own Letter dated 03rd November, 2014, noted that the
incident occurred when one or the other boy inadvertently pushed the boy in
question, who then fell into the well/shaft.
15.5 The incident in question took place at receiving shaft, being RS-14,
which is approximately 19.7 metres in width, while the bank of the drain till
the edge of the boundary wall of I&FCD is 14.2 metres wide. Also, the
height of the boundary wall of I&FCD is approximately 2.5 metres.
Moreover, the area in question is not a public area and it was quite wide and
plainly visible and also perceptible to children. Thus, inference of negligence
could not be readily attributable. Therefore, the principle of res ipsa loquitur
is not applicable in the present case.
15.6 The present petition is not maintainable as it raises disputed questions
of facts and the said issue cannot be adjudicated upon in the present
proceedings.
15.7 The petitioners, in their written submissions, seek claim of Rs.
39,50,837/-, which is a divergence of what has been claimed in the writ
petition. The petitioners have not sought to amend their writ petition and no
basis has been furnished for the purported compensation amount. There is
further no basis in the petitioners’ claim towards interest; much less from the
date of incident.
15.8 The petitioners’ argument that charges have been framed against
DSCL is wholly erroneous and misconceived. DSCL has not been arrayed as
an accused by the Investigating Officer. Furthermore, the petitioners, in their
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rejoinder arguments confine their relief of compensation to respondent nos. 1
and 2, and such being the case, there is no basis for the writ petition to be
allowed.
ANALYSIS & CONCLUSION:
16. I have heard learned counsels for the parties and have perused the
record.
17. The present is a classic case where the state authorities have displayed
apathy towards the death of a child by trying to shift burden to each other,
despite apparent glaring negligence in not securing the site which was a
source of potential danger on account of open pits that had been allowed to
remain uncovered and unguarded. When such incidents happen where young
children lose their lives due to failure of the government authorities to
provide for adequate safety measures, the same is a pointer to the
fundamental breakdown of the civic governance and blatant failure of the
civic body in its duty of care. Such infractions constitute violation of the
fundamental right to life, and have to be addressed with utmost seriousness.
18. The present writ petition has been filed seeking a compensation of Rs.
40,40,495.36/- (Rupees Forty Lacs Forty Thousand Four Hundred Ninety-
Five and Thiry-Six Paisa Only), as on date. The same is sought premised on
the claim that the death of the petitioners’ son, Mohd. Nazim, aged 10 years,
was due to the negligence on part of the respondents.
19. In the present writ, as compensation is sought against several entities,
it would be expedient to understand the roles of the respondents, and other
involved parties in the matter. Further, the respondents have shifted liability
upon one another, which is also indicated in the table below. Thus, the
following may be considered:
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S.NO. PARTY NAME PARTY DETAILS
1. Petitioner nos. 1 Father and Mother of the deceased.
and 2 (Claim negligence on part of all the
respondents)
2. Respondent no. 1 GNCTD
Party to the writ because it is the State
Government which overlooks the welfare
schemes for victims’ family members.
(Does not specify negligence to any party)
3. Respondent no. 2 Delhi Jal Board
DJB is the principal authority and employer
overseeing the Project where the incident
occurred.
(Claims negligence on part of respondent
nos. 3, 4 & 6, i.e., EIL and its employees)
4. Respondent no. 3 Mr. Rajesh Kumar Maurya & Mr.
&4 Shahjad Ahmad
Both are Senior Engineers in EIL
(Respondent no. 6), who were the
employees of EIL overseeing the Project.
(Claims negligence on part of the
respondent no. 7, i.e., DSCL –
Contractor)
5. Respondent no. 5 Mr. Zubair Alam
He is the Safety Officer in charge of the site,
at the time of incident. He is the employee
of DSCL (Respondent no. 7), i.e., private
Contractor.
6. Respondent no. 6 M/s Engineers India Limited
This is a public sector undertaking owned
by the Government of India, which was
appointed for the purposes of project
management consultancy. EIL had invited
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bids on behalf of DJB, for the complete
Project. Moreover, EIL oversaw the
complete Project, including the private
Contractors.
7. Respondent No. 7 M/s DSCL Fengshun Wabag Consortium
This is the Contractor that had been
appointed by EIL, for the purposes of
executing the work at Packages 4 and 5, i.e.,
site of incident.
(Claims negligence on part of the
respondent nos. 2 and 6)
20. To comprehend the sequence of events, it would be apposite to note
the details of the Project that was being undertaken by the respondents,
wherein, the incident had occurred. Thus, the following particulars may be
noted:
a. The Project in question was for ‘Laying of Interceptor Sewer along
Najafgarh, Supplementary and Shahdara for abatement of pollution in
Yamuna River’.
b. The Project had six Packages, i.e., locations/areas.
c. The DJB was the principal employer under whose aegis the Project was
being undertaken.
d. DJB appointed and entered into an Agreement with EIL for project
management consultancy.
e. The EIL took out a Notice inviting Tender for the Project, in which the
respondent no. 7, i.e., DSCL – Contractor was awarded the Project for
Packages 4 and 5, i.e., Rohini/Rithala & North Yamuna. The incident
took place on 27th September, 2014, at the edge of Shahdara Drain,Signature Not Verified
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which is located in Bhagirathi Vihar Canal, Delhi – 110094. The
incident and the said location are located in Package 5.
f. DJB, EIL and the DSCL, entered into a Tripartite Agreement dated 07 th
February, 2012 in this regard. Further, as per the Contractor, the terms of
the Agreement were detailed in the Bidding Document and the Letter of
Acceptance.
g. The Police has filed a Chargesheet, which includes a sketch, and the
position marked as ‘A’ in the said sketch along with the Chargesheet, is
where the incident occurred.
21. Considering the various submissions made before this Court on behalf
of the parties, the following questions arise for consideration by this Court:
1. Whether the present petition is barred by delay and laches?
2. Whether the present petition is not maintainable on account of
alleged disputed questions of facts?
3. Whether the present petition is maintainable against the private
parties?
4. Whether there is negligence on part of the respondents?
5. Whether a prima facie case has been made out by the petitioners?
6. Nature of site where the incident occurred?
7. Whether compensation can be granted, and if so, the mechanism that
has to be applied?
Whether the present petition is barred by delay and laches?
22. The present writ was filed on 15th November, 2019, whereas, the
incident occurred on 27th September, 2014. The respondent nos. 2, 3, 4, 6
and 7 have claimed that the petition suffers from delay and laches as, firstly,
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the petition has been filed after 5 years of the occurrence of the incident, and
secondly, the petitioners have not provided cogent reasons for the delay.
23. The aforesaid submissions regarding delay and laches as raised by the
respondents do not find favour with this Court. In this regard, it is to be
noted that the petitioners are grieving parents of a minor child aged 10 years
at the time of his death. The petitioners had lodged the FIR No. 975/2014 on
the same date as the incident, i.e., 27th September, 2014. Further, criminal
proceedings were underway, wherein, a Chargesheet was filed, and
proceedings were ongoing. Indication of the same can also be culled out
from the order dated 29th May, 2015 passed by Chief Metropolitan
Magistrate, District Court, Karkadooma, which is on record before this
Court. Moreover, as per the order dated 14 th October, 2025 passed by the
District Court, Karkadooma, which was handed over in the Court, charges
were framed against respondent no. 7. Therefore, the criminal proceedings
are still underway, which are being pursued by the petitioners.
24. Moreover, the ground realities of parents of a deceased minor child
have to be considered, along with the financial status of the parties, in
dealing with such technical objections. The aspects of pain, trauma, financial
distress, loss of child and being economically weak, have to be taken into
consideration, while dealing with an objection of delay and laches. Thus, the
Supreme Court in the case of Tukaram Kana Joshi and Others Versus
Maharashtra Industrial Development Corporation and Others, (2013) 1
SCC 353, laid certain guidelines in relation to the aspect of delay and laches.
Relevant paragraphs of the said judgment are extracted as below:
“xxx xxx xxx
13. The question of condonation of delay is one of discretion and
has to be decided on the basis of the facts of the case at hand, as theSignature Not Verified
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same vary from case to case. It will depend upon what the breach of
fundamental right and the remedy claimed are and when and how
the delay arose. It is not that there is any period of limitation for the
courts to exercise their powers under Article 226, nor is it that there
can never be a case where the courts cannot interfere in a matter,
after the passage of a certain length of time. There may be a case
where the demand for justice is so compelling, that the High Court
would be inclined to interfere in spite of delay. Ultimately, it would
be a matter within the discretion of the Court and such discretion,
must be exercised fairly and justly so as to promote justice and not to
defeat it. The validity of the party’s defence must be tried upon
principles substantially equitable. (Vide P.S. Sadasivaswamy v. State
of T.N., State of M.P. v. Nandlal Jaiswal and Tridip Kumar Dingal v.
State of W.B.)
14. No hard-and-fast rule can be laid down as to when the High
Court should refuse to exercise its jurisdiction in favour of a party
who moves it after considerable delay and is otherwise guilty of
laches. Discretion must be exercised judiciously and reasonably. In
the event that the claim made by the applicant is legally sustainable,
delay should be condoned. In other words, where circumstances
justifying the conduct exist, the illegality which is manifest, cannot
be sustained on the sole ground of laches. When substantial justice
and technical considerations are pitted against each other, the cause
of substantial justice deserves to be preferred, for the other side
cannot claim to have a vested right in the injustice being done,
because of a non-deliberate delay. The court should not harm
innocent parties if their rights have in fact emerged by delay on the
part of the petitioners. (Vide Durga Prashad v. Chief Controller of
Imports and Exports [(1969) 1 SCC 185: AIR 1970 SC 769], Collector
(LA) v. Katiji [(1987) 2 SCC 107: 1989 SCC (Tax) 172: AIR 1987 SC
1353], Dehri Rohtas Light Railway Co. Ltd. v. District Board,
Bhojpur [(1992) 2 SCC 598: AIR 1993 SC 802], Dayal Singh v. Union
of India [(2003) 2 SCC 593: AIR 2003 SC 1140] and Shankara Coop.
Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607: (2011) 3
SCC (Civ) 56: AIR 2011 SC 2161].)
15. In H.D. Vora v. State of Maharashtra [(1984) 2 SCC 337: AIR
1984 SC 866] this Court condoned a 30-year delay in approaching
the court where it found violation of substantive legal rights of the
applicant. In that case, the requisition of premises made by the State
was assailed.
xxx xxx xxx”
(Emphasis Supplied)
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25. Likewise, in the case of Ram Autar Singh Yadav Versus State of
Uttar Pradesh and Others, 2024 SCC OnLine SC 6091, the Supreme Court
laid down the test for laches in a case of violation of fundamental rights, in
the following manner:
“xxx xxx xxx
22. In the present case, neither is there accrual of any parallel right
of a third party nor could grant of relief cause confusion and public
inconvenience. There has also been no occasion for the State
authorities to claim that they are in any manner handicapped to
defend their action. On the contrary, this is a case where the
appellant sought to explain the belated approach by referring to his
repeated unyielding persuasions, which the High Court brushed
aside mechanically, without appreciating that the appellant had
invoked its writ jurisdiction for enforcement of his Fundamental
Rights under Articles 14 and 21 of the Constitution. When a litigant
approaches a high court invoking its high prerogative writ
jurisdiction with a petition under Article 226 of
the Constitution alleging that the impugned State action is in breach
of his Fundamental Right and claims that the breach be bridged by
issuing appropriate writ/order/direction as distinguished from a
claim for enforcement of a statutory right, it partakes the character
of a duty on the part of such high court to enforce the right
breached as the guardian of the Constitution. Law is well-settled
that there is no loss of a Fundamental Right for non-exercise
thereof and also that there cannot be waiver of a Fundamental
Right. Hence, no argument can commend acceptance that a litigant
seeking enforcement of his Fundamental Right should be declined
relief in all cases of a belated approach. Notwithstanding delay,
which might not have been explained to the full satisfaction of a
high court, we hold that in cases where a high court finds that facts,
as they have been presented, are not seriously disputed, no further
investigation into facts is required to be made, the relief claimed in
the petition was otherwise due to the writ petitioner and the same
would have followed as a matter of course and been granted had he
approached the high court without delay, it would be iniquitous and
inappropriate to deny relief for no better reason than that the relief
has been belatedly claimed.
23. The writ petition of the appellant provided an opportunity to
the High Court to right the wrong which, unfortunately, it failed to
seize. It is with a deep sense of regret that we end the discussion here
expressing hope that as the sentinel on the qui vive, the high courtsSignature Not Verified
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in the country would do well not to mechanically dismiss writ
petitions on the ground of delay and laches without considering all
the relevant factors.
xxx xxx xxx”
(Emphasis Supplied)
26. Similarly, in the case of Munni Devi Versus Government of NCT of
Delhi and Another, 2021 SCC OnLine Del 46, the incident occurred in the
year 2007 and the writ petition was filed in the year 2018. Thus, in the said
case, where there was a delay of 12 years from the date of the incident, the
Court held that right of the illiterate petitioners from remote areas who lost
their son, could not be defeated by laches. Thus, it was held as follows:
“xxx xxx xxx
38. The next plea that has been strongly raised by Respondent 2 in
defence is the plea of delay and laches. It has been pleaded that the
present writ petition has been filed almost 12 years after the incident
has occurred and the relief is barred by delay and laches.
39. In my opinion, the plea is misconceived.
40. Firstly, I cannot help noticing that the petitioner comes from an
economically weaker section of the society. The parents of the
deceased live in the interior of the Bihar. The husband of the
petitioner is working as a labourer. They have painstakingly been
following up with the police for appropriate steps but no results have
followed. It is only in 2017 that from the court of learned MM
through status report that was filed that some details were provided
as to how their son had got electrocuted. Thereafter, they have
perused and filed the suit which was dismissed as withdrawn and
now they have filed the present writ petition.
41. On the issue of delay and laches, it is settled position of law that
it is not a mandatory requirement that every delayed petition must be
dismissed on the ground of delay. In this context reference may be
had to the judgment of the Supreme Court in Vetindia
Pharmaceuticals Ltd. v. State of U.P. [Vetindia Pharmaceuticals
Ltd. v. State of U.P., (2021) 1 SCC 804], where the court held as
follows:
15. That brings us to the question of delay. There is no doubt
that the High Court in its discretionary jurisdiction may decline
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in approaching the court. But it is only a rule of discretion by
exercise of self-restraint evolved by the court in exercise of the
discretionary equitable jurisdiction and not a mandatory
requirement that every delayed petition must be dismissed on the
ground of delay. The Limitation Act stricto sensu does not apply
to the writ jurisdiction. The discretion vested in the court under
Article 226 of the Constitution therefore has to be a judicious
exercise of the discretion after considering all pros and cons of
the matter, including the nature of the dispute, the explanation
for the delay, whether any third-party rights have intervened, etc.
The jurisdiction under Article 226 being equitable in nature,
questions of proportionality in considering whether the impugned
order merits interference or not in exercise of the discretionary
jurisdiction will also arise. This Court in Basanti Prasad v. Bihar
School Examination Board [Basanti Prasad v. Bihar School
Examination Board, (2009) 6 SCC 791], after referring to Moon
Mills Ltd. v. M.R. Meher [Moon Mills Ltd. v. M.R. Meher, AIR
1967 SC 1450] , Maharashtra SRTC v. Balwant Regular Motor
Service [Maharashtra SRTC v. Balwant Regular Motor
Service, AIR 1969 SC 329] and State of M.P. v. Nandlal
Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566] ,
held that if the delay is properly explained and no third party rights
are being affected, the writ court under Article 226 of the
Constitution may condone the delay, holding as follows:
“18. In the normal course, we would not have taken
exception to the order passed by the High Court. They are
justified in saying that a delinquent employee should not be
permitted to revive the stale claim and the High Court in
exercise of its discretion would not ordinarily assist the tardy
and indolent person. This is the traditional view and is well
supported by a plethora of decisions of this Court. This Court
also has taken the view that there is no inviolable rule, that,
whenever there is delay the Court must refuse to entertain a
petition. This Court has stated that the writ court in exercise
of its extraordinary jurisdiction under Article 226 of the
Constitution may condone the delay in filing the petition, if
the delay is satisfactorily explained.”
42. In this context reference may also be had to the judgment of the
Supreme Court in Tukaram Kana Joshi v. Maharashtra Industrial
Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial
Development Corpn., (2013) 1 SCC 353], where the court held as
follows:
“14. The High Court committed an error in holding the
appellants non-suited on the ground of delay and non-availabilitySignature Not Verified
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of records, as the court failed to appreciate that the appellants
had been pursuing their case persistently. Accepting their claim,
the statutory authorities had even initiated the acquisition
proceedings in 1981, which subsequently lapsed for want of
further action on the part of those authorities. The claimants are
illiterate and inarticulate persons, who have been deprived of
their fundamental rights by the State, without it resorting to any
procedure prescribed by law, without the court realising that the
enrichment of a welfare State, or of its instrumentalities, at the
cost of poor farmers is not permissible, particularly when done at
the behest of the State itself. The appellants belonged to a class
which did not have any other vocation or any business/calling to
fall back upon, for the purpose of earning their livelihood.”
43. In the present facts also the petitioners herein are illiterate and
inarticulate persons and cannot be deprived of their rights in this
manner.
44. Considering the overall situation and also keeping in mind that
the jurisdiction under Article 226 of the Constitution of India is
equitable in nature and keeping in view the background of the
petitioner, in my opinion, it would not be appropriate to decline
relief to the petitioner on the ground of delay and laches in the facts
and circumstances of this case. The plea raised by Respondent 2 that
the petition is liable to be dismissed on the ground of delay and
laches, is rejected.
xxx xxx xxx”
(Emphasis Supplied)
27. Considering the exposition of law as aforesaid and in view of the
overall facts and circumstances of the present case, this Court deems it fit to
entertain the present petition. The plea raised by respondents regarding delay
and laches, is found to be without any merit, and is totally misconceived.
The petitioners herein are from the weaker section of the society, and the
criminal proceedings were continuing before they approached this Court to
invoke civil remedy, and the same were verily being pursued by the
petitioners. The petitioners are from a poor background and lack legal
literacy. It has been placed on record that the father of the deceased, earned
an income of Rs. 15,000/- per month, working as a painter on contractualSignature Not Verified
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basis and the mother is a homemaker. It cannot be discounted that in the
unfortunate incident that took place wherein the petitioners lost their minor
child, they have faced immense agony, distress and financial stress, as a
natural corollary.
28. Thus, in view of the factual backdrop, the present is a fit case for
exercising the discretion of this Court under the writ jurisdiction, especially,
wherein petitioners are seeking relief against violation of their fundamental
rights. Thus, it would be in the fitness of things to not obliviate the rights of
the petitioners on a mere technical and procedural ground. Consequently, the
contention of the respondents regarding delay and laches, is rejected in the
facts and circumstances of the present case.
Whether the present petition is not maintainable on account of alleged
disputed questions of facts?
29. It is the case of the respondents that the present writ petition cannot be
entertained in light of disputed questions of facts arising before this Court,
and therefore, the petitioners ought to exercise an alternate remedy in
appropriate proceedings.
30. In this regard, it is to be noted that the aspect of disputed questions of
facts does not take away the jurisdiction of this Court to entertain a writ
petition, in cases where the material and foundational facts of the case are
undisputed. Further, only because there exists an alternate remedy to a party,
does not obligate a writ Court to not exercise its jurisdiction. It is for this
Court to decide that if the material / foundational facts are not disputed, then
the Court can exercise its jurisdiction under Article 226 of the Constitution.
31. Thus, the Supreme Court in the case of A.P. Electrical Equipment
Corporation Versus Tahsildar and Others, 2025 SCC OnLine SC 447, hasSignature Not Verified
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held that mere existence of disputed questions of fact, does not take away
the jurisdiction of High Court under Article 226 of the Constitution. Thus, it
was held as under:
“xxx xxx xxx
48. Normally, the disputed questions of fact are not investigated or
adjudicated by a writ court while exercising powers under
Article 226 of the Constitution of India. But the mere existence of
the disputed question of fact, by itself, does not take away the
jurisdiction of this writ court in granting appropriate relief to the
petitioner. In a case where the Court is satisfied, like the one on
hand, that the facts are disputed by the State merely to create a
ground for the rejection of the writ petition on the ground of
disputed questions of fact, it is the duty of the writ court to reject
such contention and to investigate the disputed facts and record its
finding if the particular facts of the case, like the one at hand, was
required in the interest of justice.
49. There is nothing in Article 226 of the Constitution to indicate
that the High Court in the proceedings, like the one on hand, is
debarred from holding such an inquiry. The proposition that a
petition under Article 226 must be rejected simply on the ground
that it cannot be decided without determining the disputed question
of fact is not warranted by any provisions of law nor by any decision
of this Court. A rigid application of such proposition or to treat such
proposition as an inflexible rule of law or of discretion will
necessarily make the provisions of Article 226 wholly illusory and
ineffective more particularly Section 10(5) and 10(6) of the Act,
1976 respectively. Obviously, the High Court must avoid such
consequences.
50. In the aforesaid context, we may look into the decision of this
Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR
1967 SC 1269. In paragraph 6 at p. 1270 of the said judgment, this
Court has been pleased to hold as follows:–
“Under Art. 226 of the Constitution the High Court is not
precluded from entering upon a decision on questions of fact
raised by the petition. Where an enquiry into complicated
questions of fact arises in a petition under Art. 226 of
the Constitution before the right of an aggrieved party to obtain
relief claimed may be determined. The High Court may in
appropriate cases decline to enter upon that enquiry and may
refer the party claiming relief to a suit. But the question is one ofSignature Not Verified
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discretion and not of jurisdiction of the Court.”
(Emphasis supplied)
51. This Court in the case of Gunwant Kaur v. Bhatinda
Municipality, (1969) 3 SCC 769: AIR 1970 SC 802 observed as
follows:–
“The High Court observed that they will not determine disputed
question of fact in a writ petition. But what facts were in dispute
and what were admitted could only be determined after an affidavit
in reply was filed by the State. The High Court, however,
proceeded to dismiss the petition in limine. The High Court is not
deprived of its jurisdiction to entertain a petition under Art. 226
merely because in considering the petitioner’s right to relief
questions of fact may fall to be determined. In a petition under
Art. 226 the High Court has jurisdiction to try issues both of fact
and law. Exercise of jurisdiction is, it is true, discretionary, but
the discretion must be exercised on sound judicial principles.
When the petition raises questions of fact of a complex nature,
which may for their determination require oral evidence to be
taken, and on that account the High Court is of the view that the
dispute may not appropriately be tried in a writ petition, the High
Court may decline to try a petition. Rejection of a petition in limine
will normally be justified, where the High Court is of the view that
the petition is frivolous or because of the nature of the claim made,
dispute sought to be agitated, or that the petition against the party
against whom relief is claimed is not maintainable or that the
dispute raised thereby is such that it would be inappropriate to try
it in the writ jurisdiction, or for analogous reasons.”
(Emphasis supplied)
52. In one of the recent pronouncements of this Court in State of
U.P. v. Ehsan, 2023 INSC 906, this Court observed that:–
“28. We are conscious of the law that existence of an
alternative remedy is not an absolute bar on exercise of writ
jurisdiction. More so, when a writ petition has been entertained,
parties have exchanged their pleadings/affidavits and the matter
has remained pending for long. In such a situation there must be
a sincere effort to decide the matter on merits and not relegate the
writ petitioner to the alternative remedy, unless there are
compelling reasons for doing so. One such compelling reason may
arise where there is a serious dispute between the parties on a
question of fact and materials/evidence(s) available on record are
insufficient/inconclusive to enable the Court to come to a definite
conclusion…….
xxx xxx xxx”
(Emphasis Supplied)
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32. Likewise, the Supreme Court in the case of Tamil Nadu Electricity
Board Versus Sumathi and Others, (2000) 4 SCC 543, has held that when
there is negligence on the face of it and infringement of Article 21 of the
Constitution is there, in relation to disputed questions of facts, it cannot be
said that there is a bar for remedy under Article 226 of the Constitution.
Thus, the Supreme Court held as follows:
“xxx xxx xxx
10. In view of the clear proposition of law laid by this Court
in Sukamani Das case [(1999) 7 SCC 298] when a disputed question
of fact arises and there is clear denial of any tortious liability remedy
under Article 226 of the Constitution may not be proper. However, it
cannot be understood as laying a law that in every case of tortious
liability recourse must be had to a suit. When there is negligence on
the face of it and infringement of Article 21 is there it cannot be said
that there will be any bar to proceed under Article 226 of the
Constitution. Right of life is one of the basic human rights
guaranteed under Article 21 of the Constitution. In U.P. State Coop.
Land Development Bank Ltd. v. Chandra Bhan Dubey [(1999) 1 SCC
741 : 1999 SCC (L&S) 389] where one of us (Wadhwa, J.) was a
party, this Court after examining various decisions of the courts on
the power of the High Court under Article 226 of the Constitution
observed that the language of Article 226 of the Constitution does
not admit of any limitation on the powers of the High Court for the
exercise of jurisdiction thereunder though by various decisions of
this Court with varying and divergent views, it has been held that
jurisdiction under Article 226 can be exercised only when a body or
authority, the decision of which is complained, was exercising its
power in the discharge of public duty and that writ is a public law
remedy. This Court then observed: (SCC pp. 758-59, para 27)“[I]t may not be necessary to examine any further the question
if Article 226 makes a divide between public law and private law.
Prima facie from the language of Article 226, there does not
appear to exist such a divide. To understand the explicit language
of the article, it is not necessary for us to rely on the decision of
English courts as rightly cautioned by the earlier Benches of this
Court. It does appear to us that Article 226 while empowering theSignature Not Verified
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High Court for issue of orders or directions to any authority or
person, does not make any such difference between public functions
and private functions. It is not necessary for us in this case to go
into this question as to what is the nature, scope and amplitude of
the writs of habeas corpus, mandamus, prohibition, quo warranto
and certiorari. They are certainly founded on the English system of
jurisprudence. Article 226 of the Constitution also speaks of
directions and orders which can be issued to any person or
authority including, in appropriate cases, any Government. Under
clause (1) of Article 367, unless the context otherwise requires, the
General Clauses Act, 1897, shall, subject to any adaptations and
modifications that may be made therein under Article 372, apply
for the interpretation of the Constitution as it applies for the
interpretation of an Act of the legislature of the Dominion of India.
‘Person’ under Section 2(42) of the General Clauses Act shall
include any company, or association or body of individuals,
whether incorporated or not. The Constitution is not a statute. It is
a fountainhead of all the statutes. When the language of Article
226 is clear, we cannot put shackles on the High Courts to limit
their jurisdiction by putting an interpretation on the words which
would limit their jurisdiction. When any citizen or person is
wronged, the High Court will step in to protect him, be that
wrong be done by the State, an instrumentality of the State, a
company or a cooperative society or association or body of
individuals, whether incorporated or not, or even an individual.
Right that is infringed may be under Part III of the Constitution
or any other right which the law validly made might confer upon
him. But then the power conferred upon the High Courts under
Article 226 of the Constitution is so vast, this Court has laid down
certain guidelines and self-imposed limitations have been put
there subject to which the High Courts would exercise
jurisdiction, but those guidelines cannot be mandatory in all
circumstances. The High Court does not interfere when an equally
efficacious alternative remedy is available or when there is an
established procedure to remedy a wrong or enforce a right. A
party may not be allowed to bypass the normal channel of civil and
criminal litigation. The High Court does not act like a proverbial
‘bull in a china shop’ in the exercise of its jurisdiction under
Article 226.”
xxx xxx xxx”
(Emphasis Supplied)
33. In the present case, the questions which are disputed have squarely
been raised by the respondents themselves. There is heavy reliance by the
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respondents on the communications made by each other. The aspect of the
location where the incident took place, the instrumentality which caused the
incident, and whether the safety measures were present or not, have all been
raised by the respondents as questions, which as per them, show there is
dispute in the facts of the present case. In this regard, reliance is placed on
the judgment of the Division Bench of this Court in the case of Rajeev
Singhal and Another Versus MCD (East Delhi Municipal Corporation)
and Another, 2018 SCC OnLine Del 11518, wherein, the Division Bench
has held that inter se disputes regarding facts between the respondents
therein is not a ground for disentitling the petitioners therein in seeking
relief under writ jurisdiction. The relevant portions of the said judgment are
extracted as below:
“xxx xxx xxx
18. In the case of Varinder Prasad (supra) also similar situation was
in existence. In that case also, a boy aged 10 years died on account of
a shed (chhajja) of a house situated in DESU Colony, Najafgarh
collapsing and falling on him. In that case also negligence in
maintenance of the chhajja was proved but there was inter se dispute
between the Delhi Transco Limited and various other government
authorities which resulted in an inter se dispute between them with
regard to the question of negligence and while taking note of the
aforesaid situation, relying upon earlier judgments of this Court and
the Supreme Court in the case of D.K. Basu (supra), Neelabati
Behera (supra), Rudal Shah (supra), Ram Kishore (supra)
and Darshan (supra), it has been held by this Court that once
occurrence of the incident, factum of death of the victim consequent
to negligence are established, merely because there is an inter
se dispute between the respondents as to who is responsible for the
accident or the negligence, the writ petition could not be dismissed.
The law laid down in the case of Chairman, Grid Corporation of
Orissa (supra) was considered and after taking note of various
judgments, the learned Court in the case of Varinder Prasad (supra)
in para (31) has dealt with the issue in the following manner:
“31. Consequently, I have no hesitation in concluding that the
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present being a case of glaring and evident negligence, to which
the maxim Res Ipsa Loquitor applies, the present writ petition
under Article 226 of the Constitution of India is maintainable as
the said negligence has led to complete infraction of the
fundamental right to life of the deceased. The inter se dispute
between the two respondents, i.e. respondent nos. 1 and 2, would
not come in the way of the petitioners for claiming compensation
for breach of the fundamental rights of the deceased Ajay Kumar.
The tendency of the public authorities, when more than one of
them is involved, to shift the burden on each other is not new.
Same was the position in Darshan (supra), and Ram
Kishore (supra) and Swarn Singh (supra). The said inter se dispute
was held, not be disentitle the petitioner from claiming relief
under Article 226 of the Constitution of India, as negligence,
resulting in breach of fundamental rights was held to have been
established in each of these cases. The Court shall, however,
prima facie examine the aspect of responsibility, only with a view
to fix the responsibility of one of the respondents to pay the
awarded compensation, leaving it open to the respondents to
battle out and settle their inter se liability in appropriate
proceedings.”
19. From the aforesaid, it is clear that merely because there is
an inter se dispute between the respondents, it would not disentitle
the petitioners from claiming the relief under Article 226 of
the Constitution of India as negligence resulting in breach of
Fundamental Rights is held to be established. Even though the
judgment in the case of Varinder Prasad (supra) has been rendered
by Single Judge of this Court but the said judgment refers to various
judgments not only of Supreme Court but also of this Court and
once in this case the finding recorded is to the effect that the
accident took place because of negligence in the matter of
maintenance of electrical equipments and it is also proved that the
accident was a consequence of such negligence, merely on account
of inter se dispute between the parties, namely, respondent No. 1 and
respondent No. 2, in our considered view, the petitioner could not be
non-suited or their petition is dismissed. Once the factum of accident
having occurred resulting into death of the child and the accident
being a consequence of negligence are established, the learned writ
Court should have, in our considered view, proceeded to assess the
compensation and awarded it to the appellants instead of dismissing
the writ petition. In fact, the inter se dispute on facts between the
respondents cannot be a ground for dismissing the writ petition. On
the contrary, as has been done in various cases including the case
of Varinder Prasad (supra), the Court should have held both the
respondents jointly and severally liable for payment of compensation,
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imposed 50% liabilities on them and thereafter left it to them to work
out their inter se dispute, particularly so when both the respondents
are functioning under the control of the Government.
20. Accordingly, in dismissing the writ petition on the ground that
there are disputed questions of fact, in our considered view, the writ
Court has committed a grave error which cannot be upheld by us.
Accordingly, we allow this petition by holding that the writ petition
was maintainable and merely because there is an inter se dispute
between the respondents, the right of the petitioners (appellants
herein) to claim compensation cannot be denied. Having held so,
now the question would arise as to how and in what manner
quantification of the compensation in the present case can be
undertaken and how the compensation can be arrived at. In this
regard, we may refer to the principle of law laid down in the case
of Lata Wadhwa (supra) followed subsequently in the case of M.S.
Grewal (supra), the formula and criteria laid down in the case
of Kamla Devi (supra), so also in the case of Varinder Prasad (supra)
and the compensation can be worked out. In the case of M.S.
Grewal (supra), relying upon an earlier judgment of the Supreme
Court in the case of C.K. Subramania Iyer v. T. Kunhikuttan
Nair (1969) 3 SCC 64, certain guidelines for the purpose of
assessment of compensation has been laid down by the Supreme Court
and in para (8) the principle laid down reads as under:
“8. Incidentally, this Court in C.K. Subramania Iyer v. T.
Kunhikuttan Nair [(1969) 3 SCC 64] while dealing with the matter
of fatal accidents laid down certain relevant guidelines for the
purpose of assessment of compensation. Paragraph 13 of the
Report would be relevant on this score and the same is set out
herein below:
13. The law on the point arising for decision may be
summed up thus: Compulsory damages under Section 1-A of the
Act for wrongful death must be limited strictly to the pecuniary
loss to the beneficiaries and that under Section 2, the measure
of damages is the economic loss sustained by the estate. There
can be no exact uniform rule for measuring the value of the
human life and the measure of damages cannot be arrived at
by precise mathematical calculations but the amount
recoverable depends on the particular facts and circumstances
of each case. The life expectancy of the deceased or of the
beneficiaries whichever is shorter is an important factor. Since
the elements which go to make up the value of the life of the
deceased to the designated beneficiaries are necessarily
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be no exact or uniform rule for measuring the value of human
life. In assessing damages, the Court must exclude all
considerations of matter which rest in speculation or fancy
though conjecture to some extent is inevitable. As a general
rule parents are entitled to recover the present cash value of
the prospective service of the deceased minor child. In addition
they may receive compensation for loss of pecuniary benefits
reasonably to be expected after the child attains majority. In
the matter of ascertainment of damages, the Appellate Court
should be slow in disturbing the findings reached by the courts
below, if they have taken all the relevant facts into
consideration.
xxx xxx xxx”
(Emphasis Supplied)
34. Accordingly, despite there being inter se disputed questions of facts
between the respondents, this Court, to satisfy the maintainability of the
petition, has to look at the foundational facts that are material. When
material facts are not disputed and a case can be made out with the facts on
record, a petition is maintainable under Article 226 of the Constitution.
35. In the present case, it is the contention of the respondents that the
place of incident, the circumstances, the sequence leading to the death and
the authority / entity in possession / control of the site, are all disputed,
therefore, the writ petition cannot be entertained. However, the contentions
of the respondents in this regard, are untenable and entirely misplaced. The
foundational and material facts are undisputed in the present case, as
brought forth in the table below:
S.NO. INGREDIENTS FACT REASONING
1. Cause of death The death of the child The factum of death of the
occurred due to falling child is an admitted fact
into an uncovered pit at with the parties. The
the site in possession dispute as to the exact
and/or control of the uncovered pit in which the
respondents. child fell, is
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inconsequential, as it is an
undisputed fact that the
site of incident was in
possession and control of
the respondents on
account of their respective
roles in the Project.
2. Place of incident The location where the The exact location
incident happened, is wherein the incident
an admitted fact that it happened also does not
occurred in the area create any foundational
where the respondents dispute, and the fact still
were operating and remains that the incident
executing their Project. occurred at a site, wherein
the respondents were in
possession and executing
a Project.
3. Authority The authority in the The Project was under the
present case is also not aegis of DJB, and the
disputed. involvement of EIL and
DSCL is also clearly
evidenced by the
Tripartite Agreement, and
correspondences
indicating overseeing and
management of the
Project.
36. Thus, the contention of the respondents regarding disputed questions
of facts cannot be accepted. There are clear and substantial facts which are
not in dispute, on the basis of which, this Court can proceed with the present
writ petition.
37. Maintainability of the present petition was also challenged on the
ground that the petitioners have an alternate remedy to file a suit. However,Signature Not Verified
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the same cannot be accepted. This Court in the case of Lakhan Singh and
Another Versus Delhi Development Authority and Others, 2024 SCC
OnLine Del 9415, has held that alternate remedy is not a bar for invoking
the writ jurisdiction. Thus, in the said case, it was held as follows:
“xxx xxx xxx
34. The respondent no. 1 has further submitted that there are
disputed questions of facts which precludes the court from
entertaining the present writ petition. I am unable to agree with this
contention sincethe court is not debarred from entertaining writ
petitions only on the ground that alternate remedies are available
and that there are disputed questions of facts. The power of the high
courts under Article 226 is plenary in nature and it is the discretion
of the high court to entertain petitions even on account of there
being disputed question of facts or availability of alternate remedies.
Reliance is placed upon the dicta of the Hon’ble Supreme Court
in Popatrao Vyanaktrao Patil v. The State of Maharashtra, Civil
Appeal No. 1600/2020 dated 14.02.2020, the operative portion of
which reads as under:
“6. It could thus be seen, that even if there are disputed
questions of fact which fall for consideration but if they do not
require elaborate evidence to be adduced, the High Court is not
precluded from entertaining a petition under Article 226 of
the Constitution. However, such a plenary power has to be
exercised by the High Court in exceptional circumstances. The
High Court would be justified in exercising such a power to the
exclusion of other available remedies only when it finds that the
action of the State or its instrumentality is arbitrary and
unreasonable and, as such, violative of Article 14 of
the Constitution of India. In any case, in the present case, we find
that there are hardly any disputed questions of facts.”
35. Reliance is further placed upon Godrej Sara Lee Ltd. v. The
Excise And Taxation Officer-Cum-Assessing Authority, 2023 LiveLaw
(SC) 70, the operative portion of which reads as under:
“4. Before answering the questions, we feel the urge to say a
few words on the exercise of writ powers conferred by
Article 226 of the Constitution having come across certain orders
passed by the high courts holding writ petitions as “not
maintainable” merely because the alternative remedy provided by
the relevant statutes has not been pursued by the parties desirous
of invocation of the writ jurisdiction. The power to issueSignature Not Verified
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prerogative writs under Article 226 is plenary in nature. Any
limitation on the exercise of such power must be traceable in the
Constitution itself. Profitable reference in this regard may be
made to Article 329 and ordainments of other similarly worded
articles in the Constitution. Article 226 does not, in terms, impose
any limitation or restraint on the exercise of power to issue writs.
While it is true that exercise of writ powers despite availability of
a remedy under the very statute which has been invoked and has
given rise to the action impugned in the writ petition ought not to
be made in a routine manner, yet, the mere fact that the petitioner
before the high court, in a given case, has not pursued the
alternative remedy available to him/it cannot mechanically be
construed as a ground for its dismissal. It is axiomatic that the
high courts (bearing in mind the facts of each particular case)
have a discretion whether to entertain a writ petition or not. One
of the self-imposed restrictions on the exercise of power under
Article 226 that has evolved through judicial precedents is that
the high courts should normally not entertain a writ petition,
where an effective and efficacious alternative remedy is available.
At the same time, it must be remembered that mere availability of
an alternative remedy of appeal or revision, which the party
invoking the jurisdiction of the high court under Article 226 has
not pursued, would not oust the jurisdiction of the high court and
render a writ petition “not maintainable”. In a long line of
decisions, this Court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to the
“maintainability” of a writ petition and that the rule, which
requires a party to pursue the alternative remedy provided by a
statute, is a rule of policy, convenience and discretion rather than
a rule of law. Though elementary, it needs to be restated that
“entertainability” and “maintainability” of a writ petition are
distinct concepts. The fine but real distinction between the two
ought not to be lost sight of. The objection as to “maintainability”
goes to the root of the matter and if such objection were found to
be of substance, the courts would be rendered incapable of even
receiving the lis for adjudication. On the other hand, the question
of “entertainability” is entirely within the realm of discretion of
the high courts, writ remedy being discretionary. A writ petition
despite being maintainable may not be entertained by a high
court for very many reasons or relief could even be refused to the
petitioner, despite setting up a sound legal point, if grant of the
claimed relief would not further public interest. Hence, dismissal
of a writ petition by a high court on the ground that the petitioner
has not availed the alternative remedy without, however,
examining whether an exceptional case has been made out for
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such entertainment would not be proper.”
36. Additionally, in my view there are no disputed questions of fact in
the present case, Master Praveen lost his life due to an uncovered,
unsecured and unguarded manhole. The same has also been stated as
cause of death in the post-mortem report. There were no signages
indicating the open manhole. The respondents have stated that there is
shortage of lighting, however no action with respect to
reporting/fixing the problemof shortage of lighting has been shown.
Therefore, there is an apparent inaction, indifference and
negligence by the respondent no. 1 and respondent no. 3 in their
duty of taking reasonable care which is inclusive of putting safety
measures in place, having an adequate system to ensure such
unfortunate incidents do not occur.
xxx xxx xxx”
(Emphasis Supplied)
38. In this regard, reference is also made to the judgment of the Supreme
Court in the case of Century Spinning and Manufacturing Company Ltd.
and Another Versus Ulhasnagar Municipal Council and Another, (1970) 1
SCC 582, wherein it was held as follows:
“xxx xxx xxx
13. Mr Gokhale appearing on behalf of the Municipality urged that
the petition filed by the Company apparently raised questions of fact
which in the view of the High Court could not appropriately be tried
in the exercise of the extraordinary jurisdiction under Article 226. But
the High Court has not said so, and on a review of the averments
made in the petition this argument cannot be sustained. Merely
because a question of fact is raised, the High Court will not be
justified in requiring the party to seek relief by the somewhat
lengthy, dilatory and expensive process by a civil suit against a
public body. The questions of fact raised by the petition in this case
are elementary.
xxx xxx xxx
(Emphasis Supplied)
39. Thus, in the conspectus of the aforesaid precedents, read with the
foundational facts, this Court holds that the present writ is maintainable.
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Whether the present petition is maintainable against the private
parties?
40. It is settled law that if private bodies are undertaking public functions,
then they are amenable to writ jurisdiction. In the present case, a statutory
authority, respondent no. 2, i.e., DJB entered into an Agreement with a
Public Sector Undertaking of Government of India, i.e., respondent no. 6 –
EIL, which by way of bidding, awarded the Contract to respondent no. 7,
i.e., DSCL. Further, the Project was for laying of intercepted chambers for
abatement of pollution of River Yamuna. The same, on the face of it, is a
public welfare Project, and therefore, the parties having entered into a
Tripartite Agreement in this regard, would clearly be amenable to writ
jurisdiction despite being private parties, as they are espousing functions for
the public in building a public infrastructure Project.
41. Thus, this Court in the case of Kishan Lal and Ors. Versus Govt.
NCT of Delhi and Ors., MANU/DE/8177/2007, held that private parties are
amenable to writ petitions, if they are performing public functions. Thus, it
was held as follows:
“xxx xxx xxx
5. The first issue that must be addressed at the outset is whether a
private body, here Sulabh, is amenable to the writ jurisdiction under
Article 226 of the Constitution. In Rahul Mehra & Anr v Union of
India & Ors.: 114 (2004) DLT 323, a Division Bench of this Court
held that “amenability” is not the correct litmus test for determining
the maintainability of a writ petition under Article 226. Rather, one
must examine the “function” of the organization at issue: If it
carries out a public function, then exercise of writ jurisdiction is
appropriate, as under:
If a public duty or public function is involved, any body, public or
private, qua that duty or function, and limited to that, would beSignature Not Verified
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subject to judicial scrutiny under the extraordinary writ
jurisdiction of article 226.
6. In Rahul Mehra (supra), the Board of Control For Cricket in
India (BCCI), although a private organization, was found to
perform several public functions apart from its wholly private
functions. This court held that the BCCI was amenable to writ
jurisdiction under Article 226 only in regard to its public functions,
but not its private functions such as private contracts, internal rules,
etc. and other matters not concerning the public.
xxx xxx xxx”
(Emphasis Supplied)
42. Furthermore, in the case of Rahul Mehra & Another Versus Union of
India & Others, 2004 SCC OnLine Del 837, it was held that when a private
entity is discharging a public duty, they are amenable to writ jurisdiction.
The relevant paragraphs of the said judgment, are reproduced as under:
“xxx xxx xxx
7. The core question, therefore, is — whether BCCI is amenable to the
writ jurisdiction under Article 226 of the Constitution? Sub-article (1)
thereof reads as under:
“226. POWER OF HIGH COURTS TO ISSUE CERTAIN
WRITS.
(1) Notwithstanding anything in Article 32, every High Court shall
have powers, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose.
xxxx xxxx xxxx xxxx”
A plain reading would suggest that the powers are plenary and the
High Court can issue directions, orders or writs to “any person” for
the enforcement of any fundamental right and “for any other
purpose”. However, these wide powers have been regulated by
judicial pronouncements so as to avoid interference in matters where
alternative remedies are available as also where the dispute is purely
of a private nature having no “public law” element. The traditional
view was that wherever the State or its instrumentality was involved, itSignature Not Verified
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was regarded as an issue within the domain of public law. Likewise,
where individuals were at loggerheads, the remedy lay within the
precincts of private law. This was all very well as long as
governments stuck to governance and private persons or bodies
confined their activities to pursuits of a private nature. But, when the
state entered into the fields of commerce, industry and business and
when private bodies took up public functions and duties, this
distinction between public law and private law based on the public
or private character of the institution was no longer clear-cut.
Therefore, it was no longer safe to rely solely upon the character of
the institution to decide whether it was amenable to writ jurisdiction
or not. For instance, where there is a dispute of a purely contractual
nature (not being a statutory contract), it does not matter that one of
the parties is the “State” or a “statutory body” or “instrumentality of
the State”, such a matter falls within the arena of private law and
judicial review under Article 226 would not lie. And, the converse
would be equally true. In other words, a dispute in which the State is
not directly involved may yet be a public law issue if a public duty or
a public function is performed by a private body.
8. Governments have ventured into the private arena and private
bodies, likewise, have undertaken public duties or public functions.
There is a degree of overlap and the distinction is no longer clear-
cut or watertight. The law must be alive to these dynamics.
Accordingly, the question of maintainability of a writ petition must
not be addressed from the standpoint of amenability. Everybody is
amenable to the jurisdiction of the High Courts under Article 226.
However, Courts have exercised restraint and they exercise these
powers only in cases which involve public law. Therefore, the
“litmus” test for invoking the writ jurisdiction is whether the act
complained of is in the discharge of a public duty or a public
function. It matters little as to who discharges the public duty or
performs the public function. And so too, the source of the power to
discharge or perform such duty or function. Whether the person is
empowered by statute or some governmental order or whether such
person arrogates to himself the power to perform a public function
or discharge a public duty, is of no consequence. What is to be seen
is whether there is an infraction in the discharge of such duty or
function. If there is, the High Court has power to correct it by
issuing an order, direction or writ to any person. Funding is also not
an issue. A privately funded private organisation but discharging a
public duty would still be within the “net” of Article 226.
9. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 [atSignature Not Verified
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page 700], the Supreme Court succinctly put this issue beyond the
pale of controversy in the following words:
“20. The term “authority” used in Article 226, in the context,
must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Article 32. Article 226 confers power
on the High Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights. The words
“any person or authority” used in Article 226 are, therefore, not
to be confined only to statutory authorities and instrumentalities
of the State. They may cover any other person or body performing
public duty. The form of the body concerned is not very much
relevant. What is relevant is the nature of the duty imposed on the
body. The duty must be judged in the light of positive obligation
owed by the person or authority to the affected party. No matter
by what means the duty is imposed, if a positive obligation exists,
mandamus cannot be denied.”
(underlining added)
The decision in Andi Mukta (supra) was further explained in Vst
Industries Ltd. v. Vst Industries Workers’ Union, (2001) 1 SCC
298 where the Supreme Court observed as follows fat page 306]:
“In Anadi Mukta case this Court examined the various aspects
and the distinction between an authority and a person and after
analysis of the decisions referred in that regard came to the
conclusion that it is only in the circumstances when the
authority or the person performs a public function or discharges
a public duty that Article 226 of the Constitution can be
invoked.”
And, then in G. Bassi Reddy v. International Crops Research
Institute, (2003) 4 SCC 225, [at page 236] the Supreme Court held:
“28. A writ under Article 226 can lie against a “person” if it is a
statutory body or performs a public function or discharges a
public or statutory duty (Praga Tools Corpn. v. C.A.
Imanual, Shri Anadi Mukta Sadguru Trust v. V.R. Rudani SCC
at p. 698 and VST Industries Ltd. v. Workers’ Union) Although, it
is not easy to define what a public function or public duty is, it
can reasonably be said that such functions are similar to or
closely related to those performable by the State in its sovereign
capacity.”
Ultimately, in Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC
733, [at page 748]:
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“From the decisions referred to above, the position that emerges
is that a writ petition under Article 226 of the Constitution of
India may be maintainable against (i) the State (Government);
(ii) an authority; (iii) a statutory body; (iv) an instrumentality or
agency of the State; (v) a company which is financed and owned
by the State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or positive
obligation of public nature; and (viii) a person or a body under
liability to discharge any function under any statute, to compel it
to perform such a statutory function.”
xxx xxx xxx”
(Emphasis Supplied)
43. The contention of the individual respondents, i.e., respondent nos. 3 to
5 that the petition is not maintainable against them, as they are mere
employees of EIL and DSCL cannot be accepted. In this regard, reference is
made to the case of Smt. Mamta Devi & Ors. Versus BSES & Ors., 2005
SCC OnLine Del 1294, wherein, this Court has held that when relief is
claimed, apart from a statutory authority and its employees, against private
individuals, there is no bar to the maintainability of the writ petition. Thus, it
was held as follows:
“xxx xxx xxx
18. That relief is claimed, apart from a statutory authority and its
employee, against private individuals is also not a bar to the
maintainability of the writ petition. Private individuals engaged in
hazardous activities have been burdened with liability in writ
proceedings as in the case of Uphar Cinema Tragedy and M.C.
Mehta‘s case (supra).
xxx xxx xxx”
(Emphasis Supplied)
44. A claim against state and its agencies, along with private individuals
is clearly maintainable, when they are espousing public functions.
Therefore, the contention of respondents on this account stands rejected.
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Whether there is negligence on part of the respondents?
45. To assess negligence, it is essential to examine the roles of the
respondents in the present matter. Thus, it is noted as follows:
i. Respondent no. 1 – GNCTD has been involved in the matter, and the
same is evidenced from the Show Cause Notice dated 18 th October,
2014 issued by them to respondent no. 3 – Mr. Rajesh Kumar Maurya,
an employee of respondent no. 6 – EIL. Further, the DJB under whose
aegis the work was being carried, is an instrumentality of the GNCTD.
ii. Respondent no. 2 – DJB – The said respondent is the principal
employer under whose aegis the Project was being operated. DJB
appointed respondent no. 6, which in turn, appointed respondent no. 7
on behalf of DJB for execution of the Project. The DJB has been
involved in overseeing the Project and the same is evidenced by the
Letter dated 10th June, 2019 sent by Flood Department to DJB in
relation to the Project and information regarding monsoons. Further,
DJB held a review meeting for the Project in question, vide Minutes of
Meeting dated 11th August, 2019, wherein, the status of Package 5, i.e.,
place where the site was situated, was discussed. Even the Letter dated
22nd January, 2010 was issued by the Flood Department to DJB again
indicates the involvement of DJB, as also the Letter dated 21st April,
2014 issued by DJB, showing its involvement in the Project.
iii. Respondent no. 6 – EIL was appointed by DJB by way of an
Agreement, to act as a project management consultant. EIL was
overseeing the operations of the Project, and respondent no. 7, took its
permissions from EIL as well. Further, EIL was the authority which
provided the status with regard to the work being done under theSignature Not Verified
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Project. Moreover, EIL had invited the bid for tender on behalf of DJB,
all of which shows its clear involvement in the Project. Reference in
this regard can be made to the Letter dated 06th August, 2012, Letter
dated 29th March, 2014 by DSCL to EIL sent to resolve issues in the
Project and Package wise status being provided by EIL. Further, Letter
dated 18th November, 2019 was sent by DSCL to EIL regarding
damages of manhole in Package 5. Reference is also made to the Letter
dated 03rd November, 2014 addressed to Additional District Magistrate
sent by EIL explaining its position at the incident at hand.
iv. Respondent no. 7 – DSCL was the Contractor in question which was
executing the work at site. DSCL had written several letters to EIL, and
had been awarded a tender by EIL on behalf of DJB to execute work at
the site in question. It has also entered into a Tripartite Agreement with
DJB and EIL as per its own submissions.
v. Respondent nos. 3 & 4 are the employees of EIL.
vi. Respondent no. 5 is the employee of respondent no. 7 and was
designated as the safety officer for the site in question.
46. Thus, it is clear that all the respondents have played an active role in
the Project which was being carried out in the area where the site of incident
is located. Furthermore, on account of the active involvement of DJB and
the other respondents being its instrumentalities for operation and execution
of work, there is a clear aspect of vicarious liability involved in the matter,
and none of the respondents can seek to absolve themselves if negligence is
found to be present in the matter.
47. Reference may be made to the case of Gopalpur Victim Association
Versus Delhi Jal Board & Ors., 2011 SCC OnLine Del 554, wherein, it was
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held that the State and DJB are vicariously liable for the acts of Contractors
and agencies, which failed to maintain the area in question therein. Relevant
portions of the aforesaid judgment, read as under:
“xxx xxx xxx
11. That apart from what has been pleaded one aspect that has been
brought to our notice in course of hearing a communication made by
Executive Engineer of Flood and Irrigation Department of GNCTD to
the SHO, Timarpur police station. Para 2 of the said communication
reads as under:
“The land under reference has been handed over to Delhi Jal
Board to lay their pipe line and is under their control for carrying
out their work, which has not been completed so far. Prior to
allowing the Delhi Jal Board to lay their pipe line, gate fitted in
boundary of southern side used to be locked by the chowkidars of
this department. However, after accord of approval to Delhi Jal
Board the same is controlled by their staff to have a free access to
the site to carry their men, machinery and material as and when
required.”
12. On a perusal of the same, there should be no shadow of doubt. It
was obligatory on the part of the Delhi Jal Board to ensure that
nobody enters into the said area. The said care was not taken. Care
being not taken, the life span of four young children got
extinguished. The plea advanced by the respondents, namely,
GNCTD and Delhi Jal Board or its agency that children may have
played mischief or gone for a swim is mercurial and specious in
nature. For the sake of dispute, a question is not to be raised to
bring it in the realm of disputed question of fact. In our considered
opinion both the State and the Delhi Jal Board are vicariously liable
for not maintaining the area in question. We may say with profit
that the Delhi Jal Board may have engaged contractors/agencies for
maintaining the area but there has been a failure. Hence, we can
say without any iota of doubt both the State and Delhi Jal Board
have failed to maintain the area as a consequence of which the
children lost their lives. As a sequitur compensation has to be
awarded.
xxx xxx xxx”
(Emphasis Supplied)
48. In this regard, it would be apposite to refer to the judgment of this
Court in the case of Devika and Others Versus Delhi Jal Board Through itsSignature Not Verified
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Chairman and Another, 2026 SCC OnLine Del 4373, wherein, it was held
that any activity undertaken under the authority of the State must be
reckoned as the act of the State itself, and the State must be held vicariously
liable for it. Thus, it was held as follows:
“xxx xxx xxx
29. So far as the question of vicarious liability is concerned, this
Court in Chitra Chary v. DDA, has held that any activity undertaken
under the authority of the State must be reckoned as the act of the
State itself, and the State must be held vicariously liable for it. This
is in line with the decision of the Supreme Court in Achutrao
Haribhau Khodwa v. State of Maharashtra, wherein, it was observed
that the State should be as much liable for tort in respect of a
tortious act committed by its servant within the scope of his
employment and functioning as such, as any other employer.
30. In Lakhan Singh v. Delhi Development Authority, this Court, in
an analogous situation where the DDA sought to deflect liability
onto a private contractor for leaving an open manhole, emphatically
rejected such a defence, holding that a statutory body’s duty of care
cannot be so easily transferred to a contractual arrangement with a
private party.
xxx xxx xxx”
(Emphasis Supplied)
49. To satisfy the test of negligence, the primary consideration is whether
the respondents implemented adequate safety measures. If the incident is
found to be result of the respondents’ breach of duty in taking adequate
safety measures, their liability for negligence would be established.
50. Accordingly, in this regard, the following may be considered:
i. As per the Chargesheet and the FIR, there were no safety measures
present at the site such as barricading, signage, safety nets or presence
of security personnel. Further, when the incident occurred, many
people had come to the site as well. The same indicates that if there
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movement of persons. Further, the argument that safety material was
stolen from the site, buttressed by a sole complaint dated 21st March,
2013 filed by DSCL, does not absolve the clear dereliction of duty to
maintain safety measures, especially, when the incident had occurred
18 months after the said complaint.
ii. As per respondent no. 7’s own admission, the security guard was at a
distance of 250 metres from the site of incident, and there was only
one security guard for the complete site, which clearly evidences
active avoidance in maintaining security at the site, especially, when
the said respondent was aware of people entering into the site.
iii. Further, the security guard was posted at the site, who would have
informed as to the theft of manhole/well/pit cover, however, the same
was not remedied by the respondent no. 7. Despite presence of open
pits/wells, no measures were taken to secure the same by deployment
of adequate force of security and measures towards the same. The
respondent no. 7, having placed only one security guard for an area as
large as the site of the Project, provides clear indication of the neglect
and dereliction of duty.
iv. Respondents were aware that there was monsoon season and the drain
would fill up with water and debris. Notwithstanding the same, no
proof has been placed on record to show any active measure of safety
taken by the respondents in that regard. On the contrary, it is stated
that due to monsoons, work could not be done. The site and the
execution of the Project was in the hands of the respondents. Further,
even as early as the year 2020, respondent no. 7 was working on the
site, therefore, it cannot be said that stopping of work at the site would
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ipso facto mean not to undertake safety measures. This shows gross
negligence on part of the respondents.
51. All of the above aspects show that adequate safety measures were not
taken by the respondents and merely one security guard was deployed for
the large area of the site, wherein, the incident had occurred. Thus, on the
above factual backdrop, had the respondents taken proper safety measures,
the incident may have been averted. Therefore, there is an active negligence
on part of respondent no. 7, who in turn had their operations overseen by
respondent no. 6, M/s Engineers India Limited, who was working under the
aegis of respondent no. 2, DJB. Thus, there is a clear case of negligence on
behalf of the respondents.
52. The Supreme Court has issued guidelines in a case on its own motion,
titled as Measures for Prevention of Fatal Accidents of Small Children due
to their falling into Abandoned Borewells and Tubewells: In Re Versus
Union of India and Others (2010) 15 SCC 224, wherein, the Supreme
Court stated that where the respondents were constructing a shaft or well,
they were required to erect barbed wire fencing or other suitable barriers
around the well. They were required to cap the well assembly with a strong
cap fixed to the casing pipe with bolts and nuts. They were required to
ensure that the well was not left uncovered. The relevant portions of the
aforesaid judgment are extracted as under:
“xxx xxx xxx
4. Having regard to the number of incidents that have taken place
during the recent past and the immediate need for preventing such
incidents in future, we direct that the following safety
measures/guidelines are to be observed by all the States:
4.1. The owner of the land/premises, before taking any steps for
constructing borewell/tubewell must inform in writing at least 15Signature Not Verified
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days in advance to the authorities concerned in the area i.e. District
Collector/District Magistrate/Sarpanch of the Gram panchayat/any
other statutory authority/officers concerned of the Department of
Groundwater/Public Health/Municipal Corporation, as the case may
be, about the construction of borewell/tubewell.
4.2. Registration of all the drilling agencies viz. government/semi-
government/private, etc. should be mandatory with the district
administration/statutory authority wherever applicable.
4.3. Erection of signboard at the time of construction near the well
with the following details:
(a) Complete address of the drilling agency at the time of
construction/rehabilitation of well.
(b) Complete address of the user agency/owner of the well.
4.4. Erection of barbed wire fencing or any other suitable barrier
around the well during construction.
4.5. Construction of cement/concrete platform measuring 0.50 m ×
0.50 m × 0.60 m (0.30 m above the ground level and 0.30 m below
the ground level) around the well casing.
4.6. Capping of well assembly by welding steel plate or by providing
a strong cap to be fixed to the casing pipe with bolts and nuts.
4.7. In case of pump repair, the tubewell should not be left
uncovered.
4.8. Filling of mud pits and channels after completion of works.
4.9. Filling up abandoned borewells by clay/sand/boulders/pebbles/
drill cuttings, etc. from bottom to the ground level.
4.10. On completion of the drilling operations at a particular location,
the ground conditions are to be restored as before the start of drilling.
4.11. District Collector should be empowered to verify that the above
guidelines are being followed and proper monitoring check about
the status of boreholes/tubewells are being taken care through the
State/Central Government agencies concerned.
4.12. District/Block/villagewise status of borewells/tubewells drilled
viz. number of wells in use, number of abandoned borewells/tubewells
found open, number of abandoned borewells/tubewells properly filled
up to the ground level and balance number of abandoned
borewells/tubewells to be filled up to the ground level is to be
maintained at the district level.
4.13. In rural areas, the monitoring of the above is to be done
through Village Sarpanch and the Executive from the Agriculture
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Department. In case of urban areas, the monitoring of the above is
to be done through Junior Engineer and the Executive from the
Department concerned of Groundwater/Public Health/Municipal
Corporation, etc.
4.14. If a borewell/tubewell is “abandoned” at any stage, a certificate
from the Department concerned of Groundwater/Public
Health/Municipal Corporation/private contractor, etc. must be
obtained by the aforesaid agencies that the “abandoned”
borewell/tubewell is properly filled up to the ground level. Random
inspection of the abandoned wells is also to be done by the Executive
of the agency/department concerned. Information on all such data on
the above are to be maintained in the District Collector/Block
Development Office of the State.
5. The abovementioned guidelines shall be given wide publicity
through the national television channels. A copy of this order be sent
to the Chief Secretaries of all the States/Union Territories who shall
forward the same to the District Collectors of all districts of their
respective States.
xxx xxx xxx”
(Emphasis Supplied)
53. The respondents in the present case have failed to comply with any of
the aforementioned guidelines.
54. The terminology used to describe the place of death, whether it is a
well, shaft, pit, or manhole, does not affect the liability of the respondents.
What matters is whether a dangerous opening was left unprotected and
whether children had access to it. Further, the respondents cannot evade
liability by raising arguments as to whether the place of incident was a pit, a
well, a shaft, or a manhole. The duty to secure all such openings which may
pose danger, is absolute.
55. The contention that there was contributory negligence on part of the
deceased child, also cannot be accepted. In the case of Court On Its Own
Motion Versus Govt. of NCT of Delhi and Others, 2018 SCC OnLine Del
10283, the Division Bench of this Court held that failure to exercise ordinarySignature Not Verified
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care and diligence in maintaining a scrutiny over an uncovered rain water
harvesting pit and failure to keep the surrounding area in a reasonably safe
condition, amounted to negligence of the statutory authority in performing
its duties, and no negligence could be attributed to the 11 years’ old victim
who lost his life by falling into the same. Thus, the Division Bench held as
follows:
“xxx xxx xxx
23. Significantly, in Williams v. City of Bristow, Okl., 350 P.2d 484:
84 ALR 501 the Supreme Court of Oklahoma held that “it is the duty
of a municipality to exercise ordinary care and diligence to keep its
sidewalks and streets in a reasonably safe condition. The
municipality is not an insurer of safety of the traveling public and its
liability is founded on negligence.”
24. We find that the expression ‘negligence’ is not defined statutorily.
25. Black’s Law Dictionary (8th Edn, 2004 at p.1061) defines
‘negligence’ as follows:
“negligence, n. 1. The failure to exercise the standard of care
that a reasonably prudent person would have exercised in a similar
situation; any conduct that falls below the legal standard established
to protect others against unreasonable risk of harm, except for
conduct that is intentionally, wantonly, or willfully disregardful to
others’ right. The term denotes culpable carelessness.”
(Emphasis supplied)
26. Stroud’s Judicial Dictionary (4th Edn, 1973 at p.1747) defines
‘negligence’ thus:
“NEGLIGENCE. (1) “‘Negligence’ is not an affirmative
word; it is a negative word; it is the absence of such care, skill, and
diligence, as it was the duty of the person to bring to the
performance of the work which he is said not to have performed”
(per Willes J., Grill v. General Iron Screw Collier Co., 35 L.J.C.P.
330).
(2) “Negligence is the omitting to do something that a
reasonable man would do, or the doing something which a
reasonable man would not do” (per Alderson B.,
Blyth v. Birmingham Water Works Co., 11 Ex. 784).
(Emphasis by us)
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27. In Halsbury’s Laws of England (Fifth Edition, Vol. 78, para 61),
the duty of an occupier of the premises to the public is elucidated as
follows:
“61. Duty to the public in respect of premises. An occupier of
premises adjoining a highway or other public place is under an
obligation to take reasonable care not to injure members of the
public, and is liable if, in consequence of failing to exercise such
case, a person is injured (1) where the occupier knew or ought
reasonably to have known that the premises were in a state likely to
cause injury to persons passing by…”
28. In similar facts, the court in the case of Sattar Sheikh v. Municipal
Corporation of Delhi, 2014 ACJ 489 fastened liability for negligence
on the MCD in the following terms:
“Thus, the possibility of children playing on the said plot
which was admittedly in disuse as a toilet, ought to have been in the
comprehension of the respondent No. 1 MCD. Moreover, it is totally
inexplicable as to why the plot and/or manholes were left uncovered.
Thus, a case of negligence on the part of the respondent MCD is
made out.”
(Emphasis by us)
xxx xxx xxx
31. The above enunciation of the applicable principles clearly
declares that duty of maintenance of the manholes rests squarely and
solely on the public authorities who built and control it.
32. We have extracted the counter affidavits filed on record. These
clearly establish the fact that the area in question, more specifically
the manhole, was under the maintenance and responsibility of the
PWD which had failed to maintain the same. No negligence can be
attributed to the victim for not noticing or spotting the uncovered
manhole. The only possible conclusion from the admitted factual
position is that the PWD had failed in its duty of exercising even
ordinary care & diligence in maintaining a scrutiny over the
manholes and keeping the surrounding area in a reasonably safe
condition.
33. The blame for the ill-fated incident, in which a young 11 year old
boy, who had gone for a happy outing as a school picnic, lost his life,
therefore clearly lies with the PWD which failed to exercise due care.
34. The PWD has before us, attempted to abdicate its responsibility
of saying that no manhole constructed by it is left uncovered. But
clearly this is unacceptable. The effort to pin the blame solely on the
horticultural wing of the PWD is also not correct. While the
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horticultural wing cannot absolve itself of blame, the wing of the
PWD which built the water tank and the manhole, had the
responsibility of regularly inspecting and maintaining the same and
failed to do so has to be held to have been equally negligent in
performing their duties. The horticultural wing ought to have
noticed the damage to the cover and ensured that it also informed
the concerned authorities.
xxx xxx xxx”
(Emphasis Supplied)
56. Additionally, the Division Bench of this Court in the case of Sharafat
Khan and Another Versus Northern Railway and Another, 2023 SCC
OnLine Del 3594, while holding that it was the duty of the respondents to
take proper diligence and care at the site to avoid any accident, has held as
follows:
“xxx xxx xxx
16. Negligence is not statutorily defined. In Governor-General in
Council v. Mt. Saliman, ILR (1948) 27 Pat 207 and State v. Hari
Singh, (2015) 219 DLT (CN B) 15, ‘negligence’ is defined as breach
of a duty caused by the omission to do something which a
reasonable person guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or doing something
which a prudent and reasonable person would not do. Winfield
(Winfield and Jolowicz Tort, 12th edition. P. 69) defines negligence as
breach of a legal duty to take care which results in undesired damage
by the defendant to the plaintiff. The said definition was also referred
in Jay Laxmi Salt works (P) Ltd. v. State of Gujarat, (1994) 4 SCC
1, Poonam Sharma v. Union of India, AIR 2003 Del 50. Negligence,
in its ambit, comprises three constituents which are : i) a legal duty
on the part of the party complained of to exercise due care towards
the party complaining of the former’s conduct; ii) breach of the said
duty, and iii) consequential damage. The duty to take care is
essential before a person can be held liable for negligence. The
person concerned is obliged to take reasonable care to avoid acts or
omissions which she/he could reasonably foresee, would likely
injure other persons.
17. R-1 awarded a contract for the construction of a rainy-well at the
site to M/s Kedar Nath Khandelwal through its proprietor i.e. the
respondent no. 2. The site was under control of the respondent no. 1
and the respondent no. 1 allowed the respondent no. 2 to takeSignature Not Verified
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permissive control of the site. At the time of incident, the site was in
use, occupation and possession of the respondent no. 2 but it belonged
to the respondent no. 1. R-2 made a temporary well at the site in
which the deceased fell and died. It is also apparent and not disputed
by either of the respondents in their respective affidavits, that
digging work at site continued for many days and the respondent no.
2 neither deputed any safety guard at site nor placed any fencing
around the pit/trench to prevent any living being from wandering
towards it, lest any harm could be caused to such unsuspecting
person. This site annexed to the petition shows one large contiguous
land. Children used to play in the open unhindered area. Nothing
has been brought on record to show that the children were
cautioned or restrained or forewarned from playing in the open
filed. A young boy of about 12 years does not know the difference
between a railways land or land of other civic agency. For children
all open areas, lands and fields are for games, for running, fun and
frolic. The petitioner says the young boy died when he slipped into
the well. Now any reasonable person would foresee such fatal
mishaps, if the dug-up trench/well was not secured/fenced-
off/guarded to prevent such mishaps. This was the duty of the
respondents to the public. They failed in their duty to care. Their
negligence led to the loss of life of an innocent boy. The children of
the locality used to play on said open land in which the unsecured
rainy well was dug up; while playing in the said area the boy of 12
years fell into the pit/trench and lost his life. Evidently, neither of
the respondents had taken appropriate care and erected/installed
safety measures at the site, to prevent any unwanted and
unfortunate incident, like the one which resulted in death of the
deceased. The respondents were neither vigilant nor sensitive in
taking appropriate safety measures at the site to avoid any
unfortunate accident. It was the duty of the respondents to take
proper diligence and care at the site to avoid any accident. The
respondents were negligent in taking safety measures at the site to
prevent any accident. The respondent no. 1 cannot be absolved from
its responsibility of taking proper safety measures at the site even
after award of contract to the respondent no. 2. The respondents are
jointly and severally liable for their act of negligence and to pay
compensation to the appellants.
xxx xxx xxx”
(Emphasis Supplied)
57. The defence of contributory negligence or the suggestion that the
children were ‘playing’ or were ‘mischievous’ has been consistently rejected
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by the Courts in cases involving the death of minor children by falling into
uncovered and dangerous pits, manholes and wells. In this regard, reference
is made to the judgment of this Court in the case of Gopalpur Victim
Association (Supra), wherein, it has been held as follows:
“xxx xxx xxx
5. On a perusal of the writ petition and the counter affidavit, it is
clear as noon day that where the four young children breathed their
last by falling in the pit was a vacant land belonging to the Flood
and Irrigation Department, which had been handed over to Delhi
Jal Board for laying down of pipelines. The stand in the return is
that it was not necessary to protect the area in entirety like a
prohibited area. It is the further stand that the possibility of children
going for a swim or playing mischief in the dead of night cannot be
ruled out. On a query being made whether at 7 p.m. in Delhi in the
month of March can be described as dead of night, we must fairly say,
Mr. Waziri, learned Standing Counsel conceded that it cannot be said
dead of night as it can at best be described as twilight time. The stand
that the children would have gone to swim in the pit seems to be a
far from satisfactory explanation. It is not disputed that the area
admeasure about 10 acres of land and it is unimaginable that the
children would go to swim in a pit; The simultaneity of death does
not suggest any kind of foul play by anyone. The children being
children have the tendency to proceed in a singular mind set at times
may be to save each other or may be trying to run but definitely it
cannot be said that they were mischievous or went to swim. On that
base of such a stance, it cannot be said that there is disputed
questions of fact which cannot be adjudicated in exercise of power
under Article 226 of the Constitution. Presently to the authorities
that have been pressed into service by the respondent.
xxx xxx xxx”
(Emphasis Supplied)
58. Reference is also made to the judgment in the case of Subramanium
and Anr. Versus Delhi Metro Rail Corporation and Ors., 2013 SCC
OnLine Del 2363, wherein, while rejecting the contention of contributory
negligence of the deceased child, it was held as follows:
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“xxx xxx xxx
12. In order to grant compensation, it would have to be ascertained as
to whether the facts, as they stand, establish violation of the victim’s
right under Article 21 of the Constitution. In this behalf, the following
needs to be noticed : –
xxx xxx xxx
(iii). It is, therefore, quite evident that one of the respondents i.e.,
DMRC or MCD or both, could have adopted the same approach upon
completion of the work at site. The failure, on the part of the said
respondents, to take measures which could have prevented occurrence
of a mishap of the nature which occurred in the instant case, resulted
in breach of duty of care, which they owed to the victim. This court, in
Kishan Lal’s case, in somewhat similar circumstances, applied the
principle of res ipsa loquitur to fix liability of the State. Since the
victim in Kishan Lal’s case was a child of tender age of seven years,
the court clearly held that no contributory negligence could be
attributed to the child. In applying the principle of res ipsa loquitur,
the court cited with approval the following observations made in yet
another decision of this court in Klaus Mittelbachert v. East India
Hotels Ltd. 65 (1997) DLT 428. The relevant observations are
extracted hereunder : –
“….Under the doctrine of res ipsa loquitor a plaintiff establishes a
prima facie case of negligence where (1) it is not possible for him to
prove precisely what was the relevant act or omission which set in
train the events leading to the accident, and (2) on the evidence as it
stands at the relevant time it is more likely than not that the effective
cause of the accident was some act or omission of the defendant or of
someone for whom the defendant is responsible, which act or omission
constitutes a failure to take proper care for the plaintiff’s safety. There
must be reasonable evidence of negligence. However, where the thing
which causes the accident is shown to be under the management of
the defendant or his employees, and the accident is such as in the
ordinary course of thing does not happen if those who have the
management use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose
from want of care. Three conditions must be satisfied to attract
applicability of res ipsa loquitur: (i) the accident must be of a kind
which does not ordinarily occur in the absence of someone’s
negligence; (ii) it must be caused by an agency or instrumentality
within the exclusive control of the defendant; (iii) it must not have
been due to any voluntary action or contribution on the part of the
plaintiff. (See Ratanlal and Dhirajlal on Law of Torts, edited by
Justice G.P. Singh, 22nd edition 1992, pp 499-501 and the Law ofSignature Not Verified
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Negligence by Dr. Chakraborti, 1996 edition, pp 191-192)…”
(emphasis is mine)
12.1 Having regard to the above principle, I am of the opinion that a
civil wrong was committed qua the petitioners’ child Lalu, on
account of the negligence of DMRC and/or MCD.
xxx xxx xxx
14. As indicated above, in Kishan Lal’s case and as rightly pointed
out by Ms. Mehta in the case of Kumari Alka v. Union of India, this
court, has held that children of tender age cannot be imputed with
contributory negligence. A similar view has been taken by a Division
Bench of the Karnataka High Court in Sunadra Shetty’s case. The
relevant observations, for the sake of convenience, are culled out
hereinbelow : –
“…28. The facts of the present case demanded greater care on the
part of the driver of the care because children of tenders years
cannot even be imputed with contributory negligence. They have not
attained that age of discretion and what generally the adults can
understand as rash or negligent acts cannot even be imputed to them
as they are not in a position to understand the consequences of their
acts. Many dangers which are open and obvious to the adults may be
concealed and secret traps for the children…” (emphasis is mine)14.1 I am in respectful agreement with the view taken in the
judgements cited above. This issue is, thus, also decided in favour of
the petitioners. The child Lalu could not be imputed with
contributory negligence. The argument of respondents, particularly
DMRC, made in this behalf is thus rejected.
xxx xxx xxx”
(Emphasis Supplied)
59. Thus, in view of the above, there is clear negligence on part of the
respondents. Standard of care expected from a child is entirely different
from that expected from an adult. A ten years’ old child cannot be expected
to appreciate the dangers of an uncovered pit or well, in the same manner as
an adult. The respondents, who are public authorities and their Contractor,
owed a higher duty of care to the public, especially, to children who are
naturally attracted to open spaces and who cannot be expected to recognise
manmade dangers left unguarded. Hence, the respondents failed to take
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measures which could have prevented such a mishap and have been clearly
negligent.
Whether a prima facie case has been made out by the petitioners?
60. In proceedings such as the present one, wherein, compensation is
sought, it has to be seen whether prima facie, there is negligence on part of
the respondents. The petitioners have stated that the principles of res ipsa
loquitur, i.e., the thing speaks for itself, applies in the present matter. On
account of the negligence being established on part of the respondents,
accompanied with the facts as noted above, it is clear that a prima facie case
has been made out by the petitioners. Thus, when a prima facie case has
been made out, the burden of proof shifts onto the respondents to show that
negligence was not on their part. In this regard, reference is made to the case
of Chob Singh Versus Govt. of NCT of Delhi and Anr., 2012 SCC OnLine
Del 1983, wherein, it was held as follows:
“xxx xxx xxx
15. There can be no dispute or denying the fact that the respondents
owed a duty of care to the general public, so that no action or
inaction of theirs causes harm to the general public at large.
Further there can be no dispute that the tanks should have been
maintained as well as covered and locked, so that no person could
enter into the wall, where Nand Kishore met the accident. The duty
of the respondent DJBs guard did not end by leaving the two
children with Sanju. He should have, in the first instance, not
permitted the children’s entry. Even if they were permitted to enter
the compound, it was his responsibility to ensure that they did not
loiter inside or go into dangerous areas. The said area posed a high
risk to any stranger, much more to children, who may go into areas
where poisonous gas was being produced. The principle of strict
liability will be applicable in the present case and the Delhi Jal
Board is liable to pay compensation.
16. In MCD v. Suhagwanti, 1966 SCC Online SC 22: AIR 1966 SC
1750, the Supreme Court applied the strict liability principle in
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Res Ipsa Loquitor as the mere fact that the clock tower fell, told its
own story in raising the inference of negligence so as to establish a
prima facie case against the Corporation.
17. This court in the recent judgment of Santu Ram v. State, W.P.
(C) 768/2009 decided on 07-02-2012 had dealt with the similar issue.
In that case, the place where the poles were kept was a public place
and anybody could have access to that place without any hindrance.
It was held that it was the duty of the respondent BSES to ensure
that their actions or omissions do not cause harm or injury to any
other person who may come into contact with that poles stacked in
an open public place. The respondents were found to be negligent in
keeping the cemented poles in an open public area, where the
general public had access, without any warning or taking proper
safety measures. So, the principle of strict liability was applied in
that case and the BSES was held liable to pay compensation to the
petitioners for the ultimate breach of their only son’s most valuable
fundamental right to life, guaranteed under Article 21 of the
Constitution of India.
18. In Darshan v. Union of India, 1999 SCC Online Del 358: 2000
ACJ 578, the deceased had died of drowning after falling into an open
manhole. The Division Bench of this court held as follows–
“Coming to instant case. It is one of res ipsa loquiter, where
the negligence of the instrumentalities of the State and dereliction
of duty is writ large on the Red Fort in leaving the manhole
uncovered. The dereliction of duty on their part in leaving a death
trap on a public road led to untimely death of Skatter Singh. It
deprived him of his fundamental right under Article 21 of the
Constitution of India. The scope and ambit of Article 21 is wide
and far reaching. It would, undoubtedly, cover a case where the
state or its instrumentality failed to discharge its duty of care cast
upon it, resulting in derivation of life or limb of a person.
Accordingly, Article 21 of the constitution is attracted and the
petitioners are entitled to invoke Article 226 to claim monetary
compensation as such a remedy is available in public law, based
on strict liability for breach of fundamental rights.”
19. In the case of Varinder Prasad v. BSES Rajdhani Power Ltd., W.P.
(C.) No. 8924/2007 decided on 18-01-2012, the High Court took into
account the earlier decision of this Court in Ram
Kishore v. MCD, 2007 (97) DRJ 445, to hold that a writ petition to
claim compensation is maintainable under Article 226 of the
Constitution of India, in case there is violation of fundamental
rights. In Varinder Prasad (supra) an unfortunate boy died in an
accident when the shed of the house collapsed on him.
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20. The Supreme Court in Pushpabhai Purshottam Udeshi v. Ranjit
Ginning & Pressing Co. (P) Ltd., (1977) 2 SCC 745 has explained the
doctrine of Res Ipsa Loquitor in the following words:
“The normal rule is that it is for the plaintiff to prove
negligence but as in some cases considerable hardship is caused to
the plaintiff as the true cause of the accident is not known to him
but is solely within the knowledge of the defendant who caused it,
the plaintiff can prove the accident but cannot prove how it
happened to establish negligence on the part of the defendant.
This hardship is sought to be avoided by applying the principle
of res ipsa loquitur. The general purport of the words res ipsa
loquitur is that the accident “speaks for itself” or tells its own
story. There are cases in which the accident speaks for itself so
that it is sufficient for the plaintiff to prove the accident and
nothing more. It will then be for the defendant to establish that
the accident happened due to some other cause than his own
negligence. Salmond on the Law of Torts (15th Ed.) at p. 306
states:”The maxim res ipsa loquitur applies whenever it is so
improbable that such an accident would have happened without
the negligence of the defendant that a reasonable jury could find
without further evidence that it was so caused”.
21. In Halsbury’s Laws of England, 3rd Ed., Vol. 28, at page 77, the
position is stated thus:”An exception to the general rule that the
burden of proof of the alleged negligence is in the first instance on
the plaintiff occurs wherever the facts already established are such
that the proper and natural inference arising from them is that the
injury complained of was caused by the defendant’s negligence, or
where the event charged as negligence “tells its own story” of
negligence on the part of the defendant, the story so told being clear
and unambiguous”. Where the maxim is applied the burden is on
the defendant to show either that in fact he was not negligent or that
the accident might more probably have happened in a manner which
did not connote negligence on his part.
22. The mere fact that the entry was allowed was sheer negligence
on the part of the respondents. As aforesaid, the respondents owed a
duty of care to the said children by not permitting their entry into the
compound as the same was a prohibited area. The said area posed a
high risk to any stranger – much more to small children, who may go
into areas where poisonous gases were being produced and present.
23. I, therefore, hold that the maxim Res Ipsa Loquitor is clearly
attracted in the present case and the incident in question itself
establishes the negligence on the part of the respondents. The
petitioners are, therefore, entitled to grant of compensation in these
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proceedings for breach of the most basic fundamental right of Nand
Kishore under Article 21 of the Constitution of India.
xxx xxx xxx”
(Emphasis Supplied)
61. The doctrine of res ipsa loquitur was explained by the Supreme Court
in the case of Pushpabai Purshottam Udeshi and Others Versus Ranjit
Ginning & Pressing Co. (P) Ltd. and Another., (1977) 2 SCC 745, in the
following manner:
“xxx xxx xxx
6. The normal rule is that it is for the plaintiff to prove negligence
but as in some cases considerable hardship is caused to the plaintiff
as the true cause of the accident is not known to him but is solely
within the knowledge of the defendant who caused it, the plaintiff
can prove the accident but cannot prove how it happened to
establish negligence on the part of the defendant. This hardship is
sought to be avoided by applying the principle of res ipsa loquitur.
The general purport of the words res ipsa loquitur is that the
accident “speaks for itself’ or tells its own story. There are cases in
which the accident speaks for itself so that it is sufficient for the
plaintiff to prove the accident and nothing more. It will then be for
the defendant to establish that the accident happened due to some
other cause than his own negligence. Salmond on the Law of
Torts (15th Edn.) at p. 306 states: “The maxim res ipsa
loquitur applies whenever it is so improbable that such an accident
would have happened without the negligence of the defendant that a
reasonable jury could find without further evidence that it was so
caused”. In Halsbury’s Laws of England, 3rd Edn., Vol. 28, at p. 77,
the position is stated thus: “An exception to the general rule that the
burden of proof of the alleged negligence is in the first instance on
the plaintiff occurs wherever the facts already established are such
that the proper and natural inference arising from them is that the
injury complained of was caused by the defendant’s negligence, or
where the event charged a; negligence ‘tells it own story’ of
negligence on the part of the defendant, the story so told being clear
and unambiguous”. Where the maxim is applied the burden is on
the defendant to show either that in fact he was not negligent or that
the accident might more probably have happened in a manner which
did not connote negligence on his part……
xxx xxx xxx”
(Emphasis Supplied)
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62. In the present case, the admitted facts as borne out from the records of
the respondents, are as follows:
i. Firstly, it is admitted that on 27th September, 2014, the petitioners’ 10
years’ old child Mohd. Nazim died, with cause of death as drowning,
as a result of falling into a pit filled with dirty water.
ii. Secondly, the place of death is also not disputed, being within the area
of construction being carried out by the respondents.
iii. Thirdly, the site where the incident occurred was at the relevant time,
under the control of the respondents for a project commissioned by
the DJB. In this regard, a Tripartite Agreement was signed amongst
the DJB, i.e., respondent no. 2, the Engineers India Ltd., i.e.,
respondent no. 6 and the contracting consortium, which is respondent
no. 7 herein.
iv. Fourthly, the absence of safety measures at the site, including, but not
limited to, lack of barricading around the well/pit and lack of warning
signs around the well/pit.
v. Fifthly, the pit was left uncovered.
vi. Sixthly, the site was left unattended by the respondents, as the
respondents themselves have stated that the security guard was not
around at the time when the incident occurred.
vii. Seventhly, a criminal case (FIR No. 975/2014 dated 27 th September,
2014, Police Station – Gokalpuri) was registered, and a Chargesheet
was filed and charges were framed against respondent no. 7 in
connection with this incident.
viii. Eighthly, show cause proceedings under Sections 33 and 34 of the
Disaster Management Act, 2005, were initiated against respondent no.
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3, citing observations of the District Authority Quick Response Team,
stating that there were no precautions/warning signs placed near any
of the wells/pits, nor were they covered or surrounded with a safety
tape.
63. Thus, in the facts of the present case, it is undisputed that the child has
died as a result of falling into a pit with dirty water. The place of death is in
the area of the project executed by the respondents. Safety measures were
inadequate or not even present. The pit/manhole was not covered. Show
cause proceedings and criminal proceedings have been initiated against the
respondents. All of these facts speak for themselves that admitted positions
are there in the present matter, which establish negligence on part of the
respondents.
64. In this regard, reference is made to the case of Pravesh Kumar and
Another Versus Delhi Jal Board, through its Chairman Head Office and
Others, 2024 SCC OnLine Del 8158, wherein, while dealing with the
applicability of the maxim res ipsa loquitur, it was held as follows:
“xxx xxx xxx
21. Therefore, it is a settled law that the writ jurisdiction can be
invoked by the aggrieved persons in cases of violation of the right to
life at the hands of the State, as such a remedy is fundamental to
public law.
22. Thus, the principal issue which stands posed before the Court is
the applicability of the maxim res ipsa loquitur and the requisite
standard of proof in upholding the petitioners’ right to receive
monetary compensation under the public law remedy.
23. In Shagufta Ali, the Court, while referring to the enunciation of
law in various judicial precedents, laid down the essential conditions
for the applicability of the legal maxim res ipsa loquitur in exercise
of its discretionary powers under Article 226 of the Constitution of
India to grant compensation. It was categorically held that when the
State instrumentalities are directly and solely responsible for an
incident, and the cause and fact of death are undisputed, theSignature Not Verified
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maxim res ipsa loquitur would be applicable. This principle allows
for the presumption of negligence, strictly based on the facts of each
case.
24. This Court in the case of Munna reiterated the findings
in Shagufta Ali and held that it is a settled law that where the
negligence and breach of duty by the State are writ large and duty of
care is found to be specifically of the public authorities, the
maxim res ipsa loquitur shall apply. When the State is under a
statutory duty of care and fails to fulfil such duty, the presumption
of liability without proof will also be attracted.
25. The Division Bench of this Court in another case of Rajeev
Singhal was considering a claim of compensation on account of
death due to electrocution, where, a fourteen-year-old boy got in
contact with an electric cable which was lying on the ground. The
Court considered various decisions and held that once it is
established that the incident actually resulted into the death of the
child and the same was a consequence of negligence, the Writ Court
would be well within its jurisdiction to award necessary
compensation irrespective of the dispute, if any, between the
respondents therein.
26. In the case of Subramanium, this Court was considering a case
of the death of eight-year-old child who died while playing with his
friends on account of asphyxia caused by drowning in a stormwater
drain. The Court held that the rigour of conservatism has been
relaxed, not only in the field of civil wrongs, termed as torts, but also
in the area of contracts where the State or its instrumentalities are
parties. The pertinent observations in the said decision are
reproduced as under:–
“11….As a matter of fact, the courts have gone to the extent of
saying that it would be incorrect to state that where facts are
disputed, a writ court would not have jurisdiction to entertain a
petition under Article 226 of the Constitution. It is one thing to
say that the court in its discretion may not entertain a petition in
which disputed questions of fact arise for consideration, it is
another thing to contend that a court does not have jurisdiction to
entertain a petition which raises disputed questions of fact. The
latter proposition is now discarded by the Supreme Court.
[See. Smt. Gunwant Kaur v. Municipal Committee Bhatinda (1969)
3 SCC 769 and ABL International Ltd. v. Export Credit Guarantee
Corporation of India Ltd. (2004) 3 SCC 553
11.1 The approach, with regard to civil wrongs committed by
officers of the State or the instrumentalities of the State are on no
different footing where claims are based on strict liability. WhileSignature Not Verified
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there is no gainsaying that, an affected person could vindicate his
right qua a civil wrong committed on him, by instituting a civil
suit, a claim in public law for compensation, for unconstitutional
deprivation of the fundamental right to life, would also be
available to him. This claim would be in addition to the claim
available in private law for damages caused on account of
tortious acts of the public servants. Compensation, if any, would
be paid by constitutional courts for ‘established infringement of
rights granted under Article 21 of the Constitution’.
11.3 Most of the aforementioned cases were reviewed by the
Supreme Court in the case of MCD v. Association of Victims of
Uphar Tragedy; (2011) 14 SCC 481 : AIR 2012 SC 100, where the
court sustained the grant of compensation, with some modification,
to the families of the victims and those who were injured in the fire,
which occurred in the Uphar Cinema Theatre at Delhi. A Division
Bench of the Supreme Court after reviewing its own previous
precedents pushed the envelope a little further by observing that : –
“…what can be awarded as compensation by way of public law
remedy need not only be nominal palliative but something more.
It can be by way of making monetary amounts for the wrong done
or by way of exemplary damages, exclusive of any amount
recoverable in a civil action based on tortious liability…
27. In the case of Gopalpur Victim Association, this Court was
dealing with the tragic drowning of four children, namely Narender,
Atul, Vikas, and Nitesh, in a water-filled pit on the land owned by the
Flood and Irrigation Department. The said land, handed over to DJB
for pipeline work, was not properly secured, resulting in the children
accessing the dangerous area and losing their lives. The parents,
represented by the Gopalpur Victim Association, filed a writ petition
seeking compensation for the negligence in safety measures by the
authorities.
28. The primary issue in the said case was whether the respondents,
therein, namely DJB and Government of NCT of Delhi, were
responsible for the deaths of the children. The respondents argued
that the area was not meant to be protected like a restricted zone and
speculated that the children might have entered the pit either to
swim or due to mischief. They also contended that since the facts
were disputed, the matter should not be adjudicated under Article
226, where the Court generally addresses legal rather than factual
issues. However, the Court rejected this argument stating that the
children had drowned at twilight, and that the claim that they
entered the pit to swim was speculative and unconvincing. The
Court held that both the DJB and the State authorities were
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access. The lack of fencing and safety measures directly contributed
to the tragic deaths of the children. The Court referenced several
precedents to clarify that the presence of factual disputes does not
bar the Court from entertaining a writ petition under Article 226 of
the Constitution of India.
29. The Court further emphasized that in cases where the facts are
straightforward and clearly established, the High Courts have the
authority to adjudicate both legal and factual issues without
relegating the matter to a civil suit. With respect to quantum of
compensation, the Court awarded Rs. 3.5 lakhs to each of the victims’
families, which included Rs. 1 lakh that had already been paid as ex-
gratia by DJB. The remaining Rs. 2.5 lakhs was ordered to be paid
within four weeks. Additionally, the Court allowed DJB to recover this
amount from any responsible parties, including contractors or staff,
after conducting a proper inquiry.
30. In the case of Kishan Lal, a seven-year-old boy had died after
falling into an open manhole due to the negligence of the
respondents, therein, who failed to ensure that the manhole was
covered. The Court held that children cannot generally be imputed
with contributory negligence and thereby, a compensation
amounting to Rs. 5,13,801/- was granted to the parents of the
deceased therein, holding Sulabh International Social Service
Organization responsible for toilet complex maintenance to be
negligent in performing its duties. The Court, while relying
upon Kamla Devi v. Government of NCT of Delhi, awarded the
aforesaid compensation, comprising Rs. 1,53,801/- as standard
compensation and Rs. 3,60,000/- for pecuniary loss of dependency.
31. In another case of Darshan, the petitioners, who were the widow
and minor children of the deceased, sought compensation for his
death after he fell into an open manhole and drowned. The case
revolved around the negligence by the Government authorities
responsible for maintaining the manhole. The respondents, therein,
including the Public Works Department (PWD) and the Municipal
Corporation of Delhi (MCD), disputed their liability, each claiming
the manhole did not fall under their jurisdiction. However, the Court
rejected these arguments, holding that such a dispute between
departments should not delay relief to the victims. While citing
judicial precedents on State liability for breach of fundamental
rights under Article 21 of the Constitution of India, the Court held
that a writ petition was an appropriate remedy for compensation in
cases involving negligence by Government agencies. The Court
awarded the petitioners Rs. 2,00,000 as compensation alongwith
interest, and directed that the amount be divided among the widow
and minor children. The Court further clarified that, if necessary,Signature Not Verified
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the PWD could recover the compensation from the MCD after
further inquiry.
32. In view of the aforementioned precedents, it is unequivocal that
in cases where the factum surrounding the incident leading to the
death of the deceased is undisputed, but the issue of negligence and
liability may be contested, the petitioner would still be entitled to
seek compensation while resorting to public law remedy. The facts
established by the pleadings provide the basis for a pecuniary claim,
regardless of any inter se disputes qua liability for the alleged
negligence. It is also observed that the said right is not contingent
upon the determination of liability, rather on the recognition of the
incident’s occurrence. In such cases, the facts as established by the
record speak for themselves and shall attract the maxim res ipsa
loquitur.
xxx xxx xxx”
(Emphasis Supplied)
65. Further, the Supreme Court in the case of Nilabati Behera (Smt) alias
Lalita Behera (Through the Supreme Court Legal Aid Committee) Versus
State of Orissa and Others, (1993) 2 SCC 746, held that public law remedy
is available to a party based on strict liability, once a prima facie case has
been made out for violation of fundamental rights. Thus, it was held as
follows:
“xxx xxx xxx
10. In view of the decisions of this Court in Rudul Sah v. State of
Bihar [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR
508], Sebastian M. Hongray v. Union of India [(1984) 1 SCC 339 :
1984 SCC (Cri) 87 : (1984) 1 SCR 904(I)], Sebastian M.
Hongray v. Union of India [(1984) 3 SCC 82 : 1984 SCC (Cri) 407 :
(1984) 3 SCR 544(II)], Bhim Singh v. State of J & K [1984 Supp SCC
504 : 1985 SCC (Cri) 60], Bhim Singh v. State of J & K [(1985) 4
SCC 677 : 1986 SCC (Cri) 47], Saheli : A Women’s Resources
Centre v. Commissioner of Police, Delhi Police Headquarters [(1990)
1 SCC 422 : 1990 SCC (Cri) 145] and State of
Maharashtra v. Ravikant S. Patil [(1991) 2 SCC 373 : 1991 SCC (Cri)
656] the liability of the State of Orissa in the present case to pay the
compensation cannot be doubted and was rightly not disputed by the
learned Additional Solicitor General. It would, however, be
appropriate to spell out clearly the principle on which the liability ofSignature Not Verified
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the State arises in such cases for payment of compensation and the
distinction between this liability and the liability in private law for
payment of compensation in an action on tort. It may be mentioned
straightaway that award of compensation in a proceeding under
Article 32 by this Court or by the High Court under Article 226 of
the Constitution is a remedy available in public law, based on strict
liability for contravention of fundamental rights to which the
principle of sovereign immunity does not apply, even though it may
be available as a defence in private law in an action based on tort.
This is a distinction between the two remedies to be borne in mind
which also indicates the basis on which compensation is awarded in
such proceedings. We shall now refer to the earlier decisions of this
Court as well as some other decisions before further discussion of this
principle.
xxx xxx xxx
20. We respectfully concur with the view that the court is not
helpless and the wide powers given to this Court by Article 32, which
itself is a fundamental right, imposes a constitutional obligation on
this Court to forge such new tools, which may be necessary for
doing complete justice and enforcing the fundamental rights
guaranteed in the Constitution, which enable the award of monetary
compensation in appropriate cases, where that is the only mode of
redress available. The power available to this Court under Article
142 is also an enabling provision in this behalf. The contrary view
would not merely render the court powerless and the constitutional
guarantee a mirage, but may, in certain situations, be an incentive to
extinguish life, if for the extreme contravention the court is
powerless to grant any relief against the State, except by punishment
of the wrongdoer for the resulting offence, and recovery of damages
under private law, by the ordinary process. If the guarantee that
deprivation of life and personal liberty cannot be made except in
accordance with law, is to be real, the enforcement of the right in
case of every contravention must also be possible in the
constitutional scheme, the mode of redress being that which is
appropriate in the facts of each case. This remedy in public law has
to be more readily available when invoked by the have-nots, who are
not possessed of the wherewithal for enforcement of their rights in
private law, even though its exercise is to be tempered by judicial
restraint to avoid circumvention of private law remedies, where more
appropriate.
xxx xxx xxx
34. The public law proceedings serve a different purpose than the
private law proceedings. The relief of monetary compensation, as
exemplary damages, in proceedings under Article 32 by this Court
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or under Article 226 by the High Courts, for established
infringement of the indefeasible right guaranteed under Article 21
of the Constitution is a remedy available in public law and is based
on the strict liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of public law is not
only to civilize public power but also to assure the citizen that they
live under a legal system which aims to protect their interests and
preserve their rights. Therefore, when the court moulds the relief by
granting “compensation” in proceedings under Article 32 or 226 of
the Constitution seeking enforcement or protection of fundamental
rights, it does so under the public law by way of penalising the
wrongdoer and fixing the liability for the public wrong on the State
which has failed in its public duty to protect the fundamental rights
of the citizen. The payment of compensation in such cases is not to
be understood, as it is generally understood in a civil action for
damages under the private law but in the broader sense of providing
relief by an order of making ‘monetary amends’ under the public
law for the wrong done due to breach of public duty, of not
protecting the fundamental rights of the citizen. The compensation
is in the nature of ‘exemplary damages’ awarded against the
wrongdoer for the breach of its public law duty and is independent
of the rights available to the aggrieved party to claim compensation
under the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and prosecute the
offender under the penal law.
35. This Court and the High Courts, being the protectors of the civil
liberties of the citizen, have not only the power and jurisdiction but
also an obligation to grant relief in exercise of its jurisdiction under
Articles 32 and 226 of the Constitution to the victim or the heir of
the victim whose fundamental rights under Article 21 of the
Constitution of India are established to have been flagrantly
infringed by calling upon the State to repair the damage done by its
officers to the fundamental rights of the citizen, notwithstanding the
right of the citizen to the remedy by way of a civil suit or criminal
proceedings. The State, of course has the right to be indemnified by
and take such action as may be available to it against the wrongdoer
in accordance with law — through appropriate proceedings. Of
course, relief in exercise of the power under Article 32 or 226 would
be granted only once it is established that there has been an
infringement of the fundamental rights of the citizen and no other
form of appropriate redressal by the court in the facts and
circumstances of the case, is possible. The decisions of this Court in
the line of cases starting with Rudul Sah v. State of Bihar [(1983) 4
SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] granted
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monetary relief to the victims for deprivation of their fundamental
rights in proceedings through petitions filed under Article 32 or 226
of the Constitution of India, notwithstanding the rights available
under the civil law to the aggrieved party where the courts found
that grant of such relief was warranted. It is a sound policy to
punish the wrongdoer and it is in that spirit that the courts have
moulded the relief by granting compensation to the victims in
exercise of their writ jurisdiction. In doing so the courts take into
account not only the interest of the applicant and the respondent but
also the interests of the public as a whole with a view to ensure that
public bodies or officials do not act unlawfully and do perform their
public duties properly particularly where the fundamental right of a
citizen under Article 21 is concerned. Law is in the process of
development and the process necessitates developing separate public
law procedures as also public law principles. It may be necessary to
identify the situations to which separate proceedings and principles
apply and the courts have to act firmly but with certain amount of
circumspection and self-restraint, lest proceedings under Article 32 or
226 are misused as a disguised substitute for civil action in private
law. Some of those situations have been identified by this Court in the
cases referred to by Brother Verma, J.
xxx xxx xxx”
(Emphasis Supplied)
66. The Division Bench of this Court in the case of Darshan and others
Versus Union of India and others, 1999 SCC OnLine Del 358, has held
that monetary compensation can be sought as the said remedy is available in
public law when strict liability for breach of fundamental rights is shown.
Thus, Division Bench in the aforesaid judgment held as follows:
“xxx xxx xxx
10. A Division Bench of this court in Shyama Devi v. National Capital
Territory of Delhi, also awarded compensation under Article 226 of
the Constitution in a case where there was negligence in not defusing
a rocket, resulting in the death of a constable.
11. Compensation had also been awarded by this court as well as the
Apex Court in writ jurisdiction in several cases of custodial deaths.
Coming to instant case, it is one of res ipsa loquitur, where the
negligence of the instrumentalities of the State and dereliction of
duty is writ large on the Red Fort in leaving the manhole uncovered.
The dereliction of duty on their part in leaving a death trap on aSignature Not Verified
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public road led to the untimely death of Skattar Singh. It deprived
him of his fundamental right under Article 21 of the Constitution of
India. The scope and ambit of Article 21 is wide and far reaching. It
would, undoubtedly, cover a case where the State or its
instrumentality failed to discharge its duty of care cast upon it,
resulting in deprivation of life or limb of a person. Accordingly,
Article 21 of the Constitution is attracted and the petitioners are
entitled to invoke Article 226 to claim monetary compensation as
such a remedy is available in public law, based on strict liability for
breach of fundamental rights.
12. From the foregoing, it is clear that the present writ petition for
grant of compensation in the case of breach of public duty by
instrumentality of the State resulting in the deprivation of life, would
be maintainable under Article 21 of the Constitution of India.
xxx xxx xxx”
(Emphasis Supplied)
67. Accordingly, the remedy under Article 226 of the Constitution, being
a constitutional remedy, exists parallel to and independent of any civil
remedy. When fundamental rights under Article 21 of the Constitution are
violated and a life is lost due to negligence of the state agencies or their
Contractors, a Constitutional Court has a duty to grant relief in such
circumstances.
68. Petitioner no. 1 is a labourer (painter) and petitioner no. 2 is a
homemaker, belonging to weaker section of the society. As held by the
Supreme Court in the case of Nilabati Behera (Supra), the public law
remedy has to be more readily available when invoked by the have nots,
who are not possessed of the wherewithal for enforcement of their rights in
private law.
69. Thus, a prima facie case is made out on behalf of the petitioners. The
negligence on part of the respondents is apparent. There is a clear violation
of the fundamental right, i.e., Right to Life as enshrined under Article 21 of
the Constitution. Foundational and material facts stand clearly established in
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the present case, which point towards the negligence on part of respondents.
Thus, the principle of res ipsa loquitur is squarely applicable in the present
case.
Nature of site where the incident occurred:
70. It has been argued that the site was private and the deceased had
trespassed onto the site. It is to be noted that work was being executed for
construction of public infrastructure at the site of the incident. As per the
facts on record, and the respondents’ own admissions, the property was
accessed by several people in the vicinity who apparently stole several
fixtures from the site. The accessibility to the site was the responsibility of
the respondents and measures in that regard to secure the site, were to be
taken by them.
71. In this regard, reference is made to the case of Sattar Sheikh & Anr.
Versus Municipal Corporation of Delhi & Anr., 2012 SCC OnLine Del
2035, wherein, the respondents therein had made a similar argument that the
deceased had trespassed onto the plot, and thus, no negligence could be
attributed to the statutory authority. While rejecting the said contention, the
Court held as follows:
“xxx xxx xxx
2. Counter affidavits have been filed by the respondents MCD and the
Police. Respondent 1 MCD in its counter affidavit while not disputing
the incident and the death has contended that earlier the toilet block
where the manhole is situated was maintained and managed by
Sulabh International; however, the same was handed over to the MCD
on 20-7-2006 in a non functional and locked condition; that at the
time of the incident there was no toilet block in existence and only a
septic tank with two manholes and a boundary wall with a locked iron
gate to prevent use thereof; it is further contended that a board was
also displayed at the site proclaiming “not for use”. It is contended
that the deceased appeared to have trespassed on to the said plot
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on the property, no negligence can be attributed to Respondent 1
MCD.
xxx xxx xxx
6. I find the facts of the present case to be similar to those of Sh.
Kishan Lal v. Govt. of NCT of Delhi ; that was also a case of a child of
seven years falling in an open manhole – in that case, till the date of
the incident, managed by Sulabh International. This Court in that
case held that the respondents MCD & Sulabh International failed
to demonstrate how death could have reasonably happened without
negligence on their part; on the basis of the opinion of the doctor
that the cause of death was asphyxia as a result of drowning and
from the factum of discovery of the body, by local residents, in the
manhole near the lavatory which the child had visited and from the
factum that if the manhole was covered the child would not have
been found in it, inference of negligence was deduced; the plea of
contributory negligence was negated. A perusal of the file of the
Court of the Metropolitan Magistrate requisitioned in this Court
shows that the postmortem report in the present case also records the
cause of death as asphyxia due to ante mortem drowning. No external
ante mortem injury was found on the body. The factum of the deceased
having fallen and having been pulled out from the manhole is not
disputed.
7. As far as the plea of Respondent 1 MCD of the deceased having
trespassed on the plot with the open manhole is concerned, I find on
the file of the Court of the Metropolitan Magistrate requisitioned in
this court photographs of the site which though show the plot as
bounded by a wall but without any gate. Thus, the possibility of
children playing on the said plot which was admittedly in disuse as a
toilet, ought to have been in the comprehension of Respondent 1
MCD. Moreover, it is totally inexplicable as to why the plot and/or
manholes were left uncovered. Thus, a case of negligence on the
part of the respondent MCD is made out.
xxx xxx xxx”
(Emphasis Supplied)
72. As noted above, the respondents in the present case were performing
public functions. The claim of the respondents that boundary walls were
constructed and relevant safety measures were undertaken at the site in
question, cannot be accepted. The Chargesheet, along with facts on record
that the site was accessed by several persons before the incident and after the
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incident took place, in itself makes it evident that the site was accessible and
proper measures were not taken by the respondents to stop access of general
public, especially, if the claim is that the site was private. Furthermore, there
is admission on part of the respondents, that only one security guard was
present at the site who was 250 metres away from the site of incident, when
the said incident had occurred. The measure of deputing only one security
guard in a vast area where several people had access and material was stolen
regularly, contradicts the claim of the respondents that measures to stop
access were taken on their part.
73. The site in question, being accessed by persons living in the locality
on a regular basis, juxtaposed with the fact that the accessibility of the site
was such that even children could enter the same, leads to the inevitable
conclusion that measures were not taken by the respondents to stop access to
the site. The respondents were clearly negligent and failed to secure the site
where there were open and uncovered pits/wells.
74. This Court further deems it appropriate to hold that the judgments, as
relied upon by the respondents, do not come to aid of the respondents.
75. The respondent no. 7 has relied upon the judgment in the case of
Radhe Shyam and Ors. Versus Govt. of N.C.T. of Delhi and Anr., 2015
SCC OnLine Del 8730. The said case is factually distinguishable. In the said
case, the children fell directly into an open canal, despite safety measures.
Furthermore, the Court noted that a boundary wall existed which enclosed
the piece of land. There were further contemporaneous photographs shown
by the government to show that the boundary wall was intact during the date
of incident. There was a slope separating the canal and the boundary wall,
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which acted as a safety measure. The Court observed in the said case that the
children may have climbed over the boundary wall.
76. However, in the present case, the petitioners’ child had fallen into an
uncovered well/shaft and not directly into an open canal/wide drain. Further,
in the present case, criminal investigation has been carried out and charges
have been framed against the respondents. Additionally, the District
Authority Quick Response Team has observed that there were no
precautions/warning signs placed near any of the wells, nor were they
covered or surrounded by a safety tape. Admittedly, the respondents
themselves have stated that ordinarily, the wells/holes/pits used to be
covered by them, but at the relevant time they were stolen by locals.
Furthermore, in the present case, there is no evidence as to the condition of
the boundary wall, but the recording of the FIR clearly suggests the presence
of a crowd as well as police officers moving freely at the site in question,
thus, suggesting that the boundary wall was either non-existent or broken in
various places.
77. The respondent no. 6 relied upon the judgment in the case of Mohd.
Quamuddin & Ors. Versus Union of India, 2015 SCC OnLine Del 10229.
The said case involved railway tracks, wherein, the Court held that the
railway tracks at the site were at an elevated level. The slope of the
embankment of the elevated tracks was steep and there was no regular path
for crossing the tracks. Thus, the said judgment has no application to a
construction site in an urban residential area containing uncovered
wells/pits.
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Whether compensation can be granted, and if so, the mechanism that
has to be applied?
78. The petitioners have made an updated claim of compensation from
Rs. 25 Lacs to Rs. 40,40,495.36/-. The calculations by the petitioners are
based upon the judgment of this Court in the case of Pravesh Kumar
(Supra), wherein, it has been held as follows:
“xxx xxx xxx
42. A Coordinate Bench of this Court in Varinder Prasad was
considering a case of compensation under Article 226 of
the Constitution of India for death of a ten-year-old boy, due to the
falling of the chajja present in the respondent’s premises. The Court,
while granting compensation to the deceased’s parents, calculated the
amount that was payable as compensation and made the following
observation:–
“As far as pecuniary compensation is concerned, as
already explained in Kamla Devi (supra) the income of the
parents can be taken as a standard measure for arriving at the
expected annual income of the children. The method of
calculating the compensation for pecuniary loss of
dependency depends upon the potential earning capacity of the
deceased Ajay Kumar, had he attained adulthood. As per the
affidavit of the petitioner no. 1 dated 15.12.2011, his monthly
salary at the time of this incident was Rs. 10,000. At the time
of filing of the affidavit, the earnings of petitioner no. 1 were
Rs. 30,000/- per month approximately. The petitioners have
applied a multiplication factor of 1.5 to counter inflation and
erosion of the value of money. Considering the fact that in a
span of about four years, there has been a threefold increase
in the earnings of petitioner no. 1 from Rs. 10,000/- p.m. to Rs.
30,000/- p.m., in my view, the multiplicand factor of 1.5, to off
set the effects of inflation and erosion of the value of money
should be adopted. It can be assumed that Ajay Kumar would
have, at least, earned what his father was earning, if not more.
Therefore, the multiplicand would be the expected annual
income, less what he required for himself. As Ajay would have
grown up, his personal expenses would have only risen. The
contribution to the household would not have exceeded half of
the income. Thus the multiplicand work out to be Rs. 90,000/-
i.e. (1,80,000/2). This multiplicand is to be multiplied by theSignature Not Verified
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multiplier of 15, in terms of the second Schedule to the Motor
Vehicles Act, 1988. This comes out to be a figure of Rs.
13,50,000.”
xxx xxx xxx
44. Thus, taking into account the aforesaid decisions, an attempt is
being made herein to compute the compensation in accordance with
the principles laid down in Kamla Devi. The said determination of the
amount of compensation payable to the petitioners can be made while
classifying the compensation into following two heads:–
A) Standard Compensation
As per the guidelines, the standard compensation is stated to
be 50,000/- in the year 1989 and is to be revised from time to time to
counter inflation and the consequential erosion of the value of the
Indian National Rupee and the amount needs to be updated for
subsequent years on the basis of the Consumer Price Index for
Industrial Workers (CPI-IW) brought out by the Labour Bureau,
Government of India. In Kamla Devi, the (CPI-IW) with respect to
the base year 1982 was 171.
As per the website and annual report of the Labour Bureau,
Government of India, in July 2016 (the month when the petitioners’
son died) the CPI (IW) was 280 (with respect to Base Year 2001).
This number must be reworked with regard to the Base Year 1982
using the linking factor. As per the said report, the All India Linking
factor between New Series of Consumer Price Index Numbers for
Industrial Workers on base 2001 = 100 and the previous series on
base 1982=100 (General Index) linking factor is 4.63.
Therefore, the CPI (IW) in July 2016 with respect to Base Year
1982, would be calculated as:
280 × 4.63 = 1296 (approx)
The standard compensation for the present case would be
worked out in the following manner:
(50,000 × 1296)/171 = 3,78,947 approx
Therefore, the estimated standard compensation after rounding off is
worked out to be Rs. 3,78,947/-.
B) Loss of Dependency and Pecuniary Losses.
As per Kamla Devi, the product of the multiplicand and the
multiplier results in the figure of annual loss of dependency. The
age of the deceased was nine years and the multiplier for it,
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according to the Schedule II of the Motor Vehicles Act, 1988, is 15.
The multiplicand is calculated by dividing the family into units – 2
for each adult member and 1 for each minor. Then annual income
is divided by the total number of units to get the value of each unit.
The annual dependency loss is then calculated by multiplying the
value of each unit by the number of units excluding the two units for
the deceased adult member.
In Kishan Lal, while the Court relied upon Kamla Devi to
calculate the standard compensation, it also opined that there is a
need to adopt a different approach while calculating the pecuniary
losses. It was observed that the Court in Kamla Devi was
adjudicating a prayer for compensation involving an earning adult
whose death had an immediate financial impact on his family,
whereas, in contrast, the prayer for compensation in Kishan
Lal concerns the death of a small child who was not contributing to
the household income. Consequently, the Court, relying on the
principles laid down in M.S. Grewal v. Deep Chand Sood evolved the
following methodology for calculating compensation for the death of
a minor, which reads as under:–
“31. Calculating the compensation for pecuniary loss
of dependency is somewhat more complicated, Whereas Kamla
Devi (supra) involved an earning adult whose death had an
immediate financial impact on his family, the present petition
involves the death of a small child who was not contributing to
the household income and who would have been unable to do
so for many more years. A somewhat different approach would
be needed.
32. In Smt. Kumari v. State of Tamil Nadu : 1992 AC)
283, the six-year old son of the appeilant died as a result of
falling in an open manhole. The appellant filed a petition
under Article 226 of the Constitution seeking a writ of
mandamus directing the respondents to pay Rs. 50,000/- as
compensation. The Madras High Court dismissed the writ
petition on the ground that in a writ petition it was not possible
to determine which respondent was negligent in leaving the
sewerage tank uncovered. The Supreme Court set aside the
judgment of the High Court and awarded the appellant the
sum of Rs. 50,000 with interest at 12% per annum from the
date of the accident until the date of payment. The Supreme
Court further held that the State of Tamil Nadu may take
appropriate proceedings to claim the said amount from any of
the respondents who might have been responsible for leaving
the manhole uncovered. Thus, one method of calculating the
compensation of pecuniary loss of dependency is to bring theSignature Not Verified
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above compensation given in Kumari (supra) up to date based
on India’s inflation rate between 1992, when the case was
decided, and 2005, when Puran died, and to subtract from it
what the standard compensation would have been in 1992.
33. However, the approach in M.S. Grewal (supra)
appears to be the better and more rational approach. In M.S.
Grewal (supra) fourteen children drowned in a river during a
school picnic as a result of the school’s negligence. The
Supreme Court awarded Rs. 5 lakhs to each family, partly on
the basis that the school was one of the most affluent in the
country and the deceased children’s earning potential was
significant. Therefore, the method of calculating the
compensation for pecuniary loss of dependency entails the
examination of Puran’s potential earning capacity had he lived
to adulthood. The petitioner No. 1, Puran’s father, was working
in a market as a Security Guard and was earning approximately
Rs. 4,000/- per month. The late Puran, who was in the
3rd Standard, when he passed away, was an excellent student. In
the previous academic year, he was ranked First in his class.
Therefore, we can safely assume that Puran as an adult would
have earned at least as much as his father, if not more. So, as
evidenced by his academic skills, Puran’s father’s salary can
be used as a starting base for calculating the compensation for
pecuniary loss of dependency. The multiplicand would be the
expected annual income less what he required for himself.
Since, this expected income would only arise when Puran
grew up to be an adult, it would be safe to assume that his
personal expenditure would be higher. True, he would be
contributing to the household, but his contribution in my view
would definitely not exceed half of his income. It must be
remembered that here we are concerned with compensation
for pecuniary loss of depending of Puran’s parents. For some
stretch of time Puran’s father would be earning and his
dependency would not be much. Furthermore, Puran would
have married and would have had to support his wife and
children. So, the assumption that, in the maximum, Puran’s
parents would have lost only half of Puran’s expected annual.
income, would not, be an unreasonable one. Thus, the
multiplicand would work out to Rs. 24,000/- (4000 × 12 × 1/2).
The multiplicand and is to be multiplied by the multiplier of 15
as derived from the Second Schedule to the Motor Vehicles Act,
1988 in respect of victim in the age group of upto 15 years.
Therefore, Puran’s parents would be entitled to a sum of Rs.
3,60,000/- (24000 × 15) for compensation for pecuniary loss ofSignature Not Verified
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dependency.
34. Accordingly, the petitioners are entitled to a total
compensation of Rs. 5,13,801/-. The standard compensation or
conventional sum being Rs. 1,53,801/- and the compensation for
pecuniary loss of dependency being an amount of Rs. 3,60,000/-
as computed above.”
(emphasis supplied)
Therefore, adhering to the same principle as laid down
in Kishan Lal, the multiplicand can be calculated by considering the
father’s monthly salary as the assumed monthly income of the
deceased. This amount is multiplied by 12 to arrive at the annual
income and then halved. Subsequently, this multiplicand amount is
multiplied by the appropriate multiplier as prescribed. In the instant
case, the monthly salary of the father, as indicated in the rejoinder
affidavit filed by the petitioners, is approximately Rs. 20,000.
Consequently, the annual income would be Rs. 2,40,000, and the
annual loss of dependency is calculated accordingly, as under:–
(2,40,000/2) (multiplicand) × 15 (multiplier) = Rs. 18,00,000/-
The total compensation is, thus, computed to be:
18,00,000 (pecuniary loss of dependency) + 3,78,947(standard
compensation) = Rs. 21,78,947/-
xxx xxx xxx”
(Emphasis Supplied)
79. Reading of the aforesaid judgment shows that the methodology
adopted for compensation in the said judgment is based upon three key
precedents. Firstly, the said judgment relied on the case of Kamla Devi
Versus Government of NCT of Delhi & Anr., 2004 SCC OnLine Del 721.,
which provided a two-part formula for standard compensation and pecuniary
loss of dependency. Secondly, the said judgment also relied upon the case of
Kishan Lal and Ors. Versus Govt. NCT of Delhi and Ors.,
MANU/DE/8177/2007, which adopted the formula for the death of a minor
child based on future potential earnings. Thirdly, the said judgment relied
upon the case of M.S. Grewal and Another Versus Deep Chand Sood and
Others, (2001) 8 SCC 151, wherein, the method of calculating pecuniarySignature Not Verified
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loss of dependency by examining potential earning capacity had the child
lived to adulthood, was delved upon.
80. The judgment in the case of Kamla Devi Versus Govt. of NCT of
Delhi & Anr., 2004 SCC OnLine Del 721, has been followed by this Court
in various judgments, including, by Division Bench of this Court in the case
of Court On Its Own Motion (Supra) and in the case of Chob Singh
(Supra). In the aforesaid case of Kamla Devi (Supra), it has been held as
follows:
“xxx xxx xxx
21. The principles which emerge can be summarized as follows:–
1. Whenever an innocent citizen is killed as a result of a crime,
particularly when it is an act of terror or communal violence or a
case of custodial death, the State would have failed in its public duty
to ensure the guarantee enshrined in Article 21 of the Constitution.
2. The modern trend and the international norm is to focus on the
victims of crime (and their families) by, inter alia, ensuring that they
are promptly compensated by the State in adequate measure under a
well-laid out Scheme.
3. In India, there is no such criminal injury compensation scheme in
place and the private law remedies of damages and compensation
are grossly inadequate. Legislation on this aspect is not forthcoming.
4. In such a situation the High Court, in exercise of its powers under
article 226 of the Constitution can and ought to direct the State to
compensate the crime victim and/or his family.
5. The compensation to be awarded by the Courts, based on
international norms and previous decisions of the Supreme Court,
comprises of two parts:–
(a) ‘standard compensation’ or the so-called ‘conventional
amount’ (or sum) for non-pecuniary losses such as loss of
consortium, loss of parent, pain and suffering and loss of
amenities; and
(b) Compensation for pecuniary loss of dependency.
6. The ‘standard compensation’ or the ‘conventional amount has to
be revised from time to time to counter inflation and the consequent
erosion of the value of the rupee. Keeping this in mind, in case of
death, the standard compensation in 1996 is worked out at Rs.
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97,700/-. This needs to be updated for subsequent years on the basis
of the Consumer Price Index for Industrial Workers (CPI-IW)
brought out by the Labour Bureau, Government of India.
7. Compensation for pecuniary loss of dependency is to be computed
on the basis of loss of earnings for which the multiplier method is to
be employed. The table given in Schedule II of the MV Act, 1988
cannot be relied upon, however, the appropriate multiplier can be
taken therefrom. The multiplicand is the yearly income of the
deceased less the amount he would have spent upon himself. This is
calculated by dividing the family into units – 2 for each adult
member and 1 for each minor. The yearly income is then to be
divided by the total number of units to get the value of each unit.
The annual dependency loss is then calculated by multiplying the
value of each unit by the number of units excluding the two units for
the deceased adult member. This becomes the multiplicand and is
multiplied by the appropriate multiplier to arrive at the figure for
compensation of pecuniary loss of dependency.
8. The total amount paid under 6 and 7 above is to be awarded by
the Court along with simple interest thereon calculated on the basis
of the inflation rate based on the Consumer Prices as disclosed by
the Government of India for the period commencing from the date
of death of the deceased till the date of payment by the State.
9. The amount paid by the State as indicated above would be liable
to be adjusted against any amount which may be awarded to the
claimants by way of damages in a civil suit or compensation under
the Criminal Procedure Code.
xxx xxx xxx”
(Emphasis Supplied)
81. Thus, in the present case also, following the aforesaid methodology,
as in the case of Kamla Devi (Supra), the computation is divided into two
heads, i.e., standard compensation (non-pecuniary losses) and loss of
dependency (pecuniary losses).
82. As noted in the aforesaid judgment in the case of Kamla Devi
(Supra), the standard compensation is stated to be Rs. 50,000/- in the year
1989, which is to be revised from time to time to counter inflation. Thus, for
standard compensation, the base amount of Rs. 50,000/- for the year 1989 isSignature Not Verified
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adjusted using the Consumer Price Index for Industrial Workers, i.e., CPI
(IW). The CPI (IW) for the year 1989 (Base 1982), as per the aforesaid
judgment in the case of Kamla Devi (Supra) was 171.
83. The incident in the present case occurred on 27th September, 2014.
The CPI (IW) for September, 2014, (Base 2001) was 253. Using the
government provided linking factor of 4.63 to convert the old base year of
1982, the CPI (IW) for September, 2014 (Base 1982) is 253 × 4.63 =
1171.39. The standard compensation after adjusting inflation, is accordingly
calculated as (Rs. 50,000/- × 1171.39) / 171 = Rs. 3,42,511.6/- (Rupees
Three Lacs Forty-Two Thousand Five Hundred Eleven and Six Paisa Only).
84. For pecuniary loss of dependency, the father’s monthly income of Rs.
15,000/- is taken as a basis for the child’s future potential income, as held in
the aforesaid judgment of Court On Its Own Motion. The annual potential
income is Rs. 15,000/- × 12 = Rs. 1,80,000/- (Rupees One Lac Eighty
Thousand Only). The parents’ dependency is taken as 50% of this income,
which is Rs. 90,000/- per year. Applying a multiplier of 15 (as the child was
below 15 years of age), the pecuniary loss is Rs. 90,000/- × 15 = Rs.
13,50,000/- (Rupees Thirteen Lacs Fifty Thousand Only).
85. Accordingly, the total compensation payable to the petitioners is Rs.
Rs. 3,42,511.6/- + Rs. 13,50,000/- = Rs. 16,92,511.6/- (Rupees Sixteen Lacs
Ninety-Two Thousand Five Hundred Eleven and Six Paisa Only).
86. The petitioners are also held entitled to interest on the aforesaid
principal amount of Rs. 16,92,511.6/- (Rupees Sixteen Lacs Ninety-Two
Thousand Five Hundred Eleven and Six Paisa Only).
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87. Accordingly, simple interest @ 9 % per annum is also awarded to the
petitioners on the aforesaid principal amount, from the date of filing of the
present writ petition till payment of the awarded amount.
88. In view of the aforesaid, the respondent nos. 1 and 2, i.e., GNCTD
and the DJB respectively, are directed to pay an amount of Rs. 16,92,511.6/-
(Rupees Sixteen Lacs Ninety-Two Thousand Five Hundred Eleven and Six
Paisa Only) along with simple interest @ 9% per annum from the date of
filing of the writ petition, till the date of realization.
89. This Court has not gone into the issue of fixing the inter se liability of
the respondents in the present proceedings. Accordingly, the question
whether the amounts payable by the GNCTD and the DJB to the petitioners,
are recoverable from other respondents, are left open to be adjudicated in
appropriate proceedings. It shall be open to the GNCTD and the DJB to
pursue their claim against other respondents, in accordance with law.
90. The present writ petition is disposed of in the above terms.
MINI PUSHKARNA
(JUDGE)
JULY 27, 2026
c
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