Municipal Corporation Of Greater … vs G.Dsouza And Anr on 23 February, 2026
inkinccorporation@gmail.com Bombay High Court
Municipal Corporation Of Greater … vs G.Dsouza And Anr on 23 February, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-OS:5370-DB
1/33 902-J-WP-1047-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1047 OF 2021
Municipal Corporation of Greater .. Petitioner
Mumbai
Through the Municipal Commissioner
Mahapalika Marg, Fort, Mumbai 400001
Versus
1. G.D'souza .. Respondents
Adult, Occupation:
R/at: P.O. Box 8476,
Mumbai 400 103
2. Deputy Commissioner of Police, Zone
V Mumbai 400 025
...
Mr.Yashodeep Deshmukh a/w Ms.Jyoti Mhatre i/b Ms.Komal Punjabi
for the Petitioner.
Mr.Manish Tomar for Respondent No.1.
Ms.P.H. Kantharia, Government Pleader a/w Ms.Jyoti Chavan, Addl.
GP for the State- Respondent No.2.
Mr.Vinod Shinde, Sub. Engineer Roads City, MCGM, present.
CORAM: BHARATI DANGRE, &
MANJUSHA DESHPANDE, JJ.
DATE : 23rd FEBRUARY, 2026.
JUDGMENT (PER BHARATI DANGRE, J) :
–
1 The Municipal Corporation of Greater Mumbai, (hereinafter,
referred to as “MCGM”), being aggrieved by the order passed by the
Maharashtra State Human Rights Commission (hereinafter referred
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
2/33 902-J-WP-1047-2021.doc
to as ‘Commission’) on 19/1/2018 in MAS No.995/2016, thereby
making recommendations, in Complaint case No.995/2016 filed at
the instance of respondent no.2, has approached this Court by
invoking the writ jurisdiction being seeking quashing and setting
aside of the said order as bad-in-law and passed exceeding its
jurisdiction.
The petition also sought stay to the effect, operation
implementation of the impugned order.
While issuing notice to the respondents on 22/3/2018, this
Court had stayed the effect and operation of the impugned order to
the extent of direction contained in paragraph no. 6B, and the order
continued to remain in force.
2 We have heard learned counsel Mr. Yashodeep Deshmukh for
the petitioner.
The petition has impleaded the complainant Mr.G.B.D’Souza
as respondent no.1, who is represented by Advocate Manish Tomar.
The respondent no.2 to the petition is the Deputy Commissioner of
Police, Zone V Mumbai, and is represented before us by Ms.Purnima
Kantharia, the learned Government Pleader, alongwith Smt. Jyoti
Chavan, Additional Government pleader.
On the pleadings being completed, by consent of the parties,
we deem it appropriate to issue ‘Rule’, which is made returnable
forthwith.
3 On the fateful day, i.e. 6/4/2015, at 5:30 a.m the respondent
no.1/complainant, along with his wife, aged 40 years, were
travelling on his Activa Hero Honda, MH-02-BF-8564 from Bandra to
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
3/33 902-J-WP-1047-2021.doc
Dadar, and while they were enroute at Mahim Junction, their
motorcycle skid and they fell down. His wife sustained a head injury
on account of the fall, and the complainant also suffered minor
injuries.
On being taken for treatment to Bhabha Hospital, the wife of
the complainant, Ms.Marliyn, was referred to Leelavati Hospital, as
she had suffered serious injuries.
Mr. G. D’Souza, the husband of the injured lady, approached
the Human Rights Commission, making a grievance that the incident
in which his wife, Marilyn, sustained injuries, was on account of
gross negligence of the Corporation to maintain the public streets
used for commutation and, it is on account of its negligence to fill
the potholes, and because of its non-curing, huge craters had
occurred on the road, and while driving the two wheeler, and
negotiating with the non-barricaded patch where re-surfacing work
was going on, his vehicle toppled, and he along with his wife fell
down and she sustained serious injuries, which put her in a coma.
He, therefore, complained that it amounted to violation of human
rights and necessary orders were requested to be passed, including
reimbursement of the hospital expenses and issuance of appropriate
directions to the State machinery who had miserably failed to
protect lives of innocent citizens who are left in the lurch and
resulting into rights of humans living with dignity being affected.
The incident also received wide publicity in the newspaper, and the
complainant relied upon the same.
4 On receipt of the complaint, the Commission registered the
same as MAS/Case No. 995/2016, taking note of the grievance of
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
4/33 902-J-WP-1047-2021.doc
the complainant about the incident which took place in the wee
hours of 6/4/2015, and as the vehicle skidded in the pothole on the
road, and his wife fell down and sustained serious injuries. Since the
complaint sought indulgence from the Commission u/s. 8 and 12 of
the Protection of Human Rights Act, 1993, the Commission sought
responses from the Corporation, and accordingly, the Deputy Chief
Engineer, (Road City) BMC placed his report before the Commission,
which received response from the complainant in form of rejoinder.
A report from Police department was also called for, with reference
to the entry in the station diary vide Entry No.25/15 dated
7/4/2015 taken by Mahim Police Station, and the report of the
inquiry conducted by DCP Zone V, Mumbai was also placed before
the Commission.
5 On consideration of the two reports placed before the
Commission and the defence adopted therein, being juxtaposed
against the grievance of the complainant, featuring through the
complaint, the Commission formulated the following point for
consideration :-
“3. After weighing the pros and cons of the contentious issues
and the legal principles involved, two vital questions arises for
my consideration, i.e.A) Whether a written information / report from the victim or her
husband was a prerequisite for the police to register a case of
accident, and initiate investigation against the erring authority,
u/s. 154, 156 & 157 Cr. PC?
B) Whether BMC can be held responsible for having failed to take
proper caution and care in maintaining the road in question,
resulting into the violation of the human rights of the victim?”
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
5/33 902-J-WP-1047-2021.doc
As regards point (A) as to whether it was necessary to have a
written complaint/information filed, for the police registering a case
of accident and initiating investigation, the Commission with
reference to the scheme of Code of Criminal Procedure, 1973 and in
specific Section 154 thereof, and the decision of the Constitution
bench in Lalita Kumari Vs Government of Uttar Pradesh 1 and by
reproducing para 111 of the said Law Report, arrived at a conclusion
that there is a blatant lapse/breach of duty on part of the Police in
registering the FIR involving the present accident under the relevant
penal sections, which resulted into violation of the human rights of
the victim to take the offenders to task through a proper course of
legal action. DCP Zone-V was, therefore directed to register an FIR
on the basis of the entry in the station diary and the statement of the
victim recorded on 2/8/2017. It was also directed that action be
initiated against the concerned civic authority under relevant penal
sections as its own conclusion of the preliminary inquiry, pointed out
a guilty finger at them.
6 For determination of the reliefs sought in the petition, we are
not concerned with the observations of the Commission on point
(A), and the grievance pertains to the direction of the Commission,
which is the outcome of the deliberation on point (B) and we focus
on the same.
7 With regards to the duties and obligations of civic authorities,
particularly with reference to the poor conditions of the road in
metropolitan as well as major cities in Maharashtra State, the
Commission relied upon the directions of the High Court of
1 (2014) 2 SCC 1
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
6/33 902-J-WP-1047-2021.doc
Judicature at Bombay in suo motu PIL No.71/2013 decided on
20/5/2015, and the order reproduces the relevant observations from
the said decision exhaustively.
What is pertinent to note is the interim direction in paragraph
no. 34 of the order of the High Court, where the Corporation was
were directed to maintain all the streets/roads including
foot-ways/footpaths within its jurisdiction in good and proper
condition, and it fastened the responsibility of the Corporation to
keep them properly levelled and structured. It was also directed that
it will be the responsibility of the Corporation to ensure that
potholes and ditches are properly filled.
In particular, the following portion of the direction issued by
the High Court needs a reproduction, since the grievance of the
complainant and the direction of the Commission revolve around the
same:-
“(ii) All the Municipal Corporations which are parties to the PIL shall
maintain all the streets/roads including foot-ways/ footpaths within its
jurisdiction in good and proper condition. It shall be the responsibility of
the Municipal Corporations to keep the roads and footpaths properly
levelled and surfaced. It shall be their responsibility to ensure that
potholes and ditches thereon are properly filled in. The work of filling in
the potholes shall be carried out scientifically as an ongoing project;
(iii) While granting permissions to various authorities to do digging work on the
streets, a condition shall be incorporated by all the Municipal
Corporations/other Authorities of prominently displaying at the site of the work
the following details :- (a) the name of the agency which is doing the digging
work and (b) the extent of the digging work permitted and the period within
which the work shall be completed. The display boards shall also contain the
outer limit within which the road shall be restored to its original condition;
(iv) Similar Boards shall be displayed at the sites where major repair work of
streets is undertaken. The name of the agency undertaking the work and the
outer limit for the completion of the work shall be also prominently displayed.”
8 Relying on the aforesaid directions in the PIL, the
Commission noted that the Corporation was under a duty to
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
7/33 902-J-WP-1047-2021.doc
maintain and keep vigil on the maintenance of the road, and having
failed to do, a situation had arisen, which resulted into the accident,
due to which, even presently, the victim is undergoing medical
treatment on sustaining grievous head injury, resulting into an
altered signal intensity on the left side of the brain. The Commission
referred to the MRI scan report and also relied upon the medical
reports from Lilavati Hospital. The stand of the Corporation that
there was no negligence on its part, nor there were any potholes on
the road where resurfacing work was done and that warning boards
were displayed with proper barricades did not find favour with the
Commission, since according to the learned Member, the police
report at Exhibit ‘A’ very clearly fastened the liability on them,
wherein the cause of the accident was referred to as ‘skidding of the
vehicle due to the pothole’. By making reference to the report of the
Deputy CHE (Roads) dated 06/04/2015, Exhibit ‘B’, the Commission
noted that the drainage water got accumulated on road edge side
which resulted into difference in road surface level, and by recording
that the Engineer in his report had clearly indicated choking of
sewer lines, flowing from Dariya Sagar slum, discharging waste
water on the existing footpath, but presently there was no
accumulation of waste water.
9 In the backdrop of the aforesaid, the Commission invoked the
principles laid down by the Apex Court in various authoritative
pronouncements to the following effect :-
a) D.K. Basu vs. State of West Bengal 2
b) State of MP vs. Shyamsunder Trivedi & Ors.3
c) Pratul Kumar Sinha vs. State of Bihar & Ors.4
2 (1997) 1 SCC 416
3 (1995) 4 SCC 262
4 1994 Suppl (3) SCC 100
Tilak
::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:43 :::
8/33 902-J-WP-1047-2021.doc
d) Nilabati Behera vs. State of Orissa5
e) Mani Kumar Thapa vs. State of Sikkim6
f) Raghuvir Singh vs. State of Haryana7
g) Lalita Kumari vs Govt. of UP8
h) Rini Johar & Anr. vs. State of MP & ors9
10 In conclusion, the Commission passed the following order,
“6. In view of the above, this Commission deems it fit to make the
following recommendations:
a) Principal Secretary, Urban Development Department, Mantralaya, Mumbai is
directed to issue a circular containing implementation of the directions passed
by the High Court of Judicature at Bombay in Writ Petition reproduced above to
all the Municipal Corporations in State of Maharashtra and insist for submitting
a compliance within a period of six weeks from the receipt of the copy of the
order.
b) Municipal Commissioner, BMC. Mumbai is directed to pay a compensation
Rs.10,00,000/- (Rupees Ten Lacs Only) to the victim for violation of her human
rights within six weeks from the date of receipt of this order, failing which an
interest @ 12.50% to be paid on the awarded amount till its actual realization.
c) Commissioner of Police, Mumbai to circulate the guidelines made by Supreme
Court in re Lalita Kumari case, relating to registration of FIR u/s. 154 Cr. PC
and powers and functions of the police in investigating the crime.
d) Compliance of these directions be made within six weeks and report be made
to this Commission for further necessary action.
The Ld. Secretary of this Commission to forward the copy of recommendation
passed by this Commission to the concerned departments for information and
action in accordance with the provisions of section 18(e) reproduced supra
above. With these directions the case stands closed and disposed off.”
11 The MCGM is aggrieved by the direction contained in paras 6
b, by which Municipal Commissioner, BMC is directed to pay
compensation of Rs. Ten lakhs to the victim for violation of Human
Rights within 6 weeks, failing with an interest of 12.50% to be paid
on the awarded amount, till it’s actual realization.
5 (1993) 2 SCC 746
6 (2002) 7 SCC 157
7 (1974) 4 SCC 560
8 (2014) 2 SCC 1
9 (2016) 11 SCC 703
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
9/33 902-J-WP-1047-2021.doc
The Corporation is not concerned with the remaining
directions issued by the Commission.
12 The learned counsel Mr. Deshmukh, while calling in question
the direction to the Municipal Commissioner to pay compensation of
Rs.10 Lakhs to the victim, would submit that no doubt the accident
that had taken place was an unfortunate incident, and it is also not
disputed that Ms.Marilyn had sustained head injury in the accident.
However, the grievance of Mr. Deshmukh is that the Commission had
imposed a liability by rendering a finding that the Corporation was
negligent in discharge of its duty.
At the outset, he would submit that the power of the
Commission under the protection of Human Rights Commission Act,
1993, is only to make recommendations to the concerned
Government or Authority, to make payment of compensation or
damages to the complainant or the victim, or the members of the
family, as the Commission may consider necessary, but it cannot
impose cost/damages to be paid by way of compensation, making it
mandatory to make the payment. Apart from this, it is also his
submission that unless and until the negligence was established, the
Commission could not have imposed or directed payment of
compensation, as for this purpose, the act of negligence ought to
have been established as a find finding, but when neither the police
report nor the report of the Deputy CH Engineer, established any
negligence on part of the Corporation, such an order could not have
been passed.
The learned counsel Mr.Tomar, representing respondent no.1,
would submit that the newspaper cuttings were accompanied with
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
10/33 902-J-WP-1047-2021.doc
the photographs, and even he had placed photographs on record to
show that there are many potholes on the road, and secondly he also
produced before us the photographs and the treatment papers of his
wife, to demonstrate her present medical status and the agony and
suffering which she has undergone for almost a decade, and he
would submit that the Commission has, therefore, rightly directed
payment of compensation.
13 In order to appreciate the legality of the impugned order
passed by the Human Rights Commission, as the Corporation has
raised the challenge to the same, we must refer to the provisions of
the Act of 1993.
India being a party to the International covenant on civil and
political rights, and international covenant on economic, social, and
cultural rights adopted by the General Assembly of the United
Nations, with the human rights embodied in the covenants being
substantially protected by the Constitution, the Act of 1993 was
enacted with a view to bring about the greater accountability and
transparency in issues relating to human rights.
The Act provides for Constitution of the National Human
Rights Commission at the national level and the State Human Rights
Commission constituted under Section 21, at the level of the State
Government. The functions and powers of the Commission as
specifically set out in Section 12 of the Act, which permit the
Commission to inquire suo moto, or on a petition presented to it by
a victim or any person on his behalf, or on direction or order of any
Court into complaint of violation of human rights or abatement
thereof, or negligence in the prevention of such violation by a public
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
11/33 902-J-WP-1047-2021.doc
servant. Apart from this, the Commission is also under an obligation
to perform all other functions which are set out in Section 12 of the
Act.
In order to exercise it’s function, the Commission is vested
with the powers of a Civil Court, trying a suit under the Civil
Procedure Code and the Commission is deemed to be a civil court.
Every proceeding before the Commission is deemed to be
judicial proceedings within the meaning of Section 193 and 228 and
for the purpose of section 196 of the IPC and the Commission is
deemed to be a civil court for all other purposes, or for the purpose
of Section 195 and Chapter XXVI of the Code of Criminal Procedure.
For the purpose of conducting an investigation pertaining to
an inquiry, it is open for the Commission to utilize the services of any
Officer or investigating agency of the Central Government or any
State Government, as the case may be.
14 Chapter IV of the Act of 1993 prescribe the procedure for
making inquiry into the complaint and we deem it necessary to
reproduce the same:-
“17. Inquiry into complaints. – The Commission while inquiring into the
complaints of violations of human rights may-
(i) call for information or report from the Central Government or any State
Government or any other authority or organisation subordinate thereto within
such time as may be specified by it:
Provided that-
(a) if the information or report is not received within the time stipulated by the
Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that
no further inquiry is required or that the required action has been initiated or
taken by the concerned Government or authority, it may not proceed with the
complaint and inform the complainant accordingly;
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
12/33 902-J-WP-1047-2021.doc
(ii) without prejudice to anything contained in clause (i), if it considers
necessary, having regard to the nature of the complaint, initiate an inquiry.
18. Steps during and after inquiry. The Commission may take any of the
following steps during or upon the completion of an inquiry held under this Act,
namely:-
(a) where the inquiry discloses the commission of violation of human rights or
negligence in the prevention of violation of human rights or abetment thereof
by a public servant, it may recommend to the concerned Government or
authority-
(i) to make payment of compensation or damages to the complainant or to the
victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the
Commission may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for such
directions, orders or writs as that Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the
inquiry for the grant of such immediate interim relief to the victim or the
members of his family as the Commission may consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to
the petitioner or his representative;
(e) the Commission shall send a copy of its inquiry report together with its
recommendations to the concerned Government or authority and the concerned
Government or authority shall, within a period of one month, or such further
time as the Commission may allow, forward its comments on the report,
including the action taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of
the concerned Government or authority, if any, and the action taken or proposed
to be taken by the concerned Government or authority on the recommendations
of the Commission.”
15 If the outcome of the inquiry conducted by the Commission
disclose commission of violation of human rights or negligence in
prevention of violation of human rights or abatement thereof by a
public servant, it has the power to make recommendation to the
concerned State Government or the Authority.
Tilak ::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:43 ::: 13/33 902-J-WP-1047-2021.doc 16 Section 18 of the Protection of Human Rights Act, 1993, was
amended in 2006, permitting the Commission to recommend
payment of compensation or damages and also direct proceedings
for prosecution and other actions, as it may deem fit against the
public servant. It is also authorized to recommend grant of interim
relief. Any inquiry conducted by the Human Rights Commission can
also be presented as part of the Report and the said report alongwith
its recommendations can be forwarded to the concerned
Government Authority.
The binding nature of recommendation from the NHRC is a
subject of diverse opinions expressed through various High Courts.
In State of Uttar Pradesh & Ors. vs. NHRC & Ors. 10 the Division
Bench of Allahabad High Court considered the Scheme of the Act
and in particular use of the expression ‘recommend’ in Section 18
thereof and it observed thus :-
“16.The basic question is whether the use of the expression “recommend”
in Section 18(a) can be treated by the State Government or by an
authority as merely an opinion or a suggestion which can be ignored with
impunity. In our view, to place such a construction on the expression
“recommend” would dilute the efficacy of the Commission and defeat the
statutory object underlying the constitution of such a body. An authority
or a government which is aggrieved by the order of the Commission is
entitled to challenge the order. Since no appeal is provided by the Act
against an order of the Commission, the power of judicial review is
available when an order of the Commission is questioned. Having regard
to the importance of the rule of law which is but a manifestation of the
guarantee of fair treatment under Article 14 and of the basic principles of
equality, it would not be possible to accept the construction that the State
Government can ignore the recommendations of the Commission under
Section 18 at its discretion or in its wisdom. That the Commission is not
merely a body which is to render opinions which will have no sanctity or
efficacy in enforcement, cannot be accepted. This is evident from the
provisions of clause (b) of Section 18 under which the Commission is
entitled to approach the Supreme Court or the High Court for such
directions, orders or writs as the Court may deem fit and necessary.
10 (2016)117 ALR 27
Tilak
::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:43 :::
14/33 902-J-WP-1047-2021.doc
Governed as we are by the rule of law and by the fundamental norms of
the protection of life and liberty and human dignity under a constitutional
order, it will not be open to the State Government to disregard the view of
the Commission. The Commission has directed the State Government to
report compliance. The State Government is at liberty to challenge the
order of the Commission on merits since no appeal is provided by the Act.
But it cannot in the absence of the order being set aside, modified or
reviewed disregard the order at its own discretion. While a challenge to
the order of the Commission is available in exercise of the power of
judicial review, the State Government subject to this right, is duty bound
to comply with the order. Otherwise the purpose of enacting the
legislation would be defeated. The provisions of the Act which have been
made to enforce the constitutional protection of life and liberty by
enabling the Commission to grant compensation for violations of human
rights would be rendered nugatory. A construction which will produce
that result cannot be adopted and must be rejected.”
17 The Full Bench of Madras High Court in Abdul Sathar vs.
Principal Secretary to Government, & Ors.,11 by considering the
earlier Division Bench decisions, arrived at a conclusion that there
was no conflict of views between the Division Bench Judgments and
the reference as to whether the decision made by the State Human
Rights Commission under Section 18 of the Human Rights Act, 1993
is only a recommendation and not an adjudicated order capable of
immediate enforcement or otherwise was answered as below :-
“Ans: The recommendation of the Commission made under Section 18 of
the Act, is binding on the Government or Authority. The Government is
under a legal obligation to forward its comments on the Report including
the action taken or proposed to be taken to the Commission in terms of
Sub Clause (e) of Section 18. Therefore, the recommendation of the H.R.
Commission under Section 18 is an adjudicatory order which is legally
and immediately enforceable. If the concerned Government or authority
fails to implement the recommendation of the Commission within the
time stipulated under Section 18(e) of the Act, the Commission can
approach the Constitutional Court under Section 18(b) of the Act for
enforcement by seeking issuance of appropriate Writ/order/direction. We
having held the recommendation to be binding, axiomatically, sanctus and
sacrosanct public duty is imposed on the concerned Government or11 2021 SCC OnLine Mad 16611
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
15/33 902-J-WP-1047-2021.docauthority to implement the recommendation. It is also clarified that if the
Commission is the petitioner before the Constitutional Court under
Section 18(b) of the Act, it shall not be open to the concerned
Government or authority to oppose the petition for implementation of its
recommendation, unless the concerned Government or authority files a
petition seeking judicial review of the Commission’s recommendation,
provided that the concerned Government or authority has expressed their
intention to seek judicial review to the Commission’s recommendation in
terms of Section 18(e) of the Act.”
Similarly, the reference to the question as to, whether the
State has any discretion to avoid implementation of the decision
made so by the State Human Rights Commission and under what
circumstances, it is held that since the recommendation is binding
the State has no discretion to avoid its implementation and in case
if the State is aggrieved it can only resort to legal remedy seeking
judicial review of the recommendation of the Commission.
18 Recently, the Delhi High Court in the decision of Kiran Singh
vs. National Human Rights Commission & Ors.12, on analysing
various decisions and the divergent views expressed on the
question about the binding nature of the decision of the State or
National Human Rights Commission, expressed its concurrence with
Allahabad High Court and Madras High Court holding that, the
recommendations are binding in nature and the purpose of the
Protection of Human Rights Act and the reasons for its enactment
would be nullified if the Commissions are rendered powerless and
merely recommending bodies. In Para 60 of the said decision, the
Court observed thus :-
“60. In the opinion of this Court, human rights are not ordinary rights.
These rights are integral to Article 21 which recognizes the Right to Life.
12 2025 SCC OnLine Del 430
Tilak
::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:43 :::
16/33 902-J-WP-1047-2021.doc
Commissions under the Human rights Act are meant to look into any
infractions and exercise powers under the Act. Reports and
Recommendations of Human Rights Commissions need to be treated with
seriousness and not rendered edentulous or pointless. If Governments are
aggrieved, they are free to challenge the orders of State Commissions and
NHRC. But such inquiries and reports cannot be simply ignored. Human
Rights Commissions are not to be ‘toothless tigers’ but have to be ‘fierce
defenders’ safeguarding the most basic right of humans ie., the right to
live without fear and to live with dignity.”
The High Court also noted that the above reasoning does not
in any manner contradict the findings of the Supreme Court in N.C.
Dhoundial vs. Union of India & Ors.13 which had observed that the
Commission does not have unlimited jurisdiction and is bound by
the duties and functions as defined in the Act and must necessarily
act within the parameters prescribed by the Act and while making
the recommendations it is duty bound to act within the said powers.
19 From the aforesaid observations from the decision of the High
Court of Delhi and Allahabad, we have no hesitancy in holding that
the recommendation of the Human Rights Commission is liable to be
treated as binding and definitely cannot be ignored with impunity
as in our view, if it is held to be merely recommendary, leaving it to
the discretion of the Government/Authority whether to implement
the same or not it would defeat the avowed purpose for which the
Commission if constituted. However, such an order passed by the
Commission, in absence of a provision of appeal provided under the
Act is permitted to be reviewed in exercise of the power of judicial
review available to a constitutional court. If the State Government
or Authority is aggrieved by a decision of the Commission, and when
it approaches the constitutional court by raising a challenge to the
same, the Court is duty bound to exercise its power of review, and
13 (2004) 2 SCC 579
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
17/33 902-J-WP-1047-2021.doc
examine the correctness of the said decision and this is what we
propose to do on taking into consideration the grounds on which the
Corporation has raised a challenge to the impugned order of the
Commission.
We must, at the outset, note that the payment of
compensation for a tort/wrong definitely require a trial. It is no
doubt true that, since considerable point of time, the Apex Court
has permitted grant of compensation by way of a public law remedy,
leaving it open to the party to claim compensation by filing
proceedings before the civil court, where on establishing negligence,
the proper amount of compensation/ damages can be claimed, but
nonetheless, the higher Courts have entertained grievances and
allowed compensation/ damages to the aggrieved party.
The moot question for consideration is whether the Human
Rights Commission is enjoined with such a power, and the answer
according to us, is clearly in the negative as it is a creature of the
statute and shall only discharge the functions and duties entrusted
to it, and also in the manner prescribed by the statute. Definitely,
the Human Rights Commission being a statutory body and whose
orders are subject to judicial review is restricted in its scope to a fact
finding body inquiring into the complaints of violation of human
rights and when it arise at a conclusion that the inquiry disclosed
violation of human rights or negligence in prevention of violation of
human rights or abatement thereof by public servant, it may make
necessary recommendations. However, in our view the Commission
cannot assume the role of a constitutional court, which on
considering the public law remedy available to a victim or his family
has allowed compensation to be paid.
Tilak
::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:43 :::
18/33 902-J-WP-1047-2021.doc
20 By keeping the aforesaid basic premise in mind, we turn our
attention to the impugned order and the genesis of the Commission
to record a finding of negligence, followed by award of
compensation to the victim.
It is not in dispute that a Commission called for the response
from the police as well as the Corporation, and it received reports
from both.
Referring to the police report, there is an entry in station diary
dated 7/4/2015, which has recorded thus:-
‘एकंदरीत केलेल्या चौकशीवरुन असे निनष्पन्न होते की, यातील अपघातग्रस्त मनिहला
श्रीमती मेरिरलीन रेमाडीस निह तितचे पती श्री.शेल्डन हे मोटार स्कुटर चालनिवत असताना
अंधार असल्याने, त्यांची मोटार स्कुटर खड्डयात गेल्याने स्लीप झाली होती व त्यात ते
दोघेही जखमी झाले होते त्याबाबत मानिहम पोलीस ठाणे येथे ए.पी.आर. प्राप्त झाल्याने
ठाणे अंमलदार पोउपनिन निगरवले यांनी जावून चौकशी केली असता नमुद अपघातग्रस्त
जखमींनी त्यांची कोणत्याही प्रकारची तक्रार अगर संशय नसल्याचे सांगीतले होते .’We fail to understand as to how the Commission blindly relied
upon the said entry, which is nothing but a conclusion drawn on the
basis of some inquiry. Who conducted the inquiry, what was the
inquiry that was carried out, is not at all considered of any relevance
by the commission.
During the course of hearing, Mr. Deshmukh has placed before
us certain statements which formed part of the investigation, and
these statements are forwarded by the Deputy Commissioner of
Police to the Commission on 20/7/2017 with reference to the
complaint of respondent no.1.
21 The Deputy Commissioner of police, Zone V reported to the
Commission that during course of inquiry the statement of one PSI
Girvale dated was recorded on 18/7/2017, wherein he stated that
he was on duty on 5/4/2015 from 20.00 hours to 8.00 a.m onTilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
19/33 902-J-WP-1047-2021.doc6/4/2015. At around 6:15 a.m, he received message from Bhabha
hospital, Bandra, that one lady, Ms. Marilyn while travelling along
with her husband on his motorcycle from Bandra to Dadar, fell down
as the vehicle hit a ditch and she sustained head injury. On receipt of
this message, he approached the hospital and made inquiry with
Sheldon Remedios, who informed him that when they arrived on
their scooter in front of Mahim Church, it was dark and he could not
notice the pit, and his scooter toppled, and both of them fell down,
and his wife became unconscious. In his statement, he categorically
stated that since it was dark, he could not notice the ditch and his
vehicle slipped, and his wife sustained injuries and even he
sustained minor injury. The DCP recorded that since an APR was
received in Mahim Police Station, the Thane Amaldar Girvale made
inquiry with the injured who informed that they had no grievance.
The report is accompanied by the statement of Govardhan
Girvale as well as Sheldon Remedios, respondent no.1 recorded on
07/04/2015.
22 Now turning our attention to the report of the Deputy Chief
Engineer, (Roads), with reference to the complaint received by the
Commission, who by his communication dated 21/09/2017,
reported thus :-
“In view of above, this office has made an enquiry at that time with
local public /shopkeepers at Mahim junction when they said they
didn’t know about such accident took place at Mahim junction site.
However, they have learnt about it from newspaper. The M.C.G.M.
staff has also enquired with Mahim Traffic Police and Mahim Police
Station regarding this matter but no such complaint was lodged
regarding the accident at that time. The report submitted to the then
Hon’ble M.C. is attached with photographs at Pg.C-01 to C-43. It is
further added here that, as per Traffic Police permission, theTilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
20/33 902-J-WP-1047-2021.docimprovement of Mahim junction work was being carried out during
night hours only (i.e. from 12 midnight to 5.30 a.m.) in the presence
of M.C.G.M. staff, Contractor’s staff and Third Party Auditor’s staff
when no such accident was noticed. While executing the work, Traffic
Police had insisted to take such quantum of work that can be
completed within night period with reinstatement by providing metal
plates and to allow vehicular traffic movement to avoid traffic jam
and accordingly, work was carried out at site. There were no potholes
on site at that time. It was learnt from newspaper that while turning
after Mahim Causeway, the accident took place. The place Mahim
Causeway is about 500 mtrs. away from work site (i.e. Mahim
Junction site) where no work was in progress.
Under the circumstances, as explained above, it can be concluded that
the said incident is not occurred at work site and no negligence of
staff is observed. Therefore, it is requested that the present case may
kindly be disposed off please.”
23 The above report categorically inform the Commission that on
inquiry being made with the shopkeepers at Mahim Junction,
nobody was aware about the incident, and they only came to know
of it from the news paper. Inquiries were also made with Mahim
Traffic Police and Mahim police station, but nobody was aware of
the occurrence of the accident.
Referring to the spot of incident, as the newspaper had
reported that the incident occurred after turning Mahim causeway, it
was reported that Mahim causeway is about 500 metres away from
work site i.e. Mahim Junction site, where no work was in progress
and therefore it was evident that the incident had not occurred at
work site and there was no negligence.
The report was accompanied with necessary photographs
which showed the barricading, but since it was 500 metres away,
definitely the work site was not the cause for the accident. Apart
from this, the Deputy C.H. (Roads), with reference to the rejoinder
submitted by the complainant, also submitted that the resurfacing
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
21/33 902-J-WP-1047-2021.doc
work, which was in progress, at Mahim junction was done with
proper safety measures, and the resurfacing work includes milling of
the existing surface with the help of milling machine and the milled
surface had to be relaid by bitumen layer and there was no activity
of excavation/digging, which clearly represented that the accident
did not happen due to the excavated area. It is also reported there
were no potholes at the relevant time on the portion of Mahim
junction site, where resurfacing work was in progress. Apart from
this, it is also stated that the Mahim junction improvement work was
carried out during night hours only, i.e. 12 midnight to 5:30 am with
the presence of MCGM staff, contractor’s staff and third Party
Auditor’s staff at the work site. The Corporation has also placed on
record the communications addressed by the Executive engineer
(Roads) City- IV to the Deputy Chief Engineer for securing NOC for
road excavation for strengthening and improvement of minor roads
in asphaltic treatment in city division, at L.J. Road, Mori Road and
Arun Kumar Vaidya Marg in Mahim Traffic Division. The
communication was also addressed to the Additional Commissioner
of Police Traffic about road closing traffic diversion permission for
improvement of Mahim junction at Mahim Church in G/N ward.
Relying upon the aforesaid correspondence alongwith supporting
photographs it was reported to the Commission that for carrying out
the work, the necessary arrangement shall be made to revise traffic
closure/diversion and the directions were strictly implemented.
24 In the wake of the aforesaid denial from the respondents, the
question that arises for consideration is, what was the material on
the basis of which the Commission arrived at an inference that there
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
22/33 902-J-WP-1047-2021.doc
was negligence on part of the Corporation, which resulted into the
accident. The Commission has arrived at a conclusion that the Civic
Authority was under duty and obligation to maintain the road free of
potholes and ensure smooth flow of traffic on the road and it
inferred that the roads maintained by the Corporation are not in
good state, but we fail to see any material on the basis of which this
inference is drawn, as the commission has recorded that the
Corporation is negligent and awarded compensation without
reflecting on the negligence on part of its Officers, as with the
contest being raised by the Corporation, it should have been a
matter of evidence.
25 Another relevant aspect of the matter is the award of
compensation by the impugned order passed by the Commission
premised on the negligence exhibited on part of the Corporation in
not maintaining the roads in a proper state.
The award of compensation, which arises out of a tortious
liability entitle a person who is wronged to be compensated by the
wrongdoer. The compensation to be paid being introduced in torts,
finds its way through labor legislations and post independence, it
was included in various statutes like the Consumer Protection Act,
1986, Motor Vehicle Act, 1988, Railway Act, 1989 as well as
Protection of Human Rights Act, 1993, Protection of Women against
Domestic Violence Act, 2005.
26 The fundamental rights enshrined in Part III of the
Constitution are available to the citizens and Article 12 to 35 exist in
form of remedy for enforcement of rights conferred by the said Part,
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
23/33 902-J-WP-1047-2021.doc
from which it is inferred that for enforcement of the rights, there
exist a remedy and though the earliest of the cases for granting
compensation in exercise of writ jurisdiction is to be found in the
decision of the Apex Court Khatri vs. State of Bihar,14 where the
Courts forged new remedies for the purpose of vindicating the most
precious of the fundamental right to life and personal liberty. In
Rudul Sah vs State Of Bihar Another,15 the Apex Court brought
about a revolutionary breakthrough in human rights jurisprudence
by granting monetary compensation to the victim on account of
states lawlessness on part of Bihar Government for keeping the
Petitioner in illegal detention for over 14 years after his acquittal
from murder charge, and he was held entitled to compensation in
the sum of Rs.30,000/-.
Granting compensation of Rs.30,000/- as interim measure,
the Court clarified that the order shall not preclude the Petitioner
from bringing a Suit to recover appropriate damages from State and
its erring officials and the order of compensation passed was
palliative in nature, as it was held that the Petitioner cannot be left
penniless until the end of his Suit followed by the proceedings
before the Appellate Court and Execution Proceedings.
In Nilabati Behera vs. State of Orissa, (Supra) the Supreme
Court paved the way for compensation not only under Article 32,
but also under Article 226 of the Constitution, when it observed
thus :-
“34. The relief of monetary compensation, as exemplary damages,
in proceedings under Article 32 by this Court or under Article 226 by the
High Courts, for established infringement of the indefeasible right14 (1981) 1 SCC 627
15 (1983) 4 SCC 141Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:43 :::
24/33 902-J-WP-1047-2021.docguaranteed 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.”
Consequently, the High Courts gave a kick-start to
compensate for the loss suffered by the victim for breach of
fundamental rights primarily under Article 21. In case of D.K. Basu
vs. State of West Bengal (supra), the remedy of compensation under
public law was recognized and reinforced with the following
observation :-
“44. Award of compensation for established infringement of the
indefeasible rights guaranteed under Article 21 of the Constitution is a
remedy available in public law since the purpose of public law is not only
to civilise public power but also to assure the citizens that they live under
a legal system wherein their rights and interests shall be protected and
preserved. Grant of compensation in proceedings under Article 32 or
Article 226 of the Constitution of India for the established violation of the
fundamental rights guaranteed under Article 21, is an exercise of the
courts under the public law jurisdiction for penalising the wrongdoer and
fixing the liability for the public wrong on the State which failed in the
discharge of its public duty to protect the fundamental rights of the
citizen.”
In United Air Travel Services vs. Union of India,16 where right
to equality was found to be violated, compensation of Rs.5 Lakhs
was awarded, as the Petitioners were deprived of their right to
secure the quota on patently wrongful order passed for the reasons,
which did not apply to them and for conditions, which have been
specifically exempted. Recording that the facts of the case
undoubtedly gave rise to the satisfaction of parameters as a fit case
for grant of compensation, on a conspectus of the facts including the
number of pilgrims for whom the Petitioner would have been
entitled to arrange the Haj Pilgrimage, the compensation of Rs.5
Lakhs was held to be adequate compensation for the loss suffered
16 (2018) 8 SCC 141
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
25/33 902-J-WP-1047-2021.doc
and subserve the end of justice, though it was noted that there is no
quantification based on actual loss, but the Award was in the nature
of damages in public law.
In Ramlila Maidan Incident, In re,17 The Supreme Court took
suo-motu cognizance of Article 19(1)(a) and (b) alongwith Article
21 and held that the negligence of the State and the trust was prima
facie established and it directed Ramdev’s foundation, Bharat
Swabhiman Trust, to pay 25% of compensation to the dead and
injured and ordered payment of Rs.5 Lakhs compensation per
affected family. The compensation awarded was treated as ad hoc
and in the event the deceased, or the injured person/enured persons
or the persons claiming through them instituted any legal
proceedings for the purpose of the compensation awarded in the
Judgment was directed to be adjusted in the final proceedings.
The trend of awarding compensation gained momentum and
in various subsequent cases the compensation was awarded to
victim of State excesses when their fundamental rights were
encroached and this involve the cases of atrocities committed by the
police or cases of custodial death and torture.
27 From the aforesaid decisions, it is seen that the compensatory
jurisdiction in public law is a judicial innovation allowing the
constitutional courts to award monetary damages against the State
for violation of fundamental rights or for tortious acts and it
transformed the public law from merely civilizing power into a tool
for compensating victims, and is commonly exercised under Article
32 and/or 226 of the Constitution of India. The key aspect of
compensatory jurisprudence is, this remedy is available before the
17 (2012) 5 SCC 1
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
26/33 902-J-WP-1047-2021.doc
constitutional courts against the State for ‘public law wrongs’ and is
primarily invoked when there is violation of fundamental rights and
in specific Article 21 of the Constitution at the instance of the State
functionaries and the precedents reveal that such compensation has
been paid in the past for custodial death, illegal detention or police
brutality. The purpose of the public law remedy and the jurisdiction
being exercised is to hold the State accountable, and as a mode of
rehabilitation of victim or their families and also to deter future
violations. This remedy is distinguishable from tort law as private
law requires proof of negligence and damages, but public law
compensation is awarded for the breach of duty itself. The said
remedy being availed through Article 32 by the Apex Court and
Article 226 of the Constitution allow the parties to ensure justice
enshrined by the Constitution for violation of fundamental rights.
28 The Human Rights Commission, under Chapter IV is
empowered to inquire into the complaints of violation of human
rights and in determining the liability, it may call for information or
report from the Government or any other Authority or Organization
subordinate thereto, within the time prescribed and if on receipt of
such information or report the Commission is satisfied that no
further inquiry is required, or that the required action must be
initiated by the Government or the Authority, it may not proceed
with the complaint, but if it considers to be necessary having regard
to the nature of the complaint, it may initiate an inquiry.
As per Section 18, the Commission is entitled to take various
steps during or upon completion of the inquiry and where the
inquiry discloses violation of human rights or negligence in
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
27/33 902-J-WP-1047-2021.doc
prevention of violation of human rights or abatement thereof, by a
public servant, it may recommend to the concerned Government or
Authority to make payment of compensation or damages to the
complainant or to the victim or to the members of his family as the
Commission may consider necessary.
The conjoint reading of Section 17 and 18, as a part of
Chapter IV, highlighting the procedure to be adopted by the
Commission, when it conduct inquiry into the complaint, it is noted
that the Commission may call for the information and if it considers
necessary, initiate an inquiry.
The power conferred on the Commission upon initiating any
inquiry into the complaint of violation of human rights, if result into
disclosure of commission of violation of human rights or
negligence in the prevention of violation of human rights, it is
authorized to recommend the concerned Government or Authority
to make payment of compensation or damages as the Commission
may deem necessary.
29 A perusal of the impugned order passed by the Commission
would reveal that the Commission has ordered payment of
compensation based on its finding that the BMC has failed to take
proper caution and care in maintaining the road in question which
has resulted into violation of human rights. For this purpose, it has
relied upon the observations of the High Court in Suo moto PIL,
where the Court had taken judicial note of the poor condition of the
roads in the city of Mumbai as well as the major cities in the State,
alongwith the existence of potholes, poor surfacing of the roads and
failure to level the roads, which was stated to be the cause for
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
28/33 902-J-WP-1047-2021.doc
number of road accidents resulting into loss of lives or serious
injuries to the members of public.
By reproducing the observations from the decision and
particularly as regards the statutory obligations vested in the
Corporations including the BMC, in relation to the construction,
maintenance, alteration and improvement of public streets, bridges,
culverts, causeway etc. for ensuring safe and orderly passage of
vehicular and pedestrians walking on streets, the High Court arrived
at a conclusion that wherever there is any breach or lapse on part of
the civic authority to maintain supervise public amenity such as
proper roads it would amount to violation of Article 21 and the
Commission inferred that the observations of the High Court would
bring BMC within the clutches of violation of human rights as
because of its failure, to maintain the roads in proper condition, the
accident took place in which the victim sustained grievous head
injury and is undergoing medical treatment.
It is to be noted that the BMC controverted accusations
levelled against it and contended that there was no negligence on its
part, as there were no potholes/ditches on the road and in fact
warning boards were displayed with proper barricades. However,
the Commission referred to the police report (Exh. A) which
according to it had fastened the liability on the Corporation and it
also relied upon the report of the Dy. CHE (Roads) dated
16/04/2015 filed alongwith Exh. ‘B’ with a statement made in the
report about the manner in which the maintenance of roads is
supervised.
Tilak
::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:44 :::
29/33 902-J-WP-1047-2021.doc
30 We have perused the reports placed before the Commission
and we find that the Deputy Chief Engineer, (Road City), had
disputed its liability as in the report it is stated that there were no
potholes on the site and the work of improvement of Mahim
Junction was being carried out only during night hours, but no such
accident had taken place at that spot and the place where the
accident had taken place was about 500 meters away from the
worksite (Mahim Junction site) where no work was in progress.
Apart from this, we have also perused the report forwarded to
the Commission by the Deputy Commissioner, DCP, Zone V, and this
Report also do not fix any liability or establish negligence, as alleged
in the complaint and from the statement of PSI Girvale, it is inferred
that the injured alongwith her husband was travelling on a scooter
and since it was dark, the scooter slipped into a ditch and she
sustained injury. However, the statement of the complainant who
was driving the vehicle being recorded on 06/04/2015, disclose that
because it was dark, he could not notice the pothole and his vehicle
slipped and tumbled, but he did not express any grievance against
anyone.
31 It is relevant to note that without establishing the
commission of tort/civil wrong, the constitutional courts by invoking
the public law remedy for violation of fundamental rights, have read
the power of awarding compensation, on rendering a finding based
on the surrounding circumstances placed before it leading to an
inevitable conclusion that the State is responsible for the wrong and
the victim deserve immediate relief has awarded compensation.
However, it is only in certain classes of cases of torture and
Tilak
::: Uploaded on - 27/02/2026 ::: Downloaded on - 27/02/2026 22:09:44 :::
30/33 902-J-WP-1047-2021.doc
custodial deaths, it was held that the damages represented a
solatium for mental pain, distress, indignity, loss of liberty and at
times, death. The jurisprudential reasoning behind the award of
damages in cases of violation of fundamental rights was elucidated
in Nilabati Behera (supra), a landmark case in the development of
law in this area, where it was held that Article 32 impose an
obligation on the court ‘to forge such new tools as may be necessary
for doing complete justice and enforcing fundamental rights’ and
compensation under Article 32 or 226 was held to be a remedy
available in public law, based on strict liability for the contravention
of fundamental rights to which principle of sovereign immunity did
not apply, even if it may be available as a defence in private law, in
action for tort. In D.K. Basu (supra), the Supreme Court had
reiterated that pecuniary compensation was an appropriate, effective
and sometimes the only suitable remedy for redressal of
fundamental rights violations and leaving the aggrieved to the mercy
of remedy available in civil law would hamper the courts role as
Protector and Custodian of citizen’s indefeasible rights.
32 Though the remedy of monetary compensation for violation of
human rights was expounded through various authoritative
pronouncements, the Courts had at the same time imposed
limitations on its power to grant such relief. In several cases the
courts have refused to exercise its writ jurisdiction in granting
compensation when it involved disputed questions of fact and there
is a clear denial of tortious liability by the State. In SPS Rathod vs.
State of Haryana & Ors18, the Apex Court recorded that it can grant
compensation only when there is prima facie or established
18 (2005)10 SCC 1
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
31/33 902-J-WP-1047-2021.doc
violation of guaranteed fundamental right, but when the
foundational fact itself is in dispute, the Court will desist from
ordering compensation and the exercise of power for determining
the compensation in glaring and clear cases of custodial rape or
death or illegal detention of the poor and helpless, is not feasible in
each and every case.
In M.C. Mehta & Anr. v.s Union of India & Ors.19 the Supreme
Court evolved another self imposed restriction being, that the power
to award compensation for violation of fundamental rights, but
limited this remedy to appropriate cases where infringement was
gross and patent i.e. it is incontrovertible and ex-facie glaring and
that the the violation must be of such magnitude as it would shock
the conscience of the Court.
33 On perusal of the impugned order, we have noted that the
Commission called for the reports and has justified its conclusion of
negligence on part of the corporation in not maintaining the road in
proper state, but according to us the reports do not lead to such an
inference and since the inquiry conducted by the Commission is a
fact finding inquiry, unless and until it lead a finding of negligence
per say, in our view the Commission had exceeded its jurisdiction in
directing the payment of compensation of Rs.10 lakhs to the
complainant/ the victim by attributing negligence, though the
finding of negligence is not based on any material placed before the
Commission. It appear to us that the Commission was swayed by
the observations of the High Court about bad conditions of the road,
in the cities including Mumbai and the abject failure of the bodies
like Corporation to maintain the roads, which was described by the
19 (1987) 1 SCC 395
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
32/33 902-J-WP-1047-2021.doc
High Court to be violation of the rights of the citizens to have well
laid and well maintained roads. The commission inferred violation
of human rights of the complainant and his wife, but as per Section
18 of the Act, the inference of violation of human rights or
negligence in its prevention or abatement thereof mut be outcome of
the inquiry as contemplated under Section 17. The commission
cannot and is not allowed to infer violation of human rights or
negligence in its prevention, in absence of material being placed
before it and definitely not by sitting in the chamber/office, such an
inference can be drawn. If the Commission had called for reports to
ascertain the factual situation and by looking at the reports, when no
inference can be drawn about negligence of the Corporation, the
member of the Commission has assumed the same and awarded
compensation to the victim.
No doubt the victim has suffered a grave injury and even today is
suffering and definitely deserve our sympathy, but it must be kept in
mind that award of compensation/damages does not come as a
grace or a bounty, but when the court award the same, on
establishing the fault/a liability by one enuring to the benefit of the
victim, the necessary link must be established. We deem it
appropriate to keep it open for respondent no.1 victim to approach
the civil court by filing proceedings seeking compensation/damages
on establishing the wrongful act on part of the Corporation, by
leading appropriate evidence and the competent civil court testing
the evidence establishing negligence/liability of the officials of the
Corporation. If such proceedings are filed, the civil court is
competent to deal with the same and we deem it appropriate to
declare that the findings rendered by us while testing the order
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
33/33 902-J-WP-1047-2021.doc
passed by the human rights commission shall not come in the way of
the complainant or the victim in claiming adequate compensation or
seeking damages.
34 In the wake of the aforesaid discussion, since the impugned
order dated 19/01/2018 passed by the Member, Maharashtra State
Human Rights Commission, is not sustainable for the reasons
recorded above, the same is quashed and set aside.
The Petition is made absolute in terms of prayer clause (a).
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)
Tilak
::: Uploaded on – 27/02/2026 ::: Downloaded on – 27/02/2026 22:09:44 :::
