Mohd. Neejam And Anr vs The State, Govt. Of Nct Of Delhi And Ors on 27 July, 2026

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    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
    
    
    
    
    Signature Not Verified
    Digitally Signed
    By:HARIOM SHARMA              W.P.(C) 12566/2019                                       Page 1 of 88
    Signing Date:27.07.2026
    19:24:59
                                        CORAM:
                                       HON'BLE MS. JUSTICE MINI PUSHKARNA
                                                                 JUDGMENT
    

    MINI PUSHKARNA, J.

    INTRODUCTION:

    SPONSORED

    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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    Signing Date:27.07.2026
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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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    Signing Date:27.07.2026
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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,

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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 the

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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 courts

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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
    to exercise the discretionary writ jurisdiction on ground of delay

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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-availability

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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 contractual

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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, has

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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 of

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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 the

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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
    personal to each case, in the very nature of things, there can

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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,

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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 issue

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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 be

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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, it

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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 [at

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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 the

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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 its

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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
    was any boundary wall, it was not adequate to stop or restrict

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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 15

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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 ordinary

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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 take

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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 of

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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
    awarding compensation to the victim. The Court applied the maxim

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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, the

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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. While

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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
    negligent in their duty to secure the area and prevent unauthorized

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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,

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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 of

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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 a

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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
    having the manhole and since the deceased himself was wrongfully

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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 the

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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 the

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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 of

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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 pecuniary

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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 is

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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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