Delhi High Court
Gopalpur Victim Association vs Delhi Jal Board & Oprs. on 2 February, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 2nd February, 2011
+ W.P.(C) 5027/2010
GOPALPUR VICTIM ASSOCIATION ..... Petitioner
Through Ms. Aruna Mehta, Advocate.
versus
DELHI JAL BOARD & OPRS. ..... Respondent
Through Mr. N. Waziri, Standing Counsel.
Mr. Mohd. Arshad, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported in the Digest ? Yes.
DIPAK MISRA, CJ:
In this writ petition preferred under Article 226 of the Constitution
of India by Gopalpur Victim Association, the singular issue that emerges
for consideration is whether the respondents, namely, the Government of
National Capital Territory of Delhi and Delhi Jal Board should be saddled
with the liability to pay compensation to the parents for the untimely
death of four young children, namely, Narender, Atul, Vikas and Nitesh
who were aged between 8-10 years.
2. As the assertion in the petition exposes, the said four children after
W.P. (C) 5027/2010 Page 1 of 9
getting free from school went to play in a vacant land situated in village
Gopalpur belonging/owned by Flood and Irrigation Department of Delhi
handed over to Delhi Jal Board for laying of water pipelines. It is
contended in the petition that on 5th March, 2010, the unfortunate incident
took place and the four children while playing were drowned in a pit
situated on the vacant land. An FIR was lodged by one of the relatives of
four children and a case was registered under Section 304A of the Indian
Penal Code, 1860 against unknown persons. It is put forth that the area in
question was not fenced and the boundary walls were broken at various
places, which led the children while playing to fall into the pit. The time
was 7 p.m. in March. The darkness of summer evening in the real sense of
the term was yet to set in and the children being children had played out
of enthusiasm and eventually got into the large pit, which was deep and
filled with water and had the capacity to swallow and devour the lives of
children. Thus, in the ultimate eventuate got drowned and life span got
extinct. In this backdrop, a prayer has been made for grant of
compensation amounting to Rs. 12 lacs each along with costs and interest
to each of the children.
3. A composite counter affidavit has been filed by the respondents 1
to 3 contending, inter alia, that the issue raised in the writ petition cannot
W.P. (C) 5027/2010 Page 2 of 9
be adjudicated and the same are in the realm of disputed questions of fact;
that it cannot be ruled out that the children were not mischievous; there is
a possibility that the children had gone for swimming or had slipped in the
dead of night cannot be brushed aside; that there is no explanation how
the boys four in number can get themselves drowned simultaneously; that
the area was not required to be protected like a prohibited area and was a
waste land of the Flood and Irrigation Department; and that by no stretch
of imagination neither the State nor the Delhi Jal Board can be saddled
with the liability. To bolster the said stand, reliance has been placed on
Chairman, Grid Corporation of Orissa Ltd.(Gridco) and Others Vs.
Sukamani Das (Smt) and Another (1999) 7 SCC 298, SDO Grid
Corporation of Orissa Ltd. and Others. Vs. Timudu Oram (2005) 6 SCC
156 and Bharat Amratlal Kothari and Another Vs. Dosukhan
Samadkhan Sindhi and Others (2010) 1 SCC 234.
4. We have heard Ms. Aruna Mehta, learned counsel for the petitioner
and Mr. Waziri, learned Standing Counsel appearing on behalf of the
GNCTD, Flood and Irrigation Department as well as the Delhi Jal Board.
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
W.P. (C) 5027/2010 Page 3 of 9
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
admeasures 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.
W.P. (C) 5027/2010 Page 4 of 9
6. In Sukamani Das and Another (supra) the dispute related to death
by an electrical wire and taking note of the fact of the situation the Apex
Court held that there was a disputed question of fact. Similarly, in
Timudu Oram (Supra) their Lordships clearly held that it is the duty of
the Court to examine whether the loss was caused by negligence of the
defendants and whether wire had snapped due to negligence of the
appellant-defendant as a result of which the deceased came into contact
with wire. In Bharat Amratlal Kothari and Another (supra) in
paragraphs 40, 41 and 42 on which reliance has been placed by Mr.
Waziri, really relate to a different scenario altogether inasmuch as the
controversy arose to handing over the custody of certain animals and a
factual dispute did emerge. In our considered opinion all the citations
which have been commended to us are distinguishable on facts.
7. At this juncture, we may notice an authority in Smt. Gunwant
Kaur and Others Vs. Municipal Committee, Bhatinda and Others
1969(3) SCC 769 wherein this Court has held thus:-
"14..............The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226
merely because in considering the petitioners right to
relief questions of fact may fall to be determined. In a
petition under Article 226 the High Court has
jurisdiction to try issues both of fact and law. Exercise
of the jurisdiction is, it is true, discretionary, but the
discretion must be exercised on sound judicial
W.P. (C) 5027/2010 Page 5 of 9
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 or 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."
8. In Century Spg. and Mfg. Co. Ltd. Vs. Ulhasnagar Municipal
Council (1970) 1 SCC 582, it has been held thus:-
"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."
9. In ABL International Ltd. and Another Vs. Export Credit
Guarantee Corporation of India Ltd. and Others (2004) 3 SCC 553 after
referring to the decisions in Smt. Gunwant Kaur and Others (supra) and
Century Spg. and Mfg. Co. Ltd.(supra), a two-Judges Bench has opined
thus:-
"Therefore, it is clear from the above enunciation of
law that merely because one of the parties to the
litigation raises a dispute in regard to the facts of the
W.P. (C) 5027/2010 Page 6 of 9
case, the court entertaining such petition under Article
226 of the Constitution is not always bound to relegate
the parties to a suit. In the above case of Gunwant Kaur
this Court even went to the extent of holding that in a
writ petition, if the facts require, even oral evidence can
be taken. This clearly shows that in an appropriate case,
the writ court has the jurisdiction to entertain a writ
petition involving disputed questions of fact and there is
no absolute bar for entertaining a writ petition even if
the same arises out of a contractual obligation and/or
involves some disputed questions of fact."
10. The present factual matrix is to be decided on the anvil of the
aforesaid authorities in the field. As is clearly demonstrable, there was no
proper fencing and nothing was put prohibiting anyone to get into the said
area. That apart, the stand, the children might have gone to swim, does not
really deserve acceptation. As we perceive, the factual scenario as has
been reflected do not warrant any inquiry by this Court. It can be stated
that certitude that a dexterous attempt has been made to raise the disputed
questions of fact. The same leaves us unimpressed and we are not inclined
to throw the writ petition over-board on the ground that it involves
disputed questions of fact.
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. Paragraph 2 of the said communication
W.P. (C) 5027/2010 Page 7 of 9
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.
W.P. (C) 5027/2010 Page 8 of 9
As a sequitur compensation has to be awarded.
13. We have been apprised in course of hearing that a sum of Rs.1 lac
has been paid by Delhi Jal Board as ex-gratia to the parents of the
children. Regard being had to the totality of the circumstances, we are
disposed to grant compensation of Rs.3.5 lacs and accordingly it is so
advised. The balance Rs.2.5 lacs shall be paid by the respondent No.1,
Delhi Jal Board by way of bank draft drawn on a nationalized bank on
proper identification before the Registrar General of this Court within four
weeks. The said amount shall be kept in a fixed deposit for a period of
three years. The depositors would be entitled to avail the interest on the
said amount. Delhi Jal Board is given liberty to proceed to realize the said
sum after due inquiry from the persons who are responsible for such acts,
including the contractors.
14. The writ petition is allowed to the extent indicated above without
any order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
FEBRUARY 02, 2011 NA W.P. (C) 5027/2010 Page 9 of 9