Andhra Pradesh High Court - Amravati
G. Amarnath, Visakhapatnam vs Prl. Secy., Gen. Admn, Hyd 3 Ot on 17 June, 2022
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
IN THE HIGH COURT OF ANDHRA PRADESH
****
W.P. No.8538 of 2012
Between:
G. Amarnath, S/o Late Appanna, Aged 55 years,
R/o D.No.40-51-14, Santhoshnagar, Visakhapatnam.
. .... Petitioner
AND
The State of Andhra Pradesh,
Rep. by Principal Secretary,
General Administration Department,
Secretariat, Hyderabad and three others
.... Respondents
DATE OF JUDGMENT PRONOUNCED: 17.06.2022
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes / No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes / No
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes / No
_________________________
U. DURGA PRASAD RAO, J
2
* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
+ W.P. No.8538 of 2012
% 17.06.2022
Between:
G. Amarnath, S/o Late Appanna, Aged 55 years,
R/o D.No.40-51-14, Santhoshnagar, Visakhapatnam
.... Petitioner
AND
The State of Andhra Pradesh,
Rep. by Principal Secretary,
General Administration Department,
Secretariat, Hyderabad and three others
.... Respondents
! Counsel for Petitioner : Sri S. Srirama Chandra
Murty
^Counsel for Respondents :(1)Government Pleader for General Administration
representing respondent No.1
(2) Government Pleader for Irrigation representing
respondent No.2
(3) Government Pleader for Revenue representing
respondent No.3 and
(4) Sri G. Ram Gopal for respondent No.4
< Gist:
> Head Note:
? CASES REFERRED:
1. MANU/TN/0622/2014 = (2014)5 MLJ 479
2. MANU/SC/0506/2001 = AIR 2002 SC 3660
3. 2012 (2) CWC 401
4. (1868) LR 3 H.L. 330 (House of Lords)
5. MANU/SC/0591/2016
6. MANU/SC/0092/1986 = [1987]1SCR819
7. AIR 1993 SC 1960
8. AIR 1999 SC 2979 = MANU/SC/0437/1999
9. AIR 2000 SC 988
10.LAWS(HPH)-2016-1-3/LAWS(HPH)-2016-1-3
11.1970 SC 898
12.AIR 1984 SC 971
13.AIR 2009 SC 3104 = MANU/SC0606/2009
3
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
W.P.No.8538 of 2012
ORDER:
The petitioner by way of writ of mandamus prays for compensation against the respondents for their failure in taking necessary precautionary measures while the petitioner's son G.Krishna Chaitanya, young boy of 20 years, studying B.E. in Electronics and Communications, while in a pleasure trip to Tatipudi Reservoir of Gosthani river situated in Tatipudi Village, Gantyada Mandal, Vizianagaram District accidentally fell in the reservoir and died on 08.01.2009.
2. The grievance of the petitioner against the respondents 1 to 3 is that they abdicated their duty to maintain the reservoir, which is a notified tourist place, with all protective facilities for safety and security of the visitors, meaning thereby, they failed to protect the fundamental right of the deceased guaranteed under Article 21 of the Constitution of India, whereas the 4th respondent is concerned, the college authorities also failed to discharge their duty by sending a responsible officer along with students to properly guide them during their visit to the reservoir. The petitioner thus claimed compensation of Rs.25.00 lakhs against the respondents.
3. The respondents 1 to 3 did not file counter. However, the 2nd respondent filed counter opposed the writ petition on the main contention that there was no breach of duty on the part of the 4 respondents. The Reservoir is only a restricted place meant for storage of the water and it was not the tourist place. It is further contended that warning boards were placed at the reservoir that swimming and consumption of alcohol are prohibited. Despite the same, the deceased trespassed into the reservoir and fell and died. It is further contended that the writ petition is barred by limitation as the same is filed three years after the death of the deceased.
4. The 4th respondent filed counter contending that it has nothing to do with the unfortunate death of G. Krishna Chaitanya. While admitting that the said Krishna Chaitanya was a student of B.E., Electronics and Communication Engineering in the 4th respondent institute, it is stated that he was a day scholar of the college and the 4th respondent institute has never organized any pleasure trips to the students and therefore the question of its taking any precautions while the students went for pleasure trip does not arise. The 4th respondent has no control over the students and their activities outside the college premises, hence the 4th respondent does not owe any responsibility for the death of the deceased. The deceased on his own accord went to the reservoir along with other students and accidentally fell and died. Hence the writ petition is not maintainable against the 4th respondent.
5. The petitioner filed rejoinder and denied the counter allegations. The petitioner emphasizes that the Reservoir is a tourist place as notified by the Andhra Pradesh Tourism Development Corporation as well as the District Tourism Department. 5
(a) It is further submitted that even prior and subsequent to the death of G. Krishna Chaitanya some other persons fell into the reservoir and died. For instance, after the death of G. Krishna Chaitanya one Shaik Mohammad Sibanifell and died and in that connection Crime No.80/2014 was registered. Similarly, Komal Shahebu died and Crime No.153/2014 was registered. So also, Lokaee Ramu Naidu, Chilakalapudi Village died and Crime No.113/2015 was registered. So also, Akula Vijaya Kumar and Tirumala Raju died and Crime No.135/2015 was registered. One Sheku Abdul Khadar Jilani, KammaVeedhi, Vizianagaram District also fell into the reservoir and died. All these aforesaid deaths were occurred due to negligence of the Authorities. It is true, swimming and drinking of alcohol are prohibited at the reservoir. However the fact is that people were allowed as tourists to the reservoir but no precautions were taken by the respondents. Hence the respondents are very much responsible for the death of the petitioner's son and liable to pay compensation.
6. Heard Sri S. Srirama Chandra Murty, learned counsel for the petitioner and learned Government Pleader for General Administration representing respondent No.1, learned Government Pleader for Irrigation representing respondent No.2, learned Government Pleader for Revenue representing respondents No.3 and Sri G. Ram Gopal, learned counsel for respondent No.4. 6
7. Both the learned counsel reiterated their pleadings in their respective arguments. Learned counsel for the petitioner Sri S. Srirama Chandra Murty would argue that Tatipudi Reservoir is a notified tourist spot and is famous for its scenic beauty, inasmuch as, the River Gosthani takes beautiful curves between the hills whose surroundings are landscaped with lush green trees attracting nature lovers. The Andhra Pradesh Tourism Development Corporation developed the reservoir area as a tourist spot and thereby resorts have been constructed and river boating is organized. Every now and then, particularly on holidays and festive occasions, tourists throng to the reservoir area to feel and enjoy its serene and picturesque beauty. He would argue that the petitioner obtained list of tourist places in Vizianagaram District from the District Tourism and Culture Officer, Vizianagaram as per which, one of the tourist places in the District is Thatipudi Reservoir and Dam. Therefore, it is preposterous on the part of the respondents to contend that reservoir area is not notified as tourist spot and it is only a sheer reservoir meant for its maintenance as such.
8. Learned counsel would further argue that since there is no demur that the reservoir area is a tourist place, heavy responsibility casts on the shoulders of the respondents to take all the necessary and relevant precautions to see that no inconvenience or danger is caused to the tourists. Since the reservoir is a place prone for accidental drowning of the tourists, the respondent authorities must always be 7 armed with sufficient number of boats, life jackets, oxygen cylinders, ropes, search lights and expert divers etc., to meet any untoward contingency. However, the respondents have not provided any of the aforesaid essential materials except displaying some caution boards that swimming, bathing, consuming alcohol, involving in anti-social activities are prohibited. These cautions may help to some extent to caution the tourists but they will be of no use in case of any accident. Learned counsel would thus argue that when the young son of the petitioner accidentally fell into the reservoir and drowned, there were no rescue teams to immediately plunge into the action to save the ill- fated boy. Had the respondents taken minimum precautions, the boy would have certainly survived. Therefore respondents 1 to 3 are accountable for the death of the boy since the sheer abdication of their legitimate duties resulted in his death and hence they are liable to pay compensation.
9. The 4th respondent is concerned, he would argue, the college authorities should have sent a responsible officer along with the students to properly guide and control them and see that their pleasure trip went on smoothly. Merely because the petitioner's son was a day-scholar, the 4th respondent cannot repudiate its responsibility towards the deceased after the college hours. Therefore, the 4th respondent is equally liable to pay compensation. To buttress his argument, he relied upon K. Veeraraghavan v. The Secretary to 8 Government1 and M.S. Grewal v. Deep Chand Sood2. He thus prayed to allow the writ petition.
10. Per contra, learned Government Pleader for Irrigation argued that the reservoir, though allowed as a tourist place, however, predominantly is a restricted area mainly meant for reservoir oriented operations. Therefore, the people who visit the reservoir must observe certain self-precautions and scrupulously follow the warning boards flanked at reservoir. He would argue that the irrigation authorities have fixed warning boards in the premises of reservoir i.e., (1) Trespassers will be prosecuted (2) Swimming is prohibited in the reservoir and (3) Drinking of alcohol is prohibited in the premises of reservoir etc. Besides, barricading and fencing was put up in the surroundings of the reservoir since inception. Therefore, there is no dearth of precautions on the part of the authorities as alleged by the petitioner. The deceased accidentally slipped and drowned in the reservoir for which respondents cannot be blamed. Finally, he would argue that the Tourism Department is also a necessary party and the writ petition is not maintainable for non-arraying the necessary party. He further argued that the incident was occurred on 08.01.2009 and the writ petition was filed belatedly in the year 2012 and therefore the writ petition is barred by limitation.
11. Sri G. Ram Gopal, learned counsel for the 4th respondent argued that the college of the deceased is no way concerned with his 1 MANU/TN/0622/2014 = (2014)5 MLJ 479 2 MANU/SC/0506/2001 = AIR 2002 SC 3660 9 death, for, the deceased was only a day-scholar and the pleasure trip was arranged by the students themselves but not by the college authorities. Therefore, the college authorities are not at all concerned with the pleasure trip and the question of taking precautionary measures like sending a responsible officer along with the students does not arise. Learned counsel vehemently argued that the petitioner miserably failed to establish the negligence on the part of the 4th respondent. On the other hand, the 4th respondent was unnecessarily roped in the writ petition. He thus prayed to dismiss the writ petition.
12. The points for consideration are:
(1) Whether the Thatipudi Reservoir is only meant for reservoir operations or it is also declared as a tourist place?
(2) If the said Reservoir area is declared as a tourist place, whether the relevant standard operative procedures are meticulously followed by the concerned authorities to ensure the safety and security of the visitors / tourists?
(3) If point No.2 is held in negative, whether the respondents are guilty of contributory negligence for the accidental death of deceased by drowning in the reservoir?
(4) Whether the compensation can be awarded by the Court under the public law domain while exercising writ jurisdiction?10 13. Point Nos.1 to 3
(a) These three points are intertwined and hence taken up together. It is not in dispute that Thatipudi Reservoir was built across Gosthani river in the Gantyada Mandal, Vizianagaram District to supply drinking water to Visakhapatnam City and irrigate lands in some Mandals in Vizianagaram District. The Thatipudi Dam was built in the year 1963-1968. While so, it is a further admitted fact that one G. Krishna Chaitanya, aged 20 years who was studying 3rd year B.E in Electronics and Communications in the 4th respondent Engineering College at Visakhapatnam went on pleasure trip along with other students on 08.01.2009 and accidentally fell in the reservoir and drowned and died instantaneously. The petitioner is the father of the deceased boy who lodged a report with the police of Gantyada PS who registered a case in FIR No.4/2009 under Section 174 of Cr.P.C (death due to accidental drowning in reservoir). The copy of the final report filed along with the material papers by the petitioner would show that on knowing about the drowning of his son through his friend over phone, the petitioner along with his relatives rushed to the reservoir and searched for the boy but could not trace him as the light was faded out. On the morning of 09.01.2009, the dead body of his son was found floating on the reservoir waters. Thereafter he gave report to the police. On examination of some of the students who visited reservoir along with deceased and recording their version to the effect that while all of them were enjoying the reservoir atmosphere, deceased accidentally dropped into the reservoir and in 11 spite of their best efforts they could not rescue him and also basing on the opinion of the postmortem Doctor that the deceased died of cardio respiratory arrest due to antemortem drowning, the Investigating Officer concluded that the death of deceased was due to accident and there was no foul play to suspect anybody and accordingly filed final report dropping the action.
(b)Be that it may, the petitioner came up with the writ petition on the plea that the Thatipudi reservoir is one of the famous tourist spots and respondents 1 to 3 have the responsibility to maintain the reservoir with all protective facilities for the safety of the visitors.
However, they grossly failed to take necessary measures like constructing protective fence around the tank, establishing protective force like expert divers and providing emergency kits etc., and therefore respondents 1 to 3 are liable for the untimely death of his son. He also blamed the 4th respondent institute for not deputing one of the responsible officers along with the students to guide and control them during their pleasure trip to the reservoir. He thus claimed compensation of Rs.25 lakhs against the respondents. The respondents 1 and 3 have not filed any counter but the 2nd respondent filed counter refuting the claim of the petitioner on the main contention that reservoir is not a tourist place and it is a restricted area and people who visit the said place shall take their own precautions and also follow the instructions and warnings put up at the reservoir. 12 Despite, the deceased died accidentally and none of the respondents is responsible for it.
(c) The 4th respondent contends that the deceased was only a day-scholar and used to leave the college premises after college hours and therefore the college authorities have had no control over him after college hours. The pleasure trip to reservoir was also not arranged by the college authorities but by the students themselves. Hence the question of taking precautions and deputing a responsible officer along with students to the pleasure trip does not arise.
(d) Since the very nature of the reservoir as a tourist place is denied in the counter of the 2nd respondent, in order to establish the said fact, the petitioner obtained relevant information from the District Tourism and Culture Officer, Vizianagaram and filed as additional material papers into the Court on 04.08.2021. In his letter vide RC No.07/2021/DTCO, dated 03.08.2021, Sri P.N.V. Lakshminarayana, District Tourism & Culture Officer, Vizianagaram addressed to the petitioner that there are 9 tourism places in the Vizianagaram District among which the 3rd one is the Thatipudi Reservoir and Dam. Added to it, the Vizianagaram District Website hosted by the Government of Andhra Pradesh contains the catalogued information on important facts relating to the Vizianagaram District. One of the captioned information is "Tourism" which contains some sub-headings. Under the sub-heading "Cultural Tourism Information" it is mentioned about different tourist spots in the District with their photos and synopsis. One of the tourist spots is mentioned as "Thatipudi Reservoir -The 13 jewel of Vizianagaram, Gantyada Mandal". Since the aforesaid information is exhibited in the Andhra Pradesh Government's official website, in my considered view, judicial notice of the said fact can be taken. Therefore, from the above, there can be no demure that the Thatipudi Reservoir is a notified tourist place.
(e) When the reservoir is held to be a tourist place, as rightly contended by the petitioner, the State Authorities, particularly the 3rd respondent in whose jurisdictional control the reservoir is located, shall take all relevant security measures. Since the accidental falling and drowning of the tourists is a likely event, the respondents shall be armed with all fire-fighting equipment such as rescue boats, oxygen cylinders, swimming tubes, life jackets, ropes, search lights, first-aid medical kits and also the expert divers to meet the emergency situations. The authorities are also required to close the vulnerable places of the reservoir with barricades and fencing to prevent the tourists from knowingly or unknowingly enter the deep waters of the reservoir. The hooters of the security guards are expected to be arranged at the visitors' loitering areas. However, it is the poignant argument of learned counsel for the petitioner that there were absolutely no security measures to prevent the accident or to meet its aftermath at the reservoir except posting some general warnings. On the security aspect, the reaction of the respondents is woefully apathetic. While the 1st respondent who is the General Administration Department of the State and the 3rd respondent who is the District Collector of Vizianagaram did not even choose to file counters, the 2nd 14 respondent who is the Commissioner of Irrigation Department though filed counter, strangely took a plea as if the reservoir is not a tourist place at all which is palpably false. He took a further plea that the reservoir is a restricted area and the irrigation authorities arranged general warning boards in the premises of reservoir such as (i) trespasses will be prosecuted (ii) swimming and drinking of alcohol are prohibited in the premises of reservoir etc. He also took a plea that barricading and fencing are arranged in the surroundings of the reservoir since inception. Thus at the outset the plea of 2nd respondent is that despite the aforesaid general precautions, the deceased trespassed into the reservoir area and died accidentally due to his own carelessness. If the reservoir is maintained as an exclusively restricted area as pleaded by the 2nd respondent, probably the general cautions mentioned above might be some extent sufficient to warn the wayward persons who enter the reservoir area. However, the cogent material produced by the petitioner shows that the reservoir is a tourist place thrown open to the general public for their free movement. Therefore, in my considered view, the scanty and flee-bite warnings are of no avail when a buoyant tourist accidentally slipped into the reservoir while enjoying its scenic surroundings. The respondents, some of whom apart from not filing counter, did not make an effort to produce any relevant material to show that they have taken strong security measures to meet the eventualities. Therefore, I am constrained to hold that the respondents 1 to 3 are guilty of tortious liability for not taking adequate security measures at the tourist place 15 which is prone for accidents. It should be noted that a reservoir is a body of water held by a dam on a river or stream by applying civil and hydrologic engineering methods. Thus in essence, a reservoir is an artificial water storage device. When a huge water body is stored by the Government, of course for public purpose i.e., irrigation and drinking water and at the same time it notifies the reservoir area as a tourist place for its scenic beauty, the State instrumentalities will be held guilty of negligence, if they fail to take adequate security measures on the anticipation that the stored water if escapes cause damage to third party or on the anticipation that the tourists if accidentally drowned in the reservoir will die.
14. In the case of M.S. Grewal (supra 2), the Supreme Court explained the concept of negligence in the context of two school teachers failing to take proper care and allowing the students, who were on a picnic on the bank of river Beas to play in the danger zone resulting in drowning of 14 children, as follows:
"14.Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness of inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Black's Law Dictionary). Though sometimes, the word 'inadvertence' stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere 16 inadvertence. There is thus existing a differentiation between the two expressions - whereas inadvertence is a milder form of negligence, 'negligence' by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow."
15. In the case of K. Veeraraghavan (Supra 1)the deceased boy Prasanth who was studying 3rd standard in Government Middle School went to the school on 25.03.2009 and at about 12:00 PM went out of the school to attend nature's call to a pond which was about 25 feet away from the school and approximately 22 feet in depth and accidentally fell in the pond and drowned and died. His friend Vignesh also drowned and died. In that context, a learned single Judge of High Court of Madras in the W.P filed by the deceased's father for compensation held that the Head Master and Assistant Teacher who were negligent towards their duty were responsible for the incident for not taking due and adequate care and not overseeing or supervising the students and accordingly awarded compensation of Rs.5 lakhs. Learned Judge referred the decision Duraisamy v. The Executive Engineer, Operation and Maintenance, trichy3 wherein the concept of negligence was discussed to the effect that negligence is a specific tort and in any given circumstance, the failure to exercise that care which the circumstances demand, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property.
32012 (2) CWC 401 17
(a) Going by the above jurisprudence, it is evident that the respondents 1 to 3 are guilty of contributory negligence for not taking appropriate security measures and therefore they are liable to pay compensation on the strict liability principle or absolutely liability principle.
16. The principle of strict liability or absolute liability was propounded in the case of Rylands vs. Fletcher4. The facts in that case were that a mill owner employed contractors to construct a reservoir on his land to provide water to his mill. In the course of the work the contractors noticed some old shafts and passages on the land which communicated with the mines of a neighbouring owner. The contractors without blocking the shafts and passages constructed reservoir and filled it with water. In due course the water burst through the old shafts and flooded in A's mines and resulted in loss to him and his bringing the action for damages against the mill owner. In that context, fixing liability on the defendant Blackburn J., observed thus:
"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."
He further observed:
"He can excuse himself by showing that the escape was owing to the plaintiff's default or perhaps that the escape was the 4 (1868) LR 3 H.L. 330 (House of Lords) 18 consequence of vis major, or the act of God but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches."
17. The rule of strict liability or absolute liability expounded in the above decision was widely acclaimed. The pith and substance of the above decision is that if a person, for his own purpose, brings on and keeps in his property, anything, which is likely to result in causing mischief if it escapes, then such person shall bear in mind that he keeps it in his property at his peril and he will be prima facie liable for the damages which is due to the natural or anticipated consequences. Of course, the defence available to him in an action for damages is two fold: firstly, that the escape which resulted in mischief was due to the default of the plaintiff himself and secondly, that the escape was the consequence of vis major i.e. act of God.
19
18. The above decision applies with all its fours to the case on hand. As already stated supra, a water storage body was artificially constructed by the Government which is prone for causing damage to the third parties if the water gets escaped. Further, the dam and reservoir area having been declared as tourist place by the Government encouraging the public to visit the same, there is a possibility of visitors accidentally falling and drowning in the reservoir and therefore the State and its instrumentalities must take protective measures. As they failed in that regard, they will be responsible for the damages against the anticipated consequences. They cannot shore upon the exceptions mentioned in the Ryland's case (3 supra) because, but for notifying the reservoir as a tourist place the deceased might not have visited the said place and drowned.
19. Neither vis major can be an exception in the above set of facts. The mere fact that the deceased accidentally slipped into the reservoir will not automatically exonerate the respondents 1 to 3 from the liability unless they establish that they took all precautions and safety measures and in spite of it, due to the act of natural forces beyond their control the accident was occurred.
20. In Vohra Sadikbhai Rajakbhai vs. State of Gujarat5 the Supreme Court held negligence lies with the defendant. The facts in that case were that the respondent/State of Gujarat constructed and 5 MANU/SC/0591/2016 20 maintained a dam and during one monsoon season the respondent released the water from the dam which flooded the land of the plaintiffs and destroyed the plantation therein. In the resultant suit for damages the respondent contended that the water had to be released from the dam as it reached alarming level because of heavy rains and non-release would have breached the dam. The action was thus taken in public interest and it was occasioned because of the rains which was an act of God (vis major). The contention of the appellants on the other hand, was that it was sheer negligence on the part of respondents in not maintaining low level of water keeping in mind ensuing monsoon season and therefore, the damage caused to the appellants had direct nexus with the act of negligence of the respondents which could not be attributed to the act of God. The Apex Court accepted the contention of the appellant and held thus:
"Para-28 xxxx Merely by saying that the level of water in the dam increased because of monsoon rains and that the water was released in public interest cannot be treated as discharging the burden on the part of the Respondents in warding off the allegation of negligence. It is a matter of common knowledge that with advanced technology available with the Meteorological Department in the form of satellite signals etc, there is a possibility of precise prediction of the extent of rainfall in the monsoon season. In view of the principle laid down in Rylands v. Fletcher, onus was on the Respondents to discharge such a burden, and it has miserably failed to discharge the same. On that basis, we are constrained to hold that there is a negligence on the part of the Respondents which caused damage to the fields of the Appellants."21
21. Thus the respondents 1 to 3 before taking the plea of vis major should satisfy the Court that they have taken all the necessary precautions and safety measures and despite, the incident was occurred due to the act of natural elements. However, as already mentioned supra such safety measures were not taken by the respondents 1 to 3.
22. So far as respondent No.4 is concerned, I find no carelessness or negligence on its part. Admittedly the deceased was a day-scholar and after college hours, the Management will have no control over him. Further, the pleasure trip was arranged among students without the knowledge of the college authorities. Therefore, as rightly argued by Sri G. Ram Gopal, learned counsel, the question of Management of 4th respondent deputing some responsible officer along with the students does not arise.
Accordingly, point Nos. 1 to 3 are held in favour of the petitioner and against respondents 1 to 3.
23. Point No.4 Apart from pleading tortious liability, the petitioner also attributes that the State and its instrumentalities failed to protect the life of his son by taking adequate security measures and thereby they violated his fundamental right guaranteed under Article-21 of the Constitution of India. On this plea also he claims compensation. 22
24. Negligence of the instrumentalities of a State has since been established, the question then is whether the compensation can be awarded in a public law domain under writ jurisdiction. This aspect is no more res integra as the Apex Court in a catena of decisions held that while exercising the writ jurisdiction, compensation can be awarded in suitable cases against the public authorities on their failure to protect the fundamental rights of the individuals.
(a)In M. C. Mehta v. Union of India6, the Apex Court observed that the power of the Court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. It must therefore be held that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can, in that event, seek remedial assistance under Article 32. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. Explaining the words "in appropriate cases" Apex Court made clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the Court in a petition under Article 32. It further observed that if a fact analysis of the cases is made where compensation has been awarded by the Apex Court, it will be known that in all those cases, the fact of infringement was patent and inconvertible, the violation was gross and its magnitude was such as 6 MANU/SC/0092/1986 = [1987]1SCR819 23 to shock the conscience of the Court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the Civil Court for claiming compensation.
(b)In the case of Nilabati Behera v. State of Orissa7, in the matter of providing compensation to the writ petitioner whose son suffered custodial death, the Apex Court took upon the task to explain the principle on which the liability of a State arises for payment of compensation and most importantly, the distinction between public law liability and the liability in private law for payment of compensation in an action of tort. In expatiation, it observed that compensation in a proceedings under Article 32 or 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 defense in private law in an action based on tort. In this regard, the Apex Court also referred Article 9(5) of the International Covenant on Civil and Political Rights 1966 which reads thus:
"anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation"
It was thus held that in case of contravention of fundamental right, monitory compensation could be awarded.
(c) In Common Cause A Registered Society v. Union of India (UOI)8 the Apex Court observed thus:
7
AIR 1993 SC 1960 8 AIR 1999 SC 2979 = MANU/SC/0437/1999 24 "40. In a broad sense, therefore, it may be said that those branches of law which deal with the rights/duties and privileges of the public authorities and their relationship with the individual citizens of the State, pertain to "public law," such as constitutional and Administrative Law, in contradistinction to "private law" fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another.
45. In exercise of jurisdiction under Article 32 of the Constitution, this Court has awarded compensation to the petitioners who suffered personal injuries at the hands of the officers of the Government and the causing of injuries which amounted to tortious act was compensated by this Court. In Rudul Sah v. State of Bihar MANU/SC/0380/1983 : 1983CriLJ1644 , a three-Judge Bench of this Court awarded compensation (Rs. 30,000/-) for illegal detention. In Bhim Singh v. State of Jammu and Kashmir MANU/SC/0064/1985 :
1986CriLJ192 , a sum of Rs. 50,000/- was awarded to the petitioner for the illegal detention of the petitioner by the State authorities. The compensation which was directed to be paid on account of police atrocities was the subject-matter of several cases before this Court. A few of them are People's Union for Democratic Rights v. State of Bihar MANU/SC/0104/1986 : 1987CriLJ528 ; People's Union for Democratic Rights Thru. Its Secy. v. Police Commissioner Delhi Police Headquarters MANU/SC/0409/1989 : (1989)4SCC730 ; Saheli, a Women's Resources center v. Commr. of Police, Delhi MANU/SC/0478/1989 : AIR1990SC513 ; Arvinder Singh Bagga v. State of U.P. MANU/SC/0025/1995 : AIR1995SC117 ; P. Rathinam v. Union of India ; In Re: Death of Sawinder Singh Grover : (1992) 6 JT (SC) 271 : MANU/SC/0961/1994 : 1992 (3) Scale 34; Inder Singh v.
State of Punjab MANU/SC/0380/1995 : 1995CriLJ3235 ; D. K. Basu v. State of West Bengal MANU/SC/0157/1997 : 1997CriLJ743 ; Mrs. Pritam Kaur Baryar v. State of Punjab (1996) 7 Scale 11 and Paramjit Kaur v. State of Punjab MANU/SC/1335/1996 : (1996)7SCC20 .
46. In cases relating to custodial deaths, this court has awarded compensation in Neelabati Behera v. State of Orissa MANU/SC/0307/1993 : 1993CriLJ2899 ; State of M.P. v. Shyam Sunder Trivedi MANU/SC/0722/1995 : (1995)4SCC262 ; People's Union for Civil Liberties v. Union of India MANU/SC/0274/1997 : 25
AIR1997SC1203 and Kaushalya v. State of Punjab MANU/SC/1616/1996 : (1997)ILLJ135SC.
47. For medical negligence, compensation was awarded by this Court in Supreme Court Legal Aid Committee v. State of Bihar MANU/SC/0604/1991 : (1991)3SCC482 ; Dr. Jacob George v. State of Kerala MANU/SC/0684/1994 : 1994CriLJ3851 and Paschim Banga Khet Mazdoor Samity v. State of West Bengal MANU/SC/0611/1996 : AIR1996SC2426.
48. Damages were also awarded by this Court in Mrs. Manju Bhatia v. N.D.M.C. MANU/SC/1235/1997 : (1997)6SCC370.
54. Thus, where public functionaries are involved and matter relates to the violation of Fundamental Rights or the enforcement of public duties etc., the remedy would lie', at the option of the petitioner, under the public law notwithstanding that damages are also claimed in those proceedings."
(d) In the case of The Chairman, Railway Board v.
Chandrima Das9 while upholding the judgment of the High Court of Kolkata awarding compensation to the victim lady of Bangladesh who was subjected to rape committed by some railway employees in the building (Rail Yatri Nivas), the Apex Court rejected the plea of appellant that the victim ought to have approached the Court in the realm of private law for compensation and held that such contention cannot be accepted inasmuch as, the public functionaries were involved in the offence and the matter relates to violation of fundamental rights or the enforcement of public duties. 9 AIR 2000 SC 988 26
(e)In the case of Dilip Sharma v. Sravan Dogra10 the High Court of Himachal Pradesh granted compensation against the State Authorities and others for the unfortunate death of 24 students of Engineering College of Hyderabad due to drowning in Beas river.
25. The above jurisprudence tells us that in case of breach of fundamental rights committed by the public authorities in deviation of their duty, the constitutional Courts can award compensation to the victims. In the instant case as already discussed supra, the respondent authorities miserably failed to provide essential security services to safeguard the lifes of the tourists. Their abdication of duty resulted in violation of fundamental right to life guaranteed under Article-21 of the Constitution of India. Hence, they are liable to pay compensation to the petitioner. This point is answered accordingly.
26. It should be noted that the 2nd respondent in his counter took a plea that the writ petition is barred by limitation as it was filed three years after the accidental death of the deceased. During arguments learned Government Pleader has not cited any relevant provisions of a statute under which the proceedings are barred by limitation. However, since the said plea relates to question of law, this Court explored into the aspect of limitation. It is trite law that general law of limitation has no application to the writ proceedings inasmuch as the Limitation Act, 1963 applies to suits and other proceedings such as appeals and applications but not the constitutional remedies like 10 LAWS(HPH)-2016-1-3/LAWS(HPH)-2016-1-3 27 writs. However, that does not mean that the Constitutional Courts while exercising the writ jurisdiction will be totally oblivious of time laches and delays in filing the writ petitions. A number of judicial pronouncements have been made by the Apex Court to decide whether a writ petition was filed within reasonable time or with inordinate delay. The litmus test is, if on same set of facts a civil suit is barred, it is indicative of writ is filed with enormous delay and the Court may refuse the relief unless the petitioner submits cogent reason for the delay. In Tilokchand Motichand & Ors v. H.B. Munshi11, Justice M. Hidayatullah, Chief Justice, heading 5 Judges Bench and expressing the majority view observed thus:
"11. therefore, the question is one of discretion for this Court to follow from case to case. There is no upper limit and there is no lower limit. A case may be brought within Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are when and how the delay arose."
27. The said proposition of law has again been reiterated in Shri Vallabh Glass Works Ltd v. Union of India12. It is observed thus:
"It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in addition to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which 11 1970 SC 898 12 AIR 1984 SC 971 28 would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the Limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches "the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc."
(emphasis supplied)
28. It is true that in some decisions a view was expressed that if on same caution of action suit were to be barred, writ cannot be maintained for undue delay. However, the view expressed in Tilok Chand Motichand's case (11 supra) was by five Judges Bench, I am inclined to follow the same. Hence, it has now to be seen whether the petitioner has shown sufficient cause for filing the writ petition belatedly, three years after the death of his son.
29
29. Now coming to the facts, the death of deceased was occurred on 08.01.2009 and writ petition was filed on 20.03.2012. If a civil suit is filed by the petitioner for damages, following Article 113 of Limitation Act, suit has to be filed within three years when the right to sue accrues. However petitioner pleaded in the writ petition is that due to sudden demise of his son his health was spoiled for which he had to undergo medical treatment of different forms for a couple of years and due to all such predicaments, their family was shocked and depressed for a long period hence the delay was neither willful nor wanton. In the counter the respondents did not traverse the said plea. Even otherwise, the wretched plight of the petitioner and his family members can be understood as the young son and future supporter died all of a sudden leaving the entire family engulfed in the despondency. Therefore, in my consideration filing of the writ petition few months after three years cannot be regarded as an inordinate delay. As noted by Hon'ble Apex Court, the aspect of delay has to be considered case wise in the light of the surrounding facts. Therefore, I am unable to countenance the argument of the respondents in this regard.
30. It is further contended by respondents that in the light of facts, the A.P. State Tourism Development Corporation is also a necessary party. I find no much force in it, for, the Thatipudi Reservoir comes under the jurisdiction of District Tourism and Culture Officer and 30 District Collector, Vizianagaram and the later, who is the District Head is a party respondent in the writ.
31. Coming to the quantum of compensation, admittedly the deceased was aged about 20 years and studying B.E. Electronics and Communication Engineering in the 4th respondent college. Hence, compensation is assessed by adopting multiplier method which is regarded as a scientific one and employed regularly in computation of compensation in Motor Accident Cases. The deceased would have earned at least Rs.8,000/- per month even if he got a mediocre job.Going by the dictum in Sarla Varma v. Delhi Transport Corporation13, 50% has to be deducted towards personal expenses of the deceased as he was a bachelor. So his net monthly contribution to family is Rs.4,000/- and annual contribution will be Rs.48,000/-. For his age, multiplier of 15 will be an appropriate one. Thus, the total contribution of the deceased will be Rs.7,20,000/- (48,000X15). Therefore, the petitioner deserves said amount as compensation against respondent 1 to 3.
32. Before parting, it should be noted by all concerned that a pleasure trip to a notified tourist place should yield enchantment, education and rejuvenation of body and mind etc, but a pleasure trip must not turn into a pain trip. In that view, the Andhra Pradesh Tourism Development Corporation is directed to expeditiously 13 AIR 2009 SC 3104 = MANU/SC0606/2009 31 implement all the necessary precautionary measures at the notified tourist places in the State to guard the safety and security of the visiting tourists.
33. In the result, this writ petition is allowed and the respondents 1 to 3 are directed to pay compensation of Rs.7,20,000/- (Rupees seven lakhs twenty thousand only) to the petitioner within two months from the date of receipt of copy of this order, failing which they shall be liable to pay the compensation along with interest @ 6% p.a from the date of writ till realization. Writ Petition is dismissed against respondent No.4. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 17.06.2022 Note: The Registry shall forthwith circulate a copy of this order to the Andhra Pradesh Tourism Development Corporation for taking necessary steps.
(B/o) Krk 32 HON'BLE SRI JUSTICE U.DURGA PRASAD RAO Writ Petition No.8538 of 2012 17th June, 2022 krk