Sikkim High Court
Zangpo Sherpa vs State Of Sikkim And Ors on 1 July, 2016
Equivalent citations: AIR 2016 SIKKIM 17
Author: Meenakshi Madan Rai
Bench: Chief Justice, Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 1st JULY, 2016
------------------------------------------------------------------------------------------------
D.B. : HON'BLE MR. JUSTICE SUNIL KUMAR SINHA, CHIEF JUSTICE
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
------------------------------------------------------------------------------------------------
WP(PIL) No.25 of 2014
Petitioner : Shri Zangpo Sherpa,
Legal Aid Counsel,
Opposite District Court,
Above State Bank of Sikkim,
Sichey,
Gangtok.
versus
Respondents : 1. The Government of Sikkim
through the Chief Secretary,
Tashiling Secretariat,
Gangtok,
East Sikkim.
2. The District Magistrate,
East District,
Gangtok,
Sikkim.
3. National Hydroelectric Power Corporation Limited
(Wrongly written as "National Hydro-Electric Project Corporation"
in the Cause Title of the Writ Petition)
through the Managing Director,
Teesta Stage V,
Balwatar, Singtam,
East Sikkim.
Petition under Article 226 of
the Constitution of India
WP(PIL) No.25 of 2014 2
Zangpo Sherpa vs. State of Sikkim and Others
--------------------------------------------------------------------------------------------------------
Appearance
Mr. Zangpo Sherpa (Advocate/Legal Aid Counsel) in person, the
Petitioner.
Mr. J. B. Pradhan, Additional Advocate General with Mr. S. K. Chettri
and Mrs. Pollin Rai, Assistant Government Advocates for the State-
Respondents No.1 and 2.
Mr. A. K. Upadhyaya, Senior Advocate with Ms. Binita Chhetri and
Ms. Aruna Chhetri, Advocates for the Respondent No.3.
--------------------------------------------------------------------------------------------------------
JUDGMENT
Following Judgment of the Court was delivered by Meenakshi Madan Rai, J.
1. The genesis of this Petition under Article 226 of the Constitution of India lies in the tragic death of an eleven year old school going girl who went swimming in the river Teesta in the afternoon of 18- 04-2014. The Dam upstream, reportedly released water suddenly into the river, resulting in a swollen river, rendering the child helpless and unable to cope, as a consequence of which she drowned.
2. The matter came to be reported in a local English Daily of Gangtok, East Sikkim, on 19-04-2014, which prompted the then Executive Chairman, Sikkim State Legal Services Authority (for short "SSLSA"), to issue a letter giving directions to Shri Zangpo Sherpa, a Panel Advocate of the SSLSA, to assist the aggrieved family with regard to grant of compensation, redressal of grievances, and if necessary, to WP(PIL) No.25 of 2014 3 Zangpo Sherpa vs. State of Sikkim and Others file a Public Interest Litigation (for short "PIL") in this Court against the negligence of the Respondents, more especially, Respondent No.3, the National Hydroelectric Power Corporation (for short "NHPC"), Teesta Stage (V), which was responsible for construction of the Dam. Complying with the directions contained in the letter, the Learned Advocate being a public-spirited person took up cudgels on behalf of the public and filed the instant Writ Petition, becoming the Petitioner himself.
3. The Respondents No.1 and 2 are the Government of Sikkim and its agencies, while Respondent No.3 the NHPC is a Government Agency operating the Hydro-Electric Power Project (for short "HEPP"), Teesta Stage V, which is in question and other HEPPs in the State of Sikkim. The claim of the Petitioner is that the Respondents No.1 and 2 are responsible for providing safety to the public at large and are to ensure that operations of Projects such as those run by Respondent No.3, which are hazardous and inherently dangerous are carried out in a proper manner and do not endanger life and property of people living near the Dam site and downstream of the Dam. The grievance of the Petitioner is that the incident on 18-04-2014 could have been avoided but for the callous attitude of the Respondent No.3, which in the first instance ought to have had safety mechanisms and protocol in place, for release of waters from the Dam. That, the Respondent No.3 has failed to create public awareness by dissemination of information regarding the various timings of the release of the Dam waters or to WP(PIL) No.25 of 2014 4 Zangpo Sherpa vs. State of Sikkim and Others install machines such as sirens for advance warning to the public living near the Dam, the banks and downstream. It is alleged that there are times when the water released from the Dam is at its minimum, leading children to believe that they can walk or swim across the river. At other times however the sudden release of the Dam waters results in a sudden increase in the volume of the river, without prior notice which thereby leads to loss of life and property of people. That, the Respondents No.1 and 2 for their part have failed to either implement or direct the Respondent No.3 to provide timely and regular public warning, through sirens and other means at least one hour prior to release of the waters and thereafter at regular intervals of fifteen minutes. Thus, the unregulated release of water has resulted in violation of the public's right to life guaranteed under Article 21 of the Constitution of India, apart from which the Respondents have failed to compensate the family of the child who lost her life, hence, the prayer for the following reliefs;
a. direct the respondents to take proper steps for inducting much required facilities, instruments, medical experts and technicians for seeing that no threat or danger to life is caused by the operation of the Hydro Projects in the State of Sikkim run by them within a reasonable time, i.e. within 2 months, b. to appoint a commissioner from medical, environment, technical expert, along with public spirited person to find the actual fact and status, regarding mechanism, public warning system and other facilities, set up by the Hydro Projects Company for forewarning the people living downstream of the dam about the release of the dam water, WP(PIL) No.25 of 2014 5 Zangpo Sherpa vs. State of Sikkim and Others c. direct the respondent to take proper steps for overcoming the shortcomings and required steps to be undertaken to overcome the shortcoming reported by the commissioner appointed by the Hon'ble Court within a short period of time, d. Pass a order directing the hydro projects company to install such scientific and technical instruments which can be used for the purpose for ensuring the safety of dam and the life and property of people downstream, e. Pass an order directing the respondent No.1 and 2 to prepare an emergency action plan setting out procedures to be followed for the protection of persons and property upstream or downstream of the dam in the event of an actual or imminent dam failure or to mitigate the effects of the disaster, f. Pass an order to the state respondent to implement a law for seeing that the legislation like The Public Liability Insurance Act, 1991 is laid down in regard to the safety of the people from the ill effects which may arise due to the operation of the dams in the State of Sikkim, g. Pass an order directing the State, respondent to collect a fixed deposit of Rs. 1 Crore from the mega hydel project company and 50 lakhs from medium hydel project company and 25 lakhs rupees from the small hydel project operators/company to be deposited in Special Account under the Department of Social Welfare, from which compensation is to be released to the person affected by the operation of the hydro projects, further the state may be given liberty to collect more fund in future, h. Pass a order directing the respondent No.3 (NHPC) to compensate the family of Late Radhika Gurung with an amount of rupees ten lakh or more, i. Pass an order directing the State Government to file a criminal case against the officials of NHPC who were concerned with the operation of the warning system set up by the NHPC, j. Pass an interim order directing the respondent No 1 and 2 to release an amount of Rs.50,000/- to the family of Lt. Rakhika Gurung, as an interim measure, k. Pass an interim order directing the respondent No. 3 to make a payment of Rs.50,000/- Lt. Radhika Gurung, as interim measure for the compensation and WP(PIL) No.25 of 2014 6 Zangpo Sherpa vs. State of Sikkim and Others l. pass such other or further order as this Hon'ble Court may deem fit, just and proper to protect the interest of the petitioner and the public at large.
4. In a joint affidavit, the Respondents No.1 and 2 responded that subsequent to the incident a Meeting of the Officers of the Respondent No.3, Sub-Inspector of Police, Rangpo and Forest Guard of the Forest Check Post, Rangpo, was held with the Additional District Magistrate (ADM), East and other Officers of the Respondent No.2 on 28-04-2014 and 30-04-2014, where it transpired that there was no specific procedure or protocol in place for release of water from the Dam. The Respondent No.3 was following the Draft Reservoir Operation Manual issued by the NHPC Headquarters at Faridabad, pertaining to prior warning to the public before release of waters. On 16-06-2014, the ADM, East, submitted a Report of the outcome of the meeting to the District Magistrate, East. That, the Manual Log of the NHPC of 18-04-2014 reflected that the siren had been hooted and water released in two spells being 8 a.m. to 2.45 p.m. and 5.15 p.m. to 12 noon. On 05-05-2014, a surprise inspection was conducted to check whether the siren installed by the Respondent No.3 was functional and it was found that for the past month there had been no hooting of siren. Subsequent to the incident in question, a new siren was installed at Singtam, which was functional but awareness of the hooting of the siren was lacking amongst the public, besides which, beyond 2 kms. from the place of installation, the siren was inaudible on the date of incident and inspection. A report dated 05-05-2014 was also filed. It is WP(PIL) No.25 of 2014 7 Zangpo Sherpa vs. State of Sikkim and Others the Respondent's case that on 29-04-2014 the manual siren at Mamring Forest Check Post was converted to Global System for Mobile communication (for short "GSM") with UPS back up and after a joint inspection of Officials of Respondents No.1, 2 and 3 on 01-07-2014, new sirens were installed at Lower Samdung covering a range of 5 kms., Makha with 2 kms. range, Bardang Army area 2 kms. range and SMIT, Rangpo 2 kms. range. It is conceded that the Respondent No.3 and other HEPPs have to implement various safety measures for release of the waters from the Dam and create public awareness of the Dam for such release, which they have failed to provide.
5. Respondent No.3 asserted that it is a very responsible Organisation of national importance and is well aware of the safety issues of the public for maintaining proper mechanism of forewarning public, before release of water, which is discharged only after taking all safety measures, such as, blowing of siren for fifteen minutes before releasing water or generating units, installed at five different locations, being Dikchu, Makha, Balutar, Singtam and Rangpo which were in operation before 18-04-2014. It is averred that on 18-04-2014 the siren was blown before starting one Unit of the Power House at 8.01 a.m., the period being a lean period with less inflow of water, therefore, generation does not continue throughout the day, while the drowning took place in the afternoon as per the local newspaper. From 8 a.m. to 2.41 p.m. the water flowing into the river was on account of only one Unit of the Power House being in operation as is evident from the WP(PIL) No.25 of 2014 8 Zangpo Sherpa vs. State of Sikkim and Others generation chart (Annexure R3), thus there was no question of sudden increase of water in the river at the time of the incident. That, if directed by this Court, Police Stations at different locations near the riverbed shall be provided with normal sirens for use in the event of failure of GSM. According to Respondent No.3 the local people are educated about the risks involved in going into the riverbed by publication of caution notices in local newspapers and installation of Sign Boards at different locations. Fencing has also been constructed along the river in populated and important places within the area to which the Project extends. The provisions as stipulated by the Environmental Impact Assessment (EIA) and Environment Management Plan (EMP) Reports of the Project are strictly adhered to and the Respondent No.3 was in no way negligent and, therefore, not liable to pay any compensation, hence the Writ Petition be dismissed.
6. On 26-02-2015, the Respondents No.1 and 2 put forth the submissions that the Government is likely to formulate a Policy with regard to the subject-matter of the PIL to address the grievances and an adjournment was sought and granted. On 29-06-2015, verbal submissions were made by Respondents No.1 and 2 that guidelines for Public Safety at HEPPs have been framed and notified, vide Notification No.26/HOME/2015 dated 22-06-2015 (Annexure P1, page 130 of the paper book). On a query by this Court about the steps taken on the death of the victim on 18-04-2014, the Respondents No.1 and 2 vide an affidavit filed on 04-07-2015 submitted that no compensation had been paid to WP(PIL) No.25 of 2014 9 Zangpo Sherpa vs. State of Sikkim and Others the family of the minor victim by the Respondent No.2, duly confirmed by the Respondent No.3 as well. The affidavit also informed that in pursuance to Memo No.709/ADC(E)/DC dated 28-06-2015 issued to various HEPPs (being directives on precautionary measures to be taken by HEPPs in East Sikkim, with regard to release of water and warning procedure for the public living downstream along the riverbed), the HEPPs namely, Madhya Bharat Power Corporation Limited, NHPC, Gati Infrastructure Private Limited, LANCO Infratech Limited, Sneha Kinetic Power Project Pvt. Ltd., had sent their Compliance Reports. In compliance of the directions of this Court dated 06-07-2015, the Respondents No.1 and 2, by an affidavit dated 28-07-2015, submitted that GD Entry No.202 at 14.30 hours was made at Singtam Police Station. On 21-04-2014 at around 13.20 hours, Temi Police Station, under whose jurisdiction the parents of the deceased were residing, received WT Message from Station House Officer, Singtam P.S. stating that the dead body of the victim Radhika Gurung, daughter of Ganga Bahadur Gurung was recovered from the river Teesta near ATTC (Bardang). On the basis of the said information, Temi P.S. UD Case No.05(4)14 dated 21-04-2014 under Section 174 of the Code of Criminal Procedure, 1973, was registered and endorsed to SI S. K. Chettri for investigation. The I.O. after completing the investigation submitted his Report, wherein it was recorded that the victim, Radhika Gurung, had of her own accord gone for a picnic with her friends and was swimming in the river Teesta when water was released from Dikchu Dam site, which increased the water WP(PIL) No.25 of 2014 10 Zangpo Sherpa vs. State of Sikkim and Others level. She failed to notice this and was suddenly swept away by the river to about one and half kilometers, to the ATTC College, Bardang. He concludes by saying that no one could be held responsible for the accident.
7. This Court now is required to look into −
(i) Whether there are sufficient materials against Respondent No.3 to show that it was negligent?
(ii) Whether liability can be fastened upon Respondent No.3 for non-compliance of procedure and failure to disseminate awareness of the release of the waters from the Dam.
8. While addressing the first question, we may briefly refer to the arguments advanced by the Petitioner who expostulated that on account of the negligence of Respondent No.3 the family lost their daughter, there being no mechanism of sirens in place to warn local people and villagers in the area of the release of water, besides lack of dissemination of awareness to all concerned. The emphasis of the HEPPs are on the protection of their Dams with least concern about safety measures for the public or loss of lives, which is evident from the fact that the Respondent No.3 follows the Draft Regulation Rules for Teesta HE Project Reservoir (Stage V), which deals with the smooth running protection of and the longevity of the Dam. That, although there was a Draft Reservoir Operational Manual (Page 151 of the Case Records) but the Report of the Respondent No.2 and other Officers WP(PIL) No.25 of 2014 11 Zangpo Sherpa vs. State of Sikkim and Others indicate that these were not being followed, apart from which although this document points to existence of sirens installed but nothing was working on the ground. It is his specific argument that he has the locus to file the Petition as directed by the SSLSA which is a Public Body, the reliefs sought being in public interest. In the second limb of his arguments, he prays for directions in terms of the prayers made by him in the Writ Petition and emphasises on creation of a Corpus of funds from all HEPPs operating in Sikkim, depending on their capacities, to tide over the difficulties of families who suffer from the acts of the Respondent No.3. While fortifying his submissions reliance was placed on the decision of the Hon'ble Himachal Pradesh High Court in Court on its own motion vs. State of Himachal Pradesh and Others in CWPIL No.7 of 2014 decided on 02-01-2016 wherein reliance was placed on the decisions of M. S. Grewal and Another vs. Deep Chand Sood and Others :
(2001) 8 SCC 151, Deep Chand Sood and Others vs. State of H.P. and Others : 1996 (2) Sim L.C. 332, Municipal Corporation of Delhi, Delhi vs. Uphaar Tragedy Victims Association and Others : (2011) 14 SCC 481 and a plethora of other cases. Reliance was also placed on the decision of the Hon'ble Apex Court in Delhi Jal Board vs. National Campaign for Dignity and Rights of Sewerage and Allied Workers and Others : (2011) 8 SCC 568.
9. In response, Mr. J. B. Pradhan, Learned Additional Advocate General, submitted that vide Notification dated 22-06-2015 comprehensive guidelines have been issued by the Respondent No.1 for public safety at Hydro Power Projects. That the Dam Safety Bill No.108 WP(PIL) No.25 of 2014 12 Zangpo Sherpa vs. State of Sikkim and Others of 2010 was to be introduced in the Lok Sabha, however, its fate hitherto is unknown. That, the decision of the Hon'ble Apex Court in Delhi Jal Board (supra) relied on by the Petitioner was in view of the fact that there was a vacuum with no guidelines were in place, however, in the instant matter vide Notification dated 22-06-2015, guidelines have now been issued which are comprehensive. He concedes to the argument of the Petitioner that a Corpus can be created for emergent situations and to tide over the immediate requirements arising out of any loss. He reiterates the submissions made in Paragraph 5 of the Counter-Affidavit conceding lack of protocol for release of water from the Dam. Referring to the Inspection Report of the Officials of the Respondent No.2, it was submitted that this inspection was carried out on 05-05-2014 and the Report speaks for itself. Briefly alluding to it, it was submitted that people living near the area of the incident were interviewed and it transpired that at Singtam Project, the siren machine is located at the top of a two-storied Forest Building and the room was locked and no one appeared to be on duty at 10.15 a.m. on the date of inspection. There was no sign of hoarding informing the public of the siren and do's and don'ts when the siren is blown. The people in the area informed that after the incident within 2/3 days the Respondent No.3 had installed a new siren which was functional. Another person of the area informed that the siren was not functioning before the incident. Reliance was also placed on the Inquiry Report dated 16-06- 2014.
WP(PIL) No.25 of 2014 13
Zangpo Sherpa vs. State of Sikkim and Others
10. The Learned Senior Counsel for Respondent No.3 contended that the Writ Petition has not been filed by way of a PIL but by claiming individual relief. The newspaper which published the news has sensationalized the incident with wrong facts and figures when to the contrary, the Log Book of the water and generation of power indicate that there was no variation of load from 8 a.m. to 2 p.m., in other words, the level of water in the river was constant as there was no sudden release of water from the Dam at the time of incident. The guidelines were notified by the Respondents No.1 and 2 only after the incident and, therefore, not applicable to the present case. The Police Report indicates that the matter was one of unnatural death, therefore, the question of victim's compensation does not arise. With regard to the prayer for Public Liability Insurance Act, 1991 and its implementation, it was specified that for fatal accidents the relief would be Rs.25,000/- (Rupees twenty five thousand) only, per person in addition to reimbursement of medical expenses, if any, incurred on the victim up to a maximum of Rs.12,500/- (Rupees twelve thousand) only, consequently Rs.10,00,000/- (Rupees ten lakhs) only, by way of compensation to the bereaved family does not arise. Rebutting the reliance of the Petitioner in the Uphaar Cinema case (supra), it was held that in that case there was violation of norms in respect of construction, maintenance thereof and of public safety whereas there has been no violation of statutory duties in the case at hand. That although reliance has been placed on Himachal Pradesh case (supra) the enquiry officer WP(PIL) No.25 of 2014 14 Zangpo Sherpa vs. State of Sikkim and Others therein found fault with the Board Authorities, the college and the State for not having taken due care and that they contributed to the accident, whereas in the instant case, there is no such finding by the I.O. and the joint inspection dated 01-07-2014 or for that matter the Inspection Report dated 05-05-2014 do not fix the responsibility on the NHPC for the incident of 18-04-2014. The findings of the concerned Authorities in the Enquiry Report after perusing the Manual Log was that "Perusal of manual log for 18-04-2014 shows that the siren had been sounded and water was released in two spells by NHPC that day from 8 a.m. to 2.45 p.m. and 5.10 p.m. to 12 noon" clarifying thereby that there could not be a sudden release of water in the river at 1.30 p.m. on 18-04-2016. That the Respondent No.3 cannot be held liable for the incident since they have not violated any Rules, Laws or Regulations that attracts any form of penalty since they can only be penalized under some provision of Law. That the instant matter cannot be equated with the fact of the Himachal Pradesh case (supra) and hence, the conclusion, findings and amount of compensation awarded in that case cannot be followed in the present case. There being no merit in the present matter, the Writ Petition is liable to be rejected.
11. The rival contentions of the Learned Counsel for the parties were heard at length and due consideration given to the same. Documents relied on by the parties were also carefully perused. WP(PIL) No.25 of 2014 15
Zangpo Sherpa vs. State of Sikkim and Others
12. From the documents, more specifically, Annexure R/3-6 (colly) relied on by the Respondent No.3, it appears that permission for awareness drives to inform the public of the rise in water levels of the river Teesta during monsoon was sought by the Respondent No.3 from the Respondent No.2 in the month of June, 2014, i.e., after the incident occurred presumably as a knee jerk reaction. The Enquiry Report relied on by the Respondents No.1 and 2 which is dated 16-06-2014 addressed to Respondent No.2 by the Additional District Magistrate, East District, reveals that on the directions of the Respondent No.2 a meeting was held between Officials of the Respondent No.3, representative of the Police at Rangpo, Forest Guard, Forest Check Post, Rangpo. At the meeting, Official of Respondent No.3 admitted that there was no specific procedure laid down for release of waters from the Teesta V Power Station either during the lean period, i.e., 1st December to 31st April or during the monsoons, i.e., 1st May to 30th November. The Respondent No.3 informed that besides a Draft Reservoir Operation Manual sent by the NHPC Head Office, at Faridabad to the Respondent No.3 for governing release of water and functioning during the monsoon period no other formal protocol exists and this system of operation was also observed during the lean period. That during the lean period water is not released from the Dam except for the day-to- day functioning of the Power Station. The Respondent No.3 informed that a decision had been taken for issuing suitable warning to public living downstream for which a siren was installed at three locations WP(PIL) No.25 of 2014 16 Zangpo Sherpa vs. State of Sikkim and Others downstream of the Project site, but no documentation of this decision was found in the Meeting. The Officials of the Respondent No.3 were also not confident about the functioning of sirens installed along the riverbed allegedly at the locations of - (a) one siren at NHPC Teesta V Power Station at Balutar in the switchyard (b) one siren at Singtam Goshkhan (c) one siren at Rangpo near the Forest Check Post. As per the Report, the siren at Balutar was blown manually by the person on duty in the Switch Yard upon receiving instructions from the Shift in- charge at the Teesta V Power Station. It was also recorded that the siren at Singtam is operated through GSM and blown when the Shift in- charge at Balutar rang up a particular number from his official cell phone upon which siren is blown at Singtam and to deactivate the siren the number is called again. It was further found that the siren at Rangpo was blown by the Check Post Guard on receiving a call from the Shift in-charge at Balutar. The Respondent No.3 conceded that it was merely an informal arrangement. The Official of the Respondent No.2 has noted that the system of blowing the siren at Rangpo is totally dependant on the Forest Guard, who for his part complained that his duties did not include this function. The Shift in-charge at Balutar Power Station was given no confirmation with regard to the blowing of the sirens at the above three locations and relies on auditory confirmation which he reports. The meeting also perused the Manual Log for 18-04- 2014 which indicated that the siren had been sounded and water was released in two spells by the Respondent No.3 that day from 8 a.m. to WP(PIL) No.25 of 2014 17 Zangpo Sherpa vs. State of Sikkim and Others 2.45 p.m. and from 5.15 p.m. to 12 noon. Learned Senior Counsel for Respondent No.3 strongly relied on this Statement and submitted that it is apparent from the Manual Log that there was no sudden release of water around the time of the incident as there was a constant flow from 8 a.m. to 2.45 p.m. and the incident occurred around 1.30 p.m. We have carefully perused the Manual Log, Annexure R/3-2 (colly), submitted by Respondent No.3 but find that the Respondent No.3 has not been able to enlighten us as to who was maintaining this Log and whether it reflects the true state of affairs. As per Respondent No.3, the range of the siren at Balutar is 8 kms. radius while that of Singtam and Rangpo is 2 kms., but on enquiry by the Respondents No.1 and 2 as to the fate of the public living beyond the auditory range of the sirens, the Respondent No.3 had no answer, merely stating that as a practice, the sirens are blown twice around five minutes before release of the water and it is presumed that the people have been forewarned. Accordingly, it was decided that a team consisting of SDMs of Rangpo and Gangtok, DPO/Disaster Management and TO/Disaster Management were to conduct a surprise inspection of the NHPC Power Station and the three locations where the sirens were installed to verify the functioning of the warning system and the water release protocol. An inspection was carried out on 05-05-2014 by the said Officials to check the functioning of the sirens installed by the Respondent No.3, where it was found that the siren at Balutar Switch Yard alleged to encompass 8 kms. could not be heard inside the Power Station itself by the SDM, Gangtok, who was WP(PIL) No.25 of 2014 18 Zangpo Sherpa vs. State of Sikkim and Others present there. The GSM siren at Singtam 'Goshkhan' could not be blown on account of power failure, hence on issuance of directions to the Respondent No.3 by the SDM manual siren was brought to be blown, near the riverbed where the GSM siren had been installed. Although it was claimed that the auditory range was 2 kms., however, the DPO stationed at 'Goshkhan' could not hear it clearly even at that range. So far as the GSM siren at Rangpo was concerned, on enquiry as to what would be the fate if the GSM system failed, the response was that the siren was flawless which however was controverted when due to power failure the GSM siren could not be operated. On enquiry from the local residents living at the riverbanks, it emerged that on power failure, there is no system of manual warning being given to the people regarding release of water into the river. Others also reported that, it was only after the recent drowning of the girl at the river side at Singtam that the siren had started functioning properly but there was no fixed timing for the siren to be blown or for the water to be released. The Respondent No.3 informed that the schedule of water release is given to them one day before by the ERLDC, Kolkata. The GSM siren at Singtam Goshkhan was found to be installed on the roof top of a residential unit belonging to the Forest Department, the switch for which was accessible to and could be operated by anyone which could lead to confusion and probable disaster. The inspection also found that no awareness camps had been organized by the Respondent No.3 for the people living along the riverbed downstream from the Dam and the WP(PIL) No.25 of 2014 19 Zangpo Sherpa vs. State of Sikkim and Others Power Station. It was concluded that verification was required for the claim that there was no official protocol in place for release of Dam water. Based on the findings at the meeting, directives were issued vide letter dated 20-06-2014 Annexure R4, to the Respondent No.3 along with other HEPPs, on precautionary measures to be taken by the Power Projects in East Sikkim with regard to the release of water and warning procedure for the public living downstream along the riverbed.
13. All that the Respondent No.3 has placed before this Court to establish that, a warning system was in place is by pointing out to Sign Boards alleged to have been erected along the river side, vide Annexure R/3-3 (collectively) but the photocopy of the photographs do not reveal the locations. Their contention is also that they have constructed three numbers of Crematorium Sheds at Siingtam Bazaar, Rangtu village, Jamirey village in order to discourage people from entering the riverbed for performing the last rites of the deceased. This may be so, but we cannot loose sight of the fact that in the instant Writ Petition, we are concerned with the warning procedure being in place when water is being released and not about construction of Crematorium Sheds under the CSR Projects of the Respondent No.3.
14. The Notice at Annexure R/3-5 (colly) at serial no.02 states that, "water can be released any time throughout the year from NHPC Teesta Dikchu Dam as per inflow in the Teesta river". Pointing out to this Notice, the Petitioner submitted that the water can be released as per WP(PIL) No.25 of 2014 20 Zangpo Sherpa vs. State of Sikkim and Others their Notice at "any time" which means without any prior warning which appears to have been the cause resulting in the death of the 11 year old child.
15. Hence, from the gamut of the facts reflected hereinabove, it emerges that there was no protocol for release of water from the Dam into the river. Stating that the guidelines have been issued by Respondents No.1 and 2 after the incident and was not applicable then, is an irresponsible statement, when conscience and public interest ought to have guided the Respondent No.3 to ensure that a protocol was in place. There was no system in place to warn the public of the impending release of the water by way of hooting of sirens or any other procedure/protocol for release of water or specific timings. Although sirens were alleged to be in place, the inspection indicates that they were either non-functional or there was no person to man the said installations. The Forest Guard at Rangpo Check Post, a Government servant, was foisted with the task of blowing the siren for Respondent No.3, when in fact they ought to have had their own personnel in place. The claims of the auditory range of the sirens appeared to be disproved by the physical inspection carried out by the concerned officials. It is also evident that water was released into the river irrespective of the season being lean or monsoon. It is axiomatic that the totality of the above circumstances lead to the inevitable conclusion that the Respondent No.3 was negligent, thereby answering the first issue. WP(PIL) No.25 of 2014 21
Zangpo Sherpa vs. State of Sikkim and Others
16. As a corollary, it is manifest that the Respondent No.3 is liable for non-compliance of any procedure. There has also been an unconscionable failure to disseminate awareness to the public of the release of the waters from the Dam. No attention has been paid to the level of understanding of the people who reside along the riverbanks who are mostly uneducated casual labourers, socially and economically handicapped, which resulted in the fatality. On this count, it has to be observed that although the Investigating Officer who investigated Temi P.S. UD Case No.5(4)14 dated 21-04-2014 has concluded that the victim was responsible for her own death, but he too has also admitted that the river water swelled when water was released from the Dikchu Dam suddenly resulting in the victim being swept away. The statements of the witnesses who were present at the site at the relevant time, corroborate this finding. One of the eye witnesses Kalpana Subba recounted that she, Radhika Gurung (deceased) and Chandra Kala Gurung went swimming close to the picnic spot. At about 1.30 p.m., the water from the dam site was suddenly released into the river increasing the water level. She herself experienced being carried away by the current/flow of the water and was swept away to some distance. They were seen and rescued by the labourers working at the riverbank, but Radhika Gurung (deceased) was not seen and could not be rescued. Her dead body surfaced near ATTC College. Thus, liability can be fastened upon Respondent No. 3 not only for the non-compliance of the WP(PIL) No.25 of 2014 22 Zangpo Sherpa vs. State of Sikkim and Others procedure and failure to disseminate awareness, but also for causing the death of the child.
17. That having been said, we turn our attention to the doubts raised by Respondent No.3 on the locus of the Petitioner. In M. C. Mehta and Another vs. Union of India and Others : AIR 1987 SC 1086, it was held that -
"2. ......... This court has on numerous occasions pointed out that where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing a regular writ petition but also by addressing a letter to the Court. ..............."
18. On the same point, the Hon'ble Apex Court in Delhi Jal Board (supra), held that -
"19. At the threshold, we deem it necessary to erase the impression and misgivings of some people that by entertaining petitions filed by social action groups/activists/workers and NGOs for espousing the cause of those who, on account of poverty, illiteracy and/or ignorance and similar other handicaps, cannot seek protection and vindication of their constitutional and/or legal rights and silently suffer due to actions and/or omissions of the State apparatus and/or agencies/instrumentalities of the State or even private individuals, the superior courts exceed the unwritten boundaries of their jurisdictions. When the Constitution of India was adopted, the people of this country resolved to constitute India into a Sovereign Democratic Republic. They also resolved to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all WP(PIL) No.25 of 2014 23 Zangpo Sherpa vs. State of Sikkim and Others fraternity assuring the dignity of the individual and the unity and integrity of the nation."
19. In M.S. Grewal (supra) relied on by the Petitioner, the Hon'ble Apex Court considered the question whether the High Court was justified in entertaining the writ petition filed by the parents of 14 children, who died due to drowning in a river when they were on picnic organised by the school authorities. While rejecting the objection to the maintainability of the writ petition, the Court referred to Rudul Sah v. State of Bihar [(1983) 4 SCC 141], Nilabati Behera v. State of Orissa [(1993) 2 SCC 746] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416] and observed:
"26. Next is the issue 'maintainability of the writ petition' before the High Court under Article 226 of the Constitution. The appellants though initially very strongly contended that while the negligence aspect has been dealt with under penal law already, the claim for compensation cannot but be left to be adjudicated by the civil law and thus the civil court's jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law courts exist for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court:
the first in line is the decision in Nilabati Behera v. State of Orissa wherein this Court relying upon the decision in Rudul Sah v. State of Bihar decried the illegality and impropriety in awarding compensation in a proceeding in which the court's power under Articles 32 and 226 of the Constitution stands invoked and thus observed that it was a clear case for award of compensation to the Petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State's obligation, unless of course the State can also be termed to be a joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the WP(PIL) No.25 of 2014 24 Zangpo Sherpa vs. State of Sikkim and Others State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto."
20. In the case at hand, the Counsel took up the cause for the Petitioner in compliance to letter dated 01-05-2014 issued to him in terms of Regulation 15 of the Sikkim State Legal Services Authority Regulation, 1998, which provides for functions of the State Authority and specifies at Regulation 15(11) that, besides the function enumerated in Section 7 of the SSLSA Act, the State Authority shall also perform all or any of the following functions, namely, to establish, maintain, promote, protect and safeguard the rights, interests and privileges of the society by rendering legal aid, advice and assistance for practical purposes. The above should soundly quell all doubts raised by the Respondent No.3.
21. This takes us to the issue of compensation to the victim. Useful reference can be made to the decision of the Hon'ble Apex Court in Paschim Banga Khet Mazdoor Samity and Others vs. State of W.B. and Another : (1996) 4 SCC 37 where the Hon'ble Apex Court examined the issue as to whether a party of the staff of Government Hospital is entitled to compensation and held as follows;
"9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this WP(PIL) No.25 of 2014 25 Zangpo Sherpa vs. State of Sikkim and Others obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State, in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. (See Rudul Sah v. State of Bihar : (1983) 4 SCC 141; Nilabati Behera v. State of Orissa : (1993) 2 SCC 746 and Consumer Education and Research Centre v. Union of India : (1995) 3 SCC 42.) Hakim Seikh should, therefore, be suitably compensated for the breach of his right guaranteed under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we fix the amount of such compensation at Rs. 25,000. A sum of Rs.15,000 was directed to be paid to Hakim Seikh as interim compensation under the orders of this Court dated 22- 4-1994. The balance amount should be paid by Respondent 1 to Hakim Seikh within one month."
22. In Chairman, Railway Board and Others vs. Chandrima Das (Mrs.) and Others : (2000) 2 SCC 465, the Hon'ble Apex Court considered the question whether the High Court could entertain the Petition filed by the Respondent by way of Public Interest Litigation WP(PIL) No.25 of 2014 26 Zangpo Sherpa vs. State of Sikkim and Others and award compensation of Rs. 10 lakhs to Hanuffa Khatoon, a national of Bangladesh, who was sexually assaulted by the employees of Eastern Railway. While rejecting the argument of the Appellant that the victim of rape could have availed remedy by filing Suit in a Civil Court, the two-Judge Bench referred to the distinction made between "public law" and "private law" in Common Cause v. Union of India [(1999) 6 SCC 667] and other cases in which compensation was awarded for violation of different rights and observed:
"11. Having regard to what has been stated above, the contention that Smt Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law."
23. Having dealt with the above matters, the next consideration would be the quantum of compensation to be given to the parents of the victim. In M. C. Mehta (supra) it was held as follows:-
"31. .......... We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the WP(PIL) No.25 of 2014 27 Zangpo Sherpa vs. State of Sikkim and Others harm occurred without ay negligence on its part. ............
32. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise."
24. On the anvil of the above decision, we are of the view that it would be fair and reasonable to award a compensation of Rs.5,00,000/- (Rupees five lakhs) only, to the parents of the victim who died due to the negligence of a Public Company like Respondent No.3 which did not take effective steps for ensuring the safety of people who are likely to venture into the river for sports or any other purpose.
25. Thus, in conclusion, having considered the facts and circumstances of the matter, Report made by the Respondents No.1 and 2, the submissions at the Bar and considering the negligent act of the Respondent No.3, we pass the following directions disposing of the Writ Petition;
(i) The Respondent No.3 shall pay compensation of Rs.5,00,000/- (Rupees five lakhs) only, to the parents of the victim, as a measure of mitigating the loss accrued to them on account of the death of their child, within the stipulated period mentioned hereunder, failing which this amount shall carry interest @ 9% per annum from the date of judgment till realization.
WP(PIL) No.25 of 2014 28Zangpo Sherpa vs. State of Sikkim and Others
(ii) The Respondents shall follow the Notification No.26/HOME/2015 dated 22-06-2015 for public safety at Hydro Power Projects.
(iii) The Respondents No.1 and 2 shall carry out bimonthly inspections by a team of Officers selected by the District Magistrate to check whether safety measures as required are in place and guidelines issued vide Notification No.26/Home/2015, dated 22-06-2015, are being adhered to.
(iv) The Respondent No.3 shall install scientific and technical instruments necessary for ensuring the safety of the Dam and the life and property of people in the area and downstream.
(v) The Respondent No.3 shall have Ambulances and Para-
Medical Staff in their employment at all the HEPPs to deal with emergencies arising out of any disaster occurring due to release of water from the Dams.
(vi) The Respondent No.3 shall create an emergency fund up to the maximum of Rs.1,00,00,000/- (Rupees one crore) only, to meet any disasters and fatalities arising out of any failure on their part. The modalities shall be worked out in consonance with Respondents No.1 and 2.
26. No orders as to costs.
27. Let all the directions be implemented within two months from today.
WP(PIL) No.25 of 2014 29
Zangpo Sherpa vs. State of Sikkim and Others
Sd/- Sd/-
( Meenakshi Madan Rai ) ( Sunil Kumar Sinha )
Judge Chief Justice
01-07-2016 01-07-2016
Approved for reporting : Yes
Internet : Yes
ds