Mohd. Parvez v. Sonu and Ors

Judgment dated 07.03.2013 Petit) oner Through : Mr.Pawan Sharma, Mr.Praveen K. Singh and Mr.Dinesh Kumar, Advs. versus Respondent Through : Mr.Surjit Kumar Singh, Adv. for respondent no.5. Mr.Laliet Kumar, Adv. for respondent no.6. HON'BLK MR. JlJSllCE G.S.SISTANI c;.s.si:sTANi., j (oeai.:)

¶1liy the present writ petition, filed under .Artiele 226 o.-'thc ('onstiiution of h'ldia, tlic petitioner seeks a writ ormandair.us directing the respondenis to compensate iiim for the injuries suffered on aecouni of the reasons attributable to the respondents.

¶2!t iriay be noticed that respondents no.l to 4 are private respondents. Learned counsel for respondents no.5 and 6 (North Defhi Power Limiicd and Norih Municipal Ojrporation of r-)eilii, respectively) have entered appearance on an advance copy and have raised a preliminary objection with, regard to the maiiitainability of this writ petition primarily on the ground that the petition raises disputed questions of fact, which cannot be uecided in ihe proceedings uiider Arlicle 226 oi'the Constitution of lndia. L ihe nccessary iacls ol ihis case, as per the petition, are that respondent li'.F. {(') 7{,7/2f)iJ

11.-;/ i no.l is the owner of respondent no.3, Naya Vishwas Nasha N4ukti and Purnwas Samiti, which is a registered society. Respondent no.2 is the Councilor oi^ respondent no.3, which is monitored by respondents no.l and 2 i-espectivcly. As per the petition, petitioner, was a drug addict and was admitted with respondent no.3 for his treatment. Respondent no.4 is stated to be the landlord of the premises where respondent no.3 Samiti is carrying on its activities. Respondent no.l had giveii the said premises to respondents no.l and 2 on rent.

¶4It is the case of the petitionerthat the building, where respondentno.3 is situated, was not constructed as per the building bye-laws, fhe front portion of the house was constructed illegally due to which the vertical and horizontaldistancebetween the II-T line and porch rcduccs to about 1-'/2 meter. It is furtherthe case ofthe petitionerthat respondentsno.5 and 6 did not take appropriate action against the illegal constructiondue Lo which the petitioner suffered injuries on 24.9.2010.

¶5As per the petition, on 24.9.2010 a party ol" one, Sh.Vijay, was to be organized and respondents no.l to 3 directed the petitioner and one, Sh.SurenderDahiya, for decoratingthe fk)nt portion of the said building by sticking balloons. Jhe petitionerhad informed respondentsno.l and 2 that the front portionof the premisesis very dangerousas a high tension cleciric wire is passing through the front portion of the premises. Respondents no.! and 2 did not pay any heed to the words of the petitioner and forced the petitioner to decorate the front portion of the building by sticking balloons. Another person, namely, Sh.Surender Dahiya, was also helping the petitioner. In order U) decorate the front portion oi" the premises, the petitioner and Sh.Surender Dahiya v/ere standing on a wooden ladder, when Sh.Surender Dahiya lost his balance, due to which the wet wooden ladder fell on the high tension wire and the H;/--. (C) 767/20a Pdiii'2!][ Hi ,N^' petitioner and Sh.Surender Dahiya suffered fatal injuries. Sh.Surender Dahiya was declared dead when he was brought to the hospital and the left arm of the petitioner was amputated. Thereafter an f'lR bearing No.212/2010 under Sections 338/304A/34 IPG was registered against respondents no. 1 to 4 at Police Station Mahcndra Park.

¶6Learned counsel for the petitioner submits that thereafter the petitioner and his family members approached respondents no.! lo for compensation, however, only false assurances were given to Lhem. 'rhereaJter on 17.'^).2012 the petitioner also sent a legal noticc to the respondentsfor damages,however,neither the said notice was replied to nor payments were made to the petitioner, which forced the petitioner to lilc the present writ petition for compensation from the (bur private respondents and also from respondents no.5 and 6.

¶7I.earned counsel tor the petitioner has placed rcliance on the case of MunicipalCorporationof Delhi v. Associationof Victims of IJphaar Tragedy-^ reported ai AIR 2012 SC 100, more particularlyparas 32, 47 and 61, which read as under: "32. It is evident from the decision of this Court as also Lhe decisionsof the Jinglishand CanadianCourtsthat it is not properto award damages against public authorities merely because there has been some inaction in the perlbrmanceof their statutoryduties or because the action taken by them is ultimately found to be without authority of law. In regard to performance of statutory functions and duties, the courts will not award damages unless there is malice or conscious abuse, 'i'hc cases where damages have been avv^ardcd lor direct negligence on the part of the statutory authority or cases involving doctrine of strict liability cannot be relied upon in this case to fasten liability against MC.D or the Licensing Authority, '['he position of I3V]3 is different, as direct negligencc on its part was established and it was a proximate causc\ lor ihc injuries lo and death of victims. It can be said that in so far as the licensee and W.r. (C) 767/2013 • rr !0 w D.VB conccrncd. there was conUibut^^, ihe positionofliccnsingauthorityand MCD is dilferent.Ihcy were not the owners of the cinema theatre. Tlie cause of the lire was not attributable to tiiem or anything done by them. Lheir actions/omissionswere not the proximatecause for the deaths and injuries. The [.icensing Authority and MCD were merely dischargingtheir statutoryfunctions(tliat is grantinghcence in the case oi' licensing authority and submitting an inspectionreport or issuinga NOC by the MCD). In such circumstances,merelyon the ground that the Licensing Authority and MCD could have performed their duties better or moi-e efilciently, they cannot be made liable to pay compensation to the victims ol the tragedy. There is no close or direct proximity to the acts of the Licensing Authority and MCD on the one hand and the lire accident and Lhe death/injuries of the victims. But there was close and direct proximity between the acts of the licensee and r3VI3 on the one hand and the fire accident resultant deaths/injuries of victims. In view of the well settled principles in regard to public law iiabilily, in regard to discharge of statutory duties by public authorities, which do not involve malafides or abuse, the LUgh Court committed a serious error in making the licensing authority and tb.e MCM) liable to pay compensation to the victims jointly and severally with the Licensee and DVH. K.S. RADllAKRJSirNAN, J. : 47. I fully endorse the reasoning as well as the conclusions reached by niy esteemed brother. All the same, 1 would like to add a few thoughts which occurred to my mind on certain issues which arose Ibi" consideration in these matters.

¶61Law is Vv'cll settled that a Constitutional Court can award monetary compensation against State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. Quite often the courts have a difficult task in determining damages in various fact situations. The yardsticks normally adopted for deterniining the compensation payable in a private tori claims are not as such applicable when a constitutional court determines Lhe compensation in cases where there is violation of fundamental W.P. (C) 767/2013 4 of}() rights guaranteedto its citizens. In D.K. Basu vs. Union of India

(1997) I see 416, a ConstitutionBench of this Court held that there is no straitjacketformulafor computationofdamagesand we find that there is no uniformityor yardstick loUowed in awarding damages for violationof fundamentalrights. In Rudal Shah's case (supra) this Court used the terminology & "I^alliative"'; lor measuringthe damages and 'fhe formulaof "Ad hoc" was applied in Sebastian llongaiy's case (supra) the expression used by this Court for determining the monetary compensation was "i-',xcmpiary"cost and the formula adopted was "Punitive" . In IMiim Singh's case, the expression used by the Court was "Compensation"and method adopted was "'j'ortious iormula". In D.K. Basu V. Union of India (supra) the expression used by this Court for determining the compensation was "Monetary Compensation", 'fhe formula adopted was "Cost to Cost" method. Courts have not, therefore, adopted a uniform criteria since no statutory formula has been laid down."

¶8Ixarned counsel for the petitioner submits that the present writ petition docs not raise any disputed questions of fact as the existence of the high tension wires is not in dispute. Counsel-further submits that the MCD and NDPi, arc responsible, as the MCD has failed to check the unauthori/.ed construction in the premises in question and the NDPJ. did not take any preventive measure to ensure that the high tension wire should not run so close to the building where the petitioner was being treated, (x)unsei also submits that the /\pex Court has held that the (.'ourt can award damages in appropriate cases and the method and yardstick lor determining and awarding damages has also been observed in the said judgment.

¶9Learned counscl appearing on behalf of respondents no.4 and 5 submit that the present petition raises disputed questions of fact as a court sitting in the writ jurisdiction would be unable to decide, in the absencc of any evidence, as to whethci" there was any unauthorized construction or not and as to whether the power company did not take any preventive measure to remove the high tension wires. It is also contended by counscl w.r. (C) 767/2013 Puga^ofU) !"or respondentsno.5 and 6 that the there is no material plaeed on record which suggeststhat the ladder,which was used ior stickingballoons,was wet and under what circumstancesthe petitionerand Sh.SurenderDahiya had sufibredthe fatal consequences,it is furthercontendedthat petitioner is a drug addict and was admittedto respondentno.l for treatmentand, thus, il cannot be determined in these proceedings in what circumstances ihc petitionerand Sh.SurenderDahiyafell on the high tensionwire.

¶10Learned counsel for respondents no.5 and 6 have relied upon Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Others v. Siskamani Das (Smt.) and Another^ reported at (1997) 7 SCC 298, more particularly para 6; SDO, Grid Corporation of Orissa Ltd. and Others v. Tinman Orani, reported at (2005) 6 SCC 156, more particularly paras 6 and 9; and Abdul Haqiie & Ors. v. BSES Yamuna Power Ltd. & Ors., 142 (2007) 1)1/r 526, more particularly para 24, in support of their submissions tliat the disputed questions of fact cannot be decided in the proceedings initiated under Article 226 of the Constitution of India.

¶11Para 6 oi' Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Others (supra) read as under;

¶6in our opinion, the High Court committed an error in cntei'laining the writ petitions even though they were not fit cases ibr exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that "admittedly prima facie amounted to negiigcnce on the part of the appellants". The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. Mere fact that the wire of the electric transmission line belonging to the appellant No. ! had snapped and the deceased had come into contact 'vvith it and liad died was not by itself sufficient for awarding compensation. It also W.i'. (C) 767/2013 <• <(f requiredto be examinedwhetherthe wire had snappedas aresultof anv negligenceoftheappellantsand underwhich circumstancesthe deceased had come into contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautionswere taken in maintainingthe transmissionlines and yet the wires had snapped because ol circumstancesbeyond thc-r control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioner. These questions could not have been decided properly on the basis of affidavitsonly. It is the settled legal position that v/here disputed questionsof facts arc involved a petition under Article 226 ol the C:onsiitutionis not a proper remedy. I'he High C'ourt has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the Civil Court as it was done in OJC No. 5229 of i995.

¶12Paras 6 and 9 oi' SDO, Grid Corporation of Orissa iJd. and Others (supra) read as under: "6. In Chairman, Grid Corporation oi'Orissa Ltd. (Gridco) and others (supra) with which case these appeals were listed for hearing but could not be heard for want of service this Court took the view that the High Court committed an error in entertaining the writ petitions under Article 226 of the Constitution of India and v/ere not fit cases for exercising the jurisdiction under /Article226 ofthe (Constitution of India. It was held that actions in tort and negligcnce were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellant had snappedand the deceased had conic into contactwith it and died by itself was not sufficient for awarding compensation. ITe Court was required to examine as to whether the wire had snapped as a result of any negligence on the part ofthe appellants, as a result of which the deceased had come in contact with the w\ire. in view of the defence raised and the denial by the appellants in each of the cases, the appellants deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission line and yet the wires had snapped because ofthe !!. /'. (d 7(y 7/20/.? 7of i'' v •) . circumstancesbeyond their control or unauthorisedinterventionof third parties. Such disputedquestionsof fact could not be decided in exerciseofjuiisdiclionunder Article226 oClhc ConslituUonof India. That the High Court could not come to the conclusionthat the defence raised by the appellantshad been raised only for the sake of it and there was no substancein it.

¶9In the present case, the appellantshad disputed the negligence attributedto it and no Hndinghas been recordedby the High Court that the CRIDCO was in any way negligentin the perlormancco.l its duty. The presentcase is squarelycoveredby the decisionoi this Court in Chairman, Crid Corporation of Qrissa__lM, (GRIDCQ) and Qrs. (supra). The High Court has also erred in awardingcompensationin Civil AppealNo.... of 2005 \@ SLP(C) No. 9788 of 19981 The subsequentsuit or writ petition would not be maintainable in view ol the dismissal ot the suit, the will petition was filed after a lapse of 10 years. No reasons have been i2,iven for such an inordinate delay. The High Court erred in entertainingthe writ petition after a lapse of 10 years, hi such a case, awardingofcompensationin exerciseol its jurisdictionunder Article 226 cannot be justified. it would also be useful to refer to Para 24 oi Abdul iJaqiie & i)rs. (supra), which reads as under: "24. The approach of the llon'ble Supreme Court in certain other cases where writ petitionshave been filed claimingcompensation lor constitutionalwrongs, involving death or injuries not due to electrocufion,has been different. The most prominent among these decisions are Rudul Sah v. State of Bihar, (1983) 3 SCR 508; Nilabati Bchera (supra); D.K. Basu v. State oi WesLij.cnggU.

(1997) ecr (sc>---<1997)1 SCC 416: and Chairman, Railway__B_(Xird v. ChandrimaDas (supra). Significantly,some of these judgments have been noticed in famil Nadu 1electricity Board v^ Sianiathi (supra) and it has nevertheless been held that in cases ot electrocutioninvolving disputed questions of fact a writ petition under Article 226 is not maintainable. It is in the electrocution cases as can be seen from the discussion hereinabovc, that the approach has been diffcrent. In Ram Nath, the llon'ble Supreme Court upheld the award of compensation by distinguishing W.I'. (C) 767/20Li ^^ ' •' V Sukamani Das. l.alcr, in Timudu Gram, after noticing and distinguishingRarn Nath the Ilon'bleSupremeCourt reiteratedand followed the decision Sukamani Das holding that a writ petition under Article226 was not maintainable.The decisionin Sumathi is also to the same effect. All these decisions are of two-Judge benches. Timudu Oram, being the most recent decision, and consistent with Sukamani Das and Sumathi must be held to express the presentstatusof the law and is binding.

¶14! have heard learned counsel for the parties, considered their rival submissionsand also perusedthe documentsplaced on record. As per the petition, the petitioner was a drug addict and he was adniitted to respondentno.3 for de-addiction,for which he had paid the entire lee. ine petitionerhas placed on record a copy of his admissionslip. As per the petitioner,the building,which was taken on rent by respondentsno.1-3, was not constructed as per the building bye-laws, due to which the vortical and horizontal distance between the Il-'f line and the porch was reduced to l-'A meters. There is nothing on rccord to substantiate this submission,made by counsel for the petitioner. Further there is nothing on record to suggest that the petitioner suffered injuries on account of the illegal constructioncarriedout by the ownerof the premises,'['hereis also nothing on record to suggest as to whether the 11-T lines Vv'cre installed prior to the unauthorizedconstructionor thereafterin order to fasten the liability on the North Delhi Power Limited. 1laving regard to the disputed questions, which have been raised by the petitioner in this writ petition; the submissions made by counsel for the parties; and the law laid down by the Apex Court, i am satisfiedthat this petition raises disputedquestions of fact, v/hich cannot be decided in the proceedings undci" Article 226 of the Constitution of India. The judgments, sought to be relied upon, by the counsel for the petitioner,in my view, are not applicableto the facts of the

(C) 767/2013 -• present case as the present case pertains to an incident of electrocution whereas the judgment relied upon by counsel for the petitioner is primarily on the facts urged in the said matter pertaining to inaction and non-perlbrmance of statutory duties and in fact in paras 32 and 47 of the Municipal Corporation of Delhi v. Association of Victims of IJphaar Tragedy (supra) the Apex Court has held that the damages against public authorities are not to be granted merely on account of some inaction of performance of statutory duty or because action taken were found to be wi'ong.

¶15A Single Judge of this Court in the case of Abdul ilaque & oss. (supra) more particularly in para 24 has rightly drawn the distinction between two separate sets of cases pertaining to claims with regard to compensation. I'he Apex Court has taken a different view with regard to cases claiming compensation for constitutional wrongs, involving death or injuries caused not due to electrocution.

¶16fn view of the law laid down by the Apex Court the present writ peliiion cannot be entertained and the same is accordingly dismissed \n liinine on the preliminary objections raised by the respondents no.5 and 6 with regard to maintainability of the writ petition.

¶17AL this stage, learned counsel for the petitioner seeks liberiy to take such remedies which may be available to the petitioner in accordance with law. i.iberty, as prayed for, is granted. X.. C.S.SISTANl, J PVIARCII 07,2013 msr Pi>i-H'.P. CO 767/2013 U: -f/';

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