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IN lllE "fflCxH C:()IJR'r OF DEl.HI AT NEVv^ DKLtH
I W.PJC) 767/2013
MOl \D. PARVliZ
SONIJ ANDORS
CORAFVl:
JUDGMENT
Petit) oner
Through : Mr.Pawan Sharma, Mr.Praveen K.
Singh and Mr.Dinesh Kumar, Advs.
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.:)
1. liy 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.-;/ 2013:DHC:7169 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.
4. It is the case of the petitioner that the building, where respondent no.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 horizontal distance between the II-T line and porch rcduccs to about 1-'/2 meter. It is further the case ofthe petitioner that respondents no.5 and 6 did not take appropriate action against the illegal construction due Lo which the petitioner suffered injuries on 24.9.2010.
5. As 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.Surender Dahiya, for decorating the fk)nt portion of the said building by sticking balloons. Jhe petitioner had informed respondents no.l and 2 that the front portion of the premises is very dangerous as 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.
6. Learned counsel for the petitioner submits that thereafter the petitioner and his family members approached respondents no.! lo 4 for compensation, however, only false assurances were given to Lhem. 'rhereaJter on 17.'^).2012 the petitioner also sent a legal noticc to the respondents for 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.
7. I.earned counsel tor the petitioner has placed rcliance on the case of Municipal Corporation of Delhi v. Association of Victims of IJphaar Tragedy-^ reported ai AIR 2012 SC 100, more particularly paras 32, 47 and 61, which read as under:
W.r. (C) 767/2013 • rr !0 w D.VB conccrncd. there was conUibut^^, ihe position ofliccnsing authority and 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/omissions were not the proximate cause for the deaths and injuries. The [.icensing Authority and MCD were merely discharging their statutory functions (tliat is granting hcence in the case oi' licensing authority and submitting an inspection report or issuing a NOC by the MCD). In such circumstances, merely on 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 r3VI[3] 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.
61. Law 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 guaranteed to its citizens. In D.K. Basu vs. Union of India (1997) I see 416, a Constitution Bench of this Court held that there is no strait jacket formula for computation ofdamages and we find that there is no uniformity or yardstick loUowed in awarding damages for violation of fundamental rights. In Rudal Shah's case (supra) this Court used the terminology & "I^alliative"'; lor measuring the damages and 'fhe formula of "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."
8. Ixarned 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.
9. Learned 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 respondents no.5 and 6 that the there is no material plaeed on record which suggests that the ladder, which was used ior sticking balloons, was wet and under what circumstances the petitioner and Sh.Surender Dahiya had sufibred the fatal consequences, it is further contended that petitioner is a drug addict and was admitted to respondent no.l for treatment and, thus, il cannot be determined in these proceedings in what circumstances ihc petitioner and Sh.Surender Dahiya fell on the high tension wire.
10. Learned 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.
11. Para 6 oi' Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Others (supra) read as under;
6. in 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 required to be examined whether the wire had snapped as aresult of anv negligence ofthe appellants and under which circumstances the 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 precautions were taken in maintaining the transmission lines and yet the wires had snapped because ol circumstances beyond 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 affidavits only. It is the settled legal position that v/here disputed questions of facts arc involved a petition under Article 226 ol the C:onsiitution is 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.
12. Paras 6 and 9 oi' SDO, Grid Corporation of Orissa iJd. and Others (supra) read as under:
!!. /'. (d 7(y 7/20/.? 7of i'' v •). circumstances beyond their control or unauthorised intervention of third parties. Such disputed questions of fact could not be decided in exercise of juiisdiclion under Article 226 oClhc ConslituUon of India. That the High Court could not come to the conclusion that the defence raised by the appellants had been raised only for the sake of it and there was no substance in it.
9. In the present case, the appellants had disputed the negligence attributed to it and no Hnding has been recorded by the High Court that the CRIDCO was in any way negligent in the perlormancc o.l its duty. The present case is squarely covered by the decision oi this Court in Chairman, Crid Corporation of Qrissa __lM, (GRIDCQ) and Qrs. (supra). The High Court has also erred in awarding compensation in Civil Appeal No.... of 2005 \@ SLP(C) No. 9788 of 1998[1] The subsequent suit 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 i[2],iven for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years, hi such a case, awarding ofcompensation in exercise ol its jurisdiction under 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:
W.I'. (C) 76 7/20Li ^^ ' •' V Sukamani Das. l.alcr, in Timudu Gram, after noticing and distinguishing Rarn Nath the Ilon'ble Supreme Court reiterated and followed the decision Sukamani Das holding that a writ petition under Article 226 was not maintainable. The decision in 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 present status ofthe law and is binding.
14. ! have heard learned counsel for the parties, considered their rival submissions and also perused the documents placed on record. As per the petition, the petitioner was a drug addict and he was adniitted to respondent no.3 for de-addiction, for which he had paid the entire lee. ine petitioner has placed on record a copy of his admission slip. As per the petitioner, the building, which was taken on rent by respondents no. 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 construction carried out by the owner of the premises, '['here is also nothing on record to suggest as to whether the 11-T lines Vv'cre installed prior to the unauthorized construction or thereafter in 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 satisfied that this petition raises disputed questions 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 applicable to 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.
15. A 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.
16. fn 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.
17. AL 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-