Smt. Teena Srivastava & 4 Others vs State Of U.P. & 5 Others
2018 Latest Caselaw 2679 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- WRIT - C No. - 64615 of 2015
 

 
Petitioner :- Smt. Teena Srivastava & 4 Others
 
Respondent :- State Of U.P. & 5 Others
 
Counsel for Petitioner :- Siddharth Nandan,Ajal Krishna
 
Counsel for Respondent :- C.S.C.,Qamrul Hasan Siddiqui,Vimlesh Kumar Rai
 

 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ajit Kumar, J.

1. Heard Sri Siddharth Nandan, Advocate for petitioner and learned Standing Counsel for respondents.

2. This writ petition has been filed as a result of a very unfortunate incident, which took place on 19.05.2015 when for immersion of ashes of daughter of a Senior Advocate, a number of people having gone to Sangam and for carrying some of them a Boat was made available by U.P. Jal Nigam which was boarded by about 18 persons. It suddenly drowned in the water. With the help of local boatmen and other people, 15 persons could be saved but three persons, namely, Swarn Kumar Srivastava, Ajay Kumar Srivastava and Shankar Lal Maurya drowned and died.

3. Petitioners are legal heirs of Swarn Kumar Srivastava and Ajay Kumar Srivastava. Both deceased have left their widows and minor children. Deceased were sole earning members of family. On account of this mishap resulting in their sudden death, family has suffered serious penurious conditions. This writ petition has been filed seeking a direction to respondents to pay appropriate compensation to the families of aforesaid deceased for the reason that boat supplied by U.P. Jal Nigam was not properly maintained and State of U.P. has also not taken due care in observing safety measures on river sides.

4. Learned counsel for petitioner, when confronted could not show any statutory provision which is attracted in the case in hand entitling petitioners, as a matter of right, to claim compensation from respondents. However, it is submitted that due to non observance of safety measures on river sides, which is a constitutional obligation of a welfare State, in the aforesaid mishap, State cannot be exempted from its responsibility towards failure in observing safety and security of public. Petitioners have suffered on account of aforesaid failure on the part of State in observing and maintaining appropriate measures and also appropriate arrangement for saving persons if any such mishap of immersion of Boat takes place, and, therefore, petitioners are entitled for compensation.

5. Learned Standing Counsel submitted that Boat was made available by U.P. Jal Nigam, as a gratuitous act, on the request of Advocates to facilitate immersion of ashes of relative of a Senior Advocate of this Court. It was not a statutory function of U.P. Jal Nigam to supply boats or to ferry passengers etc. and, therefore, there is no corresponding obligation upon respondents and they cannot be held responsible for such mishap and fasten with the responsibility of payment of compensation to respondents.

6. While admitting this writ petition, on 03.12.2015, this Court passed following order:

"An unfortunate incident took place on the banks of the river Yamuna on 19.5.2015. Several people had gathered there to immerse the ashes of the daughter-in-law of a Senior Advocate of this Court and, in the process of boarding, the boat provided by the Jal Nigam capsized, resulting in the drowning of three persons, one of them being a young Advocate of this Court. The heirs of two of the deceased have filed the present writ petition praying for compensation and to hold an inquiry into the incident and fix responsibility as well as to lay down specific guidelines ensuring safety measures which are required to be taken in plying of the boats on the river. A further prayer has been made that a formal compensation policy should be evolved by the State Government.

The Sangam area has a historical place in India. Two famous rivers of Northern India, namely, Ganga and Yamuna has its confluence at Allahabad. This place has a religious sanctity, which has resulted in the holding of Magh Mela every year during the month of Magh period at the start of the English Calender year and Kumbh Mela every 12 years. During this period, lacs and crores of pilgrims flock to this area from all parts of the country to bathe in the Sangam area.

Over the years the Court has noticed calamities happening where boats capsized on account of the age of the boats or leakage or overloading. No formal policy has been formulated and, if formulated, not maintained in patrolling the river. Every now and then we find that people are jumping from the new bridge. There is no river police and the newspaper reports indicates that persons are only rescued by boatmen.

In the instant case the tragedy occurred very close to the banks of the river Yamuna, near the V.I.P. Ghat also known as Sarasvati Ghat. Whatever may be the cause that would be found out in the inquiry, but what is startling is, that there was no police force placed by the administration to protect those who are using the river. There is no such thing as a river police and when an incident occurs there is no one to rescue the people except those who are on the spot. In the instant case, persons were rescued by those who came to attend the immersion of the ashes and the local boatmen. Safety equipments and other life saving devises were not found on the river front or other such fishing equipments.

The report, which has been annexed to the writ petition, indicates that the incident occurred in the evening and rescue operations continue till late night without the aid of any search lights. It has been alleged that the administration called off the search when it became dark contending that no rescue operation could be conducted in the night and that the search operations would continue the next day. However, on the insistence of the members of the bereaved family, the local boatmen fished out three bodies late at night without the aid of the administration. This is what is troubling the Court.

It has also alleged that initially some enquiry was initiated and certain officials were suspended, but thereafter the inquiry has been hushed up and has been swept under the carpet for the reasons best known to the respondents.

The respondents have given their point of view and one such objection is with regard to the maintainability of the writ petition. We are of the opinion, that the question of maintainability would be considered at length as well as on the issue of payment of compensation. But, what is striking the Court more is the lackadaisical attitude on the part of the administration in handling the matter and not overseeing the safety of millions of people who take a dip in the river throughout the year. It is the job of the administration to take safety precautions not only during the Magh Mela period, but continue such activity 24 hours, seven days in a week and 12 months in a year. Such activity is not confined to only 40 days during the Magh Mela period.

We consequently direct the petitioner to implead the District Magistrate Allahabad as well as the Senior Superintendant of Police as respondent Nos. 7 and 8. The learned standing counsel will accept the notice on their behalf also.

The learned standing counsel on behalf of respondent Nos.1 and 2 and the newly impleaded respondent Nos.7 and 8 will file a counter affidavit within four weeks indicating the steps taken in holding the inquiry, if any, into the alleged incident as well as on the issue of payment of compensation, if any, and will also indicate the measures and the guidelines, if any, they have initiated or adopted to secure the safety and the safety devises required at the banks of the river.

The counter affidavit will also include as to what compensation policy is the State Government adopting where mishaps of like nature happens because the Court finds that an arbitrary exercise is made out in doling out the compensation by the State Government. A comprehensive compensation policy is therefore, the need of hour and is required to be formulated.

Sri Vimlesh Kumar Rai, has accepted notice on behalf of the U.P. Jal Nigam, respondent Nos.3 and 4, will also file a counter affidavit indicating the inquiry initiated at their end, if any, and its results and also on the issue of payment of compensation.

Issue notice to respondent Nos.5 and 6 by registered post acknowledgement due.

Steps to be taken within a week.

List for admission on 6.1.2016, by which time the said respondents may file a counter affidavit.

This matter shall not be treated as tied up or part heard to this Bench."

7. Counter affidavit has been filed on behalf of respondents-3 and 4 stating that Boat was not for use on commercial basis and it was a gratuitous act on the part of U.P. Jal Nigam, hence no responsibility can be saddled upon it. It is also said that it was not a very old Boat but a new engine was purchased in December, 2010 itself and has been maintained every year. It is said that Boat was overloaded despite protest by boatman and that is the reason of mishap since capacity of Boat was only 8-10 persons but 18 persons had boarded the Boat.

8. No affidavit has been filed by State. When questioned learned Standing Counsel clearly stated that there is no such policy laid down by State for providing compensation in such circumstances and he also could not place before Court anything to show that any guideline has been framed by State for observing safety measures on river sides where large number of people gather to take bath/dip in rivers/ holy rivers particularly rivers of great religious importance like Ganga, Yamuna etc.

9. This is really a very unsatisfactory condition that large number of persons, almost every day, in different cities go to take bath/dip in rivers for religious or otherwise reasons and many a times by using Boats etc. but no safety measures have been provided nor any guideline in this regard has been framed either by State Government or by any other statutory responsible body which is "State" within the meaning of Article 12 of Constitution for example Local Bodies.

10. In our view, it is a fit case where State of U.P. through Chief Secretary should be directed to look into the matter and formulate an appropriate policy to take care for the safety of large number of people visiting rivers every day and not only appropriate safety measures/safety apparatus etc. should be provided but a mechanism should also be made available for implementation thereof.

11. With regard to relief for compensation etc., since petitioners have no statutory right to claim compensation from respondents, we do not find any occasion to issue any mandamus in this regard but looking to pitiable condition of family members of deceased persons, in our view it will be appropriate on the part of State to look into above condition of family of deceased persons, i.e., petitioners and if it finds proper, to take steps for providing proper means for survival of families in the shape of monitory compensation or providing employment etc. For this purpose, we give liberty to petitioners to make appropriate representation to State Government of U.P. through Chief Secretary and in case such a representation is made within a period of one month along with a certified copy of this order from today, it shall be looked into sympathetically and appropriate order in the light of observations made above shall be passed and communicated to petitioners within two months from the date of representation, so moved.

12. Registry is directed to send a copy of this judgment to Chief Secretary, U.P., Lucknow to take appropriate steps in respect to directions with regard to safety measures for facilitating the visit of persons to rivers and also to provide appropriate guidelines for safety measures and a mechanism for implementation thereof. Appropriate decision in this regard shall be taken within three months and a compliance report shall be submitted to this Court within 15 days thereafter.

13. The writ petition is disposed of in the manner hereinabove.

Order Date :- 19.9.2018

PS