Surendra Pandey vs Commissioner, Mcd And Anr
2015 Latest Caselaw 5536 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 3rd August, 2015.

+                           W.P.(C) No.7744/2011

       SURENDRA PANDEY                                            ..... Petitioner
                   Through:                 Mr. Akhilesh Arora, Adv.

                                       Versus

    COMMISSIONER, MCD AND ANR                   ..... Respondents

Through: Ms. Biji Rajesh for Mr. Gaurang Kanth, Adv. for R-1.

Mr. Peeyoosh Kalra, Addl. Standing Counsel for GNCTD.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition seeks a mandamus to the respondent no.1 Municipal

Corporation of Delhi now succeeded by North Delhi Municipal Corporation

(NrDMC) to pay compensation of Rs.10,00,000/- to the petitioner for

negligence causing the death of the son aged nine years of the petitioner.

2. It is the case of the petitioner:-

(a) that he has been residing in New Ranjit Nagar with his family

and his deceased child was a student of Class III in K.D. Junior

Public School located in the same area;

(b) that the area in which the petitioner was residing is surrounded

by a park, where children usually play; swings and slides had

also been provided in the park for the children to play;

(c) there is a drain / nallah about 18-20 feet deep at a distance of

less than 8 feet from the said park and for long had been left

uncovered, without any fencing or barricading;

(d) that on 25th February, 2011, his son, while playing, slipped and

rolled over into the said drain and drowned; and,

(e) that the Delhi Commission for Protection of Child Rights took

suo motu cognizance of the incident and after independent

investigation came to the conclusion that the respondent no.1

NrDMC is prima facie negligent in not providing adequate

safety measures around the open drain and recommended

interim relief of Rs.50,000/- to the petitioner's family.

3. The writ petition was entertained.

4. The respondent no.1 NrDMC in its counter affidavit has pleaded:-

(i) that an open sullage / storm water drain of 1.00 k.m. length and

a width of 3.50 mtrs. is running from Ranjit Nagar to DTC drain

(at Dr. Girdharilal Goswami Marg);

(ii) that on one side of the drain there is a 10 feet high boundary

wall of Indian Agricultural Research Institute (IARI) at Pusa,

running parallel to the drain;

(iii) that on the other side of the drain, residential structures have

come up by way of encroachment on otherwise vacant

government land;

(iv) that the drain is not accessible to general public and it is out of

reach of a person in the areas adjoining the drain unless

someone makes an extra effort to approach it;

(v) that the New Ranjit Nagar, of which the petitioner claims to be

the resident, touches the one end of the drain;

(vi) that on enquiries made it was learnt that the deceased child

along with other children used to cross the boundary wall

aforesaid to play football in the parks of IARI Pusa;

(vii) that the depth of the drain varies from 3 to 4 feet only and most

of the time it remains dry;

(viii) that only during monsoon or heavy rainfall, the water level in

the drain is of 2 to 3 feet;

(ix) that in accordance with the report of Delhi Commission for

Protection of Child Rights, a payment of Rs.50,000/- was made

to the petitioner; and,

(x) that there is no park in the vicinity of the drain and the

residential structures which have come up on the said land are

encroachments over public land.

5. In view of the aforesaid state of pleadings, it has been enquired from

the counsel for the petitioner whether any FIR of the death was lodged and

an investigation had been commenced

6. The answer is in the negative.

7. On further enquiry it is informed that the petitioner, besides the

deceased, has three other children.

8. Though the Courts in some cases, and copies of judgments in some of

which have been filed by the petitioner himself, has undoubtedly held that

the remedy of compensation for negligence resulting in loss caused by the

public authority can be granted in writ jurisdiction but the present does not

fall in that category of cases. Here, there is nothing to show that the death of

the child of the petitioner was attributable to the respondent no.1 NrDMC

from whom compensation is claimed. Though it is stated that play equipment

was installed at the site which is called 'park', and the same is evident in one

photograph filed by the petitioner also, but the petitioner has shied from

stating that the said play equipment was installed by the Municipality. The

petitioner again, though has pleaded that the land is a public park, but has not

filed any layout plan or anything else to show that the respondent no.1

NrDMC identifies it as a park meant for children to play in and in which case

it could certainly have been stated that the Municipality ought to have taken

care that there was nothing hazardous in the vicinity of the park. The

Municipality otherwise cannot be said to be negligent in not fencing or

barricading a drain in the vicinity whereof there are no residences and in the

vicinity whereof ordinarily children would not go or have possibility of

going.

9. Division Bench of this Court in Kamla Devi Vs. Union of India

MANU/DE/0300/2015, on a conspectus of case law, held that in the face of

such disputed questions of facts, writ petition cannot be entertained.

Reference in addition may be made to Chairman, Grid Corporation of

Orissa Ltd. Vs. Sukamini Das (1999) 7 SCC 298.

10. In the aforesaid circumstance it appears that the petitioner, if at all

desires to press his claim, ought to take the appropriate remedy of a civil suit

for recovery of compensation.

11. Accordingly, the petition is dismissed with liberty to the petitioner to

institute a suit for recovery of compensation. If the said suit is filed on or

before 7th September, 2015, the respondents shall not be entitled to take the

plea of the claim therein being barred by time and the said suit shall be

adjudicated on merits of the claim.

No costs.

RAJIV SAHAI ENDLAW, J AUGUST 03, 2015 'pp'..

(corrected & released on 22nd August, 2015)