Delhi High Court
Leela Mathur vs Municipal Corporation Of Delhi & ... on 2 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 02nd SEPTEMBER, 2022
IN THE MATTER OF:
+ LPA 48/2021 and C.M. No. 4157/2021
LEELA MATHUR ..... Appellant
Through: Mr. Akhil Sibal, Senior Advocate
(Amicus Curiae) with Appellant in
person.
versus
MUNICIPAL CORPORATION OF DELHI & ANR...... Respondents
Through: Mr. Tushar Sannu, Standing Counsel
with Ms. Pooja Gupta, Advocate for
Respondent/MCD.
Mr. Ajjay Aroraa & Mr. Anuj
Bhargava, Advocates for Delhi Jal
Board.
+ LPA 161/2021 and C.M. Nos.15709/2021 & 26516/2021
MUNICIPAL CORPORATION OF DELHI (ERSTWHILE) (EAST
DELHI MUNICIPAL CORPORATION/ EDMC) (ERSTWHILE
MUNICIPAL CORPORATION OF DELHI/ MCD) & ANR.
..... Appellants
Through: Mr. Tushar Sannu, Standing Counsel
with Ms. Pooja Gupta, Advocate for
Appellants/MCD.
versus
LEELA MATHUR ..... Respondent
Through: Mr. Akhil Sibal, Senior Advocate
(Amicus Curiae) with Respondent in
person.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
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SINGH KIRMOLIYA LPA 48/2021 etc. Page 1 of 22
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JUDGMENT
SUBRAMONIUM PRASAD, J
1. This Court has before it two cross Letters Patents Appeals emanating
from the Impugned Judgment dated 12.02.2020 ("Impugned Judgment"),
passed by the Ld. Single Judge of this Court in W.P.(C) 8098/2010. The first
of these appeals i.e. LPA No. 48/2021 has been filed by Smt. Leela Mathur
seeking, inter alia, an enhancement of the cost of Rs.3 lakhs imposed upon
the Municipal Corporation of Delhi ("MCD") vide the Impugned Judgment.
The other appeal i.e. LPA No. 161/2021, has been preferred by the MCD
seeking setting aside of the compensation/costs of Rs. 3 lakhs imposed upon
it.
2. The facts of the appeals before us are that Smt. Leela Mathur
presently resides at House No.98, West Azad Nagar, Shahdara, South Delhi,
Delhi. This property was purchased by her parents in 1952 and in 1976, Smt.
Leela Mathur's father applied for completion certificate vide Receipt No.
222034 by depositing a certain fee. Smt. Leela Mathur contends that she has
been residing in the said property since 1970.
3. In W.P.(C) 8098/2010, it was the case of the Appellant i.e. Smt. Leela
Mathur that when the property was constructed, it was placed at the road
level. However, subsequently, the Municipal Corporation has re-laid the
adjoining road. Each time the road was repaired/re-constructed, the level of
the road rose by about 2 ½ feet. Due to this, the Petitioner/Appellant's house
has gone below the road level.
4. The Appellant states that she had requested the authorities at various
instances to dig the road, and then construct it to ensure that her house is not
placed below the road level, however, to no avail. The effect of this is that
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since the house is below the road level, the rain water gets collected in the
house which has caused damage to the house of the Petitioner. It is stated
that during the monsoons it is impossible to live in the house as rain water
enters the house. This constrained Smt. Leela Mathur to file W.P.(C)
8098/2010 against MCD, seeking a direction to the MCD to reconstruct the
road, and compensation for the harm caused to her belongings. The Ld.
Single Judge vide Order dated 03.12.2010 was pleased to issue notice and
direct the filing of a status report.
5. On 23.03.2011, the MCD filed its first Status Report in WP(C)
8098/2010 stating that since the property of Smt. Leela Mathur is an old
construction, it was below the level of the road. Further, it was submitted by
the MCD that Smt. Leela Mathur's property was the only one below road
level. In her reply to the first Status Report, Smt. Leela Mathur stated that
she had personally visited the houses of her neighbours, and that several of
them were facing the same issue. Due to this, several individuals of her
locality had also been compelled to sell their houses to builders who
possessed the financial wherewithal to reconstruct houses.
6. In light of the competing facts brought on record, the Ld. Single Judge
vide Order dated 06.05.2011 directed certain officials of the MCD to inspect
the premises again. Further, he sought solutions from the officials of the
MCD.
7. Thereafter, the MCD filed its second Status Report, whereby it
confirmed that there were in fact 11 properties in the area which faced the
same issue as Smt. Leela Mathur. The MCD suggested that the Smt. Leela
Mathur should apply for a fresh building plan, and re-construct her house in
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accordance with it. A reply was filed by Smt. Leela Mathur on 12.04.2012
wherein she reiterated her previous position.
8. On 24.05.2012, the Ld. Single Judge of this Court again directed an
inspection of Smt. Leela Mathur's premises. The Ld. Single Judge stated
that an arrangement needs to be made for proper drainage facility to ensure
that neither the premises of Smt. Leela Mathur's nor the adjoining road is
flooded.
9. In light of the above direction, a third Status Report dated 04.07.2012
was filed by the MCD, with the suggestions and observations which read as
under:
"During inspection on 15.5.2012 it has been noticed
that the level of the said premises is about 2' -6" down
from the road level. It is also noticed that no sewerage
connection has been obtained by the owner of premises
and resulting in accumulation of sewerage water
/waste water /rainy water.
3. After technical inspection of the site and total
assessment of the situation it was decided as under:
i) The owner of the premises has to apply for a
sewerage connection to DJB for proper disposal of
sewerage as well as overflow of waste /rainy water.
ii) To avoid over flow of rainy water from road
during rain in the premises it was suggested by
technical staff to construct a toe wall about 8 inches
height in the opening of the gate. It was also
suggested that if owner of the premises does not
construct the toe wall the department can construct
the said toe wall after having due consent from the
owner of the premises."
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10. On 07.02.2013, the Ld. Single Judge of this Court again directed an
inspection of the area outside Smt. Leela Mathur's house. The MCD was
also directed to file a status report, and suggest means of avoiding water
logging. Pursuant thereto, another status report dated 19.07.2013 was filed
by the MCD reiterating its position in the third status report dated
04.07.2012.
11. Thereafter, on 10.07.2013, the Ld. Single Judge passed an order
directing the MCD to explore the possibility of making a drain to avoid
water logging. However, MCD stated that it was not feasible in the
following terms:
"8. It is submitted that the matter was listed on
10.03.2017 and Hon'ble Court was pleased to direct
the Respondent to explore the feasibility of making a
drain from an appropriate place inside the front
boundary of the Petitioner's connecting the open
courtyard to the covered drain outside which should
not be more than three to four feet away. It is humbly
submitted in compliance of the above directions that
the above is technically not possible unless and until
the petitioner raises his floor level upto the level of the
drain which is about 2 feet's from the existing level of
the house. Lowering of the road level would further be
not practical in view of the fact that there are about
101 number of houses in the vicinity of this house and
lowering of the road level would only compound the
miseries of other occupants."
12. Around 2015, Smt. Leela Mathur had found a letter addressed by her
father to the Zonal Engineer of MCD, Shahdara Zone, Delhi vide which her
father intimated the said Zonal Engineer that he had submitted the original
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Building Plan of property, along with payment of Rs.3/- vide Receipt No.
222034 dated 15.03.1976 and had sought completion certificate of same,
which was still not issued. After promptly providing this file to the Deputy
Commissioner, Municipal Corporation of Delhi, she sought a copy of the
Sanction Plan submitted by her father, along with the original file.
Thereafter, vide letter dated 07.12.2015, the Executive Engineer, Shahdara
Zone, Delhi supplied a copy of the relevant office file indicating that Smt.
Leela Mathur's father had in fact deposited money for sanction of building
plan.
13. Thereafter, vide Order dated 09.01.2015, the Single Judge of this
Court ordered that the cost of re-construction of Smt. Leela Mathur's house
be placed before the Court. Upon consulting an architectural firm namely,
Aarkitek Combine, Smt. Leela Mathur stated that the total cost of re-
construction is Rs. 12.20 Lakhs.
14. On 01.04.2015, Smt. Leela Mathur filed a RTI application asking if
the MCD can lay new roads on top of old roads, thereby increasing the
surface of the road. The East Delhi Municipal Corporation responded to this
RTI on 21.04.2015 stating that the MCD is supposed to maintain the level of
roads as per the height of the previous road. Thereafter, between 2015 and
2020, the Petitioner therein and MCD filed other affidavits and status
reports. However, no new submissions were made during this period.
15. The Ld. Single Judge by passing the Impugned Judgment dated
12.02.2020 imposed a costs of Rs.3. Lakhs as compensation, and directed
the MCD to hand over a pump to Smt. Leela Mathur to avoid water logging.
16. Thereafter, Smt. Leela Mathur sought a revised cost of construction,
which has been calculated as amounting to about Rs. 21 Lakhs.
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17. This matter was listed before this Bench on 28.07.2022 when Smt.
Leela Mathur appeared in - person to represent her case. Having regard to
the advanced age and frail health of the Appellant, this Court deemed it
appropriate to appoint Mr. Akhil Sibal, Sr. Advocate as Amicus Curiae, in
order to assist Smt. Leela Mathur.
18. Mr. Akhil Sibal, learned Senior Counsel appearing for the
Appellant/Smt. Leela Mathur, submitted that he had personally visited the
property. He substantiated the claim of Smt. Leela Mathur that water
logging had destroyed the woodwork of her house, has ruined other material
possessions, and has rendered her house inhabitable. Mr. Sibal has relied
upon the various Status Reports, as cited above to argue that the MCD has
prima facie been negligent. It has also been pointed out that the Ld. Single
Judge has noticed the uncontested estimate of reconstruction of Rs. 12
Lakhs, however, without recording any reason has granted a compensation
of only 3 Lakhs to Smt. Leela Mathur.
19. Per contra, the Ld. Standing Counsel for MCD has argued that the
issue of water-logging was caused as the property in question was not
regularised and illegal. It was also averred that the MCD had time and again
sought to provide solutions but Smt. Leela Mathur has been adamant on
receiving compensation. The Ld. Standing Counsel for MCD has also
repeatedly suggested that a toe wall could be constructed which would make
it easy to leave the premises, in case water logging occurs.
20. In his rejoinder, Mr. Akhil Sibal, learned Senior Counsel appearing
for the Appellant/Smt. Leela Mathur, has brought to the attention of this
Court the fact that the MCD has in fact lost the original documents
pertaining to the property in question, and that predecessor benches of the
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Ld. Single Judge had raised serious concern regarding this. It is further
argued that the suggestion of installing a toe wall is entirely unfounded
considering the Appellant is in her 80s, and cannot possibly be expected to
use a toe-wall. He has further argued that the issue of water-logging is
exacerbated as garbage gets accumulated in the drain during monsoons
adding to the woes of the Appellant.
21. Heard the learned counsels for the parties and perused the material on
record.
22. The issue is under consideration before this Court since 2011. Several
Status Reports have been filed. Despite the fact that the roads have been
constructed one over the other because of which the house of the Petitioner
has gone about 2 ½ feet below the road level, the Municipal Corporation has
been adamant in not bringing down the road level on the ground that if it is
done then it will create problem to other house owners. It is admitted fact
that other house owners in the area have sold their properties to various
other persons who have made fresh constructions which is on the road level.
The Petitioner, who is 80 years old, has not been able to re-construct her
house.
23. A Status Report had been filed on 24.05.2011 where it has been stated
that out of 101 properties in the area, 82 properties are at the road level,
meaning thereby that the residents have actually demolished and
reconstructed the properties by bringing it to the road level and 11
properties, which are not demolished and re-constructed, are below the road
level. The said Status Report categorically admits that since 1997, roads
were repaired many times and because of which the roads have came up.
Relevant portion of the said Status Report reads as under:
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"2. That the deponent had inspected total 101
properties, 55 properties in gali No. 3,· 21 properties
in gali No. 5 and 25 properties in gali No. 6, including
property number mentioned in para no. 4 and 5 of the
reply of the status report filed by petitioner. It is
submitted that there are 82 properties out of 101
properties which are above the road level and 11
properties were found below the road level. It is
further submitted that these 11 properties are very old
and since 1987 the roads were repaired many times
and that was the reason the level of the road became
slightly raised. It is also submitted that the properties
mention in the list of petitioner in para 4 -5, there are
two properties are at same level of the road, two
properties are not traceable and four properties are
partly above and partly below the road level"
24. In its second Status Report, the MCD admitted that 11 houses were
facing the same issue. However, in an unsuccessful attempt to divert the
blame on the Petitioner and the Delhi Jal Board, the MCD argued that the
problem has been caused as Azad Nagar was an illegal/unregularized
society. After admitting that it had time and again reconstructed the road in
an indiscriminate manner, the MCD callously suggested that the Appellant
should re-construct her house in terms of a fresh sanction plan.
25. Vide its third Status Report dated 04.07.2012, the MCD further
admitted that Smt. Leela Mathur's house was 2-6 inches below the road
level and proceeded to suggest that she gets a sewerage connection.
Pertinently, in a response to a RTI preferred by Smt. Leela Mathur, the East
Delhi Municipal Corporation admitted that the MCD is supposed to
maintain the level of roads as per the height of the previous road. In the
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subsequent Status Reports filed by the MCD, the same submissions have
been reiterated.
26. In Status Report dated 10.07.2013, the Municipal Corporation has
stated that the level of the premises is about 2.5 ft. down and that the entire
problem is arising only because of the lack of sewage connection. The said
Status Report also categorically states that due to dumping of garbage the
drains gets chocked resulting in collections of drain water. Relevant portion
of the said Status Report reads as under:
"4. That in compliance of the directions/ order dated
06.05.11 passed by Hon'ble High Court, deponent has
inspected 101 properties, 55 properties in Gali No. 3,
21 properties in Gali No. 5 and 25 properties in Gali
No. 6. It is submitted that there are 82 properties out of
101 properties which are above road level and 11
properties were found below road level. It is further
submitted that these 11 properties are very old and
since 1987 the roads were repaired many times and
that was the reason, the level of road become slightly
raised. That as per the technical survey carried on by
the Department it has been revealed that both, the level
of the drains and the roads are higher than the floor
level of the petitioner. In view of the fact that the drain
level is higher by about 2.5 ft. it would not matter what
the level of the road is because the drain would flow
back to the house irrespective of the road level.
Especially so when the petitioner herself has failed to
take a sewer connection till date."
27. At the outset, this Court finds no force in the MCD's argument that
the issue at hand was caused as Azad Nagar is an unauthorised colony. A
sizeable population of Delhi lives in areas designated by the Government as
"unauthorised colonies", which did not feature in the original development
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plan/area of Delhi or were areas which were not zoned for residential use.
Thereafter, the Government of NCT Delhi initiated the regularisation
process which first took place in the 1970s, then the early 1980s.
Admittedly, the colony of the Appellant was regularised vide Resolution No.
1634, Item No. 35 dated 15.11.1987. It also appears from the record that the
plot of Smt. Leela Mathur has been built as per the sanction plan, which is
borne out from the MCD's receipt for deposit of money.
28. The MCD has sought to argue that since this colony was unplanned
and was subsequently regularised, they have been repairing the roads on a
"as is where is basis". A Municipal Corporation constituted for the precise
purpose of providing basic amenities to the citizens cannot shirk off
responsibility on the ground that the society was once unauthorised. It is
evident that since then, the Government of NCT Delhi has regularised these
societies with an aim to include them within the development plans of the
city.
29. The suggestion given by the learned Counsel for the MCD to make a
toe wall of about 8 inches cannot be accepted as a solution to the problem
faced by Smt. Leela Mathur. Smt. Leela Mathur is about 80 years of age and
she cannot be expected to climb over a toe wall of 8-10 inches every time
she intends to enter her house. Further, the learned Counsel for the MCD
has submitted that since they have already installed a pump the problem
does not exists anymore. This also cannot be accepted because during heavy
rains, the house gets water logged thereby causing damage to the house of
Smt. Leela Mathur.
30. Furthermore, the issue at hand is not remotely related to the status of
the property. The locality of Azad Nagar faces the issue of waterlogging
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because the MCD has indiscriminately repaired the roads, without following
basic care and caution. It also appears that the actions of the MCD have
compelled individuals, who did not have the financial wherewithal to raise
the level of their house, to sell their houses to builders. Considering this, this
Court finds no force in the argument of the Ld. Counsel for the MCD that
the issue of water-logging has occurred due to the status of the colony. If
anything, the MCD needs to ensure that other societies which were
"unauthorised" and have subsequently been regularised are provided with
the requisite sanitation facilities, functional drainage system, roads, and
other similar infrastructural amenities.
31. Further, the MCD has time and again suggested that Smt. Leela
should apply for a fresh sanction plan, and re-build her house. This Court
has taken strong objection to the nature of this submission considering that
the MCD is a public body duly enacted for the benefit of the public at large.
The MCD being such a body, cannot reasonably expect individuals to re-
apply for sanction plans, and further build their houses from scratch. It
should not be the prerogative of a few, with the requisite financial
wherewithal, to enjoy amenities as basic as sanitation, functional drainage
systems, and mindfully constructed roads.
32. During the course of the proceedings, this Court also had the occasion
of inquiring from the Counsel for the Delhi Jal Board, if the issue could be
resolved by the installation of a sewerage connection. The Ld. Counsel for
the Delhi Jal Board submitted that obtaining a sewerage connection alone
will not remedy the issue of water-logging. The Delhi Jal Board has rebutted
the submission of the MCD that the sewerage lines are below the house of
the Appellant. Further, it was brought to the attention of this Court that
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although there exists a drain near the relevant house, the same gets clogged
during monsoons. Ensuring that the public drainage system is fully
functional, and avoiding the blockage of sediments causing chocking of
drain is the prerogative of the MCD. It is unfortunate that not only has the
MCD created the issue of water-logging but also exacerbated the situation
by not taking appropriate measures to avoid chocking of drains during
monsoon.
33. It is well settled that it is the duty of the Municipal Corporation to
ensure that there is no water logging and proper storm water drains are
constructed. The MCD cannot pass the buck to the residents to contend that
since the storm water drains are clogged nothing can be done by the MCD.
The MCD has, therefore, woefully failed in discharging its duties inasmuch
as it has admittedly laid down roads one over the other thereby increasing
the height of the roads which ought not to have been done. The MCD has
also not ensured that there are proper storm water drains in the area so that
the rain water can be drained away.
34. This Apex Court in Municipal Council, Ratlam vs. Vardhichand and
Ors., AIR 1980 SC 1622, noted that decency and dignity being facets of
human rights need to underscore in every action undertaken by the
Municipal Council. The Apex Court further proceeded to observe as under:
"15. Public nuisance, because of pollutants being
discharged by big factories to the detriment of the
poorer sections, is a challenge to the social justice
component of the rule of law. Likewise, the grievous
failure of local authorities to provide the basic amenity
of public conveniences drives the miserable slum-
dwellers to ease in the streets, on the sly for a time, and
openly thereafter, because under Nature's pressure
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bashfulness becomes a luxury and dignity a difficult
art. A responsible municipal council constituted for the
precise purpose of preserving public health and
providing better finances cannot run away from its
principal duty by pleading financial inability. Decency
and dignity are non-negotiable facets of human rights
and are a first charge on local self-governing bodies.
Similarly, providing drainage systems -- not pompous
and attractive, but in working condition and sufficient
to meet the needs of the people -- cannot be evaded if
the municipality is to justify its existence. A bare study
of the statutory provisions make this position clear.
xxx
24. We are sure that the State Government will make
available by way of loans or grants sufficient financial
aid to the Ratlam Municipality to enable it to fulfil its
obligations under this Order. The State will realise that
Article 47 makes it a paramount principle of
governance that steps are taken for the improvement of
public health as amongst its primary duties". The
Municipality also will slim its budget on low priority
items and elitist projects to use the savings on
sanitation and public health. It is not our intention that
the ward which has woken up to its rights alone need
be afforded these elementary facilities. We expect all
the wards to be benefited without litigation. The
pressure of the judicial process, expensive and
dilatory, is neither necessary nor desirable if
responsible bodies are responsive to duties. Cappilletti
holds good for India when he observes: [ Access to
Justice--A World Survey, Vol. 1, ed. by M. Cappelletti
and B. Garth, pp. 123-24]
35. The question of award of compensation under the constitutional
jurisdiction of this Court under Article 226 of the Constitution has been
considered in a large number of cases. Although the position in law is fairly
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well-settled, a brief reference will be made to some of the decisions of the
Hon'ble Supreme Court and this Court. This Court while exercising its
jurisdiction under Article 226 of the Constitution of India has granted
compensation in a number of cases [refer: Raj Kumar v. Union of India
(2005), 125 DLT 653; Delhi Jal Board v. Raj Kumar, (2005) 8 AD (Delhi)
533; Chitra Chary v. DDA, (2005) 1 AD (Del) 29; Shri Chand v. Chief
Secretary, 2004 (112) DLT 37; Shobha v. GNCTD, (2003) IV AD (Delhi)
492; Shyama Devi v. GNCTD, (1999) 1 AD (Cr) Delhi 549; All India
Lawyers' Union (Delhi Unit) v. Union of India and B.L. Wali v. Union of
India, (2004) VIII AD (Delhi) 341]
36. In D.K. Basu v. State of W.B., (1997) 1 SCC 416, the Apex Court,
while granting compensation in a Writ Petition, has observed as under:
"43. Till about two decades ago the liability of the
Government for tortious acts of its public servants was
generally limited and the person affected could enforce
his right in tort by filing a civil suit and there again the
defence of sovereign immunity was allowed to have its
play. For the violation of the fundamental right to life
or the basic human rights, however, this Court has
taken the view that the defence of sovereign immunity
is not available to the State for the tortious acts of the
public servants and for the established violation of the
rights guaranteed by Article 21 of the Constitution of
India.......
44. The claim in public law for compensation for
unconstitutional deprivation of fundamental right to
life and liberty, the protection of which is guaranteed
under the Constitution, is a claim based on strict
liability and is in addition to the claim available in
private law for damages for tortious acts of the public
servants. Public law proceedings serve a different
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purpose than the private law proceedings. Award of
compensation for established infringement of the
indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law since
the purpose of public law is not only to civilise public
power but also to assure the citizens that they live
under a legal system wherein their rights and
interests shall be protected and preserved. Grant of
compensation in proceedings under Article 32 or
Article 226 of the Constitution of India for the
established violation of the fundamental rights
guaranteed under Article 21, is an exercise of the
courts under the public law jurisdiction for penalising
the wrongdoer and fixing the liability for the public
wrong on the State which failed in the discharge of its
public duty to protect the fundamental rights of the
citizen.
45. The old doctrine of only relegating the aggrieved
to the remedies available in civil law limits the role of
the courts too much, as the protector and custodian of
the indefeasible rights of the citizens. The courts have
the obligation to satisfy the social aspirations of the
citizens because the courts and the law are for the
people and expected to respond to their aspirations. A
court of law cannot close its consciousness and
aliveness to stark realities. Mere punishment of the
offender cannot give much solace to the family of the
victim -- civil action for damages is a long drawn
and a cumbersome judicial process. Monetary
compensation for redressal by the court finding the
infringement of the indefeasible right to life of the
citizen is, therefore, useful and at time perhaps the
only effective remedy to apply balm to the wounds of
the family members of the deceased victim, who may
have been the breadwinner of the family."
(emphasis supplied)
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37. While dealing with the issue as to whether a Municipal Corporation
can be held liable to pay compensation in a Writ Petition, the Apex Court in
Municipal Corpn. of Delhi vs. Subhagwanti, (1966) 3 SCR 649, has
observed the following with regards to the principle of negligence:
"4. The main question presented for determination in
these appeals is whether the appellant was negligent in
looking after and maintaining the Clock Tower and
was liable to pay damages for the death of the persons
resulting from its fall. It was contended, in the first
place, by Mr Bishen Narain on behalf of the appellant
that the High Court was wrong in applying the
doctrine of res ipsa loquitur to this case. It was argued
that the fall of the Clock Tower was due to an
inevitable accident which could not have been
prevented by the exercise of reasonable care or
caution. It was also submitted that there was nothing in
the appearance of the Clock Tower which should have
put the appellant on notice with regard to the
probability of danger. We are unable to accept the
argument of the appellant as correct. It is true that
the normal rule is that it is for the plaintiff to prove
negligence and not for the defendant to disprove it.
But there is an exception to this rule which applies
where the circumstances surrounding the thing
which causes the damage are at the material time
exclusively under the control or management of the
defendant or his servant and the happening is such as
does not occur in the ordinary course of things
without negligence on the defendant's part."
(emphasis supplied)
38. The Apex Court in Sube Singh vs. State of Haryana, 2006 (3) SCC
178, has reiterated the power of this Court to provide compensation as an
appropriate remedy, in the following manner:
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"It is now well-settled that award of compensation
against the State is an appropriate and effective
remedy for redressal of an established infringement of
a fundamental right under Article 21, by a public
servant. The quantum of compensation will, however,
depend upon the facts and circumstances of each case.
Award of such compensation (by way of public law
remedy) will not come in the way of the aggrieved
person claiming additional compensation in a civil
court, in the enforcement of the private law remedy in
tort, nor come in the way of the criminal court
ordering compensation under Section 357 of Cr. PC.
Award of compensation as a public law remedy for
violation of the fundamental rights enshrined in Article
21 of the Constitution, in addition to the private law
remedy under the law of torts, was evolved in the last
two-and-a-half decades."
39. In the celebrated judgment of Nilabati Behera vs. State of Orissa,
(1993) 2 SCC 746, the Apex Court has observed as under:
22. The above discussion indicates the principle on
which the court's power under Articles 32 and 226 of
the Constitution is exercised to award monetary
compensation for contravention of a fundamental right.
This was indicated in Rudul Sah [(1983) 4 SCC 141 :
1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain
further observations therein adverted to earlier, which
may tend to minimise the effect of the principle
indicated therein, do not really detract from that
principle. This is how the decisions of this Court
in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798
: (1983) 3 SCR 508] and others in that line have to be
understood and Kasturilal [(1965) 1 SCR 375 : AIR
1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished
therefrom. We have considered this question at some
length in view of the doubt raised, at times, about the
propriety of awarding compensation in such
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proceedings, instead of directing the claimant to resort
to the ordinary process of recovery of damages by
recourse to an action in tort. In the present case, on the
finding reached, it is a clear case for award of
compensation to the petitioner for the custodial death
of her son.
40. Furthermore, the Apex Court in Municipal Corpn. of Delhi vs. Sushila
Devi, (1999) 4 SCC 317 has held as under:
"2. The deceased was survived by a widow, three
minor sons and a minor daughter and his mother. All
the six brought a suit for damages claiming Rs 3 lakhs.
A learned Single Judge sitting on the original side of
the High Court held the Municipal Corporation of
Delhi liable for damages in torts and granted a decree
of Rs 90,000 by way of compensation payable to the
widow and the children of the deceased. Two letters
patent appeals were preferred. The Municipal
Corporation sought for the suit being dismissed while
the claimants sought for enhancement in the amount of
compensation. The Division Bench dismissed the
appeal filed by the Corporation but at the same time
partly allowed the appeal preferred by the claimants
enhancing the amount of compensation to Rs 1,44,000
payable with interest calculated at the rate of 6 per
cent per annum from the date of suit, i.e., 5-8-1966 till
17-9-1970 when the amount was deposited by the
Corporation in the court for payment to the successful
claimants. The Division Bench also allowed interest at
the rate of 3 per cent per annum on Rs 90,000 from the
date of deposit in the court till the date of actual
withdrawal of the amount by the claimants and interest
at the rate of 6 per cent per annum on Rs 54,000 from
17-9-1970 till payment. The reasons for the award of
additional interest calculated at the rate of 3 per cent
per annum on Rs 90,000 and the legality thereof we
shall deal with separately.
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xxx
9. The law is stated in Winfield and Jolowicz on
Torts (13th Edn., 1989, p. 415) in these words:
"If damage is done owing to the collapse of the
projection on the highway or by some other mischief
traceable to it, the occupier of the premises on which it
stood is liable if he knew of the defect or ought, on
investigation, to have known of it. At any rate this is
the rule with respect to a thing that is naturally on the
premises e.g. a tree."
xxx
15. The deceased was aged 30. He was employed in a
family business wherefrom he was drawing a salary of
Rs 650 per month. The learned trial Judge deducted an
amount of Rs 150 per month for expenses incurred on
the self and assessed the dependency at Rs 500 per
month. The Division Bench found that apart from
salary the deceased was also getting commission on
sales. The net income of the deceased was arrived at
Rs 1000 per month wherefrom Rs 200 were deducted
as expenses on the self. The dependency was assessed
at Rs 800 per month. The learned trial Judge as well as
the Division Bench have adopted a multiplier of 15.
Thus, the Division Bench has assessed the quantum of
compensation at Rs 1,44,000 in supersession of Rs
90,000 assessed by the learned trial Judge. Though,
the learned counsel for the Municipal Corporation has
assailed the assessment to be on the higher side and
the learned counsel for the claimants has submitted
that keeping in view the better further prospects of the
deceased in the family business, coupled with the youth
of the deceased, the monthly income should have been
taken at Rs 1826 but we are of the opinion that the
figure of compensation arrived at by the Division
Bench is a very reasonable figure and calls for no
interference. The multiplier has also been correctly
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adopted. In the leading case of Susamma
Thomas [G.M., Kerala SRTC v. Susamma Thomas,
(1994) 2 SCC 176 : 1994 SCC (Cri) 335] this Court
adopted a multiplier of 12 when the deceased was aged
39. We do not find any fault with the figure of
compensation having been arrived at Rs 1,44,000. The
same is upheld."
41. The apathy of the Municipal Corporation is also writ large from the
submission that the MCD lacks the funds to remedy the grievance of Smt.
Leela Mathur. A responsible Municipal Corporation consisted for the
precise purpose of providing these basic public goods cannot shirk off its
responsibility by citing financial constraints. Considering that it is evident
that the MCD has been grossly negligent in its conduct, it is incumbent upon
this Court to craft tools in order to do complete justice for the Appellant. In
the considered opinion of this Court, in the facts and circumstances of this
particular case, providing monetary compensation to the Appellant i.e. Smt.
Leela Mathur is the most viable mode of redress available.
42. Mr. Akhil Sibal, learned Amicus Curie appearing for Smt. Leela
Mathur, suggests that the only solution at the moment seems to be that the
house of Smt. Leela Mathur be demolished and re-constructed and the old
lady cannot be burdened with the cost of demolition and re-construction for
no fault of hers. The Ld. Single Judge has recognised that the MCD had
been grossly negligent and has awarded a sum of Rs. 3 Lakhs as
compensation to Smt. Leela Mathur. A fresh evaluation indicates that the
Smt. Leela Mathur would have to spend close to a whopping Rs. 21.20 lakhs
to carry out the necessary repairs.
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43. Having due regard to the advanced age of the Appellant, the fact that
she has been pursuing this litigation for over a decade, has suffered loss of
her material possessions, and has undergone immense agony and anxiety for
a prolonged period of time, this Court finds it appropriate to enhance the
compensation awarded to Smt. Leela Mathur by a sum of Rs. 9,00,000/-,
which would be roughly half the cost of reconstruction, and the challenge by
the MCD to the Order dated 12.02.2020 awarding compensation of
Rs.3,00,000/- to Smt. Leela Mathur is rejected. This Court expresses its
gratitude to Mr. Akhil Sibbal, learned Senior Counsel, who has assisted this
Court in every possible manner. He has taken the pain to visit the site and
has placed the facts of the case dispassionately.
44. In light of the aforesaid, the petitions are disposed of, along with
pending application(s), if any.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J
SEPTEMBER 02, 2022
S. Zakir..
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