Madras High Court
Chockalinga Gounder Memorial Hr. Sec. ... vs The District Collector on 5 January, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 WP(MD)No.7134 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.7134 of 2020
AND
W.M.P.(MD)No.6574 of 2020
Chockalinga Gounder Memorial Hr. Sec. School,
By its Correspondent / Secretary,
V.Kathirvel. ... Petitioner
Vs.
1. The District Collector,
Dindigul District.
2. M.Palanisamy Gounder ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, calling for the records relating to the impugned
order of the 1st respondent by his proceedings in Na.Ka.No.
31121/2019/Aa3 dated 24.02.2020 and quash the same.
For Petitioner : Mr.D.Venkatesh
For R-1 : Mr.T.Villavankothai,
Additional Government Pleader.
For R-2 : Mr.C.Gangai Amaran
***
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1/14
2 WP(MD)No.7134 of 2020
ORDER
The writ petitioner is a school with hostel facility.
Venkidusamy, the son of the second respondent, was studying in 8th
standard as a hosteler. On 09.03.2008, he went to take bath in a well
situated near the institution along with his friends. He drowned and died.
Crime No.84 of 2008 was registered on the file of Keeranur police
station. The Correspondent and Headmaster of the school and the
hostel warden were shown as accused. The second respondent
petitioned the District Collector, Dindigul to take action against the
institution. He also demanded payment of compensation. Since it was
not considered, he filed W.P.(MD)No.9232 of 2009. The writ petition
was disposed of on 24.10.2019 with a direction to the District Collector,
Dindigul to pass order on his representation dated 15.04.2009. Pursuant
thereto, the District Collector, Dindigul conducted enquiry and passed
the impugned order dated 24.02.2020 directing the petitioner to pay a
sum of Rs.5,00,000/- as compensation.
2.Challenging the same, this writ petition came to be filed.
The learned counsel appearing for the writ petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and
called upon this Court to grant relief. Per contra, the learned Additional
Government Pleader appearing for the first respondent as well as the
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learned counsel appearing for the second respondent submitted that the
impugned order does not warrant interference. They pressed for
dismissal of the writ petition.
3.I carefully considered the rival contentions and went through
the materials on record.
4.Two questions arise for consideration. The first one is
whether the District Collector had the jurisdiction to pass the impugned
order. It is an axiomatic proposition that the administrative authority
does not have any inherent power unlike civil courts and constitutional
courts. He can exercise only such power as has been specifically
conferred. What has not been conferred should be deemed to be non-
existent. Such conferral of power should be traced to Constitution or
statute. No court can invest an executive authority with power which the
authority does not otherwise possess. The order impugned in this case
is anchored entirely on the direction given by this Court. The District
Collector has no power to direct a person who is guilty of negligence to
pay compensation to the victim or his family. My attention has not been
drawn to any provision enabling the District Collector to award
compensation in a case of this nature. The writ court while issuing writ of
mandamus can only call upon the statutory authority to exercise his
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statutory power and functions. If the statutory power is absent, the
absence cannot be made good.
5.All that this Court directed vide order dated 24.10.2019 in
WP(MD)No.9232 of 2009 was to require the first respondent herein to
consider the representation of the second respondent herein on its own
merits and in accordance with law. Such a direction cannot be construed
as conferring power or jurisdiction that was otherwise not available. I,
therefore, hold that the impugned order lacks jurisdiction. It is set aside.
6.Do I stop with this ?. Certainly not. The second respondent
cannot be left high and dry. The occurrence took place way back on
09.03.2008. He submitted representations to the authorities. Since the
authorities did not respond, he filed W.P.(MD)No.9232 of 2009. It took a
decade for the writ petition to be finally disposed of. Since the second
respondent had already come before this Court seeking redressal, I am
of the view that the second respondent deserves to be granted relief as
against the writ petitioner in this proceeding itself. I do not want to
close this case with liberty to the second respondent herein to file a
fresh writ petition seeking compensation against the school
management.
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7.Can I do so?. The answer is “YES”. When the question
arose if the defendant in a suit can seek injunction against the plaintiff,
the Kerala High Court in the decision reported in AIR 1989 Ker 81
(Vincent and Others v. Aisumma) answered in the affirmative. Order
41 Rule 33 of the Code of Civil Procedure 1908, empowers the
appellate court to pass any decree and make any order which ought to
have been passed or made and to pass or make such further or other
decree or order as the case may require and this power may be
exercised in favor of all or any of the respondents or parties, although
such respondents or parties may not have filed any appeal or objection.
I am conscious that the Bombay High Court in the decision reported in
1993 SCC OnLine Bom 517 (S.K.Awasthy v. M.R.Bhope) had held
that Order 41 Rule 33 cannot be applied to a writ petition by analogy as
the writ petition is not an appeal and that the jurisdiction and powers of
writ court shall have to be ascertained independently of Order 41 Rule
33 of CPC. But in the very same judgment, it was noted that the Hon'ble
Supreme Court in Dwarkanath v. ITO (AIR 1966 SC 81) had held that
the powers of High Court under Article 226 of the Constitution were very
wide and it could reach injustice wherever found. In fact, the Hon'ble
Supreme Court as well as the various High Courts have invoked Order
41 Rule 33 CPC even in writ proceedings.
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8.Eastern Coalfields Ltd., v. Rabindra Kumar Bharti (2022)
12 SCC 390) is a civil appeal that arose out of writ proceedings
instituted by an employee. The Hon'ble Supreme Court observed that
Order 41 Rule 33 which clothes the appellate court with an extraordinary
power is a rare jurisdiction. It is to reach justice in the special facts of a
case. It is not an ordinary rule to be applied across the board in all the
appeals. In fact, the principle is that even if there is no appeal by any of
the parties in the proceedings, an order can be passed in his favour in
the appeal carried by the other side. An order which ought to have been
passed can be passed.
9.I rely on an article written by Shri.V.Lakshminarayanan (As
His Lordship Then Was) on the “Power of the High Courts To Do
Complete Justice” [(2021) 6 SCC J-39]. The learned author wrote as
follows :
“By the 1861 Act, the Colonial Parliament in England
empowered the High Courts with all such powers and authority
for and in relation to administration of justice. The relevant
sections are Sections 9, 10, & 11 of the Indian High Courts
Act, 1861. The sections are of the widest amplitude and was
subject only to law or regulations that may be made by the
Governor General-in-Council. The High Courts in India were
exercising the power of the King's Court and court of equity
were guided by the Principles of English Law. The initial
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limitations being that it was confined to British subjects within
the territorial limits of the respective courts. Post the
Constitution, that limitation on exercise of power has also been
removed. Apart from the Indian High Courts Act, the Code of
Civil Procedure and the Criminal Procedure Code read
together with the other legislations empowered the Courts to
do complete justice or pass such orders in the interests of
justice or to achieve ends of justice.
It should not be missed here that “natives” under the British
Colonial rule did not have rights except what the colonial law
permitted. There were no fundamental rights and the
paramount duty was to obey the Crown and its servants. The
Empire owed no duties to them. Even under those
circumstances, the High Courts were permitted to pass orders
in the “interests of justice” or “to achieve ends of justice”. The
situation on and after 26-1-1950, is quite the reverse is the
case. The citizens have rights and duties with corresponding
powers and function on the State. Article 14 stands out as the
most important duty. It would be a duty of the constitutional
courts to ensure that to achieve that end, they have the
powers to do “complete justice”.
As is applied to Article 142, the High Courts can resort to this
power to supplement their jurisdiction. It could not act in
derogation of the specific provisions in the statute. There was
yet another manner in which the courts could pass orders to
render complete justice. It was by resorting to “justice, equity
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and good conscience” Here too, an identical limitation applied
prior to its application
.... the Constitution recognised that the High Courts were
rendering complete justice by giving directions or by passing
orders towards “ends of justice” or where there was no positive
law, by resorting to the principles of “Justice, Equity and Good
conscience”.
....the argument that if it has not been specifically conferred, it
should be deemed to have been denied. This principle applies
to the executive and not to the judiciary. The immediate
reference is that of Halsbury's Laws of England [Halsbury's
Laws of England, 4th Edn., Vol. 10, para 713.] . The authors
opined:
“Prima facie, no matter is deemed to be beyond the jurisdiction
of a superior court unless it is expressly shown to be so, while
nothing is within the jurisdiction of an inferior court unless it is
expressly shown on the face of the proceedings that the
particular matter is within the cognizance of the particular
court.”
This opinion was approved by a Supreme Court on more than
one occasion [ See Naresh Shridhar Mirajkar v. State of
Maharashtra, AIR 1967 SC 1] .
To put it in perspective, the principle of rendering complete
justice revolves around the idea of justice. The most recent
reflection on it is by Michael J. Sandel. He says “where there is
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injustice, everyone as a human being has a responsibility to
contribute to remedying injustice” ... Applying it to Courts,
when it comes to the constitutional courts, the responsibility is
higher.”
The learned author after asserting that unlike the Judges of the Kings
Bench who were lions under the throne, the High Court Judges under
the constitutional scheme are part of the throne itself would add that the
judgements of the Supreme Court that limit the power to do complete
justice require reconsideration. I will not go that far. A Judge exercising
judicial power is bound by precedent and discipline. He does not have
the freedom that an academic possesses. I, therefore, rely on the article
only for the limited purpose of holding that a writ court does have the
jurisdiction to grant relief in favour of a respondent against the writ
petitioner to achieve the ends of justice if the facts demand such a
course of action. Article 226 of the Constitution of India empowers the
High Court to issue to any person or authority directions, orders or writs
for the enforcement of any of the rights conferred by Part III and for any
other purpose. The power is couched in a wide language and it should
be interpreted as to advance the cause of justice.
10.If I do not adopt such an approach, I would be in the
unenviable position of a judge before whom there is a challenge to an
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arbitral award which patently requires modification. I recently came
across a case where the learned arbitrator after correctly approaching
the factual and legal issues committed an arithmetical error leading to
rejection of the claim. The claimant went before the High Court as well
as Supreme Court but nothing could be done. This is because Section
34 of the Arbitration and Conciliation Act, 1996 does not permit
modification of arbitral award by court (NHAI v. M.Hakeem (2021) 9
SCC 1 followed in (2023) SCC OnLine SC 982 (Larsen Air
Conditioning and Refrigeration Company v. Union of India and
Others). I will have to then rest content with setting aside the
impugned order and driving the petitioner to go back to square one. The
function of a Judge is to render justice as expeditiously as possible and
not play the game of snakes and ladders.
11.The basic facts are beyond dispute. The child of the
second respondent was a hosteler. The occurrence had taken place on
a Sunday. The petitioner took the stand that the second respondent's
child had already left the hostel on the previous day (Friday evening
itself). If that be so, the burden was on the institution to produce the
relevant movement register (In/Out Register). There is nothing on record
to show that the child had left the institution on Friday evening. More
than anything else, what clinches the issue against the petitioner is the
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location of the water body. The well is situated at a distance of hardly
650 meters from the hostel. The occurrence had taken place in the
forenoon on Sunday. The residence of the second respondent is in the
neighbouring village. It is said to be at a distance of around 7
Kilometers. If the child had left the hostel on Friday evening, he would
have come back only on Monday morning. But the occurrence took
place in the Forenoon on Sunday. Section 114 of the Indian Evidence
Act (corresponding to Section 119 of the to be notified “The Bharatiya
Sakshya Adhiniyam, 2023) empowers the Court to presume the
existence of any fact which it thinks likely to have happened having
regard to common course of natural events and human conduct. I
disbelieve the claim of the school management that the child left the
institution on Friday evening.
12.The child was aged around 13 years. He was studying in
8th standard. The moment he was admitted as a hosteler, the petitioner
assumed parental responsibility. Proper watch should have been kept
on the movement of the children. The duty of the educational institution
is to ensure physical safety of the children studying in it. The petitioner
had failed to discharge the said duty. Hence, the petitioner has to
compensate the second respondent.
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13.Considering the age of the child and the irreparable loss
suffered by the parents and other factors, I direct the petitioner to pay a
sum of Rs.5,00,000/- (Rupees Five Lakhs only) within a period of ten
weeks from the date of receipt of a copy of this order. Interest would
start running from the date of occurrence (09.03.2008) if the petitioner
fails to pay a sum of Rs.5,00,000/- within the time limit stipulated above.
The amount shall be paid to the mother of the child (wife of the second
respondent). I take judicial notice of the fact that drinking habit is on the
rise in Tamil Nadu. The second respondent may be a teetotaller. But I
want to ensure that the compensation paid by the petitioner does not
find its way to the coffers of TASMAC. The bank account details of the
second respondent's wife will be furnished to the petitioner. The
petitioner will deposit a sum of Rs.5,00,000/- in the said account within
the time limit as mentioned above.
14.This writ petition stands disposed of accordingly. No costs.
Consequently, connected miscellaneous petition is closed.
05.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU/skm
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To
1.The District Collector, Dindigul District.
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G.R.SWAMINATHAN,J.
PMU/skm
05.01.2024
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