Sikkim High Court
Dolma Kumari Thatal And Ano vs State Of Sikkim And Ors on 5 December, 2022
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 5th December, 2022
---------------------------------------------------------------------------------------------------
SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
---------------------------------------------------------------------------------------------------
WP(C) No.46 of 2020
Petitioners : Dolma Kumari Thatal and Another
versus
Respondents : State of Sikkim and Others
Application under Articles 226 of the Constitution of India
---------------------------------------------------------------------------------------------------
Appearance
Ms. Mon Maya Subba, Advocate for the Petitioners.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Sujan
Sunwar, Assistant Government Advocate for the State-
Respondent Nos.1 to 2.
Mr. Sudhir Prasad, Advocate for the Respondent No.3
---------------------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1(i). The senseless loss of burgeoning lives, in instances
where a little caution, if exercised, by the Respondents could have
prevented such tragedies, is the pivotal concern of this Court, while
considering this Petition. Before narrating the facts of the instant
case, it is imperative to recapitulate that a Division Bench of this
Court vide its Judgment dated 01-07-2016, in Zangpo Sherpa vs.
Government of Sikkim and Others1, was seised of the unfortunate
untimely death of an eleven year old school going girl, who went
swimming in the river Teesta, in the afternoon of 18-04-2014. A
Dam upstream having suddenly released water into the river sans
prior warning, resulted in a swollen river downstream, rendering
the child helpless and unable to cope, as a consequence of which
she drowned. The Division Bench issued a slew of directions in the
said Petition inter alia as follows;
2016 SCC OnLine Sikk 91
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
"25. Thus, in conclusion, having considered the facts
and circumstances of the matter, Report made by the
Respondent No.1 and 2, the submissions at the Bar
and considering the negligent act of the Respondents
No.3, we pass the following directions disposing of the
Writ Petition;
(i) The Respondent No.3 shall pay compensation
of Rs.5,00,000/- (Rupees five lakhs) only, to
the parents of the victim, as a measure of
mitigating the loss accrued to them on account
of the death of their child, within the stipulated
period mentioned hereunder, failing which this
amount shall carry interest @ 9% per annum
from the date of judgment till realization.
(ii) The Respondents shall follow the Notification
No.26/HOME/2015 dated 22-06-2015 for
public safety at Hydro Power Projects.
(iii) The Respondents No.1 and 2 shall carry out
bimonthly inspections by a team of Officers
selected by the District Magistrate to check
whether safety measures as required are in
place and guidelines issued vide Notification
No.26/HOME/2015, dated 22-06-2015, are
being adhered to.
(iv) The Respondent No.3 shall install scientific and
technical instruments necessary for ensuring
the safety of the Dam and the life and property
of people in the area and downstream.
(v) The Respondent No.3 shall have Ambulances
and Para-Medical Staff in their employment at
all the HEPPs to deal with emergencies arising
out of any disaster occurring due to release of
water from the Dams.
(vi) The Respondent No.3 shall create an
emergency fund up to the maximum of
Rs.1,00,00,000/- (Rupees one crore) only, to
meet any disaster and fatalities arising out of
any failure on their part. The modalities shall
be worked out in consonance with
Respondents No.1 and 2."
[emphasis supplied]
(ii) In the teeth of a standing Notification of the Home
Department and directions of this Court (supra), the tragedy has
recurred on account of the Respondents impleaded herein having
blatantly flouted both the directions and the Notification which has
resulted in the loss of two young, precious, human lives.
(iii) The Petitioners are the widowed mothers of the victims,
the Petitioner No.1 being the mother of the deceased aged about
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
twenty-seven years at the time of incident, while Petitioner No.2 is
the mother of the deceased child aged about eleven at the same
time. The incident occurred on 23-05-2020 during the nationwide
Lockdown on account of Covid-19. It was around 10.45 a.m.,
when three boys, namely, Passang Lepcha, Tek Bahadur Thatal and
Rohan Roy, went in search of edible ferns in the nearby forest. On
their return, they decided to cross the Rorathang River, on foot,
since the river water level was low. In the midst of their crossing
the river, the water level suddenly swelled and the current
increased, to avoid which, the boys stood atop the largest rock that
they could locate. Nevertheless, despite the precaution, they were
swept away by the swollen river. From the three boys, Passang
Lepcha was rescued by people of the locality, while the other two
boys were not so fortunate. Hence, the prayers in the Writ
Petition which are extracted hereinbelow;
"It is therefore must (sic.) humbly prayed that;
this Hon'ble Court may be pleased to:
a) that this Hon'ble Court be pleased to issue a
Writ of Mandamus or any other appropriate
Writ/order/direction under Article 226 of the
Constitution of India directing the Respondent
No.3 to create education and information,
install warning devices and appoint guard in all
populated areas where the tail water of Gatti
Hydro Power dam water flows.
b) that this Hon'ble Court be pleased to issue a
writ of mandamus or any other appropriate
writ, order or direction under Article 226 of the
Constitution of India directing the Respondent
No.1, 2 and 3 to take proper steps for providing
the required facilities, instruments and
technicians for seeing that no threat or danger
to the life and property to the people living in
the adjoining area of the dam and people living
downstream is caused by the operation of the
Gatti Hydro Power Projects.
c) Pass an order directing the Respondent no.1, 2
and 3 for strict implementation of Notification
no.26/home/2015, dated 22.06.2015;
Guidelines for Public Safety at Hydropower
Projects in Sikkim.
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
d) Pass an order directing Respondent No.3 to
install such scientific and technical instruments
which can be used for the purpose of ensuring
the safety of dam and safeguarding the life and
property of people living in the adjoining areas
and downstream of the dam.
e) Pass an order directing the Respondent No.3 to
appoint guard, construct guard house along
with warning devices at place of incident i.e
Bhasmey in name of Lt. Tek Bahadur Thatal
and Lt. Rohan Roy.
f) Pass an order directing the Respondent No.3
(Gatti Infrastructure Pvt. Ltd) to compensate
the Petitioner No.1, mother of Lt. Mr. Tek
Bahadur Thatal an amount of Rs.50,000,00/-
(Rupees Fifty Lakh) and to compensate
Petitioner No.2, mother of Lt. Mr. Rohan
Roywith an amount of Rs.50,000,00/- (Rupees
Fifty Lakh) or as this Honorable Court deem fit.
g) Pass an interim order directing the Respondent
No.1, 2 and 3 to make a payment of
Rs.5,00,000/- (Rupees Five Lakh) to Petitioner
No.1, Mother of Lt. Mr. Tek Bahadur Thatal and
Rs.5,00,000/- (Rupees Five Lakh) to Petitioner
No.2, Mother of Lt. Mr. Rohan Roy as an interim
measure to facilitate them for their medical
expenses.
and
h) Pass such order or further order, as this Hon'ble
Court may deem fit, just and proper and the
public at large."
2. Learned Counsel for the Petitioners while drawing the
attention of this Court to Annexure P1, in two pages, being the
Death Certificates of the unfortunate victims, as also the
Medicolegal Autopsy Report annexed thereto submitted that, the
cause of death in the Autopsy Report was revealed to be "asphyxia
due to ante mortem drowning". That, this aspect was being
emphasized for the purpose of indicating that the death of the
victims was indeed due to drowning in the sudden swollen river.
Learned Counsel also urged that there has been a complete
disregard and violation of the directions of this Court in Zangpo
Sherpa (supra). Besides, the siren that ought to have been placed
at a distance of about one kilometer each in terms of the guidelines
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
issued by the Home Department, Government of Sikkim, vide
Notification No.26/Home/2015, dated 22-06-2015, were not in
place nor was one installed at the site of the incident. Had some
care and attention been employed by the Respondent No.3 who
was the Company operating the Dam, the needless deaths could
have been avoided. That, in view of the non-adherence of the
directions of this Court and the guidelines issued by the Home
Department, the prayers of the Petitioners be granted.
3. Learned Additional Advocate General for the State-
Respondent Nos.1 to 2 submitted that the directions of the Division
Bench of this Court are being complied with by the State
Government. That, despite guidelines issued by the State
Government vide the Notification No.26/Home/2015, dated 22-06-
2015, the Respondent No.3 has been irresponsible and failed to put
in place the sirens or other warning devices to prevent the death of
persons who may be in and around the rivers. That, had
Respondent No.3 acted responsibly the tragedy would not have
occurred, hence orders be issued as deemed proper by this Court.
4. Learned Counsel for the Respondent No.3 advancing
his arguments contended that there has been due adherence to the
Notification of the Home Department and the directions of this
Court in as much as the sirens have been installed near the Dam
office. That, a second siren has been installed at a distance of
about six to seven kilometers from the Project office. It was also
glibly submitted by Learned Counsel that the victims ought not to
have been out and about crossing the river during the period of
National Lockdown and that, had it been imperative for them to
have gone out they ought to have used the foot bridge across the
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
river and desisted from crossing the river on foot. That, Annexure
R2 reveals that on 23-05-2020, the same level of water was
released, as on other days preceding the date of the incident,
indicating clearly the absence of recklessness or negligence on the
part of Respondent No.3. Inviting the attention of this Court to
the Constitution of a Committee, Annexure R4 [colly], under
Section 30 of the Disaster Management Act, 2005, vide a
communication bearing No.195/DCE/2020/CD/165 dated 09-07-
2020, comprising of the Sub-Divisional Magistrate, Rongli and the
Assistant Collector, East District, it was contended that on a
Complaint pertaining to the incident being lodged, the Committee
enquired into the matter. They were also entrusted with the task
of reviewing the implementation of guidelines for public safety at
the Hydro Power Projects by Respondent No.3 in terms of
Notification No.26/Home/2015, dated 22-06-2015 of the Home
Department. The enquiry Report revealed that sirens had been
installed at the Project site and Dam site. That, the place of
occurrence was about four to five kilometers downstream from the
Power House, where there was no possibility of a sudden increase
in the water flow. Based on the Inspection Report of the
Committee, it was found that Respondent No.3 had complied with
the directions prescribed in the aforementioned Notification.
Further, the Committee observed that the death of the two persons
had not been caused due to natural calamity, accordingly ex-gratia
payment to the Petitioners' families were not considered. That, in
view of the compliance of the directions of this Court contained in
the Judgment (supra), the Notification of the Home Department
and the absence of fault on the part of Respondent No.3 as fortified
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
by the Inspection Report of the Committee, the Respondent No.3
be absolved from payment of any compensation sought for by the
Petitioners.
5(i). Having given due consideration to the submissions put
forth in extenso, it is relevant at this juncture to notice that the
Home Department, Government of Sikkim, as far back as in 2015
had issued a Notification bearing No.26/Home/2015, dated 22-06-
2015 with guidelines thereto, stipulating safety measures to be
adopted by the Hydro Power Projects for public safety. The
Notification is extracted hereinbelow for convenience and reads as
follows;
"SIKKIM
GOVERNMENT GAZETTE
EXTRAORDINARY
9 PUBLISHED BY AUTHORITY
GOVERNMENT OF SIKKIM
HOME DEPARTMENT
GANGTOK
No.26/Home/2015 Date: 22.06.2015
NOTIFICATION
Whereas, the State Government has deemed it
expedient to make the following guidelines to
facilitate general public awareness for safeguarding
the public safety and property from potential
damages, hazards and threats arising out of
construction and maintenance of hydro projects.
And whereas, the purpose of guidelines is to
describe the types of hazards that can exist at hydro
power facilities and the safety devices and other
measures that are advisable to be employed to
enhance the protection of the public that utilise
projects lands and water.
Now therefore, the State Government, with a
view to achieve the above objectives, is hereby
pleased to prescribe the GUIDELINES FOR PUBLIC
SAFETY AT HYDROPOWER PROJECTS as per
Annexure.
By Order and in the name of the Governor.
Sd/-
(R. Ongmu) IAS,
CHIEF SECRETARY
F. No. Home/Confdl/112/2015"
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
(ii) For brevity only Paragraph 4 of the said guidelines are
extracted hereinbelow, which provides for safety Devices and
measures and reads as follows;
"4. SAFETY DEVICES AND MEASURES
As a general rule, all Projects will require some
type of safety devices, warning systems or other
measures. The amount of protection necessary
increases as public exposure to the hazards increases.
Safety devices and measures can be divided
into five basic categories:
(1) Educating and informing the public
(2) Visual and audible warnings of
hazardous areas
(3) Physical restraining devices
(4) Escape devices
(5) Procedures for safer Project operations.
(1) EDUCATION AND INFORMATION - Developers
are usually well aware of the hazards that can exist
near hydropower Projects. Therefore, the Developers
has a responsibility to take the initiative to educate
and inform the public of the specific hazards near its
hydro Projects and of the general rules that should be
followed to be safety conscious. Where appropriate,
information could be disseminated in recreational
brochures, company literature, video tapes,
televisions or radio announcements and in
newspaper articles and advertisements. The
Developer should make every effort to meet the
public at schools, civic organizations, etc.,
communicate with the public through the media, and
distribute literature on water safety practices in the
vicinity of the Hydro Project areas.
(2) WARNING DEVICES - Warning devices include
such items as danger and warning signs,
canoe/rafting portage signs, audible warning
devices, lights and illumination, beacons and
strobe lights, buoys, verbal warnings. These
devices are required where necessary to warn
of hazardous spillways, powerhouse intake
areas, tailraces, and other hazardous areas and
conditions.
(i) Danger and Warning Signs - Each dam
should have adequate danger and warning
signs. Properly located and spaced signs
can be an effective method of preventing
persons from entering hazardous areas. It
is important to locate signs so that persons
entering area from any direction can see
one or more of the signs. Where it is not
feasible to install boat restraining barriers
due to the length of the dam or spillway, or
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
other constraints, a system of warning
buoys and signs should be installed at least
300 feet from the structure or at a greater
distance, depending on where the hazardous
current begin. If the Project reservoir is
small, as a practical matter it may be
necessary to place the buoys and signs
closer to the dam. The size of lettering and
the signs themselves should be of sufficient
size that persons (even those with less than
perfect eyesight) would not have to enter
the danger zone to read the signs. As a
general rule, when a person is 300 feet
from any dam, signs warning of a dam
should be legible and easily noticed. Proper
wording of signs is important and can
improve effectiveness. Signs should convey
a message that clearly advises the reader of
the real danger. In addition to "No
Trespassing" or "Keep Out" signs, it would
be informative to have signs that state;
"Danger - Dam Ahead", "Danger of
Drowning", or "Stay Alive by Staying Out".
Signs should be kept in good condition and
fading signs should be repainted. Plants,
grasses, and trees that obstruct shoreline
warning signs should be removed.
Contrasting colors should be used for sign
lettering and background. A regular sign
inspection programme should be developed
and documented to ensure that all signs are
maintained in good condition. It is
particularly important to inspect signs after
severe weather or flood conditions.
(ii) Power and Communication Lines - Power
and communication lines require special
signing to warn recreationists of clearance
heights. Minimum recommended vertical
clearances for power and communication
lines over reservoirs are found in the
standard codes and regulations.
(iii) Audible Devices - Audible devices, such as
sirens, horns, or buzzers, are generally
used to warn of sudden changes in the rate
of flow, usually in tail water areas of
spillways or powerhouses. It is also
important to provide warnings of sudden
changes in operation, such as a gate
opening to pass flows that have been cut-off
due to a plant shutdown. At Projects where
difficult terrain prevents a quick exit from
the river, advance warning of 30 to 45
minutes may be necessary. Signs advising
of the meaning of the audible devices
should be posted along all access points
near hazardous tail water and other areas.
At least one adequately big siren should be
installed at every 1-2 km along the entire
river bed within the Project area and the
area downstream that comes within the
Project. All these sirens should be operated
through GSM with adequate power backup
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
so that they could be blown from one
central location itself and also in case of
power failure.
(iv) Lights - Lights should be used to illuminate
signs, the dam itself, and other hazardous
areas. It is desirable that at least some of
the warning signs around dams be
illuminated at night. Lighting should be
considered at dams, tailrace areas,
substations. Specifically designed signs,
safety devices, including lighting may often
be necessary so that safety devices are
effective under adverse weather conditions.
(v) Beacons - Beacons and strobe lights can be
utilized near spillway gates and overflow
spillways and, if appropriate, they should be
activated to provide visual warning when
water is being discharged. Flashing strobe
lights can also effectively complement
audible warning devices.
(vi) Buoys - Individually anchored buoys
basically serve as floating signs. In general,
buoys should be installed in accordance with
accepted rules and regulations in the State
where the Project is located. Buoys may not
be appropriate in low-use areas in many
cases or in areas where the pristine nature
of the area should be preserved. However,
buoys should not be substituted for
restraining barriers where a positive
restraining barrier is feasible.
(vii) Verbal Announcements - Recorded or direct
verbal warnings can be used at many
smaller Projects to warn the public in
tailrace areas that gates are going to be
opened if the Project is always manned.
However, this can only be effective if dam
tenders and other personnel working near
dams are adequately trained to advise the
public of a Project's hazardous area."
[emphasis supplied]
(iii) The State-Respondent No.1 have duly notified the
guidelines which was for the Hydro Power Projects to have strictly
adhered to but there is a lackadaisical attitude with total
indifference exhibited by the Respondent No.3.
6(i). In the facts and circumstances of the case can this
Court grant relief to the Petitioners?
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
(ii) Appositely it is relevant to consider, the Report of the
Committee, constituted under Section 30 of the Disaster
Management Act, 2005, submitted, vide Memo No.1702/SDM/R,
dated 26-06-2020 (supra) Annexure R4 [colly]. The Report reads
as follows;
"OFFICE OF THE
SUB-DIVISIONAL MAGISTRATE
RONGLI SUB-DIVISION, EAST DISTRICT 737131
Memo No:1702/SDM/R Date: 26.06.2020
Report on unnatural death of two person who were
swept away by river.
With Ref No., O.O No.87/DCE/ dated 19/06/2020 we
conducted inquiry with regards to the unnatural death
of Mr. Tarun Thatal Darjee and Rohan Roy by
drowning into the river on 22/06/2020 the incident
took place at Rangpo River on 23/03/2020 at 10.30
am.
We inspected the place of occurrence along with SHO
Rhenock and found that the deceased crossed this
river through Bridge and while returning they went to
the river and entered into the water to cross, may be
with the intention to swim. They were three in
number, in the meantime the volume of water in the
river increased. It might take some time but they
were in the river and before they crossed the river
they were swept away. Out of the three the people
around the place could save one but two were swept
away at their and their bodies were recovered in the
evening near Swiss Garnier and Rorathang Bridge.
It is also found that Gati Hydro Electricity Project has
installed siren at project site dam site at and
Rorathang Bridge but there is no siren in place of
incidence. Further, during the enquiry they claimed
that due to lack of network and the area being an
isolated one they are not able to install at that place.
Gati claims they erected caution notice board near
the bridge but has been removed by the locals, so as
of now at the time of inspection there was no caution
notice board.
We visited project site and discussed with the Gati
official regarding the safety measure they have
followed. It is learnt that they installed sirens at
places but not near the place of occurrence. However,
they are not 1-2 kms apart as per Home Department
Guidelines for public safety at Hydro Electric Project
vide O.O. No:26/Home/2015. Further, as per their
statements no water was released from dam but at
regular interval water was released from turbines. On
the day of incidents water was from the turbines
earlier in the morning but not in the time of incidence.
Further, it was noted that the place of occurrence is
4-5 Km downstream from power house so they cannot
be sudden increase of water flow.
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
All the relevant documents are enclosed herewith for
your ready reference please.
Sd/- Sd/-
Dr. Anand Sharma P.R. Dulal
Sub-Divisonal Magistrate (HQ-II) Sub-Divisonal Magistrate
Assistant Collector Sub-Division Rongli
East District, Gangtok"
[emphasis supplied]
(iii) On a bare perusal of the Report, it emanates that the
Respondent No.3 had installed a siren at the Project Dam site, but
undisputedly there was no siren at the place of incident. The
Respondent No.3 also claimed that due to lack of network and the
area being isolated, they were unable to install the sirens at the
said places. The State-Respondent Nos.1 and 2, during their
inspection, failed to take into consideration that the noise that can
be generated by a gushing swollen river flowing downstream, in a
mountainous region, drowns out all sounds making it an
impossibility for a person in and around the river to hear a siren six
kilometers away. Admittedly the siren was at a distance of six
kilometers from the place of incident. The Report further
mentioned that they visited the Project site and discussed with the
Officials of Respondent No.3 regarding the safety measures. The
specific words used are "It is learnt that they have installed sirens
at places but not near place of occurrence". They also discovered
that the sirens are not 1-2 kilometers apart as per the guidelines in
the Notification of the Home Department. From the language
employed in the Report presumably the inspecting team did not
personally visit the concerned area to check whether the sirens had
been installed. Admittedly, the Home Department's Notification
requires that the installation of siren have to be 1-2 kilometers
apart, to which scant attention was paid by the Respondent No.3.
It is not the claim of the Respondent No.3 that the siren installed
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
six kilometers away from the place of incident was audible at the
place of incident where the two boys met their death on account of
the ineptitude, lack of diligence, and total indifference of the
Respondent No.3. The Committee while justifying the act of the
Respondent No.3 for not installing sirens has stated in the Report
that "Further, it was noted that the place of occurrence is 4-5
kilometers downstream from power house so they cannot be
sudden increase of water flow (sic)". The Committee failed to
appreciate that water once released from the Dam flows in
uniformity and the rivers in Sikkim are fast flowing rivers being at
the young/upper course or a youthful river, which is full of energy
and power and the velocity of the river flowing downstream
increases as also its gravitational force. Thus, water released
uniformly will reach 4-5 kilometers downstream raising the water
level downstream uniformly. It is not the case of Respondent No.3
that the flow of the water decreases as it proceeds downstream,
which in any case would have been an obnoxious proposition
considering the observation supra about the stage of the river.
Placing warning devices admittedly at a distance of six kilometers
serves no purpose whatsoever and is merely a token gesture of the
Respondent No.3 to feign compliance, with no attention paid to the
gravity of the directions in the Notification. The State-Respondent
Nos.1 and 2 are equally culpable for concluding that sirens at a
distance of 4-5 kilometers apart sufficed as compliance of the
Notification supra, and thereby absolving Respondent No.3 from
payment of compensation, when Learned Counsel for the
Respondent No.3 submits that the distance of the siren was six
kilometers from the Project Dam. There is no contention of the
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
Respondent No.3 that the sirens were placed along the length of
the river at equi-distance even of 4-5 kilometers. The reason
enumerated by Respondent No.3 that due to lack of network and
the terrain the sirens could not be installed is inexcusable and
incongruous considering that an entire Dam project was
constructed in the same isolated terrain, revealing the cherry
picking attitude of Respondent No.3 and its indifference in
subscribing to the safety measures prescribed. It is not the
contention of Learned Counsel for Respondent No.3 that as
directed in the Notification (supra) at Clause 4(2)(iii) advance
warning was issued at least 30 to 45 minutes before releasing the
Dam waters.
(iv) The Respondent No.3 claimed to have erected caution
Notice Boards near the Bridge which had been removed by the
"locals". At the time of inspection, no Caution Boards were found
in the vicinity. The Inspecting Officials found no Notice Boards and
accepted as the ultimate truth the claims of Respondent No.3 that
the Boards had been removed by locals, sans proof. The claim of
having erected Notice Boards to caution the people in the area and
the allegation that they were removed by the "locals" was not
established by way of indicating to the Committee the places where
such Boards stood prior to such removal. The contents of the
alleged Boards were not disclosed nor were photographs of the
alleged installed Boards furnished for the perusal of the Committee
or for that matter this Court, to establish their allegations of
compliance of Home Department's Notification supra. Why "locals"
would remove the caution Notice Boards which had been put up for
their safety is beyond comprehension. It is an apparent effort on
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
the part of Respondent No.3 to cast aspersions on the persons
living in the locality when it is clearly non-compliance on their own
part of the Notification of the Home Department and directions of
this Court, both reflected supra.
(v) No proof of dissemination of brochures to the public
or announcements on televisions, radio or newspaper articles
educating the public of the specific hazards near the Hydro Power
Project and general rules requiring obedience have been placed
before this Court by the Respondent No.3. From the inspection
conducted and the Report submitted the State-Respondent Nos. 1
and 2 and the Respondent No.3 in fact have exhibited a total lack
of concern at the loss of two young lives, whose widowed mothers
would obviously have been harbouring high expectations for their
future.
7. It thus concludes that there has been a total lack of
compliance of the Notification No.26/Home/2015, dated 22-06-
2015, of the Home Department, by the Respondent No.3. Any
Notification issued under a Statute is also a law as defined under
Article 13(3)(a) of the Constitution and has to be complied with. It
is worth remarking that State-Respondent Nos.1 and 2 and
Respondent No.3 have not complied with the directions of this
Court.
8. The submission of Learned Counsel for the Respondent
No.3 that the victims ought not to have been out and about in the
forest reveals an authoritarian approach of the Company towards
the people residing in and around the Dam area and the
downstream river banks. The Hydro Power Project Companies
cannot control and put restrictions on the free movement of free
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
citizens of the country. Their responsibility is limited to ensuring
that all necessary guidelines and directions issued for safety of
persons who may be in and around the rivers at any given time are
followed and precautions are taken without compromising on any
aspect whatsoever.
9. It is thus Ordered as follows;
(i) All directions in Zangpo Sherpa (supra) shall be complied
with in letter and spirit by all the Hydro Power Projects across the
State.
(ii) The State-Respondent Nos.1 and 2 shall ensure
compliance of the direction pertaining to ensuring installation of
sirens and all other directions of this Court in Zangpo Sherpa (supra)
and of the Notification No.26/Home/2015, dated 22-06-2015, of
the Home Department.
(iii) It is reiterated that all safety measures in the
Notification No.26/Home/2015 dated 26-06-2015 shall be complied
with.
(iv) Sirens, at an equi-distance of one kilometer each along
the length of the river where a Project Dam exists shall be installed
immediately but not later than three months from today by the
concerned Hydro Power Projects in the entire State.
10(i). It needs no reiteration that the value of human
life cannot be computed in material terms and any amount of
compensation cannot be a salve to the pain suffered by the
Petitioners. Nevertheless, imposition of compensation is an effort
to mitigate their sufferings and can be utilised for the purpose of
rehabilitation of the Petitioners, including enabling them to take
measures for their mental health, considering the irreparable loss
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
suffered by them. Pertinently it may be pointed out that in Nilabati
Behera Alias Lalita Behera vs. State of Orissa and Others2, the Supreme
Court was dealing with the award of compensation in proceedings
under Article 32/226 of the Constitution and observed as follows;
"20. We respectfully concur with the view
that the court is not helpless and the wide
powers given to this Court by Article 32, which
itself is a fundamental right, imposes a
constitutional obligation on this Court to forge
such new tools, which may be necessary for
doing complete justice and enforcing the
fundamental rights guaranteed in the
Constitution, which enable the award of
monetary compensation in appropriate cases,
where that is the only mode of redress
available. The power available to this Court
under Article 142 is also an enabling provision
in this behalf. The contrary view would not
merely render the court powerless and the
constitutional guarantee a mirage, but may, in
certain situations, be an incentive to extinguish
life, if for the extreme contravention the court
is powerless to grant any relief against the
State, except by punishment of the wrongdoer
for the resulting offence, and recovery of
damages under private law, by the ordinary
process. If the guarantee that deprivation of
life and personal liberty cannot be made except
in accordance with law, is to be real, the
enforcement of the right in case of every
contravention must also be possible in the
constitutional scheme, the mode of redress
being that which is appropriate in the facts of
each case. This remedy in public law has to be
more readily available when invoked by the
have-nots, who are not possessed of the
wherewithal for enforcement of their rights in
private law, even though its exercise is to be
tempered by judicial restraint to avoid
circumvention of private law remedies, where
more appropriate."
(ii) In Air India Statutory Corporation vs. United Labour
Union3, the Supreme Court held that there is no limitation or fetters
on the powers of the High Court under Article 226 of the
Constitution except self-imposed limitations. It was elucidated as
extracted hereinbelow;
(1993) 2 SCC 746
(1997) 9 SCC 377
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
"59. The Founding Fathers placed no
limitation or fetters on the power of the High
Court under Article 226 of the Constitution
except self-imposed limitations. The arm of the
Court is long enough to reach injustice
wherever it is found. The Court is as sentinel
on the qui vive is to mete out justice in given
facts. On finding that either the workmen were
engaged in violation of the provisions of the Act
or were continued as contract labour, despite
prohibition of the contract labour under Section
10(1), the High Court has, judicial review as
the basic structure, constitutional duty to
enforce the law by appropriate directions. The
right to judicial review is now a basic structure
of the Constitution by catena of decisions of
this Court starting from Indira Nehru Gandhi v.
Raj Naraian to Bommai's case. ................."
(iii) In the light of the above observation, the hands of this
Court are clearly not stayed from awarding compensation in
appropriate cases.
(iv) In the end result, it is ordered that the Respondent
No.3 shall pay a sum of Rs.35,00,000/- (Rupees thirty five lakhs)
only, to Petitioner No.1 and a sum of Rs.35,00,000/- (Rupees thirty
five lakhs) only, to Petitioner No.2 as compensation. I hasten to
add that there cannot be parity in the quantity of compensation
with that in Zangpo Sherpa (supra), in view of the clear violation of
the existing Notification of the Home Department and standing
directions of this Court in the said matter. Should every Hydro
Power Project get away with token compensation for loss of life
despite standing directions of the highest Court of the State to take
precautions, utter chaos would abound on account of their
carelessness, which would be unaccountable. It must be borne in
mind that human life is as precious, regardless of the geography of
the area.
(v) This Court vide, Order dated 08-09-2022, had ordered
that despite directions to the District Collectors in Zangpo Sherpa
(supra) to the effect that the State-Respondent Nos.1 and 2 shall
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
carry out bimonthly inspections by a team of Officers selected by
the District Magistrate to check whether safety measures as
required are in place and guidelines issued vide Notification
No.26/Home/2015, dated 22-06-2015, are being adhered to, the
State-Respondents have not complied with the said directions in
letter and spirit. It was ordered that Show Cause Notice be issued
to the District Collector, Gangtok District and the District Collector,
Pakyong District. On 20-09-2022, the District Collector, Gangtok
District and the District Collector, Pakyong District, by filing
separate Affidavit, replied to the Show Cause Notice, tendering
their unconditional apology for failure to comply with the directions
of this Court which have been detailed in their Reply. In light of
their Reply, Show Cause Notice was accepted vide Order dated 22-
09-2022. However, in light of the details in the Inspection Report,
Memo No.1702/SDM/R dated 26-06-2020 supra the inspection is
found to be lacking, accordingly the State-Respondent Nos.1 and 2
shall each pay costs of Rs.2,00,000/- (Rupees two lakhs) only, to
the Sikkim State Legal Services Authority, for utilization in the Old
Age Homes viz; "Lee Aal" at Rakdong, Tintek and "Ishwarambha
Samiti Sangh" at Ranipool.
(vi) The payment shall be made by the State-Respondent
Nos.1 and 2 and Respondent No.3 as ordered above, within forty-
five days from today, failing which, the amounts' shall carry an
interest of 10% from the date of filing of the Writ Petition till full
and final payment.
(vii) A repeat violation of the directions of this Court will not
be viewed lightly.
Dolma Kumari Thatal and Another vs. State of Sikkim and Others
11. Writ Petition stands disposed of with the foregoing
directions.
12. Pending applications, if any, stand disposed of.
13. Copy of this Judgment be made available to District
Magistrates of all the six districts of Sikkim immediately for
information and compliance.
( Meenakshi Madan Rai )
Judge
05-12-2022
sdl Approved for reporting : Yes
