JUDGMENT By the Court.—Heard Sri Bhaskar Pratap Dubey, learned counsel for the petitioner and learned Standing Counsel on behalf of the respondents and perused the record. 2. Factual matrix of the present case are that the petitioner Smt. Sharda Devi, W/o Sri Vijay Kumar Dubey, R/o Village Malawan (Nandlal Ka Pura) Block Tarun, Tehsil Bikapur, District Faizabad had got five issues out of the wedlock, so they took a decision that they do not want any further issue taking into consideration the economic condition of the family. Accordingly it was mutually considered by petitioner Nos. 1 and 2 to go for Tebectomy operation. Accordingly, the same was performed on 19.1.2001 at the health centre Tarun, District Faizabad under the supervision of Dr. Ganga Ram who is the incharge of the said health centre and performed by the Surgeon namely Dr. Ram Sumer. In spite of the abovesaid fact, after expiry of nearly one and a half year, the petitioner No. 1 again became pregnant and gave birth a female child namely Kumari Satya Bhama (Petitioner No. 1) on 22.11.2002. 3. In view of the abovesaid circumstances, the present writ petition has been filed on behalf of the petitioner on the ground that due to medical negligence on the part of the Doctors of health centre, Known as Tarun, District Faizabad, an unwanted child was born on 22.11.2002. As the petitioner Nos. 1 and 2 have no other source to maintain their unwanted child, a compensation to the tune of Rs. 8,00,000/- has been claimed by the Petitioner Nos. 1 and 2 for upbringing their unwanted child i.e. petitioner No. 1 who is born only due to sheer negligence on the part of respondent Nos. 4 and 5 and further a sum of Rs. 5,00,000/- was claimed for marriage of petitioner No. 3. 4. In support of the relief as claimed by the petitioners, on their behalf Sri Bhaskar Pratap Dubey, learned counsel for the petitioner had relied on the following judgments namely : (a) Smt. Shakuntala Sharma and others v. State of U.P. and others, 2002 UPLBEC 1084 and (b) Sobha and others v. Government of NCT of Delhi and others, 2002 AIC 236. 5. 5. A preliminary objection raised by the learned Standing Counsel appearing on behalf of the State, Sri Anuj Kudesia in regard to the maintainability of the writ petition, he submits on the ground that in case of medical negligence, the relief as claimed by the petitioner cannot be granted under Article 226 of the Constitution of India in view of the law as laid down by the Apex Court in the case of State of Punjab v. Shiv Ram and others, 2005 (7) SCC 1 . 6. We have heard counsel for the parties and perused the record. 7. In our country population is one of the major problem and in order to control population, which is increasing by a tick of every second of the clock, the Central Government as well as State Government have taken family planning as an important programme under public policy and for implementation of the same various steps have been taken to create awareness in the citizen of the Country, one of the method to control the family planning is sterlisation operation. 8. Further, Family planning programme is one of the foremost need of the day in order to control population in our Country which is the second most populous country in the world and in order that it enters into an era of prosperity and progress, it is necessary that the growth of population is checked. As such the doctor who is performing the sterlisation operation in order to implement the family planning programme must perform the same with due care and caution. Further if there is failure on account of the negligence on the part of the doctor, and as a result of which an unwanted child has taken birth, which undoubtedly create additional economic burden on the person who has undergone sterlisation and he must be adequately compensated. 9. Failed sterlisation has been defined in Halsbury’s Laws of England, 4th Edn. (reissue), Vol.12 (1), while considering the question of “failed sterlisation”, it is stated in para 896 as under: “Failed sterlisation-Where the defendant’s negligence performance of a sterlisation operation results in the birth of a healthy child, public policy does not prevent the parents from recovering damages for the unwanted birth, even though the child may in fact be wanted by the time of its birth. Damages are recoverable for personal injuries during the period leading up to the delivery of the child, and for the economic loss involved in the expense of losing paid occupation and the obligation of having to pay for the upkeep and care of an unwanted child. Damages may include loss earnings for the mother, maintaining the child (taking into account child benefit), and pain and suffering to the mother” 10. Now the question which is to be determined in such type of cases, in order to award damages, where there is negligence on the part of the doctor who has performed the sterlisation operation or not, if there is any negligence on the part of the doctor, then up to what extent the damages is to be awarded to a person who has given birth to an unwanted child after sterlisation operation. 11. In the case of Javed v. State of Haryana, 2003 (8) SCC 369 , popularly known as ‘Two-child Norm’ case. Hon’ble the Apex Court has held that the problem of increasing population, the danger which it poses for the progress of the nation and equitable distribution of its resources and upheld the validity of the Haryana legislation imposing a disqualification on persons having more than two children from contesting for an elective office. The fact cannot be lost sight of that while educated persons in the society belonging to the middle-class and the upper class do voluntarily opt for family planning and are careful enough to take precautions or remedial steps to guard against the consequences of failure of sterilization, the illiterate and the ignorant and those belonging to the lower economic strata of society face the real problem. To popularize family planning programmes in such sections of society, the State Government should provide some solace to them if they, on account of their illiteracy, ignorance or carelessness, are unable to avoid the consequences of a failed sterilization operation. Towards this end, the State Governments should think of devising and making provisions for a welfare fund or taking up with the insurance companies, a proposal for devising an appropriate insurance policy or an insurance scheme, which would provide coverage for such claims where a child is born to woman who has undergone a successful sterilization operation, as in the present case. 12. 12. Further, the Apex Court in the case of Jacob Mathew v. State of Punjab, 2005 (6) SCC 1 has approved the test as laid down in Bolam v. Friern Hospital Management Committee, (1957) 2 AIIER 118 (QBD), popularly known as Bolam’s test has held as under : “The basis of liability of a professional in tort is negligence. Unless that negligence is established, the primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, vicarious liability on the State cannot be imposed. Both in criminal jurisprudence and in civil jurisprudence, doctors are liable for consequences of negligence. In Jacob Mathew even while dealing with criminal negligence, this Court has indicated the caution needed in approaching a case of medical negligence having regard to the complexity of the human body which is subjected to treatment and the uncertainty involved in medical procedures. A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. It is in this background that this Court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. 13. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. 13. Again in the case of State of Punjab v. Shiv Ram and others, (2005) and others 2005 (7) SCC 1 in para 25 and 30, the Apex Court has held as under : “Para - 25 - We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam’s test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee. Para - 30- The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.” 14. In view of the said facts, if a lady undergone sterlization operation under Teberctomy operation and even then an unwanted child is born then such lady in order to claim a damages has to file a suit for compensation as in the suit on the basis of evidence and the documents filed by the parties etc. In view of the said facts, if a lady undergone sterlization operation under Teberctomy operation and even then an unwanted child is born then such lady in order to claim a damages has to file a suit for compensation as in the suit on the basis of evidence and the documents filed by the parties etc. it can be ascertained that where the doctor who has performed the operation up to what extent he is negligent due to which the operation fails and accordingly thereafter it can be judged that what compensation can be awarded in a particular case which cannot be done while exercising the power of judicial review under Article 226 by this Court because the matter in respect to the negligence, if any, performed by the doctor performing sterilization/operation cannot be judged before this Court as the same needs elaborate evidence and materials including investigation and further this Court can also not with any other district can come to the conclusion what amount of compensation is to be awarded in a particular case. 15. The above view taken by us also gets support from case of State of Haryana and another v. Santara, (2000) 5 SCC 192, where a poor lady underwent a sterilisation operation at the General Hospital, Gurgaon, as she already had seven children an wanted to take advantage of the scheme of sterilization launched by the State Government of Haryana. She was then issued a certificate that her operation was successful. She was assured that she would not conceive a child in future. But, she conceived and ultimately gave birth to a female child. She filed a suit against the State and its officers for recovery of Rs. 2 lakhs as damages for medical negligence. The explanation offered by the officers, of the appellant State who were defendants in the suit, was that at the time of the sterilization operation, only the right Fullopian tube was operated upon and the left Fullopian tube was left untouched. This explanation was rejected by the trial Court, which decreed the suit for a sum of Rs. 54,000 with pendente lite and future interest @ 12 % per annum. The decision was confirmed by the appellate Court and the High Court and thereafter the appeal filed by the State of Haryana and others was also dismissed by the Hon’ble Apex Court. 16. 54,000 with pendente lite and future interest @ 12 % per annum. The decision was confirmed by the appellate Court and the High Court and thereafter the appeal filed by the State of Haryana and others was also dismissed by the Hon’ble Apex Court. 16. Further as per the facts of the present case, the sterilization/operation was performed on 19.1.2001 and thereafter the unwanted child (petitioner No. 3) was born on 22.11.2002 and the present writ petition for the alleged negligence and grant of compensation has been filed in the year 2010. So, the present writ petition is liable to be dismissed on the ground of delay and laches alone as the petitioners have not given any reason whatsoever in approaching this Court at a belated stage for redressal of their grievances. 17. Needless to mention herein that previously Courts did show lenience and latitude in dealing with matter filed at a belated stage. Thereby considering the delay in challenging the order which are otherwise barred by limitation. It is high time a changed perspective and attitude should be adopted, since the Courts are already overburdened with cases resulting in inordinate delay in disposal of cases. Those days of condonation of dalliance and delay would now be over and in cases where no sufficient and proper reason is assigned for delay, the Court must adopt the stern attitude and refuse relief. That will also help in transmitting a message that the Court will no more be indulgent and parties beware. 18. In view of the abovesaid facts, as in the present case, the original cause of action had arisen on the part of the petitioner in the year 2002, so at this belated stage, the said issue comes within the ambit and scope of stale/dead issue cannot be adjudicated and decided at this belated stage and the present writ petition is liable to be dismissed on the ground of delay and laches. 19. For the foregoing reasons, we are not inclined to interfere in the matter while exercising the power under Article 226 of the Constitution of India. 20. Thus, for the reasons stated above, the present writ petition is dismissed. However, if the petitioners are so advised, they may seek their remedy, in the appropriate forum i.e. by filing a civil suit, as may be permissible in law. 21. No order as to costs. ————