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2010 DIGILAW 713 (KAR)

The Commissioner Corporation of the City of Bellary Bellary v. Shivamma

2010-06-14

K.GOVINDARAJULU

body2010
JUDGMENT K. Govindarajulu, J: Essential facts for consideration of the appeal are: One Bhavanishankar met with electric shock while changing tube light in a street in front of fire service station within the limits of Bellary Corporation. The legal representatives of Bhavanishankar contend that death of Bhavanishankar on 26.11.2002 is in the course of employment with the Municipal Corporation. So, move the Commissioner for Workmen Compensation for compensation. The case of the legal representatives of Bhavanishankar is accepted by the Commissioner. Commissioner awarded a sum of Rs. 1,75,176/-. Aggrieved, by the same respondent Nos. 1 and 2 have preferred this appeal. 2. Case of the respondent Nos. 1 and 2 is that no person by name Bhavanishankar is employed by the Corporation. Secondly, contend that work of maintaining the streetlights is given to a contractor. Thirdly, contend that there is no relationship of employer and employee between Bhavanishankar and Corporation. So, they are not liable to pay compensation. 3. Shri. Govinda Reddy, the then Commissioner of the Corporation is examined as RW-1, positively states Bhavanishankar is not employed and has placed reliance on records of the municipality. The records of the municipality being not challenged, the case of RW-1 should have been accepted, the Commissioner has not given a finding about the relationship of master and servant before fastening the liability on the Corporation. So lays emphasis on the third ground asserted. Plead for allowing the appeal. 4. The substantial question of law that arise for consideration is: "Whether the approach of the Commissioner in directing the Corporation to pay the compensation regarding the death of Bhavanishankar is without jurisdiction?" 5. As rightly pointed out by the learned Advocate for respondent Nos. 1 and 2, criteria for a person to move the Commissioner under Workmen's Compensation Act, 1923 is that the injured or deceased should be a workmen. Witness examined on behalf of respondent No.1 and 2 denied Bhavanishankar being employed by Corporation. In the facts UDR proceedings in Crime No. 42/2002 are marked. This is a record prepared by the local police while discharging official duty. Facts in UDR proceeding reflect that Bhavanishankar aged about 30 years while attending to the street lights on 26.11.2002 had electrical shock and died at 9.00 a.m. 6. In the facts UDR proceedings in Crime No. 42/2002 are marked. This is a record prepared by the local police while discharging official duty. Facts in UDR proceeding reflect that Bhavanishankar aged about 30 years while attending to the street lights on 26.11.2002 had electrical shock and died at 9.00 a.m. 6. RW-1 who has taken charge of the Corporation has not stated why the police papers regarding the conduct of the UDR proceedings in Crime No. 42/2002 has to be disbelieved. The said proceedings have been recorded immediately after the death being brought to the notice of the police. One more reason to reject the evidence of RW-1 is that RW-1 contends that electrification of street lights is entrusted to a contractor. If it is so, why the contractor's name is not disclosed? Why the learned Advocate appearing on behalf of the corporation has not chosen to implead the contractor, remains unsubstantiated. So, the theory propounded by the witnesses of the corporation that the work of electrification of the streetlights is entrusted to a contract is not proved. 7. To give a finding as to the liability for the death of Bhavanishankar, Court has to consider the relevant provisions of the Corporation Act in regard to the maintenance of the streetlights. For better appreciation relevant sections of the Karnataka Municipal Corporations Act, 1976 (herein after referred to as Act, 1976') are as under: Section 2(5): "Commissioner" means the Commissioner appointed under Section 14 and includes a person appointed to act as Commissioner under Section 16; Section 2(31): "Public Street" means any street, road, square, Court, alley, passage or riding path over which the public have a right of way whether a thoroughfare or not and includes (a) the roadway over any public bridge or causeway; (b) The footway attached to any such street, public bridge or causeway; and (c) The drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement verandah or other structure which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the Government or the Corporation. Sec. 6 : Municipal Authorities - The following shall be the municipal authorities of the Corporation charged with carrying out the provisions of this Act, namely-- (a) the Corporation; (b) the Standing Committees; and (c) the Commissioner Sec. 14: Commissioner and his term of office, etc.-(1) The Commissioner shall be appointed by the Government after consultation with the Mayor. He shall not be a member of the Corporation and he shall, subject to the pleasure of the Government, ordinarily hold office for a period of two years. (2) Notwithstanding anything contained in sub-section (1), the Commissioner shall be removed from office whenever the Corporation so resolves by a majority of not less than two-thirds of its members. Sec. 58(5): Obligatory functions of the Corporation.--(5) The lighting of public streets, municipal markets and places of resort vested in the Corporation; Sec. 265. Vesting of public streets and their appurtenances in Corporation.--(1).... whether public or private, and all works, materials implements and other things appertaining thereto and all trees not being private property growing on public streets or by the side thereof, shall vest in the Corporation 8. Section 6 of the Act 1976 while declaring the municipal authorities not only names of the corporation, standing committees but also specifies Commissioner as the person under the Municipal Authorities under the Act. So, the municipal corporation becomes a statutory body. It is an element of State under Article 12 of the Constitution of India. 9. Under Section 14, Commissioner is appointed to discharge the duties under the Act of 1976. Act 1976 also declares under Section 58, obligatory functions of the municipality. Sub-section (5) clearly lays down that maintaining the streetlights is the duty of the corporation. Now it is for the corporation to specify to whom the requirements of law, was entrusted with, i.e., the work of maintenance of the streetlights on 26.11.2002 was entrusted. Absolutely, except for stating that a contractor was in-charge, no material is forth coming. But the material provisions of the Act, 1976 clearly disclose that it is the duty of the corporation to maintain the streetlights. So, the work, which Bhavanishankar was doing as on the date of his death, is a duty, which the corporation has to do. 10. In Rajappa Vs. But the material provisions of the Act, 1976 clearly disclose that it is the duty of the corporation to maintain the streetlights. So, the work, which Bhavanishankar was doing as on the date of his death, is a duty, which the corporation has to do. 10. In Rajappa Vs. Somappa (ILR 1995 Kar 3275) this Court has laid down the following ratio: In this case there are no documents to evidence transfer, sale or lease or otherwise of the property in dispute. When the law prescribes specific manner for doing certain things while conferring that the authority to make transfer or do certain things, it is well settled principle of law that power has got to be exercised in a specific manner alone not otherwise. 11. In the case of Uttar Pradesh Vs. Singhara Singh after having referred to the leading case in Nazir Ahmed's case I.A. 372 : AIR 1936 PC 253, and another of TAYLOR Vs. TAYLOR (1876) 1 Ch.D, 426, which read as follows: "The rule adopted in Taylor Vs. Taylor (1876) 1 Ch.D426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted." 12. So, submission of the Advocate for the respondent Nos. 1 and 2 that Bhavanishankar had no relationship with the corporation as a master and servant has to fail. To make it further clear, there being a statutory duty on the corporation to maintain the streetlights, and there being failure on the part of the corporation to produce material to prove who is engaged to discharge duty of maintaining the streetlights as on 26.11.2002, the positive evidence in the UDR proceedings which are recorded at an undisputed point of time has to be accepted. In other words, as there is a failure of the corporation to discharge the statutory duty and a person having died while discharging the obligatory duty of the corporation; corporation is liable to pay the compensation. 13. So, the submissions addressed by learned Advocate for the respondent Nos. In other words, as there is a failure of the corporation to discharge the statutory duty and a person having died while discharging the obligatory duty of the corporation; corporation is liable to pay the compensation. 13. So, the submissions addressed by learned Advocate for the respondent Nos. 1 and 2 are rejected. Court holds that there is no merit in the appeal and the same is dismissed. Send the amount in deposit to the Commissioner for payment. Appeal dismissed.