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2013 DIGILAW 569 (PNJ)

Dinesh Gupta v. State of Haryana

2013-05-02

RAJIV NARAIN RAINA

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JUDGMENT RAJIV NARAIN RAINA, J. After having heard learned counsel for the parties, this Court passed an interim order dated 05.02.2013 in the present case, which reads as follows:- "The claim in this petition is for award of compensation of Rs. 5.00 lacs to the petitioner on account of death of his son, namely, Vijay Kumar (for short the Child) aged about 15 years at the time of his death by drowning on 31.7.2010. The facts are that on 31.7.2010 at about 3.00 p.m. the child was playing with his friend in an open plot, near Shemrock School, Mansa Devi Complex, Sector 4, Panchkula. The vacant plot of land had become a pond due to collection of rain water during Monsoon. The child is stated to have accidentally slipped into the water without knowing or gauging the depth of the water. He died indisputably of drowning and was brought dead to hospital. The child lived with his parents at H. No. 228, New Indira Colony, Mani Majra, Chandigarh, which according to the written statement filed by respondent no. 2 Haryana Urban Development Authority, Panchkula, is situated about 1.5 kms. from the place of death. Respondent no. 2 HUDA has contested the writ petition, on notice of motion having been issued, by filing a written statement. It is stated that Plots No. 132P to 136P and 137P to 141P, Sector 6, MDC, Panchkula were allotted by HUDA to private parties in the year 2006. The defence set up is that the allotment letter to plot holders of municipal numbers above described contains a stipulation that it would not be the responsibility of HUDA to level uneven sites allotted by it. HUDA has shifted the burden to allottees for maintenance of their sites. It is said that the action brought is with the object of blaming HUDA to secure an award of compensation. The other preliminary objection raised is that the site of the alleged incident was not a notified play-ground, and therefore, it was not a public place where children could play. The Shemrock School is situated in the red-line of village Bhainsa Tibba which remains un-acquired and the sector area is known as Sector 4, MDC, Panchkula. The other preliminary objection raised is that the site of the alleged incident was not a notified play-ground, and therefore, it was not a public place where children could play. The Shemrock School is situated in the red-line of village Bhainsa Tibba which remains un-acquired and the sector area is known as Sector 4, MDC, Panchkula. It has been disputed on point of fact that there is no open plot near the school and the same is in fact at a distance of about 150 meters from the place of incident. HUDA contends that the primary duty falls with the parents to ensure that their wards do not venture into someone else’s land which is private property. The claim has been resisted for the aforesaid reasons. The Deputy Commissioner, Panchkula has filed a separate written statement. It has been pleaded that the residential sector in question has been developed and maintained by HUDA. All the development works, maintenance of roads, drainage, placing of sign boards, making of berms, levelling the ground etc. are within the purview of HUDA, which is a statutory authority. No relief can be claimed from the State. It is stated that the fire-brigade and police personnel immediately reached the spot and brought the child out of water and took him to the General Hospital, Sector 6, Panchkula for treatment where he was declared Brought Dead. The District Administration made best possible efforts in order to save the child. Learned counsel for the petitioner submits that he served a legal notice on the Deputy Commissioner, Panchkula which was forwarded by that office to the Estate Officer, HUDA, Panchkula vide Memo dated 28.12.2010, but no action was taken on it so far compelling the father to approach this Court. Learned counsel relies on the judgments passed by this Court in Smt. Sukkar and Another vs. State of Haryana and Others, CWP No. 11838 of 2011, decided on 4.7.2012. The Consumers Protection Association & Another vs. Union Territory of Chandigarh & Others, CWP No. 16142 of 2011, decided on 30.8.2012 and the judgment of the Delhi High Court in Ram Kishore and Others vs. Municipal Corporation of Delhi and Others, Writ Petition (C) No. 4328 of 2011, decided on 18.7.2007. I have heard learned counsel for the parties and have gone through the paper-book. Neither the cause of death nor the site of drowning has been disputed. I have heard learned counsel for the parties and have gone through the paper-book. Neither the cause of death nor the site of drowning has been disputed. The defence of HUDA that it was not liable for levelling uneven sites is matter between HUDA and the allottee. In case a plot of land is left unattended or un-constructed, letting rain water accumulate in it may give rise to an actionable claim in tort and negligence. It cannot be said that either HUDA or the District Administration has no duty at all to fence or cordon off such areas especially during monsoons to prevent any untoward incident or to put prohibitory warning flash cards thereabout in English, Hindi and Punjabi or a danger sign board displaying the depth of the pit forewarning people to be careful and not to enter upon the water and that they would do at their own peril. Foreseeable harm could have been avoided on private barren land amidst buildings as well be taking reasonable precautions. Such measures could have been adopted to save human life. Indeed they should be for the future so that such mishaps do not recur. I do not think that either HUDA or the District Administration can so easily sidestep and absolve themselves of their strict or vicarious liability and downplay public duty by transferring their primary municipal duty to the parents of the deceased, that they allowed their children to play. In this case we are beyond the stage of parenting. If HUDA failed in its duty to issue warning, the District Administration, Panchkula could have stepped in, the State and its authorities being omnipresent insofar as strict or tortious liability is concerned. The respondents cannot be permitted to shirk responsibility in the manner done in the written statements filed. It is possible that the innocent child could never have imagined what pitfalls lay ahead, that the water would be deeper than his height or strength to save himself; the instinct of self-preservation notwithstanding, an error of judgment or the like certainly happened. These and other factors could have played truant. After all children will be children. Public safety appears to me to be the guiding principle in such cases and a part and parcel of performance of municipal duties which may extend over private land left unattended and fraught with lurking danger. These and other factors could have played truant. After all children will be children. Public safety appears to me to be the guiding principle in such cases and a part and parcel of performance of municipal duties which may extend over private land left unattended and fraught with lurking danger. Duty of care may also enter into decision making. The principle of contributory negligence of plot holders may also be capable of being factored in the present case and sharing of just compensation could be worked out accordingly, to bring some succour to parents who have lost their son. The loss of a child to his parents is irrecoupable, and truly no amount of money can compensate them. In this view of the matter, a direction is issued to the respondents to sit together and re-examine the matter holistically in the light of the above observations or other reasons and consider payment of any just compensation. If there are any funds set aside for the purpose then to apply them. If not, then to create them for such contingencies. The respondents may also call upon the Municipal Corporation, Panchkula, in case it exercises jurisdiction of upkeep of land, also to participate with the respondents and to examine its own responsibility although at present it is not a party arrayed. Let the final decision by the respondents be taken within two months and the result be placed on the record of this case. List on 9.4.2013." When the matter was taken up for hearing on 09.04.2013, the following order was passed:- "Learned counsel for respondent No. 2 has produced an e-mail from HUDA which is taken on record as Mark A. Following decisions have been taken in the same: "(i) A sum of Rs. 5 lacs may be paid as compensation to the parents of the Child. (ii) HUDA will create a fund for such contingency. (iii) The Engineering Cell of HUDA shall install warning Sign-boards in Hindi, English and Punjabi cautioning the people not to enter into low lying areas because same may risk their lives. (iv) For areas not falling within the jurisdiction of HUDA the similar steps be taken by the Municipal Corporation and District Administration with the approval of State Government." Learned counsel for the respondent-HUDA prays that since it is an e-mail, he may be given some time to place the decisions taken on affidavit. (iv) For areas not falling within the jurisdiction of HUDA the similar steps be taken by the Municipal Corporation and District Administration with the approval of State Government." Learned counsel for the respondent-HUDA prays that since it is an e-mail, he may be given some time to place the decisions taken on affidavit. This Court records its appreciation for the decisions taken pursuant to the interim order passed by this Court on 5.2.2013. List on 2.5.2013." Today Mr. Nara appears and has filed an affidavit of the Executive Engineer, HUDA, Division No. III, Panchkula, in which the claim has been accepted. Para 2 of the affidavit reads as follows:- "2. That in view of the order passed by this Hon'ble Court, the matter has been considered and the Chief Administrator, HUDA, Panchkula has taken the following decisions:- (i) A sum of Rs. 5 Lacs may be paid as compensation to the parents of the Child. (ii) HUDA will create a fund for such contingency. (iii) The Engineering Cell of HUDA shall install warning Sign-boards in Hindi, English and Punjabi cautioning the people not to enter into low lying areas because same may risk their lives. (iv) For areas not falling within the jurisdiction of HUDA the similar steps be taken by the Municipal Corporation and District Administration with the approval of State Government." Mr. Nara has brought to Court a cheque bearing No. 308476 dated 25.04.2013 in a sum of Rs. 5 lacs in favour of the petitioner. A photocopy of the same is taken on record as Mark A. The cheque has been handed over to the learned counsel for the petitioner for onward transmission to his client. This Court records its appreciation in HUDA's initiative to rest the matter in such a robust fashion. Disposed of in terms of the affidavit.