Criminal WP/230/2003 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 230 OF 2003.
PETITIONERS: 1 Pandharinath Condbaji Sahare, Aged
about 58 years, Occ: Nil, R/o
Ramnagar Ward, Hinganghat, District
Wardha.
2 Lilabai Pandharinath Sahare, Aged
about 52 years, Occ: Nil, R/o
Ramnagar Ward, Hinganghat, District
Wardha.
ig -VERSUS-
RESPONDENTS: 1 State of Maharashtra Through its
Secretary, Ministry of Urban
Development Department, Mantralaya,
Mumbai - 400 032.
2 Municipal Council, Hinganghat through
its Chief Officer, Hinganghat.
3 The President, Municipal Council,
Hinganghat.
4 The Chief Engineer, Water Works
Department, Municipal Council,
Hinganghat.
Ms A. S. Athalye Advocate H/F Shri M.M. Agnihotri, Advocate for
the petitioners.
Shri R. S. Nayak, APP for respondent no.1.
Shri Apurv De Advocate H/F for Shri Anjan De Advocate for the
respondent nos.2 to 4.
CORAM: A. H. JOSHI AND U.V. BAKRE, JJ.
RESERVED ON : 14TH JUNE 2011.
PRONOUNCED ON: 29th JUNE 2011.
ORAL JUDGMENT : (Per A. H. Joshi J)
1. Heard both sides. Perused the record.
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2. By the present petition, reliefs which the
petitioners are seeking are quoted below:
(
” i) direct the respondent Municipal Council to
initiate an enquiry for the reasons of leakage
of water due to which the citizens of Hinganghat
were affected, and;
(ii) direct the Municipal Council to initiate
prosecution against the erring officers of
Municipal Council for their negligence/failure
to supply pure drinking water to the citizens of
Hinganghat, and;
(iii)direct the State as well as by Municipal
Council, Hinganghat and the erring officer ofthe respondent Municipal Council to pay
appropriate compensation to the tune of
Rs.10,00,000/- to the petitioners for the lossof their son, and;
(iv) direct the respondent State or the Municipal
Council to give employment to one of the son ofthe petitioners so as to save the family from
starving.”
[Quoted from pages no.18 & 19 of petition paper book]
BACKGROUND
3. The petitioners’ claim is based on the following
pleadings :-
(a) The petitioners are respectively father and mother of
deceased Sanjay Pandharinath Sahare. Sanjay fell
sick on 15-2-2003. He was diagnosed to be suffering
from Jaundice. He was initially treated in E.S.I.C.’s
Hospital at Hinganghat and was then sent to
E.S.I.C.’s Hospital Nagpur, when the disease became
uncontrollable.
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(b) There was spread of Jaundice in 3 out of 63 Wards in
Hinganghat Municipal Area in 2003. The Municipal
Council took a drive of prevention and control of
Jaundice in February 2003. The Municipal Council and
the Government had declared the Cottage Hospital at
Hinganghat to be 24 hours treatment Center for
Jaundice. Private doctors and laboratories
participated in fighting with epidemic.
(c)
ig The petitioner’s son Sanjay was serving in Industrynamely Vaibhav Textile Mills. He was 38 years of age.
He was getting wages of Rs.90 per day and was earning
Rs.2700/- per month. He used to maintain his parents
and had commitment to family. The petitioners are
entitled for compensation of Rs. 10 lacs.
4. The petitioners have placed on record case papers of
the medical treatment received by the petitioners and the medical
papers pertaining to the Laboratory analysis of contaminated
water.
5. The petitioners have also placed on record as
ANNEXURE NO.VIII, the letter written by the Civil Surgeon, Wardha
to the Chief Officer, Municipal Council, Hinganghat and other
authorities for insisting upon them to take action for fighting
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with epidemic of jaundice.
6. During pendency of the petition, the petitioner has
filed affidavit of one Dr. Mohata a private Medical Practitioner,
to substantiate the petitioner’s plea that the Municipal Council
had failed and had neglected in supplying potable water, and to
plead that the Council was supplying unhygienic and disease
infested water.
This affidavit of Dr. Mohota along with annexures is
on record at page 57 to 85 apart from annexures thereto.
7. By amending the petition, the petitioner has
incorporated averment relating to statutory duties of the
Municipal Council and its Officers to substantiate its plea for
investigation and registration of crime etc.
8. The respondent no.2 – Municipal Council has filed two
affidavits opposing the petition. First affidavit is filed on or
about 11-08-2003. Second affidavit is filed on 25-4-2006 to
counter the allegation contained in the affidavit of Dr. Mohata.
These affidavits of the Municipal Council are on record at pages
no. 14 to 51 and 86 to 111 respectively.
9. The Municipal Council – respondent no.2 has not
replied the contents of the petition answering each averment
and/or each paragraph. The affidavit-in-reply filed by the
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Council is drafted in an un-ruly manner has caused immense
inconvenience to the Court in the process of tracing denial,
admissions and special pleadings if any. This Court has,
therefore, undertaken threadbare scrutiny of averments of
respective pleadings to find out the facts which are admitted
and/or denied, and as to specific pleadings if any.
10. From scrutiny of papers, what is either specifically
pleaded or has been admitted by the respondent no.2 is summarized
as follows:
(1) Over the years in the past, the Municipal Council has
been exerting to prevent jaundice.
(2) In the year 2003, there was outbreak of jaundice.
(3) It was noticed that there were leakages in main water
supply pipeline as well as subsidiary supply
pipelines, at many places.
(4) Efforts were being made to control the leakage.
(5) Proper propaganda was being made for promoting
hygiene and health habits.
(6) Letter was written by the Civil Surgeon to the Chief
Officer bringing to his notice various deficiencies.
(7) The Chief Officer, Municipal Council had taken steps
to invite various persons for a meeting deciding
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modalities for controlling the spread of jaundice.
11. What is denied is summarized as follows:
(a) That outbreak of hepatitis was due to any failure on
the part of Municipal Council;
(b) That contaminated water was supplied;
(c) That there was any dereliction of duty by the
Officers of the Municipal Council;
(d) That there is any liability to pay compensation.
12.
ig The facts which are not denied, have to be divided
into two parts A and B under different heads and those are as
follows:
[A]
(i) Sanjay died due to hepatitis.
(ii) Sanjay was treated in E.S.I.C.’s Hospital at
Hinganghat as well as in E.S.C.I.C.’s Hospital at
Nagpur.
(iii) There are no patients of hepatitis in the Ward from
which Sanjay hails.
(iv) Sanjay was earning Rs.90/- per day and his age was 32
years, and that the petitioners have lost their
support for life.
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[B]
(i) That the Civil Surgeon & other officers of Government
had noticed the defects in the water supply.
(ii) That the defects existed in the drinking water supply
lines and suction of contaminated water, the
contaminated water entered in pipelines.
13. Apart from that the petitioner has relied upon the
Civil Surgeon’s letter Annexure-VIII, which is at page 52 in the
affidavit filed by the District Health Officer Mr. R. R. Rathod
he has confirmed that the defects were found in the pipeline,
those were brought to the notice of the Municipal Council lateron
and corrective measures were taken by the Municipal authorities.
He has also given entire statistics of the patients
suffering from jaundice, stating that as much as 738 suspected
jaundice patients inclusive of 15 pregnant women were found
during survey in the population of Hinganghat town which was
95,047 which is more than 0.73%.
14. Learned Advocate for the petitioners has placed on
record certain literature relating to reasons of outbreak of
jaundice in generality as well as in specific to the outbreak at
Hinganghat.
15. The respondent no.2 has also placed on record certain
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literature to urge that the bacteria named ‘E Coli’ which was
found in the drinking water samples does not cause jaundice.
16. The petitioner has relied upon certain citations
relating to maintainability of petition, when the involvement of
disputed questions of fact is posed as a shield for opposing the
petition and when compensation can be awarded etc. These
Judgments are as follows:
(1) (1998) 3 SCC 67 P. A. Narayanan Vs. Union of India
ig and others.
(2) (2000)3 SCC 754, Parvatidevi and others V.
Commissioner of Police, Delhi and others.
(3) (2000)4 Supreme Court Cases 543, Tamil Nadu
Electricity Board Vs. Sumathi and others.
(4) (2002)2 SCC 162, M.P. Electricity Board Vs. Shail
Kumari and others.
(5) (2004) 3 SCC 553 ABL International Ltd. & another V.
Export Credit Guarantee Corporation of India Ltd and
others.
(6) AIR 2002 SC 1598 Director of Settlements, A. P. &
others Vs. M. R. Apparao and another.
17. Learned Advocate Mr. De for the respondent no.2 has
for opposing the petition, relied upon following judgment.
AIR 1965 Supreme Court 1616, Kurban Hussein
Mohamedalli Bangawalla Vs. State of Maharashtra.
18. Considering the rival contentions, this Court has to
rule on the following points:
[1] Is the petition liable to be dismissed as it involves
disputed questions of fact?
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[2] Has the petitioner proved and made out a case that
there was spread of Jaundice in Hinganghat Town
collateral to the period of sickness of Sanjay
Sahare?
[3] Has the Municipal Council failed in performing
constitutional obligation and duties of providing
potable water to the citizens?
[4] Did Sanjay Sahare died due to hepatitis?
[5]
ig In the event answer to point nos. 2 and 3 favoursthe petitioners, is Municipal Council – respondent
no.2 liable for payment of compensation to the
petitioners?
[6] If the petitioners are entitled to the compensation,
to what extent?
19. Now we would discuss the points framed by us above
for consideration herein after.
As to Point No.1:
Is the petition liable to be dismissed as it involves
disputed questions of fact?
20. We deem it appropriate to record at the outset that
we are fully alive and conscious of the position that we are
exercising the writ jurisdiction and do it in a summary procedure
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and do the fact finding whenever the fact finding does not call
for an enquiry involving full fledged and formal trial. We are
also conscious of legal position that when facts and justice
demands, and where the fact finding in summary procedure is
possible, we do not shirk the responsibility in doing said
exercise.
21. Now on the facts of present case, if we find it
possible to adjudicate the issues in a summary procedure, we
shall do it.
Whether we can do this exercise shall emerge after we
discuss remaining points, as hereinafter.
We shall therefore answer point No.1 at the end.
As to Point No.2 :
Has the petitioner proved and made out a case that
there was spread of Jaundice in Hinganghat Town
collateral to the period of sickness of Sanjay
Sahare?
22. The petition contains detailed narration as to
outbreak and spread of Jaundice in Municipal Town of Hinganghat.
23. The letter written by the Civil Surgeon which is at
Annexure-VIII makes certain things clear beyond doubt. These
things are :-
(a) There is leakage in the vault chamber of the
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filtration Center and contaminated water had
accumulated in it.
(b) In the water filtration premises, the main pipeline
had heavy leakages and surroundings were filled with
mud around the leakages.
(c) The main location of eruption of Jaundice was
Yeshwant Nagar, Hinganghat and though chlorination
was found in the water, the vault chamber was filled
ig with dirty water and the contaminated water must haveentered into pipeline due to its suction in the
leaking pipeline.
Apart from this letter, the District Health Officer
has filed an affidavit in which the outbreak of jaundice in
February 2003 in Hinganghat town is admitted in clear terms.
738 suspected jaundice patients comprising of 15 pregnant women
in the population of 95047 were found during door to door survey
and there were leakages in the pipeline which the Municipal
Council have reported to have corrected.
24. The respondent no.2 has not explained or denied the
contents of the affidavit of the District Health Officer Mr.
Rathod by filing a rejoinder or otherwise.
25. These averments are admitted by the respondent no.2,
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though by incorporating the additional paragraphs in the
affidavit-in-reply, the respondent no.2 has in an evasive manner
and argumentatively denied that it is responsible for said
outbreak. This type of evasive denial amounts to admission.
26. In the aforesaid background as to record, we hold
that there was outbreak of epidemic of jaundice in February 2003
in Hinganghat Municipal area. Point No.2 is answered
affirmatively and in favour of the petitioner.
As to Point No.3:
Has the Municipal Council failed from performing
constitutional obligation and duties of providing
potable water to the citizens?
27. As it is seen from the pleadings of the respondent
no.2 that it has denied that it has failed in performance of duty
whatsoever. Yet the respondent no.2 has not denied rather it was
unable to deny the deficiencies pointed out by the authorities
i.e. the District Health Officer, Civil Surgeon, Chief
Microbiologist of the District Health Laboratories.
On the other hand, the Municipal Council has declared
its resolve to carry out the compliance of corrective measures as
dictated by the authorities.
28. In order to demonstrate that the Municipal Council
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was vigilant and careful in the past, it has placed on record
documents to show the steps taken by it from 1997-2000. However,
the steps taken by it immediately prior to outbreak of jaundice
in 2003 are not placed on record except one contemporaneous
public notification, copy whereof is at Annexure-VI, page 51.
29. It is evident that the Municipal Council became
alert only after the news items had flashed in which it was
reported that a Legislative Assembly Question was asked and
incident
of death which had occurred received publicity. The
meeting relied upon by the respondent no.2 was called by letter
dated 26-2-2003 in response to the said news flashed in the
newspaper on 25-2-2003. All these acts have commenced only after
the alarm was caused.
30. It is thus, seen that the Municipal Council was
spending on purification and sterilization of water, however it
has utterly failed to take care and abide by the duty of ensuring
uncontaminated and potable water to the residents of Hinganghat
Town by failing in being vigilant in maintenance of main as well
as subsidiary drinking water supply pipelines, in order to avoid
access of filthy and virus infested water therein.
31. On the other hand, it is duly proved by the entire
undisputed and indisputable evidence in the form of communication
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of Civil Surgeon and affidavit of the District Health Officer
that the Municipal Council has not only failed, but has utterly
failed in discharge of duties of supplying uncontaminated and
potable water to its citizens.
32. The proved case of supply of contaminated water to
three Wards has to be looked into as a tip of iceberg. There are
no water tight compartments between different pipelines in the
Municipal area and, therefore, it would be gravely risky to
believe that the contaminated water was supplied only in three
wards and in the rest of the areas, ‘all was well’. Moreover,
the statistic is not brought forward by the Municipal Council to
suggest and/or prove that in the areas other than three Wards
where there was outbreak of jaundice, no patient of jaundice was
found.
33. It is also proved that the Municipal Council has
utterly failed to adhere to the responsibilities which is
bestowed upon it by the statute and by conferring upon it
constitutional anatomy and power by virtue of the provisions
contained in Chapter IX A of Constitution of India. In failing to
notice the patent leakages and access by suction of contaminated
water in the drinking water pipelines, the Municipal Council –
respondent no.2 has failed in discharge of duties with due
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diligence and due duty of cate.
34 Breakage and Leakages are known incidences, however,
the failure to notice and repair is an utter failure in duty.
The leakages cannot be in any manner be regarded as matters
beyond cognizance by prudent human abilities. Thus leakages are
not accountable to act beyond human control or due to vismajore.
35. The discussion herein before thus propels a
conclusion that the Municipal Council had failed in performance
of its duty of providing uncontaminated and potable water to the
citizen in the Hinganghat town.
36. This Court, therefore, arrived at a conclusion that
the Municipal Council has failed in performance of its statutory
and constitutional obligation to supply potable water to its
subjects.
37. We consider that it would be unnecessary to exert any
further on the point as to whether supplying potable water being
the duty of the Local Self Government – the Municipal Council by
deduction.
As to Point No.4 and As to Point No.5:
Did Sanjay Sahare died due to hepatitis?
&
In the event answer to point nos. 2 and 3 favours
the petitioners, is Municipal Council – respondent
no.2 liable for payment of compensation to the
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petitioners?
38. The fact of death of Sanjay Sahare is not disputed by
the respondent No.2. The medical treatment papers of the
petitioner which are at Annexure No.1 which consists of record of
observations and treatment report relating to pathology, letter
of reference to higher Center and cause of death which are on
record at page 20 to 27 have not been denied, disputed or
commented.
ig Thus, the fact that the petitioner’s son Sanjay died
due to hepatitis ie. Jaundice is proved.
39. We deem it ourselves to be bound by basic doctrine of
law of torts Ubi jus ibi remedium as strengthened and fortified
further by the doctrine of constitutional justice where the
constitutional and statutory rights would not be a piece of
decoration. Such constitutional obligation has to be capable of
enforcement and has to fructify into an order of due and
restitutive justice. In the result, the local self Government,
now with Constitutional seal, which fails in performance of its
obligation as to duty and discharge of duty of care, would be
liable for damages.
In the era of welfare state, a public authority and
local self Government would not be absolved from being liable to
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pay compensation.
40. The learned Advocate for the respondent no.2 was not
in a position to shield the liability of the respondent no.2 to
pay the compensation by claiming immunity and exemption. Any
such immunity may be an implied a fall out of any natural
phenomena such as act of nature, act of God and emergency beyond
human abilities, all distinguishable from act of negligence. No
such immunity based on facts or in law is made out by the
Respondent No.2
41. Consequently, we hold that the Municipal Council is
liable, on account of its failure, in performance of its
functions, duties and responsibilities, to pay compensation to
the petitioners.
42. The petitioners have claimed that the deceased Sanjay
was in a private industry and earning Rs.90/- per day. The
details of his qualification, earning etc. have not been given by
the petitioners. He was living jointly with his parents and
maintaining himself and his parents. By applying yardsticks as
applied in the fatal accidents and or compensation relating to
other cases, the extent of compensation to the petitioners can be
considered.
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As to Point No.6 :-
If the petitioners entitled to the compensation, to
what extent?
43. The loss suffered by the parents would, in the
result, emerge in the following shape:-
(a) Rs.90/- per day – wage excluding weekly off and
public holidays.
(b) He could be expected to get moderate rise in the
ig wages due to increase in dearness allowance and
other benefits.
(c) In the result, his wage could be considered to be
safely to be Rs.100/- per day as an aggregate without
any increase whatsoever, for years to come.
(d) His maintenance expenses, considering he being joint
with his parents, would be Rs.30/ per day. Therefore
dependance of petitioners together would be RS.70/-
per day.
(e) He would be working for 25 days in a month.
(f) His age was 32 years.
(g) By applying normal expectancy, health security etc.,
he could be hoped to have lived somewhere between 15
to 20 years. The expectancy of life of petitioners
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also be around same spell. Therefore, the multiplier
be considered to be 18 years.
44. The compensation which the petitioners would be
entitled to will be as follows:
(1) Rs.70 per day x 25 days x 12 months x 18 years
= 3,78,000 (Rupees Three Lakhs Seventy Eight Thousand
Only).
(2) The petitioners would be entitled to further
ig compensation towards loss of amenity and love andaffection which can be quantified to Rs.1,00,000/-
total amount would be Rs.3,78,000 + 1,00,000 =
Rs.4,78,000/-.
(3) In view that compensation is being paid in lump
sum, it could be reduced by Rs.50,000/- i.e.
Rs.4,78,000 – 50,000 = 4,28,000/-.
45. (a) The compensation would thus be Rs.4,28,000/-
with interest @ 6% per annum from the date of death.
(b) The petitioners would be entitled to the
consequential costs of Rs.12,000/-.
46. We, therefore, hold that the petitioners are entitled
to receive compensation of Rs.4,28,000 + 12,000 costs =
4,40,000/-. Out of the amount of compensation including accruing
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interest, a sum of Rs.4,00,000/- be kept in fixed deposit in a
nationalize bank at Hinganghat. Remaining amount i.e. Rs.40,000/-
and interest accrued be paid to the petitioners equally.
47. In the initial part of the judgment, while dealing
with the point No.1, we have noted that we shall deal with those
aspects at latter stage.
48. As has been noticed by us and we have discussed in
foregoing paras, the questions involved in point nos.2 to 6
involved certain facts which were disputed by the respondents.
These disputed facts, however, were of such nature that most of
the averments described in those facts have been admitted by the
respondent no.2 or denied evasively which amounts to admission,
and rest are indisputable being opposed barely by arguments.
49. In so far as the aspect that the petition is liable
to be dismissed as it involves disputed question of fact is
concerned, it is pertinent to note that the objection that the
petition involved disputed questions of fact is an objection to
exercise the jurisdiction and not to the existence and
availability of the jurisdiction.
50. On facts, the aspects outbreak and spread of jaundice
is proved. On facts that there existed major loopholes in
maintenance of pipeline is also an admitted fact. The aspect of
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failure of the Municipal Council to perform its duty was thus
tacitly admitted.
51. The aspects of earning capacity of the deceased and
dependents are the matter of bare reckoning and do not call for
any adjudication and fact finding. Moreover, the daily income of
the deceased pleaded by the petitioners matches with bare
‘minimum wage’, and is a most realistic claim which can be
regarded as proved.
52.
ig In the circumstances, we hold that the facts which
are disputed are of such nature that those are either
indisputable or are proved on admissions of the respondent or
failure to deny.
53. The question as to objection to exercise of
jurisdiction on account of the disputed questions of fact was
liable to be raised as a preliminary objection. It ought to have
been persuaded before the rule was issued. It is a grave
departure from propriety to raise this objection when the
petition has reached the final hearing after 9 years. We
sincerely believe that if the facts are incapable of adjudication
in summary jurisdiction, this objection still remains available.
54. On facts, we hold that the facts are of such nature
that the decision thereon in summary procedure is not only
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possible, but is convenient and capable of being done without
obstacles whatsoever.
We therefore, overrule the objection as to alternate
remedy and the ground that the petition involves questions of
fact which are disputed by the respondents.
55. In so far as the aspect of direction to initiate
prosecution is concerned, while the Municipal Council has
statutory and constitutional duty to carry out the maintenance of
water supply pipelines, by this date, the issue has become 7 to 8
years old. The petitioners and their Advocates should have
prayed for interim directions from the Court for preliminary
enquiry is to offence, if any, which could have ultimately led to
conclusion as to whether registration of offence needs to be
done. We see no impediment in propriety of praying for such a
direction.
56. We often see that the petitions, in which the prayers
for registration of crime are made, are remaining pending
primarily firstly due to the large filing and secondly due to
reasons best known to the Lawyers namely they do not press for
the matters of preliminary enquiries by way of interlocutory
orders, as in present case. Now after 8 years, a prayer of
registration of offence is to be considered. Considering the
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intricacy due to involvement of large number of staff members and
the fact that the senior Officers such as Chief Officers keep on
changing and the elected representatives are always ‘guest
actors’, the delay and further enquiry would result in making
some subordinate staff a scapegoat. Due to the delayed enquiry,
eventually, the criminal liability may not be fixed, rather such
orders would tax the system and may ultimately turn out to be a
futile exercise.
57.
ig We are, therefore, of the view that any order as to
taking action towards the criminal liability would not be
justified in the facts and circumstances of the case, we order
accordingly.
58. We make Rule absolute in terms of paragraphs 44 to
46, 54 and 57. The order for payment of compensation be complied
by deposit of amount in the Court of the Civil Judge, Junior
Division, at Hinganghat within 90 days from today.
59. Other reliefs, not granted are declined.
Issue of certified copy is expedited.
JUDGE JUDGE
//MULEY//
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