CWP No. 6485 of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 6485 of 2000 Date of decision July 4, 2011 Anand Sagar Ahluwalia and others ....... Petitioners Versus The State of Punjab and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Rajeev Trikha , Advocate for the petitioners. Mr. P. S. Bajwa , Additional Advocate General, Punjab for respondent Nos. 1, 2 and 4. None for respondent Nos. 3 and 5. **** 1. Whether reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest?Yes K. Kannan, J (oral). I. Cause for litigation: 1. The petition is filed at the instance of the husband, son and daughter of one Sarita who was working as a Senior lecturer in New Senior Secondary School, Ludhiana but met with an unfortunate death by a fall into an open manhole on a public road in Ludhiana City. The incident had happened on 18.4.1999 when she was reported to be coming from the side of milk plant in Ludhiana and when she was walking near the canal bridge opposite Gurudwara Nanaksar Sahib. She fell into a sewerage manhole which was not covered with the lid. The contention was that the sewerage main line was not visible as the same had been covered CWP No. 6485 of 2000 2 with grass and leaves. The body was recovered after search for over 69 hours on 21.4.1999. The complaint had been registered with the police under DDR No.8 dated 19.4.1999 at 10.30 A.M., the following day and after the body was recovered and post-mortem was done, the doctor had certified that the death had occasioned on account of 'asphyxia' as a result of drowning which was sufficient to cause death in the ordinary course of nature. II. Response from State functionaries 2. The incident of death due to the accident by fall in the open sewerage pit is admitted. The petition contains a prayer to register a complaint for culpable homicide and for a direction to State to take essential steps to stop the recurrence of the tragedy. The State has gone on an affidavit from the Principal Secretary to the Government Sh. N. K. Arora that all the Municipal Corporations, Nagar Councils and Nagar Panchayats had been issued directions that all the open manholes would be duly inspected and closed so that no harm could be caused to any member of public. Government of Punjab is also said to have issued instructions to all the Local bodies to check the manholes in the respective jurisdiction regularly and take immediate steps to replace any broken covers and to provide new ones where ever there were missing. The Commissioner Municipal Corporation has reported that subsequent to the incident on 29.8.2000, the lids of missing manholes were replaced immediately and since the incident, there was no further scope for such untoward incident and that every effort was being taken that there was no repetition of such an incident. Punjab Water Supply and Sewerage Board has also filed a reply through its Managing Director stating that after the completion and commencement of the Sewerage at Ludhiana in the year 1993, it had been handed over to the Municipal Corporation and there had been no error in the construction of the sewerage lines. The contention is CWP No. 6485 of 2000 3 that it was the responsibility of the local body to maintain the sewerage lines for all safety to public and that the fifth respondent-Board is not responsible. III. Basis of liability Both at common law & compulsion under statute 3. If there had been an open manhole and a death had resulted, it was evidently on account of the negligent maintenance of the Municipal Corporation that the death must have come about. It simply answers res ipsa loquitur situation that requires no further probe on finding who is culpable. Learned counsel for the State argues that the petitioner himself was guilty of contributory negligence. I reject the plea as untenable for an open manhole is indeed a death trap and the State ought to own responsibility for the consequences of not properly taking care to ensure that no untoward incident could take place by an unwary member of the public falling into the hole in an unguarded moment. Roads are meant for use by the public and if an user comes to harm, the State shall be directly responsible for the consequences of such harm. 4. A person dying by injuries by fall of trees has been dealt with by the Supreme Court in Municipal Corporation of Delhi Vs. Sushila Devi (1999) 1 SCC 317. In the context of duty to maintain a road by the Municipal authority free from danger, the Supreme Court said in S. Velayndha Charya Vs. High Way Department of South Arcot (1987) 3 SCC 400 that the duty included the “duty to warn”. In Dr. C. B. Singh Vs. Component Band Agra 1974 ACJ 248, it was held that a local body was bound to make proper arrangements for lighting a street and a lapse that caused damage to the individual was held actionable. There is no dearth of authorities for the principle that local bodies are liable for maintenance of roads and their failure resulting in harm will give rise to claim for damages. Please see, Arhrat Lal Vs. Ahmedabad Municipality CWP No. 6485 of 2000 4 (1904) 6 Bombay LR 75, Mohanlal Vs. Ahemdabad Municipality (1937) Bombay CR 552; District Board, Badaun Vs. Sri Niwas (1942) ALJ R 619; Rahim Bakhsh Vs. Municipal Board, Bulandsahr AIR 1939 All 213. 5. The manner of maintenance of sewerage lines and conservancy services in Punjab could be tracked to at least three legislations. The Punjab Municipality Act, 1911 contains the following provisions:- 50-B. Powers and authorities of municipalities:- 1. Without prejudice to the generality of the provisions of sub-section (1) of Section 50-A, the State Government may, by notification endow the Municipalities with such powers and authorities as may be necessary to enable them to function as institutions of self government, subject to such conditions as may be specified therein, with respect to,- i) the preparation of plans for economic development and social justice; ii) the performance of functions and implementation of the schemes which may be entrusted to them including the following, namely:- 1) Urban planning including town planning 3) Planning for economic and social development; 4) Roads and bridges; 6) Public health, sanitation conservancy and solid waste management; CWP No. 6485 of 2000 5 12) Provisions of urban amenities and facilities such as parks, gardens and playgrounds; 17) Public amenities including street lighting, parking lots, bus stops and public conveniences. 6. Even apart from the above, the Punjab Water Supply & Sewerage Board was set up under the Punjab Act No.28 of 1976 for the purpose of regulation and development of drinking water supply and sewerage services in the urban areas of the Punjab State. Prior to the formation of PWSSB such services were being performed by the Punjab, PWD, Public Health Deptt. The functions of the Board as defined in the Act are as under:- i) Investigating and surveying the requirements of water supply and sewerage; ii) Planning and preparing schemes including schemes covering areas falling within the jurisdiction of more than one local authority for the purpose of providing the supply of drinking water or sewerage facilities; iii)Executing schemes under the phases programme for the provision of drinking water and sewerage facilities within the area of local authorities to which such schemes relate; iv)Executing such drinking water supply or sewerage facilities schemes as may be transferred by the Government from the Department of Public Health to the Board; v) Working out priorities with the approval of the government and drawing up a detailed CWP No. 6485 of 2000 6 programme of executing vi)Laying down the norm of staff to be employed by a local authority for the maintenance of water supply and sewerage works which the local authority concerned shall notwithstanding anything contained in any other law, take into consideration while employing the additional staff necessitated by such works; vii)Any matter which is supplemental, incidental or consequential to any of the above functions; viii)Such other functions as may be prescribed. 7. In Punjab Civil Consumer Welfare Front (Regd.), Banur Vs. U.T., Chandigarh AIR 1999 P&H 432, a Division Bench of this Court found fault with the Corporation for death of a child falling through an uncovered manhole. Referring to Section 44 (a) of the Punjab Municipal Corporation Act, the Bench underscored the obligatory duties of municipal Corporation and said that when Corporation was obligated to provide basic amenities like water, electricity and streets, it cannot be absolved of the liability caused due to death of child in an uncovered manhole, even in an unauthorized colony established within its limits. The liability of the State and particularly the Municipality is therefore clearly established to answer the claim arising out of the death of a member of the public. 8. The duty to maintain public servers is therefore statutory and local bodies that have the power to establish them have a concomitant duty to maintain them properly and take responsibility for consequences of any harm to public arising out of their poor upkeep. IV. Tenability of Public law remedy 9. The right of invoking a public law remedy is CWP No. 6485 of 2000 7 well established by several decisions of the High Courts and Hon'ble Supreme Court. The Supreme Court has held in Common cause of Registered Society Vs. Union of India (1999) 6 SCC 667 that the power or Court is not merely injunctive in ambit, that is preventing the infringement of a fundamental right but it is also remedial in scope and provides relief for the breach by damages. In Darshan and others Vs. Union of India (2000 ACJ 578) the Delhi High Court approved of the public law remedy through writ for a claim for compensation for death of a person due to a fall in a manhole in the metropolitan city of Delhi. The Delhi High Court observed, “Relief to the unfortunate victims of the accident can not be allowed to be lost in the quagmire or morass of a protracted civil trial, where inter se liability is to be determined.” It made the Public Works Department liable in the first place and gave it a liberty to record in turn the amount from the Municipal Corporation. V. Quantum of Compensation 10. The deceased was said to be a teacher earning `3,470/- per month and the salary certificate has also been filed in Court. She was 54 years of age and I would provide for 1/3rd deduction for personal expenses and take the contribution to the family per year at `27,760/-and adopt a multiplier of 11 and find the loss of dependency and the loss of services as house holder to the family to husband and two sons at `3,05,535/-. I will provide for further conventional heads of claim such as loss of consortium to the husband, loss to estate and funeral expenses and determine an amount of `3,50,000/- as compensation payable. The amount shall be shared between the husband, son and daughter in the ratio of 2:1:1. This amount shall also attract interest at 9% from the date of the accident till the date of payment. The liability shall be on respondent Nos. 1 to 3. VI The course of action for future CWP No. 6485 of 2000 8 11. I have already referred to certain guidelines issued by the State to Local Bodies for putting some safety systems to prevent such incidents in future. Things do not seem to have improved in Ludhiana. The Times of India reports on February 1, 2011 that in the previous one year 6 lives have been lost by persons falling in manholes in Ludhiana and on all occasions, the Municipality has disowned liability. The report laments that civic body does not even have a record of deaths reported due to open manholes. The Tribune carried yet another report on 31st January, 2011, following the death of a 7 year old child by a fall in a manhole, that the Ludhiana Municipality has not learnt its lesson despite a Civil Court decree for compensation for a person that suffered injuries by hitting his scooter against a displaced lid of a manhole and the resultant paralysis of his limbs. If it is a recurrent theme, mere communications by high ranking officials in administration of local bodies exhorting their subordinates to maintain public roads properly and particularly giving directions to close manholes could only be perceived as meaningless lip sympathies and ineffective palliatives. It is time to impose a higher level of responsibility by casting criminal negligence on the Chief Executive of the Municipality or a local body concerned. The police cannot simply feel complascent about registering a FIR and letting the investigation drift to a closure report. The police shall track liability by undertaking the investigation and seeing if the particular high level officer in the Municipality or a local body has acted with alacrity to prevent the off perceived harm and whether there existed criminal negligence despite a call of duty to ensure the prevention of its occurrence . The civil society shall be the watch dog to make the police itself to act, if they fail to carry out that duty, by appropriate legal action. A death by criminal negligence under Section 304-A IPC is cognizable offence and it shall consequently become possible for any person acquainted with facts to set the law in motion. In this case, it CWP No. 6485 of 2000 9 is more than a decade since the incident has happened. I do not think there is any cause for registering a case for culpable homicide in the manner sought for, in the writ petition at this length of time. The provision for compensation would adequately meet the ends of justice for the present. 12. The respondents 1 to 3 are jointly and severally liable for compensation. The writ petition is allowed on the above terms. (K. KANNAN) JUDGE July 4, 2011 archanam