Full Judgment
Sunil Ambwani, J.
1. Heard Sri V.S. Shukla, learned Standing Counsel for State of U.P., the petitioner in this writ petition.
2. The State of U.P. through the Collector, Fetehpur, and the Board of High School and Intermediate Education, U.P. Allahabad through its Secretary have filed this writ petition for setting aside the judgment and order dated 1.4.2002 passed by Civil Judge (Junior Division), Fatehpur, in Original Suit No. 593/1991, awarding Rs. 12,500/- as half of the compensation claimed by the plaintiff for delay in declaring her result of the High School examination, in terms of directions of this Court; and the judgment and order dated 27.7.2002 passed by Additional District Judge, Court No. 6, Fatehpur dismissed the Civil Appeal No. 17/2002.
3. Since the claim for damages in the Suit was only for Rs. 25,000/-, a Second Appeal is not provided against the judgment of the Appellate Court, in terms of amended Section 102 of C.P.C., which has come into force with effect from 1.7.2002.
4. The facts giving rise to this writ petition in brief are that Ms. Nekhat Parveen daughter of Sri Luqoan Jafri appeared in High School examination of 1990, as a regular candidate of Nirankari Girls Inter College, Fatehpur (Group 'A'), with English, Home Science, Science (I), Social Science and Civics as her subjects. She secured 41 marks in Hindi, 39 in English, 54 in Home Science, 35 in Science (I); 44 in Social Science and 31 in Civics, out of 100 in each subject. The minimum pass marks in aggregate were 33%. The petitioner had secured 33% in aggregate. However, since she secured 31 marks in Civics, she was declared to have failed in the examination. She filed Writ Petition No. 20269/1990, which was allowed on 23.10.1990 with the findings that in accordance with calendar of the Board of High School and Intermediate Education, of the year 1966-67 she was entitled to grace marks. The calendar provided that where a candidate has secured less marks in one of the subjects and has an aggregating of 33% marks in all the subjects, he is entitled to grace marks to pass the examination. This Court directed the Board to give her to grace marks in Civics and to declare her result within one week, and to hand over mark sheet to her. The Board did not declare the result, on which she filed a Contempt Petition No. 917/1990. In the counter-affidavit, it was stated that the order of the High Court was complied with on 29.12.1990, and the respondents offered unconditional apologies. The Court found that the order has been complied with and after accepting the apologies on 23.1.1991, the Contempt Petition was dismissed.
5. Ms. Nekhat Parveen filed Original Suit No. 593/1991 alleging that the High Court had directed to award grace marks and issuance of fresh mark sheet within one week of the judgment dated 23.10.1990. The Board took more than two months time to comply with the order. The mark sheet was issued on 30.12.1990, on account of which she could not get confirmed admission in Class XI and that when she was ultimately give admission, she had suffered in her studies. It was also pleaded by her that on account of negligence of the Board, which was not bonafide, she suffered harassment, anxiety and mental tension, which affected her health, eye sight and memory. She claimed compensation quantified at Rs. 25,000/- from the Board.
6. The trial Court after taking documentary and oral evidence including the statement of the plaintiff, Principal of college, Dr. Aman Ullah Khan, Opthamologist and Dr. Jamat Ahmad, Optometrist, as PWs-1 to 4 and Sri Pawanesh Kumar Secretary of the Board, and Sri Amarnath Verma as DW-1 and 2, held that the order of the High Court was not carried out within the prescribed period, on account of which plaintiff suffered mental tension and anxiety, and had suffered from severe headaches. The stress and anxiety, affected her eye sight. The trial Court computed the damages with the help of the evidence and held that she is entitled to Rs. 12,500/- towards her treatment, spectacles, special diet and mental tension. The trial Court also held that the suit was not barred by Section 22 of the U.P. Intermediate Education Act, 1921 as the applicant has not challenged any order or decision of the Board. The First Appeal was dismissed by a short order confirming the findings.
7. The learned Standing Counsel submits, that the suit is barred by Section 22 of the U.P. Intermediate Education, 1921 and has relied upon judgment of Apex Court in Dhula Bhai v. State of M.P., AIR 1969 SC 78. He further submits that the Board was discharging statutory functions under the Act. The apologies tendered by the Secretary of the Board were accepted by the High Court in Contempt Petition and thus the findings recorded by the Court in contempt jurisdiction will operate as res-judicata between the parties. The plaintiff was not denied admission in Class XI, in the same year and that passed Intermediate examination as a regular student without any loss of academic year.
8. Section 22 of the U.P. Intermediate Education, 1921 is quoted as below :
'Section 22. Bar of Jurisdiction of Courts.--No order or decision made by the Board or any of its Committee in exercise of the powers conferred by or under this Act shall be called in question in any Courts.'
9. There is no provision in the Act of 1921, or the regulations framed there under giving a right to any student to claim compensation from the Board, nor there is any corresponding duty under the Act, given to the Board or any of its Committees and officers, to award students any compensation for any tortuous liability. In the present case, the plaintiff claimed damages on account of delay in awarding her grace marks and mark sheet which according to her was not bonafide, and thus resulted into harassment, anxiety and mental tension on account of which she lost her health and eye sight and was entitled to damages. Such an action was riot maintainable under the provisions of the Act. The suit, therefore, was not barred by Section 9 of the Code of Civil Procedures.
10. In the present case, the order dated 23.10.1990 passed by this Court in Writ Petition No. 20269/1990 directed the Board to award grace marks to the petitioner in Civics and to declare her result within one week. In Contempt Petition No. 917/1990 it was held that where the order does not provide for a date from which the directions for compliance begins, it is to be counted from the date when the order was communicated. The petitioner had communicated the order to the Board on 29.10.1990. The Contempt Court accepted the unconditional apologies and discharged the contempt notice. The Contempt of Court Act, 1971, does not provide for award of damages which requires, adjudication and determination of facts for which the Court may require evidence to be taken. The Act only provides for punishment. In case any person claims damage and compensation, he shall have to resort to the remedies provided to him in law including a suit for damages.
11. A liability in tort arises from a breach of duty primarily fixed by law and this duty is towards person(s) generally and its breach is redressable by an action for unliquidated damages. In general, torts consist of some Act done without just cause or excuse. Inquiry and damage are two basic ingredients of torts. These may be found either in contract or otherwise, the violation of which may result in tortuous liability as breach of duty primarily fixed by law or by parties in a contract. An action in tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of invasion, of a legally protected interest. The action is founded and structured of morality, as no one has right to injure or harms others intentionally or even innocently. The liability in tort, in course of time has become known as 'strict liability', 'absolute liability' or 'fault liability'. The difference between strict liability and fault liability, arises from presence an absence of mental element. A breach of legal duty willftilly, or deliberately or even menacingly, is negligence emanating from fault liability, to injure and damage resulting without any intention, yet due to lack of foresight etc. is strict liability. The duty is the primary yardstick to determine the tortuous liability, and its ambit keeps on widening on the touch stone on fairness and practicability of the situation etc. These Rules laid down in Rylands v. Fletcher, 1932 AC 562; were recognised by Indian Courts in Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1.
12. Actionable negligence as a tort is to breach of a legal duty to take care which results in the State or an individual liable when the State is found reluctant in discharge of its duties or public responsibilities. It also amounts to negligence and is accountable in law of torts. According to Dias, 'liability in negligence', 'is technically prescribed as arising out of damage caused by the breach of a duty to take care'. The concept of duty, its reasonableness, the standard of care required however cannot be put into strait-jacket formula or a rigid fixed formulae. The more advanced the society becomes, the more sensitive it grows to the violation of the duties by private or even public functionary. The negligence, in law of torts, is influenced by social, economic and political development. The distinction arising out of damages due to negligence and even when it, rather unintentionally and innocently is a firmly established branch of the law of torts. The negligence is only descriptive of those sum of activities which may result in injury and damage to the other side for voluntary of discharging duty both legal and due to lack of fore sight and may comprise of more than one concept known and recognised in law intended or unintended.
13. Even improper exercise of power by the authorities giving rise to damage has been judicially developed and distinction has been drawn between power coupled with duty. Where there is duty the exercise may not be proper if what is done was not authorised, or not done in the bonaflde interest of the public.
14. Keeping the above principles of the law of negligence, and the tortuous liability arising out of such negligence in mind, I find that in the present case there was a delay of about two months in complying with the orders of the High Court, in declaring the result and in issuing a fresh mark sheet. The plaintiff proved by leading evidence on record that during this period, she suffered from severe mental anxiety, and stress, which affected her health and eye sight. She under went treatment of an eye specialist and suffered in her studies. These findings are finding of fact with which I do not propose to interfere in writ jurisdiction.
15. The submission of the learned Standing Counsel, that the acceptance of apologies in contempt jurisdiction and discharge of contempt notices amounts to giving finality to the rights which the plaintiff had against the defendant, is not sustainable the law of contempt, provides punishment of those who willful disobey the directions of the Court. Civil contempt is defined under Section 2(b) of the Contempt of Courts Act, 1971 to mean willful disobedience to any judgment, decree direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. The punishment for civil contempt is provided in Section 12 of the Act, and includes a punishment to simple imprisonment for a term which may extend to six months, or fine which may extent to Rs. 2000 or with both, provided that the costs, may be discharged or the punishment awarded may be remitted, on apology being made to the satisfaction of the Court. The Act does not provide for any damages which a party may suffer on account of contemptuous Act for failing to comply with the order of the Court, which may amount to non-feasance, in carrying out the order.
16. In the present case, I find that the Board neglected in carrying out of the order of this Court for which a specific period was provided in the order dated 23.10.1990. The Contempt Court also found that the Board was negligent and was declared to be guilty, but accepted the apology and discharged the notice. The Board is thus liable under the law of torts to compensate to claimant respondent No. 1, with the damages for her sufferings, which was established on record by her, by leading evidence.
17. The writ petition is dismissed.