1. Heard both sides. Perused the record. Criminal
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 of the respondent Municipal Council to pay appropriate compensation to the tune of Rs.10,00,000/- to the petitioners for the loss of their son, and;
(iv) direct the respondent State or the Municipal Council to give employment to one of the son of the 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.
Criminal (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) The petitioner's son Sanjay was serving in Industry namely 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 Criminal 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 Criminal 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 Criminal 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. 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.
Criminal [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 Criminal 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 v. Union of India 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 v. Sumathi and others.
(4) (2002)2 SCC 162, M.P. Electricity Board v. 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 v. 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 v. 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?
Criminal [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] 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 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 Criminal 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 Criminal 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 with dirty water and the contaminated water must have entered 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, Criminal 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 Criminal 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 Criminal 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 Criminal 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 Criminal 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.
Thus, the fact that the petitioner's son Sanjay died due to hepatitis i.e. 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 Criminal 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.
Criminal 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 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 Criminal 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 compensation towards loss of amenity and love and affection 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 Criminal 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 Criminal 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. 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 Criminal 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 Criminal 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. 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.