RAMESHWARI Vs. M.C.D. & ORS.

JUDGEMENT

(1.) There are three petitioners before this Court. Petitioner No. 1 Rameshwari is the widow of Pratap Chand. Petitioner No. 2 Shashi is the widow of Surinder Kumar. Petitioner No. 3 Archana is the widow of Mahinder Kumar. The petitioners had suffered an unfortunate fate on 11.02.2007 when (as per the version of the petitioners), the employees of the Municipal Corporation of Delhi were digging up a drain in front of their house i.e. F-225, J.J. Colony, Madipur as a result of which the foundation of their house (which had been built upto the second floor) had collapsed as a result of which eight persons had died. Nine people had suffered injuries. The whole building had collapsed and petitioners No. 2 & 3 were also victims in this incident; they had suffered multiple fractures having been buried in the debris of the building in the said mishap. FIR No. 100/2007 under Sections 337/304-A of the Penal Code was registered on 12.02.2007. The postmortem of the deceased persons was conducted at the Sanjay Gandhi Memorial Hospital which revealed that the afore noted persons had died due to injuries suffered by them because of the collapse of the building. Further averments in the writ petition disclose that the Investigating Officer of FIR No.100/2007 (SI Gagan Bhaskar) had recorded the statement of other eye-witnesses to the incident which confirmed the fact that the said building had collapsed because of negligence on the part of the MCD officials who had failed to adopt safety measures and because of their poor planning while digging up a drain in front of their house, the house of the petitioners had resultantly collapsed; petitioner No. 1 along with her husband late Pratap Chand were living on the ground floor; he was running a shop in front of his house; the husband of petitioner No. 3 Mahinder Kumar was living on the first floor; petitioner No. 3 Archana had also suffered multiple injuries over her leg and she was being treated at the hospital and till the date of filing of this petition, she has spent Rs. 50,000.00 over her medicines and doctor fee. She is still not in a position to do normal chores. The family of petitioner No.2 was residing on the second floor. The deceased husband of petitioner No. 2 namely Surinder Kumar was engaged in the business of wooden farmas for ladies sandals and he was earning handsomely. There is no other person to look after his family. Petitioner No. 2 Shashi had also suffered injuries and she was also being treated at the hospital. Till date she is not able to carry out her normal duties. Besides the mental and physical trauma suffered by the petitioners, there has been an earning loss as the petitioners have not been able to look after their families as all their male members have died. All this is attributable to the negligent acts of the respondent Corporation as they had not taken the necessary measures to watch their safety. A sum of Rs. 10 lacs has been claimed qua the death of Pratap Chand; Rs. 22 lacs for the death of Surinder Kumar and Rs.10 lacs for the death of Neha, daughter of petitioner No. 2. Rs. 15 lacs for the death of Sahil, the son of petitioner No. 2. An additional sum of Rs.10 lacs has been claimed for the injuries suffered by petitioner No. 2 herself. Rs. 22 lacs has been claimed for the death of Mahinder Kumar, the deceased husband of petitioner No. 3. Rs. 12 lacs has been claimed for the death of Manthan, son of petitioner No. 3. Another sum of Rs.5 lacs has been claimed for the injuries suffered as also the consequential damages suffered by petitioner No. 3. Cost and interest on the afore noted amounts has also been claimed.

(2.) Counter affidavit has been filed by the respondent Corporation. In the counter affidavit, a preliminary objection has been taken that the allegations in the writ petition are false; there are wrongs which have been committed by the petitioners themselves; they have encroached upon the Municipal/Government land and raised infrastructure in the form of pucca structure over the municipal land over which they have no right. This incident has occurred due to their own illegal activities which are attributed to the petitioners themselves. They had not taken requisite care at the time of removal of unauthorized and illegal construction. There is no negligence attributable to the MCD. It is further stated that no work of digging of a drain adjoining the spot of incident was ever conducted by the respondents and this is as per the available record of the Department. The question of the involvement of the officials of the MCD does not arise. The averments in the writ petition are false. Since the petitioners themselves have encroached upon the public land, no relief can be granted to them. They even otherwise have an efficacious remedy by way of filing a suit as disputed questions of facts have arisen.

(3.) Counter affidavit of respondent No.3 i.e. SHO of Police Station Punjabi Bagh Inspector Gurmeet Singh at the relevant time is also a part of record. In this affidavit, it was stated that on 11.02.2007, a building NO. F-225, JJ Colony, Madipur had collapsed in which 7 persons died and nine persons were injured. FIR No.100/2007 was registered under Sections 337/304-A of the Penal Code on 12.02.2007 at PS Punjabi Bagh. Senior MCD officials had reached the spot and inspection was carried out. Some persons had been buried under the collapsed building debris. During investigation, it was found that JJ Colony, F Block Madipur was constructed by the DDA about 25-30 years and with the expansion of the family members, the petitioners had done unauthorized encroachments and constructions in their houses. Encroachment removal program had in fact been carried out by the MCD in all the blocks of JJ Colony, Madipur in which encroachments were removed. The MCD contractor had started digging a drain in the F block. This was outside the boundary of the house of F block. This affidavit further states that the original plot measuring 22.5 square meters had been awarded for the purpose of re-settlement in the Madipur area and constructions upto single storey was allowed. However, with the passage of time, 2-3 floors were added illegally and the municipal land/road was also encroached upon by almost everybody in front of their houses. In the course of an encroachment removal programs, the house owners themselves had punctured the front portion of their houses after consultation with MCD officials. Supporting walls of the houses had been removed without any technical knowledge as a result of which by the soaking of the rain water, the building at F-225, JJ Colony, Madipur collapsed leading to this unfortunate incident.