The central legal point established in the judgment is the duty of the State to take reasonable care, its vicarious liability for tortious acts, and the discretionary jurisdiction under Article 226 of the Constitution of India to grant relief based on gross negligence or a patent violation of law by the State.

Pradeep Nandrajog, J.

( 1 ) THIS is an unfortunate case in which a young and sole bread earner of the family was lost on account of a tragic mishap occasioned due to negligence of the contractor engaged by DDA that left the petitioner No. 1, a young widow and 2 minor children to fend for themselves. Even in the hour of sorrow and grief, petitioner No. 1 showed courage and a social commitment; seen rather as an exception in this country; her late husband was pronounced brain dead. She took a courageous decision and donated his organs, giving a chance for a better life to the recipients. It was a sterling example of the gift of life.

( 2 ) A sensitive and responsive state apparatus was expected to respond with compassion towards the petitioners. The deceased was no millionaire. He was aged 38 years when he died. Employed with M/s. Jindal Photo Films Limited as a marketing Executive, he was earning a basic pay of Rs. 4,075/- p. m.

( 3 ) UNDISPUTED and disputed facts be noted. DDA had awarded the work of construction of peripheral storm water drain in Sector 15, Rohini to a private contractor, Sh. Vijay Kumar Goel. Term of the contract required the contractor to, amongst others; take:

"adequate careshall be taken toput up corrugated sheets around the area and also warning sign-boards in order to give warning to the users about the work of deep drain under execution. Warning lights should also be installed in order to give proper warning to pedestrians and vehicles. Detailed instruction issued in this regard vide circular No. 121 of LG, Delhi should be followed very strictly and nothing extra shall be paid on this account. "

( 4 ) THE work required digging of trenches before storm water drain could be constructed. Work commenced in December, 1996. By 25. 10. 1997it had reached the 20 feet wide road near Block A-8, Sector 15, Rohini between Block A and Block G.

( 5 ) ON 25. 10. 1997, at around 7 p. m. husband of petitioner No. 1 and father of petitioners 2 and 3, late Sh. Arvind Chary while on way to the creche to fetch certain articles of his children had to pass along the road. He fell into the trench which had been dug up. He was hospitalised on the same day. On 3. 11. 1997 he died at about 7. 15 p. m.

( 6 ) AFORESAID are the undisputed facts.

( 7 ) THE disputed facts are that the petitioners claim that the site of the trench was not barricaded, much less by any corrugated sheets. There were no warning sign boards nor warning lights. Being rainy season, site was slippery. Deceased slipped and fell inside the pit. He suffered spinal injuries. He was directly taken to hospital. DDA refutes by stating that barricades were put up. Deceased was rescued by people who had gathered. He walked home. Complications surfaced when at home and from there deceased was taken to hospital. DDA states that deceased fell in the trench as an electric cable caught fire. As is usual with people in Delhi, a curious crowd gathered. Somebody pushed the deceased and as a result of the push, he fell in the trench.

( 8 ) CLAIM of the petitioners is based on various judgments passed by the hon ble Supreme Court to the effect that where a citizen suffers injury or death due to negligence of the State, compensation can be awarded in a writ proceeding. Duty of the State pleaded, is that all reasonable care when work of the kind is carried out by or on behalf of the State was not followed. Defence of the DDA is that highly disputed questions of fact arise for consideration. Claim if any, had to be against the contractor if at all negligence was established. As per DDA, pleadings require evidence and, therefore, present petition is not the appropriate remedy. As noted above, on merits DDA denies any negligence and has given its version of the incident.

( 9 ) CERTAIN contemporaneous events on which neither either party had any control may be noted. These to my mind bring out the truth of the rival versions.

( 10 ) WHEN deceased fell into the trench, information was r

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