Manmohan Sarin, J.

( 1 ) RULE D. B. Petitioners are the widow and minor children of deceased Skattar Singh, bus driver, who is stated to have fallen into anopen manhole and died of drowning on 8/9/1994. Petitioners are seeking a writ of mandamus directing the respondents to pay compensation of Rs. 9,00,000. 00 (rupees nine lacs only) since the deceased was deprived of his life due to the negligence of the respondents in leaving the manhole uncovered. The open manhole was near the bunker wall at Bharat Nagar, Delhi. Petitioner had initially impleaded only the Union of India and the Municipal Corporation of Delhi as the respondents. The Municipal Corporation in its counter affidavit claimed that the manhole in question was of a storm water drain, constructed and maintained by the Public Works Department of Delhi Administration, now the National Capital Territory of Delhi. The Municipal Corporation claimed that it was not concerned with the case. Petitioner, accordingly, moved the Court for impleadment of the Public Works Department of the Delhi Administration through its Executive Engineer, Public Witness. D. 10, through Chief Secretary, Delhi Administration and the Delhi Administration through Chief Secretary as respondents 3 and 4, which was allowed.

( 2 ) RESPONDENTS 3 and 4 in their counter affidavit claimed that the death occurred by a fall in the manhole belonging to the Municipal Corporation, which was left uncovered.

( 3 ) IT would be seen that respondents have not denied the factum of the death of the deceased by a fall in an open manhole. The only defence taken is that the manhole did not pertain to the respective drains maintained by them and did not fall in their jurisdiction.

( 4 ) THE counter affidavits filed by the respondents make an interest reading. It is a classic case of passing the buck and shifting the burden. It is worthwhile reproducing extracts therefrom: Extracts from the affidavit Filed on behalf of respondent No. 2. (M. C. D.)

"2. That the alleged site of accident has been inspected and it is noticed that the manhole in question of the storm water drain comes under the jurisdiction of Executive Engineer, PWD-IO, National Capital Territory of Delhi, 13th Floor, MSO Building, Police Headquarter, New Delhi. That it is reported that the said storm water drain has been constructed by the abovesaid division of Public Witness. D. which is being maintained by them. 3. That the respondent No. 2, M. C. D. , is nowhere concerned with the case. "extracts from the counter affidavit Filed on behalf of respondents 3 and 4: (Public Witness D and NCT)

"3. In reply to para 3, it is submitted that the manholes located on PWD X Road No. 38 are of very shallow depth, about 3 to 5 ft. and they are provided with manhole covers. Moreover all the times these manholes are dry even in rainy season, as such drowning in these manholes is quite surprising one. However, manholes running parallel to Road No. 38 are very deep about 18 to 20 and are always seen lying open without covers, till date they are uncovered. These belong to M. C. D. Hence question of drowning in PWD X manholes is baseless and in this para petitioner herself admitted that the deceased was found lying dead in the open deep manhole. (A rough sketch of the site is enclosed herewith as annexure z ).

( 5 ) IN reply to this para 5 it is submitted that manholes under the control and supervision of the answering respondents were fully covered and there was no chance of such kind of accident. The facts show that dead body was lying in M. C. D. manhole which is also near the wall running parallel to PWD Road No. 38 as shown in sketch (Z ). " Petitioners have produced on record a copy of the post-mortem report which gives the cause of death as by drowning. Petitioners have also filed on record certain photographs which show the body lying in the manhole and also outside, beside the manhole. No injuries or fractures were found on the body of the deceased. Muddy water

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