( 1 ) THE petitioners in these writ petitions are the parents of young children who died in tragic circumstances, not of their own creation. Ram kishore, a vegetable vendor, has filed Writ Petition (C) No. 4328 of 2001 claiming compensation from the Municipal Corporation of Delhi (?mcd?) for the death of his 11-year old son Mahesh studying in Class IV on 13. 5. 2000. Mahesh died instantaneously when the wall of a municipal lavatory maintained by the MCD collapsed on him while he was easing himself. The second petition W. P. (C) No. 6360 of 2002 is by Mohd. Yasheen, a tailor, claiming compensation from the Delhi development Authority (DDA) for the death on 5. 5. 2002 of his 15-year old son beeru in the bathing facility at Sur Ghat on the banks of the river Yamuna maintained by the DDA. Beeru?s body got entangled in an uncovered outlet drain pipe due to a sudden current of water and was ultimately found near the pipe?s sluice valve nearly thirty feet away from the mouth of the pipe. The third and fourth petitions are by Bhagwan and his wife Smt. Rajwanti respectively, claiming compensation from the DDA for the death of their son Vineet Pawar aged 7 years who died on the spot on 13. 11. 2004 when a heavy iron grill gate at the entrance of a DDA park fell on him while he and his friends were entering it to play there. By this common judgment this Court holds the respective agencies liable for the deaths of the three young children and directs them to pay compensation to the petitioners.

( 2 ) IN all these cases, a common feature is that the incident themselves are not denied. Each respondent has denied liability by contending that they were not responsible for causing the death of the victim and that there was no failure of any duty of care which might be termed as negligence on their part. However, each of the respondents has raised a preliminary objection to the maintainability of the writ petition on the ground that it raises disputed questions of fact. Maintainability of the writ petitions

( 3 ) THIS Court proposes to first deal with the preliminary objection as to maintainability. The question of award of compensation under the constitutional jurisdiction of this Court under Article 226 of the Constitution has been considered in a large number of cases. Although the position in law is fairly well-settled, a brief reference will be made to some of the decisions of the hon?ble Supreme Court and this Court.

( 4 ) THE leading decision of the Hon?ble Supreme Court in recognizing the power of the Constitutional courts to award compensation against the state in public law is Rudul Shah v. State of Bihar (1983) 3 SCR 508. This was followed in sebastian M. Hongray v. Union of India (1984) 1 SCR 904 and a large number of other cases. In Nilabati Behera v. State of Orissa (1993) 2 SCC 746, the hon?ble Supreme Court delineated the principles on which compensation can be directed to be paid by the state or its agency in a writ petition under either article 32 by the Supreme Court or Article 226 by a High Court, and explained it in the following words (SCC, p. 758):

?it would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in action on tort. It may be mentioned straightway that award of compensation in a proceeding under Article 32 by this Court or by the high Court under Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. ? (emphasis supplied)

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