The main legal point established in the judgment is the application of the principle of res ipsa loquitur to establish negligence and the determination that children of tender age cannot be imputed with contributory negligence.

Rajiv Shakdher, J.

The petitioners are the hapless parents of an eight (8) year old, who died while playing with his friends in the area around the place of his residence. The eight (8) year old Lalu alias Bharat died on account of asphyxia caused by drowning in a storm water drain, which was meant to be enclosed. Deprived of a proper play ground, Lalu on the fateful day alongwith his friend, Master Rahul, slipped and fell into the open and unguarded storm water drain. While, Master Rahul Pandey survived due to the alacrity and efforts of the members of the public in the vicinity, Lalu perished. Lalu's death resulted in payment of a nominal sum of Rs. 1 Lakh or so, I am told, in the form of ex-gratia compensation to petitioners and the triggering of criminal investigation. Six (6) years have passed, the investigation is still on. For the petitioners, there is no closure either qua the issue as to who was responsible for their son's untimely death or, as to the proper compensation to be paid to them.

2. The petitioners, who live on the margins of the society, have approached this court by way of petition under Article 226 of the constitution to seek compensation. The arduous and economically debilitating route of a civil suit is by passed. The respondents in defence have raised the predictable objection qua the maintainability of the action. The objections revolve around the following: the action involves disputed questions of fact; recourse would have to be had to oral testimony; and consequently, the writ court is not the proper forum to agitate the relief sought in the petition.

3. With this preface, let me advert to the broad facts, which are gleaned from the pleadings and the status report of the police, and thereafter, deal with the objections to the maintainability of the action, and the defence raised by the respondents on merits.

3.1 The petitioners, are residents of the jhugi jhopri cluster, located at Sonia Camp (in short JJ Cluster). In the vicinity of the JJ Cluster, ran an open storm water drain. The drain was separated by a wall. Respondent No. 1 i.e., Delhi Metro Rail Corporation (DMRC), which was tasked with the responsibility of building a Metro Station at Dilshad Garden approached respondent No. 3 i.e., Municipal Corporation of Delhi (MCD) for diversion of utility services, which included, in this case, the storm water drain.

3.2 MCD issued a no objection certification, after obtaining approval from the concerned authority, on 18.04.2006. In consonance with its mandate, and in expectation of an approval being received from MCD, DMRC awarded the contract of construction of storm water drain and miscellaneous works in connection with Shahdara Dilshad Garden Corridor Phase-II of the Delhi MRTS Project, to a company by the name of Quality Buildcon Private Limited (QBPL).

3.3 As per the whomsoever certificate issued by DMRC, QBPL commenced work awarded to it on 22.03.2006, which was actually completed on 15.12.2006; overshooting the original period of completion, by nearly five (5) months. The original date of completion agreed to by QBPL was evidently 21.07.2006. Apart from time overrun, there was cost overrun as well. This aspect, however, may have little relevance to the present case. What is significant though is the fact that, there was no formal handing over of the site to MCD. Furthermore, DMRC appears to have utilized a portion of the area, approximately 100 sq. mts of the drain falling between Rajiv Raj Bajaj Showroom and the drain at Road No. 56, for building a parking lot for its commuters interested in accessing the Dilshad Garden Metro Station. In order to convert the said area into a parking lot, a part of the drain evidently was covered and interlocking flooring was used in the process. The parking lot is segregated by a boundary wall.

3.4 However, in the interregnum, on 07.02.2007 at the very site where the parking lot was subsequently constructed by DMRC, as indicated above, by diverting the or