Dipak Misra, J.

In this writ petition preferred under Article 226 of the Constitution of India by Gopalpur Victim Association, the singular issue that emerges for consideration is whether the Respondents, namely, the Government of National Capital Territory of Delhi and Delhi Jal Board should be saddled with the liability to pay compensation to the parents for the untimely death of four young children, namely, Narender, Atul, Vikas and Nitesh who were aged between 8-10 years.

2. As the assertion in the petition exposes, the said four children after getting free from school went to play in a vacant land situated in village Gopalpur belonging/owned by Flood and Irrigation Department of Delhi handed over to Delhi Jal Board for laying of water pipelines. It is contended in the petition that on 5th March, 2010, the unfortunate incident took place and the four children while playing were drowned in a pit situated on the vacant land. An FIR was lodged by one of the relatives of four children and a case was registered u/s 304A of the Indian Penal Code, 1860 against unknown persons. It is put forth that the area in question was not fenced and the boundary walls were broken at various places, which led the children while playing to fall into the pit. The time was 7 p.m. in March. The darkness of summer evening in the real sense of the term was yet to set in and the children being children had played out of enthusiasm and eventually got into the large pit, which was deep and filled with water and had the capacity to swallow and devour the lives of children. Thus, in the ultimate eventuate got drowned and life span got extinct. In this backdrop, a prayer has been made for grant of compensation amounting to Rs. 12 lacs each along with costs and interest to each of the children.

3. A composite counter affidavit has been filed by the Respondents 1 to 3 contending, inter alia, that the issue raised in the writ petition cannot be adjudicated and the same are in the realm of disputed questions of fact; that it cannot be ruled out that the children were not mischievous; there is a possibility that the children had gone for swimming or had slipped in the dead of night cannot be brushed aside; that there is no explanation how the boys four in number can get themselves drowned simultaneously; that the area was not required to be protected like a prohibited area and was a waste land of the Flood and Irrigation Department; and that by no stretch of imagination neither the State nor the Delhi Jal Board can be saddled with the liability. To bolster the said stand, reliance has been placed on Chairman, Grid Corporation of Orissa Ltd. (Gridco) & Others Vs. Smt. Sukamani Das & Another, (1999) 7 SCC 298 S.D.O. Grid Corporation of Orissa Ltd. and Others Vs. Timudu Oram, (2005) 6 SCC 156 and Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi and Others, AIR 2010 SC 475.

4. We have heard Ms. Aruna Mehta, learned Counsel for the Petitioner and Mr. Waziri, learned Standing Counsel appearing on behalf of the GNCTD, Flood and Irrigation Department as well as the Delhi Jal Board.

5. On a perusal of the writ petition and the counter affidavit, it is clear as noon day that where the four young children breathed their last by falling in the pit was a vacant land belonging to the Flood and Irrigation Department, which had been handed over to Delhi Jal Board for laying down of pipelines. The stand in the return is that it was not necessary to protect the area in entirety like a prohibited area. It is the further stand that the possibility of children going for a swim or playing mischief in the dead of night cannot be ruled out. On a query being made whether at 7 p.m. in Delhi in the month of March can be described as dead of night, we must fairly say, Mr. Waziri, learned Standing Counsel conceded that it cannot be said dead of night as it can at best be described as twilight time. The stand that the children would have gone to swim in the pit seems to be a far