JUDGMENT

A. K. PATNAIK, J. — On the date of Ganesh Puja on 6.9.1997 at about 4 P.M., two school children, namely Dhirendra Kumar Panda and Mamata Kumari Nath, while playing with other children in Kelikadamba Primary School at Jasapada, were injured when the pillar of the boundary wall and a portion of the boundary wall of the school collapsed and subsequently died after all attempts to save their life at the S.C.B. Medical College, Cuttack failed. The parents of the two children have filed these writ petitions claiming compensation of Rs. 5 lakhs for the death of their children caused by the negligence of the school authorities.

2. Mr Samir Kumar Mishra, learned counsel appearing for the petitioners, submitted that it was the duty of the school authorities to ensure safety of the children studying in the school and since the death has taken place on account of the negligence on the part of the school authorities, the Court should award compensation of Rs. 5 lakhs in favour of the parents of each of the children who died in the accident. He cited the decision of the Supreme Court in M.S.Grewal and another v. Deep Chand Sood and others, (2001) 8 SCC 151, and in Lata Wadhwa and others v. State of Bihar and others, (2001) 8 SCC 197, in which the Supreme Court directed payment of compensation to the parents of children who died in accidents caused due to the negligence of the authorities.

3. Mr R. Behera, learned counsel appearing for the School and Mass Education Department, on the other hand, relied on the counter-affidavit filed by the District Inspector of Schools, Jagatsinghpur in which it is stated that a good number of chil¬dren alongwith the children of the petitioners in their childish manner standing on the grill-gate of the school started to play by swinging and climbing upon the grill-gate and perhaps due to the pressure on the pillar to which the gate was fixed, the pillar collapsed resulting in the unfortunate incident. He fur¬ther submitted that Kelikadamba Primary School was being main¬tained by the Village Education Committee and if at all anybody is at fault, it is the Village Education Committee and not the District Inspector of Schools or any functionary of the State. Finally, he argued that the loss, if any, caused to the petition¬ers was due to the laches and contributory negligence of the children and the compensation of Rs. 5 lakhs cannot be granted in these cases in favour of the parents of each the children who died in the accident.

4. In Kumari (Smt.) v. State of Tamil Nadu and others, AIR 1992 SC 2069, a 6 year-old son of Srimati Kumari died after he fell into a 10 feet deep sewerage tank which was not covered with a lid and was left open. Shrimati Kumari filed a writ petition under Article 226 of the Constitution before the Madras High Court seeking a mandamus on the State of Tamil Nadu to pay Rs. 50,000/- as compensation to her. The High Court dismissed the writ petition on the ground that in a writ petition it was not possible to determine as to which of the respondents was negli¬gent in leaving the sewerage tank uncovered. The Supreme Court set aside the judgment of the High Court and directed the State of Tamil Nadu to pay a compensation of Rs. 50,000/- with interest at 10 per cent per annum from January, 1990 till the date of pay¬ment.

5. In M.S.Grewal and another v. Deep Chand Sood and others (supra), the students of the Dalhousie Public School, Badhani, Pathankot, were brought for picnic at Tandapatanindora on the bank of river Beas and they were escorted by two teachers of the school for taking due and proper care of the students. In the post-lunch period 14 students alongwith the two teachers went down the river for a considerable distance, but all of a sudden, the teachers found a ditch of about 6 to 8 feet deep and the teachers alongwith the children themselves fell into a great danger and while the teachers could save themselves, the students got drowned. The Supreme Court took a view that