IN THE HIGH COURT OF KARNATAKA AT BANGALORE
(Original Jurisdiction)

Writ Petition No. ____________ / 2014

Between:

1. Namma Bengaluru Foundation A registered public charitable trust
   Having its registered office at
   No. 3J, N.A. Chambers
   7th C Main, 3rd Cross, 3rd Block
   Koramangala, Bangalore – 560 034
   Represented by its authorized signatory
   Mr. Sridhar Pabbisetty
   
   
2. Mr. Rajeev Chandrasekhar
   Aged     years
   S/o. Air Cdr M.K. Chandrasekhar (Retd.)
   Residing at No. 375, 13th Main
   3rd Block, Koramangala
   Bangalore - 560034
   

And:

1. State of Karnataka
   Represented by the Chief Secretary to Government
   Vidhana Soudha
   Dr. Ambedkar Veedhi
   Bangalore 560 001
   
   
2. The Principal Secretary to Government
   Urban Development Department
   Vikasa Soudha
   Dr. Ambedkar Veedhi
   Bangalore 560 001
   
   
3. Bruhat Bengaluru Mahanagara Palike
   Corporation Building, NR Square
   Bangalore-560 002
   Represented by its Commissioner
   
   
4. Engineer-in-Chief
   Bruhat Bengaluru Mahanagara Palike
   Corporation Building, NR Square
   Bangalore-560 002

                                                                                                                                                                                                                Respondents

MEMORANDUM OF WRIT PETITION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA

The Petitioners above named most respectfully submit as follows:

1. The Petitioners have filed this writ petition, in public interest, invoking the  parens patriae jurisdiction of this Hon’ble Court, assailing the actions and omissions of the Respondents in failing to protect and secure the lives of citizens in the city of Bangalore and further failing to provide a safe and secure public infrastructure to the citizens.  The Petitioners have also filed the instant writ petition in public interest assailing the inactions of the Respondents in holding its officers accountable for dereliction of duties and criminal negligence in failing to provide basic thresholds of safety in public infrastructure such as footpaths and drains in the city of Bangalore.
   
   
2. The Petitioner No. 1 (“Namma Bengaluru Foundation”) is a public charitable trust with the objectives of, inter alia, assisting and participating in developmental activities for the general public of Bengaluru. The true copy of the Trust Deed as well as the authorisation for filing the present petition is being filed with the vakalatnama. The Petitioner No. 1 aims to serve the people by proactively participating in and addressing various problems faced by Bangalore and its citizens, through advocacy, partnership and activism. Petitioner No. 1 is actively involved in hosting various public awareness programmes such as fire safety awareness, water conservation awareness, garbage segregation and waste management, etc. to promote civic awareness amongst general public.  Petitioner No. 1 has also filed various public interest litigations before this Hon’ble Court pertaining to rampant encroachment of public lands in the city of Bangalore and the State of Karnataka and also pertaining to illegal occupation and developments in and around the lakes in the city of Bangalore, causing deleterious effect to such lakes and to the general well being of the public.
    
3. Petitioner No. 2 is a Member of Parliament in the Rajya Sabha since May 2006. Petitioner No. 2 holds a Bachelor’s Degree in Electrical Engineering from the Manipal Institute of Technology, Mangalore University, Karnataka, a Master’s Degree in Computer Science from Illinois Institute of Technology, Chicago (which has also recognized him as a distinguished Alumnus) and has attended Management Programmes at Harvard University, Boston. Petitioner No. 2 was the illustrious member of the team that developed Pentium Chip that revolutionized the computing technology in the world.  Petitioner No. 2 was initially elected to the Rajya Sabha in 2006 and subsequently won election unopposed to the Rajya Sabha in 2012.  As a Member of Parliament, Petitioner No. 2 has espoused various issues of public importance, including the need for transparency in the interplay between business and public administration; and the need for immediate improvement in standards of governance, etc. Petitioner No. 2 has also been in the forefront of the battle for transparency in the grant of public largesses by the State and for the protection of the State’s assets and natural resources such that they be used for the benefit of the community in tune with inter-generational equity.  Petitioner No. 2 has successfully espoused these causes with relation to the 2-G spectrum allocation and the Petitioner No. 2’s position that thousands of crores of rupees of loss caused to the exchequer, was ultimately upheld by the Hon’ble Supreme Court of India in the recent 2-G litigation.  Prior to becoming Member of Parliament, Petitioner No. 2 was one of India’s foremost telecom entrepreneurs and was a pioneer in developing India’s first and largest Greenfield telecom infrastructure.  He was the youngest National Presidents of the Federation of Indian Chambers of Commerce and Industry (FICCI), India’s apex industry body.  As the President of FICCI, Petitioner No. 2 was in the forefront of initiating governance reforms in the matter of how business deals with government.  Petitioner No. 2 is also in the forefront of various public interest causes, including the public interest litigations pending in the Hon’ble Supreme Court of India, pertaining to the role of the government and the State vis-à-vis the internet; and pertaining to the ambit of technology laws and the regulations of internet by the State.  Petitioner No. 2’s public interest litigation before the Hon’ble Supreme Court pertaining to the ‘Right to Vote’ being granted to armed forces personnel in the country, has led to the Hon’ble Supreme Court permitting the armed forces personnel to exercise their franchise as regular voters locations, at which they are posted, de hors the quantum of time they may have spent in such locations. The Petitioner Nos. 1 and 2 are filing the instant petition in public interest to espouse the cause that impacts the lives of every citizen resident in the metropolitan city of Bangalore and also those, resident in other locations in the State.
   
   
4. It is submitted that Bangalore, as a metropolitan city, has grown over the years and vastly expanded in its size and scale.  However, the civic amenities and public infrastructure such as adequate vehicular and pedestrian safe roads, drainage systems etc., provided to the residents of Bangalore have been inadequate and far from being satisfactory in all arenas.  In particular, the drainage system in Bangalore has not been upgraded with the passage of time and the open drains and pits have increased over the years, causing public nuisance and danger to human life, and various public roads have been particularly unsafe for public usage, particularly during the monsoon.
   
   
5. It is submitted that the Respondents are constitutionally and legally obligated to ensure that the residents of Bangalore are provided with a safe environment for habitation, thereby furthering the constitutional mandate of right to life.  It is submitted that the Respondents have repeatedly failed to fulfill their obligations in this regard in more cases than one.  A glaring example of one such failure occurred on October 6, 2014, when owing to flooding of an open drain, an eight-year-old girl was washed away into an overflowing drain near Jayadeva flyover in Bilekahalli in Bangalore.
   
   
6. The Petitioners have gathered information that on Monday, October 6, 2014, a girl by name Geetha Lakshmi, daughter of Shankar and Kasturi from Cuddalore district in Tamil Nadu, was walking with her paternal aunt Dhanalakshmi, when she slipped into the drain where the covering slab had been removed, in Bilekahalli on Bannerghatta Road, near IIM, Bangalore. The young girl had come down from Tamil Nadu to meet her paternal grandparents who reside in Doresanipalya. The child slipped into a drain that was overflowing due to rains. Although locals tried to rescue her, they were not successful because of the heavy flow of water. This was followed by an unsuccessful rescue operation for the girl, involving personnel from the fire brigade police, National Disaster Response Force (NDRF) and civil defence; and the body of the girl was later retrieved after a 43 hour search. The stone slabs meant to cover the storm water drain were missing in many places and this led to the child being sucked into the drain at one such opening and the same has been reported by the newspapers.
   
   
7. It is submitted that, time and again, citizens have lost their lives by falling into open drains that are flooded. Unattended public infrastructures, such as open drains, have become death traps in the city of Bangalore and the Respondents do not seem to initiate any action whatsoever to attend to such matters.  Whilst the Petitioners are unable to aver every instance in which citizens of Bangalore have lost their lives by failing into open drains and unattended public utilities, the averments below will provide an illustrative account of the various deaths that have occurred in Bangalore.

1. Late Pukhraj Jain fell into a roadside drain and died on the spot about 11 years ago, just outside his house on Jain Temple Street in V.V.Puram. Information in public domain provide the account that Mr. Jain had just got off an auto rickshaw along with some fruits that he had purchased, on a rainy day, and had slipped and fallen into an open drain in the proximity of his house.  He was washed away nearly 200 metres and he could not be saved because rest of the drain was covered and only the area at which he fell was open.  He drowned and died.
   
   
2. A toddler Rihan, aged 3, was washed away in the storm water drain just behind his house in Roopena Agrahara, in February 2011.  Again, information in public domain indicates that the Respondent Bruhat Bengaluru Mahanagara Palike (BBMP) has done nothing to safeguard the lives of residents in the Roopena Agrahara area, adjacent to the big drain heading towards Bellandur lake.  Despite the death of Rihan, public authorities failed to install safety and security measures and mechanisms and public domain information denotes it was the child’s father who himself had to shell out money to cover up uncovered portion of the drain that killed his son.
   
   
3. In June 2009, another toddler Abhishek, aged 6, was washed away in an open drain near Lingarajapuram in Bangalore city.  It took nearly a fortnight for the rescue personnel to find the body of Abhishek.

8. The Respondents and particularly the BBMP, seem unfazed in the face of public criticism and outpour of grief.  These incidents not only cause enormous injury and bring misery to the parents and the family members of the innocent children whose lives are lost, but also further erode the already weak faith that the people have in public and local authorities such as BBMP. Uncovered storm water drains and unsecured public infrastructure and utilities have always been a cause for innumerable deaths and injury to people. Apart from uncovered drains, which are death traps, there have been numerous instances where naked live wire hanging/protruding from electrical poles have electrocuted many people in the city.  There have also been instances where unlit road medians constructed on roads which got flooded, act as hazards resulting in various accidents leading to loss of many lives in the city.  No one in the public administration seems to take responsibility for such incidents.  It is submitted that even where certain departments or officers in public administration take responsibility for such activities, no one is ever held accountable for such actions and no criminal liability has yet been fastened to the civic officials.
   
   
9. It is submitted that as this writ petition was being drafted, yet another instance of public callousness leading to the death of a young child came to light.  Even as rescue workers were fishing out the body of 8-year old Geetha Lakshmi from the lake, another young boy, Yeshwant aged 12, drowned in an unattended pit in the Government Arts College area, very close to the City Civil Court Complex.  This gruesome incident had occurred during the day at about 2.30 pm, when the little boy was playing cricket and rushed towards the pit to collect a ball which landed there.  The 8-feet pit, which was dug up to construct a new office for the college, was left unattended and unsecured with no signage or fence.  The pit that was filled with water was a death trap as the little boy could not have known that the pit was as deep.  These instances clearly indicate the extreme callousness of officers in public administration, the local authorities and the governmental functionaries.  Lives in the city of Bangalore seem to have no value.  Each time an incident of this nature occurs, rather than holding the negligent officer responsible for such actions accountable, the State seems to buy peace with its citizens by providing ex-gratia compensation of a few lakhs of rupees. Most of the lives lost are of people from the lowest strata of society. The parents of such children and members of the family neither have the financial wherewithal nor the societal clout to raise such issues and seek remedy.  They certainly lack the bandwidth, energy and the clout to initiate action to hold the erring and negligent officers criminally culpable. This has led to a situation where the officers in public administration do not seem to be conscious at all of the fact that misfeasance and negligence that lead to loss of lives, can lead to criminal liability being fastened upon them.  A compilation of public domain information in the form of newspaper articles and reports pertaining to the various deaths that have occurred in the city of Bangalore, primarily due to the people falling into the open drains, are collated and produced herewith as Annexure-A1 to A 13 (series).
   
   
10. It is submitted that under the Karnataka Municipal Corporations Act, 1976, the responsibility for maintenance and repair of drains/sewers and sewage disposal works in Bangalore lie on the Respondent No. 3, BBMP.  Under the said Act, it is incumbent upon the Respondent No. 3 to make reasonable and adequate provision for, inter alia, construction, maintenance and cleaning of drains and drainage works. The Respondents, being directly responsible for the maintenance and repair of the drains in Bangalore, failed in their duty to ensure the safety of the persons on the road from the said drains. It is submitted that the Respondents have grossly neglected their duties to take measures to prevent overflowing of drains, to cover open drains and manholes, to provide adequate signage and lighting in areas where there are open pits, which has caused the death of several persons in similar incidents.
    
    
11. It is submitted that the Respondent Nos. 3 - 4 do not adequately cover the open drains. It is submitted that several drain covers are broken or have large gaps. During the heavy rains, the gaps in the drain cover are not visible, and people often step onto such gaps and fall into the drains. It is further submitted that the Respondent Nos. 3-4  do not even install requisite signage and lighting facilities at places where there are open pits, or at construction sites. Such acts of careless omission of the Respondents, have resulted in the citizens encountering various accidents, many of which are fatal.
    
    
12. It is submitted that despite the increasing number of such incidents and despite having received innumerable complaints from the residents of Bangalore, the Respondents have consistently failed to discharge several of their duties, and in fact, through their inactions, have created a dangerous situation in the city. It is further submitted that the Respondents have not just been careless in respect of their statutory duties; in fact, they have been consistently negligent to such an extent that culpability can be attributed to the Respondents in respect of criminal negligence, and even culpable homicide. It is submitted that the Respondents have acted in complete breach of the duty of care entrusted to them under the relevant statutory provisions. It is submitted that inspite of having knowledge of the approaching monsoon season and the previous incidents of a similar nature, the Respondents have acted in utter disregard of all the safety rules meant to contain a tragedy of this kind.
    
    
13. It is submitted that the consistent inaction of the Respondents to initiate any protective and preventive measures with respect to closing open drains / sewers that are apparent to be dangerous, evidences the fact that the Respondents have failed to fulfill their duties and obligations and would continue to avoid fulfilling their duties and obligations. It is further submitted that various other incidents that have occurred in the past evidence the factum of negligence of the Respondents. The actions of the Respondent No. 3 and its officers have been condemned by the citizens of Bangalore on various occasions for myriad factors involving innumerable incidents.  However, such condemnation and protests by the citizens of Bangalore have fallen on the deaf ears of the Respondent No.3 and its officers. 
    
    
14. It is submitted that the Respondents have an extremely callous approach towards their statutory duties and resultantly, the lives of the people in Bangalore. It is further submitted that the officials, although guilty of criminal negligence, even amounting to culpable homicide in certain situations, are easily able to escape responsibility for their actions.
    
    
15. It is submitted that although there have been some semblances of criminal action being initiated against the deviant, erring and callous officers in other parts of the country, no criminal liability has been yet been fastened to the deviant, erring and callous officers in Bangalore, despite repeated deaths occurring in the urban agglomeration of Bangalore.  By way of illustration, on October 04, 2014, about a week after a woman executive and a man were electrocuted at Range Hills area in Pune, by exposed live wire, the jurisdictional police initiated criminal action against 3 Assistant and Deputy Executive Engineers of Maharashtra State Electricity Distribution Company Limited, for causing deaths due to negligence. In October 2013, certain officers of Brihanmumbai Municipal Corporation were arrested and criminal prosecution was launched, in connection with the deaths that occurred during the collapse of Mazgaon Building.  Action against 18 officials of Brihanmumbai Municipal Corporation was initiated pursuant to the building collapse, which led to the death of 61 people. Newspaper clippings reporting criminal prosecution of civic officials in Pune and Mumbai are annexed herewith as Annexure B1-B2 (series).
    
    
16. The Petitioners crave leave of this Hon’ble Court to submit additional affidavits consisting of further facts and data in support of the writ petition, at subsequent stage, given that the present writ petition has been drafted and filed before this Hon’ble Court on an emergent basis, in the wake of 2 children losing their lives in quick succession in the city of Bangalore and in the wake of enormous grief and public outcry that has resulted from the loss of lives of the innocent children, exposing the extreme callousness with which public administration is undertaken in the city of Bangalore.
    
    
17. Being aggrieved by the aforesaid actions of the Respondents and having no other alternative efficacious remedy to address public interest at large, the Petitioners have filed the instant Writ Petition on the following amongst other grounds, each raised and contended without prejudice to the other.

GROUNDS

18. That a clear breach of duty by the Respondents and its officers has resulted in the death of baby Geetha on October 6, 2014, and Master Yeshwant on October 8, 2014, and of several other persons in the past. Such acts of breach of duties by Respondent No. 3 and its officers, is illegal and in contravention of the right to life of the citizens of India.
    
    
19. That the failure of Respondents to provide for adequate regulatory safeguards with respect to drains has resulted in several preventable deaths and amounts to a violation of the rights of the public at large guaranteed under Article 21 of the Constitution of India.
    
    
20. That the failure of Respondents to ensure that the general public, more particularly children, are not placed in such a position of risk, has directly resulted in deaths as mentioned above and the same amounts to violation of rights guaranteed under Article 21 of the Constitution of India.
    
    
21. That the failure of Respondents to take preventive measures to stop repeated incidents of people falling into open drains smacks of callousness and amounts to the Respondent authorities abdicating their constitutionally mandated duties.  The reckless attitude and behavior and non performance of duties of the Respondent Nos.2-4 results in a dangerous environment and threatens safety of the citizens’ life. 
    
    
22. That the Respondents and its officers have failed to cover the dangerous open drains and man-holes on public roads and have thereby failed to discharge their statutory functions. Such illegal omissions on part of the Respondents amount to the crime of creating public nuisance.
    
    
23. That it was within the knowledge of the Respondents that incidents similar to those detailed hereinabove are possible, and have taken place in the past, and in such a circumstance, their omission to take preventive steps, in reckless disregard to the consequences, amounts to a criminal omission.
    
    
24. That such criminal omissions on part of the Respondents, amount to rash and negligent action, that is so gross so as to make them culpable for criminal negligence and even culpable homicide, particularly in view of the risk of death involved in such cases.
    
    
25. That the Respondents have utterly failed to fulfill the duty of care attributed to them, and the conduct of the Respondents in failing to provide any preventive measures to ensure safety of citizens, imply a gross and culpable neglect and a complete failure to exercise reasonable and proper care and precaution to guard against injury to the public.
    
    
26. That the deaths caused are a direct result of a rash and negligent acts of the Respondent Nos. 2-4 and such acts of Respondent Nos. 2-4 can be said to be the causa causans for the death of the victims.
    
    
27. That the loss of human lives is directly attributable to the criminal and negligent acts of Respondent Nos. 2-4 and Respondent No. 1 is vicariously liable for the acts and omissions of Respondent Nos. 2 -4.
    
    
28. That the Respondents have shown consistent negligence in respect of their statutory duties, to such an extent that the criminal culpability can directly be attributed to their deeds and misdeeds.
    
    
29. That in a matter of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large, the Respondents ought to discharge their obligations towards the citizens by foreseeing the impending dangers which are a result of the actions or omissions of the Respondents, and affording sufficient and prudent solutions.
    
    
30. That unless stringent measures are incorporated to fasten liabilities on the Respondents and their officers, both civil and criminal, for various inactions or callous omissions, the Respondents will continue to put to danger the lives of the persons, including those of innocent children.
    
    
31. The Petitioners crave leave to raise additional grounds at the time of hearing and submits that the aforesaid grounds are raised without prejudice to one another.
    
    
32. Court fees of Rs. 200/- has been paid on this petition.
    
    

PRAYER

WHEREFORE, the Petitioners most respectfully pray that this Hon'ble Court, in public interest, may be pleased to:

1. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 1-State, to conduct an emergent enquiry and identify the officers, who have failed in the exercise of their statutory duties resulting in the uncovered drains and public infrastructure turning into death traps, leading to the loss of lives of children and submit a report to this Hon’ble Court;
   
   
2. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 1 - State to initiate criminal prosecution against the deviant, errant officers, who have failed in exercise of their statutory duties, as a result of which open drains and public infrastructure have turned into death traps, resulting in the loss of lives of citizens;
   
   
3. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent Nos. 2 and 3, within such period of time as this Hon’ble Court deems fit, to prepare a comprehensive set of directions for undertaking and establishing safety and security mechanisms, pertaining to the public drainage and other utility services, so as to ensure protection of life and property of the residents of the city of Bangalore;
   
   
4. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 3 to forthwith undertake steps to close all open drains and manholes in the city of Bangalore and provide adequate signage warning people of the hazards so as to prevent any further loss of lives in the city of Bangalore; and
   
   
5. Grant such other relief/reliefs as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice.

Bangalore
09/10/2014                                                                Advocate for Petitioners
                                                                                          Poovayya & Co.
                                                                                         Joseph Anthony
                                                                                         (KAR- 2510/10)

Address for service:

Nalina Mayegowda
Poovayya & Co.
Advocates & Solicitors
The Estate – Level One
121 Dickenson Road
Bangalore 560 042