# Smt. Sharda Devi and others v. State of U.P

- **Citation:** (2010) 2 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-25
- **Case number:** Misc. Bench No. 4489 of 2010
- **Bench:** Pradeep Kant, Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sharda-devi-and-others-v-state-of-u-p-41630
- **Pages:** 6

## Headnote

Constitution
of
India,
Art-226-Writ
Petition
laches
unexplained
delay-
2 All] Smt. Sharda Devi and others V State of U.P.
565
compensation-claimed for negligence of
Doctor-who
done
sterlisation-failedcause of action arose in 2002,-Petition
filed 2010-can not be considered by writ
court on highly below stage-liberty given
to file Civil Suit if so advised.

Held: Para 18

In view of the abovesaid facts, as in the
present case, the original cause of action
had arisen on the part of the petitioner
in the year 2002, so at this belated
stage, the said issue comes within the
ambit and scope of stale/dead issue
cannot be adjudicated and decided at
this belated stage and the present writ
petition is liable to be dismissed on the
ground of delay and laches.
Case law discussed:
2005 (7) SCC, 2003 (8) SCC 369, 2005 (6)
SCC, (1957) 2 AIIER 118 (QBD), 2005 (7)
SCC, (2000) 5 SCC 192.

## Text

564 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
him not below the rank of Joint
Secretary."

7. In the absence of member
appointed for the purpose, the Tribunal is
not functional. It is statutory duty of the
State of U.P. as well as the Union of India
to fill up the vacancies within the
reasonable period. Once the retirement of
an officer is known or an officer is
transferred from the Tribunal to other
place, then it shall be incumbent upon the
State
Government
and
the
Central
Government to fill up the vacancies
immediately. The aims and objects of the
Act is for licensing, supervision and
control of Cold Storage in the State of
U.P. and for matters connected therewith.
In the absence of members constituting
Tribunal, litigants have no option but to
approach this Court under Article 226 and
227 of the Constitution of India.

8. We feel that State of U.P. as well
as Government of India has failed to
discharge the statutory duty in not filling
the vacancy of the Tribunal. On account
of failure on the part of the respondents,
we are of the view that a direction may be
issued to fill up the vacancy within a
reasonable
period
to
safeguard
the
litigant's interest.

Keeping
in
view
the
facts
and
circumstances of the case and public
interest involved, we mould the relief
with regard to filling up the vacancy of
the Tribunal.

9. Accordingly, we allow the writ
petition and a writ in the nature of
mandamus is issued directing the opposite
parties to fill up the vacancy of the
Tribunal keeping in view the provision
contained in Section 35 of the U.P.
Regulation of Cold Storage Act 1976 and
other
law
time
being
in
force
expeditiously preferably within a period
of two months. The recovery proceedings
shall remain suspended till the disposal of
the interim relief application by the
Tribunal, whenever it is duly constituted.

10. The registry shall send the copy
of this order to the Chief Secretary,
Government of U.P. as well as Secretary,
Government
of
India,
Agricultural
Department within a week.

11. Let compliance report be filed to
this Court within three months from
today. The learned Standing Counsel as
well as the Assistant Solicitor General of
India shall also informed to the respective
authorities accordingly.
With the aforesaid direction the writ
petition is allowed.

No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE ANIL KUMAR, J.

Misc. Bench No. 4489 of 2010

Smt. Sharda Devi and others ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Bhaskar Pratap Dubey

Counsel for the Respondent:
C.S.C.

Constitution
of
India,
Art-226-Writ
Petition
laches
unexplained
delay-
2 All] Smt. Sharda Devi and others V State of U.P.
565
compensation-claimed for negligence of
Doctor-who
done
sterlisation-failedcause of action arose in 2002,-Petition
filed 2010-can not be considered by writ
court on highly below stage-liberty given
to file Civil Suit if so advised.

Held: Para 18

In view of the abovesaid facts, as in the
present case, the original cause of action
had arisen on the part of the petitioner
in the year 2002, so at this belated
stage, the said issue comes within the
ambit and scope of stale/dead issue
cannot be adjudicated and decided at
this belated stage and the present writ
petition is liable to be dismissed on the
ground of delay and laches.
Case law discussed:
2005 (7) SCC, 2003 (8) SCC 369, 2005 (6)
SCC, (1957) 2 AIIER 118 (QBD), 2005 (7)
SCC, (2000) 5 SCC 192.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard Sri Bhaskar Pratap Dubey,
learned counsel for the petitioner and
learned Standing Counsel on behalf of the
respondents and perused the record.

2. Factual matrix of the present case
are that the petitioner Smt. Sharda Devi,
W/o Sri Vijay Kumar Dubey, R/o Village
Malawan (Nandlal Ka Pura) Block Tarun,
Tehsil Bikapur, District Faizabad had got
five issues out of the wedlock, so they
took a decision that they do not want any
further issue taking into consideration the
economic
condition
of
the
family.
Accordingly it was mutually considered
by petitioner Nos. 1 and 2 to go for
Tebectomy operation. Accordingly, the
same was performed on 19.01.2001 at the
health centre Tarun, District Faizabad
under the supervision of Dr. Ganga Ram
who is the incharge of the said health
centre and performed by the Surgeon
namely Dr. Ram Sumer. In spite of the
abovesaid fact, after expiry of nearly one
and a half year, the petitioner No. 1 again
became pregnant and gave birth a female
child namely Kumari Satya Bhama
(Petitioner No. 1) on 22.11.2002.

3. In view of the abovesaid
circumstances, the present writ petition
has been filed on behalf of the petitioner
on the ground that due to medical
negligence on the part of the Doctors of
health centre, Known as Tarun, District
Faizabad, an unwanted child was born on
22.11.2002. As the petitioner Nos. 1 and 2
have no other source to maintain their
unwanted child, a compensation to the
tune of Rs.8,00,000/- has been claimed by
the Petitioner Nos. 1 and 2 for upbringing
their unwanted child i.e. petitioner No. 1
who is born only due to sheer negligence
on the part of respondent Nos. 4 and 5 and
further a sum of Rs.5,00,000/- was
claimed for marriage of petitioner No. 3.

4. In support of the relief as claimed
by the petitioners, on their behalf Sri
Bhaskar Pratap Dubey, learned counsel
for the petitioner had relied on the
following judgments namely:-

(a) Smt. Shakuntala Sharma and
others Vs. State of U.P. and others 2002
UPLBEC 1084 and

(b)
Sobha
and
others
Vs.
Government of NCT of Delhi and others
2002 AIC 236.

5. A preliminary objection raised by
the learned Standing Counsel appearing
on behalf of the State, Sri Anuj Kudesia
in regard to the maintainability of the writ
petition, he submits on the ground that in
case of medical negligence, the relief as
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
claimed by the petitioner cannot be
granted
under
Article
226
of
the
Constitution of India in view of the law as
laid down by the Apex Court in the case
of State of Punjab Vs. Shiv Ram and
others 2005 (7) SCC Volume 1.

6. We have heard counsel for the
parties and perused the record.

7. In our country population is one
of the major problem and in order to
control population, which is increasing by
a tick of every second of the clock, the
Central Government as well as State
Government have taken family planning
as an important programme under public
policy and for implementation of the same
various steps have been taken to create
awareness in the citizen of the Country,
one of the method to control the family
planning is sterlisation operation.

8.

Further,
Family
planning
programme is one of the foremost need of
the day in order to control population in
our Country which is the second most
populous country in the world and in
order that it enters into an era of
prosperity and progress, it is necessary
that the growth of population is checked.
As such the doctor who is performing the
sterlisation
operation
in
order
to
implement
the
family
planning
programme must perform the same with
due care and caution. Further if there is
failure on account of the negligence on
the part of the doctor, and as a result of
which an unwanted child has taken birth,
which
undoubtedly
create
additional
economic burden on the person who has
undergone sterlisation and he must be
adequately compensated.

9. Failed sterlisation has been
defined in Halsbury's Laws of England,
4th Edn. (reissue), Vol.12 (1), while
considering
the
question
of
"failed
sterlisation", it is stated in para 896 as
under:

"Failed
sterlisation-Where
the
defendant's negligence performance of a
sterlisation operation results in the birth
of a healthy child, public policy does not
prevent the parents from recovering
damages for the unwanted birth, even
though the child may in fact be wanted by
the time of its birth.

Damages
are
recoverable
for
personal injuries during the period
leading up to the delivery of the child, and
for the economic loss involved in the
expense of losing paid occupation and the
obligation of having to pay for the upkeep
and care of an unwanted child. Damages
may include loss earnings for the mother,
maintaining the child (taking into account
child benefit), and pain and suffering to
the mother"

10. Now the question which is to be
determined in such type of cases, in order
to award damages, where there is
negligence on the part of the doctor who
has performed the sterlisation operation or
not, if there is any negligence on the part
of the doctor, then up to what extent the
damages is to be awarded to a person who
has given birth to an unwanted child after
sterlisation operation.

11. In the case of Javed Vs. State of
Haryana 2003 (8) SCC 369 popularly
known as 'Two-child Norm' case. Hon'ble
the Apex Court has held that the problem
of increasing population, the danger
which it poses for the progress of the
2 All] Smt. Sharda Devi and others V State of U.P.
567
nation and equitable distribution of its
resources and upheld the validity of the
Haryana
legislation
imposing
a
disqualification on persons having more
than two children from contesting for an
elective office. The fact cannot be lost
sight of that while educated persons in the
society belonging to the middle-class and
the upper class do voluntarily opt for
family planning and are careful enough to
take precautions or remedial steps to
guard against the consequences of failure
of sterilization, the illiterate and the
ignorant and those belonging to the lower
economic strata of society face the real
problem. To popularize family planning
programmes in such sections of society,
the State Government should provide
some solace to them if they, on account of
their illiteracy, ignorance or carelessness,
are unable to avoid the consequences of a
failed sterilization operation. Towards this
end, the State Governments should think
of devising and making provisions for a
welfare fund or taking up with the
insurance companies, a proposal for
devising an appropriate insurance policy
or an insurance scheme, which would
provide coverage for such claims where a
child is born to woman who has
undergone
a
successful
sterilization
operation, as in the present case.

12. Further, the Apex Court in the
case of Jacob Mathew Vs. State of
Punjab 2005 (6) SCC volume 1 has
approved the test as laid down in Bolam
Vs.
Friern
Hospital
Management
Committee (1957) 2 AIIER 118 (QBD)
popularly known as Bolam's test has held
as under:-

"The
basis
of
liability
of
a
professional in tort is negligence. Unless
that negligence is established, the primary
liability cannot be fastened on the medical
practitioner. Unless the primary liability is
established, vicarious liability on the State
cannot be imposed. Both in criminal
jurisprudence and in civil jurisprudence,
doctors are liable for consequences of
negligence. In Jacob Mathew even while
dealing with criminal negligence, this Court
has indicated the caution needed in
approaching a case of medical negligence
having regard to the complexity of the
human body which is subjected to treatment
and the uncertainty involved in medical
procedures. A doctor, in essence, needs to
be inventive and has to take snap decisions
especially in the course of performing
surgery when some unexpected problems
crop up or complication sets in. If the
medical profession, as a whole, is hemmed
in by threat of action, criminal and civil, the
consequence will be loss to the patients. No
doctor would take a risk, a justifiable risk in
the circumstances of a given case, and try to
save his patient from a complicated disease
or in the face of an unexpected problem that
confronts him during the treatment or the
surgery. It is in this background that this
Court has cautioned that the setting in
motion of the criminal law against the
medical profession should be done
cautiously and on the basis of reasonably
sure grounds. In criminal prosecutions or
claims in tort, the burden always rests
with the prosecution or the claimant. No
doubt, in a given case, a doctor may be
obliged to explain his conduct depending
on
the
evidence
adduced
by
the
prosecution or by the claimant.

13. Again in the case of State of
Punjab Vs. Shiv Ram and others (2005)
and others 2005 (7) SCC 1 in para 25
and 30, the Apex Court has held as
under:-
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"Para - 25 - We are, therefore,
clearly of the opinion that merely because
a woman having undergone a sterilization
operation became pregnant and delivered
a child, the operating surgeon or his
employer cannot be held liable for
compensation on account of unwanted
pregnancy or unwanted child. The claim
in tort can be sustained only if there was
negligence on the part of the surgeon in
performing the surgery. The proof of
negligence shall have to satisfy Bolam's
test. So also, the surgeon cannot be held
liable in contract unless the plaintiff
alleges and proves that the surgeon had
assured 100 % exclusion of pregnancy
after the surgery and was only on the
basis of such assurance that the plaintiff
was persuaded to undergo surgery. As
noted in various decisions which we have
referred to hereinabove, ordinarily a
surgeon does not offer such guarantee.

Para - 30- The cause of action for
claiming compensation in cases of failed
sterilization operation arises on account
of negligence of the surgeon and not on
account of child birth. Failure due to
natural causes would not provide any
ground for claim. It is for the woman who
has conceived the child to go or not to go
for medical termination of pregnancy.
Having
gathered
the
knowledge
of
conception in spite of having undergone
sterilization operation, if the couple opts
for bearing the child, it ceases to be an
unwanted
child.
Compensation
for
maintenance and upbringing of such a
child cannot be claimed."

14. In view of the said facts, if a
lady undergone sterlization operation
under Teberctomy operation and even
then an unwanted child is born then such
lady in order to claim a damages has to
file a suit for compensation as in the suit
on the basis of evidence and the
documents filed by the parties etc. it can
be ascertained that where the doctor who
has performed the operation up to what
extent he is negligent due to which the
operation fails and accordingly thereafter
it can be judged that what compensation
can be awarded in a particular case which
cannot be done while exercising the
power of judicial review under Article
226 by this Court because the matter in
respect
to
the
negligence,
if
any,
performed by the doctor performing
sterilization/operation cannot be judged
before this Court as the same needs
elaborate
evidence
and
materials
including investigation and further this
Court can also not with any other district
can come to the conclusion what amount
of compensation is to be awarded in a
particular case.

15. The above view taken by us also
gets support from case of State of
Haryana and another Vs. Santara
reported in (2000) 5 SCC 192, where a
poor lady underwent a sterilisation
operation
at
the
General
Hospital,
Gurgaon, as she already had seven
children an wanted to take advantage of
the scheme of sterilization launched by
the State Government of Haryana. She
was then issued a certificate that her
operation was successful. She was assured
that she would not conceive a child in
future. But, she conceived and ultimately
gave birth to a female child. She filed a
suit against the State and its officers for
recovery of Rs. 2 lakh as damages for
medical negligence. The explanation
offered by the officers, of the appellant
State who were defendants in the suit, was
that at the time of the sterilization
operation, only the right Fullopian tube
2 All] Ram Lal V Managing Director U.P.Cooperative Bank Ltd.
569
was operated upon and the left Fullopian
tube was left untouched. This explanation
was rejected by the trial court, which
decreed the suit for a sum of Rs. 54,000
with pendente lite and future interest @
12 % per annum. The decision was
confirmed by the appellate court and the
High Court and thereafter the appeal filed
by the State of Haryana & others was also
dismissed by the Hon'ble Apex Court.

16. Further as per the facts of the
present case, the sterilization/operation
was
performed
on
19.01.2001
and
thereafter the unwanted child (petitioner
No. 3) was born on 22.11.2002 and the
present writ petition for the alleged
negligence and grant of compensation has
been filed in the year 2010. So, the
present writ petition is liable to be
dismissed on the ground of delay and
laches alone as the petitioners have not
given
any
reason
whatsoever
in
approaching this Court at a belated stage
for redressal of their grievances.

17. Needless to mention herein that
previously Courts did show lenience and
latitude in dealing with matter filed at a
belated stage. Thereby considering the
delay in challenging the order which are
otherwise barred by limitation. It is high
time a changed perspective and attitude
should be adopted, since the Courts are
already overburdened with cases resulting
in inordinate delay in disposal of cases.
Those days of condonation of dalliance
and delay would now be over and in cases
where no sufficient and proper reason is
assigned for delay, the Court must adopt
the stern attitude and refuse relief. That
will also help in transmitting a message
that the Court will no more be indulgent
and parties beware.

18. In view of the abovesaid facts, as
in the present case, the original cause of
action had arisen on the part of the
petitioner in the year 2002, so at this
belated stage, the said issue comes within
the ambit and scope of stale/dead issue
cannot be adjudicated and decided at this
belated stage and the present writ petition
is liable to be dismissed on the ground of
delay and laches.

19. For the foregoing reasons, we
are not inclined to interfere in the matter
while exercising the power under Article
226 of the Constitution of India.

20. Thus, for the reasons stated
above, the present writ petition is
dismissed. However, if the petitioners are
so advised, they may seek their remedy,
in the appropriate forum i.e. by filing a
civil suit, as may be permissible in law.

21. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Service Single No.1034 of 1999

Ram Lal

 ...Petitioner
Versus
Managing Director U.P. Cooperative Bank
Ltd

 ...Respondent

Counsel for the Petitioner
Sri Sandeep Dixit,
Sri H.K. Misra,
Sri H.S. Jain

Counsel for the Respondent
Sri N.K. Seth