1. With the consent of learned counsel for the rival parties, matter is heard finally.

2. The instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking the following reliefs:

          "8.1 That the respondents may please be directed to pay the lum-sum compensation to the petitioner at least to the tune of Rs Sixty Lacs and compound interest there upon since l8.10.06.

          8.2 That a complete and detailed report be given to the petitioner regarding the accident dated 12.10.06 and resultantly death on 18.10.06 of the petitioner's husband Dr Mahendra Dadoria.

          8.3 That the respondent may please be directed that in a criminal case no. 267/07 dated 29.09.07 according to First information report Annexure P/1l the respondents no. 4 and 5 be prosecuted and if found guilty be punished through the process of speedy trial.

          8.4 That the respondents may please be directed to provide the free legal aid/service of advocate and the cost thereof.

          8.5 That the respondents may please be directed to bear the total cost of the pursuing education for BSc Nursing by the petitioner and accordingly employment after the completion of her education.

          8.6 That any other relief doing justice including cost of this litigation be awarded."

3. The facts in brief, as have been pleaded in the present petition, are that the petitioner is the widow of Late Dr. Mahendra Dadoria, aged about 30 years, who at the time of the incident was MBBS graduate, provisionally registered with the Madhya Pradesh Medical Council and was undergoing rotatory internship at J.A.H Group of Hospitals, Gwalior. On 12.10.2006, owing to the visit of the then Hon'ble President of India to Gwalior, traffic barricades were put upon roads at various locations in the city, including near J.A. Group Hospital, Mandhre Ki Mata Temple and Chandra Badni Road. It is the specific case of the petitioner that despite conclusion of the VVIP visit, the barricades were not removed from roads, nor were any cautionary lights, reflectors or warning indicators installed on them.

          3.1 It is further stated that on the night intervening 12.10.2006, while returning home from duty, Late Dr. Mahendra Dadoria met with a serious road accident when his motorcycle collided with the unremoved barricades placed in the middle of the road. He sustained grievous head injuries and was immediately admitted to J.A. Group of Hospitals. Despite treatment, he succumbed to his injuries on 18.10.2006. The incident was registered as a merg under Section 174 of the Code of Criminal Procedure, 1973, panchnama was made and post-mortem was conducted, and the cause of death was opined to be coma due to head injury resulting from a traffic accident. Subsequently, after preliminary inquiry, an FIR bearing Crime No. 267/2007 under Section 304-A of IPC was registered at Police Station Jhansi Road, Gwalior against respondent No.4 (SDO, PWD) and respondent No.5 (Sub-Engineer, PWD) and at the time of filing of instant writ petition, investigation/trial was pending.

4. Learned counsel for the petitioner submits that the death of the petitioner's husband was a direct consequence of the negligence and dereliction of statutory duties by the respondent authorities, who failed to remove the barricades from roads or provide adequate warning signals on a public road. It is argued that the respondents are vicariously liable for the tortious acts of their officers, and that the present case squarely attracts the public law remedy for violation of Article 21 of the Constitution of India. It is further contended that mere registration of an FIR and pendency of criminal trial does not absolve the State from its constitutional obligation to compensate the victim's family. Learned counsel for the petitioner further submits that the petitioner, having lost her husband at a young age, was rendered destitute and deprived of her right to live with dignity. It is, therefore, prayed that the writ petition be allowed and appropriate compensation be awarded.

5. Per contra, learned counsel for the respondent/State has opposed the writ petition and submitted that the present petition is not maintainable as the claim raised is essentially in the nature of compensation arising out of a tort which is required to be established and proved in accordance with law, for which the petitioner has an efficacious alternative remedy before the competent civil court for adjudication of various disputed question of facts involved. It is further contended that the accident occurred due to the negligence of the deceased himself and not due to any fault on the part of the respondent authorities. Learned counsel submits that in the criminal case against respondent Nos. 4 and 5, during the pendency of the petition, they have already been acquitted on 21.05.2009 in Criminal Case No. 267/2007 and, therefore, no liability can be fastened upon the State in writ jurisdiction. Accordingly, it is prayed that the writ petition be dismissed.

6. The learned counsel for the petitioner has also filed written synopsis is support of his arguments and has relied upon the judgments in the case of Common Cause v. Union of India, AIR 1999 SC 1219; Nilabati Bahera v. State of Odisha (1993) 2 SCC 746; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Sanjay Gupta v. State of U.P. (2022) 7 SCC 203; Mamta v. Union of India, CWP (O&M) - 11525 of 2017, delivered on 16.02.2023 (High Court of Punjab and Haryana) to contend that relief of compensations as claimed in the writ jurisdiction of this court is a remedy available in public law and the same is available to the petitioner in light of the principles of strict liability and the doctrine of res ipsa loquitur. Accordingly, the petitioner is not required to approach the civil court.

7. Heard learned counsel for the parties and perused the record and also perused the written synopsis filed by the petitioner.

8. At the very outset, this Court observes that the untimely and tragic death of the petitioner's husband is undisputed and deeply unfortunate. The loss suffered by the petitioner cannot be understated. However, the issue that falls for consideration is whether, in the facts and circumstances of the present case, the respondent authorities can be held liable for negligence and accordingly, directed to grant compensation to the petitioner in the exercise of writ jurisdiction by this Court.

9. The record indicates that the principal relief sought by the petitioner is grant of compensation on account of the death of her husband allegedly caused due to negligence of the respondent authorities by not removing traffic barricades from road after the VVIP visit.

10. Insofar as the maintainability of the present writ petition is concerned, it is settled position of law that there is no straitjacket formula prescribed. Such discretion is to be exercised keeping in view the facts and circumstances of a particular case and in view of the law laid down in Nilabati Bahera (supra), there can indeed not be a blanket proposition regarding the non-maintainability of a petition filed under Article 226 of the Constitution of India for a relief of such nature as claimed in the present petition and thus, present petition is maintainable before this Court. As to the question of entertainability of the present petition, the same is considered in the subsequent part of this order.

11. The Hon'ble Supreme Court in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552 after distinguishing between misfeasance and non-feasance had held that public authorities are not liable in damages for mere non-feasance unless a statutory duty specifically cast for the benefit of an identifiable class is breached and the authority had knowledge, actual or constructive, of the imminent danger. The relevant paras of Rajkot Municipal Corpn. (supra) are reproduced herein:

          "26. The general rule is that the public authorities are liable for positive action (misfeasance) but not for omission (non-feasance). In considering the duty of public authority to avoid harm to those likely to be affected by the exercise of power or duty, the courts have evolved the relationship of proximity or neighbourhood nexus which exists between the person who suffered damages and wrongdoer. Where there is allegation of wrongdoing it has to be seen whether the latter reasonably ought to have foreseen that the carelessness on his part, is likely to cause damage to the other. In other words, if it is a reasonable foreseeability that carelessness on the defendant's part will cause damage to the plaintiff, then the defendant is plaintiff's neighbour and prima facie owes towards the plaintiff a duty of care which may, however, be negatived on the ground of public policy or reasonable care taken at the operational stage.

          28. At the cost of repetition, we may reiterate that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done. However, as a general rule, a failure to act is not negligence unless there is a duty to act. The duty may arise because of the conduct of the defendant himself or it may be created by statute. Therefore, ordinary principles of law of negligence apply to public authorities. They are liable for damage caused by a negligent failure to act when they are under a duty to act, or for a negligent failure to consider whether to exercise a power conferred on them with the intention that it should be exercised and if and when the public interest requires it. If a public authority has decided to exercise the power, and has done so negligently, a person who has acted by relying on what the public authority has done, may have no difficulty in proving that the damage resulted from a negligent failure to act and there may not be greater difficulty in proving causation. But if the public authority omitted to exercise its discretionary power, there is greater difficulty to prove that causation has arisen. The basic difference, therefore, between causing something and failure to prevent it from happening must always be kept in view in deciding the liability for damages resulting from the failure to perform the statutory or common law duty. The common law would not impose a duty of care on a public authority in relation to failure to exercise its power when those powers are exercisable for the benefit of the public rather than for the benefit of individuals or a class of individuals.

          38. There is a distinction between misfeasance (positive action) and non-feasance (omission). Misfeasance is wilful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Non-feasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty. In the case of misfeasance, the defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. In The Law of Torts by John G. Fleming (8th Edn.) 1992, at p. 435 on the Chapter of "Public Authorities", the author has stated that although public authorities enjoy no immunity as such from ordinary tort liability, a protective screen has long remained in the vestigial "non-feasance" rule that mere failure to provide a service or benefit pursuant to statutory authority would ordinarily confer no private cause of action on persons who thereby suffer loss. In an article "Affirmative Action in the Law of Tort : The case of the Duty to Warn" [ Published in 1989 (48) Camb Law Journal at pp. 115-16] it is stated that the distinction between acts (misfeasance) and omissions (non-feasance) sometimes referred to as pure omissions, though a fundamental one, is not one which is easy to make. F.H. Bohlen suggested that "misfeasance differs from non-feasance in two respects : in the character of the conduct complained of, and second, in the nature of the detriment suffered in consequence thereof". The first aspect relates to the distinction between active misfeasance and passive inactivity; the second to the distinction between causing loss and simply failing to confer a benefit. A defendant who has inflicted a loss on the plaintiff by his negligent action will be liable for the misfeasance. On the other hand, if he has simply allowed harm to occur without preventing it, or failed to confer a benefit on the plaintiff, he will not be liable, as this is considered to be an omission or non-feasance. The conferment of such benefits lies in the province of contract, not tort. At p. 117, he states that tort law has developed in such a way as to allow the imposition of liability for injuries that are not easily described as "damage" or "loss". At p. 119, it is further stated that there are, however, more practical arguments why misfeasance and non-feasance should be treated differently. Imposing liability in cases of non-feasance, it is argued, would be to create liability for an indeterminate class of persons. In situations where a warning could have been given or a rescue effected, there are often a number of people who could have taken the action but did not. There are difficulties in determining which of them should be liable. Moreover, it is unfair to pick out one person from a group of equally culpable wrongdoers. When harm is inflicted by a positive act, the wrongdoer is readily identifiable in most cases and there is no group of wrongdoers from which one person has been arbitrarily selected. At p. 120, it is stated that in all tort actions, one of the crucial tasks which a court has to perform is to determine whether the injury which was suffered by the plaintiff was or was not reasonably foreseeable by the defendant. While such assessment of risk may be more difficult in some cases of non-feasance than it is in cases of misfeasance, it would be no different in substance. At p. 131, it is stated that the circumstances in which liability can arise for an "omission" are therefore somewhat uncertain and open to widely differing interpretations, both broad and narrow. In addition, the outcome of cases in which an omission is at issue may well be the same whether one deals with under general principles or under special rules. It may be that by confining liability for what are conceived of as omissions to specified circumstances, the courts have attempted to emphasise that such liability will only arise in a limited number of situations. But the decisions reached by the application of these special rules often seem artificial and unduly restrictive and the application of general principles does not necessarily mean that liability will arise in unlimited circumstances. It would still be necessary to show that there was sufficient proximity between the parties and a reasonably foreseeable danger before a duty of care could arise. In determining this question, the court could take into account a broad range of facts which were relevant and even if the facts suggested that such a duty did exist, it would still be permissible to consider whether considerations of policy dictate that the duty should not arise. Thus the court would proceed with caution in areas of doubt or difficulty. In the conclusion, it is stated at p. 137 that if cases dealing with a negligent failure to warn were dealt with by the principles applied in ordinary negligence actions rather than by special rules would depend on whether the failure was considered to be an act or an omission. At p. 137, he concluded that the distinction between acts or omissions was developed at a time when the law of negligence was in a relatively primitive state and it was feared that the courts would be overwhelmed with actions alleging omissions. However, the law of negligence is now considerably more sophisticated and "floodgates" arguments are given much less credence than they used to be.

          54. In Baxter v. Stockton-on-Tees Corpn. [(1959) 1 QB 441 : (1958) 2 All ER 675 : (1958) 3 WLR 275, CA] , the plaintiff's husband was killed when a motorcycle which he was riding at night on a highway collided with the kerb of an approach island adjacent to a roundabout. In a suit for damages for the death of her husband against the statutory highway authority for its failure to provide lighting at the approach road, the Court of Appeal held on the assumption that the defendants were in any way at fault in respect of the approach island that fault consisted exclusively of non-feasance and that accordingly if the defendants were to be held liable it could only be by virtue of some express words in the Act under which the road became vested in them. But nothing was found in Section 32 of the Local Government Act, 1929 to impose on an urban authority taking over a county road any special obligation as to the maintenance of the road so as to exclude the ordinary immunity from civil action in respect of mere non-feasance. Therefore, the action of the plaintiff must necessarily fail. In Wilson v. Kingston-upon-Thames Corpn. [(1949) 1 All ER 679, CA] , a hole in an asphalt roadway was temporarily repaired by the highway authority by filling it with tar-macadam. The road again became in need of repair, but it was not done. A cyclist riding over the hole was thrown from his cycle and injured. He laid the suit for damages. It was held by the Court of Appeal that the condition of the road was due to non-feasance and not due to misfeasance in repairing the road negligently and, therefore, the highway authority was not liable for damages.

          57. It would thus be seen that each case requires to be examined in the light of the special circumstances, viz., whether the defendant owed a duty of care to the plaintiff, whether the plaintiff is a person or a class of persons to which the defendant owed a duty of care, whether the defendant was negligent in performing that duty or omitted to take such reasonable care in the performance of the duty, whether damage must have resulted from that particular duty of care which the defendant owed to the particular plaintiff or class of persons. Public authorities discharge public obligations to the public at large. Therefore, it owes a duty of care at common law to avoid causing present or imminent danger to the safety of the plaintiff or a class of persons to which the plaintiff belongs. It is a statutory duty of care under common law which could give rise to actionable claim in the suit of the individual and it is capable of coexistence alongside a statutory duty. The duty of care imposed on a local authority by law may not be put beyond what the statute expects of the local authority or Corporation to perform the duty. The tort of insuperable negligence would emerge from imminent danger created by a positive act. But the duty of care imposed on local authority by law may be gauged from the circumstances in which and the conditions subject to which the duty of care has been imposed on the statutory authority. The imminent danger theory must be viewed keeping at the back of mind the act or conduct creating the danger to the plaintiff or the class of persons to which he belongs and that by negligent conduct the defendant causes damage to the property or person of the plaintiff, though the defendant is not in know of the danger. The defendant also in given circumstances, must owe special responsibility or proximity imposing foreseeable duty to care, to safeguard the plaintiff from the danger or to prevent it from happening.

          60. The exercise of power/omission must have been such that duty of care had arisen to avoid danger. Foreseeability of the danger or injury alone is not sufficient to conclude that duty of care exists. The fact that one could foresee that a failure of the authority to exercise a reasonable care would cause loss to the passers-by itself does not mean that such a duty of care should be imposed on the statutory authority. The statutory authority exercises its public law duty or function. It would be wrong to think that the local authority always owes responsibility and continues to have the same state of affairs. It would be an intolerable burden of duty of care on the authority; otherwise it would detract the authority from performing its normal duties. If he were to gauge the risk of litigation, he would avoid doing public duty of planting and nurturing the trees thinking that it would be a heavy burden on the local authority. It would always cause heavy financial burden on the statutory authority. If the duty of maintaining constant vigil or verifying or testing the healthy condition of trees at public places with so many other functions to be performed, is cast on it, the effect would be that the authority would omit to perform statutory duty. Duty of care, therefore, must be carefully examined and the foreseeability of damage or danger to the person or property must be correlated to the public duty of care to infer that the omission/non-feasance gives rise to actionable claim for damages against the defendant."

          [Emphasis Supplied]

12. In view of the law laid down hereinabove, following are the ingredients required to be considered and established in order to fasten the tortious liability of negligence upon a public authority:

          (i) That, whether a duty of care was owed to the deceased husband of the petitioner?

          (ii) That, whether the public authority ought to have foreseen that the carelessness on their part, if any, was likely to cause damage to the deceased husband of the petitioner;

          (iii) That, whether the danger was reasonably foreseeable; and

          (iv) That, whether the alleged negligence was in the nature of misfeasance or merely non-feasance.

13. In the present case, the barricades were admittedly put up as part of traffic management arrangements during a VVIP visit. The allegation of the petitioner is that after the conclusion of the visit, the barricades were not removed and no cautionary indicators were installed. The question as to whether there was any specific imminent danger at the site in question is a seriously disputed question of fact and cannot be ascertained by this Court in exercise of its writ jurisdiction merely on the basis of exchange of affidavits between the parties. Moreover, other aspects, such as whether the condition of the road was such that the injury was inevitable and whether such putting up of barricades was so dangerous that a general duty of care was owed to the public or whether there was particular duty of care as against the deceased husband of the petitioner are aspects which are essential to establish negligence upon the state authorities and are also matters of fact requiring leading of evidence.

14. Furthermore, as held in Rajkot Municipal Corpn. (supra), the duty of care must be correlated to the statutory obligation and proximity to the injured person. In the present case, in order to establish that the respondents owed a specific duty to the deceased beyond the general duty owed to the public at large, the same would be required to be established by leading evidence and merely the plea of res ipsa loquitur will not be sufficient. Accordingly, such a private action for claiming damages requiring evidence cannot be entertained in writ jurisdiction.

15. It is settled that the availability of an alternative remedy does not always operate as a bar to the maintainability of a writ petition under Article 226 of the Constitution of India. Even if a writ petition is maintainable, the High Court in its extra-ordinary and discretionary jurisdiction may not entertain a writ petition. The distinct concepts of 'maintainability' and 'entertainability' have been succinctly explained by the Hon'ble Supreme Court of India in M/s Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum- Assessing Authority and others, reported in (2023) 3 SCR 871, the relevant para of which reads as under:

          "4. ... The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self- imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest...."

          [Emphasis Supplied]

16. Another issue which arises for consideration before this Court is as to whether, this Court while exercising jurisdiction under Article 226 of the Constitution of India can ascertain and quantify the alleged damages and grant the monetary compensation of INR 60 Lakhs as prayed by the petitioner. The Division Bench of this Court in W.P. No.32164/2025 vide order dated 28.08.2025 has held as under:

          "This Court in exercise of power under Article 226 of the Constitution of India cannot adjudicate the quantum of damages, therefore, liberty is granted to petitioners that if so advised, then they may file a civil suit for recovery of damages. It is made clear that this liberty has been granted without adjudicating as to whether the university has committed any illegality or not. If the suit is filed, then the same shall be decided after considering the case of plaintiffs/petitioners as well as university/defendant."

          [Emphasis Supplied]

17. Similarly, the Co-ordinate Bench of this Court (Principal Seat at Jabalpur), vide order dated 06.11.2012 passed in W.P. No.5849/2002 has held as under:

          "The issue regarding ascertainment of damages is beyond the scope of this Court under Articles 226 and 227 of the Constitution of India. The issue regarding awarding or ascertaining the damages can only be quantified after adducing proper evidence in the event of instituting such a case before the appropriate court.

          In view of the aforesaid, the petition filed by the petitioners is disposed of with liberty to the petitioner to take up appropriate proceedings before the appropriate court, in case so advised."

18. Another Co-ordinate Bench of this Court at Indore, vide order dated 14.08.2024 in W.P. No.15877/2024 has held as under:

          "4. In so far as the relief of grant of compensation in the sum of Rs.50,00,000/- is concerned, the same cannot be awarded in a Writ Petition under Article 226 of the Constitution of India. The amount of damages, if any, can be ascertained only after leading of evidence and affording opportunity to the concerned parties in that regard and firstly upon recording of a finding that there has been any negligence on part of any of the respondents due to which the petitioner has suffered damages which can be compensated in terms of money. The appropriate remedy for the petitioner is hence not this petition but a duly constituted civil suit before the Civil Court."

          [Emphasis Supplied]

19. It would thus be seen that the consistent view of the Division Bench as well as Co-ordinate Bench of this Court has been that adjudication and quantification of damages can be done only by leading evidence and upon recording of finding by the Civil Court.

20. Therefore, in the considered opinion of this Court, the determination of negligence in the present matter and quantification of damages would require examination of factual aspects, such as the precise location of barricades, availability of street lighting, the speed and manner of driving of the deceased, and whether contributory negligence was involved, along with other relevant factors which would be required to be duly proved for the purpose of quantification of damages of INR 60 Lakhs as claimed in the present petition. In view of the above, this Court is of the considered opinion that the claim raised by the petitioner involves adjudication of disputed questions of fact and which are required to be established before a competent civil court by leading appropriate evidence.

21. Accordingly, the present writ petition is declined to be entertained by this court and stands dismissed and disposed of. However, the petitioner is granted liberty to avail appropriate remedy before the competent civil court or any other forum available in law, if so desired. It is made clear that in case the petitioner files a civil suit, she would be entitled for the benefit of Section 14 of the Limitation Act, 1963 for the period spent by her in the instant proceedings before this Court and all the contentions raised in the present writ petition are kept open to be urged before such forum, and the same shall be decided on their own merits without being influenced by any observation made in this order.

22. With the aforesaid, the writ petition stands disposed of.

23. Pending application(s), if any, shall also stand disposed of.