JUDGMENT
Satish Kumar Mittal, J.
1. This order shall dispose of two civil writ petitions bearing Nos. 13135 of 2007 and 14912 of 2007 as common question of facts and law is involved in the same. Both these petitions have been filed under Articles 226 of 277 of the Constitution of India by the widow of deceased Jasbir Singh and the parents of deceased Ramesh Kumar, respectively, directing the respondents to pay compensation to them on account of the death of their husband/son, who is alleged to have died because of the negligence of the Electricity Department.
2. In C.W.P. No. 13135 of 2007, it has been alleged that the husband of the petitioner, namely, Shri Jasbir Singh was an agricultural labourer. On 23.10.2004 he was working in the fields of one Kapil Dev son of Bicha Ram, resident of village Salempur and was cutting the trees standing in his fields. It has been further alleged that on the said date the field owner Kapil Dev requested the Sub Divisional Officer, UHBVN Limited, Ladwa (respondent No. 3 herein) to switch off the electricity current in the wires which was going over his fields so that they could cut the trees standing on his fields. Accordingly, the electricity current was switched off and thereafter deceased Jaspal Singh along with other labourers started cutting the trees standing in the field. It has been also alleged that suddenly a fire took place in the adjoining field due to the fall of the electricity wire. The deceased Jaspal Singh alongwith other labourers rushed to the said sugar cane field and he unknowingly touched the said electric wires. He died immediately on the spot.
3. The petitioner being widow sought compensation from the Electricity Department on account of the death of her husband on the ground that her husband had died due to the negligence of the Electricity Department. When her claim regarding the compensation was not considered, she filed a writ petition bearing CWP No. 8612 of 2006. The same was disposed of with a direction to the respondents to decide the representation filed by the petitioner for grant of compensation. The said claim of the petitioner has been rejected by the respondents on the ground that deceased Jaspal Singh did not die due to the negligence of the Electricity Department. No intimation was ever sent to the Electricity Department for cutting off the trees. It has been further stated that the electric wires were broken due to the illegal acts of the deceased and other labourers for cutting the trees. An enquiry was conducted in the incident by the Chief Electrical Inspector to the Government of Haryana under the Electricity Act, 2003. In the enquiry, it was found that the deceased himself was responsible for the incident. After passing of the said order, the instant petition has been filed.
4. In the written statement filed on behalf of respondents No. 1 to 3, the respondents have taken the same stand on which the claim of compensation was rejected.
C.W.P. No. 14912 of 2007 has been filed by the petitioners, who are the parents of deceased Ramesh Kumar for directing the respondents to pay compensation of Rs. 8.00 lacs on account of the death of their son because of the negligence of the Electricity Department.
5. In the petition, it has been alleged that on 08.07.2006, the son of the petitioners was returning to the home after attending his work. When he reached near Veterinary Hospital, Bhedthal, some broken electric live wires were lying on the passage having the electric current. It was about 8.00 p.m. and because of the darkness the son of the petitioners could not notice those broken live wires and while crossing those wires, his foot touched with those electric wires and was electrocuted, as a result of which he died. The matter was reported to the police. The inquest proceedings were conducted under Section 174 Cr.P.C. in which it was recorded that nobody was responsible for the death of the son of the petitioners.
6. It is the case of the petitioners that the death of their son was caused due to the negligence of the officers of the respondent-Nigam. The petitioners made a representation for the grant of compensation to them on that account. When the said representation was not considered and decided, the petitioners filed CWP No. 16872 of 2006 which was disposed of. Vide order dated 03.08.2007, the claim of the petitioners has been rejected on the ground that the death of the son of the petitioner did not take place due to the negligence of the respondent-Nigam. In the enquiry conducted by the respondent-Nigam, it was found that the son of the petitioners was electrocuted somewhere else with his own installations and subsequently the petitioners tried to create the record afterwards to get compensation. Thereafter, the instant petition.
7. In the written statement filed on behalf of respondent No. 1 to 3, the respondents nave disputed their liability to pay the compensation on the ground that the death of the son of the petitioners did not take place due to the negligence of the respondent-Nigam.
8. In both the writ petitions, the respondents have taken the objections that since disputed questions of facts have been involved in these petitions to the effect whether both the deceased had died due to the negligence on the part of the respondent-Nigam or not, therefore, the writ petition under Articles 226/227 of the Constitution of India is not maintainable as the petitioners have an alternative remedy to file a suit for compensation under the law of torts for the alleged negligence of the respondent-Nigam. In support of the said contention, learned Counsel for the respondents relied upon a decision of the Supreme Court in SDO, Grid Corporation of Orissa Ltd. v. Timudu Oram . Learned Counsel submits that mere fact that the claimants had suffered loss from electric transmission wires belonging to the respondent-Nigam having snapped and the deceased coming in contact therewith and died by itself was not sufficient for awarding compensation. They are further required to establish that the alleged loss is caused by the negligence of the respondent-Nigam, i.e. wire had snapped due to the negligence of the respondent-Nigam on which the deceased came in contact. Learned Counsel further submits that in such situation, the respondent-Nigam is to given an opportunity to prove that proper care and precautions were taken in maintaining the transmission line and yet wires had snapped due to the circumstances beyond their control or unauthorised intervention of third parties or by illegally cutting of the trees. He submitted that such disputed questions of facts cannot be decided under Article 226 of the Constitution of India and the compensation cannot be granted in a remedy available in public law. In such cases, the petitioner-claimants should be relegated to the ordinary remedy of a suit for claiming damages/compensation under the law of torts for the alleged illegal Acts.
9. On the other hand, learned Counsel for the petitioners submitted that this Court can grant compensation under Article 226 of the Constitution of India which is a remedy available to a citizen in public law for the contravention of his fundamental rights. While relying upon the decision of the Supreme Court in M.P. Electricity Board v. Shail Kumari , he submitted that by virtue of the doctrine of strict liability, it has been held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident. Such liability is not subject to any of the exceptions of the principle of strict liability. Learned Counsel for the respondents also relied upon the decision of the Supreme Court in The Chairman, Railway Board v. Chandrima Das 2000(1) R.C.J. 429 where compensation was awarded to the victim under Article 226 of the Constitution of India for the offence of gang rape committed by the Railway employees while the victim was travelling in the train.
10. After hearing the counsel for the parties, we are of the opinion that in view of the disputed questions of facts, i.e., whether the alleged accidents in question in which the husband/son of the petitioners had died due to the electrocution, had taken place on account of the negligence of the respondent-Nigam or not; and whether the said accidents had taken place due to the illegal acts of the deceased themselves, the relief of compensation cannot be granted under the Writ jurisdiction of this Court which is a remedy in public law, and the petitioners can be relegated to its ordinary remedy of a civil suit under the law of torts.
11. It is well settled that award of compensation in a proceeding under Article 226 of the Constitution of India by the High Court is a remedy available in public law, based on strict liability for contravention of fundamental rights to which even the principle of sovereign immunity does not apply, even though it may be available as a defence in a private law in an action based on torts. The Supreme Court in Radul Sah v. State of Bihar has held that the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution of India can grant compensation for deprivation of a fundamental right but that remedy under the public law cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts. The Claimants could have been relegated to the ordinary remedy of a suit if this claim to compensation was factually controversial in the sense that a Civil Court may or may not have upheld his claim.
12. Subsequently the Supreme Court in Smt. Nilabati Behera alias Lalita Behera v. State of Orissa has held that the relief of mandatory compensation in proceedings under Article 32 by the Supreme Court and under Article 226 of the Constitution of India by the High Court can be granted for established infringement of the indefeasible right guaranteed under Article 21 of the constitution. But the remedy in a public law cannot be availed if the facts regarding liability of the State or instrumentality has been disputed. The Supreme Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) v. Sukamani Das has held that the High Court has committed an error in entertaining the writ petition under Article 226 of the Constitution of India when the respondent-Corporation disputed its negligence in the alleged accident. It was held that actions in torts and negligence are required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to the appellant had snapped and the deceased had come in contract with it and had died was not by itself sufficient for awarding compensation. The Court is also required to examine as to whether the wire had snapped as a result of any negligence of the appellant and under which circumstances the deceased had come in contact with the wire. It was held that such disputed questions of fact cannot be decided in the Writ Jurisdiction under Article 226 of the Constitution of India. In that judgment, it has been further observed as under:
6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that ‘admittedly/prima facie amounted to negligence on the part of the appellants’ The High Court failed to appreciate that all these cases were actions in torts and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to appellant had snapped and the deceased had come in contract with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contract with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the Civil Court as it was done in O.J.C. No. 5229 of 1955.
Similar view was taken by the Supreme Court in W.B. SEB v. Sachin Banerjee (1999)9 S.C.C. 2, which reads as under:
The only grievance of the petitioners relates to an observation in the impugned judgment that two victims had died because of the negligence of the petitioner State Electricity Board. Looking to the fact that the two victims were electrocuted because of an illegal hooking for the purpose of theft of electricity, the petitioners cannot be held guilty of negligence although they may have stated that there is a need for conducting dehooking raids more frequently.
Further, similar view was followed by the Supreme Court in SDO, Grid Corporation of Orissa Ltd. v. Timudu Oram’s case (supra). In the said judgment, the earlier judgment in M.P. Electricity Board v. Shail Kumari’s case (supra) has also been discussed and with regard to the said judgment, it has been held as under:
As against this counsel for the respondent cited a later judgment of this Court in M.P. Electricity Board v. Shail Kumari (supra) wherein this Court has taken the view that the Electricity Board could be fastened with the liability in a case in which the live wire snapped and fell on the public road which was partially inundated with rainwater. The observation made by this Court in the aforesaid case would not be applicable to the facts of the present case as in the said case a suit had been filed in which a finding of negligence was recorded by the trial Court against the Board. The trial Court after coming to the conclusion that the respondents were entitled to a compensation of Rs. 4.34 lakhs non-suited the respondents solely on the premise that the claimants had failed to prove their liability for such compensation.
Thus, in view of the fact that in the instant two petitions the disputed questions of facts are involved, therefore, in our opinion the writ petition would not be a proper remedy. We are further of the opinion that the relief claimed by the petitioners in these petitions under Article 226 of the Constitution of India cannot be granted.
13. Hence, both the petitions are dismissed. However, it will be open for the petitioners to avail the damages/compensation under the ordinary law of torts.