Tamil Nadu Electricity Board Vs.
Sumathi & Ors [2000] INSC 271 (27 April 2000)
D.P.Wadhwa, S.S.M.Quadri
D.P. WADHWA,J.
We grant leave to appeal.
The questions, which arise for consideration
in this batch of eight appeals, are: (1) can the High Court under Article 226
of the Constitution award compensation for the death caused due to
electrocution on account of improper maintenance of electric wires or equipment
by the Tamil Nadu Electricity Board, the appellant; and (2) whether the High
Court while exercising jurisdiction under Article 226 of the Constitution
appoint an arbitrator under the Arbitration and Conciliation Act, 1996 (new
Act) to decide the quantum of compensation and then make the award of the
arbitrator Rule of the Court.
First question has recently been dealt with
by judgment of this Court in Chairman, Grid Corporation of Orissa Ltd. &
others vs. Sukamani Das and another . In that case the deceased met his death
due to electrocution.
It was alleged that while the deceased was
proceeding from his village to another place he decided to return back as dark
clouds gathered in the sky and there were thunderbolts also. While he was
returning it started raining and while walking on the road he came in contact
with an electric wire which was lying across the road after getting snapped
from the overhead electric line. It was thus alleged that the electric wire had
snapped because of the negligence of the appellant and its officers in not
properly maintaining the electricity transmission line. Thus claim for damages
was laid. Appellant Grid Corporation of Orissa submitted that there was no
negligence and it was because of the thunderbolt and the lightening that one of
the conductors of the 12 W LT line had snapped even though proper guarding was
provided and further that as soon as information regarding the snapping of line
was received from the line helper of the village concerned the power was
disconnected. It was also contended that the deceased did not die as a result
of coming into contact with the live electric wire but he met his death due to
lightening. The appellant Grid Corporation objected to the jurisdiction of the
High Court under Article 226 of the Constitution and said that proper remedy
was a civil suit as disputed question of fact arose and evidence had to be lead
by both the parties. High Court, however, decided the matter on merit and
awarded compensation of rupees one lakh. On appeal this Court said that High
Court committed an error in entertaining the writ petition as it was not a fit case
for exercising power under Article 226 of the Constitution. It was observed
that High Court went wrong in proceeding on the basis that as the death had
taken place because of electrocution as a result of the deceased coming into
contact with snapped live wire of the electric transmission line of the
appellants which "admittedly/prima facie amounted to negligence on the
part of the appellants".
This Court said that High Court failed to
appreciate that all these cases were actions in tort and negligence was
required to be established firstly by the claimant. This Court further said
that it was a settled legal position that where disputed questions of facts
were involved a petition under Article 226 of the Constitution was not a proper
remedy. Reference was made to a decision of this Court in Shakuntala Devi vs.
Delhi Electric Supply Undertaking wherein this Court specifically exercised
jurisdiction under Article 142 of the Constitution and it was said that the
judgment was rendered on the facts of that case and would not be treated as a
precedent in any other matter.
Shakuntala Devi case was a petition under
Article 32 of the Constitution where Shakuntala Devi had claimed compensation
of Rs.5 lakhs on account of death of her husband, who got electrocuted by a
live wire of electricity of the respondent. A live main electricity cable/wire
which was resting on an electricity pole had got snapped and was lying in the
rainy and waterlogged village. Various complaints were made by the residents of
the village to the officers of the respondent, which was statutorily bound to
maintain electrical installation lines in proper conditions.
Deceased was not aware of the electricity
leakage and when he came in contact with the live cable he got electrocuted on
the spot and died instantaneously. According to Shakuntala Devi this was on
account of criminal negligence on the part of the respondent. The Court
observed that as this disaster had left the petitioner and her young children
destitute, the present petition was moved under Article 32 of the Constitution
presumably relying upon petitioner's fundamental rights under Article 21 of the
Constitution which had got adversely affected on account of the negligent act
of the officials of respondent. In these circumstances this Court said that it
was a fit case to exercise its jurisdiction under Article 142 of the
Constitution and granted relief to Shakuntala Devi. This Court, however, did
not go into the question of infringement of the rights of Shakuntala Devi
guaranteed under Article 21 of the Constitution.
In the present cases, however, High Court
went a step further. Here in some of the appeals High Court by consent
appointed an arbitrator to decide the question of compensation. Till the
arbitrator gave his award an interim compensation amounting to Rs.30,000/- or
so was awarded.
Only in one of the appeals before us (SLP (C)
Nos. 14421- 23/97) the arbitrator had given his award. In others during the
pendency of these appeals the arbitrator gave his awards. The award, after
hearing the objections of the appellant, was made Rule of the Court. High Court
examined the evidence recorded by the arbitrator. A decree was passed in favour
of the respondents, which was to carry interest at the rate of 12% per annum
from the date of the filing of writ petition till the date of realisation.
Similar is the result in other seven appeals.
It was contended by Mr. M.N. Krishnamani,
Senior Advocate for the respondents that these appeals were distinguishable
from the judgment of this court in Sukamani Das case inasmuch as matter was
referred to the arbitrator, who recorded evidence in accordance with the
provisions of the new Act and the award was subject to scrutiny by the High
Court and only it was thereafter that a decree was passed. Reference was made
to a decision of this Court in The Chairman Railway Board and others vs. Mrs.
Chandrima Das where the petitioner, a woman, was gang raped by the employees of
the railway in a room of Yatri Nivas, maintained by the Central Government in
the Ministry of Railways and it was held that the High Court of Calcutta
rightly invoked its power under Article 226 of the Constitution and awarded
compensation of Rs.10 lakhs to the victim. This Court, while upholding the
judgment of the High Court, said "the contention that victim should have
approached the Civil Court for damages and the matter should not have been
considered in a petition under Article 226 of the Constitution, cannot be
accepted. Where public functionaries are involved and the matter relates to the
violation of the fundamental rights or the enforcement of public duties, the
remedy would still be available under the public law not withstanding that a
suit could be filed for damages under private law". Reference was also
made to another decision of this Court in Nilabati Behra vs. State of Orissa
and others where this Court directed the State of Orissa to pay a sum of
Rs.1,50,000/- as compensation to the appellant, who was the mother of the
deceased, who was the victim of a custodial death. Yet another decision to
which reference is made is Kumari (Smt) vs. State of Tamil Nadu and others . In
that case a six years old boy died as a result of falling in a ten feet deep
sewerage tank in the city of Madras. The tank was not covered with a lid and
was left open. Mother of the boy filed a petition under Article 226 of the
Constitution before the Madras High Court seeking a writ of mandamus directing
the respondents to pay Rs.50,000/- as compensation. The writ petition was
dismissed on the ground that in writ jurisdiction it was not possible to
determine as to which of the respondents was negligent in leaving the sewerage
tank uncovered. This Court awarded a compensation of Rs.50,000/- saying
"in the facts and circumstances of this case we set aside the High Court
judgment and direct that respondent No. 1, the State of Tamil Nadu shall pay to
the appellant a sum of Rs.50,000/- with interest at the rate of 12% per annum
from January 1, 1990 till the date of payment". It was left open to the
State of Tamil Nadu to take appropriate proceedings to claim the said amount or
any part thereof from any of the respondents or any other authority which might
be responsible for keeping the sewerage tank open.
Respondents in these appeals before us have
strongly relied on Article 21 of the Constitution to maintain their petitions
under Article 226 of the Constitution. They referred to the following
observations of this Court in the case of Nilabati Behera, where this Court
held thus "adverting to the grant of relief to the heirs of a victim of a
custodial death for the infraction or invasion of his rights guaranteed under
Article 21 of the Constitution, it is not always enough to relegate him to the
ordinary remedy of a civil suit to claim damages for the tortuous Act of the
State as that remedy in Private Law indeed is available to the aggrieved party.
The primary source of the Public Law proceedings stems from the prerogative
writs and the courts have, therefore, to evolve 'new tools' to give relief in
Public Law by moulding it according to the situation with a view to preserve
and protect the Rule of Law". Further the Court goes to hold in para 33 of
the judgment:
"The old doctrine of only relegating the
aggrieved to the remedies available in civil law limits the role of the courts
too much as protector and guarantor of the indefeasible rights of the citizens.
The courts have the obligation to satisfy the social aspirations of the
citizens because the courts and the law are for the people and expected to
respond to their aspirations." It was thus submitted that respondents'
right to life under Article 21 of the Constitution had been violated because of
the negligence of the public authorities and that it was a well settled legal
proposition that High Court under Article 226 of the Constitution had the power
to award compensation in case of violation of fundamental rights by State's
instrumentality or servants and the award of compensation in proceedings for
enforcement of fundamental rights under Articles 226 and 32 of the Constitution
is a remedy available in Public Law. Finally it was submitted that the Public
Law proceedings serve a different purpose than the Private Law proceedings. The
relief of monetary compensation, as exemplary damages, in proceedings under
Article 226 by the High Court for infringement the indefeasible right
guaranteed under Article 21 of the Constitution is a remedy available in Public
Law.
Therefore, when the Court moulds the relief
by granting compensation under Article 226 of the Constitution, it does so under
the Public Law by way of penalising the wrongdoer and fixing the liability for
the public wrong on the State which has failed in its public duty to protect
the fundamental rights of the citizens. It was, therefore, submitted by the
respondents that the judgment of the High Court was right in law as
compensation could be awarded under Article 226 for the infringement of
fundamental rights of the citizens.
On the second question it was submitted that
since reference was made to the arbitrator with the consent of both the parties
and the arbitrator held proceedings in accordance with law and thereafter this
Court also examined the award and proceedings and on that basis passed a decree
it was impermissible for the appellant to contend otherwise and rather
appellant was estopped for taking a contrary stand before this Court. It was
submitted that the provisions of new Act had been fully complied with and there
was no error in the award or High Court passing a decree on that basis.
This Court in P. Anand Gajapathi Raju and
others vs.P.V.G. Raju (died) and others has held that there is no provision in
the new Act for referring the matter to arbitrator by intervention of the
Court. However, if during the pendency of the proceedings in the court parties
have entered into an arbitration agreement then they have to proceed in
accordance with the provisions of the new Act and when award is made it is a
decree and it cannot be filed in the High Court and it has to be filed in the
court as defined in clause (e) of Section 2 of the new Act for its enforcement
as a decree under Section 36 of the new Act. If there is challenge to the award
recourse has to be under Section 34 of the new Act.
In view of the clear proposition of law laid
by this Court in Sukamani Das case when disputed question of fact arises and
there is clear denial of any tortuous liability remedy under Article 226 of the
Constitution may not be proper. However, it cannot be understood as laying a
law that in every case of tortuous liability recourse must be had to a suit.
When there is negligence on the face of it and infringement of Article 21 is
there it cannot be said that there will be any bar to proceed under Article 226
of the Constitution. Right of life is one of the basic human rights guaranteed
under Article 21 of the Constitution. In U.P. State Co-operative Land
Development Bank Ltd. vs.Chandra Bhan Dubey & Ors. , where one of us
(Wadhwa, J.) was a party, this Court after examining various decisions of the
courts on the power of the High Court under Article 226 of the Constitution
observed that the language of Article 226 of the Constitution does not admit of
any limitation on the powers of the High Court for the exercise of jurisdiction
thereunder though by various decisions of this Court with varying and divergent
views, it has been held that jurisdiction under Article 226 can be exercised
only when a body or authority, the decision of which is complained, was
exercising its power in the discharge of public duty and that writ is a public
law remedy. This Court then observed : "... [i]t may not be necessary to
examine any further the question if Article 226 makes a divide between public
law and private law. Prima facie from the language of the Article 226 there
does not appear to exist such a divide. To understand the explicit language of
the Article it is not necessary for us to rely on the decision of English
Courts as rightly cautioned by the earlier Benches of this Court. It does
appear to us that Article 226 while empowering the High Court for issue of
orders or directions to any authority or person does not make any such
difference between public functions and private functions. It is not necessary
for us in this case to go into this question as to what is the nature, scope
and amplitude of the writs of habeas corpus, mandamus, prohibition, quo
warranto and certiorari. They are certainly founded on the English system of
jurisprudence.
Article 226 of the Constitution also speaks
of directions and orders which can be issued to any person or authority
including, in appropriate cases, any Government. Under clause (1) of Article
367 unless the context otherwise requires, the General Clauses Act, 1897,
shall, subject to any adaptations and modifications that may be made therein
under Article 372 apply for the interpretation of the Constitution as it
applies for the interpretation of an Act of the Legislature of the Dominion of
India. Person under Section 2(42) of the General Clauses Act shall include any
company, or association or body of individuals, whether incorporated or not.
Constitution is not a statute. It is a fountain head of all the statutes. When
the language of Article 226 is clear, we cannot put shackles on the High Courts
to limit their jurisdiction by putting an interpretation on the words which
would limit their jurisdiction. When any citizen or person is wronged, the High
Court will step in to protect him, be that wrong be done by the State, an
instrumentality of the State, a company or a cooperative society or association
or body of individuals whether incorporated or not, or even an individual.
Right that is infringed may be under Part III of the Constitution or any other
right which the law validly made might confer upon him. But then the power
conferred upon the High Courts under Article 226 of the Constitution is so
vast, this court has laid down certain guidelines and self-imposed limitations
have been put there subject to which High Courts would exercise jurisdiction,
but those guidelines cannot be mandatory in all circumstances. High Court does
not interfere when an equally efficacious alternative remedy is available or
when there is established procedure to remedy a wrong or enforce a right. A
party may not be allowed to by-pass the normal channel of civil and criminal
litigation. High Court does not act like a proverbial bull in china shop in the
exercise of its jurisdiction under Article 226.
In the present case, disputed questions of
facts did arise and the High Court was itself aware of the same. It was on that
account that the High Court referred the disputes through arbitration for
adjudication. It was submitted by Mr. R. Mohan, learned senior counsel for the
appellant, that the High Court by referring the matter to arbitration has
created a new jurisdiction to deal with the alleged negligence of the appellant
and has also appointed a forum for adjudication of the same. It was submitted
that creation of such a forum and jurisdiction is legislative in character and
it could not be done or assumed otherwise. In support of his submission Mr.
Mohan referred to a Constitution Bench decision of this Court in A.R. Antulay
vs. R.S. Nayak & Anr. where the Court had observed :
"The power to create or enlarge
jurisdiction is legislative in character, so also the power to confer a right
of appeal or to take away a right of appeal Parliament alone can do it by law
and no Court, whether superior or inferior or both combined can enlarge the
jurisdiction of a Court or divest a person of his rights of revision and
appeal" Since disputed questions of facts arose in the present appeals the
High Court should not have entertained writ petitions under Article 226 of the
Constitution and then referred the matter to arbitration in violation of the
provisions of the new Act. There was no arbitration agreement within the
meaning of Section 7 of the new Act.
Under the new Act award can be enforced as if
it is a decree of a court and yet the High Court passed a decree in terms of
the award which is not warranted by the provisions of the new Act. Appellant
had also raised plea of bar of limitation as in many cases if suits had been
filed those would have been dismissed as having been filed beyond the period of
limitation. In our opinion exercise of jurisdiction by the High Court in
entertaining the petitions was not proper and High Court in any case could not
have proceeded to have the matter adjudicated by an arbitrator in violation of
the provisions of the new Act. Mr. Mohan also contended that the appellant did
not consent to adjudication of subject disputes by an arbitrator. That the
matter was referred to the arbitrator without the consent of the appellant as
now being alleged can not be taken note of as the High Court specifically said
that it was by consent of the parties that the reference was being made to the
arbitrator.
It was submitted by Mr. Krishnamani that in
view of the facts and circumstances of these cases when deaths occurred due to
electrocution and all this time has expired it would not be equitable to send
the respondents to take proceedings in a civil court. He referred to a decision
of this Court in Municipal Board, Pratabgarh vs. Mahendra Singh Chawla and
others where this Court made following observations:
"While exercising the discretionary
jurisdiction under Article 136, law is to be tempered with equity and if the
equitable situation demands after setting right the legal formulations not to
take it to the logical end, the Supreme Court would be failing in its duty if
it does not notice equitable considerations and mould the final order. In
exercise of the extraordinary jurisdiction under Article 136 the discretion
should be so exercised by the Court that justice may be rendered to both the
parties." We are inclined to agree with the last submission of Mr.
Krishnamani.
We answer both the questions in favour of the
appellant. We would, therefore, allow the appeals and dismiss the writ
petitions filed by the respondents. In the circumstances, however, we restrain
the appellant from recovering any amount from any of the respondents, which has
been paid to them in terms of the impugned judgments of the High Court. There
shall be no order as to costs.
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