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PETITIONER: TAMIL NADU ELECTRICITY BOARD

       Vs.

RESPONDENT: SUMATHI AND OTHERS

DATE OF JUDGMENT:       27/04/2000

BENCH: D.P.Wadhwa, S.S.M.Quadri

JUDGMENT:

     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,

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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.

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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

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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

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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

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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

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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.