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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.