Sayad Ali vs The Principal Secretary/Commissioner ...
2024 Latest Caselaw 8325 Gua

Gauhati High Court

Sayad Ali vs The Principal Secretary/Commissioner ... on 13 November, 2024

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/16

GAHC010139102019




                                                             undefined

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/4201/2019

         SAYAD ALI
         SON OF IMAN ALI, RESIDENT OF VILLAGE- UTTAR KHATOBAL, P.S.
         RUPAHI, SUB-DIVN.- NAGAON, DIST.- NAGAON (ASSAM), PIN- 782125.



         VERSUS

         THE PRINCIPAL SECRETARY/COMMISSIONER AND SECRETARY TO THE
         GOVT. OF ASSAM AND 6 ORS.
         DEPARTMENT OF POWER (ELECTRIC), DISPUR, GUWAHATI- 781006.

         2:ASSAM POWER DISTRIBUTION COMPANY LIMITED (APDCL)
          REPRESENTED BY CHAIRMAN
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI- 781001.

         3:THE MANAGING DIRECTOR

          ASSAM POWER DISTRIBUTION COMPANY LIMITED (APDCL)
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI- 781001.

         4:THE CHIEF GENERAL MANAGAR
          (HRA)
         ASSAM POWER DISTRIBUTION COMPANY LIMITED (APDCL)
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI- 781001.

         5:THE GENERAL MANAGER
          NAGAON ZONE
                                                      Page No.# 2/16

ASSAM POWER DISTRIBUTION COMPANY LIMITED (APDCL)
CAR
NAGAON- 782001.

6:THE CHIEF EXECUTIVE OFFICER
 NAGAON ELECTRICAL SERVICE
ASSAM POWER DISTRIBUTION COMPANY LIMITED (APDCL)
 CAR
 NAGAON- 782001.

7:THE CHIEF ELECTRICAL INSPECTOR/ ELECTRICAL INSPECTORS
ASSAM INSPECTORATE OF ELECTRICITY
WEST END BLOCK
 1ST FLOOR
 HOUSEFED COMPLEX
 DISPUR
 GUWAHATI. PIN- 781006

Linked Case : WP(C)/4221/2019

SHAJIDA KHATUN
W/O. MAINUL HAWUE @ MOINUL HAQUE
R/O. VILL. UTTAR KHATOBAL
P.S. RUPAHI
SUB-DIVN. NAGAON
DIST. NOWGAON
ASSAM
PIN-782125.


VERSUS

THE PRINCIPAL SECRETARY/COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM AND 6 ORS.
DEPTT. OF POWER (ELECTIC)
DISPUR
GUWAHATI-781006.

2:ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)

REP. BY CHAIRMAN
BIJULIEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001.

3:THE MANAGING DIRECTOR
                                                      Page No.# 3/16

ASSAM POWER DISTRIBUTION CO. LTD. (APDCL)
BIJULIEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001.

4:THE CHIEF GENERAL MANAGER

(HRA)
 ASSAM POWER DISTRIBUTION CO. LTD. (APDCL)
 BIJULIEE BHAWAN
 PALTAN BAZAR
 GUWAHATI-781001.

5:THE GENERAL MANAGER

NAGAON ZONE
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
CAR
NAGAON-782001.

6:THE CHIEF EXECUTIVE OFFICER

NAGAON ELECTRICAL SERVICE
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
CAR
NAGAON-782001.

7:THE CHIEF ELECTRICAL INSPECTOR/ ELECTRICAL INSPECTORS

ASSAM INSPECTORATE OF ELECTRICITY
WEST END BLOCK
1ST FLOOR
HOUSEFED COMPLEX
DISTPUR
GUWAHATI-781006.

Linked Case : WP(C)/4395/2019

FATEMA HEKIM AND ANR.
M/O- LT ANISUR RAHMAN @ ANICHUR RAHMAN
 R/O- VILL- DAKSHIN KHATOBAL
 P.S. RUPAHI
 SUB-DIVN.- NAGAON
 DIST- NAGAON (ASSAM)
 PIN- 782125

2: SALMA BEGUM
W/O- LT. ANISUR RAHMAN @ ANICHUR RAHMAN
                                                     Page No.# 4/16

R/O- VILL- DAKSHIN KHATOBAL
P.S. RUPAHI
SUB-DIVISION- NAGAON
DIST- NAGAON (ASSAM)
PIN- 782125
VERSUS

THE PRINCIPAL SECRETARY/COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM AND 6 ORS.
DEPTT. OF POWER (ELECTRIC) DISPUR
GHY-6

2:ASSAM POWER DISTRIBUTION COMPANY LTD.. (APDCL)
REP. BY CHAIRMAN
 BIJULEE BHAWAN
 PALTAN BAZAR
 GHY-1

3:THE MANAGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
BIJULEE BHAWAN
PALTAN BAZAR
GHY-1

 4:THE CHIEF GENERAL MANAGER
(HRA)
 ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
 BIJULEE BHAWAN
 PALTAN BAZAR
 GHY-1

5:THE GENERAL MANAGER
NAGAON ZONE
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
CAR
NAGAON- 782001

6:THE CHIEF EXECUTIVE OFFICER
NAGAON ELECTRICAL SERVICE
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
CAR
NAGAON- 782001

7:THE CHIEF ELECTRICAL INSPECTOR/ELECTRICAL INSPECTORS
ASSAM INSPECTORATE OF ELECTRICITY
WEST END BLOCK
1ST FLOOR
HOUSEFED COMPLEX
                                                    Page No.# 5/16

DISPUR
GHY-6

Linked Case : WP(C)/4280/2019

RUBIA KHATUN
W/O LT. HABIBUR RAHMAN
R/O VILL. MAHERIPAR
P.S. JURIA
SUB-DIVN. NAGAON
DIST. NAWGAON (ASSAM)
PIN-782124


VERSUS

THE PRINCIPAL SECRETARY/COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM AND 6 ORS.
DEPTT. OF POWER (ELECTRIC)
DISPUR
GUWAHATI-781006

2:ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
REP. BY CHAIRMAN
 BIJULEE BHAWAN
 PALTAN BAZAR
 GUWAHATI-781001

3:THE MANGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001

4:THE CHIEF GENERAL MANAGER (HRA)
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001

5:THE GENERAL MANAGER
NAGAON ZONE
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
CAR
NAGAON-782001

6:THE CHIEF EXECUTIVE OFFICER
NAGAON ELECTRICAL SERVICE
                                                      Page No.# 6/16

ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
CAR
NAGAON-782001

7:THE CHIEF ELECTRICAL INSPECTOR/ ELECTRICAL INSPECTORS
ASSAM INSPECTORATE OF ELECTRICITY
WEST END BLOCK 1ST FLOOR
HOUSEFED COMPLEX
DISPUR
GUWAHATI
PIN-781006

Linked Case : WP(C)/4414/2019

JANNATUL FERDUS AND ANR.
W/O LT. RAFIKUL ISLAM @ RAFIQUL ISLAM
 R/O VILL. UTTAR KHATOBAL
 P.S. RUPAHIHAT
 SUB-DIVN. -NAGAON
 DIST. NAGAON
 ASSAM
 PIN-782125

2: MAYJAN NESSA
MOTHER OF LT. RAFIKUL ISLAM @ RAFIQUL ISLAM
 R/O VILL. UTTAR KHATOBAL
 P.S. RUPAHI
 SUB DIVN. NAGAON
 DIST. NAGAON
ASSAM
 PIN-782124
VERSUS

THE PRINCIPAL SECRETARY/COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM AND 6 ORS.
DEPTT. OF POWER (ELECTRIC)
DISPUR
GUWAHATI-781006

2:ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
REP. BY CHAIRMAN
 BIJULEE BHAWAN
 PALTAN BAZAR
 GUWAHATI-781001

3:THE MANAGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
BIJULEE BHAWAN
                                                                Page No.# 7/16

           PALTAN BAZAR
           GUWAHATI-781001

          4:THE CHIEF GENERAL MANAGER (HRA)
          ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI-781001

          5:THE GENERAL MANAGER
          NAGON ZONE
          ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
          CAR
          NAGAON-782001

          6:THE CHIEF EXECUTIVE OFFICER
          NAGAON ELECTRICAL SERVICE
          ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
          CAR
          NAGAON-782001

          7:THE CHIEF ELECTRICAL INSPECTOR/ ELECTRICAL INSPECTOR
          ASSAM INSPECTORATE OF ELECTRICITY
          WEST END BLOCK
          1ST FLOOR
          HOUSEFED COMPLEX
          DISPUR
          GUWAHATI
          PIN-781006

Advocate for the Petitioners   : Mr. G. Uddin, Advocate
Advocate for the Respondents : Mr. K. P. Pathak, SC, APDCL

                                   BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                        Date of Hearing       : 13.11.2024

                        Date of Judgment      : 13.11.2024
                       JUDGMENT AND ORDER (ORAL)

Heard Mr. G. Uddin, the learned counsel appearing on behalf of the petitioners. Mr. K. P. Pathak, the learned Standing Page No.# 8/16

Counsel appears on behalf of the APDCL and Ms. S. Baruah, the learned counsel appears on behalf of the State of Assam.

2. The instant batch of writ petitions have been filed challenging the Office Memorandum dated 25.09.2017 whereby the Assam Power Distribution Corporation Limited (for short, 'APDCL') had fixed a uniform rate of Rs.2,50,000/- as compensation to be payable to the next of the kin of the victims who died due to an electrical accident irrespective of the age of the victim. The petitioners herein who have admittedly accepted the amount of Rs.2,50,000/- have sought for enhancement of the said compensation amount to Rs.50 lakhs each against the victims who expired.

3. The facts leading to the filing of the instant writ petitions are that on 21.09.2018, six persons expired due to electrocution. The allegation is that the lineman appointed by the APDCL authorities had wrongly informed these victims that he had cut the electrical line and asked them to go ahead with the fishing. In that regard, an FIR was filed on 21.09.2018 and a case being Rupahihat P.S. Case No.596/2018 was registered under Sections 338/304 of the Indian Penal Code. It is further seen from the materials on record that in terms of the Office Memorandum dated 25.09.2017, the APDCL Authorities had paid an amount of Rs.2,50,000/- to each of the petitioners who are the legal Page No.# 9/16

representatives of the six victims who expired. The claim of the petitioners is that the loss which has been felt on account of the death of the victims upon the petitioners is far more than the compensation so awarded by the APDCL Authorities. It is under such circumstances, the Office Memorandum dated 25.09.2017 has been put to challenge and further has sought for appropriate writ, direction and order for enhancement of the compensation to the tune of Rs.50 lakhs each.

4. Pursuant to the filing of the writ petitions, affidavits have been filed by the APDCL Authorities wherein it has been mentioned that the victims were negligent in venturing into the pond for fishing when there was a wire lying/floating over the pond. It was further mentioned that the petitioners in the batch of writ petitions have duly accepted the amount of Rs.2,50,000/- without any protest/complaint, and as such, the petitioners are now estopped from raising any further demand. In addition to that, it has also been mentioned that the Office Memorandum dated 25.09.2017 was issued by taking into consideration the various factors. Further to that, it has been mentioned that there is no material which can suggest that the petitioners herein would be entitled to higher compensation in as much as there is nothing to show as regards to the professional income of the victims on the basis of which any additional compensation can be Page No.# 10/16

determined,

5. In the backdrop of the above, let this Court now take into consideration the submissions made by the learned counsels appearing on behalf of the parties.

6. Mr. G. Uddin, the learned counsel appearing on behalf of the petitioners submits that the amount of Rs.2,50,000/- each which has been awarded to the petitioners on account of the death of the victims was totally disproportionate to the loss sustained by the petitioners. He further submitted that there was gross negligence on the part of the respondent authorities in as much as had the lineman not informed the victims that the electrical line was cut and they could go for fishing, they would not have ventured to the ponds. He therefore submitted that this is a case where a Constitutional tort has been committed, and as such, the petitioners are entitled to a higher compensation as has been claimed in the writ petitions. In that regard the learned counsel for the petitioners referred to the judgments of the Supreme Court in the case of Raman vs. Uttar Haryana Bijli Vitran Nigam Ltd. & Others, reported in (2014) 15 SCC 1 as well as Nilabati

Behera vs State of Orissa and Others , reported in (1993) 2 SCC 746 wherein in exercise of powers under Article 226 of the

Constitution, the Courts have granted compensation on account of Constitutional torts.

Page No.# 11/16

7. Per contra, Mr. K. P. Pathak, the learned Standing Counsel appearing on behalf of the APDCL submitted that the Office Memorandum dated 25.09.2017 was made as an ex-gratia to be paid to the next of the kin of those victims who expired due to an electrical accident irrespective of the age of the victims. He submitted that the petitioners herein have duly accepted the amount of Rs.2,50,000/- without any protest, and as such, are estopped now to claim any further amount by filing of the writ petitions. In addition to that, the learned Standing Counsel for the APDCL further submitted that the claim made for an enhancement of the compensation has to be based upon materials and evidence which have to be lead. Nothing to that effect has been brought before this Court which would suggest that the petitioners herein would be entitled to any further compensation other than what have been already paid on the basis of the Office Memorandum dated 25.09.2017. He further submitted that as to whether there was any fault on the part of the APDCL are questions of facts which cannot be adjudicated in the instant proceedings. Replying to the judgments placed reliance by the learned counsel for the petitioners, Mr. K. P. Pathak, the learned Standing Counsel for the APDCL submitted that the said judgments could not be applied in the facts of the instant case. Firstly, for the reason that those judgments do not Page No.# 12/16

deal with cases where the next of the kin of the victims have already received compensation without protest. In addition to that, the learned Standing Counsel for the APDCL further submitted that there is no material on record which would show that there has been any negligence on the part of the APDCL Authorities which was otherwise the case in the judgments so referred to by the learned counsel appearing on behalf of the petitioners.

8. Upon hearing the learned counsels for the parties, this Court put a specific query upon Mr. K. P. Pathak, the learned Standing Counsel for the APDCL as to whether in view of the Office Memorandum dated 25.09.2017, the petitioners are precluded from claiming further compensation, if they are otherwise entitled as per law. The learned Standing Counsel for the APDCL submitted that the Office Memorandum dated 25.09.2017 is a form of an immediate compensation so paid to redress the next of the kin of the victims, and as such, the next of the kin of the victims are not precluded from claiming further compensation if it is otherwise permissible under law. The learned Standing Counsel for the APDCL further submitted that pursuant to the Office Memorandum dated 25.09.2017, the Assam Electricity Regulatory Commission (Compensation to Victims of Electrical Accidents) Regulations, 2019 (for short, 'Regulation, 2019') has Page No.# 13/16

also framed compensation and submits that in that Regulation and more particularly Regulation No.9, it is categorically mentioned that the compensation which is to be paid under Regulation 5 of the Regulation, 2019 shall not preclude the next of the kin of the victims to claim further damages if they are otherwise entitled as per law.

9. This Court having perused the materials on record and having heard the learned counsels for the parties has given an anxious consideration to the subject matter of the dispute involved in the instant proceedings. The Office Memorandum dated 25.09.2017 as stated by the learned Standing Counsel for the APDCL is only an ex-gratia payment when the payment is to be made to the next of the kin of the victim who died due to an electrical accident and in that regard a compensation of Rs.2,50,000/- is to be paid irrespective of the age of the victim. The same being an ex-gratia payment, cannot preclude the next of the kin of the victims who die in an electrical accident to claim further compensation subject to the evidence led that the next of the kin of the victims are entitled to a much higher compensation.

10. Taking into account that the Office Memorandum dated 25.09.2017 only relates to an ex-gratia payment and the same does not preclude the next of the kin of the victims to claim Page No.# 14/16

further compensation, the question of setting aside the Office Memorandum dated 25.09.2017 does not arise.

11. The next question which arises before this Court is as to whether the petitioners in the instant proceedings can claim enhanced compensation as sought for in the writ petitions. It is the opinion of this Court that the petitioners have to prove by way of evidence that there has been a negligence on the part of the APDCL Authorities. In addition to that, the next of the kin of the victims have also to prove by way of evidence that the compensation so awarded on the basis of the Office Memorandum dated 25.09.2017 is not sufficient, and therefore, they are entitled to higher compensation. However, it is very pertinent to mention that to adjudge the question of negligence as well as the question of the inadequacy of the compensation cannot be decided in the instant proceedings under Article 226 of the Constitution as it would require evidence to be led in so far as the negligence on the part of the APDCL as well as also as regards the inadequacy of the compensation. The materials before this Court as has been placed by the petitioners are insufficient to adjudge such aspects. Moreso, the materials on record do not show that there is any admission on the part of the APDCL accepting their negligence.

12. Accordingly, it is the opinion of this Court that in the instant Page No.# 15/16

cases, the question of granting any enhanced compensation to the petitioners do not arise. However, this Court is of the opinion that the petitioners herein would be at liberty to claim compensation by filing suits before the competent Court of Civil jurisdiction claiming higher compensation.

13. Accordingly, the instant batch of writ petitions are disposed of with the following observations and directions:-

(i) The Office Memorandum dated 25.09.2017 does not call for any interference.

(ii) The petitioners herein cannot be granted any compensation in as much as the question of negligence as well as inadequacy of compensation can only be decided by way of a proceedings wherein factual determination on the basis of evidence can be made.

(iii) The petitioners herein are given the liberty to approach the appropriate Civil Court claiming compensation from the APDCL Authorities. The receipt of the amount of Rs.2,50,000/- as ex-gratia would not prejudice the petitioners in such proceedings.

(iv) The observations made herein above shall not affect the rights of the petitioners to claim compensation from the APDCL Authorities.

Page No.# 16/16

(v) The period from the date of filing of the instant writ petitions w.e.f. 17.06.2019 till date be excluded while computing the period of limitation.

JUDGE

Comparing Assistant