Himachal Pradesh High Court
Between:- R vs State Of Orissa & Others on 26 October, 2021
Bench: Mohammad Rafiq, Sabina
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
AND
HON'BLE MS. JUSTICE SABINA
CIVIL WRIT PETITION Nos.2078 of 2018 & 1586 of 2019.
1. CIVIL WRIT PETITION No.2078 of 2018.
Between:- r
KULDEEP KUMAR SON OF SH. RAJ KUMAR,
RESIDENT OF VILLAGE BAHAR JASWN,
P.O. THATHAL, TEHSIL AMB, DISTRICT UNA.
......PETITIONER
(BY MR. DIVYA RAJ SINGH, ADVOCATE)
AND
1. STATE OF HP THROUGH ITS
SECRETARY (MPP & POWER),
TO THE GOVT. OF H.P., SHIMLA - 171 002.
2. H.P. STATE ELECTRICITY BOARD LTD.,
(HPSEBL), SHIMLA THROUGH ITS
EXECUTIVE DIRECTOR (PERSONAL)
HPSEBL, KUMAR HOUSE, SHIMLA.
3. CHIEF ENGINEER NORTH, HPSEBL,
DHARAMSHALA, H.P.
4. THE S.P. UNA, DISTT. UNA, HP.
.... RESPONDENTS.
(MR. ASHOK SHARMA, ADVOCATE GENERAL
WITH MS. RITTA GOSWAMI, MR.VIKAS RATHORE,
ADDITIONAL ADVOCATES GENERAL &
MS. SEEMA SHARMA, DEPUTY ADVOCATE
GENERAL FOR R-1 & R-4.
MR. VIKRANT THAKUR, ADVOCATE FOR R-2 & R-3).
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2. CIVIL WRIT PETITION No.1586 of 2019.
Between:-
.
1. SOHAN SINGH AGE 65 YEARS
S/O LATE SH. GURMUKH SINGH,
R/O VILLAGE NIHALGARH, TEHSIL
PAONTA SAHIB, DISTRICT SIRMOUR, H.P.
2. NARENDER SINGH AGE 51 YEARS,
S/O SH.PAKHAR SINGH,
R/O VILLAGE NIHALGARH, TEHSIL
PAONTA SAHIB, DISTRICT SIRMOUR, H.P.
3. TAPINDER SINGH AGE 49 YEARS
S/O SH. PAKHAR SINGH,
R/O VILLAGE NIHALGARH, TEHSIL
PAONTA SAHIB, DISTRICT SIRMOUR, H.P.
4. AMRIK SINGH AGE 68 YEARS,
S/O SH. DIDAR SINGH,
R/O VILLAGE NIHALGARH, TEHSIL
PAONTA SAHIB, DISTRICT SIRMOUR, H.P.
5. BALBIR KAUR AGE 65 YEARS,
WD/O LATE SH. DARSHAN SINGH,
R/O VILLAGE NIHALGARH, TEHSIL
PAONTA SAHIB, DISTRICT SIRMOUR, H.P.
6. SATPAL KAUR AGE 47 YERS,
WD/O LATE SH. PREETPAL SINGH,
R/O VILLAGE NIHALGARH, TEHSIL
PAONTA SAHIB, DISTRICT SIRMOUR, H.P.
7. BALDEV SINGH AGE 68 YEARS,
S/O SH. KARAM SINGH,
R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
8. SURJEET SINGH AGE 68 YEARS
S/O LATE SH. MEHTAB SINGH,
R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
9. DAVINDER SINGH AGE 58 YEARS,
S/O LATE SH. MEHTAB SINGH ,
R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
10. GURMEET SINGH AGE 61 YEARS,
S/O SH. GURDEV SINGH,
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R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
11. JEEVAN SINGH AGE 73 YEARS,
.
S/O SH. JOOTA SINGH,
R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
12. SADA MOHAMMAD AGE 81 YEARS,
S/O LATE SH. MEHRU,
R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
13. RUKMANI SAINI AGE 68 YEARS,
W/O SH. BALBIR SINGH SAINI,
R/O VILLAGE AMARKOT, P.O. NIHALGARH,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
......PETITIONERS
(BY MR. DIVYA RAJ SINGH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH ITS
SECRETARY (MPP & POWER),
TO THE GOVT. OF H.P., SHIMLA - 171 002.
2. HIMACHAL PRADESH STATE ELECTRICITY
BOARD LTD. (HPSEB, SHIMLA THROUGH ITS
EXECUTIVE DIRECTOR (PERSONNEL)
HPSEB, KUMAR HOUSE, SHIMLA.
3. CHIEF ENGINEER NORTH, HPSEB,
PAONTA SAHIB, DISTRICT SIRMAUR, H.P.
.... RESPONDENTS.
(MR. ASHOK SHARMA, ADVOCATE GENERAL
WITH MS. RITTA GOSWAMI, MR.VIKAS RATHORE,
ADDITIONAL ADVOCATES GENERAL &
MS. SEEMA SHARMA, DEPUTY ADVOCATE
GENERAL FOR R-1.
MR. VIKRANT THAKUR, ADVOCATE FOR R-2 & R-3).
Reserved on : 20th October, 2021.
Decided on : 26th October, 2021.
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This petition coming on for admission this day, Hon'ble Ms. Justice
Sabina, passed the following:
.
ORDER
Vide this order above-mentioned, two petitions would be
disposed of as the point in controversy involved in both the petitions is the
same.
FACTS RELATING TO CWP No.2078 of 2018:
2.
The case of the petitioner, in brief, was that he was an
agriculturist by profession and was cultivating 85 Kanals of land, after
taking the same on rent/lease from Raj Kumar, Ashok Kumar, Manohar Lal,
Ashwani Kumar, sons of Ram Nath, residents of Village Behar Jaswan, P.O.
Thathal, Tehsil Amb, District Una and Jagdish Ram, Gurdyal Singh, Des
Raj, Gurbachan Singh sons of Jaisi Ram resident of VPO Chak Sarai, Tehsil
Amb, District Una. In April, 2018, the crop in the fields was ready for
harvesting, but the same got burnt on account of electrical sparking from
the high tension wires and an electric pole/tower, which had been
installed/erected in the aforesaid land. The crop, which had been
damaged/burnt, was worth more than rupees five lacs. Besides the crop,
plastic pipes etc., laid for irrigation of the land were also completely burnt
in the fire. Hence the petitioner filed the petition seeking compensation to
the tune of rupees eight lacs, on account of damages along with interest @
10% per annum.
3. Notice of the petition was issued to the respondents.
4. The respondents in their reply have averred that there was no
.
negligence on their part. In fact, the petitioner had reported that the
incident had occurred at 1. 00 p.m. on 20 th April, 2018, whereas, as per trip
report dated 20th April, 2018, there was no electricity supply on 11 KV
Panjoa Feeder w.e.f. 12.55 p.m. to 1.45 p.m., due to storm.
THE FACTS RELATING TO CWP No. 1586 of 2019.
5. The case of the petitioners, in brief, is that they were
agriculturists by occupation and were cultivating their joint agricultural
land measuring 56 bighas. In April, 2019, their crop was ready for
harvesting, but the same got burnt as a result of electrical sparking from
high tension wires, which were passing over the land of the petitioners and
from an electrical pole which had been installed/erected in the aforesaid
land. Hence, the petitioners claimed that they should be paid damages as
per loss suffered by them along with interest @12% per annum.
6. In reply to the writ petition, it was averred by the respondents
that the crop of the petitioners had not been burnt on account of electrical
sparking from high tension wires. In fact, there was no high tension line
passing over the land of the petitioners, rather there was only LT line
having capacity of 440 voltage and as such there was no question of
sparking. It was also averred that the issue in the present case involved
disputed questions of fact and petitioners could avail their remedy by filing
a Civil Suit in the Civil Court.
.
7. Learned counsel for the petitioners has submitted that the writ
petitions filed by the petitioners are maintainable and this Court could grant
compensation without relegating the parties to approach the Civil Court. In
fact, the crop of the petitioners got burnt on account of sparking from the
wires connecting the transformer. The fact that the crop of the petitioner
had been burnt on account of sparking in the transformer had been duly
reported to the Police and the entry in this regard was made, but no action
has been taken by the Police thereafter.
8. Learned counsel for the petitioners has placed reliance on the
judgment of Hon'ble Supreme Court in Nilabati Behera alias Lalita
Behera versus State of Orissa & others, AIR 1993 Supreme Court 1960,
wherein it was held that the compensation in a writ petition could be
awarded where there was violation of fundamental right to life.
9. Learned counsel for the petitioners has also placed reliance on
the judgment rendered by a Division Bench of this Court in Court on its
own motion versus State of Himachal Pradesh & Others, Latest HLJ
2016 (HP) 957, wherein it was held that compensation could be granted to
a person, who had become victim of either the negligence or carelessness of
State including college, schools and other similar statutory bodies. In the
said case death had occurred on account of sudden discharge of water from
the barrage/reservoir and there was breach of duty of care by the defendant
to measure upto the standard set up by law.
.
10. Learned counsel for the petitioner has also placed reliance on
the judgment of Hon'ble Supreme Court in Uttar Pradesh Power
Transmission Corporation Limited and Another versus CG Power and
Industrial Solutions Limited and Another, (2021) 6 SCC 15, wherein it
was held that availability of an alternative remedy did not prohibit the High
observed as under:
r to
Court from entertaining a writ petition in an appropriate case and it was
"67. it is well settled that availability of an alternative
remedy does not prohibit the High Court from
entertaining a writ petition in an appropriate case. The
High Court may entertain a writ petition, notwithstanding
the availability of an alternative remedy, particularly: (i)
where the writ petition seeks enforcement of a
fundamental right; (ii) where there is failure of principles
of natural justice or (iii) where the impugned orders or
proceedings are wholly without jurisdiction or (iv) the
vires of an Act is under challenge. ..."
11. Learned counsel for the respondents, on the other hand, has
opposed the petitions and has submitted that the disputed questions of fact
are involved in the present case and the same can only be established after
the parties lead evidence in support of their respective pleas. Hence, the
writ petitions were liable to be dismissed.
12. In the present cases the petitioners have filed the writ petitions
claiming compensation on the ground that their standing crop, which was
.
ready for harvesting, had been damaged on account of sparking from the
transformer. However, respondents in their reply have denied the fact that
any fire had been caused on account of sparking of the wires from the
transformer. Rather in CWP No. 2078 of 2018, it has been averred by the
respondents that at the alleged time of incident, there was no electricity
supply of 11 KV Panjoa Feeder. So far as the reply to CWP No.1586 of
2019 is concerned, it has been averred that no High Tension Wires were
crossing over the land of the petitioners, which could result in sparking.
13. The petitioners would have to lead evidence to show that they
had sown crop in their respective fields and the same was ripe for
harvesting. Further the petitioners would also be required to lead evidence
to prove that the standing crop had, in fact, got burnt, on account of
sparking of wires. The evidence led by the petitioners can be rebutted by
the respondent by leading evidence in support of its pleas. Thus, the
present writ petitions involve disputed questions of fact, which can be
decided after both the parties lead evidence in support of their respective
pleas.
14. So far as the judgment relied upon by learned counsel for the
petitioners in Nilabati Behera's case supra is concerned, the same fails to
advance the case of the petitioners as in the said case an inquiry has been
conducted by the District Judge, wherein it was concluded that it was a case
of custodial death and the deceased has died as a result of injuries inflicted
.
to him voluntarily, while he was in Police custody. Therefore, it was held
that the petitioner was entitled to receive compensation on account of the
custodial death of her son.
15. The judgment relied upon by learned counsel for the
petitioners in Court on its own motion's supra also fails to advance the
case of the petitioners as in the said case an inquiry has been conducted
wherein it had been prima facie concluded that all the authorities i.e. Board,
college and State, had prima facie contributed to the cause of incident. The
place of incident was unknown to the students, who were on tour/excursion.
Had the authorities put boards/hoardings/sirens etc., and taken precautions
at the relevant time, while discharging water from barrage/reservoir, the
incident would have been avoided and precious lives of all the students,
who were at the budding age would have been saved.
16. The judgment relied upon by the learned counsel for the
petitioner in Uttar Pradesh Power Transmission Corporation Limited
and Another's case supra also fails to advance the case of the petitioners as
in the said case the Corporation was forcibly extracting building Cess from
respondent-industry solely on the basis of CAG Report and the said action
was held to be in excess of power conferred on the corporation by law or in
terms of the contract. It was held that the Corporation had no power and
authority and/or jurisdiction to realise labour cess under Cess Act, in
.
respect of contract by withholding dues in respect of other contracts and/or
invoking a performance guarantee.
17. It is settled preposition of law that disputed questions of fact
cannot be gone into by this Court, while exercising writ jurisdiction under
Article 226 of the Constitution of India. One of the grounds against the
exercise of the discretion in such case would be that the right claimed by
the petitioners is not capable of being established in the summary
proceedings under Article 226 of the Constitution of India because it
requires a detailed examination of evidence as may be had in a suit. The
object of Article 226 of the Constitution of India is the enforcement and not
establishment of right or title. A petition under Article 226 of the
Constitution of India, cannot be converted into a suit. In a case of highly
disputed questions of fact for decision, civil suit would be the appropriate
action. In general, therefore, a disputed question of fact is not investigated
in a proceeding under Article 226 of the Constitution of India, particularly,
where an alternative remedy is available. Since the present writ petitions
involve disputed question of facts, therefore, the same cannot be entertained
by this Court. Accordingly, both petitions are dismissed. However, the
petitioners would be at liberty to avail other appropriate remedy available
to them, as per Law. Pending application(s), if any, shall also stand
disposed of.
.
(Mohammad Rafiq)
Chief Justice
(Sabina)
Judge
October 26, 2021(ps)
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