Jammu & Kashmir High Court
Mohan Singh vs Union Of India And Others on 9 August, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 1089/2011
IA No. 1792/2013
Reserved on : 13.04.2023
Pronounced on : 09.08.2023
Mohan Singh ....Petitioner(s)/Appellant(s)
Through :- Mr. Ashok Sharma, Advocate
V/s
Union of India and others ....Respondent(s)
Through :- Mr. Eishaan Dadhichi, GA for R-1 to 3
Mr. Haroon Rashid Qureshi, Advocate for
R-4
Coram:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. This writ petition has been filed by the petitioner under Article 226/227 of the Constitution of India seeking following relief:-
"Writ of Mandamus directing respondents to pay compensation to petitioner who sustained serious and grievous injuries because of electric shock caused to the petitioner when he was effecting repairs to the electric installations in the residential quarters at Nowshera belonging to the respondents No. 1 to 3 at the instance of respondent No. 4."
2. The grievance of the petitioner is that on 14th of April, 2011 he was engaged by the respondent No. 4, who is a contractor working for official respondents, to set right the electric fittings in the residential quarters belonging to the official respondent No. 3 at Nowshera and was told that he 2OWP No. 1089/2011 would be paid for the said work. On that day in the evening he was accompanied by Ajay Kumar to the residential quarters of the official respondents at Nowshera and the Chowkidar namely Kumar S/o Chander Lal S/o Danga Nowshera took the petitioner to the spot where the defect in the electric power had taken place in the transformer. He was told that the electric power was shut down. While he was undertaking the necessary repairs, he got an electric shock because the power was on, as a result of which he got hung with the wires. Chowkidar hit the wires and the petitioner fell down. He suffered serious injuries and was taken to the Government Hospital, Nowshera, from where he was taken to Medical College, Jammu. He submitted that he suffered serious injuries because of the electric shock and his right arm and four fingers of left hand were amputated. According to the petitioner the incident was reported to the Police and case under Section 336 and 337 RPC was registered, which is still under investigation. The petitioner claims that the burn injuries suffered by him was because of the negligence of the respondents. The negligence, according to him, is that when he started repairs, he was told that they have already shut down the power, but the power was on, that is why while starting the repairs he got electric shock and suffered injuries.
3. The contentions of the petitioner have been refuted by the respondents in their reply. The respondents No. 1 to 3 in their reply have contended that as per the statement of Mali the petitioner alone visited Doordarshan Hostel on 14th April, 2011 saying that he is Electrician by professionand sent by M/S EVA Electrical, Nowshera to repair the electric transformer. The Mali stopped him but he by force went inside the hostel 3OWP No. 1089/2011 room. He checked power supply of LT Panel and later aimed towards HT Transformer. He was stopped by the Mali to enter the HT Transformer enclosure but he ignored him and swiftly climbed on HT Transfer without taking any safety precaution and when the petitioner received shock and hung in wires the Mali hit wires with a wooden stick. It is further contended that only authorized staff of electricity department can work on HT line and shut down is given by the electricity department to their authorized staff only for repair of HT line, therefore, no misleading information regarding shut down was given to petitioner by any official of Doordarshan/Mali.They also contend that the office has contacted M/S EVA Electrical Nowshera to repair domestic light inside the room, but the petitioner had gone to the HT Transformer, who was not supposed to attend it. The respondent No. 4, namely, Sunil Kumar in his written objections submits that he had never engaged the petitioner for the said work. He also stated that neither he is a Contractor nor a Proprietor as has been alleged. He is working as a daily wager in PHE Mechanical Department since 11.09.2007. He further submits that disputed question of facts arise in this petition, therefore, the same is not maintainable. The respondent No. 5 in his objections stated that the matter pertains to Doordarshan Office Nowshera and the Contractor Ajay Kumar, therefore, the petition against the respondent No. 5 is not maintainable. The PDD department has no concern with the internal faults. It is also submitted that as per the record there was no requisition for shut down.
4. It is true that the petitioner suffered injuries due to electric shock. Liability to pay the compensation would be on the proof of negligence and it would be payable from the person who had been negligent. The petitioner 4OWP No. 1089/2011 claims that he was engaged by the Contractor-respondent No. 4 to conduct repairs for removing the electric fault in the residential quarters of respondent No. 3. He submits that when he went to carry the repairs he was told that the electric power was shut down and started repairs and while he was conducting the repairs he got electric shock and suffered injuries which resulted in amputation of his right arm and four fingers of left hand. PDD department has been made one of the party, which has submitted in its reply that there was no requisition of shut down of the power. Sofaras PDD department is concerned their submissions are well founded because the incident cannot be attributed to the Power Development Department. The petitioner has submitted that he was engaged by respondent No. 4, but the respondent No. 4 in his detailed reply submitted that neither he is a Contractor nor has engaged the petitioner for carrying out any repairs. Perusal of the reply filed by the respondents would show that the disputed question of fact for determination in this case is that whether the petitioner was engaged for carrying repairs and whether it was because of the negligence of the respondents that he got electric shock.
5. Having gone through the writ petition and the reply filed, certainly there are disputed questions of facts which have arisen in this case. The disputed questions of facts are to be determined on the basis of evidence and thus, this petition under Article 226 of the Constitution of India, asking them to pay compensation, would not lie. As far as the power of this Court to entertain a writ petition on disputed questions is concerned, I may refer to the decisions of the Supreme Court in the cases of Arya Vysya Sabha and others v. The Commissioner of Hindu Charitable and Religious 5OWP No. 1089/2011 Institutions & Endowments, Hyderabad and others,(1976) 1 SCC 292, Rourkela Shramik Sangh v. Steel Authority of India Ltd., and another (2003) 4 SCC 317; and Himmat Singh v. State of Haryana and others (2006) 9 OWP no.799/2004 SCC 256. Therefore, when disputed questions are involved, this Court will not entertain the writ petition and adjudicate upon such dispute, as it is for the parties to approach the civil Court for deciding the issue.
6. The crucial aspects of the matter as emanate in the present case, cannot be glossed over. On facts as well, this Court cannot disregard the core jurisdictional issue that the matter on hand involves complex factual aspects, which cannot be adjudicated in exercise of writ jurisdiction. It is pertinent to mention here that a Constitution Bench of the Supreme Court in ThansinghNathmal and others v. Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419, while dealing with the scope of jurisdiction of the High Court under Article 226 of the Constitution of India, has said that the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except territorial restrictions which are expressly provided in the Articles, but exercise of jurisdiction is discretionary and it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to writ jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the Court will not entertain a petition for a writ under Article 226, where petitioner has an alternative remedy, which without 6OWP No. 1089/2011 being unduly onerous provides an equally efficacious remedy. Again, the High Court does not generally enter upon a determination of questions, which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed.
7. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party, against whom relief is claimed, is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in writ jurisdiction, or for analogous reasons. [See: Smt. Gunwant Kaur and others v. Municipal Committee, Bhatinda and others (1969) 3 SCC 769].
8. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated.
9. It needs to be emphasized that a writ petition under Article 226 is essentially different from a suit and it would be incorrect to assimilate and 7OWP No. 1089/2011 incorporate the procedure of a suit into the proceedings of a petition under Article 226. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition. [Vide: Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others].
10. The Supreme Court in Punjab National Bank v. Atmanand Singh 2020 SCC Online SC 433, while setting-aside the judgments of both the learned Division Bench and Single Bench of the High Court of Judicature of Patna, has made it clear that when a petition raises questions of fact of complex nature, which may for their determination require oral and documentary evidence to be produced and proved by concerned party, the High Court should be loath in entertaining such writ petitions and instead must relegate the parties to remedy of a civil suit and had it been a case where material facts referred to in writ petition are admitted facts or indisputable facts, the High Court may be justified in examining claim of writ petitioner on its own merits in accordance with law. However, the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under general law, civil or criminal are available. Writ jurisdiction is not intended to replace ordinary remedies by way of a civil suit inasmuch as jurisdiction under Article 226 being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. In the present case, respondents seriously dispute the facts and submissions made by petitioner in the instant writ petition. In that 8OWP No. 1089/2011 situation, no factual finding could be recorded without consideration of evidence to be adduced by parties and it is not, therefore, an appropriate case in which this Court would exercise its writs jurisdiction.
11. Considering the facts and circumstances of present case and for reasons mentioned in preceding paragraphs as also taking into account well settled principle of law laid down by the Supreme Court in a catena of decisions, as referred to hereinbefore, this Court finds that since present case involves disputed questions of facts inasmuch as the claim of petitioner is seriously under dispute as is apparent from the stand taken by respondents and material available on record and discussed in foregoing paragraphs, the present writ petition is not maintainable, hence, the same is liable to be dismissed.
12. For the reasons discussed above, writ petition sans any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated.
13. Needless to say that petitioner is at liberty to take recourse to other alternative remedy as may be permissible in law and the same be decided on its own merits in accordance with law uninfluenced by the observations on factual matters made hereinabove.
) (Vinod Chatterji Koul)
Jammu: Judge
09.08.2023
Pawan Angotra
Whether the order is reportable : Yes/No