Jammu & Kashmir High Court
Miss. Haneefa Bano vs State Of J. & K. And Ors. on 8 September, 1997
Equivalent citations: AIR1998J&K37, AIR 1998 JAMMU AND KASHMIR 37
JUDGMENT Kawoosa, J.
1. This Letters Patent Appeal is directed against the judgment of learned single Judge passed on July 21st, 1995 in Writ Petition No. 2488/94. The petitioner, who is an illiterate girl of 16 years of age, filed the writ petition against the respondents seeking the indulgence of the writ Court under Article 226 of the Constitution of India for the direction to the respondents by way of writ of Mandamus to pay compensation of Rs. 4.50 lacs to the petitioner for committing negligence in maintaining the electric high tension line passing through the fields, including the small piece of Rice growing land belonging to the father of the petitioner. It is alleged that in the month of September, 1992, while the petitioner along with her father and some others were harvesting Rice crop in their field, petitioner suddenly came in contact with a high tension live electric wire which had fallen down from the Poles. This gave a severe shock in her arm causing serious burns. Petitioner fell unconscious in the field. She was rushed to Bone and Joint Hospital, Barzalfa in the state of unconsciousness, where she was hospitalised for two months. Her right fore-arm was amputated resulting in causing permanent disablement to the petitioner. It is stated that whole right arm of the petitioner has been rendered useless. Medical certificates have been enclosed with the petition. It has been pleaded that all this happened due to carelessness and negligence of respondents 4 to 7 who failed to discharge their duties in a manner they were expected to do. This accident would not have taken place if the timely action by the respondents to restore the line to its earlier position had been taken. Their failure to do so obviously tentamounts to negligence and dereliction of duty. She has stated that she belongs to a poor family. Her mother was a paralytic patient for ten years who died and her father is an old man who cannot look after her. She, therefore, filed the writ petition demanding the aforementioned compensation. Writ petition came to be dismissed in limine by the writ-court mainly on the ground that the question involved is a disputed one and the disputed question of fact can be resolved only by the Civil Court. The writ jurisdiction under Article 226 of the Constitution cannot be invoked for this purpose.
2. Heard learned counsel in detail and we have perused the entire record.
3. From the rival arguments advanced before us following questions are formulated for the adjudication of the case :--
1. Whether writ jurisdiction can be invoked under Article 226 of the Constitution for demanding compensation in a case like the present one?
2. Whether in the present case there is any dispute regarding the facts;
3. In case it is held that the writ is maintainable in the present form and there is no dispute on facts, what is the entitlement of the petitioner for compensation?
4. The first question relating to the jurisdiction of the Court under Article 226 of the Constitution of India to entertain writs demanding compensation is the star point, rather the pivot around which the fate of the whole case revolves. It is on this point, writ Court has declined to entertain the petition for compensation on the ground that in such cases where facts are disputed, rights and obligations of citizens are involved, petitioner can seek remedy under ordinary civil law and cannot invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.
5. Learned counsel for the respondents has vehemently submitted that jurisdiction under Article 226 of the Constitution cannot be invoked where there is a civil liability, where disputed facts are involved as to whether the incident has taken place, whether there is any negligence on the part of the respondents and the circumstances on which basis the compensation demanded is to be awarded. According to the learned counsel, all these points are factual and are disputed. The petitioner has got remedy in Civil Court under the ordinary civil law. He has cited a case "Asa Ram v. M.C.D.", AIR 1995 Delhi 164, in which a regular suit was instituted for the recovery of Rupees four lacs as damages on account of death of the son of plaintiffs which, according to them, was caused due to rash and negligent act of defendants. The basic point of the learned counsel is that the remedy for the petitioner is to file a suit for damages and not to seek remedy under the constitutional provisions.
6. The point, apparently, though seems to be simple, has got number of ramifications with regard to the maintainability of the writ regarding the matters seeking compensation. So the matter cannot be dealt with in a cursory manner. We have to throw some light on the scope of the writ jurisdiction of the High Court.
7. Article 226 of the Constitution of India empowers the High Court and Article 32 of the Constitution empowers the Apex Court to issue writs, directions and orders for the enforcement of any rights conferred by Part III of the Constitution and the High Court under Article 226 has a jurisdiction to issue writs more extensive in manner than that of the Supreme Court, for, Article 32 is invoked only when the fundamental right is infringed. Basically the writ jurisdiction is solely for enforcement of fundamental rights which have been guaranteed to the citizens of India by Part III of the Constitution. This power is not to establish a right, but only to enforce it. Article 32 empowers the Supreme Court to enforce the fundamental rights. The same power has been vested in the High Courts under Article 226 of the Constitution, but the scope of Article 226 is wider. Words "for any other purpose" used at the end of Article 226 are missing in Article 32, meaning thereby that, the High Courts have been given powers not only for the enforcement of fundamental rights, but for "any other purpose" also. The words "any other purpose" have been interpreted for the infringement of a legal right. So the High Courts have power to enforce the fundamental rights plus the legal rights. Under Article 226(2) of Constitution of India writs can be issued only after a finding that the aggrieved party has a legal right which entitles him to seek directions, orders or writs as a remedial measure to the infringement of such right. Much has been discussed and debated on this issue and on the scope of the powers of the High Courts and the Apex Court to issue writs, directions or orders under the aforementioned provisions. It has, from time to time, been settled that the powers under the aforementioned provisions of the Constitution are not to be exercised arbitrarily. There are so many limitations and restrictions laid to the exercise of such power. Writs and orders under Article 226 of the Constitution cannot be issued in each and every case where action complained of is not relatable to a fundamental right and has no nexus with such right; and secondly, this power is not to be exercised where the petitioner has other alternate remedies in the Civil Courts available under ordinary law of the land. Extraordinary writ jurisdiction cannot be exercised when civil rights of the parties are involved and facts are disputed. Article 226 does not describe the class of persons entitled to apply thereunder, but it is implicit in the exercise of ordinary jurisdiction that the relief asked for must be one to enforce the legal rights. Existence of legal right or fundamental right is the basis of exercise of jurisdiction by the High Court under Article 226 of the Constitution. This right must ordinarily be the right of the petitioner himself who complains of infringement of such right. It is reiterated that under Articles 226 and 32 of the Constitution rights are not to be established, but fundamental rights are to be enforced. High Court is not a fact finding body where the parties under the writ jurisdiction will get their rival claims settled after taking evidence and marshalling it. Writ jurisdiction is a summary procedure where the orders can be issued for the enforcement of the rights as mentioned above. Present concept of welfare State does not debar the High Courts and the Apex Court, which are protectors and guarantors of the indefeasible rights of the citizens to issue writs, orders or directions for setting right wherever there is infringement of fundamental rights and wherever the High Court feels that there is infringement of legal rights. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts. The Courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people. Courts are expected to respond to their aspirations. So the courts are not only the protectors of the civil liberties, but also an obligation is cast upon the Courts to grant the relief in exercise of its jurisdiction under Article 226 of the Constitution to the victims or their heirs whose constitutional rights are violated. Courts have to forge new tools, new methods to come to the rescue of the victims of State functionaries or the instrumentalities of the Government. Though there is an alternate remedy available to the victims for seeking damages from the Civil Courts under the ordinary law, but that remedy is not so efficacious as it is available under the constitutional provisions and it is rightly so. But this exercise of powers at the same time is to be restricted and restrained so that it may not be used for settling all kinds of disputes through this medium. So everything depends upon the nature of each case. Notwithstanding, the question about the maintainability of writ petitions claiming compensation under Article 226 is not res integra in view of large number of decisions of the Apex Court, but at the same time, it is not the intention of the Apex Court to entertain every petition for compensation regardless of involvement of controversial facts in the case. This power cannot be exercised in every case though alternate efficacious remedy is available. This power is to be exercised very sparingly, in a restricted manner looking to the particular facts and circumstances, of each case. For example, where it is an admitted fact that there is negligence of the instrumentalities of the Government in not maintaining the high tension power line which causes damage to a citizen or where the sewerage is left uncovered and due to such dereliction of duty some citizen is harmed. This constitutional remedy can be brought into play only in such a set of cases which have nexus with infringement of fundamental or legal rights, where the human agony is involved due to the negligence and dereliction of duties of the functionaries of the State and thirdly where the facts are not disputed. It is not in all cases that the High Court is to entertain a writ where there is a civil dispute regarding the property or land or where there are major controversies regarding the facts of a case which involve the establishment of a right. So far as the compensation part is concerned, the High Court has to ascertain so many facts which weigh for awarding compensation, for example, age of the victim, nature of injury, nature of disablement, if any liability of the victim, resources of the victim, future earnings of the victim etc., all these involve points of fact. In case the material is before the Court and the Court does not need any further material on record, the Court is within its bounds to assess the compensation without referring the matter to some other forum.
8. Now we will throw light on some cases in which the Apex Court and the High Courts have exercised this jurisdiction in favour of victims.
9. In Smt. Charanjit Kaur v. Union of India, AIR 1994 SC 1491, the Apex Court has not only entertained the writ petition under Article 32, but has awarded Rupees six lac as compensation due to special circumstances of the case for glaring example of gross negligence and callousness on the part of the authorities which caused the death of the husband of the petitioner. Petitioner's husband, Mukhbain Singh, was a Commissioned Lieutenant in the Indian Army. He was promoted to the rank of Major and was posted at Kargil where he complained of chest disease. He was removed to Leh. His diagnosis disclosed heart disease. Petitioner and her children were living in Meerut. On receiving information of her husband, petitioner rushed to Leh. After great persuasions, she was allowed to see her husband. She found her husband in a precarious condition. She requested the authorities to air-lift him to Srinagar or to Ambala Military Hospital. This was avoided. She, thereafter, was assured that her husband shall be air-lifted to Ambala Military Hospital and was asked to go to Ambala. Later on the deceased was not air-lifted. She was again called to Leh and was again assured that the patient will be air-lifted to Ambala, which was not done. Petitioner reached Udhampur and she was informed that her husband was not well in Leh. She again reached Leh where she found the burnt body of her husband. The facts we have revealed only for the purpose that the Apex Court after seeing the particular facts which were admitted on the record that the death was caused due to some mysterious circumstances, entertained the writ and held the authorities liable for compensation.
10. Similarly, wherever petitions for compensation have been filed, they have not been entertained at random. They have been entertained where the custodial deaths have occurred and no dispute arose regarding such incidents. The Apex Court did not feel helpless in the matter, entertained the writs and awarded compensation as was done in Neelabati Behera alias Lalita Behera v. State of Orissa, AIR 1993 SC 1960.
11. Similarly, in case Smt. Kumari v. State of Tamil Nadu, (1992) 1 UJ (SC) 527 : (AIR 1992 SC 2069) again the Apex Court entertained the claim petition for compensation for the death caused due to falling of a child in an uncovered sewerage tank: Court directed the State to pay compensation for the negligence committed by the respondents therein. Court rejected the plea of sovereign act and held that sovereign act is no defence when there is violation of fundamental rights.
12. Similarly, in Consumer Education Research Centre v. Union of India, AIR 1995 SC 922, workmen's right to health and medical care has been declared to have direct nexus with right to life which is a fundamental right and it has been held that in public law claim for compensation is remedy available under Articles 32 and 226 of the Constitution for the issuance of writs and directions.
13. The point has been considered by various High Courts also. In Kumari Seema v. Himachal Pradesh State Electricity Board, AIR 1994 Him Pra 139, the question has been dealt with extensively by a Division Bench headed by Acting Chief Justice, Bhawani Singh (as his Lordship then was). The facts of the case supra are quite similar to the facts of the present case before us, In the case supra, the petitioner had sought compensation for the negligence of the respondents. Petitioner came in contact with a live wire and suffered severe burn injuries on her head and other parts of body. She was admitted to Civil Hospital. Her right arm was amputated below elbow. The facts were not disputed. The Court examined the matter, on the record avaiable before it and granted compensation in the case.
14. Besides the authorities mentioned above, there are so many other authorities where the Apex Court and the High Courts have entertained the writs under Articles 32 and 226 of the Constitution respectively and have awarded compensation. This power, it appears from the judgments, has been exercised due to particular circumstances of the cases.
15. In the light of the above background, we hold that writs for compensation of like nature of cases which have been discussed above and which have direct nexus with the infringement of fundamental or legal rights can be entertained by the High Court notwithstanding the fact that there being alternate remedy available under ordinary civil law, but that remedy is not so efficacious and adequate which will come to rescue of the needy victim suffering at the hands of State functionaries. Such writs, however, cannot be entertained at random. Where there is a dispute regarding the occurrence of such incidents, where there is a dispute about the negligencc if committed by the State functionaries and where bundle of facts require to be brought on record, we should leave it to be settled by the Civil Courts. There is no bar to the High Court to exercise the power under writ jurisdiction to entertain particular cases for compensation if the High Court feels that the victim needs an immediate reliefs to sustain himself or his children and the whole material placed before the High Court is sufficient to dispose of the petition by it.
16. Question No. 1 is answered accordingly.
17. Now we examin the present case before us in the light of the observations made above. Facts have been narrated in the beginning. It is to reiterate here that the petitioner, a minor girl of 16 years, has filed the petition with the allegation that she was working on the field of her father when she came in contact with a live high-tension wire, which had fallen from the poles. As a result of this she received burn injuries and electric shock. Petitioner was admitted in Bone and Joint Surgery Hospitals, Barzalla where she remained for two months and finally she was operated upon. Part of her right arm was amputated which rendered the whole right arm useless and thus she got permanently disabled. All this happened due to negligence and dereliction of duty on the part of the respondents. Medical certificate has been issued to the petitioner by Government Bone and Joint Surgery Hospital, Barzalla which is Annexure 'B' with the petition: The date of admission has been shown as 27th September, 1992. The cause of injury has been shown as electric burn. Diagnosed as gangerine in right arm, she has been operated upon. Nature of injury has been indicated as grievous and nature of disability as 'permanently disabled.' After discharge from the Hospital, petitioner had filed an application to the revenue authorities for compensation. Annexure 'C' is the report of Naib Tehsildar which reveals that He enquired into the matter and recorded the statement pf witnesses. After the enquiry, it was found that the petitioner was working in her paddy field in September, 1992. She suddenly came in contact with high-tension power line which rendered her right arm fully useless. She was sent to Hospital. Electric Department did not pay any compensation to the petitioner. The report has been substantiated by Patwari concerned and the Naib Tehsildar. They have recommended to the Tehsildar that the petitioner be compensated. She has filed a representation before the Divisional Commissioner also for redressal of her grievances. Copy of this representation is Annexure 'D'. When the petitioner saw that nothing had come out from her representations, she has, through her Advocate, sent a notice under Section 80, C.P.C. to the Chief Secretary elaborating therein the negligence of the Electricity Department which caused the sufferings to the petitioner and permanent disablement to her right arm. By way of this notice she made a demand for compensation of Rupees 4.50 lac. In response to this notice, the Deputy Commissioner, Pulwama vide order Relief No. 37/R for the year 1993-94 dated 4-3-1994 granted a cash relief of Rs. 1,000/- in favour of the petitioner. Copy of the order is Annexure 'F' with the petition. The order reads as under :--
"Office of the Deputy Commissioner, Pulwama Relief Order No. 37/R for the year 1993-94.
Order As verified and recommended by the Tehsildar, Pulwama vide his No. 2286-93 sanction is hereby accorded to the grant of cash relief of Rupees 1000/- (Rs. one thousand) only in favour of Mst. Hanifa d/o Ali Mohd Wani R/O Urwan Tehsil, Pulwama as she got injured due to electricution on 26-9-1992. An amount of Rs. 1000/- (Rs. one thousand) only is hereby released under account head 2245 relief and placed at the disposal of Tehsildar, Pulwama for further disbursement to the said victim after proper identification. The red (sic) accounts be rendered to this office after making the payments to the said sufferer. Sd/-        
Deputy Commissioner, Pulwama.
1002-5/R 4-3-94.
Copy to the :--
1. Financial Commissioner, J. & K. Govt., Jammu for favour of information.
2. Div. Commr. Kashmir for favour of inf.
3-4. Tehsildar, Pulwama/Treasury Officer, Pulwama. for information and n/a."
By these facts, it is crystal clear that the incident has been thoroughly investigated both at the gross level from Patwari, Naib Tehsildar and at the high level. Deputy Commissioner has certified that she has been the victim of electric shock. The petitioner felt that compensation of Rs. 1,000/- is a mere negation of her right, therefore, she filed the writ petition. The writ petition came to be dismissed in liminc by the writ court on 21-7-1995 without notice to the other side on the ground that the matter pertains to disputed facts which can be dealt with by the Civil Court. The petitioner has filed this Letters Patent Appeal on 23-9-1995.
18. On 25-10-1995 this Court issued notice to the other side and notice in CMP also was issued. Meanwhile, the State -respondent and its concerned functionaries were directed to take steps for providing immediate cash relief to the tune of Rs. 50,000/- to the appellant to enable her to meet the expenses for her medical treatment. Payment was to be arranged within one month. The Letters Patent Appeal was ordered to be listed along with record after service was complete. However, it was on April 17, 1996 that Mr. S. K. Shukla, Government Advocate appeared for respondents and sought time for depositing Rs. 50,000/-. He was given time to do so, but it was ordered that as soon as Rs. 50,000/- were deposited, Rs. 30,000/- be disbursed to the petitioner for treatment and Rs. 20,000/- were ordered to be kept in fixed deposit. The main matter was ordered to be fixed in month of May, 1996. In the meantime, an application for vacating the interim order was filed. On June 23, 1997 Additional Advocate-General, Mr. M. H. Attar, appeared for the respondents. LPA was admitted on that date. Notice was accepted by Mr. Attar. He sought time to file reply on all contentions raised in the case as well as to the maintainability of the claim. This Court ordered that since substantial questions of law and fact arose in the case, it was desirable to dispose of the main writ petition finally after allowing time to respondents to file the reply. Three weeks' time was provided to the respondents to file counter and one week thereafter to the appellant-petitioner to file the rejoinder. The matter again came to be listed on 27th July, 1997. No reply affidavit was filed. On that day Rs. 10,000/- more were released by the Court in favour of the petitioner for meeting the expenses for her treatment. The case was ordered to be listed in the next week for final hearing. So the ease was heard on 31st July, 1997 on which date the Additional Advocate-General for the respondents was present. On this date also no reply-affidavit was filed.
19. Two things emerge from these detailed facts : firstly, that the enquiry by the respondents at their own level regarding the incident has been conducted from the Patwari's level onwards and it is established that the incident has taken place. The petitioner was recommended for relief and Rs. 1,000/- only was granted which was found inadequate by the petitioner-appellant. No functionary of the Government has contradicted the facts on record. Even the Deputy Commissioner, Pulwama also has verified the facts and found them to be correct. In objections which have been filed for vacating the interim direction, not a whisper has been made contrary to these facts, excepting that since facts are involved so the writ court has no jurisdiction. Respondents have nowhere in these objections denied the occurrence, nor the circumstances in which such untoward incident has happened. Moreover, the negligence of the respondents visa-vis not maintaining the high-tension wire properly has also not been denied. This is one aspect of the case.
20. The other side is that this Court has admitted the LPA for hearing in presence of the Additional Advocate-General. He accepted the notice. We afforded ample opportunities to respondents to file reply-affidavit so that the main petition itself could be decided by this Court, but no reply-affidavit was filed despite several opportunities given to respondents to file the same. So, in these circumstances, the main petition is hereby decided. In the absence of filing of the reply-affidavit there remains no option to us but to treat the facts of the case as unrebutted and uncontroverted. This Court feels that no question of fact now is involved in the matter. The facts which have been revealed by the petitioner are supported by the record of the respondents and this record has not been controverted by the respondents notwithstanding the opportunities for filing the counter were given to them. This Court after seeing the circumstances of the case feels that sufficient material is on the file to decide the case on merits and there is no need for any further enquiry into the matter. So, we hold that there is no dispute regarding the facts in the case. The case can be adjudicated upon on the facts which are already on the record. Question No. 2 raised supra is, accordingly, answered in negative.
21. For the foregoing reasons, therefore, it is held that the writ petition is maintainable. No facts are involved in the case which may hamper this Court to decide the case on merits. In this background we feel that the findings arrived at by the learned single Judge are not correct, nor in consonance with the pronouncements of the Apex Court over the years enabling writ courts entertaining such petitions.
22. Now the only point remains as to what is the manner and method which we can devise to assess the compensation in this particular case.
23. It is an admitted fact that the petitioner belongs to a destitute family and a downtrodden village. She is an illiterate and unmarried girl of 16 years of age. She was admittedly assisting her old and poor father in cultivating the small paddy field which they own. Her mother was a paralytic patient who has died. Now she has got only her old father who is not financially sound to look after her. She has no chance of marriage. Secondly, it is an admitted fact that there is the medical certificate issued by Government Bone and Joint Hospital, Barzalla from which it is patently clear that the petitioner was admitted in the Hospital for two months. A portion of her right arm has been amputated. She has been operated upon. There is yet another certificate issued by the Sher-i-Kashmir Institute of Medical Sciences, Soura placed by the petitioner on record. This certificate is to the effect that the petitioner-appellant had also to undergo plastic surgery in the said Institute. The report is that her full right arm has become useless. The nature of injury is "permanent disablement." All this has remained uncontroverted. Besides, we called the girl in the open Court and examined her right arm. Her right arm is so shrunken that it is motionless and she cannot pick up anything. She cannot attend to any work by this arm. When all this is clear, it becomes easy for us to assess the compensation. 24. In the villages almost all ladies, especially young girls, admittedly, share equally manual labour with male members in their paddy fields, in addition to the home tasks which they do exclusively. Here in this case also it is rather established that the petitioner was attending to the paddy field when she got victimised by the live high-tension wire. So, let us assume that she must be doing the manual work equivalent to an earning of Rs. 1000/- per month. Now she is not in a position to undertake such manual labour. She will be rather dependent for all the rest of her life. So, Rs. 1,000/- per month is not much, but is rather on the lower scale. Out of the aforesaid assessed amount, approximately one-third i.e. Rs. 300/- she would incur on personal expenses for medicine and for waggeries of life. Thus she would be able to save Rs. 700/- per month out of her income which comes to Rs. 8,400/- per year. We will apply the multiplier 20 which comes to Rs. 1,68,000/-. We think that Rs. 1,68,000/-which we award as compensation is no equivalent to the permanent disablement she has suffered. But, however, this amount will surely mitigate her pain and sufferings in future. That apart, certain considerations in such cases have necessarily to be viewed before granting, the compensation. Petitioner is getting the relief through a short summary procedure by invoking the jurisdiction of the High Court under Article 226 of the Constitution. She has not been left to the wrangles of civil procedure and has thus saved time of years together to get the relief. Secondly, she will be getting the amount in lumpsum which will surely benefit her in terms of interest she may gain if the amount is kept in Bank. It cannot be ruled out that she might get compensation on a higher side by way of filing a suit for damages, but the fact that she has to pay court-fee for that cannot be lost sight of. Whatever relief she is getting here, is without Court-fee also. Taking all these circumstances into consideration, we think that Rs. 1,68,000/- which we award as compensation to her is no less for the pain and sufferings she has undergone.
25. For the foregoing reasons, therefore, an amount of Rs. 1,68,000/- will be payable to the petitioner minus the amount she has already been granted by this Court as a temporary relief. Apart from Rupees Ten thousand already in deposit with the Registry out of Rs. Fifty Thousand deposited by the respondents, the balance amount be deposited with the Registry within a period of three months from today. In case, this is not done, amount of rupees One Lac Eighteen thousand will carry interest at the rate of 12% per annum from the date of the expiry of three months fixed by this Court. Out of the total amount Rupees Eighteen thousand be released in favour of the petitioner through counsel, if she approaches the Registrar Judicial of this Court. Remaining amount will be put in fixed deposit in her name with the Jammu and Kashmir Bank, High Court Branch at Srinagar for a period of six years. The interest amount would be released to the petitioner monthly or quarterly, if she requires and expresses desire to the Registrar Judicial of this Court, In case she wants to draw bulk amount out of the total amount deposited, for marriage/treatment, she will be at liberty to approach this Court for orders".
26. No order as to costs.