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Judgment
Sabina, J
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:
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.
Notice of the petition was issued to the respondents.
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 20th 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.
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.
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.
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.
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.
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.
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 Court from entertaining a writ petition in an appropriate case and it was observed as under:
"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. ..."
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.
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.
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.
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.
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.
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.
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.