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2008 Supreme(Gau) 410
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Khiradabala Nath and Ors. - Appellants
Vs.
Assam State Electricity Board and Ors. - Respondent
Decided On : 04.06.2008
Headnote:
Compensation for tortious act of the employees or functionaries of the State or its instrumentality, can be made available to a victim by invoking High Court's jurisdiction under Article 226 of the Constitution of India, which is essentially a 'public law' remedy and, ordinarily, not available in the domain of 'private law'.
Fact of the Case:
In the instant case, several writ petitions were considered, wherein compensation for death caused due to electrocution had been claimed by filing petitions under Article 226. All these writ petitions were resisted by the authorities, who were supplying electrical energy, by denying their liabilities on the ground, inter alia, that the deaths had been caused not as a result of the action or inaction of the service provider of electricity, but because of act of God or acts of some other persons.
Finding of the Court:
The Court held that when disputed questions of facts arise and there is clear denial of any tortious liability, the public law remedy, as envisaged by Article 226 of the Constitution, may not be proper, but this will not mean that in every case of tortious liability, recourse must be had to a suit and not to a writ petition, for when the negligence is apparent, there would be, according to what the Apex Court holds, in Sumathi (supra), no bar to the invoking of jurisdiction under Article 226.
Issues: Whether compensation, arising out of tortious act of the employees of the State can make the State vicariously liable and whether in such cases, the State can be forced by invoking High Court's jurisdiction, under Article 226, to grant compensation to a victim, when the remedy, under Article 226, is a 'public law' remedy.
Ratio Decidendi: The Court held that a person, who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of god; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.
Final Decision: The Court held that the rule of 'strict liability', which makes a person liable to compensate one, who suffers injury by an act of an undertaking, which is involved in hazardous or risky exposure to human life, is subject to certain exceptions, which have been enumerated hereinabove, one of such exceptions being the default of the plaintiff, i.e., when damage is caused solely by the act of the plaintiff himself.
I.A. Ansari, J.
1. All these writ petitions, having raised common questions of law, were heard analogously and are being disposed of by this common, judgment and order.
2. Whether compensation, arising out of tortious act of the employees or functionaries of the State or its instrumentality, can be made available to a victim by invoking High Court's jurisdiction under Article 226 of the Constitution of India, which is essentially a 'public law' remedy and, ordinarily, not available in the domain of 'private law'? If so, when can such an exercise of power, under Article 226 of the Constitution, would be possible or subject to what conditions, such exercise of power, under Article 226 of the Constitution, is possible? What is the rule of 'strict liability'? How does 'strict liability' differ from tortious liability, ordinarily, arising out of neglect, fault or wrongful act ? All these questions have arisen out of applications, made under Article 226, seeking compensation for the death of, or injuries caused to, persons in the accidents arising out of 'electrocution'. The facts of each case and merit thereof would be discussed at an appropriate stage of this judgement and order.
3. I have heard Mr. S. Medhi, learned Counsel, for the petitioner, in WP(C) No. 5772/2001, Mr. D. Saikia, learned Counsel, for the petitioners, in WP(C) Nos. 3417/2003 and 3418/2003, Ms. D. Das Roy, learned Counsel, for the petitioner, in WP(C) No. 8140/2002, Mr. A.K. Jain, learned Counsel, for the petitioner, in WP(C) No. 8733/2004 and for the petitioners in WP(C) No. 1290/ 2005, and Mr. R. Paul, learned Counsel, for the petitioners in WP(C) No. 2328/2005, and Mr. D. Bhattacharya, learned Standing Counsel, ASEB, appearing on behalf of the respondents. I have also heard Mr. N. Dutta, learned Senior Counsel, as Amicus Curiae.
4. It is pertinent to note that drawing distinction between 'public law' and 'private law', a three-Judge Bench of the Supreme Court, in Common Cause, a Regd. Society v. Union of India reported in [1999] 3 SCR 1279, laid down that under the 'public law', it is essentially the dispute between a citizen or a group of citizens, on the one hand, and the State or other public bodies, on the other, which is resolved and that such exercise of power is aimed at maintaining rule of law and preventing the State or public bodies from acting in arbitrary manner or in violation of rule. In Common Cause (supra), it was further observed that with the expanding horizon of Article 14 read with other articles dealing with fundamental rights, every executive action of the Government or of other public bodies, including instrumentalities of the Government, or of those, which can be legally treated as 'authority' within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is, now, amenable to the writ jurisdiction of the Supreme Court under Article 32 or of the High Courts under Article 226 and can be validity scrutinized on the touch stone of the constitutional mandates.
5. Even long before the decision, in Common Cause (supra), was laid down, the Supreme Court, in LIC of India v. Escorts Ltd., reported in 1986 (8) ECC 189, held that ordinarily, in exercise of power under Article 226 or Article 32, the Court will examine actions of the State if they pertain to the 'public law' domain and refrain from examining them it they pertain to the 'private law' field, but the difficulty will lie in demarcating the frontier between the 'public law domain, and the 'private law field', for, it is impossible to draw a line of distinction between the two and that the question must be decided, in each case, with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged, when performing the action, the 'public law' or 'private law' character of the action and a host of other relevant circumstances.
6. Whether compensation for tortious act of the employees of the State can make the State vicar
