HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 91/2007 CMP No. 124/2007 Date of Decision: 04.12.2008 Hakim Bee & anr. Vs State of J&K & Ors. _________________________________________________ Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For Petitioner(s) :Mr. Tahir K.Raina, Advocate. For Respondent(s) :Ms. Shaista Hakim, Dy.A.G. i) Whether to be reported in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No Petitioners have filed this writ petition seeking issuance of a writ of mandamus commanding the respondents to pay Rs.10 lacs as compensation to the petitioners for the death of Mr. Shamas Khan, the husband of petitioner no.1 and father of petitioner no.2, And to consider petitioner no.2’s case for compassionate appointment in government service. 2 It is stated in the writ petition that Shamas Khan was working as Lineman in Tehsil Mehandar of District Poonch when while performing his duties as such, he got electrocuted. Petitioners had approached the respondents seeking compensation and compassionate appointment for petitioner no.2. The respondents had obliged them by paying the salary of the deceased for some time and had thereafter reduced the salary to one-half and finally granted them family pension. The relief granted by the respondents to the petitioners, is not requisite compensation for the death of Shamas Khan, complain the petitioners. Respondents have contested the maintainability of the writ petition on the ground that it raises disputed questions of fact which may not be gone into by this Court in exercise of its writ jurisdiction. It has been specifically stated by the respondents that Shamas Khan had been electrocuted because of his own fault and the fault of another Lineman namely Mohd. Sageer, while working on a transformer. 3 I have considered the submissions made at the Bar. Petitioners have not laid any basis in the writ petition on the basis whereof they claim compensation for the electrocution of Shamas Khan. Respondents, on the other hand, have attributed Shamas Khan’s electrocution to his own fault. The question as to whether Shamas Khan’s electrocution had taken place because of any negligence or default of the respondents, is a pure question of fact, finding whereon may be returned only if evidence for and against the question in issue had been led by the parties. This exercise of recording such a finding can be done only by a fact finding forum and not by this Court in exercise of its writ jurisdiction, in view of the law laid-down by Hon'ble Supreme Court of India in SDO, Grid Corporation of Orissa Limited and others versus Timudu Oram, reported as (2005) 6 SCC, 156 where their Lordships of Hon’ble Supreme Court of India had held as follows:- 4 “In Chairman, Grid Corpn. Of Orissa Ltd. (GRIDCO) with which case these appeals were listed for hearing but could not be heard for want of service, this Court took the view that the High Court committed an error in entertaining the writ petitions under Article 226 of the Constitution and were not fit cases for exercising the jurisdiction under Article 226 of the Constitution. It was held that actions in tort and negligence were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellants had snapped and the deceased had come into contact with it and died by itself was not sufficient for awarding compensation. The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the wire. In view of the defence raised and the denial by the appellants in each of the cases, the appellants deserve an opportunity to prove that proper care and precautions were taken in maintaining the transmission line and yet the wires had snapped because of the circumstances beyond their control or unauthorized intervention of third parties. Such disputed questions of fact could not be decided in exercise of jurisdiction under Article 226 of the Constitution. That the High Court could not come to the conclusion that the defence raised by the appellants had been raised only for the sake of it and there was no substance in it. In para 6 it was observed thus: (SCC pp. 301-02) “6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants that ‘admittedly/prima facie amounted to negligence on the part of the appellants’. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact 5 that the wire of the electric transmission line belonging to Appellant I had snapped and the deceased had come in contact with it and has died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorized intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in OJC No.5229 of 1995.” In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corpn. Of Orissa Ltd. (GRIDCO). The High Court has also erred in awarding compensation in Civil Appeal No. 4552 of 2005 [ @ SLC (C) No. 9788 of 1998]. The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 of the Constitution cannot be justified.” 6 In the absence of any such finding, it cannot thus, in view of the above mentioned legal position, be ruled as to whether or not respondents are liable to pay compensation to the petitioners for Shamas Khan’s electrocution. Petitioners’ claim for compensation for the death of Shamas Khan cannot thus be entertained by this Court. The second claim of the petitioners seeking compassionate appointment for petitioner no.2 too is untenable firstly because petitioner no.2 is not eligible under the Rules to seek compassionate appointment and secondly because the petitioners have filed the writ petition after a period of more than twelve years of the death of Shamas Khan. Keeping in view the facts and circumstances of the case, when the petitioners are stated by the respondents to have been paid what was due to them on account of the death of Shamas Khan in harness, I do not find any merit in this petition which is otherwise not maintainable because of the delay and 7 laches in petitioners’ omission to approach this Court within a reasonable time, in view of the law laid- down by Hon’ble Supreme Court of India in SDO, Grid Corporation of Orissa Limited and others (supra). For all what has been said above, this petition therefore fails. It is, accordingly, dismissed. ( J. P. Singh ) Judge JAMMU: 04.12.2008 Pawan Chopra