AFROZA MINOR Vs. STATE OF JAMMU AND KASHMIR
LAWS(J&K)-1999-7-1
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 30,1999

AFROZA (MINOR) D/O GHULAM HASSAN DAR Appellant
VERSUS
STATE OF JAMMU AND KASHMIR Respondents

JUDGEMENT

- (1.) The petitioner, a teenager and a student of 6th standard in Government High School Keegam, Pulwama having fallen victim to a live electric wire of a transformer on 6-4-1995 while around her school, sustained burn injuries on her person. The ultimate fall out being amputation of her left arm. She has advanced a claim for compensation to the tune of Rs. 7/- lacs through this writ petition, filed by her on 15-10-1996 through her next friend, who happens to be her father, the natural guardian.
(2.) The respondents were put on notice. Objections to the admissibility of the writ petition were filed, opposing it on the grounds that the transformer was removed from the platform to the ground level by the villagers and the petitioner fell on the wire while playing. On these objections, the respondents contended that Civil Court alone could adjudicate upon issues so raised. In the objections it was also contended that the distribution and generation of electricity being a sovereign function, immunity is available to them. On these grounds the respondents had challenged the very maintainability of the writ petition and in support of objections filed, the learned counsel for the respondents was heard but objections did not help him and the petition came to be admitted to hearing vide order dated 23-5-1997. After admission of the writ petition, notice was accepted by the learned counsel for the respondents. Sufficient time was granted to them for filing the counter, but they failed to, yet another opportunity was granted vide order dated 6-9-1997, which reads;"Six weeks last and final opportunity is granted to the respondents to file the counter. Right to file the counter closed thereafter.The matter be posted for hearing in the week commencing from 20-10-1997 on a hearing day as case No.1 given regard to the nature of the case."
(3.) The last opportunity so granted was also not available of, thus the averments made in the writ petition have gone un-rebutted. However, learned counsel for the respondents has during the course of his arguments sought permission to adopt the objections as counter and having regard to the facts of the case, there appears no need for filing a rejoinder. Moreso, in my opinion such course is not going to prejudice the rights of the petitioner. In this backdrop, I allow the prayer and proceed to take the stand of the respondents into consideration which they have pleaded in their objections. It is manifest from the objections that they have not joined the issue in respect of date, place, time and the cause of occurrence but the following questions do arise from the pleadings :" a) Whether the immunity to the respondent State is available because distribution and generation of electricity is a sovereign function.b) Whether villagers had shifted the transformer from platform to the ground level and the petitioner had fallen on a live electric wire while playing therefore not liable to pay compensation. c) Whether question (b) ousts the jurisdiction of the writ Court because it calls for evidence.";


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