- (1.) RAJEEV Gupta, C. J. Mr. Amrish Agarwal and Mr. Sanjeev Kumar, Advocates for the pe titioner. Mr. N. C. Gupta, Standing Counsel for respondent No. 1. Mr. B. D. Upadhyaya, Advocate for respondents Nos. 2 and 3. They are heard.
(2.) PETITIONER Akhtar @ Pappu has filed this writ petition for the following reliefs: "i. Issue a writ order or direction in the nature of mandamus com manding the respondents no. 1 and 2 to pay the compensation of Rs. 15, 48, 000/- to the petitioner on account of death of his son caused by electric shock due to negligence of respondents. II. Issue any other writ order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case. III. Award the cost of the writ peti tion to the petitioner through out. " The learned counsel for re spondents Nos. 2 and 3 placing reliance on the dictum of the Apex Court in the case of SDO, Grid Corporation of Orissa Ltd. and others Vs. Timudu Oram reported in (2005) 6 SCC 156 has raised a preliminary objection about the maintainability of the writ pe tition. In the case of SDO, Grid Cor poration of Orissa Ltd. and others Vs. Timudu Oram (supra), the Apex Court, while considering the question of maintainability of a writ petition under Article 226 of the Constitution of India in the matters relating to compensation, observed in para 6 as under: "6. 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 pe titions under Article 226 of the Con stitution and were not fit cases for exercising the jurisdiction under Ar ticle 226 of the Constitution. It was held that actions in tort and negli gence were required to be estab lished 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 deserved an opportunity to prove that proper care and pre cautions 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 conclu sion that the defence raised by the appellants had been raised only for the sake of it and there was no sub stance in it. In para 6 it was ob served 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 Con stitution. 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 elec tric transmission lines of the appel lants, 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 negli gence was required to be established firstly by the claimants. The mere fact that the wire of the electric trans mission line belonging to Appellant 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also re quired to be examined whether the wire had snapped as a result of any negligence of the appellants and un der which circumstances the de ceased 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 oppor tunity to prove that proper care and precautions were taken in maintain ing the transmission lines and yet the wires had snapped because of cir cumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the pe titioners. These questions could not have been decided properly on the basis of affidavits only. It is the set tled legal position that where dis puted 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 peti tioners to approach the Civil court as it was done in OJC No. 5229 of 1995. "
(3.) IN the present case, too, the fac tual averments made by the petitioner in regard to the incident are not admit ted and for a proper assessment of the compensation to be awarded to the pe titioner, leading of evidence in regard to the income of the deceased and the loss suffered by the petitioner would be nec essary. Thus, it is apparent their without resolving the disputed questions of fact, the reliefs sought by the petitioner in the writ petition cannot be granted. IN the proceedings under Article 226 of the Constitution of INdia, it is not per missible to resolve disputed questions of fact, as the same would require lead ing of evidence by the parties. In this view of the matter, the writ petition is liable to be dismissed.;