Holding

The Court held that a High Court cannot entertain a writ petition under Article 226 and refer the matter to arbitration where disputed questions of fact exist and no valid arbitration agreement under Section 7 of the Arbitration and Conciliation Act, 1996 is present; such jurisdiction cannot be created legislatively.

Summary

The Tamil Nadu Electricity Board (TNEB) appealed against High Court writ orders that awarded compensation to victims of electrocution, alleging that the High Court had improperly exercised its Article 226 jurisdiction and had referred the dispute to an arbitrator without a valid arbitration agreement. The Supreme Court examined whether a writ petition can be used to award compensation for negligence that infringes Article 21, and whether a court can appoint an arbitrator and treat the award as a decree under the Arbitration and Conciliation Act, 1996. It held that where disputed questions of fact arise and no arbitration agreement under Section 7 exists, the High Court cannot entertain a writ petition and cannot create a new forum of arbitration, as such power is legislative in character. Consequently, the Court allowed the appeals, set aside the writ orders, and restrained TNEB from recovering amounts already paid. The decision reaffirmed that compensation for violation of fundamental rights may be awarded under Article 226, but only when the procedural requirements of the Arbitration Act are met.

Issues considered

Whether a High Court can award compensation for death caused by alleged negligence under Article 226 of the Constitution when the right to life under Article 21 is infringed.
Whether a High Court may refer a writ petition to an arbitrator and treat the arbitrator's award as a decree under the Arbitration and Conciliation Act, 1996 in the absence of a valid arbitration agreement.

Legislation cited

Arbitration and Conciliation Act, 1996s. 2(e), s. 34, s. 36, s. 7
General Clauses Act, 1897

Subjects

Article 226ArbitrationCompensationElectrocutionNegligenceFundamental RightsArticle 21Arbitration AgreementWrit JurisdictionPublic Law

Judgment

A TAMIL NADU ELECTRICITY BOARD ~ ·~

v.
SUMATill AND ORS.

APRIL 27, 2000

B [D.P. WADHWA AND SYED SHAH MOHAMMED QUADRI, JI.]

Constitution of India, 1950-A1ticle 226-Writ jurisdiction-Tonuous
liability-Disputed questions of facts-Reference to arbitrator-No arbitra-
tion agreement between the palties within the meaning of Section 7 of
c Arbitration Act, 1996-Exercise ofjurisdiction by the High Coutt in entertain-
ing the petitions-Whether pmper-Held, no.

Anicle 226-Writ jurisdiction-Reference to arbitrator for adjudication
of disputed facts-Thereafter on the basis of award passing decree-Whether
correct-Held, no-There is no provision for referring the matterio arbitrator --...
D by intervention of the Coult-If during the pendency of the proceedings in the
coult palties have entered into an arbitration agreement then they have to
proceed in accordance with the provisions of the Arbitration Act, 1998-
Arbitration and Conciliation Act, 1996.

Article 226-Writ jurisdiction-Scope of-When disputed question of
E fact arises and there is clear denial of any tortuous liability, remedy under ...
Anicle 226 of the Constitution may not be proper-But when there is negli-
gence on the face of it and infringement of Anicle 21 is there, it cannot be said
that there will be any bar Jo pmceed under.

Atticle 136-Discretionary jurisdiction-Scope of-Claim ofcompensa-
F tion in writ petition-Exercise ofwrit jurisdiction by the High Coult held to be
unjustified-In the facts and circumstances of the case, whether it would be
equitable to send the respondents to take proceedings in civil coult-Held,
No-Hence, appellant restrained from recovering any amount already paid to
the claimants.

G Arbitration and Conciliation Act, 1996-Sections 2(e ), 34 & 36-Award
can be enforced as if it is a decree of a court.
Respondents filed writ petition before High Court, seeking compen-
sation against the appellant, for death by electrocution. Since there was
..
disputed question of fact, the case was referred to the Arbitrator to decide
H the question of compensation, with the consent of both the parties. The
708
TAMIL NADU ELECTRICITY BOARD v. SUMATHI 709
award of the Arbitrator was made rule of the court, and High Court A
passed decree in favour of the respondents.

In appeal to this Court, appellant contended that High Court by
referring the matter to Arbitrator has created a new jurisdiction to deal
with the alleged negligence of the appellant and has also appointed a
Corum for adjudication of the same, that creation of such a forum and B
jurisdiction is legislative in character and it could not be done or assumed
otherwise; and that adjudication of the disputed subject by the Arbitrator
was not consented to by the appellant.

The respondents contended that since respondent's right to life un-
der Article 21 has been violated because of the negligence of the public
c
authorities, High Court under Article 226 has the power to award compen-
sation; that since reference was made to the Arbitrator with consent of
both the parties and the Arbitrator held proceedings in accordance with
law, and decree was passed after examination of the award and the pro-
ceeding, the appellant was estopped from taking a contrary stand, and that D
in view of the facts and circumstances of the case, it would not be equitable
to send the respondents to take proceedings in a civil court.

Allowing the appeal, this Court

HELD : 1. When disputed question of fact arises and there is clear E
denial of any tortuous liability, remedy under Article 226 of the Constitu-
tion may not be proper. However it cannot be understood as laying a law
that in every case of tortuous liability recourse must be had to a suit. When
there is negligence on the face of it and infringement of Article 21 is there,
it cannot be said that there will be any bar to proceed under Article 226 of
the Constitution. Right of life is one of the basis human right guaranteed F
under Article 21 of the Constitution. [716-D-E]

Chairman, Grid Corporation of Orissa Ltd. & Others v. Sukamani Das
and Another, [1999] 7 SCC 298, relied on.

U.P. State Co-operative Land Development Bank Ltd v. Chandra Bhan G
Dubey & Ors., [1999] 1SCC741; Shakuntala Devi v. Delhi Electric Supply
Undenaking, [1995] 2 SCC 369; The Chairman Railway Board and Others v.
Mrs. Chandrima Das, [2000] 1SCALE279; Nilabati Behra v. State of Orissa
and Others, [1993] 2 SCC 746; Kumari (Smt.) v. State of Tamil Nadu and
Others, [1992] 2 SCC 223, referred to. H
+
710 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 2.1. There is no provision iri the Arbitration and Conciliation Act,
1998 (new Act) for referring the matter to arbitrator by interv~ntion of the
C~>0rt. However, if during the pendency of ~he proceedings in the court parties
have entered into an arbitration agreement then they have to proceed in
accordance with the provisions of the new Act and when award is made it
B is a decree ctnd it cannot be filed in the High Court and it has to be Ried in
the court as defined in clause (e) of Section 2 of the new Act for its enforce-
ment as a decree under Section 36 of the new Act. H there is challenge to
the award recourse has to be under Section 34 of the new Act.[716-B-C]
P. Anand Gajapathi Raju and Others v. P.V.G. Raju (died) and Others,
c [WOO] 3 SCALE 330, relied on. .
2.2. Exercise of jurisdiction by the High Court in entertaining the
petitions was not proper and High Court in any case could not have
proceeded to have the matter adjudicated by an arbitrator in violation of
the provisions of the new Act. Since disputed question of facts arose in the
present appeals, the High Court should not have entertained writ petitions
D
under Article 226 of the Constitution and then referred the matter to
arbitration in violation of the provisions ()f the new Act. There was no
arbitration agreement within the meaning of Section 7 of the new Act.
Under the new Act award can be enforced as if it is a decree of a court and
yet the High Court passed a decree in terms of the award which is not
E warranted by the provisions of the new Act. [718-G; E]
A.R. Antulay v. R.S. Nayak, [1988) Suppl. 1 SCR 1, referred to.

4. In view of the facts ·and circumstances of these cases when death
occurred due to electrocution and all this .time expired it would not he equi-
F table to send the respondents to take proceedings in a civil court. [719-B]
Therefore, the appellant is restrained from recovering any amount
from any of the respondents, which has been paid to them in terms of the
impugned judgments of the High Court. [719-E]
Municipal Board, Pratabgarh v. Mahendra Singh Chawla and Others
G
[1982) 3 sec 331, r.elied on.
5. The contention that the appellant did not consent to adjudication -t
of the subject of dispute by an arbitrator; cannot be taken note of, as the
High Court specifically said that it was by consent of the parties that the
H reference was being made to the arbitrator. [718-H; 719-A]
TAMIL NADU ELECTRICITY BOARD v. SUMATHI [D.P. WADHWA, J.] 711
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2981-82 of A
2000 Etc.

From the Judgment and Order dated 12.3.97 of the Madras High Court
in W.P. No. 545196 and W.M.P. No. 910 of 1996.

WITH B
Civil Appeal Nos. 2983-2995 of 2000.

From the Judgment and Order dated 12.3.97, 10.3.97, 12.3.97, ~0.3.97,
12.3.97, 7.3.97 and 14.3.97 of the Madras High Court in W.P. No. 11326/
96, W.M.P. No. 15162/96, W.A. No. 1838/92, W.P. No. 9153/92, W.M.P. No. c
13209/92, W.P. No. 3874/96, W.M.P No. 6216/96, W.P. No. 14887/95, W.M.P.
No. 23730/95, W.A. No. 1285/94, C.M.P. Nos. 17986/96, 1548/97 and W.P.
No. 5012 of 1996.

R. Mohan, M.N. Krishnamani, M.A. Krishna Moorthy, R. Nedumaran, D
V.G. Pragasam, Ms. Sushma Manchanda, Ms. K. Sarada Devi, C.S. Ashri and
B. Sunita Rao for the appearing parties.

The Judgment of the Court was delivered by

D.P. WADHWA, J. We grant leave to appeal. E

The questions, which arise for consideration in this batch of eight
appeals, are: (l) can the High Court under Article 226 of the Constitution
award compensation for the death caused due to electrocution on account of
improper maintenance of electric wires or equipment by the Tamil Nadu F
Electricity Board, the appellant and (2) whe~er the High Court while
exercising jurisdiction under Article 226 of the Constitution can appoint an
arbitrator under the Arbitration and Conciliation Act, 1996 (new Act) to
decide the quantum of compensation and then make the award of the
arbitrator Rule of the Court?
G
First question has recently been dealt with by judgment of this Court
• in Chairman, Grid Corporation of Orissa l.Jd. & Others v. Suk~ani Das and
Another. In that case the deceased met his death due to electrocution. It was
alleged that while the deceased was proceeding from his village to another
place he decided to return back as dark clouds gathered in the sky and there H
712 SUPREME COURT REPORTS [2000] 3 S.C.R.
A were thunderbolts also. While he was returning it started raining and while
walking on the road he came in contact with an electric wire which was lying
across the road after getting snapped from the overhead electric line. It was
thus alleged that the electric wire had snapped because of the negligence of
the appellant and its officers in not properly maintaining the electricity
transmission line. Thus claim for damages was laid. Appellant Grid Corpo-
B
r~tion of Orissa submitted that there was no negligence and it was because
of the thunderbolt and the lightening that one .of the conductors of the 12
W LT line had snapped even though prqper guarding was provided and
further that as soon as information regarding the snapping of line was
received from the line helper of the village concerned the power was
c disconnected. It was also contended that the deceased did not die as a result
of c_oming into contact with the live electric wire but he met his death due
to lightening. The appellant Grid Corporation objected to the jurisdiction of
the High Court under Article 226 of the Constitution and said that proper
remedy was a civil suit as disputed question of fact arose and evidence had
D to be led by both the parties. High Court, however, decided the matter ou
merit and awarded compensation of rupees one lakh. On appeal this Court
said that High Court committed an error in entertaining the writ petition as
it was not a fit case for exercising power under Article 226 of the Consti-
tution. It was observed that High Court went wrong in proceeding on the basis
that as the death had taken place because of electrocution as a result of the
E deceased coming into contact with snapped live wire of the electric transmis-
sion line of the appellants which "admittedly/prima facie amounted to neg-
ligence on the part of the appellants". This Court said that High Court failed
to appreciate that all these cases were actions in tort and negligence was
required to be established firstly by the claimant. This Court further said that
F it was a settled legal position that where disputed questions of facts were
involved a petition under Article 226 of the Constitution was not a proper
remedy. Reference was made to a decision of this Court in Shakuntala Devi
v. Delhi Electric Supply Undertaking, [1995] 2 SCC 369 wherein this Court
specifically exercised jurisdiction under Article 142 of the Constitution and
it was said that the judgment was rendered on the fa'ct$ of that case and would
G
not be treated as a precedent in any other matter.

· Shakuntala Devi case was a petition under Article 32 of the Constitu-
tion where Shakuntala Devi had claimed compensation of Rs.5 lakhs on
account of death of her husband, who got electrocuted by a live wire of
H electricity of the respondent. A live main electricity cable/wire which was
TAMILNADU ELECTRICITY BOARD v. SUMATHI [D.P. WADHWA, J.] 713
resting on an electricity pole had got snapped and was lying in the rainy and A
waterlogged village. Various complaints were made by the residents of the
village to the officers of the respondent, which was statutorily bound to
maintain electrical installation lines in proper conditions. Deceased was not
aware of the electricity leakage and when he came in contact with th~ live
cable he got electrocuted on the spot and died instantaneously. According to
B
Shakuntala Devi this was on account of criminal negligence on the part of
the respondent. The Court observed that as this disaster had left the petitioner
and her young children destitute, the present petition was moved under Article
32 of the Constitution presumably relying upon petitioner's fundamental
rights under Article 21 of the Constitution which had got adversely affected
on account of the negligent act of the officials of respondent. In these c
circumstances this Court said that it was a fit case to exercise its jurisdiction
under Article 142 of the Constitution and granted relief to Shakuntala Devi.
This Court, however, did not go into the question of infringement of the rights
of Shakuntala Devi guaranteed under Article 21 of the Constitution.
D
· In the present cases, however, High Court went a step further. Here in
some of the appeals High Court by consent appointed an arbitrator to decide
the question of compensation. Till the arbitrator gave his award an interim
compensation amounting to Rs.30,000 or so was awarded. Only in one of the
appeals before us (SLP (C) Nos. 14421- 23/97) the arbitrator had given his
award. In others during the pendency of these appeals the arbitrator gave his E
awards. The award, after hearing the objections of the appellant, was made
Rule of the Court. High Comt examined the evidence recorded by the
arbitrator. A decree was passed in favour of the respondents, which was to
carry interest at the rate of 12% per annum from the date of the filing of writ
petition till the date of realisation. Similar is the result in other seven appeals. F
It was contended by Mr. M.N. Krishnamani, Senior Advocate for the
respondents that these appeals were distinguishable from the judgment of this
court in Sukamani Das case inasmuch as matter was referred to the arbitrator,
who recorded evidence in accordance with the provisions of the new Act and
the award was subject to scrutiny by the High Court and only it was thereafter G
that a decree was passed. Reference was made to a decision of this Court in
The Chainnan Railway Board and Others v. Mrs. Chandrima Das, (2000) 1
SCALE 279 where the petitioner, a woman, was gang raped by the employees
of the railway in a room of Yatri Nivas, maintained by the Central Govern-
ment in the Ministry of Railways and it was held that the High Court of H
714 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Calcutta rightly invoked its power under Article 226 of the Constitution and
awarded compensation of Rs.10 lakhs to the victim. This Court, while
upholding the judgment of the High Court, said "the contention that victim
should have approached the Civil Court for damages and the matter should
not have been considered in a petition under Article 226 of the Constitution,
B cann~t be accepted. Where public functionaries are involved and the matter
relates to the violation of the fundamental rights or the enforcement of public
duties, the remedy would still be available under the public law notwithstand-
ing that a suit could be filed for damages under private law". Reference was
also made to another decision of this Court in Nilabati Behra v. State of
Olissa and Others, [1993) 2 SCC 746 where this Court directed the State of
c Orissa to pay a sum of Rs.1,50,000 as compensation to the appellant, who
was the mother of the deceased, who was the victim of a custodial death. Yet
another decision to which reference is made is Kumali (Smt) v. State of Tamil
Nadu and Others, [1992] 2 SCC 223. In that case a six years old boy died
as a result of falling in a ten feet deep sewerage tank in the city of Madras.
D The tank was not covered with a lid and was left open. Mother of the boy
filed a petition under Article 226 of the Constitution before the Madras High
Court seeking a writ of mandamus directing the respondents to pay Rs.50,000
as compensation. The writ petition was dismissed on the ground that in writ
jurisdiction it was not possible to deterinine as to which of the respondents
was negligent in leaving the sewerage tank uncovered. This Court awarded
E
a compensation of Rs.50,000 saying "in the facts and circumstances of this
case we set aside the High Court judgment and direct that respondent No.
1, the State of Tamil Nadu shall pay to the appellant a sum of Rs.50,000 with
interest at the rate of 12% per annum from January 1, 1990 till the date of
payment". It was left open to the State of Tamil Nadu to take appropriate
F proceedings to claim the said amount or any part thereof from any of the
respondents or any other authority which might be responsible for keeping
the sewerage tank open.

Respondents in these appeals before us have strongly relied on Article
21 of the Constitution to maintain their petitions under Article 226 of the •
G
Constitution. They referred to the following observations of this Court in the
case of Nilabati Behra, where this Court held thus "adverting to the grant of
relief to the heirs of a victim of a custodial death for the infraction or invasion
of his rights guaranteed under Article 21 of the Constitution, it is not always
enough to relegate him to the ordinary remedy of a civil suit to claim damages
H for the tortuous Act of the State as that remedy in Private Law indeed is
TAMIL NADU ELECTRICITY BOARD v. SUMATID [D.P. WADHWA, J.] 715

.. available to the aggrieved party. The primary source of the Public Law
proceedings stems from the prerogative writs and the courts have, therefore,
A

to evolve 'new tools' to give relief in Public Law by moulding it according
r to the situation with a view to preserve and protect the Rule of Law". Further
the Court goes to hold in para 33 of the judgment:
B
"The old doctrine of only relegating the aggrieved to the remedies
available in civil law limits the role of the courts too much as protector
and guarantor of the indefeasible rights of the citizens. The courts
have the obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and expected to
respond to their aspirations." c
In was thus submitted that respondents' right to life under Article 21 of the
Constitution had been violated because of the negligence of the public
authorities and that it was a well settled legal proposition that High Court
under Article 226 of the Constitution had the power to award compensation
D
in case of violation of fundamental rights by State's instrumentality or
servants and the award of compensation in proceedings for enforcement of
fundamental rights under Articles 226 and 32 of the Constitution is a remedy
available in Public Law. Finally it was submitted that the Public Law
Joi,.
proceedings serve a different purp~se than the Private Law proceedings. The
relief of monetary compensation, as exemplary damages, in proceedings E
under Article 226 by the High Court for infringement the indefeasible right
guaranteed under Articlf> '21 of the Constitution is a remedy available in
Public Law. Therefore, when the Court moulds the relief by granting com-
pensation under Article 226 of the Constitution, it does so under the Public
Law by way of penalising the wrongdoer and fixing the liability for the public
F
wrong on the State which has failed in its public duty to protect the
fundamental rights of the citizens. It was, therefore, submitted by the respond-
ents that the judgment of the High Court was right in law as compensation

- could be awarded under Article 226 for the infringement of fundamental
rights of the citizens.
G

, ,, On the second question it was submitted that since reference was made
to the arbitrator with the consent of both the parties and the arbitrator held
proceedings in accordance with law and thereafter this Court also examined
~ the award and proceedings and on that basis passed a decree it was imper-
missible for the appellant to contend otherwise and rather appellant was H
/
716 SUPREME COURT REPORTS [2000] 3 S.C.R.
A estopped for taking a contrary stand before this Court. It was submitted that
the provisions of new Act had been fully complied with and there was no
error in the award or High Court passing a decree on that basis.

This Court in P. Anand Gajapathi Raju and Others v. P. V.G. Raju
B .(dead) and Others, (Civil Appeal No. 5351of1993 decided on 26.3.2000),
has held that there is no provision in the new Act for referring the matter
to arbitrator by intervention of the Court. However, if during the pendency
of the proceedings in the court parties have entered into an arbitration
agreement then they have. to proceed in accordance with the provisions of
the new Act and when award is made it is a decree and it cannot be filed
c in the High Court and it has to be filed in the court as defined in clause (e)
of Section 2 of the new Act for its enforcement as a decree under Section
36 of the new Act. If there is challenge to the award recourse has to be under
Section 34 of the new Act.

D In view of the clear proposition of law laid by this Court in Sukamani
Das case when disputed question of fact arises and there is clear denial of
any tortuous liability remedy under Article 226 of the Constitution may not
be proper. However, it cannot be understood as laying a law that in every
case of tortuous liability recourse must be had to a suit. When there is
negligence on the face of it and infringement of Article 21 is there it cannot
E ~~ said that there will be any bar to proceed under Article i16 of the
Constitution. Right of life is one of the basic human rights guaranteed under
Article 21 of the Constitution. In U.P. State Co-operative Land Development
Bank l.Jd. v. Cliandra Bhan Dubey & Ors., [1999] 1 SCC 741 where one of
us (Wadhwa, J.) was a party, this Court after examining various decisions of
F the courts on the power of the High Court under Article 226 of the
Constitution observed that the language of Article 226 of the Constitution
does not admit of any limitation on the powers of the High Court for the
exercise of jurisdiction thereunder though by various decisions of this Court

G
with varying and divergent views, it has been held that jurisdiction under
Article 226 can be exercised only when a body or authority, the decision of
which is complained, was exercising its power in the discharge of public duty
-
and that writ is a public law remedy. This Court then observed :

" ... [i]t may not be necessary to examine any further the question
if Article 226 makes a divide between public law and private law.
H Prima facie from the language of the Article 226 there does not
TAMIL NADU ELECTRICITY BOARD v. SUMATHI [D.P. WADHWA, J.] 717

-· .i(
appear to exist such a divide. To understand the explicit language
of the Article it is not necessary for us to rely on the decision of
English Courts as rightly cautioned by the earlier Benches of this
Court. It does appear to us that Article 226 while empowering the
A

r
~
High Court for issue of orders or directions to any authority or
person does not make any such difference between public func- ·
B
tions and private functions. It is not necessary for us in this case
to go into this question as to what is the nature, scope and ampli-
tude of the writs of habeas corpus, mandamus, prohibition, quo
warranto and certiorari. They are certainly founded on the Eng-
lish system of jurisprudence. Article 226 of the Constitution also
speaks of directions and orders which can be issued to any per- c
son or authority including, in appropriate cases, any Government.
Under clause (1) of Article 367 unless the context otherwise re-
quires, the General Clauses Act, 1897, shall, subject to any adap-
tations and modifications that may be made therein under Article
372 apply for the interpretation of the Constitution as it applies
D
for the interpretation of an Act of the Legislature of the Domin-
ion of India. "Person" under Section 2(42) of the General Clauses
Act shall include any company, or association or body of indi-
viduals, whether incorporated or not. Constitution is not a stat-
ute. It is a fountain head of all the statutes. When the language of
~
Article 226 is clear, we cannot put shackles on the High Courts to E·
limit their jurisdiction by putting an interpretation on the words
which would limit their jurisdiction. When any citizen or person
is wronged, the High Court will step in to protect him, be that
wrong be done by the State, an instrumentality of the State, a
company or a cooperative society or association or body of indi- F
viduals whether incorporated or not, or even an individual. Right
that is infringed may be under Part III of the Constitution or any
other right which the law validly made might confer upon him.

- But then the power conferred upon the High Courts under Article
226 of the Constitution is so vast, this court has laid down certain
guidelines and self-imposed limitations have been put there sub- G
ject to which High Courts would exercise jurisdiction, but those
guidelines cannot be mandatory in all circumstances. High Court
does not interfere when an equally efficacious alternative rem-
edy is available or when there is established procedure to remedy
a wrong or enforce a right. A party may not be allowed to by-pass H
+
718 SUPREME COURT REPORTS [2000] 3 S.C.R.
A the normal channel of civil and criminal litigation. High Court
does not act like a proverbial 'bull in china shop' in the exercise
... •
of its jurisdiction under Article 226.

In the present case, disputed questions of facts did arise and the High ~
'-
Court was itself aware of the same. It was on that account that the High Court
B referred the disputes through arbitration for adjudication. It was submitted by
Mr. R. Mohan, learned senior counsel for the appellant, that the High Court
by referring the matter to arbitration has created a new jurisdiction to deal ....
with the alleged negligence of the appellant and has also appointed a forum
for adjudication of the same. It was submitted that creation of such a forum
c and jurisdiction is legislative in character and it could not be done or assumed
otherwise. In support of his submission Mr. Mohan referred to a Constitution
Bench decision of this Court in A.R. Antulay v. R.S. Nayak & Am:, [1988]
Supp. 1 SCR 1 where the Court had observed :

"The power to create or enlarge jurisdiction is legislative in
D character, so also the power to confer a right of appeal or to take away
a right of appeal Parliament alone can do it by law and no Court,
whether superior or inferior or both combined can enlarge the
jurisdiction of a Court or divest a person of his rights of revision and
appeal" ~

E
Since disputed questions of facts arose in the present appeals the High ""'
Court should not have entertained writ petitions under Article 226 of the
Constitution and then referred the matter to arbitration in violation of the
provisions of the new Act. There was no arbitration agreement within the
meaning of Section 7 of the new Act. Under the new Act award can be
F enforced as if it is a decree of a court and yet the High Court passed a decree
in terms of the award which is not warranted by the provisions of the new
Act. Appellant had also raised plea of bar of limitation as in many cases if
suits had been filed those would have been dismissed as having been filed
beyond the period of limitation. In our opinion exercise of jurisdiction by the ...
G High Court in entertaining the petitions was not proper and High Court in
any case could not have proceeded to have the matter adjudicated by an
arbitrator in violation of the provisions of the new Act. Mr. Mohan also
'(
contended that the appellant did not consent to adjudication of subject
disputes by an arbitrator. That the matter was referred to the arbitrator without
the consent of the appellant as now being alleged can not be taken note of
H
TAMIL NADU ELECTRICITY BOARD v. SUMATID [D.P. WADHWA, J.] 719

- "' :Y( as the High Court specifically said that it was by consent of the parties that
the reference was being made to the arbitrator.
A

It was submitted by Mr. Krishnamani that in view of the facts and
_____.,._
circumstances of these cases when deaths occurred due to electrocution and
all this time has expired it would not be equitable to send the respondents
to take proceedings in a civil court. He referred to a decision of this Court B
in Municipal Board, Pratabgarh v. Mahendra Singh Chawla and Others,
[1982] 3 SCC 331 where this Court made following observations:

"While exercising the discretionary jurisdiction under Alticle 136,
law is to be tempered with equity and if the equitable situation c
demands after setting right the legal formulations not to take it to the
logical end, the Supreme Court would be failing in its duty if it does
not notice equitable considerations and mould the final order. In
exercise of the extraordinary jurisdiction under Article 136 the
discretion should be so exercised by the Court that justice may be
rendered to both the parties." D

We are inclined to agree with the last submission of Mr. Krishnamani.

We answer both the questions in favour of the appellant. We would,
--. ~ therefore, allow the appeals and dismiss the writ petitions filed by the
respondents. In the circumstances, however, we restrain the appellant from E
recovering any amount from any of the respondents, which has been paid to
them in terms of the impugned judgments of the High Court. There shall be
no order as to costs.

K.K.T. Appeals allowed. F