Arun Mishra, J.
1. In the instant writ petition, the question arises whether 'electricity' can he treated as a "hazardous substance" as defined in Section 2(d) of the Puhlic Liability Insurance Act, 1991 (for short 'Act of 1991') read with Section 2(e) of the Environment (Protection) Act, 1986 (for short 'Act of 1986').
2. Claimant/respondent No. 2 Smt. Sukarti Bai filed an application before the Collector, District Mandla claiming compensation from petitioner M.P. Electricity Board, Jabalpur on account of the death of her husband Kashiram as the death of her husband took place owing to electrocution while the deceased came in contact with the electric wire.
3. The Collector has awarded a compensation of Rs. 25,000/-holding that the electricity is a hazardous substance as per Public Liability Insurance Act, 1991.
4. The petitioner in the instant writ petition avers that M.P. Electricity Board is a body duly constituted under Section 5 of the Electricity (Supply) Act, 1948. The Collector failed to appreciate the legal position properly. Learned Counsel for the petitioner contends that the electricity is not a hazardous substance and the same does not come within the definition of a hazardous substance as defined in Section 2(d) of the Act of 1991 which has referred to the words "hazardous substance" as defined in Environment (Protection) Act, 1986. The submission of the learned Counsel for the petitioner is that the electricity is hazardous if it is not used with proper care and caution but it is not a substance. Electricity is nothing but simply the flow of free electrons in a particular time at a particular movement. This flow can be in a wire or in the atmosphere in general in lightening. The flow of energy cannot be held to be a substance. Therefore, the electricity cannot be termed as hazardous substance. It is further averred in the instant writ petition that the electricity has not been notified by the Central Government as hazardous substance under Section 2(d) of the Public Liability Insurance Act, 1991. Notification issued on 24-3-1992 by the Central Government makes no mention of electricity as hazardous substance, hence in the absence of notification of electricity, it cannot come within the definition of hazardous substance as defined in Section 2(d)) of the Act of 1991. The other facts are not repeated as they are not related to the points in question.
5. Learned Counsel appearing for the respondent No. 1 Collector, Mandla submitted that the impugned order does not call for any interference. Reliance is placed on the decision of this Court, in (M.P. State Electricity Board, Jabalpur v. Collector, Mandla and Ors.), Writ Petition No. 2165 of 2001, decided on 15-4-2002 by Brother Justice Dipak Misra in which the decision of Allahabad High Court in U.P. State Electricity Board v. District Magistrate, Dehradun, AIR 1998 All 1, has been relied upon. Learned Counsel for the respondent No. 1 further submitted that the electricity has to be treated as a hazardous substance.
6. "First question for consideration is whether electricity is a "hazardous substance" ?"
Before I advert to the two decisions cited at the Bar, it is relevant to notice that it has not been disputed that the electricity is hazardous. The electricity is as something seen only through the results accomplished by it (Hill v. Carolina Power & Light Co., 28 S.E. 2d. 545, 553, 204 SC 83) which has become essential part of life and intrinsically connected with reasonable enjoyment of right to life itself. Life is not as animal existence but encompasses in itself basic frugal comforts which are necessary to make life worth.
7. The characteristics indicates that "electricity" is a silent, deadly and instantaneous force, Electricity is a subtle, invisible, noiseless, death-dealing agency that gives no warning of its presence. Those who make, sell, distribute and use electricity, which is invisible force highly dangerous to life and property, are bound to use care in proportion to danger involved. (Teddleton v. Florida Power & Light Co., 200 So. 546, 549, 145 Fla. 671).
8. Process of production of electricity is process of manufacture. In Curry v. Alabama Power Co., 8 So. 2d 521, 526, 243 Ala. 53, a corporation engaged in generation and distribution of electricity is held to be a "manufacturing corporation" within Use Tax Act exempting machines used in manufacturing tangible personality. The word "manufacture" means the making of anything by hand or artifice, or the process of making anything by art of reducing materials into a form fit for use, by the hand or by machinery, or the production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations whether by hand or by machinery.
9. Conducting of electricity cannot take place through the dead wire. Electricity is an imponderable and invisible agent producing light, heat, chemical decomposition and other physical phenomena. (United State v. City and County of San Francisco, D.C. Cal,, 23 F. Supp. 40, 52). It cannot be denied that the electricity is a powerful and subtle force and most of the developments all around is based on it. The force of this energy is called electricity. The electricity gives no warning and may travel anywhere and everywhere. Whatever electricity may be, it seems to be absolutely within the power and under the control of the company that brings it into being. It is compelled by the process employed to come into being. It is secured, poured out, or liberated at will. Its manifestations are both seen and felt. It moves with incredible velocity and power. It carries the tones and inflections of the human voice, or moves loaded cares, depending on the volume of the current and the manner of its application. It may be in the hands of the physician a soothing remedial agent, and in the hands of the law an instrument of execution, swifter and surer than the headsman's ax as amply observed in Commonwealth v. Northern Electric Light & Power Co., 22 A 839, 840, 145 Pa. 105; 14 L.R.A. 107.
10. In Imperial Dictionary "electricity" is defined as "the name given to the series of phenomena exhibited by various substances, and also to the phenomena themselves. We are totally ignorant of the nature of this cause--whether it be a material agent, or merely a property of matter. But as some hypothesis is necessary for explaining the phenomena observed, it has been assumed to be highly subtitle, imponderable fluid, identical with lightening, which pervades the power of all bodies, and is capable of motion from one body to another. Electricity, when accumulated in large quantities, becomes an agent capable of producing the most sudden, violent and destructive effects, as in thunder storms; and even in its quiescent state it is extensively concerned in the operation of nature" as observed in Spensley v. Lancashire Ins. Co., 11 N.W. 894, 897, 54 Wis. 433.
11. In Nainital Hotel Co. Ltd. v. Municipal Board, Nainital, AIR 1946 All 502, it was held that electric energy is "movable property" and therefore "goods" within the meaning of Article 52 of the Limitation Act. Relevant portions as observed in above said case are quoted below :--
"(19) The remaining objection that electric energy is not 'goods' within the meaning of Article 52 requires more consideration. It may be noted first of all that in the Lahore case cited in AIR 1938 Lah. 338 no such objection appears to have been taken and it was assumed that the article applied to electric energy as much as to any other commodity. The word 'goods' is not defined in the Limitation Act, but according to the definition in the Indian Sale of Goods Act the word means 'every kind of movable property other than actionable claims and money". Electric energy is bought and sold like any other commodity and there can, therefore, be no doubt that it is 'property'.
(23) And quite apart from these considerations I cannot see any difficulty in holding that electric energy is movable, for it can certainly be transmitted or sent from one place to another, and this implies that it is moved.
(24) There is another argument which points to the same conclusion. This is that under the General Clauses Act property is either movable or immovable, electric energy is certainly not immovable property as that expression is defined in the same Act or any other Act. The definitions are not exhaustive, since they use the word "includes" and not the word 'means' but there is nothing in the examples given which would suggest that electric energy should also be included."
12. It is not in dispute that electricity can be sold. Its use has constructive as well as destructive results both. Means of transportations and light houses and virtually all the manufacturing activities depend on it. In the Factories Act, 1948 "hazardous process" has been defined in Section 2(cb) which means any process or activity in relation to an industry specified in the First Schedule. The First Schedule mentions the power generating industries. "Manufacturing Process" is defined in Section 2(k) of Factories Act, 1948 which means any process for "generating, transforming or transmitting power". The process for manufacture is involved before the electricity is transmitted after being generated. Electricity may be sent. Its use may be erratic or in confined space. It is caused by employed labour. It may be used for protection of environment and health and it can be used as an explosive device. There are several alternative electricity sources as nuclear power electricity, wind mill, hydro-electric power. It is back bone of several business and commercial activities. Considering the various uses of the electricity, it can be sold and manufactured and back bone of Commerce of Industry, it has to be held to be movable property and in my opinion electricity is a substance.
13. The scientific property was discussed in U.P. Electricity Board v. District Magistrate (supra). The meaning of word "substance" was considered in terms of Chambers English Dictionary which has defined "substance" to mean "that in which qualities or attributes exist, the existence to which qualities belong; that which constitutes anything what it is the principal part; subject-matter; body; matter; kind of matter; especially one of definite chemical nature; amount; wealth; property; solidity; body; solid; worth-foundation; ground".
14. In U.P. State Electricity Board v. District Magistrate (supra), it was observed as under :--
"27. To examine whether electricity can be called a 'substances' we have to first understand the nature of electricity. Electricity is simply a flow of free electrons in a particular direction at a particular moment. This flow can be in a wire, or even in the atmosphere e.g. in lighting.
28. It is well known in modern physics that matter consists of atoms, which were earlier regarded as indivisible particles according to Dalton's theory. However, the British Scientist J.J. Thomson established in 1897 that in fact atoms consist of smaller particles, and one of such smaller particles are electrons. The basic concept of the atomic model was subsequently propounded by Rutherford in 1911 who established that atoms consist of a heavy nucleus (consisting of protons, neutrons, etc.) with electrons orbiting it (analogous to the planets orbiting the sun). These electrons contain negative electrical charges, whereas the protons, which are part of the nucleus contain positive electricity. When some electrons are removed from their orbits they become free electrons, and when these free electrons flow in a particular direction they form an electric current.
29. An electron is a particle with a negative electric charge of magnitude 0.1602 x 10-18 coulombs. The mass of an electron is 0.9108 x 10-30 kg. which is 1/1837 of the mass of the hydrogen atom. An electron is very small. The radius of the electron has not been determined exactly, but it is known to be for less than 1 x 10-15 m.
30. In 1925 it was discovered that an electron spins about an axis and that it has a magnetic moment.
31. Thus, it is clearly established by modern physics that an electron is a very small particle of matter with a negative electrical charge and certain other properties. An electron is thus a material particle, and electricity is the flow of these small material particles in a particular direction. This flow is consequently a flow of matter, and the flow has physico-chemical properties e.g. when passed through water, it separates the hydrogen from the oxygen atoms (electrolysis). We may not be able to see this flow, but we can feel it because if we touch a naked live wire it gives an electric shock. Hence it is substance as defined in Chambers English Dictionary."
It was observed that electricity consists of electron which is a substance. Electron spins about an axis and that it has a magnetic moment. It is a very small particle of matter with a negative electrical charge and certain other properties. An electron is thus a material particle. On coming to conclusion, electricity has been held to be a substance.
15. Brother Justice Dipak Misra while deciding Writ Petition No. 2165/2001 has not only relied upon the decision in the case of U.P. State Electricity Board (supra), but has held that "electricity" is a "hazardous substance".
16. From the above discussion it is clear that the electricity is a "hazardous substance".
17. The next question for consideration is whether a notification is required to be made by the Central Government quantifying the electricity by notification as mentioned in Section 2(d) of the Public Liability Insurance Act, 1991. The definition of "hazardous substance" has been given in Section 2(d) of the Public Liability Insurance Act, 1991 which is as under :--
"2 (d). "hazardous substance" means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986, and exceeding such quantity as may be specified, by notification, by the Central Government."
The definition of "hazardous substance" has been borrowed from Section 2(e) of the Environment (Protection) Act, 1986. As per Section 2(e) of the said Act, definition of "hazardous substance" reads as under :--
"2 (e). 'hazardous substance' means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment."
18. The submission of Shri V. Rusia, learned Counsel for the petitioner is that until and unless the electricity is notified by the Central Government, it cannot fall within the meaning of hazardous substance and definition has been carved out especially for the purpose of Public Liability Insurance Act, 1991.
19. "Hazardous Substance" has been defined in Section 2(e) of the Environment (Protection) Act, 1986, according to which it means any substance or preparation which, by reason of its chemical or physico-chemicai properties or handling, is liable to cause harm to human beings. Physico-chemical properties of electricity are definitely liable to cause harm to human beings and other living creatures, plants, micro-organism etc. Thus, it has to be regarded as "hazardous substance" within the meaning given in Section 2(e) of the Environment (Protection) Act, 1986 and once when something is hazardous irrespective of quantity, in my opinion it is not necessary for the Central Govt. to issue a notification as it is not necessary to notify electricity as required in Section 2(d) of the Public Liability Insurance Act, 1991 as it is hazardous irrespective of its quantity. A thing which is known as intensely hazardous has to be treated as hazardous substance so as to effectuate the purposes for the enactment of the Act of 1991. Whatever irrespective of proportion is hazardous has to be treated as hazardous one. Some article may not be hazardous in small quantity but electricity is not one of such article. Only those hazardous substances have to be notified which may be dangerous on exceeding such quantity then it becomes necessary to specify the quantity. In my opinion it is not necessary for the electricity to be notified under Section 2(d) of the Act of 1991 as in any quantity electricity is hazardous. It has to be taken as hazardous substance within the meaning of Section 2(d) of the Act of 1991. Section 2(d)of the Act of 1991 does not have effect narrowing down the meaning of "hazardous substance" as defined in Section 2(e) of the Act of 1986. Similar question was answered in U.P. State Electricity Board (supra) and in M.P. State Electricity Board, Jabalpur v. Collector, Mandla, in W.P. No. 2165/2001, decided on 15-4- 2002. In U.P. State Electricity Board (supra), it was held in para 42 as under :--
"42. Hence in my opinion, hazardous substance' as defined in Section 2(d) of the 1991 Act is not to be confined to a substance specified in the notification issued by the Central Government, but it includes all substances which come under the definition of 'hazardous substance' under the Environment (Protection) Act, 1986, with this exception that if any such substance is also notified by the Central Government under Section 2(d) of the 1991 Act then it will be a 'hazardous substance' only if it exceeds the quantity specified in the said notification. Thus the notification issued by the Central Government under Section 2(d) of the 1991 Act can only narrow down the scope of 'hazardous substance' as defined under the Environment (Protection) Act, 1986, but substances which are not specified in the said notification will nevertheless be regarded as 'hazardous substances' under the 1991 Act if they come within the definition of 'hazardous substances' under the Environment (Protection) Act, 1986."
In the case of M.P. Electricity Board, Jabalpur (supra), it was held as follows :--
"On a reading of aforesaid two definitions it can not be construed that the substance which is not notified by the Central Government cannot be regarded as a 'hazardous substance'. The terms used under Section 2(d) of the Act are of wide amplitude and of immense magnitude. They are not to be understood in a narrow, restricted or confined manner. On the contrary, it covers a large canvas. The dictionary clause does not lay down a postulate that unless a substance is notified it cannot be regarded as a hazardous substance. The definition in the Act refers to Environment (Protection) Act, 1986. I have reproduced the aforesaid definitions hereinabove. The said definition is in a broad spectrum. It cannot be encompassed in a small region. If both the definitions are read together it is quite pronounced that the electricity should come within the ambit and sweep of the definition, and certain substances may become hazardous if they are notified as required under the provisions. Thus, notification by the Central Government is not the sine qua non to make a substance hazardous."
20. Section 3(2) of the Act of 1991 speaks about the strict liability without fault in case of such accidents involving death due to hazardous substance and it is not necessary for the claimant to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person. No policy was taken out by the Board. That will not affect the liability of the owner. The main aims and objects of the Board to generate, transform and transmit the electricity and these are its activities. It cannot escape from its liability by saying that no policy was taken by the Board.
21. I find no merit in the instant writ petition. Thus, this writ petition is dismissed. However, in the facts and circumstances of the case, no order as to costs.