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2006 DIGILAW 284 (JK)

Ab. Rehman Dar v. State

2006-11-27

J.P.SINGH

body2006
1. Claiming benefit of Government Order No. 732-GR (GAD) of 1990 dated 10.07.1990 read with Government Order No: 125-GAD of 1997 dated 27.01.1997 Abdul Rehman Dar, petitioner, has filed this petition for grant of ex gratia relief of Rs.45000/- besides an amount of Rs.20 lakhs and treatment at State expense to his disabled son, by way of compensation. 2. With the consent of learned counsel for the parties, this petition has been taken up for final disposal on the basis of the official records, which were made available by Sh. M. A. Rathore, learned Additional Advocate General appearing for the respondents. 3. The petitioner says that his son Mohd Ayoub Dar was apprehended by Rajput Rifles from his house on 10.04.1990. He was tortured in custody rendering him mentally deranged. The then Governor of the State intervened and the petitioners son was released from custody. The petitioners son was medically examined after his release and was found to be suffering from Chronic Schizophrenia, a long duration mental illness requiring treatment over the long period of time. Petitioner thus claims Rs.20 lakhs as compensation from the State-respondents who had disabled the petitioners son to earn his living thereby depriving him of his fundamental right to life and liberty. 4. The State-respondents have held the petitioners son ineligible to the grant of ex gratia relief. His son was, however, awarded an amount of Rs. 30,000/- out of the Chief Ministers Relief Fund. 5. Before dealing with the issues demonstrated at the Bar by the learned counsel for the parties, reference to communication No.DCB/Relief/2004/989 dated 05.10.2004 from Deputy Commissioner Budgam to Financial Commissioner, Home Department Srinagar and order of the State Human Rights Commission, Srinagar dated 18.03.2004 may be necessary. The communication and the order read thus: "Shri Ab. Rehman Dar lodged a complaint with the Human Rights Commission J&K to the effect that his son Mohd Ayub Dar was apprehended by the Security Forces in the year 1990 and after Excellency the Governor of J&K State and that due to continuous torture his son was mentally deranged and thus having been rendered permanently incapacitated to earn his livelihood. 6. Superintendent of Police City South Srinagar and Superintendent of Police CID, CIK Kashmir have indicated that the subject is not involved in the subversive/militant activities. 7. 6. Superintendent of Police City South Srinagar and Superintendent of Police CID, CIK Kashmir have indicated that the subject is not involved in the subversive/militant activities. 7. The finding of Medical Board constituted under the Head of Department Psychiatry diseases Hospital Srinagar read that "Mohd Ayub Dar was diagnosed as a case of Chronic Schizophrenia, long duration Mental disease which needs treatment over a prolonged period of time and that patient has been in treatment from psychiatrists privately for same ailment." Earlier the Neuro Psychiatrist SKIMS Medical College Hospital Bemina, has certified that "Mohd Ayub Dar is not in a position to earn his livelihood." ".....The factum of arrest of the boy and his release after 45 days is admitted. This also is admitted that the boy is at the age of 30 years and is a psychiatric patient. The present case projects a relief which could have better been granted by a Civil Court or the High Court of the State under its writ jurisdiction. However, keeping in view the peculiar circumstances involved in this case I dispose of the case with a recommendation that the Government may examine the case and pay some amount to the complainant for the wrong done to his son, despite the fact that he was not involved in militancy. This decision may be taken as expeditiously as possible." 8. Perusal of the two documents referred to hereinabove and other documents forming part of the records reveal that the State Government had admitted and acknowledged the factum of Mohd Ayub Dars detention in illegal custody of the Security Forces as also his having suffered permanent disablement rendering him incapable of earning his livelihood. It was probably because of this acknowledgment that the petitioner was paid an amount of Rs. 30,000/- out of discretionary grant of the Chief Minister. 9. With this factual back ground that the petitioners son had suffered permanent disablement because of his detention and torture in custody, I will now examine as to whether or not the petitioner was entitled to ex-gratia relief in terms of the two Govt. orders relied upon by him in the writ petition. 10. 9. With this factual back ground that the petitioners son had suffered permanent disablement because of his detention and torture in custody, I will now examine as to whether or not the petitioner was entitled to ex-gratia relief in terms of the two Govt. orders relied upon by him in the writ petition. 10. Perusal of these two Government orders shows that ex-gratia relief was payable only in respect of those who were either killed or permanently/partially disabled, directly as a result of violence attributable to breach of law and order or any other form of Civil Commotion. 11. Case set up by the petitioner does not indicate that his son had been permanently disabled as a Direct result of violence attributable to breach of law and order or any other form of Civil Commotion. His case on the other hand was that his son had suffered torture in illegal custody of the Security Forces working under control of the State Government rendering him permanently disabled. Such type of cases, in my view, do not attract the applicability of Govt. Order No: 732-GR (GAD) of 1990 dated 10.07.1990 and Govt. Order No: 125-GAD of 1997 dated 27.01.1997. Accepting the submission of Shri Rathore, I would thus hold that the petitioner is not entitled to ex gratia relief under the Government orders relied upon by him in his writ petition. 12. This takes me to the next question as to whether the petitioner was entitled to compensation for permanent disablement and wrongful confinement of his son by the Security Forces. 13. The State Government, have admitted and acknowledged, in its various notings, that the petitioners son had suffered permanent disablement during his illegal custody with the Security Forces. Petitioners son has suffered because of no fault of his. He has been deprived of his right to life and liberty guaranteed under Article 21 of Constitution of India. The Security Forces which had detained petitioners son, were working under control of the State Government. State Government is thus liable to compensate petitioners son. This has, however, not happened. State Government has thus, failed to discharge its constitutional obligation to process the case of the petitioner and award him compensation for permanent disablement and confinement of his son in custody. Payment of an amount of Rs. State Government is thus liable to compensate petitioners son. This has, however, not happened. State Government has thus, failed to discharge its constitutional obligation to process the case of the petitioner and award him compensation for permanent disablement and confinement of his son in custody. Payment of an amount of Rs. 30,000/- out of the Chief Ministers Relief Fund would not be substitute for requisite compensation to which the petitioners son was entitled for depriving him of his fundamental right. 14. The State Governments failure to discharge its constitutional obligation in providing requisite compensation to the petitioner and his son, makes out a case for issuance of a direction to the State-respondents to discharge their constitutional obligation. 15. I would have remanded the matter to the State Government to determine and pay requisite compensation to the petitioners son but his deprivation to the compensation for sixteen long years comes in the way. It would thus be inexpedient to remand the matter to the State Government to determine the amount of compensation payable to petitioners son, because such a course may be a time consuming process. 16. To protect the petitioner and his son from further agony of going through the time consuming process of determining compensation, I have thought it fit, proper, and expedient to determine compensation in these proceedings so that the petitioner, who has already entered the evening of his life, succeeds in securing justice for his son during his life time. 17. In order to determine requisite compensation, I have taken cue from the Motor Vehicle Act, 1988 and its Schedule-II which provides method of determination of compensation. Had the petitioners son suffered permanent disablement in a motor vehicle accident, he would have been entitled to an amount in terms of the Motor Vehicles Act and its Schedule which may not be less than Rs.2 lakhs as the permanent disability suffered by petitioners son of his having been rendered mentally deranged and incapacitated to earn his livelihood establishes his 100% disability. 18. Compensation for wrongful confinement and torture resulting in his 100% permanent disablement, cannot thus, by any stretch of reasoning, be less than Rs.2 lakhs. 19. I, therefore, assess Rs. 2 lakhs as requisite compensation to petitioners son for suffering permanent disability and illegal confinement at the hands of the security forces functioning under the control of the respondents. 18. Compensation for wrongful confinement and torture resulting in his 100% permanent disablement, cannot thus, by any stretch of reasoning, be less than Rs.2 lakhs. 19. I, therefore, assess Rs. 2 lakhs as requisite compensation to petitioners son for suffering permanent disability and illegal confinement at the hands of the security forces functioning under the control of the respondents. The respondents are held liable to pay this amount by way of compensation to petitioners son through his father. 20. This petition is accordingly allowed and respondents are directed: (i) To pay to Mohd Ayub Dar, the petitioners son an amount of Rs.2 lakhs by way of compensation. (ii) The compensation amount shall be deposited by the respondents with Registrar Judicial of this Court within a period of one month. (iii) Registrar Judicial shall keep an amount of Rs. 1.50 Lakhs out of the deposited amount in a Fixed Deposit and shall release the remaining amount of Rs. 50,000/- to the petitioner after getting an undertaking from the petitioner that the amount would be spent by him to maintain his disabled son. (iv) The petitioner shall be entitled to receive the interest component of the amount kept in Fixed Deposit as and when it so accrues. Interest component shall be released by Registrar Judicial on being satisfied that the amount was needed by the petitioner to maintain the affairs of his son. 21. This petition is accordingly disposed of with liberty to the petitioner to approach this Court again in case he may feel any necessity of seeking more amount out of the one kept in Fixed Deposit to spend it for his sons welfare. Records produced by Mr. Rathore shall be returned to him.