Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 473 (GAU)

Monira Khatun v. State of Assam

2008-06-27

ANIMA HAZARIKA

body2008
JUDGMENT A. Hazarika, J. 1. Praying for issuing a writ of mandamus and or any other appropriate writ/order or direction for releasing payment of ex-gratia grant of Rs. 5 Lacs in terms of the provisions of the Office Memorandum dated 6.11.97, the instant writ application has been filed under Article 226 of the Constitution of India. 2. The Petitioner's case in brief, is that the writ Petitioner is the wife of late Gonzer Ali who was working as Constable under Assam Forest Protection Force. On 10.10.98 when he was on duty at Assam Forest Protection Force Camp (for short the Camp) under Borbadha Forest Range Office, Dhubri Division in the Kokrajhar District, the Santhal extremists attacked the said camp at about 3.30 PM and in the exchange of fire with the said extremist Md. Gonzer Ali died alongwith other Assam Forests Protection Force personnel. Accordingly, on the basis of the FIR, Tamarhat Police Station Case No. 93/98 under Sections 147/ 148/ 149/ 326/ 302 IPC read with Section 27(A) of the Arms Act was registered. Post mortem examination was conducted over the dead body of the deceased Gonzer Ali wherein it revealed that he died as a result of bullet and cut injury sustained by him. 3. The police report dated 24.9.99 addressed to the Deputy Commissioner, Kokrajhar by the Superintendent of Police Kokrajhar clearly mentioned about the aforesaid incident wherein Gonzer Ali died due to attack by the extremist. It was also mentioned that the extremist looted away 16 Nos. of Rifles and large numbers of ammunitions from the camp. On the basis of the said report the Government had granted the Petitioner an amount of Rs. 1 lakh as ex-gratia grant vide order dated 13.7.2000. The Government also sanctioned special family pension to the writ Petitioner. 4. Vide Office Memorandum dated 6.11.1997 the Government has taken a policy decision to grant an amount of Rs. 5 lakh to the next of kin of various security forces including Assam Police, CPMF, Army, Assam Rifles, Home Guards and police force of other States involved and killed in counter insurgency operation in Assam as ex-gratia irrespective of rank of such personnel. 5 lakh to the next of kin of various security forces including Assam Police, CPMF, Army, Assam Rifles, Home Guards and police force of other States involved and killed in counter insurgency operation in Assam as ex-gratia irrespective of rank of such personnel. However, the same has been denied to the Petitioner on the ground that husband of the Petitioner was a Constable of Assam Forest Protection Force and was killed by the extremist while on duty, but not in "counter insurgency operation." Hence this writ petition with the aforesaid prayer. 5. I have heard Mr. A.M. Mazumder learned Senior Counsel assisted by Mr. M. Nath learned Counsel appearing for the writ Petitioner. Also heard Ms. H.M. Phukan learned Junior Govt. Advocate appearing for the State Respondents. 6. During the course of hearing this Court directed the learned Govt. Advocate to produce various notifications issued by the Government of Assam in this connection. Accordingly Ms. Phukan, learned Junior Govt. Advocate has furnished before this Court some notifications dated 22.5.87, 13.3.89, 9.8.89, 21.6.91 and 4.1.92 issued from time to time by the Government of Assam. The learned Govt. Advocate relying on the notifications has submitted that in view of the provisions laid down in those notifications, the Petitioner is not entitled to receive the ex-gratia grant of Rs. 5 lacs inasmuch as, the next of kin of personnel of Assam Police, CPMF, Army, Assam Rifles, Home Guards and Police Forces of other States, who died in "Counter Insurgency" are only entitled to get Rs. 5 lacs as ex-gratia payment. Hence it has been submitted by the learned Govt. Advocate that since the husband of the Petitioner was a constable of "Assam Forest Protection Force" who was "killed by the extremist" on duty does not fall within the meaning of security forces who are killed in course of "counter insurgency operation". Drawing the attention of the court to the various notifications Ms. Phukan submitted that the Petitioner is not entitled to any relief under the Office Memorandum dated 6.11.97 since the husband of the Petitioner was not killed in the counter insurgency operation. Further, Petitioner's case has already been considered by the Government by granting her ex-gratia of Rs. 1 lakh as well as special family pension. 7. Mr. A.M. Mazumder learned senior Counsel appearing for the Petitioner has submitted that this is a case of extra-ordinary nature. Further, Petitioner's case has already been considered by the Government by granting her ex-gratia of Rs. 1 lakh as well as special family pension. 7. Mr. A.M. Mazumder learned senior Counsel appearing for the Petitioner has submitted that this is a case of extra-ordinary nature. According to him personnel of the Assam Forest Protection Force who are provided with arms, while on duty in the State of Assam, falls within the meaning of "security force" as mentioned in the notification dated 6.11.97. In the instant case the husband of the Petitioner while on duty in the district of Kokrajhar being killed by the extremists, his wife therefore cannot be deprived of the benefit as mentioned in Office Memorandum dated 6.11.97 on the ground that her husband was not killed in the "counter insurgency operation", thereby depriving the benefit to her. 8. During the course of arguments Mr. Mazumder learned senior Counsel brought to the notice of this Court the report of the Superintendent of Police dated 24.9.99 addressed to the Deputy Commissioner, Kokrajhar wherein it has been clearly mentioned that on 10.10.98 at about 3.30 PM about 40/50 numbers of unknown Adibasi extremists armed with deadly weapons attacked the Assam Police Protection Forest Camp in the district of Kokrajhar, Assam and as a result, the husband of the Petitioner Gonzer Ali alongwith other persons sustained grievous injury on their persons and died. 9. In support of his submission Mr. Mazumder has relied upon the following decision: (1) AIR 1966 SC 81 : Dwarka Nath v. Income Tax Officer, Special Circle D-Ward, Kanpur and Anr. (2) AIR 1987 SC 537 : Comptroller and Auditor-General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr. (3) (2002) 1 SCC 100 : Roshan Deen v. Preeti Lal In the case of Dwarka Nath (supra) the Apex Court at para 5 & 6 held as under: 5. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. v. K.S. Jagannathan and Anr. (3) (2002) 1 SCC 100 : Roshan Deen v. Preeti Lal In the case of Dwarka Nath (supra) the Apex Court at para 5 & 6 held as under: 5. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads: ...every High Court shall have power, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-Ill and for any other purpose. 6. This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Court to reach injustice wherever it is found. The constitution designedly used a wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with the those in England, but only draws in analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this Country.... In Comptroller and Auditor General (supra) the Apex Court relying upon Dwarka Nath has held that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Roshan Deen (supra) the Apex Court observed that "power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it" 10. I have heard the learned Counsel for the parties at length. I have heard the learned Counsel for the parties at length. Also gone through the decisions cited by the learned senior Counsel as well as various notifications submitted by the learned State Counsel. 11. I have also perused the Office Memo dated 6.11.1997 carefully. A constructive harmonious reading of the Office Memo dated 6.11.1997 takes me to inevitable conclusion that the said Office Memo is in fact intended to advance the benefit of Ex-gratia payment to all the security personnel who die at the hands of the extremist/insurgents in the State of Assam. The said Office Memo not only includes Assam Police, CMPF, Army, Assam Rifles, Police Force of other states but also includes Home Guards who are not even regularly employed security force personnel by the Government of Assam. It is also not in dispute that the Force under which the husband of the Petitioner was serving is one of the Security Forces i.e. Forest Protection Force, maintained by the Govt. of Assam and he died at the hands of the extremst/insurgents while performing his official duty in the State. Hence, I am of the opinion that there is no reason guided by logic in depriving the benefit of Office Memo dated 6.11.1997 to the Petitioner who is the next of kin of Late Gonzen Ali. 12. The argument advanced by the State Counsel that the husband of the Petitioner being not killed in counter insurgency operation, but killed by extremists and therefore, the benefit of the Office Memo dated 6.11.1997 cannot be extended to his next of kin is legally not sustainable. I am thus of the considered opinion that since the husband of the Petitioner lost his life at the hands of the extremists/insurgents while performing his official duty as personnel of Assam Forest Protection Force, in such a situation the State Respondents ought to have extended the benefit of Office Memo to the Petitioner also. 13. In view of the discussions and observations made hereinabove and the decisions rendered by the Apex Court (supra), this Court is of the opinion that the case of the Petitioner deserves sympathetic consideration as held by the Apex Court in the aforesaid decisions. It is the duty of the court to extend its hand where there is injustice caused by the authority. It is the duty of the court to extend its hand where there is injustice caused by the authority. Accordingly the Respondents are directed to consider the case of the Petitioner afresh and pay ex-gratia grant of Rs. 5 Lakhs to the Petitioner in terms of the Office Memo dated 6.11.1997 (Annexure-5 to the writ petition) after making necessary deduction of Rs. 1 lakh already paid to the Petitioner as ex-gratia grant. The entire exercise now shall be completed within a period of four months from the date of receipt of this order. 14. Accordingly, the writ petition stands allowed as indicated above. However, considering the facts and circumstances of the case, there shall be no order as to costs.