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2011 DIGILAW 343 (JK)

State & Ors. v. Mohd. Maqbool Dar & Ors.

2011-07-07

FAKKIR MOHAMED IBRAHIM KALIFULLA, HASNAIN MASSODI

body2011
Per Kalifulla, AC J (oral);— LPA No. 11/2010 & LPA No. 62/2010 1. These two appeals arise out of the order of the learned Single Judge dated 06-10-2009 passed in OWP No. 541/99. 2. In the writ petition, the petitioner sought for issuance of a Mandamus as against the appellants to pay compensation for the disappearance of the writ petitioner's brother, who was allegedly taken into custody on 6/7th June, 1995 by the 7 RR stationed at Camp Behibagh and whose whereabouts after taking into custody by the personnel of 7 RR was not disclosed. 3. The writ petitioner has also prayed for further direction to provide employment to one of the dependents/legal heirs of the missing person apart from direction to register necessary FIR against the actual culprits and to investigate the matter. 4. In the writ petition, there was a specific averment to the effect that at the time of the disappearance of the writ petitioner's brother by name Mohammad Yousuf Dar son of Ahsan Dar resident of Bagi Sakloo Tehsil Kulgam, he was of 22 years of age, that he was earning an amount of Rs. 1000/- per month at the time of the disappearance apart from contributing his labour in the field Based on the average life expectation of the missing person as well as the contribution, it was claimed that the family of the missing person was deprived of not less than Rs. 15 lacs apart from the loss of the life of such person. Though reply/statement was filed on behalf of the respondents 2 to 5 there was no specific denial as to the age and other details furnished by the writ petitioner in the affidavit filed in support of the writ petition. 5. As far as the allegations relating to the missing of the person who was alleged to have taken into custody by the personnel of 7 RR Camp stationed at Behibagh, Kulgam, since there was no detail furnished at the instance of the Additional Director General of Police, this Court ordered for an enquiry to be held by the Principal District and Sessions Judge, Anantnag. Learned District and Sessions Judge, after holding a detailed enquiry, returned a finding, the details of which have been set out in the order impugned in these appeals. 6. Learned District and Sessions Judge, after holding a detailed enquiry, returned a finding, the details of which have been set out in the order impugned in these appeals. 6. Based on the evidence collected/the learned District and Sessions Judge reported that the brother of the writ petitioner by name Mohd Yousuf Dar was lifted from his house during the intervening night of 6/7th June 1995 by the army personnel of 7 RR stationed at Behibagh, Kulgam along with two other persons namely Zahoor Ahmad and Khursheed Ahmad. It is further stated that the aforesaid two persons were subsequently released. The whereabouts of Mohd Yousuf Dar, who was also taken into custody by the personnel of 7 RR, was not revealed at any point of time. The learned District and Sessions Judge, therefore, reported that the disappearance of the said Mohammad Yousuf Dar was solely attributed to the army personnel of 7 RR. Apart from the said report of the learned District and Sessions Judge, the learned Single Judge has also relied upon a communication by the Superintendent of Police, Kulgam addressed to the Additional Dy. Commissioner, Anantnag dated 19-9-1998 which also revealed that an independent enquiry was held by the said police authority in which evidence was collected to the effect Mohammad Yousuf Dar was taken into custody by the army personnel of 7 RR stationed at Behibagh, Kulgam along with two other persons, namely, Zahoor Ahmed and Khursheed Ahmad. It was also reported that while Zahoor Ahmad and Khursheed Ahmad were released by the army personnel, Mohammad Yousuf Dar was not released and continued to be in the captivity of the army personnel of 7 RR. 7. Having regard to such uncontroverted materials placed before this court and in the absence of any other contra material at the instance of the Additional Director General of Police Srinagar/Jammu, the conclusion that the missing of Mohammad Yousuf Dar was solely attributed to the unlawful custody into which he was taken by the army personnel of 7 RR stationed at Behibagh, Kulgam on 6/7th June, 1995 cannot be assailed. In the above stated background, the learned Single Judge analyzed the claim of the writ petitioner and having regard to the details set out in the writ petition regarding the missing person, his age and other contribution he was making to the family, the learned Single Judge fixed the compensation at a sum of Rs. 10 lacs as against the claim of 15 lacs made by the writ petitioner. 8. Having considered the above conclusion made by the learned Single Judge for determining the compensation, we are not in a position to interfere with the same for any of the reasons urged in these appeals before us by the learned counsel for the appellants. Mr. Makroo learned ASGI for the appellants in LPA No. 62/2010 though raised a plea that without a prayer, the learned Single Judge ordered for investigation of the FIR for taking appropriate legal action. On a perusal of the writ petition, we find that there was a specific prayer made by the writ petitioner at prayer No. 20(iv) asking for a direction to the respondents to register FIR against the actual culprits and investigate the matter. Therefore, the said grievance of the appellants in LPA No. 62 does not survive a consideration. 9. As far as the contention that there was no basis for arriving at sum of Rs. 10 lacs, as stated in paragraph 17 of the writ petition, specific details were furnished by the writ petitioner as to the age, his earnings and other contributions made by the missing person to the family who was incidentally not married. None of the such details furnished in the paragraph 17 of the writ petition were denied by the appellants in their reply filed before the learned Single Judge. That apart when such details were furnished in the paragraph 17 of the writ petition, it can be fairly stated that such details in the normal course would entitled for fixing a reasonable compensation at a sum of Rs. 10 lacs. We, therefore, do not find any merit to interfere with the order of the learned Single Judge on that ground. 10. Mr. Magray learned Sr. A.A.G in his submission contended that the disappearance of the person was attributable to the army personnel of 7 RR stationed at Behibagh, Kulgam while the learned Single Judge directed the State Government to pay the compensation of Rs. 10. Mr. Magray learned Sr. A.A.G in his submission contended that the disappearance of the person was attributable to the army personnel of 7 RR stationed at Behibagh, Kulgam while the learned Single Judge directed the State Government to pay the compensation of Rs. 10 lacs to the writ petitioner. 11. As far as the said contention is concerned, it is not in dispute that the State Government is provided with funds by the Union of India to meet the security related expenses. Since the finding of the learned Single Judge disclose that the disappearance of the person was at the instance of the army personnel of 7 RR who apparently apprehended the said person for such alleged security reasons, the State Government can always meet the liability in regard to the missing of a person whose 'obligation cast upon the State. Therefore, the said submission of the learned Sr. A.A.G also does not persuade us to interfere with the order impuged in these appeals. 12. Therefore, we do not find any merit in these appeals. Theses appeals fails and the same are dismissed along with connected application.