Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1602 (GAU)

Mangal Mardi v. State of Assam

2018-11-12

KALYAN RAI SURANA

body2018
ORDER : KALYAN RAI SURANA, J. 1. Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. R. Borpujari, learned Standing counsel, Revenue Department for the respondent No. 2, Mr. S.R. Baruah, learned Government Advocate for the respondent Nos. 1, 3, 4 and 5 and Ms. R.B. Bora, learned standing counsel, BTC. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner is seeking a direction to the respondent to pay the petitioner ex-gratia amount of Rs. 3 lakh on account of killing of the sister of the petitioner, namely, Sulkhan Mardi by the extremists on 15.09.1998 when the extremists had attacked Dologaon Adivasi Village. The said incident was registered as Gossaigaon P.S. Case No. 167/1998. 3. The learned counsel for the petitioner submits that the prayer for ex-gratia was made before the Deputy Commissioner, Kokrajhar on 21.1.2006 which was received by the authorities on 27.1.2006. The authorities had called for a report and that the Superintendent of Police, Kokrajhar in his report under Memo No. KJR/CRIME/188/07/3012 (A), inter-alia stated as follows:- "During the further investigation, present I/O made an enquiry about the missing of above noted 11 (eleven) persons and examined the Gaonbura Sri Gabrial Minj (2) Sri Jeremies Minj (3) Newas Bara and other local people of village Dologaon. On examination it was found that the aforesaid missing persons not yet returned to their respective village. So it is believed that the above missing persons might have been killed by the Bodo Extremists suspected to be NDFB during the time of ethnic violence." 4. However, despite the said police report, the petitioner has not received any ex-gratia amount on the death of his sister in the extremist violence. The learned counsel for the petitioner has also relied on a Notification bearing No. ABP.121.92/Pt-V/135 dated 22.06.2004 to project that as per the Government policy, next of kin of person killed in extremist violence is entitled to ex-gratia amount of Rs. 3 lakh and on above, they are also entitled to other reliefs as mentioned in the said circular. 5. The learned counsel for the petitioner has also placed a reliance on the case of Mangal Mardi Vs. State of Assam & Ors., WP (C) No. 3936/2014 decided on 3.11.2018, wherein this Court has referred to the Division Bench judgment of this Court in the case of Dhaniswar Basumatary Vs. 5. The learned counsel for the petitioner has also placed a reliance on the case of Mangal Mardi Vs. State of Assam & Ors., WP (C) No. 3936/2014 decided on 3.11.2018, wherein this Court has referred to the Division Bench judgment of this Court in the case of Dhaniswar Basumatary Vs. State of Assam, decided on 09.06.2010, wherein, it was observed that the presumption under section 108 of the Evidence Act, 1872 would be available to such a person enabling him to make an application seeking a benefit of the circular dated 22.06.2004. The Hon'ble Division Bench of this Court in the aforesaid case has also placed reliance on the OM dated 29.07.2013 and accordingly, this Court had directed the authorities to release ex-gratia amount of Rs. 3 lakh to the petitioner in the case of Mangal Mardi (supra). 6. Having heard the learned State counsel who submits that OM dated 29.07.2013 circular dated 22.06.2004 still hold the field. Accordingly, this Court finds that the petitioner herein is similarly situated to the facts involved in the case of Mangal Mardi (supra) where also the missing person was presumed to be killed in course of the extremist attack. 7. Hence, this petition deserves to be allowed. Consequently, the respondent No. 2, i.e., the Secretary to the Government of Assam, Relief and Rehabilitation Department as well as the respondent No. 3, i.e., the Deputy Commissioner, Kokrajhar are both directed to release the ex-gratia payment of Rs. 3 lakh to the petitioner, who is the next of kin of Sulkhan Mardi, his sister, who is presumed to be killed by the extremists on 15.09.1998 in course of attack on the Dologaon Adivasi Village and the said money shall be released within a period of 3 (three) months from the date of receipt of a certified copy of this order. 8. The Secretary District Level Services Authority, Kokrajhar shall provide due assistance to the petitioner so that he is able to avail the aforesaid benefit and, as such, a copy of this order may be furnished to the Member Secretary, Assam State Legal Authority for doing the needful. 9. This writ petition stands allowed.