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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 125 OF 2013

SUDESH DOGRA        ...    PETITIONER(S)

VERSUS

UNION OF INDIA & ORS.        ...  RESPONDENT (S)  

WITH

WRIT PETITION (CRL.) NO.251 OF 2011

J U D G M E N T

RANJAN GOGOI, J.

1. The  petitioner  in  Writ  Petition  (Criminal)  No.  125  of  

2013 is  the  Political  Secretary  of  J  &  K  National  Panthers  

Party  (JKNPP)  which  is  a  political  party  recognised by  the  

Election  Commission  of  India.   Setting  out  figures  and  

statistics  of  innocent  people  who  have  lost  their  lives  in  

incidents of crime and terrorists acts committed from time to  

time in the State of Jammu & Kashmir, the persistent failure  1

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of the State Government to prevent such untoward incidents  

have been alleged alongwith  the perceived inefficiency of  

the  State  Government  in  providing  adequate  relief  and  

rehabilitation  measures  including  compensation  following  

such incidents.  Specifically, the writ petition centres around  

an incident that had occurred on 17/18 of July,  2013 at a  

place called Gool in District Ramban, in the course of which a  

large body of civilian population had attacked a BSF camp  

and in the exchange of fire that ensued, 4 civilians had died  

and 44 others received serious injuries.  Accordingly, the writ  

petition was filed seeking the following reliefs:

“(a) issue an appropriate writ order or direction in  the nature of mandamus directing respondent  no.2 to institute a high power judicial inquiry  into the circumstances that led to the killing of  four  villagers  and  injuring  more  than  three  dozens on 18.07.2013 in village Gool, Ramban  District  J&K.   The four villages were killed in  firing  whereas  42  were  injured  on  the  same  day.

(b) direct  respondents  no.1  &  2  to  provide  full  security,  boarding  and  lodging  facilities,  besides,  all  medical,  care  to  the  pilgrims  to  Shri Amarnath & Shri Mata Vaishno Devi who  have  been  stranded  at  different  stations  during their journey in the State of J&K due to  the imposition of curfew.

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(c) that  the  Hon’ble  Court  may  be  pleased  to  direct the Governor of J&K to act in accordance  with  Section  53  r/w  Section  92  of  the  Constitution  of  J&K  in  the  interest  of  unity,  integrity and sovereignty of India.

(d) the Hon’ble Court may further be pleased to  direct  the  respondents  to  extend  the  fundamental  rights in the Constitution of the  State in the interest of human dignity and rule  of law.

(e) this  is  further  prayed  that  the  respondents  may be directed to pay compensation to the  families of those killed @ Rs.50 lacs each and  @  Rs.10  lacs  to  each  person  injured  in  the  firing on 18.07.2013.  

(f) pass any other  appropriate order/direction in  the interest of justice, equity and rule of law.”

2. It may be specifically noticed, at this stage, that Section  

53 of  the J&K Constitution empowers the Governor  of  the  

State to, inter alia, dissolve the legislative assembly.  Section  

92 contemplates the manner of running the administration  

of the State once a proclamation of failure of constitutional  

machinery in the State is issued by the Governor.

3. Notwithstanding  the  above  and  the  tenor  of  a  

substantial  part  of  the  pleadings  which  would  seem  to  

indicate a somewhat overenthusiastic attempt on the part of  

the  petitioner  to  discredit  the  functioning  of  the  State  3

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Government,  we  have  not  allowed  the  aforesaid  negative  

features  of  the  case  to  detract  us  from  the  otherwise  

beneficial  effect  of  the  public  interest  litigation  brought  

before this Court. Notice, therefore, was issued on 8.8.2013.

4. Criminal Miscellaneous Petition No.16696 of 2013 was,  

thereafter,  filed  drawing  the  attention  of  the  Court  to  

another  incident  that  had  occurred  at  Kishtwar  town  on  

9.8.2013 in the course of which 2 persons had died and over  

50 were injured in police firing. In the aforesaid Crl. M.P., it  

was also alleged that thousands of Hindu pilgrims travelling  

from  Machel  to  Batote  (National  Highway)  have  been  

stranded on the 60 kms. long route from Padar (Atholi) to  

Kishtwar and such pilgrims were left exposed to the vagaries  

of  inclement  weather  without  any  facilities  of  board  and  

lodging.   In  the  above  situation,  while  seeking  a  judicial  

inquiry  into  the  incident  that  led  to  the  disturbance  in  

Kishtwar on 09.08.2013, specific directions were also sought  

to provide safe passage, food and medical facilities to the  

stranded pilgrims so  as  to  enable them to  return to their  

homes.   

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5. On 13.08.2013 the following order was passed in the  

aforesaid Criminal Miscellaneous Petition:

“In the writ petition, the petitioner has sought  for  certain  directions,  directing  the  respondent  No.2,  namely,  the  Government  of  Jammu  &  Kashmir,  to  institute a high power judicial  inquiry  about  the  incident  occurred on  18th July,  2013 in  village Gool, Ramban District, Jammu and Kashmir,  and other  reliefs  including  the  safety  of  pilgrims,  who have been stranded on different stations. The  petitioner  also prayed for  adequate compensation  for the victims.

On  8th August,  2013,  we  issued  notice  returnable in two weeks.

In the meanwhile, the petitioner has also filed  Crl.M.P.No.16696  of  2013,  praying  for  further  directions, which are as under:

a) direct the respondents, the Union of India and  the State of J&K to hold a judicial inquiry into  the  entire  circumstances  that  led  to  the  disturbance in  Kishtwar  on 9th August,  2013,  resulting  into  death  of  two  civilians  and  injuring to several residents.

(b) to hold judicial  inquiry into the failure of the  government to provide protection to the lives,  properties and infrastructures  belonging to  a  particular community which were attacked by  an  uncontrolled  mob  in  Kishtwar  on  09/08/2013;

(c) grant  the  relief  to  the  extent  that  the  respondents may be directed to provide safe  passage to the stranded pilgrims, so that they  may be able to return to their homes.  Also the  respondents  may  be  directed  for  providing  

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food  and  medical  facilities  to  the  stranded  pilgrims  till  their  evacuation  as  the  physical  survival of the said pilgrims is under threat;  

(d) to provide compensation without delay to all  those  whose  houses,  shops,  infrastructures,  belonging have been destroyed by the unruly  mob in Kishtwar yesterday.

Mr.  Gaurav  Pachnanda,  learned  senior  counsel  appearing for the respondent No.2-State of Jammu  & Kashmir, made a statement before this Court that  with  regard  to  reliefs  (a)  and  (b),  the  State  Government  has  taken a  decision  to  constitute  a  Commission  headed  by  a  retired  Judge  of  the  Jammu & Kashmir High Court. The formal order in  that  regard  is  yet  to  be  passed.   Learned senior  counsel  has  also  informed  us  that  the  State  Government  has decided to  pay compensation at  the rate of Rs.5 lacs in the case of death and up to  Rs.2  lacs  in  the  case  of  injuries.   Learned senior  counsel  also  informed that  the  formal  decision in  this  regard  would  be  taken  up  shortly.  [subsequently  the  amount  of  Rs.2  lakhs  was  accorded  as  compensation  payable  for  loss  of  properties]

Coming to relief (c), the learned senior counsel  for  the  State,  on  instructions,  states  that  357  yatris/pilgrims have been stranded at Gulab Garh.  It is also stated that required security arrangements  have  been  made  and  the  State  Government  is  taking steps to evacuate those stranded pilgrims to  the safer places.

The  above  statement  of  the  learned  senior  counsel appearing on behalf of the State of Jammu  & Kashmir, are hereby recorded.

Professor Bhim Singh,  learned senior counsel  appearing  for  the  petitioner,  has  raised  an  apprehension about the present move of the State  

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Government.  However, we hope and trust that the  State Government would take adequate measures  to help the stranded pilgrims, as well as about the  safety of the people residing in and around the area  concerned.

In view of the seriousness of the matter,  we  direct the Chief Secretary of the State of Jammu &  Kashmir to file a detailed affidavit with regard to the  steps taken by them in respect of the incident that  took  place  on  9th August,  2013  at  Kishtwar  and  follow up action on the next date.

List  the  matter  on  21st August,  2013,  for  further consideration.”

6. Pursuant to the aforesaid order of the Court, the Chief  

Secretary  of  the  State  had  filed  an  affidavit  dated  

19.08.2013 stating that,  in addition to the initial  loss of 2  

lives, one further death was reported from the Padder area  

of the district.  According to the Chief Secretary all required  

measures had been taken by the State authorities to prevent  

recurrence and to control  the situation in order to  ensure  

that no further loss of life and damage to property is caused.  

Assistance  of  the  Army  was  also  taken  and  adequate  

deployment  of  paramilitary  forces  and  State  Police  was  

made.  The Chief Secretary, in his affidavit, had mentioned  

about the Government decision to constitute a Commission  

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of Inquiry to enquire into the circumstances leading to and  

surrounding the incident and to provide ex-gratia relief  of  

Rs.5 lakhs to the next of the kin of the deceased persons.  

Further, relief to injured persons as per Government Order  

No.723-GAD of  1990 dated 10.07.1990,  as  amended,  was  

stated to be under consideration in addition to compensation  

for damage to immovable property subject to assessment by  

the revenue authorities.  The Chief Secretary, in his affidavit,  

had  also  mentioned  about  the  constitution  of  a  special  

investigation  team  to  investigate  15  cases  that  were  

registered  in  respect  of  the  incident.   So  far  as  stranded  

pilgrims  are  concerned,  according  to  the  Chief  Secretary,  

effective measures had been taken to ensure their  return  

home.  In conclusion, the Chief Secretary had asserted that  

the situation was fast returning to normal and after the initial  

incidents no further untoward incident has been reported.

7. The optimism expressed by the Chief Secretary was not  

shared  by  the  petitioner  and  the  effectiveness  of  the  

measures undertaken was seriously disputed in the rejoinder  

dated  23.8.2013.   It  was  claimed  that  setting  up  of  a  

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Commission  of  Inquiry  was  a  mere  eyewash;  the  relief  

measures  initiated  were  inadequate  and  the  amount  of  

compensation contemplated was meagre.  It was stated that  

compensation for  damages to  immovable property  upto  a  

maximum of 50% of the assessed loss or Rs. 1 lakh, which is  

less,  in  terms  of  Government  Order  No.710-GAD  dated  

3.07.1991,  is  highly  discriminatory  and  illusory.   The  

adequacy of the relief  measures provided to the stranded  

pilgrims  was  also  questioned.   It  was  claimed  that  many  

pilgrims  were  still  to  reach  their  homes.   Complaints  of  

ineffective investigation of the criminal cases by the SIT or  

by  the  State  Police  machinery  were  also  made  in  the  

rejoinder affidavit; it was contended that such investigations  

be handed over to the CBI.  Of particular significance is the  

stand  taken  in  the  rejoinder  with  regard  to  the  alleged  

discrimination in the matter of grant of compensation under  

Government  Order  No.723-GAD of  1990 dated 10.07.1990  

which, according to the petitioner, carved out two different  

categories within the CAPF personnel who may have been  

victims of mob violence or terrorist acts.  In this regard, it is  

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pointed  out  that  while  State  subjects  get  a  higher  

compensation,  non-State  subjects  are  being  given  

compensation at a lower rate which offends Article 14 of the  

Constitution.

8. The State having been asked by the Court to clarify its  

stand with regard to  the above alleged discrimination,  an  

affidavit  dated 13.09.2013 had been filed contending that  

protective treatment towards State subjects  is  permissible  

under the special provisions of the J&K Constitution (Article  

35A as applicable to State of J&K).  It was also pointed out  

that enhanced compensation to the State subjects who are  

members of the CAPF was considered necessary to reduce  

the  disparity  in  the  total  amount  of  ex-gratia  received  

inclusive of what is awarded by the Central Government and  

by  the  different  States  to  which  a  non-state  subject  may  

belong.    It  is  in  these  circumstances  that  a  distinction  

between State and non-State subjects has   been made.  In  

view  of  the  explanations  furnished  we  do  not  find  any  

fundamental error in the policy of the State in awarding a  

higher amount of compensation to State subjects who are  

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Members of CAPF so as to require a further probe into the  

constitutionality  or  validity  of  the  compensation  scheme  

framed by the State Government.   

9. Two further affidavits dated 24.02.2014 and 03.03.2014  

have been filed by the State Government placing before the  

Court  the details  of  the compensation awarded and other  

relief and rehabilitation measures undertaken by the State  

Government in respect of the victims of the two incidents.  In  

so far as the Gool (Ramban district) incident is concerned, in  

the  affidavit  of  24.02.2014,  it  has  been  stated  that  

compensation at the rate of Rs.5 lakhs each has been paid to  

the next of kin of the persons who had lost their lives in the  

said incident.  Besides, compassionate appointment of the  

dependents  of  such  deceased  are  also  under  active  

consideration of  the Government.   Additionally,  27 injured  

persons  who  have  been  identified  with  minimum  injuries  

have been paid Rs.5000/-  each and those (15 in number)  

whose  injuries  required  reference  to  a  more  advanced  

Medical  centre i.e.  the medical  college at  Jammu/Srinagar  

were paid Rs.10,000/- each.  Registration of some criminal  

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offences  in  connection  with  the  incident  and  due  

investigation thereof has also been claimed.  The said aspect  

of the case is being dealt with separately.  No further issue  

with  regard to the Gool  incident  having been raised or  is  

subsisting  we  do  not  consider  it  necessary  to  pass  any  

further orders or directions in respect of the said incident  

save  and  except  that  consideration  of  eligible  cases  for  

compassionate appointment stated to be pending before the  

State Government be expedited and finalised if not so done  

in the meantime.

10. In  the  affidavit  dated  03.03.2014  payment  of  

compensation of a similar amount i.e. Rs.5 lakhs to the next  

of kin of the deceased in the Kishtwar incident is mentioned.  

Additionally, it is stated that a Government Order No.1264-

GAD of 2013 dated 04.09.2013 has been issued laying down  

the norms for ex-gratia relief in respect of destruction and  

damage to  immovable property.   Details  of  compensation  

paid  in  76  cases  have  been  furnished  to  the  Court;  it  is  

stated  that  13  more  cases  are  under  process  and  in  the  

meantime  35  more  claims  have  been  received  which  will  

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also be processed.  In so far as the Commission of Inquiry,  

mentioned at the very initial stage of the present proceeding  

is concerned, in the affidavit dated 03.03.2014, it has been  

stated that an interim report of the said Commission headed  

by Justice R.C. Gandhi, retired Judge of the Jammu & Kashmir  

High Court, has been received and time for submission of the  

final report has been extended upto 22.02.2014.

11.  It is in the conspectus of facts narrated above that this  

Court is required to decide whether any further direction to  

the State Government in respect of the Kishtwar incident is  

called for and if so what should be the specific contents of  

the directions that should be issued by this Court.

12. The terms of  reference of  the Commission of  Inquiry  

constituted by the State Government under  the Jammu &  

Kashmir  Commission  of  Inquiry  Act,  1962,   are  as  

hereunder:-

a) enquire  into the circumstances which led to  the  violence and arson and the consequent loss of life  and property in District Kishtwar;

b) enquire  into  the  administrative  lapses,  if  any,  while handling the situation; and  

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c) fix  the  responsibility  of  the  persons,  involved in  acts  of  violence,  arson  and  the  loss  of  life  and  property.

13. In a situation where the State Government, at the very  

outset, had committed itself to setting up of a Commission of  

Inquiry and in fact had issued the necessary Notification on  

23.08.2013  containing  very  wide  terms  of  reference,  as  

seen, we do not consider it necessary to go into any of the  

issues  that  are  presently  before  the  Commission.   Two  

apprehensions  have  been  expressed  on  behalf  of  the  

petitioner in this regard.  The first is that the mechanism set  

up is highly time consuming and, secondly that the report of  

the Commission is merely recommendatory.  In so far as the  

first apprehension is concerned, the same can be resolved  

by a  direction requesting the Commission to  complete its  

task within a particular time frame.  In so far as the legal  

effect of the findings of the Commission are concerned, it  

will be wrong to assume anything in this regard at this stage,  

including, the possible stand of the State Government.  The  

reports of such commission, in our considered view, should  

be  objectively  viewed  by  the  State  Governments  and  14

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necessary corrective steps and action should be initiated to  

further good governance.  In a democracy governed by the  

Rule of Law every institution is open to self-correction and  

must acknowledge its shortcomings, if any.  In view of the  

above and taking into account that parties aggrieved by the  

report that may be submitted and such action as may be  

taken  by  the  State  on  the  basis  of  such  report  are  not  

without their remedies in law we are of the view that the  

Commission should be allowed to complete its task at the  

earliest.   We,  accordingly,  request  the  Commission  to  

complete its enquiry as early as possible, preferably, within a  

period of three months from today, if the final report has not  

already been submitted in the meantime.  The Government  

will  naturally  be  duty  bound  to  take  all  necessary  and  

consequential steps on the basis of the said report as would  

be mandated in law.

14. Pending  submission  of  the  final  report  by  the  

Commission of Inquiry constituted by the State Government,  

the  payment  of  compensation  on  all  counts  has  to  be  

understood to be in the nature of ex-gratia, particularly, as  

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identification  and  apportionment  of  liability  is  yet  to  be  

made.  Such payments are ad-hoc in nature.  In so far as  

G.O. No.1264-GAD of 2013 dated 04.09.2013 (referred to in  

the additional affidavit dated 3.4.2014 filed by the State) in  

respect  of  compensation  for  destruction  and  damage  to  

immovable  property  is  concerned,  the  same  provides  for  

50% of the actual loss or Rs.5 lakhs, whichever is lesser, as  

the  maximum  compensation  payable.   The  said  G.O.  is  

certainly an improvement over the initial G.O. No.710-GAD  

dated  30.07.1991  (referred  to  in  the  affidavit  filed  on  

19.08.2013 by the Chief Secretary) which contemplates an  

upper limit of Rs.1 lakh.  Yet the ceiling fixed in the later  

G.O. i.e. Rs.5 lakhs may require some re-consideration at the  

hands of the Government.  However, keeping in view that  

what is provided under the said G.O. No.1264-GAD of 2013  

dated 04.09.2013 is payment in the nature of ex-gratia and  

as in the instant case we have held that all payments that  

have been made or are proposed to be made are ad-hoc in  

nature  and  subject  to  outcome  of  the  report  of  the  

Commission of Inquiry and also having regard to the law laid  

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down  by  this  Court  in  State  of  Rajasthan  &  Ors.  Vs.  

Sanyam Lodha1, we do not consider it necessary or proper  

at this stage to cause any interference with the said G.O.  

dated 4.09.2013.  Rather, we are of the view that the matter  

should be suitably reconsidered by the State Government.

15. In so far as the investigation of the criminal cases by  

the  SITs  in  respect  of  both  the  incidents  is  concerned,  

unfortunately,  the  present  position  with  regard  to  such  

investigation has not been laid before the Court by either of  

the  parties.   We  are,  therefore,  unable  to  assess  the  

effectiveness  of  the  State’s  action  in  the  matter.   In  the  

above circumstances the  State Government  is  directed to  

ensure  due  and  proper  investigation  of  all  such  cases  

registered in connection with the two incidents in question if  

such investigation has not been completed in the meantime  

and  thereafter  bring  all  such  cases  to  a  logical  end  in  

accordance with law by completion of the trial against the  

accused, wherever necessary.   

1 (2011) 13 SCC 262

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16. The writ petition shall stand disposed of in terms of the  

above directions and observations.

Writ Petition (Crl.) No.251 of 2011

17. This Writ Petition was heard analogously with W.P. (Crl.)  

No.125/2013.

18. The  petitioners,  10  in  number,  are  the  widows  of  

permanent residents of Chhattisgarh who, while working as  

contract labourers, were killed by militants at Mirbazar Tehsil  

Kelgam,  Distt.  Anant  Nag,  Jammu  &  Kashmir.   The  said  

incident occurred on 1.08.2000.  The grievance raised is with  

regard to the inadequacy of the compensation paid by the  

State  of  Jammu  &  Kashmir  and  also  by  the  Chhattisgarh  

Government.   Enhanced  compensation  of  Rs.8,35,000/-  

which was paid to  victims of a similar incident in Udhampur  

Nagar, Uttarakhand by this Court is prayed for.   

19. Affidavits  have  been  filed  by  the  State  of  Jammu  &  

Kashmir as well as State of Chhattisgarh.

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20. In so far as State of Jammu & Kashmir is concerned, the  

stand taken is that in terms of Government Order No.723-

GAD of 1990 dated 10.07.1990, as amended, persons other  

than the Government employees who have lost their lives in  

militant activities or acts of violence are to be paid ex-gratia  

of  Rs.1  lakh.  It  is  not  in  dispute that  the  said  amount  of  

compensation  has  been  paid  by  the  State  of  Jammu  &  

Kashmir.

21. In so far as the State of Chhattisgarh is concerned, it is  

stated that while seven petitioners have received a total sum  

of Rs.2,52,000/- the other three petitioners have been paid a  

sum of  Rs.2,00,000/-  each  which  is  inclusive  of  Rs.1  lakh  

paid  by  the  Government  of  Jammu  &  Kashmir.   The  

additional  amount  paid  by the State of  Chhattisgarh,  it  is  

stated, is by way of ex-gratia relief.

22. The petitioners who are widows of the victims of the  

unfortunate incidents of violence have received ex-gratia of  

Rs.1 lakh each both from the State of Jammu & Kashmir and  

State of Chhattisgarh.  Ex-gratia is an act of gratis and has  

no connection with the liability of the State in law.  The very  19

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nature of the relief and its dispensation by the State cannot  

be governed by directions in the nature of mandamus unless  

of course there is an apparent discrimination in the manner  

of grant of such relief.  It is not the case of the petitioner that  

they have been so discriminated.  In so far as the claim of  

additional compensation on the basis of the award made to  

the  victims  of  Udhampur  Nagar  incident  is  concerned  no  

particulars in this regard have been furnished to enable the  

Court  to  comprehend  under  what  circumstances  such  

compensation was ordered to be paid to the victims involved  

in the said case.

23. That  apart,  the  present  incident  had occurred  in  the  

year  2000 and the  claim for  additional  compensation  has  

been made nearly after a decade.  Taking into account all  

the aforesaid facts, we are of the view that no directions at  

this belated juncture will be justified.

24. The reliefs prayed for are declined and the writ petition  

is disposed of accordingly.

...…………………………CJI. [P. SATHASIVAM]

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.........………………………J. [RANJAN GOGOI]

…..........……………………J. [N.V. RAMANA]

NEW DELHI, APRIL 7, 2014.

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