Golapi Chauhan vs State of Assam and Others

P.C. Phukan, J.—By this application under Article 226 of the Constitution of India the Petitioner seeks the appropriate writ for a direction to the Respondents to pay her adequate compensation for the death of her husband Bhikhu Chauhan caused by Bodo militans (Bd. S.F.).

I have heard Mr. B.B. Narzari, learned Counsel for the Petitioner as well as Mrs. R. Borbora, learned Government Advocate appearing for the Respondents.

The fact that the Petitioner''s husband was murdered not being disputed, the short question that falls for consideration in this case is whether he was killed by the extremists. If so, the next kins of the deceased shall be entitled to ex-gratia grant of Rs. 1,00,000/- as per the Govt. of Assam, Relief and Rehabitation Department Office Memorandum No. RR. 98/91/7, dated 31.8.91, which reads inter-alia,:

The next kins of persons killed in extremist violence in the state are to be paid ex-gratia grant @ 1.00 lakh each since 1.1.1985 . . .after due enquiry and proper identification by the concerned D.C.

The Petitioner''s case in brief is that on 14.2.92 at about 4.30 P.M. at Baghsal village under Udalguri Police Station, 10 to 12 militans armed with pistols and revolvers entered into the house of the Petitioner and shot her husband dead. On 15.2.92 and FIR (Annexure A) was lodged, and Udalguri Police Station Case 15/92 under Sections 147/148/447/302 IPC was registered. The Petitioner submitted representations before the Respondent No. 3 the Deputy Commissioner, Mangaldoi, and the Respondent No. 2 for granting ex-gratia payment of Rs. 1,00,000/- to her as in similar terrorist killings the Government paid such ex-gratia payment to the next kins of the person so killed.

Unable to receive any ex-gratia payment from the Respondents, the Petitioner filed a Writ petition registered as Civil Rule No. 1042/92 wherein this Court passed an interim order dated 30.6.92 (Annexure -C) directing the Respondents to pay Rs. 15,000/- and finally disposed of the said Civil Rule by judgment and order dated 16.11.93 (Annexure-D) directing the Respondents that if the Petitioner makes a representation, in this regard, the Government shall consider the same and make ex-gratia payment if the Petitioner is found entitled to such payment.

In pursuance of the aforesaid judgment and order, on 16.12.93 the Petitioner submitted representations (Annexure E, Ea and Eb) before the Respondent Nos. 1,2 and 3 respectively. However, the Respondent No. 4 Additional Deputy Commissioner, Darrang, Mangaldoi issued a letter (Annexure-K) to the Petitioner stating that her husband was killed in land dispute and as such her representation claiming compensation for terrorist killing had been rejected by the Government. Curiously enough the Additional Deputy Commissioner, although impleaded as Respondent No. 4, chose not to file any affidavit in support of what he stated in Annexure -''K'', nor his immediate superior the Deputy Commissioner of the District concerned, impleaded as Respondent No. 3 cared to do so. An affidavit has been filed on behalf of the Respondent No. 1 State of Assam and Respondent No. 2 the Commissioner & Secretary, Political Department by an Under Secretary, stationed at far away State Capital at Dispur, who could not have any personal knowledge as to who killed the Petitioner''s husband, yet this Under Secretary claimed to have personal knowledge that "the statements made in paragraph 3 to the effect that the husband of the Petitioner was killed by 10/12 militans of Bodo Security Force (Bd.S.F.) are not correct in as much as the Petitioner''s husband had some land dispute with his Co-villager, viz. Shri Dhaneswar Bodo and the death was a consequence to the said dispute only" in para 6 of his affidavit and he said that the statements made in para 6 were true to his knowledge. Even assuming that such statements in para 6 are true to his information derived from records, he has not spelt out what these records were, not to speak of producing such records, nor he disclosed the source of his information. Drawing pointed attention to this, Mr. Narzari, learned Counsel for the Petitioner, contends that this affidavit is'' a callous and cavalier one and not in conformity with the provisions laid-down in Chapter IV of the Gauhati High Court Rules. In support of his contentions Mr. Narzari has cited the decision reported in 1994 (1) GLJ 490 and 1994 (2) GLJ 166. I am inclined to agree with Mr. Narzari that this affidavit is of no consequence as to who killed the Petitioner''s husband. What is worse, the statements of the Under Secretary in para 6 of his affidavit run counter to what the Investigating Police Officer stated in the final report, he submitted on completion of the investigation into the death of the Petitioner''s husband. The Under Secretary said that his death was a consequence to some land dispute with a co-villager Shri Dhaneswar Bodo. In the final report the Investigating Police Officer has not uttered a single word to support this, even remotely, and no case was registered against the said Dhaneswar Bodo. The Under Secretary said that the Petitioner''s case that her husband was killed by Bodo militans was not true. The Investigating Police Officer, however, said that her case was true, and her specific case in the FIR was that her husband was killed by the Bodo militans and she has reiterated this in her Writ petition. This can not be brushed aside as of no substance, there being no affidavit-in-opposition of any consequence, and their being nothing in the final report disputing her case that her husband was killed by bodo militans. Admittedly, during the relevant period a large number of people in an around Udalguri were killed by Bodo militans. The Government of India''s Notification dated 23.11.92 (Annexure-G) issued u/s 3 of the Unlawful Activities (Prevention) Act 1967 speaks of Bodo Militans -"creating a deep sense of insecurity among the people and by committing other acts, like bank docoities, robberies, murders, extortions, kidnappings, harassment of the people and snatching of fire arms."

In view of what is stated above, this Writ petition is allowed with the following directions:

The Respondents shall pay ex-gratia grant of Rs. 1,00.000/- to the next kins of the deceased Bhikhu Chauhan as entitled under the Government of Assam, Relief & Rehabilitation Department of his Memorandum No. RR. 98/91/7, dated 31.8.91 within three months from the date of receipt of this order. The amount of Rs. 15,000/- already paid in compliance with this Court''s interim order dated 13.6.92 shall be deducted from the said amount.

In the facts and circumstances of the case, the parties are left to bear their own costs.