State Of JK & Ors vs Ashiq Hussain Farash

Ali Mohammad Magrey, J

This intra Court appeal is directed against the Judgment dated 10th of March, 2016 passed by the learned Single Judge in OWP No. 608/2015 filed

by the Writ Petitioner/ Respondent herein, whereby the Petition of the Writ Petitioner/ Respondent herein stands allowed and the Respondents therein/

Appellants herein directed to pay an amount of Rs.15.00 lacs as compensation to the Writ Petitioner/ Respondent herein.

The brief facts of the case are that the Writ Petitioner/ Respondent herein claims that he was hit by a bullet in cross firing between security forces

and militants, wherein he suffered grievous injuries and was admitted in SKIMS, Soura under MRD No. 74594. Accordingly, a medical case of bullet

injury on the right side of chest and right upper arm is stated to have been registered on 31st of December, 1990, whereafter the Writ Petitioner/

Respondent herein was discharged on 10th of January, 1991 and was advised treatment at AIIMS, New Delhi, however, due to poverty, the Writ

Petitioner/ Respondent herein claims to have been unable to undergo further treatment at AIIMS, New Delhi which resulted in loss of movement of

his right arm and right hand, thereby rendering him handicapped for the whole of his life. It is also stated that the Writ Petitioner/ Respondent herein,

accordingly, made a claim before the Appellants for seeking compassionate appointment and payment of compensation to the extent of Rs.20.00 lacs

which was denied constraining the Writ Petitioner/ Respondent herein to file the aforesaid Writ Petition. The Writ Court, on establishing the claim of

the Writ Petitioner/ Respondent herein and in terms of Judgment impugned, has disposed of the aforesaid Petition by directing the Respondents/

Appellants herein to pay an amount of Rs.15.00 lacs as compensation to the Writ Petitioner/ Respondent herein.

Mr Sajjad Ashraf Mir, the learned Government Advocate, appearing for the Appellants, who has also submitted the written synopsis, submitted

that the learned Single Judge did not appreciate the fact that the Writ Petitioner/ Respondent herein has suppressed the material facts in his petition by

not mentioning anything about the consideration Order having been passed on the directions of the Court on 21st of June, 2011 in the earlier round of

litigation. It is further submitted that the Writ Petitioner/ Respondent herein was found entitled to ex-gratia compensation of Rs.25,000/- which amount

stands already paid to him as per Government Order dated 10th of July, 1990 and that the Writ Petitioner/ Respondent herein has not, till date,

challenged the Order dated 10th of July, 1990. It is contended that the impugned Judgment has been passed by the learned Single Judge against the

law and the policy of the Government.

We have heard the learned Counsel for the parties, perused the pleadings on record and considered the matter.

In terms of Order dated 26th of October, 2016, this Court stayed the Judgment impugned insofar as Rs.10.00 lacs out of the Rs.15.00 lacs granted

as compensation by the learned Single Judge is concerned, but kept it open for the Writ Petitioner/ Respondent herein to receive Rs.5.00 lacs subject

to further orders. Accordingly, the said amount of Rs.5.00 lacs appears to have been deposited before the Registry of this Court, whereafter, pursuant

to Order dated 6th of June, 2017, the Court permitted the Writ Petitioner/ Respondent herein to withdraw the said amount of Rs.5.00 lacs, which

amount, subsequently, along with interest accrued thereon, stands withdrawn by the Writ Petitioner/ Respondent herein on 11th of August, 2017 as

gets revealed from the perusal of the note submitted by the Registry in this behalf.

It is admitted position of the parties that the Writ Petitioner/ Respondent herein suffered bullet injuries during cross firing between security forces

and militants which has rendered his right arm movement less. As a result of the aforesaid unfortunate incident, the Writ Petitioner/ Respondent herein

has been deprived to practice any profession or to carry on any profession, trade or business as guaranteed to every citizen of the country by

application of the mandate of Article 19(g) of the Constitution. Thus, it becomes the duty of the authorities/ Appellants herein to adequately

compensate the Writ Petitioner/ Respondent herein. In this context, we are in agreement with the reasoning given by the learned Single Judge in

holding the Writ Petitioner/ Respondent herein entitled to compensation, however, the quantum of compensation of Rs.15.00 lacs, in the given facts

and circumstances of the case; coupled with the mandate of the Scheme governing the subject, appears to be on the higher side. Therefore, while

modifying the impugned Judgment of the learned Single Judge, we dispose of this appeal by holding the Writ Petitioner/ Respondent herein entitled to

compensation of Rs.10.00 lacs instead of Rs.15.00 lacs as ordered by the Writ Court along with 6 percent interest from the date of Order of the Writ

Court, i.e., 10th of March, 2016. Accordingly, the Appellants shall pay the Writ Petitioner/ Respondent herein Rs.10.00 lacs as compensation with

interest as directed by the Writ Court, out of which the amount of Rs.5.00 lacs stands already paid to the Writ Petitioner/ Respondent herein. Let the

Appellants, now, pay the balance amount of Rs.5.00 lacs along with interest @ 6 percent to the Writ Petitioner/ Respondent herein within two months

from today, in default thereof, the said amount shall become payable along with interest @ 9 percent per annum.

Appeal disposed of as above, along with the connected CMs.

Registry to provide a copy a copy of this Order to both the appearing Counsel for the parties.