Jammu & Kashmir High Court - Srinagar Bench

Yaar Mohammad Kataria & Anr vs Union Of India & Ors on 20 April, 2024

Author: Sindhu Sharma

Bench: Sindhu Sharma

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                       OWP No. 1979/2017

                                                  Reserved on: 19.12.2023
                                               Pronounced on: 20.04.2024

Yaar Mohammad Kataria & anr.                     .... Petitioner/Appellant(s)

                         Through:-   Mr. Faisal Javaid, Advocate

                   V/s

Union of India & ors.                                     .....Respondent(s)

                         Through:-   Mr. T. M. Shamsi, DSGI
                                     Ms. Rekha Wangnoo, GA vice
                                     Mr. Mubeen Wani, Dy. AG.

CORAM:HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                  JUDGMENT

01. Petitioners have invoked the jurisdiction of this Court seeking

compensation on account of the death of their son due to the negligence

of the respondents.

02. In a tragic incident, two children namely Sarfaraz Ahmad

Kataria son of Yaar Mohammad Kataria and Farooq Ahmad Kataria

Son of Noor Ud Din Kataria died due to blast caused by unexploded

shell which was lying in the forest area on 05.07.2009. Both the

petitioners whose children have died due to blast caused unexploded

shell lying in the forest seek a direction to the official respondents to

compensate them adequately for their negligent act which has resulted

in the death of their children.

03. The petitioners submit, that their children were 14 years and

15 years of age when they came in contact with an unexploded shell in

the forest area, while grazing their cattle. The blast caused by the shell

led to the death. It is submitted that petitioners are involved in the

activity of grazing cattle of the locals on the common land/forest area

and their livelihood is dependent on the earnings from grazing cattle as

they have no other source of income except their earnings from grazing

cattle.

04. The contention of the petitioners is that apart from studying,

their children were also taking care of the cattle of the locality for

grazing and they used the earning to cater to the need of the family. It is

further submitted that in the area where the petitioners reside, there is an

army camp and artillery practice is being conducted in the area. It is

only due to the negligence of the respondents, who failed to keep proper

check upon the shell/ammunitions openly lying in the area to avoid any

untoward incident which resulted in their children come in contact with

the live shells which lead to their death. The respondents failed to

conduct periodical inspection of the area and were negligent in their

duty which has resulted in their children being victim of IED blast.

05. The respondents, it is submitted have not paid any

compensation to petitioners for the loss suffered by them except paltry

ex-gratia relief of Rs. 01 lac each. The petitioners, thus, seek

compensation on account of the death of their children on the ground

that the respondents were liable to take precautions and safeguards and

failure on the part of the respondents would make them liable to pay

compensation on account of the "strict liability". The petitioners, thus,

seek a direction to the respondents for payment of compensation for

their negligence which has resulted in the death of their children on

spot.

06. The respondents in their objections submit that the wirt

petition involves disputed questions of fact which cannot be considered

in these proceedings. They have also denied any involvement of the

Army/Battalion in the death of two children which was caused by a

blast of a likely Improvised Explosive Device (IED) which could be

used by anti national elements insurgency area. It is further submitted

that the ex-gratia relief of Rs. 01 lac each was granted by the Deputy

Commissioner, Kupwara to the petitioners vide order No. 390-DCK

dated 29.03.2008. Both the petitioners had signed "No Objection

Certificate" to the effect that they have no claim against any

individual/organization.

07. Heard learned counsel for the parties and perused the record

available on file.

08. A blast took place at small arms firing range of 18 Rashtriya

Rifles Battalion near fringes of Kuligam forest on 05.07.2007, which

resulted in death of two persons namely Farooq Ahmad Kataria, aged

about 14 years and Sarfaraz Ahmad Kataria aged about 15 years, who

died on spot. Both the children of the petitioners were shifted to

Kupwara Government Hospital where Sarfaraz Ahmad Kataria was

died on spot and Farooq Ahmad Kataria was declared as brought dead.

09. The incident which occurred on 05.07.2007 is admitted and

death of the children of the petitioners is also admitted. FIR No.

39/2007 in this regard was registered in Police Station Lalpora on

05.07.2007. As per the report in the local newspaper, children of the

petitioners were playing in the nearby forest and had died due to blast.

There is no dispute with regard to the death of the children due to blast

near Kulgam forest. The respondents, however, have denied their

liability on the ground that the death was caused due to explosion of

IED which could have been planted or put forth by the anti national

elements. Though, it is admitted by them that the blast took place at

small arms firing range of 18 Rashtriya Rifles Battalion near fringes of

Kulgam forest. The respondents have placed on record a certificate of

both the petitioners saying that they have no claim against any

individual, however, this would not come in the way of the petitioners

seeking compensation on account of the death of their children.

10. The respondents submit that this petition is filed after

considerable delay and, as such, is not maintainable. The fact that

whether the explosion was caused by ammunition left by the army or by

the IED of the anti national elements is disputed question of fact which

cannot be gone into at this stage. The death of the petitioners' children

had occurred in the year 2007 and the petitioners have approached this

Court after more than ten years. The claim of the petitioners is that the

State is duty bound to protect the life, liberty and property of the

petitioners and the death on the unfortunate incident was due to

callousness on behalf of the respondents, who have left their arms and

not taken proper care of fire arms. The petitioners have lost their young

children in an unfortunate incident of blast, whether the same has

occurred due to negligence of the respondents or by some anti-national

elements would not preclude them from maintaining the petition even

after delay. The ground of delay in the present facts and circumstances

will not come in the way of the petitioners to seek compensation. More

so, when the respondents have noticed these incidents and framed

guidelines for assistance to victims.

11. The Ministry of Home Affairs has framed Revised Guidelines

of Central Scheme for Assistance to Civilian victims/Family of Victims

of Terrorists/Communal/Left Wing Extremism (LWE) Violence and

Cross Border Firing and Mine/IED Blasts on Indian Territory, 2022. As

per this scheme dated 30.03.2022, for incidents which have occurred

during period 01.04.2008 to 23.08.2016, the finance assistance is Rs. 3

lacs and for incident occurred on or after 24.08.2016, the financial

assistance is Rs. 5 lacs. Mr. T.M. Shamsi, learned DSGI submits that

this scheme is effective only from, therefore, the benefit of the same

cannot be granted to the petitioners. The clause 4 of the Revised

Guidelines of Central Scheme for Assistance to Civilian victims/Family

of Victims of Terrorists/Communal/Left Wing Extremism (LWE)

Violence and Cross Border Firing and Mine/IED Blasts on Indian

Territory, 2022 is reproduced as under: -

4. Eligibility i. The financial assistance would be given to the family member(s) in the event of death or permanent incapacitation of the civilian victim, in Terrorist, Communal or LWE Violence and Cross Border Firing and Mine/IED blasts on Indian Territory.

ii. Assistance would be given to the surviving spouse in case of death/ permanent incapacitation of the husband or the wife, as the case may be. However, if both the husband and the wife die in same incident of violence, the family would be entitled to get the assistance, in each case.

iii. Families of the victims would be eligible to get assistance under the Scheme even, if they have received any other assistance, by way of payment of ex-gratia or any other type of relief from the

Government or any other source except when a similar scheme is already being implemented by the Central Government. iv. Civilian victim/ Next of Kin (NoK) will be eligible to get financial assistance under the Central Scheme even if he/she or any other person in the family has been given a permanent Government job on compassionate grounds.

v. Civilian Victim/NoK of the Security Related Expenditure (SRE) Districts/States will be eligible to get financial assistance under SRE Scheme also in addition to the financial assistance under the Central Scheme. In the case of Jammu & Kashmir, financial assistance will be governed by the letter No.16016/4/2017-K-V dated 14thJune 2018 issued by Jammu and Kashmir Division (now Jammu, Kashmir & Ladakh Affairs Division), Ministry of Home Affairs.

vi. Next of Kin (NoK) of employees of Central Government, CPSEs, Autonomous Institutions and other Government Organizations including State Governments / State PSEs and similar organizations of State Governments will also be eligible to receive financial assistance of Rs.3 Lakh/Rs.5 Lakh as the case may be, in case of death/ permanent incapacitation (50% and above) on account of incidents of Terrorist/ 2 Communal/ LWE Violence and Cross Border Firing and Mine/IED blasts on Indian Territory. vii. Foreign Nationals and NRIs shall also be eligible / covered under the Scheme w.e.f. 01.04.2008 i.e. the date from which this Scheme has been made effective.

vii. Those permanently incapacitated, and the members of the family of the civilian victims killed/permanently incapacitated in the Terrorist, Communal or LWE Violence and Cross Border Firing and Mine / IED blasts on Indian Territory would be given a health card by the District Health Society, functioning under the National Rural Health Mission. This card would entitle them to free medical treatment in respect of injuries due to violence and all other major illnesses. Medical care will also be provided to the beneficiaries of the Scheme as a special case under the on-going schemes of the Ministry of Health and Family Welfare, viz., Rashtriya Arogya Nidhi and the National Trauma Care Project.

viii. Children in the family would continue to be entitled for assistance admissible under the project 'Assist', implemented by the National Foundation for Communal Harmony (NFCH) of the MHA. ix. No other criteria regarding income of the family would be considered for the eligibility under this scheme. x. The perpetrators of violence or their family will not be entitled to any assistance under the scheme.

xi. The eligible claimants can file their claims in prescribed proforma (Annexure-l) within 3 years of the relevant incident of Terrorist, Communal or LWE Violence and Cross Border Firing and Mine/I ED blasts on Indian Territory through the DM/DC/State Government concerned. The time limit, however, can be relaxed in deserving cases by the Central Government on the recommendations of the State Govt. or by the Central Government suo-moto.

12. As per the revised guidelines, petitioners fulfill the eligibility

as the death has occurred as per 4(1) due to IED blast on Indian territory

and families can be granted assistance even if they have received

assistance by ex gratia or any other relief. The only issue is there

guidelines provide for incidence that are operative from 01.04.2008, the

death have occurred in 2007 and this scheme to being assist the civilian

victim of terrorist violence, the benefit of the same cannot be denied to

the petitioners who were unable to seek any compensation for the death

of their children. The petitioners cannot be denied the benefit of the

scheme. The financial reimbursement scheme is payable to the eligible

beneficiaries in the first instance and the petitioners fall within in the

definition of Clause -3(d) Next of Kin which would be the surviving