NHRC issues notice to the J&K Chief Secretary in Rajinder Premi Case; seeks report within four weeks

It is further stated that in order to implement the sacrosanct directions/recommendations of the State Commission, various high level meetings have been held involving senior officials of the State Government but none of the decisions of such high level meetings has taken a practical shape. The callousness ,apathy and insensitivity of the Government towards  the plight of the family  of an innocent front line victim of ruthless terrorism has left them shattered as even taking up the matter with PMO and MHA has proved to be in-effective.

The Complainant is seeking intervention of the Commission for implementation of SHRC recommendations as well as that of the decisions taken in high level meetings of erstwhile State of J&K and order for an early redressal of genuine and justified grievances/issues of the aggrieved family.

Before taking cognizance of the complaint, it is imperative upon the Commission to clarify the legal position, as of now,  as how the instant complaint lies within the domain of the Commission. Until now, as per proviso of sub-section(2) of Section(1) of  the Protection of Human Rights Act, 1993 , the applicability of the provisions of the  Act in issue, as far as State of Jammu and Kashmir,  was limited to the matters relatable to any of the entries enumerated in List I or List III  in the Seventh Schedule to the Constitution as applicable to the State. Now, the Central Government, in August 2019  has enacted “ The Jammu and Kashmir Reorganization Act, 2019 (No.34 of 2019)  by which the State of Jammu and Kashmir has been reorganized into two Union Territories namely Union Territory of Jammu and Kashmir and Union territory of Ladakh. As per Section 95(1) of said Act,all Central laws in Table -1 of the Fifth Schedule to the said  Act, on and from the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.

Further, subsection(2) of Section 95 provides that  All other laws in Fifth Schedule, applicable to existing State of Jammu and Kashmir immediately before the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.

As per S.No. 86 of the Fifth Schedule of the Jammu and Kashmir Reorganization Act, 2019 (No.34 of 2019), the proviso to sub-section (2) of section 1 of the Protection of Human Rights Act, 1994, has been held to  be omitted . Further by notification of State Govt, the J&K State Human Rights Commission has ceased to be in operation with  effect from 31st Oct, 2019.

Thus, by enactment of the Jammu and Kashmir Reorganization Act, 2019, the  National Human Rights Commission has, now, been empowered to take a call on the complaints received in the Commission regarding alleged human rights violation in the Union Territories of Jammu and Kashmir even if relates to an entry mentioned in List–II of the Constitution of India.

After clarification on issue of legality of taking call on complaints of alleged human rights violation in UT of J&K including complaint in issue which have been or will be received in the Commission and to decide the same as per provisions of the Human Rights Act, 1993 read with NHRC (Procedure) Regulations, 1994, the Commission observed that in the instant case after direction given in a case No. 119/1/08-08/OC vide order dated 20.07.2008, the complaint was dealt by the Division Bench of J&K State Human Rights Commission. The said Bench had extensively taken up each and every issue raised by the complainant in his complaint and made a valid and reasoned order on such issues for instance on first issue in the complaint given by his mother Smt. Usha Kaul regarding compensation for looting of movable property at the time of attack by militants on 29.4.1990. The complainant claimed the cost of looted property at Rs. 10,00,000/-(s.Ten Lakhs)  against which an exgratia of Rs. 1,00,000/- for each life lost was paid by State Government.

On this Issue the Commission while agreeing with the reports submitted by the concerned officers, however, feels that the family of such a reputed personality of the Valley after losing two of their family members in such a gruesome and cold blooded manner have been left to start afresh from a scratch. As such the State Government owes some responsibility to extend at least some helping hand/aid so as to enable the family to start their lives honorably. The State Government has already paid Rs. Two Lacs for the death of the two family members which were paid as exgratia relief in favour of the NoKs and in addition has allotted one room tenement No. 183 at Muthi Jammu in favour of the widow which apparently appears sufficient to start a fresh, but keeping in view the status, dedication and the services of the deceased, Hon’ble the Chief Minister may further grant some relief from his discretionary quota in lieu of the moveable assets, so that the family of the deceased feels that the services of the deceased father of the complainant have been acknowledged and found due recognition. In this behalf even Central Cabinet Minister for Renewable Energy Shri Farooq Abdullah has addressed a communication to the Hon’ble the Chief Minister which we think must be honored.

In so far as grievances projected at S.No. 5 is concerned, the complainant claims rent regarding his residential houses which were allegedly under the possession and occupations of the Army/paramilitary forces up to 1998 when the same were vacated and then unfortunately torched by some miscreants just after their evacuation. With regard to this grievance, the complainant banks upon letter dated 26.4.2011 written by the SSP Anantnag in which he has mentioned that before the residential houses were torched by the miscreants the Army personnel had taken refuge in the same in order to keep vigil on militants and this was the main cause that the unknown militants had burnt the houses after the same were vacated.

In our opinion, it is the occupation certificate issued by the concerned CO which will create a liability upon the security related expenses of the State. On record, we are confronted with another letter of SSP Anantnag dated 12.9.2009 addressed to Mrs. Uma Koul widow of the deceased Sarwanand Kould Premi where in at serial No. 5 the SSP has mentioned that as per the records the houses in question had never been occupied by the security forces. Therefore, this is a question of fact whether from May 1990 to August 1998 the houses of the complainant were under the possession and occupation of the Army/paramilitary forces which the DC Anantnag can easily ascertained from the concerned, and if the officer(s) respond in affirmative, the complainant and his other family members are within their rights to claim and be paid the due assessed rent for the period the houses remained under the occupation of the Army/paramilitary forces. The DC being otherwise custodian of the migrant property is under law bound to seek necessary clarification regarding the occupation from the concerned unit heads of the Army/paramilitary forces and then act accordingly. Recommendation is made accordingly.

In so far as the next grievance is concerned, the complainant and his widowed mother have agitated that the left over moveable and immoveable property regarding which even a detailed separate communication has directly been addressed to DC Anantnag, copy of which has even being sent to Tehsildar Kokernag, it has been projected that the State Administration and local respectable members of the Village had under taken and promised them to upkeep and maintain of the same but they are shocked to know that some persons have grabbed, trespassed and encroached upon their left over property.

Under the relevant provisions of the law, the Dy Commissioner of the District is custodial of the left over property and he is to ensure the safe custody of the same. Therefore, taking this grievance along with detailed letter addressed by Smt. Uma Koul to DC Anantnag into consideration, it is recommended that the DC Anantnag will ensure the safe custody of the left over property of the complainant and his family members and will remove all encroachment if any from the same and take the entire property into his own possession so that it can be handed over back in its purest form to the complainant and his family members when they return or require the same whatever is earlier.

From above observation, it is amply clear that the main grievance of the complainant is the non-implementation of the SHRC’s judgment and order dated 22.2.2012 and since the SHRC is ceased to have any existence due to abrogation of Article 370 and Introduction of Jammu and Kashmir Reorganization Act 2019, the complainant has came before the National Human Rights Commission with a prayer that Commission may intervene immediately for getting order implemented passed by the SHRC.

Since the complainant has approached the NHRC with a cause of violation of human rights and in the context of denial of remedy despite order of the SHRC, NHRC is competent and having jurisdiction to intervene in such matter and therefore taking into consideration of various issues which have been raised by the complainant and in view of the reasoned  order passed by the erstwhile Jammu and Kashmir State Human Rights Commission and on the grievance of the mother of the complainant and inaction on the part of the government machinery to take actionable decision, the Commission is of the opinion to issue notice to the Chief Secretary, Union Territory of Jammu & Kashmir asking him as to why full relief should not be granted to the complainant in terms of judgment and order of the erstwhile State Human Rights Commission of Jammu & Kashmir vide order dated 22.02.2012 within four weeks.

The Commission makes it clear that there is no limitation u/s 36(2) of the Protection of Human Rights Act, 1993 to take up the issue by the National Human Rights Commission on ground that the decision has already been taken by the Jammu & Kashmir State Human Rights Commission and due to non existence of it, the jurisdiction has been granted to the NHRC, and the Commission is competent to proceed further with this case.