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2013 Supreme(J&K) 371
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M.M. Kumar,Ali Mohammad Magrey, JJ.
Uzma Qureshi & Ors. -Appellant
Versus
Chief Secretary & Ors. -Resopndent
PIL No. 7-2013, IA No. 721-2013
Decided On : 14-05-2013
P. Imroze, M.I. Qadiri, N. H. Shah.
Premature filing of a PIL and lack of maintainability due to active consideration of recommendations by the government and jurisdiction of the concerned Magistrate.
Headnote:
PIL - Human Rights Commission Recommendations - Jammu and Kashmir Protection of Human Rights Act, 1997, Section 19 - The court dismissed the PIL seeking directions to consider the recommendations of the State Human Rights Commission and for reopening/reinvestigation of FIR no.10/1991, as it was premature and the recommendations were under active consideration of the government. The court also found that the petitioners lacked the locus to file the PIL.
Fact of the Case:
The petition sought directions to consider the recommendations of the State Human Rights Commission and for reopening/reinvestigation of FIR no.10/1991 through a special investigation team.
Finding of the Court:
The court found the petition to be premature and lacking in maintainability, as the recommendations were under active consideration of the government and the concerned Magistrate was seized of the matter.
Issues: Maintainability of the PIL, locus of the petitioners, and the premature nature of the petition.
Ratio Decidendi: The court dismissed the PIL as premature and lacking in maintainability, citing the active consideration of the recommendations by the government and the jurisdiction of the concerned Magistrate.
Final Decision: The court dismissed the PIL along with the connected CMP but directed the respondent State to ensure that monetary relief, as recommended by the Commission, is paid to the victims without further delay.
1. This petition, filed in public interest, inter alia, seeks directions on the respondents to consider recommendation of the State Human Rights Commission dated 19.10.2011 and for reopening / reinvestigation of FIR no.10/1991, Police Station Tregam, through a special investigation team.
2. On 07.05.2013, when the matter came up for consideration before us, learned counsel for the petitioners was asked to convince the Court as to the maintainability of the petition, particularly in context of the question whether the petitioners could seek implementation of the recommendations made by the State Human Rights Commission (hereinafter referred to as `the Commission'). The learned counsel sought time to address the Court on the aforesaid issue. The matter was, accordingly, adjourned and ordered to be posted on 08.05.2013.
3. It was also felt necessary to seek assistance of the learned Advocate General. Accordingly, Mr. Shah, learned Dy. AG, was required to ensure availability of the learned Advocate General to state the stance of the State in the case on the next date.
4. The case was again taken up on 08.05.2010 and, after hearing the learned counsel for the petitioner and the learned Advocate General, orders were reserved.
5. Mr. Imroz, learned counsel for the petitioners, in response to the query posed by the Court has addressed his arguments on the locus of the petitioners to file the PIL and, in order to buttress his arguments, has produced photocopies of the judgments of the Apex Court in Sheela Barse v. Union of India, JT 1988 (3) 15; Chairman Railways Board v. Chandrima Das, 2000(2) SCC 465; Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; Assistant Collector of Customs, Bombay v. L. R. Malwani, AIR 1970 SC 962; Noida Entrepreneurs Association v. Noida, AIR 2011 SC 2112; Udai Shankar Awasthi v. State of UP, [Criminal Appeal nos. 61 & 62 of 2013, decided on 09.01.2013]; Vineet Narain v. Union of India, (1998) 1 SCC 226; and Rajesh Das, IPS v. Tamil Nadu SHRC, 2010 (5) CTC 589. We have gone through these judgments. These relate to the locus of the petitioners to file the PIL, not on the maintainability of the petition.
6. Mr. Qadri, learned Advocate General, in his arguments has taken two preliminary objections to the maintainability of the petition. His first submission is that the reliefs prayed for in the writ petition do not fall within the ambit and scope of PIL, inasmuch as such reliefs cannot be granted by way of mandamus. The learned Advocate General, in this behalf, has referred to Section 19 contained under Chapter IV of the Jammu and Kashmir Protection of Human Rights Act, 1997. It may be apt to mention here that the aforesaid Act has been enacted to provide for the constitution of a Statute Human Rights Commission and Human Rights Court for better protection of human rights and for the matters connected therewith or incidental therto. Section 18 of the Act provides for inquiry into complaints and Section 19 provides for steps after inquiry. Section 19, in so far as relevant for the present purpose, for facility of reference, is extracted hereunder:
"19. Steps after inquiry:
The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:--
(1) Where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(2) Approach the High Court for such directions, orders or writs as the court may deem necessary;
(3) Recommend to the Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary.
(4) ................
(5) the Commission shall send a copy of its enquiry report together with its recommendat
