HIGH COURT OF JAMMU AND KASHMIR

ATJAMMU

OWP No. 417/2018 (O&M) &

OWP No. 270/2019 [WP (C) No. 546/2019] (O&M)

(Through Video Conferencing)

Reserved On: 24.09.2020.

Pronounced On: 05 .11.2020.

Airport Authority of India

…..Petitioner(s)

Through: -

Mr. Inderjeet Gupta, Advocate in OWP No. 417/2018

Mr. Sunil Sethi, Sr. Advocate with

Mr. Ravi Abrol, Advocate, inOWPNo. 270/2019

V/s

Jammu and Kashmir State Human Rights Commission Jammu.

…..Respondent(s)

Through: -

None.

CORAM:

HON’BLE MR. JUSTICE RAJESH BINDAL, JUDGE.

HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.

JUDGMENT

JAVED IQBAL, J:

At the outset it is pertinent and significant to mention here that this court

while considering OWP 417/2018 on 06.03.2019 passed the following

order:-

“The issue regarding the jurisdiction of the State Human

Rights Commission to pass the impugned order has been

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raised in the matter, which is pure question of law. The

same issue is under consideration in OWP No. 270/2019.

List this petition along with OWP No. 270/2019 on 8

th

April 2019.”

In view of aforesaid order, both the petitions are listed together for

consideration and are as such being taken up for final disposal together.

In the first instance facts those emerge from the petitions in hand are

required to be delineated separately here under: -

OWP No. 417/2018

1. The petitioner in this petition filed under Article 226 of the

Constitutionof India, craves indulgences of this court for granting the

following reliefs: -

(i) Allow this Writ petition of the petitioner.

(ii) By way of writ of certiorari quash impugned orders dated

29-5-2017 & 11-12-2017 passed by Respondent in SUO-

MOTO Cognizance taken in Case No. HRC/75-J of

2017.

(iii) Such other appropriate relief, including the cost of

litigation as may be deemed appropriate by this Hon‟ble

Court.

(Facts)

2. The background facts enumerated in the petition under the shade of

which the aforesaid reliefs have been claimed are that the Airport Authority

of India (AAI) controlsand manages all the Airports in thecountry including

the Jammu Airport as per the Airport Authority India Act, 1994.

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2.1 According to the petitioner Jammu and Kashmir State Human Rights

Commission (hereinafter for short „the Commission‟) took suo-moto

cognizance in case No. HRC/75-J of 2017. In the orders dated 29.05.2017

and 11.12.2017 passed by the Commission, it is recorded that some public

spirited persons appeared before it with some documents alleging that

restaurants and some public outlets operating at the Airports of Jammu and

Srinagar are selling packaged commodities (food items etc.) at the prices

more than the MRP in as much as declaring dual MRP on same packaged

commodities in violation of The Legal Metrology Act of 2009 and The

Legal Metrology (Packaged Commodities) Rules of 2011(hereinafter for

short „the Act of 2009‟ and „the Rules of 2011‟, respectively) under the nose

of higher officers and within their acknowledge.

2.2 It is being stated in the petition that in its impugned order dated

29.05.2017 the Commission held that the sale of goods above MRP is clear

violation of human rights, which is required to be corrected and enquiry

initiated.

2.3 It has further been stated in the petition that the respondent

Commission on 29.05.2017 issued notices to the Controller of Legal

Metrology J&K State, Director Airport Authority of India Jammu/ Srinagar,

Director Tourism Department and Sr. Superintendent of PoliceAHJ Airports

Jammu/ Srinagar.

2.4 It is next stated in the petition that the petitioner in response to

notice entered appearance before the Commission and in its reply filed,

raised a preliminary objection that the Commission has no jurisdiction to

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entertain the complaint in question which objection, however, was not

decided by the Commission.

2.5 Further it is stated that in its reply before the Commission, the

petitioner submitted that at the Airports the consumable loose products, such

as patties, burger, tea, coffee,samosa etc. are being sold at pre-defined rates

for which rate list is displayed at the outlets as per contract and that the same

contract is in vogue at all other Airports in India.It is being next stated in the

petition that the Airport Director, Jammu/ Srinagar,has directed that all

licensees of commercial contracts are bound to provide food and beverages

at Jammu and Srinagar Airports at MRP.

2.6 According to the petitioner the Commission vide its order dated

11.12.2017 directed Sr. Superintendent of Police Airports Jammu/ Srinagar

to conduct appropriate enquiry and that the Commission had no jurisdiction

to pass such direction for conducting enquiry.

(Grounds)

3. The petitioner in the aforesaid backdrop maintains the instant

petition inter-alia amongst others on the grounds that the Commission has

no jurisdiction to entertain such type of complaints and to pass directions for

conducting an enquiry by Sr. Superintendent of Police, Airport Jammu /

Srinagar and that the Director Legal Metrology is competent under the Act

of 2009 to take action against any concern charging prices higher than MRP

and that the Commission has no jurisdiction to entertain any complaint for

allegation of excess charge of prices printed on the product.

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OWP No. 270/2019

1. The petitioner in this petition filed under Article 226 of the

Constitution of India, craves indulgences of this court for granting the

following reliefs: -

(a) “An appropriate writ, order or direction in the nature of

writ of certiorari quashing the Complaint titled Mohd.

Yousuf Vs. Dr. Anwar Choudhary and another filed and

pending before the Respondent No. 1-Commission.

(b) An appropriate writ, order or direction in the nature of

writ of certiorari quashing the order dated 24.12.2018

passed by the respondent no.1 Commission whereby

despite successive enquires and despite nothing adverse

reported against the petitioner, another enquiry has been

directed to be held on the complaint and allegations of

respondent No. 4 to be conducted by the respondent no.

3.

(c) An appropriate writ, order or direction in the nature of

writ of mandamus commanding the respondent no. 1-

Commission to desist from conducting any further

enquiry pursuant to the order impugned dated 24.12.2018

and not to harass and victimize the petitioner inreference

to the impugned complaint filed by the respondent no. 4.

(d) Any other relief which this Hon‟ble Court in the facts

and circumstances of the case deems fit and proper.”

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(Facts)

2. The aforesaid reliefs are being sought by the petitioner on the premise

that the petitioner in the year 2011 was workingas a Casualty Medical

Officer in District Hospital, Rajouri.On 06.08.2011, while being on night

duty at around 04:50 am he received a patient namely Misbah (D/o

respondent No. 4) with the history of snake bite.After subjecting her to

various tests and examination headministered various medicines.Despite this

her condition deteriorated, necessitating shifting her to Government Medical

College, Jammu, for puttingher on ventilator, which was not available in

District Hospital Rajouri.

2.1. According to the petitioner despite all efforts made for saving the life

of the victimby the petitioner and other concerned staff of the hospital,

victimdied due to cardiac respiratory arrest, whereupon the respondent No. 4

with his relatives assaulted the petitioner and medical staff besides damaging

hospital property. It resulted into registration of an FIR bearing No. 401/2011

under sections 353, 427 and 147 RPC at Police Station, Rajouri.

2.2. According to the petitioner, the respondent No. 4 reported death

of his daughter in Police Station, Rajouri.As a consequences whereof

proceedings under section 174 CrPC were initiated vide DDR No. 11 dated

08.08.2011 After holding detailed inquest proceedings, the same were closed

holding the cause of death of the victim a snake bite.

2.3. According to the petitioner a communication in this regard

came to be addressed by the Deputy Superintendent of Police, Headquarters

Rajouri dated 29.02.2016to District Magistrate Rajouri.

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2.4. According to the petitioner the respondent No. 4 after a lapse of

two years from the date of death of his daughter on 03.09.2013, filed a

complaint before the Jammu and Kashmir Sate Human Rights Commission

(hereinafter for short „the Commission‟) alleging therein that his daughter

died due to the negligence of the petitioner and one more official namely

Masood Malik, working in District Hospital, Rajouri.

2.5. It is being further stated in the petition that simultaneously with

the filing of impugned complaint before the Commission, the respondent

No. 4 also filed a writ petition being OWP No. 1401/2013 titled as Mohd

Yousuf vs. State of J&K and Ors., before this court on 04.10.2013, which is

pending disposal before this court, leveling thereinsimilar allegations as had

been leveled by him in the complaint filed before the Commission and

seeking therein almost similar reliefs as had been sought by him before the

Commission.

2.6. It is being next stated by the petitioner that the respondent No. 4

did not make any mention in the writ petition filed before this court about

filing of the complaint before the Commission.

2.7. It is being further stated in the petition that the Commission

upon entertaining the complaint of the respondent No. 4 issued notice in the

matter to the Director Health Services, Jammu on 08.10.2013, whereupon

the Director Health Services Jammu, directed the Chief Medical Officer,

Rajouri and Medical Superintendent District Hospital, Rajouri, to furnish

requisite information / reply in the matter.

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2.8. According to the petitioner theDirector Health Services vide his

letter dated 15.01.2014 submitted a report before the Commission stating

therein that the consequent upon the death of the daughter of the respondent

No. 4 an enquiry was conducted by a committee consisting of the then Chief

Medical Officer, Rajouri, Medical Superintendent District Hospital, Rajouri

and one Doctor Abdul Rashid physician District Hospital, Rajouri. As per the

report of the said committee, the deceased died on account of snake bite and

prior to her deathshe had been properly attended to by the night staff and

there appeared no negligence on the part of treating staff exceptthat a call to

the consultant was delayed resulting into the delayed arrival of the consultant

at 7:35 am i.e. after the death of the victim/ deceased.

2.9. It is further stated in the petition that the aforesaid letter dated

15.01.2014 of the Director Health Services also contained the aforesaid

enquiry report and other related documents as well.

2.10. According to the petitioner despite receipt of the aforesaid

detailed report from the Director Health Services Jammu, the Commission

did not close the proceedings and instead on 23.11.2017 directed another

joint enquiry to be conducted by Additional Superintendent of Police,

Rajouri, and Chief Medical Officer, Rajouri.

2.11. According to the petitioner the aforesaid enquiry was also

conducted into the allegations leveled by the respondent No. 4 in his

complaint filed before the Commission and after thorough examination and

evaluation of the matter inasmuch as after recording statements of various

witnesses afresh opined in their report dated 26.04.2018 that the allegations

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leveled in the complaint are not substantiated against the petitioner and the

Medical assistant namely Masood Malik who had followed the right medical

procedure while performing government duties to save the life of the victim.

In the said report as well the victim was found to have died by snake bite.

2.12. According to the petitioner the Commission despite the

aforesaid enquiry report dated 26.04.2018, did notclose the proceedings in

the complaint and instead passed impugned order dated 24.12.2018 directing

thereunder the respondent No. 3 herein to hold enquiry afresh into the

allegations leveled by the respondent No. 4 in his complaint.

(Grounds)

3. The petitioner in the above backdrop thus challenges the

maintainability of complaint as well as order dated 24.12.2018 passed by the

Commission inter-alia amongst others on the grounds that the complaint

filed by the respondent No. 4 before the Commission is highly motivated

and is aimed at harassing, victimizing and black-mailing the petitioner which

real motive has not been noticed by the Commission.Further that the

complaint filed by the respondent No. 4 before the Commission is bad in the

eyes of law inasmuch as the allegations projected therein do not warrant

initiation of any action by the Commission.The Commission before taking

cognizance of the complaint and initiating proceedings was under a legal

obligation to establish violation of a human right. It is being further urged in

the grounds that neither the respondent No. 4 in the complaint indicate as to

which of his human rightshad got violated nor the Commission before taking

cognizance of the complaint established violation of any of the human rights

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of the respondent No. 4. It is also urged in the grounds that initiation of

proceedings by the Commission are totally illegal and contrary to The

Jammu and Kashmir Protection of Human Rights Act 1997 (hereinafter for

short „Act of 1997‟). It is further urged in the grounds that since the

Commission had earlier ordered two enquiries, as such, in presence of the

report of said enquirieswhere under the allegations of the respondent No. 4

were found to be baseless, directing initiation of another enquiry in terms of

impugned order dated 24.12.2018 ishighly unjustified that too when no

infirmityhad been found or noticed in the earlier enquiry reports by the

Commission.It is further urged in the grounds that the order of fresh enquiry

dated 24.12.2018 would make the petitioner again to suffer wrath of agony

and harassment, as such, according to the petitioner the impugned order

suffers from serious illegality and irregularity and consequently third

enquiry against the petitioner would not legally be permissible. It is being

further urged in the grounds by the petitioner that the impugned order dated

24.12.2018 suffers from non-application of mind besides violating principle

of natural justice causing serious prejudice to the petitioner.

4. Heard and considered.

5. The learned appearing counsels in both petitions while making their

submissions reiterated their stand taken in their respective petitions and

raised a moot point qua the competence and jurisdiction of the Commission

in entertaining the complaints in question, consequent cognizance taken

thereof inasmuch as passing of impugned orders thereon.

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6. It is significant to mention here that in OWP No. 417/2018 the only

respondent party impleaded is none except the Commission, whereas, in

OWP No. 270/2019 besides the Commission and its officers, the

complainant is impleaded as party the respondent No. 4 and upon issuance

of notices by this court, the respondent No. 4 earlier did appear through his

counsel at some stage of proceedings, however, has not either chosen to file

any response/ reply in opposition to the petition or to contest the same.

Today also none appears for the respondent No. 4.

7. Without adverting to the contentious factual issues emanating from

the cases setup by the petitioners in their respective petitions and having

regard to the submissions made by the learned appearing counsels for the

petitioners, it is imperative to have a discourse to the question of competence

and jurisdiction of the Commission in entertaining the complaints in

question and dealing with the same.

8. Before dealing with the aforesaid question it would be advantageous

and appropriate to refer to the following provisions of the Act of 1997 being

relevant and germane to the controversy: -

Section 2 (c) of the Act defines Human Rights as under: -

“2(c)“Human Rights” means the rights relating to life,

liberty, equality and dignity of the individual guaranteed

by the constitution or embodied in the International

Covenants and enforceable by Courts in India:”

Section 3provides for Constitution of a State Human Rights

Commission and reads as under: -

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(1) “The Government shall constitute a body to be known

as the State Human rights commission to exercise the

powers conferred upon, and to perform the functions

assigned to it, under this Act.

(2) The Commission shall consist of-

(a) A Chairperson who has been a Judge of the High

Court;

(b) One Member who is, or has been, a District Judge;

(c) three members to be appointed from amongst

persons having knowledge of, or practical

experience in, matters relating to Human rights.

(3) There shall be a Secretary who shall be the Chief

Executive Officer of the Commission and shall

exercise such powers and discharge such functions of

the Commission as it may delegate to him.

(4) The headquarters of the Commission shall be at

Srinagar.

(5) The Commission shall have sub-offices at Jammu,

Doda and Rajouri; Provided that the Government may

establish sub-offices at other places in the State.

(6) A member of the Commission shall hold sittings of

the Commission at each sub-office.

Section 13of the Act provides for functions of the Commission

and reads as under: -

13.“Functions of the Commission: The Commission

shall perform all or any of the following functions,

namely: -

(a) Inquire, suo moto or on a petition presented to it by a

victim or any person on his behalf, into complaint of:

(i) Violation of human rights or abetment thereof; or

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(ii) Negligence in the prevention of such violation, by

a public servant;

(b) Intervene in any proceeding involving any allegation

or violation of human rights pending before a Court

with the approval of such Court;

(c) Visit, under intimation to the Government, any jail or

any other institution under the control of the

Government, where persons are detained or lodged for

purposes of treatment, reformation or protection to

study the living conditions of the inmates and make

recommendations thereof;

(d) Review the safeguards provided by or under the

Constitution or any law for the time being in force for

the protection of human rights and recommended

measures for their effective implementation;

(e) Review the factors, including acts of terrorism, that

inhibit the enjoyment of human rights and recommend

appropriate remedial measures;

(f) Undertake and promote research in the field of human

rights;

(g) Spread human rights literacy among various sections

of society and promote awareness of the safeguards

available for the protection of these rights through

publications, the media, seminars and other available

means;

(h) Encourage the efforts of non-governmental

organizations and institutions working in the field of

human rights;

(i) Such other functions as it may consider necessary for

the promotion of human rights.”

Section 24 of the Act provides for matters not subject to

jurisdiction of the Commission and reads as under: -

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24. “Matters not subject to jurisdiction of the

Commission- (1) The Commission shall not inquire into

any matter which is pending before any other

Commission duly constituted under any law for the time

being in force.

(2) The commission shall not inquire any complaint

relating to a matter not falling within its jurisdiction but

may forward the same to a forum having jurisdiction to

entertain the same.”

9. Further reference to Regulation 14 of Jammu and Kashmir State

Human Rights Commission (Procedure) Regulations 2011 (hereinafterfor

short „the Regulation‟) framed under section 10 of the Act being relevant

herein would also be appropriate and same reads as under:

“14.Complaints not entertainable- The Commission

may dismiss in limini complaints of the following nature;

(a) The allegations in the complaint do not make out a

case of human rights violations;

(b) Trivial or frivolous and illegible complaints;

(c) Vague anonymous/ unsigned, or pseudonymous

(d) Civil disputes such as contractual obligations,

matrimonial matters, property rights and other types

of cases which are covered by civil/ criminal law;

(e) Pure and simple service matters;

(f) Allegations not against a public servant;

(g) Industrial/ labour disputes;

(h) Matters sub-judice before any Court/ Tribunal/

Commission;

(i) Matters outside the purview of the State Commission;

(j) Complaints barred by laws;

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(k) Matter fully covered by a judicial verdict/ decision of

the Commission.”

10. A conjoint reading of the aforesaid provisions of the Act and the

Regulation suggest that the Commission is a statutory body, creation of a

statute empowered and authorized to discharge its functions and exercise its

powers and jurisdiction within the parameters of the Act and Regulations

thereunder. The Act and the Regulationsfurther provides for a mode and

mechanism for the Commission to be followed and adhered to qua the

complaints filed before it.

11. Section 24(2) of the Act forbids the Commission from inquiring into

any complaint not falling within its jurisdiction.Whereas Regulation 14 of

the Regulations mandates the Commission to dismiss in limini,

thecomplaints enumerated therein including the one involving civil dispute

such as contractual obligations, matrimonial matters, property rights and

other types of cases, which are covered by civil/ criminal law.

OWP No. 417/2018

Discussions and analysis

12. It is an admitted fact in the instant case that the Commission took suo-

moto cognizance of the issue under section 13(a) involved in the complaint

relating to alleged over pricing than MRP of food items at some restaurants

and public outlets at the Airports of Jammu and Srinagar, allegedly in

violation of the Legal Metrology Act of 2009 and the Legal Metrology

(Packaged Commodities) Rules of 2011 observing the same to be glaring

violation of a human right.

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12.1. The Act of 2009 has been enacted in order to establish and enforce

standards of weights and measures, regulate trade and commerce in weights,

measures and other goods which are sold or distributed by weights, measure

or number and formatters connected therewith or incidental thereto.

12.2. In exercise of powers conferred by sub section (1) read with clause

(j)and (q) of sub section (2) of section 52 of the Act of 2009,the Rules of

2011 have been framed.

12.3. Under Rule 2 clause (m) “retail sale price” has been defined at which

the commodity in packaged form may be sold to the ultimate consumer and

that price has to be printed on the package.

12.4 Under Rule 32 of the Rulespenalty for contravention of Rules is

provided as punishable with fine to be imposed by the competent authority

under the Act and the Rules.

13. A bare perusal of the aforesaid provisions would show that a modeis

provided for dealing with the issue of over pricing of commodities and in

presence of the said procedure contained in an independent statute, the

Commission cannot be said to have any power, competence and jurisdiction

to deal with any such issue. The aforesaid mode, however, seemingly is high

jacked by the Commission under a misconceived notion of glaring violation

of human rights.The Commission thus has mechanically assumed unto itself

a power and jurisdiction in breach of the Act of 1997 supra read with

Regulation of 2011. Still further the orders are totally evasive on the issue as

to who pointed out the matter before the Commission to take cognizance

thereof.

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OWP No. 270/2019

Discussions and analysis

14. In this petition the Commission has entertained the complaint of the

respondent No. 4 on alleged violation of a human right by the petitioner on

the premise that the petitioner a government doctor committed negligence

while attending to the daughter of the respondent No. 4 having suffered

snake bite resulting into her death. The Commission admittedly has failed to

address the question raised by the petitioner before it as to whether the

alleged negligence of the petitioner while discharging his official duties as a

doctor constituted violation of a human right as defined under section 2 of

the Act of 1997 clothing the Commission with a power to deal with the

issue. Had the Commission addressed,in the first instance to the said

question, it perhaps would have refrained from proceeding ahead with the

consideration of the complaint.Assuming the petitioner had been negligent

in discharge of his duties while attending to the daughter of the respondent

No. 4 resulting into her death, yet it cannot by any sense of imagination said

to be violation of a human right as defined under the Act of1997 but could

safely said to have been a case of civil liability or criminal liability against

the petitioner.

15. The Commission in view of above has grossly erred while

entertaining the complaint of the respondent No. 4 against the petitioner

purportedly on the premise of violation of a human right wrongly assuming

jurisdiction thereof under the Act of 1997 read with Regulation of 2011.

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16. This court forebears from expressing any opinion about the veracity or

otherwise of the allegations leveled in the complaint against the petitioner by

the respondent No. 4, lest it may prejudice their respective stands in the writ

petition pending before this court, filed by the respondent No. 4.

17. What emerges from above discussions and analysis of both the

petitionsis that the Commission in breach and violation of the provisions of

the Act of 1997 and the Regulationof 2011,not only entertained the

complaints in question relating to the issues falling beyond the purview and

scope of term “human right” as defined in the Act of 1997, but also took

cognizance thereof and proceeded therewith without any power, competence

and jurisdiction. The said acts of the Commission ex-facie run contrary to

the position of law well settled by a long line of decisions of the Apex Court

that when a statute requires a thing to be done in a particular manner, it

is to be done only in that manner alone. Reference in this regard would be

advantageous to “State of MP Vs. Centre for Environment” reported in

2020 SCC online SC 687 and “Competent Authority Vs. Barangore Jute

Factory & Ors.” reported in 2005 (13) SCC 477.

(Conclusion)

18. For what has been discussed, analyzed and observed herein above, we

find merit in the petitions. The same are allowed. The impugned

complaintpending before State Human Rights Commission bearing Nos.

HRC/75-J of 2017 (Suo-Moto) is dismissed as a sequel to which impugned

orders dated 29-5-2017 & 11-12-2017passed therein are quashed AND

complaint No. HRC121-J titled as Mr. Mohd Yousuf Vs. State of 2013

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pending before the State Human Rights Commission is dismissed.As a

sequel to which the impugned order dated 24.12.2018 passed therein is

quashed.

(Javed Iqbal Wani) (Rajesh Bindal)

Judge Judge

SRINAGAR

November, 5

th

2020

Ishaq

i. Whether the Order is speaking? Yes/No.

ii. Whether the Order is reportable? Yes/ No.