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A.F.R.

Reserved

Case :- WRIT - C No. - 23926 of 2017

Petitioner :- State Of U.P. And 2 Others

Respondent :- U.P. Human Rights Commission And

Another

Counsel for Petitioner :- Bhola Nath Yadav

Counsel for Respondent :- R.P.Singh Parihar

Hon'ble Bala Krishna Narayana,J.

Hon'ble Prakash Padia,J.

Per Hon'ble Prakash Padia,J.

1.Heard Sri Suresh Singh, learned Chief Standing

Counsel for the petitioners and Sri R. P. Singh Parihar,

learned counsel for the respondent no.2.

2.The petitioners have preferred the present writ

petition for quashing of the order dated 7.11.2016 passed

by U.P. Human Rights Commission, Lucknow in Case

No.1757(71)/2016-17 by which the District Magistrate,

Fatehpur/Superintendent of Police, Fatehpur were directed

to pay Rs. 1 lac to the Ansarul Haq/respondent no.2 and

to inform the Commission.

3.The facts in brief as contained in the writ petition are

that the respondent no.2 namely Ansarul Haq sustained

injuries on the head and in the right eye due to the riots

which occurred on 14.1.2016 during the procession on the

occasion of Makar Sankranti at Jahanabad, District

Fatehpur. After the aforesaid incident the respondent no.2

moved an application dated 10.5.2016 to the Chief

Minister, Govt. of U.P., claiming for the compensation. In

this regard a certificate was also issued in favour of the

respondent no.2 on 14.6.2016 by the Chief Medical

Officer, Fatehpur, stating therein that the right eye of the

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complainant/respondent no.2 is 100% blind and left eye is

normal and as such the opinion was recorded to the effect

that the disability suffered by the respondent no.2 is 30%.

A scheme was introduced by the State Government

namely “U.P. Victim Compensation Scheme-2014” in

which it is provided that a victim shall be eligible for the

grant of compensation if he is found eligible under the

provisions of para 4 of the Victim Compensation Scheme-

2014, which was amended vide amendment scheme

dated 7.6.2016.

4.Paragraph 4 of the U.P. Victim Compensation

Scheme-2014 as has been published in the official gazette

on 09.4.2014 is reproduced below :-

“4.A victim shall be eligible for the grant of

compensation if:

(a) the offender is not traced or

identified, but the victim is identified and

where no trial takes place; such victim may

also apply for grant of compensation under sub

section (4) of section 357-A of the Act;

(b) the victim/claimant reports the

crime to the officer-in-charge of the police

station within 48 hours of the occurrence or

any senior police officer or Executive

Magistrate or Judicial Magistrate of the area

provided that the District Legal Services

Authority, if satisfied for the reasons to be

recorded in writing, may condone the delay in

reporting;

(c) the victim/claimant cooperates

with the police and the prosecution during the

investigation and trial of the case.”

5.It is contended that as per the aforesaid scheme of

2014 a person is entitled for compensation when he

sustained disability ranging from 40 to 80%. It is further

argued that the respondent no.2 sustained injuries

causing disability only upto 30%. On the application

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submitted by the respondent no.2 before the Chief

Minister an order was passed on 2.8.2016 under the

signatures of the Secretary (Account) Govt. of U.P.,

Lucknow by which an order was passed to pay a sum of

Rs.20,000/- to the respondent no.2 under the U.P. Relief

Fund Scheme. In compliance of the aforesaid order the

amount of Rs.2,00,000/- (two lacs) was duly paid to the

respondent no.2 by the District Magistrate, Fatehpur vide

cheque dated 31.8.2016. Being not satisfied with the

aforesaid amount of compensation, the respondent no.2

made an application before the Chairman/Secretary, State

Human Rights Commission, Lucknow, which was

registered as Case No.1757 (71)/2016-17. On the

aforesaid application the State Human Rights

Commission, Lucknow wrote a letter dated 18.5.2016 to

the Superintendent of Police, Fatehpur for conducting the

enquiry and to submit its report in respect of the aforesaid

complaint. Pursuant to the same, an enquiry was got

conducted and the report dated 27.7.2016 was submitted

by the Circle Officer, Bindki, to the Superintendent of

Police, Fatehpur, on 27.7.2016, copy of which is appended

as annexure 11 to the writ petition.

6.The aforesaid report was duly forwarded by the

Superintendent of Police, Fatehpur, to the Secretary,

Human Rights Commission, Lucknow vide its letter dated

30.7.2016. Thereafter, the U.P. Human Rights

Commission, Lucknow/respondent no.1 without

considering the materials available on the record and

without considering the provisions of law specially the

provisions of Section 18 of the Protection of Human Rights

Act, 1993 passed the order dated 07.11.2016 by which

the compensation of Rs.1 lac was awarded to the

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complainant/respondent no.2. The District

Magistrate/Superintendent of Police, Fatehpur, were

directed to pay the aforesaid amount to the

complainant/respondent no.2. Further directions were

given to the District Magistrate, Fatehpur/Superintendent

of Police to make the aforesaid compensation to the

complainant/respondent no.2 and inform the commission,

copy of the order dated 7.11.2016 passed by the

respondent no.1 is appended as annexure 1 to the writ

petition. Aggrieved against the aforesaid decision taken

by the respondent no.1 petitioners have preferred the

present writ petition.

7.It is argued by Sri Suresh Singh, learned Chief

Standing Counsel that the order impugned passed by the

respondent no.1 is perverse and without jurisdiction and

have been passed without application of judicial mind and

as such the same is liable to be quashed. It is further

argued that Section 18 provides that where the inquiry

discloses the commission of violation of human rights or

negligence in the prevention of violation of human rights

or abetment thereof by a public servant, it may

recommend to the concerned Government or authority to

make payment of compensation or damages to the

complainant or to the victim or the members of his

family as the Commission may consider necessary.

8.It is further argued that in so far as the present case

is concerned, no finding whatsoever has been recorded in

the order impugned that there is any violation of human

rights or there is any negligence in the prevention of

violation of human rights or abetment thereof by a public

servant. It is further provided that commission may

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recommend to the concerned Government or authority to

make payment of compensation or damages to the

complainant or to the victim or to the members of the

family but by the impugned order the respondent no.1

directed the District Magistrate/Superintendent of Police

to make the payment of compensation as such the order

impugned passed by the respondent no.1 is without

jurisdiction. It is further argued that the complaint moved

by the respondent no.2 was not maintainable since there

is no allegation regarding the commission of violation of

human rights or negligence in prevention of violation of

human rights or abetement thereof by public servant. It is

further argued that the respondent no.2 sustained injuries

in one eye due to which disability sustained by him is 30%

and as such the respondent no.2 was not eligible for

compensation/damages under the U.P. Victim

Compensation Scheme-2014 as amended in the year

2016. Inspite of the same, an order was passed to make

the payment of Rs.20,000/- in favour of respondent no.2

under the scheme of Relief Fund scheme of the Chief

Minister but without considering the aforesaid aspect of

the matter impugned order has been passed.

9.In the counter affidavit it is stated by the learned

counsel for the respondent no.2 that the order passed by

the respondent no.1, which is impugned in the present

writ petition is absolutely perfect and valid and does not

call for any interference by this Court specially under

Article 226 of the Constitution of India.

10.Heard learned counsel for the parties and perused

the record.

11.With the consent of learned counsel for the parties,

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the writ petition is being disposed of finally at the

admission stage itself.

12.The challenge before the Court, which is addressed

during the course of submissions, is that the power of

Commission under Section 18 (a) (1) of the Act, 1993. It is

argued that the Commission under the aforesaid provision

can only “recommend” to the concerned Government

Authority to make payment of compensation or damages

to the complainant or to the victim or members of his

family.

13.In view of the aforesaid it is submitted that the

power of the Commission being re-commendatory in

nature and direction given by the Commission to the

District Magistrate, Fatehpur/Superintendent of Police,

Fatehpur, to furnish proof of compliance of payment of

compensation to the extent of Rs.100,000/- (one lac) to

the respondent no.2 is contrary in law and is liable to be

set aside.

14.The National Human Rights Commission has been

constituted, together with the State Human Rights

Commissions, "for better protection of human rights" and

for related ancillary matters. The Commission is a high

powered body whose Chairperson is a person who has

been the Chief Justice of the Supreme Court. Among its

members is a person who is, or has been a Judge of the

Supreme Court; and another who is, or has been the Chief

Justice of a High Court. Two other members are to be

appointed from amongst persons having knowledge of, or

practical experience in, matters relating to human rights.

The appointment of the Chairperson and Members is by a

Committee chaired by the Prime Minister and which

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includes among other persons, the Speaker of the Lok

Sabha, Union Minister of Home Affairs, the leaders of the

opposition in the Lok Sabha and Rajya Sabha and the

Deputy Chairperson of the Rajya Sabha. The presence of

these high dignitaries on the selection committee is

indicative of the importance which Parliament has

ascribed to the functions of the Commission.

15.The functions of the Commission under Section 12

include among other things, the power to inquire suo

motu or on a petition presented to it by a victim or any

person on his behalf or on a direction of a court, into a

complaint of the violation of human rights or abetment

thereof or negligence in the prevention of such a

violation, by a public servant.

16.Section 12 which defines the functions of the

Commission is in the following terms:

"12. Functions of the Commission. --The

Commission shall perform all or any of the following

functions, namely:--

(a) inquire, suo-motu or on a petition presented to it by a

victim or any person on his behalf [or on a direction or

order of any court], into complaint of--

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

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

a public servant;

(b) intervene in any proceeding involving any allegation of

violation of human rights pending before a court with the

approval of such court;

(c) visit, notwithstanding anything contained in any other

law for the time being in force, any jail or other institution

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under the control of the State Government, where persons

are detained or lodged for purposes of treatment,

reformation or protection, for the study of the living

conditions of the inmates thereof and make

recommendations thereon to the Government;

(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 recommend 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) study treaties and other international instruments on

human rights and make recommendations for their

effective implementation;

(g) undertake and promote research in the field of human

rights;

(h) 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;

(i) encourage the efforts of non-governmental

organisation and institutions working in the field of human

rights;

(j) such other functions as it may consider necessary for

the promotion of human rights."

17.When it makes inquiries, the Commission under

Section 13 has all the powers of a civil court while trying a

suit under the Code of Civil Procedure, 1908 and, in

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particular, in respect of the matters enumerated therein.

The Commission for the purposes of investigation is

empowered under Section 14, to utilise the services of

any officer or investigation agency of the Central

Government or any State Government with the

concurrence of the Central Government or the State

Government. The procedure before the Commission is

governed by Chapter IV of which Section 17 provides an

enquiry into a complaint of a violation of human rights.

The Commission is empowered to call for information or a

report from the Central Government or State Government

or any other authority or organization subordinate to

them. Section 18 deals with the steps to be taken during

and after the enquiry and is in the following terms:

"18. Steps during and after inquiry.--The Commission may

take any of the following steps during or upon the

completion of an inquiry held under this Act, namely:--

(a) where the inquiry discloses the commission of

violation of human rights or negligence in the prevention

of violation of human rights or abetment thereof by a

public servant, it may recommend to the concerned

Government or authority--

(i) to make payment of compensation or damages to the

complainant or to the victim or the members of his family

as the Commission may consider necessary;

(ii) to initiate proceedings for prosecution or such other

suitable action as the Commission may deem fit against

the concerned person or persons;

(iii) to take such further action as it may think fit.

(b) approach the Supreme Court or the High Court

concerned for such directions, orders or writs as that

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Court may deem necessary;

(c) recommend to the concerned Government or authority

at any stage of the inquiry for the grant of such

immediate interim relief to the victim or the members of

his family as the Commission may consider necessary;

(d) subject to the provisions of clause (e), provide a copy

of the inquiry report to the petitioner or his

representative;

(e) the Commission shall send a copy of its inquiry report

together with its recommendations to the concerned

Government or authority and the concerned Government

or authority shall, within a period of one month, or such

further time as the Commission may allow, forward its

comments on the report, including the action taken or

proposed to be taken thereon, to the Commission;

(f) the Commission shall publish its inquiry report together

with the comments of the concerned Government or

authority, if any, and the action taken or proposed to be

taken by the concerned Government or authority on the

recommendations of the Commission."

18.Section 18 vests wide powers in the Commission.

Under clause (a), it is empowered to recommend the

payment of compensation or damages to the concerned

government or authority where the enquiry has disclosed

the commission of a violation of human rights or

negligence in the prevention of a violation of human

rights or abetment thereof. The provisions of Section 18

(a) correspond to the functions of the Commission

specified in Section 12 (a). The Commission is entitled to

approach the Supreme Court or the High Court for such

directions, orders or writs as that Court may deem

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necessary. The Commission under clause (c) of Section 18

can recommend to the concerned government or

authority at any stage of the enquiry to grant interim

relief to the victim or the members of his family. Under

clause (e), the Commission has to send a copy of its

inquiry report together with its recommendations to the

concerned Government or authority which shall, within a

period of one month or such further time as may be

allowed, forward its comments on the report, including

the action taken or proposed to be taken thereon to the

Commission.

19.These provisions emphasize three aspects. First, the

enactment of the Protection of Human Rights Act, 1993 is

an intrinsic part of the enforcement of the fundamental

right to life and personal liberty under Article 21 of the

Constitution. Equally, by enacting the legislation,

Parliament has evinced an intention to enact legislation in

compliance with India's obligations under the Covenant

on Civil and Political Rights and the Covenant on

Economic, Social and Cultural Rights adopted by the

General Assembly of the United Nations. Secondly, the

Commission is a high powered body which has been

vested with exhaustive powers to order an investigation,

conduct enquiries and for which it is vested with all the

powers of a civil court. Clauses (a) to (f) of Section 18 are

not evidently an exhaustive enumeration of the powers of

the Commission since the use of the expression "and in

particular" would indicate that the powers which are

enumerated are illustrative in nature. The Commission

follows a procedure which is governed by Section 17 for

the purpose of making inquiries upon which it has to take

steps in conformity with Section 18.

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20.The aforesaid aspect of the matter dealt with in

great detailed by a Coordinate Bench of this Court in Writ

C No.15570 of 2016 (State of U.P. and 2 others Vs.

N.H.R.C. and 3 others). In the aforesaid case a judgement

was delivered by Dr. Dhananjaya Yeshwant Chandrachud

the then Chief Justice that the Commission is entitled to

direct for the payment of compensation to the victim

where it finds either a violation of human rights or a

negligence in the prevention of a violation of human

rights. The operative portion of the aforesaid judgment is

quoted below :-

“The basic question is whether the use of the

expression "recommend" in Section 18 (a) can be

treated by the State Government or by an

authority as merely an opinion or a suggestion

which can be ignored with impunity. In our view, to

place such a construction on the expression

"recommend" would dilute the efficacy of the

Commission and defeat the statutory object

underlying the constitution of such a body. An

authority or a government which is aggrieved by

the order of the Commission is entitled to

challenge the order. Since no appeal is provided by

the Act against an order of the Commission, the

power of judicial review is available when an order

of the Commission is questioned. Having regard to

the importance of the rule of law which is but a

manifestation of the guarantee of fair treatment

under Article 14 and of the basic principles of

equality, it would not be possible to accept the

construction that the State Government can ignore

the recommendations of the Commission under

Section 18 at its discretion or in its wisdom. That

the Commission is not merely a body which is to

render opinions which will have no sanctity or

efficacy in enforcement, cannot be accepted. This

is evident from the provisions of clause (b) of

Section 18 under which the Commission is entitled

to approach the Supreme Court or the High Court

for such directions, orders or writs as the Court

may deem fit and necessary. Governed as we are

by the rule of law and by the fundamental norms

of the protection of life and liberty and human

dignity under a constitutional order, it will not be

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open to the State Government to disregard the

view of the Commission. The Commission has

directed the State Government to report

compliance. The State Government is at liberty to

challenge the order of the Commission on merits

since no appeal is provided by the Act. But it

cannot in the absence of the order being set aside,

modified or reviewed disregard the order at its own

discretion. While a challenge to the order of the

Commission is available in exercise of the power of

judicial review, the State Government subject to

this right, is duty bound to comply with the order.

Otherwise the purpose of enacting the legislation

would be defeated. The provisions of the Act which

have been made to enforce the constitutional

protection of life and liberty by enabling the

Commission to grant compensation for violations

of human rights would be rendered nugatory. A

construction which will produce that result cannot

be adopted and must be rejected.

The order which has been passed by the

Commission has been passed on a careful

appreciation of materials which were placed on the

record. The deceased was an under trial prisoner

who was lodged in the district jail in Muzaffarnagar.

The treatment record indicated that he was

provided treatment only from 15 May 2012 and he

died on 21 May 2012. Though he had been

admitted to jail on 9 September 2011, until 15 May

2012, no medical check up was carried out to

control or treat his lung disease. He was not sent

to a competent medical facility until his condition

had deteriorated. Consequently, finding a case of

negligence on the part of jail officials in providing

medical treatment, the Commission has ordered

the grant of compensation. The Commission is

entitled to do so where it finds either a violation of

human rights or a negligence in the prevention of

a violation of human rights.

For these reasons, we find no substance in the

petition. The writ petition is, accordingly,

dismissed.

There shall be no order as to costs. “

21.Even from perusal of Section 18 of the Act, 1993 it is

clear that the Commission has empowered to take any of

the steps as contained under Section 18 of the Act, 1993.

As many as six steps were mentioned under Section 18 of

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the Act. Sub-clause (a) of Section 18 deals with the fact

that where the enquiry discloses the commission of

violation of human rights or abatement thereof by a

public servant he may recommend to the concern

government or authority to make payment of

compensation or damages to the complainant or to the

victim. From perusal of the same, it is clear that the

Commission has full power to recommend regarding

payment of compensation or damages to the

complainant, if he finds on enquiry that there is a

violation of human rights or negligence in the

presumption of violation of human rights. Another

Division Bench of this Court in Writ C No.7890 of 2014

(State of U.P. and 2 others Vs. National Human Rights

Commission) decided on 1.2.2019 has taken the same

view.

22.From perusal of the report placed before the

respondent no.1 it reveals that during procession on the

occasion of Makar Sankranti at Jahanabad, District

Fatehpur on 14.1.2016 due to riots the

complainant/respondent no.2 sustained injuries on the

head and in the right eye. The complainant/respondent

no.2 was referred by the local doctor for treatment at

Kanpur Nagar from where he was referred to the AIIMS,

New Delhi where he was diagnosed but the

complainant/respondent no.2 has lost the eye sight of one

of his eyes. The commission also gone through the report

of the Circle Officer, Bindki, Fatehpur. From perusal of

which it reveals that in the mis-happening on 14.1.2016

the complainant sustained injuries on the head and the

right eye due to which he lost the eye sight of one of his

eyes. The respondent Commission also taken into

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consideration the judgement delivered by the National

Consumer Disputes Redressal Commission in the case of

H. S. Sharma Vs. Indraprastha Apollo Hospital and

another reported in 2007 (4) AWC 4.175 (NC) where

the Commission has awarded a compensation of

Rs.2,00,000/- (two lacs) to a victim, who lost his eye sight

due to negligence. Further findings were recorded by the

Commission in the order impugned that in the matter in

question it is evident from the report of the Circle Officer

that the complainant has lost his sight of one of his eye

during the riots, which is inevitable incident. The Chief

Medical Officer has also certified that the right eye of the

complainant is 100% blind. The Commission after

considering the entire material on record passed the

order to award compensation in favour of the petitioner

and directions were given to the District Magistrate,

Fatehpur/Superintendent of Police, Fatehpur to make

payment of compensation to the extent of Rs.1,00,000/-

(One lac only) to the complainant Ansarul Haq and

informed the Commission.

23.In so far as the argument raised by the learned

counsel for the petitioners that since the respondent no.2

has sustained injuries causing disability only upto 30%

and the compensation could only be awarded when the

disability ranging from 40% to 80% is suffered, the

aforesaid provision has been made in the U.P. Victim

Compensation Scheme, 2014. The provisions of the

aforesaid scheme will not apply in so far as the

application submitted by the respondent no.2 before the

respondent no.1 is concerned.

24.In view of the same, the aforesaid objections raised

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by the petitioners is no force.

25. On the basis of the aforesaid facts, the Commission

has ordered for the grant of compensation.

26.In view of the facts as narrated above as well as from

perusal of the judgement of two different Division

Benches of this Court passed in Writ C No.15570 of 2016,

State of U.P. and 2 others Vs. N.H.R.C. and 3 others,

(supra) and Writ C No.7890 of 2014, State of U.P. and 2

others Vs. National Human Rights Commission (supra) it is

clear that the respondent no.1 has full power and

authority to direct the District Magistrate/Superintendent

of Police to make the compensation to the victim as has

been done in the present case.

27. In the facts and circumstances of the case,

Commission is entitled to do so where it finds either a

violation of human rights or negligence in the prevention

of violation of human rights.

28.The order dated 7.11.2016 passed by respondent

no.1/U.P. Human Rights Commission, Lucknow does not

want any interference specially under Article 226 of the

Constitution of India.

29.The writ petition is devoid of merits and accordingly

dismissed. No order as to cost.

Order Date :- 24.10.2019

Pramod Tripathi