Javed Iqbal Wani JUDGMENT
Javed Iqbal Wani, J.
1. In this petition, petitioner on the foundation of the case setup implores for the following reliefs:-
"1. Writ of mandamus declaring the impugned order dated 22.02.2018 passed by respondent No. 's 1 & 2 as null and void, as the same has been passed without inherent jurisdiction and is thus liable to be set aside.
2. Writ of prohibition restraining respondent No. 's 1 & 2 to give effect to impugned judgment dated 22.02.2018.
3. Or any other writ, order or direction which this Hon'ble Court deems fit and proper in the facts and circumstances of the case in favour of petitioner and against respondents."
2. The background facts as stated by the petitioner, under the cover of which the petitioner claims the reliefs aforesaid, are that the respondents No. 1-J&K State Human Rights Commission (herein after for short 'the Commission'), after taking cognizance of a complaint filed by respondent No. 3 before it, allowed the same vide order dated 22.02.2018, (herein after for short 'the impugned order'). The complainant was held entitled to arrears of rent qua land measuring 02 Kanals and 04 Marlas alleged to be under occupation of BSF 103 Battalion since 1990. The relevant content of the complaint are extracted here under:-
"With due regards it is requested that I am resident of Kherman Nandram Handwara due to turmoil I along with my family members migrated to Jammu in 1990 and left our moveable/immoveable property there. After we left in 1990 BSF 103 BN occupied our land under Khasra no. 34, 35 on the name of Moti Lal Raina and Hari Krishan Raina sons of late Shamboo Nath Raina measuring 2 kanals and 15 marlas along with the land of other land.
The BSF 103 BN had not paid the rent of said occupied land to us as the other beneficiaries had been paid rent since 1990. When I came to know about it I applied for the rent to Tehsildar Handwara vide my application dated 3/10/2011 but nothing has been done by the concern authorities. I contacted the Tehsildar Handwara's office I was told that the case was lost somewhere. I again applied vide my application dated 29/08/2013 followed by dated 20/10/2013 and 4/03/2014 but nothing has been done so far, sir I do not understand that why the rent of our land occupied by BSF was not sanctioned by the concern authorities and paid to me as the rent of other land holder is being paid annually/periodically which is grassroot violation of human rights.
It is requested to your good self to kindly protect our rights and ask the concern authorities to sanction the rent of the same land as early as possible."
3. Despite service none has appeared on behalf of respondent No. 3.
4. The petitioner in the petition has challenged the impugned order inter-alia amongst others on the ground, that the order impugned is bad in law, in as much as that the Commission had no jurisdiction to pass the said order, the same being a Civil dispute. At the most the Commission could have forwarded the complaint to the forum having jurisdiction.
5. It is further urged in the grounds of challenge that the impugned order has been passed without any authority of law by the Commission. Reference in this regard in the petition is made to Section 13(2)(c) of the Act.
6. It is further urged in the grounds that the Commission could not have inquired into the complaint regarding a matter not falling in its jurisdiction.
7. Heard learned counsel for the petitioner and perused the record.
8. The undisputed facts those emerge from the record are that upon filing of the complaint by the complainant and the Commission upon entertaining the same issued notices to Deputy Commissioner, Kupwara and Tehsildar Handwara, who submitted their respective reports in the Commission in response thereto. It was stated therein that the rent is being continuously paid to the complainant w.e.f. January 2015. Further it is stated in the reports that payment of rent since 1990 is under consideration to be released at the rates permissible soon after formalities are completed and that Senior Superintendent of Police, Kupwara, has been asked for release of the arrears who has not, however, cleared the same.
9. The Commission on the basis of aforesaid reports, in the impugned order held that the land in question is under occupation of BSF 103 Battalion since 1992 and that the respondents have not denied the claim of the complainant but have failed to make good the rent payable to the complainant w.e.f. 1990. Consequently while holding the complainant entitled to the arrears of rent since 1990 with immediate effect directed payment thereof to the complainant w.e.f. 1990.
10. The pivotal issue that requires consideration of this court in the instant petition is as to whether the Commission lacked jurisdiction to entertain the complaint of the respondent No. 3, take cognizance thereon and pass the impugned order.
11. Before adverting to the aforesaid issue it would be advantageous and appropriate to refer to the following provisions of the Act 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 13 of 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
(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:-
"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."
12. Further reference to Regulation 14 of Jammu and Kashmir State Human Right Commission (Procedure) Regulations 2011 (hereinafter referred to as 'the Regulations') 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;
(j) The allegations in the complaint do not make out a case of human rights violations;
(k) Trivial or frivolous and illegible complaints;
(l) Vague anonymous/unsigned, or pseudonymous
(m) Civil disputes such as contractual obligations, matrimonial matters, property rights and other types of cases which are covered by civil/criminal law;
(n) Pure and simple service matters;
(o) Allegations not against a public servant;
(p) Industrial/labour disputes;
(q) Matters sub-judice before any Court/Tribunal/Commission;
(r) Matters outside the purview of the State Commission;
(s) Complaints barred by laws;
(t) Matter fully covered by a judicial verdict/decision of the Commission.
13. A conjoint reading of aforesaid provisions of the Act and Regulation manifestly suggest that a mode and mechanism is prescribed for the Commission to be followed and adhered to qua the complaints filed before it.
14. 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, the complaints 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.
15. The Commission despite the aforesaid mandate, however, has not only entertained the complaint in question but took cognizance thereupon in as much as rendered a decision thereon on merits. The said action of the Commission runs contrary to the settled proposition of law 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 can be made to "State of MP Vs. Centre for Environment" and "Competent Authority Vs. Barangore Jute Factory & Ors." reported in MANU/SC/2053/2005 : (2005) 13 SCC 477.
16. The Commission in the instant case evidently had without any jurisdiction entertained the complaint of the respondent No. 3 herein relating to the recovery of arrears of rent, ex-facie, not a human right but a dispute covered by Civil law and in the process pass impugned order in breach and violation of aforesaid provisions of the Act and Regulation.
17. A Division bench of this court in case titled as "State of Jammu and Kashmir &Ors Vs. J&K State Human Rights Commission & Ors" being OWP No. 2017/2019 decided on 02.07.2019, has earlier observed that the Commission is a statutory body, which is a creation of statute and has to work within the four corners of law and exercise its jurisdiction within the limits prescribed under the Act and the Regulations framed there under. The observation came to be made after it was noticed that the Commission has taken cognizance of a complaint relating to a service dispute. The Commission specifically under the Regulations was required to dismiss it in limini being a complaint involving pure and simple service matters.
18. The Commission as it appears from above is seen to have been entertaining complaints, taking cognizance and adjudicating the same qua the issues other than those covered under the Act despite lacking jurisdiction and competence.
19. The Commission thus in the process admittedly encroaches upon the power and jurisdiction of other statutory, quasi-judicial and judicial authorities. The said act of the Commission is likely to create an anarchy, which by no sense of imagination can said to be tenable in law.
20. For what has been stated and observed herein above, we find merit in the petition. The same is allowed. The impugned order dated 22.02.2018 passed by respondent No. 1 is quashed and as a corollary whereof the complaint filed by the respondent No. 3 being file No: SHRC/67-J of 2014 is dismissed.
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